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The Supreme Court Doesn't Understand Software

Posted by Soulskill on from the software-is-a-series-of-tubes dept.

An anonymous reader writes We had some good news yesterday when the U.S. Supreme Court invalidated a software patent for failing to turn an idea into an invention. Unfortunately, the justices weren't willing to make any broader statements about the patentability of basic software tools, so the patent fights will continue. Timothy B. Lee at Vox argues that this is because the Supreme Court does not understand software, and says we won't see significant reform until they do.

He says, "If a sequence of conventional mathematical operations isn't patentable, then no software should enjoy patent protection. For example, the 'data compression' patents that Justice Kennedy wants to preserve simply claim formulas for converting information from one digital format to another. If that's not a mathematical algorithm, nothing is. This is the fundamental confusion at the heart of America's software patent jurisprudence: many judges seem to believe that mathematical algorithms shouldn't be patented but that certain kinds of software should be patentable. ... If a patent claims a mathematical formula simple enough for a judge to understand how it works, she is likely to recognize that the patent claims a mathematical formula and invalidate it. But if the formula is too complex for her to understand, then she concludes that it's something more than a mathematical algorithm and uphold it."

7 of 263 comments (clear)

  1. Nothing to do with software by smittyoneeach · · Score: 4, Insightful

    Everything to do with money

    --
    Get thee glass eyes, and, like a scurvy politician, seem to see things thou dost not.--King Lear
  2. Why not patent compression algorithm? by Pulzar · · Score: 1, Insightful

    If somebody comes up with a novel patent compression algorithm, why shouldn't they be able to patent it? I read the argument about math not being patentable, but I don't really understand why. A new data compression algorithm that is truly novel seems like it should deserve some protection so that the inventor can get rewarded for her work. No?

    --
    Never underestimate the bandwidth of a 747 filled with CD-ROMs.
    1. Re:Why not patent compression algorithm? by shanipribadi · · Score: 5, Insightful

      The question should never have been "why shouldn't they be able to patent it", it should always be "why should they be able to patent it". The fact is that a patent is granted at the expense of the many for the benefit of the few, so there should always be a damn good reason for something to be granted as a patent.

    2. Re:Why not patent compression algorithm? by rolfwind · · Score: 4, Insightful

      Back in the day patents were put in the Constitution to advance the arts and sciences. Medieval guilds protected knowledge which held humanity/society back, so it was preferable to give limited government protection in exchange for opening up the knowledge (so the next generation can have at it, I guess).

      Having patents for their own sake seems counterproductive in this regard, as a lot can be reverse engineered in the meantime.

      In reality, everyone is told by legal not to look at previous patents ever, just in case they do infringe, it's not willful infringement.... patent portfolios protect the huge corps and the trolls, with very little in between, and the really lucrative stuff is kept proprietary anyway.

      So it leads one to ask, while wasting time writing patents apps, what is the patent scheme good for really and is it beneficial for society?

    3. Re:Why not patent compression algorithm? by Kat+M. · · Score: 5, Insightful

      The purpose of patents is not to reward inventors for being clever. A patent is an extremely powerful monopoly, against which even independent reinvention does not protect and is a privilege that in a free market economy should be granted with extreme reluctance, because of the negative effects monopolies can have on competition and economic freedom.

      We have patents because in some fields inventors may be discouraged otherwise because the financial outlay for R&D is too high and it is too easy to duplicate the invention. Patents thus encourage inventors (or the people who bankroll them) by making the financial risk manageable; in exchange, the invention enters the public domain after a set period of time, so society benefits too. I.e., ideally we have a win-win situation where both the inventory and society benefit.

      But when R&D does not require expensive labs, materials, or processes, that rationale disappears; instead, patents are likely to become the tools of rent-seeking and regulatory capture and impede progress rather than furthering it. And when independent reinvention is common –as is the case with computer science – society does not benefit from granting inventors such an extremely broad monopoly. The narrower monopoly of copyright is instead more suitable when it comes to protecting the genuine interests of software developers, because the costs associated with software projects are generally caused by sweat of the brow effort (especially when managing a large project), not the underlying novelty.

  3. Re:Everything is an algorithm by JesseMcDonald · · Score: 4, Insightful

    Any patented process and device can be described wholly in algorithmic terms.

    Described, yes. Software patents (and business method patents, etc.) are the ones which can be implemented wholly in algorithmic terms. You can describe a new manufacturing process with math, but you can't actually manufacture anything until you apply that math by rearranging matter and energy in the real world. It's the application that the patent covers, not the description. The device, not the blueprints.

    This ruling simply states what should be obvious, that adding "on a computer" to an abstract concept does not magically transform it into a patent-eligible invention. The patent is still really about the abstract concept, despite the "on a computer" gimmick, and thus remains ineligible.

    There should never have been any question regarding the patentability of taking someone else's invention (a computer) and using it for the purpose it was designed for (speeding up the evaluation of algorithms), regardless of the specific algorithm in question. That would be like patenting the use of an off-the-shelf pocket calculator to evaluate 2 + 2. If you can't patent the algorithm on its own—and you shouldn't be able to, since it's pure math—then it makes no sense to be able to patent it "on a computer".

    --
    "The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
  4. Re:Followed the law. if (false) then false by mysidia · · Score: 4, Insightful

    Obviously not. An elevator is an application of the laws of physics. You can patent an elevator design. You can't patent gravity.

    What people have problems with... is most software patents look like this:

    1. Apply the law of gravity, using electric circuits, using a machine to transport people between different levels or heights in a building.

    2. The method of claim 1, where a machine is used to carry people between floors in a building.

    In other words: the "invention" has been turned into a "black box", which is not explained in the patent.

    Instead of the specific elevator design you developed being patented, ALL elevators using the basic principle of gravity are patented, even though gravity itself is not patented.

    They just say Apply (basic concept) using (new technology).

    The invention is a black box not discussed in detail.