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Judges Debate Patents and If New Software Makes a Computer a "New Machine"
First time accepted submitter ectoman writes "A third party steps into a financial transaction to make sure all parties exchange funds at the same time and as expected. Can you patent this process? What if the third party is a computer? Rob Tiller, vice president and general counsel for Red Hat, details a recent court ruling on this very matter—one that has critical implications for the future of software patents, and one that divided the judges involved. Tiller writes that: 'The judges mostly agreed that the idea of managing settlement risk with a third party was abstract such that by itself it could not be patented. They differed, though, on whether using a general purpose computer for managing settlement risk meant that the patents avoided invalidity based on abstraction.' Interestingly, some judges suggested that a computer becomes a 'new machine' every time it loads different software."
As much as I hate trivial patents in any field, I must admit that when I wipe windows off a pc and put debian on it, it sure feels like a new machine...
---- MISSING MISCELLANEOUS DATA SEGMENT --- [sigdash] trolololol
The computer is a new machine many times every picosecond as the data in the registers change, the data in ram changes, the data on the hard drive changes, the data flowing through network interfaces changes, etc...
Since the computer is *new* billions, if not trillions of times a second, then software doesn't make it unique.
Yet again, the clueless making decisions on things they cannot comprehend.
Is that they do not have to understand the technical stuff. Patent Judges are the reason for the problem. If they were really qualified, they would not have a low-paying federal job.
You are thinking of a Patent Examiner, not a "judge". These are two very different governmental positions.
I know I'll be flamed for this because everyone here is against software patents, but...
The distinction between a physical machine and a physical machine running software is somewhat pointless. Almost any software can be converted into a physical machine. Using a hardware H.264 encoder/decoder or a hardware crypto card is really no different from doing those things in software. If you want to make a distinction between physical objects and software for patent purposes, the logic part of computers needs to be considered software despite the fact that it's been manifested as a physical object. But general purpose computers running software aren't any different than purpose-built computers executing the same logic in hardware.
They are, of course, right. An algorithm is conceptually the same as a description of a machine for executing that algorithm, whether you draw logic gates to execute your algorithm, or solder together transistors, or write Python.
As a mathematician working on algorithms right now, I say they are right.
However.
Algorithms shouldn't be patentable, no matter how they are represented. But that's a political decision, not a technical one.
35 USC 101 requires that a claimed invention be directed to patent eligible subject matter: a process, machine, article of manufacture, or composition of matter (it also requires that the invention is useful). The courts have decided that these categories are very broad, but don't include "abstract ideas" (though that term is never defined), laws of nature, or natural phenomena.
If the claimed invention passes that low threshold for 101, 35 USC 102 requires that the invention must be new or novel. That's a higher bar, but not a huge one - if I'm the first person to make a red car and claim that in a patent application, that's new, even if blue cars existed.
If the claimed invention passes that threshold, then 35 USC 103 requires that the invention must be nonobvious. The red car is obvious if blue cars existed, even if no one has ever made a red car before.
So, for example, if some piece of software causes a computer to paint the screen in red paisley and that's never been done before, it's new... but it's obvious and still patent ineligible.
The problem is when these get confused or conflated into a single requirement, because obviousness and novelty require evidence, while subject matter eligibility does not. And so, you get cases like CLS or Bilski where the judges want to invalidate the patent because it's stupidly obvious, but they have no evidence on the record... so they declare it an abstract idea and invalid. In particular, here, the judges started carving out everything from the patent claim that made it non-abstract, declaring it irrelevant, until the only thing left was abstract. The outcome may be the right one, but it's for the wrong reason - it's like finding a murderer guilty because you hate his face. Maybe he was actually the murderer, but you're finding him guilty for the wrong reason.
What the judges need to understand is that fundamentally, people are general purpose machines. Without any training at all, people are not capable of solving many problems. However, people can solve all sorts of problems based on what you teach them. Sure, you aren't going to be able to get a bushman in the Serengeti to be able to build the Apollo but, the potential is there given enough training. If that same bushman were to go to school and eventually graduate from college, they would be just as capable as anybody else. So how is receiving training through college or a technical school any different than a computer receiving a new set of instructions on how to solve a particular problem?
Computers only run algorithms (which aren't supposed to be patentable).
Except that 35 USC 101 explicitly says that processes are patentable, and a process is an algorithm. You have to go a bit deeper into understanding why the Supreme Court said that algorithms weren't patentable to understand the distinction. Specifically, they wanted to draw a line between thought and action: because one of the remedies for patent infringement is an injunction, you have to be able to order people to stop infringing. And while you can tell someone to stop performing the process for curing rubber, for example, you can't tell them to stop thinking of the equation for determining when to remove the rubber from the oven.
One way of drawing this line...
They follow a set of instructions step by step and can't do anything that you and I can't do with a pencil and piece of paper. (They just can do it a lot faster.)
... is to require that the claimed process has steps that you or I can't do with a pencil and piece of paper, no matter how slowly. So, for example, a patent claim of triangulating a position given three signals is not patentable, because we could do that on paper. But a patent claim that includes receiving those signals from a GPS satellite with an antenna is patentable. Think of it as a system - there's a black box that takes an input of some numbers and outputs some other numbers. You or I could do that as well as a computer (albeit slower), and it's unpatentable. But add on additional hardware that provides that input, or additional hardware that reacts to that output, and it's no longer something that we can do solely in our heads or on paper - you now need to perform an action of getting signals from something else, or closing a switch elsewhere, or whatnot. And so that's patentable, and you can be ordered not to take those physical steps that would infringe.
Since the purpose of a computer is to run programs, asking us to accept that a computer is a new computer everytime it runs a new program seems like a bit of a stretch, and leads me to believe that some judges still don't quite get computers.
Python: 'And then suddenly you have a language which says "we're all stuck with whatever the whiniest coder wants".'
Apparently Plutarch already knew this little puzzle called the ship of Theseus problem.
I'm highly confident that some US judges will finally put those those annoying logicians and philosophers to rest and give us the ultimate correct solution.
"I'm just saying that a favorable ruling here would insta kill windows, especially on the business side of things where things are inter-dependent and integrated to a degree that sometimes involves licensing."
F*cking clueless judges. There is precedent going back well over 100 years that software is irrelevant to the nature of the machine. Examples: different cards in a Jacquard loom do not make it a "different" loom. Different player piano rolls do not make it a "different" piano. Etc. There are actual court decisions to this effect.
Not to mention that it is also common sense.
"Do you know any off-hand or can you find one or two?"
I don't have case citations at hand but you can look them up. In particular, find copyright cases surrounding player piano rolls, in which the courts ruled that it made absolutely no difference whether copyrighted works were used to control a machine.
John Philip Sousa was famously involved in some of those suits.