The Supreme Court Doesn't Understand Software

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."

Comments

Re:Why not patent compression algorithm?

[Spazmania]

Because a "data compression algorithm" is more than a mathematical equation. Indeed, outside the material scope of a computer it has no existence, except perhaps as a thought problem.

The idea of mechanically separating grain is not patentable but a machine which actually does so is. And that patent will cover any machine which works substantially the same way, which is to say follows the same process or algorithm. Do you follow the difference?

What SCOTUS said yesterday was that merely adding a computer to something already practiced in the public domain does not remove it from the public domain. It is not patentable. Not new. That should come as a big "duh" moment for anyone who thought otherwise. But the invention of something that didn't exist in a non-computer form and for which a computer is an essential component, well that is patentable. And the patent will cover any computer or other device running it.

Followed the law. if (false) then false

[raymorris]

The judgement reflects current law. The article uses the weasel word "if" to continue to promote the anti-patent lobby's favorite lie:

    "If a sequence of conventional mathematical operations isn't patentable,

Okay, if, but the first half is false. The idea that inventions based on math is simply a falsehood detained to confuse those who a) don't know any better and are too busy or two lazy to read the couple of paragraphs that is the actual law.

The law says what isn't patentable is "the laws of nature, including the laws of mathematics".

That laws of physics aren't patentable. Does that mean that any invention based on the laws of physics is unpatentable? Obviously not. An elevator is an application of the laws of physics. You can patent an elevator design. You can't patent gravity. PageRank is an invention that is an application of the laws of mathematics. You can patent PageRank. You can't patent the associative law of addition.

That's the law. Some people want to change the law, and that's fine. Current law is that you can't patent the fundamental natural laws of a science, and can patent an invention which makes use of the science.

Re:Followed the law. if (false) then false

[TapeCutter]

It's been argued that had Huffman implemented his famous compression algorithm in hardware rather than software he would have been granted a patent. The social/legal problem is that modern Science is demonstrating the term "the laws of nature, including the laws of mathematics" is synonymous with "everything". Particularly in the computer and biotech industries.

Re:Followed the law. if (false) then false

[jd]

You can patent an elevator because you invented it. You cannot patent gravity because you didn't.

Everything that ever was, is or ever will be, in mathematics, always has been and always will be. Nothing in mathematics is invented, only discovered. (You cannot patent Antarctica, either.)

You can patent an elevator because it isn't obvious. You cannot patent a spring because it is.

Everything in mathematics is ultimately obvious. See "Spiked Maths" for details. Or, if you prefer, consider the fact that everything is built from statements already proven to reduce to fundamental axioms. Everything in mathematics is ultimately true, though not necessarily at the same time. There is no innovation, no creation. Nothing has been added. All you have done is taken two truths and constructed a composite truth. You can add whatever physical theory you like to gravity, you will never construct an elevator.

You can patent an elevator because there are multiple solutions to the same problem. You cannot patent sodium chloride because there is only one chemical that is sodium chloride, it is unique.

Any two mathematical statements which yield identical results (which implies both operate over the same domain and range) are provably identical. Thus, there is a unique solution to a given problem.

You can patent an elevator because it is man-made, artificial. You cannot patent a star because it is not.

Ok, this is my one controversial statement. However, those who disagree are wrong, so I don't care. Mathematics is natural. It exists in the same form throughout the universe. If multiple universes exist, mathematics will be the same in all of them. Including the ones in which no life can exist to make use of it. There are bits of mathematics that cannot coexist, ensuring it cannot be both complete and correct (blame Godel), but there's lots in the natural world like that. That's normal for the natural world.

Re:those ARE a problem. Mechanisms, not results

[ultranova]

Imagine if you're the first person to think of routing cars around areas of high traffic in real time and develop a method to do so. Why shouldn't you be able to get a patent on the result -- routing cars around areas of high traffic for a reasonable amount of time?

Because "sure would be nice if all these cars didn't come here at once" is not an invention? You are not the first person to grasp the concept of load balancing. And indeed, radio has been broadcasting traffick reports for as long as I can remember.

And, if not, what "mechanism" should your patent be tied to?

The specific method you developed. Sure, that might mean an alternative method is trivial to develop and you get nothing - but guess what? All that means is that your "invention" was trivial in the first place.

The real problem is that Americans treat the patent system like they treat everything else: as a get-rich-quick scheme to escape the self-inflicted hell that's their "incentivizing" economy.