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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."
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."
Everything to do with money
Get thee glass eyes, and, like a scurvy politician, seem to see things thou dost not.--King Lear
At least according to some philosophers and physicists, everything corresponds to algorithms: https://en.wikipedia.org/wiki/... Any patented process and device can be described wholly in algorithmic terms. Does this mean nothing should be patentable? Of course not. There's no sharp dividing line in these things, and this is my point -- there are soft lines here, just like there are soft lines between things that are best described as mathematics, and things that are best described as software processes. Ultimately they all reduce to mathematics, but that in itself doesn't make them unpatentable. The disputes here are on where along a continuum to place a threshold, and everyone has their own favourite point. The summary suggests this is lost on Mr. Lee, who chooses to see this as purely black and white and cut off anything that reduces to mathematics. The problem with that is that, if you were to take this to its logical conclusion, then nothing whatsoever would be patentable. Then again, Mr. Lee may just be radical enough to believe that, even if he's not upfront about it for strategic reasons.
"Politicians and diapers must be changed often, and for the same reason."
I'd suggest the justiced read a little bit from the late computer scientist Dijkstra liked to imagine a world where math was patentable. He was president of "Math Inc" "the most exciting and most miserable business ever conceived." Where he imagined that an important mathematical proof had been patended, and was demanding all the mathematicians that relied on it to pay up!
My dear Jonathan,
After so many years of silence, you will be surprised to receive such a long letter from me. But, read on, and you will understand that this time I must address myself to a lawyer I can trust and of whom I know that he understands.
Remember our schooldays, when we argued about the relative merits of the Greek and the Roman culture? How I defended the Greeks by quoting Plato and you the Romans by quoting Cicero, and how the unsettled question did not impair the friendship and companionship between the two of us? (Happy youths, who could argue hotly about the relative superiority of classical cultures, whereas, today, the inferiority of contemporary civilization seems to be the only common meeting ground!) Our fates were decided that evening by the choice of our heroes: you chose law and I chose mathematics and our ways parted. (It is a strange thought that, if in that same discussion, I had chosen Homer and you Horatius, we might both have become professional poets and our paths might have continued to cross each other....)
Dear Jonathan, I am in a fix. I leave it to your great wisdom or to your worldly experience to decide for yourself, whether my problem is that I don’t understand them, or whether they are so short-sighted that they are unable to understand me. But the long and the short of it is that I am in a fix, I have painted myself into a corner to the extent that I need legal advice, imagine! As you know —Hugo has certainly told you something about it— I am presently responsible for Mathematics Inc., the most exciting and most miserable business ever conceived. It is really most exciting, because —beside being a most flourishing business (and that is saying a good deal, these days)— by blending the strength of Greek contemplation with that of Roman enterprise, we are changing the face of the world! Our problem is, however, that apparently the world is not quite ready for this (truly!) “Cultural Revolution” and is beginning to fight back in a most unartistic manner, just because it —and in particular: its legal procedures!— cannot cope with it. There are legal procedures for the protection of property of “things”, but there is no true protection of property of “ideas”, and of such nature are the products of Mathematics Inc. (There are, of course, patent law and copy-right, but as you read on, you, as a lawyer, will immediately see that in our cases they are insufficient.)
One of our most successful product lines is connected with what used to be known as the Riemann Hypothesis, but now should be named our Theorem. To bring you into the picture, Riemann —originally trained to become a Lutheran minister!— was one of those romantic mathematicians of the nineteenth century, who maintained his fame by dying young enough to ensure that nobody saw that he himself was also unable to prove his conjecture. Riemann completely missed the vision and imagination, needed to escape from the prejudices of the pre-industrial society and, according to the tradition of the period, he fought his problem single-minded: the amateur, needless to say, failed miserably.
To supply the missing proof was for Mathematics Inc. an obvious target, not only because we have built up the first (and only) corporation in the world, that is technically capable of constructing such a proof, but also, because commercially it is a most attractive proposition. The point is that whole flocks of mathematicians have made themselves dependent on it and have (somewhat irresponsibly) based whole branches of mathematics on Riemann’s assumptio
AccountKiller
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.
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?
Reading a book to someone is perfectly legal, reading a book on the radio to lots of people is conceptually equivalent to visiting them one by one and reading the book to them, it just saves a bit of time to do it in parallel. Conceptually this pretty much the same thing, but they are not the same from a legal perspective. Same goes for patentability of software, just like art or porn, you know it when you see it, but pinning down the definition is non-trivial - and doesn't need to be pinned down as much as you might expect for practical legal purposes.
Personally I don't support software patents at all, however there is a tendency from technical people like myself to expect the legal system to follow more logical rules than it does.
You are assuming that nothing being patentable is an inherently wrong idea without supporting that statement, which is a logical flaw and a strong indication of irrational bias.
You are also assuming that being able to be described mathematically is somehow equivalent to being able to be performed mathematically. Math can model a rocket going to Mars, but it can't send a rocket to Mars by itself.
This is my signature. There are many like it, but this one is mine.
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.
Patents are not granted for the benefit of a few. They are granted because: The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
Having said that, I agree that the question should be "why should they be able to patent it."
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.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
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.
The point of patents isn't to reward them for inventing a new compression algorithm. They can do that by selling their compression software and keeping the algorithm secret (if they can keep it secret)
The point is to reward them for telling the world how it works, so others can, eventually, use the same algorithm in their own inventions, or learn about compression and create a better one (which they may or may not patent and then the rest of us benefit from that as well)
Can you be Even More Awesome?!
Certainly those types of patents are bad, and potentially invalid. The scenario you described, where someone attempts to patent result rather than the mechanism is invalid and should be held invalid. Note that this is true whether the mechanism uses gears to perform multiplication or transistors. That problem is completely separate from and unrelated to software or math. It's a bad patent because there's no invention, just a goal or result.
I don't know that anyone has done an analysis to see whether or not more invalid "result" patents have been issued for bit-based "inventions" than molecule-based inventions. Whether the mechanism is made of wood or of bits, I know patents that are too broad have been issued in both.
Of course it's conceivable that some patent examiners could have had trouble distinguishing between the result of a software mechanism (find quality web pages) and a particular mechanism for doing so (PageRank). "High quality" web pages could be determined by any number of mechanisms and PageRank is just one of many different mechanisms that might be invented.
Too bad we're not a democracy.
No, the point is to reward them, because of the major or minor benefit humanity enjoys because of that invention. It's not a freebie, but rather an exchange of benefits.
If the inventors keep it a secret, they risk being reverse engineered by a competitor, and suffering a minor or major financial loss in the marketplace depending on the marketing/financial power of his competitor. With patents, the secret is exposed, but competitors, who did not put any effort in creating the invention, don't get the right to sell it, and don't get to unjustly profit for someone else's work.