But the real problem remains bad patents. If only real inventions were patented, we wouldn't see so many trolls grabbing patents on basic (and obvious) technology and preventing others from using it. Patents on math, in particular, have to go.
Respectfully, although I agree for a different reason*, those sentences are at odds with each other:
1) "bad" patents are those that are granted when they shouldn't be because the invention is obvious - i.e. not a "real" invention or a "basic (and obvious) technology".
2) but, saying "patents on math... have to go" as a conclusion would imply that you're saying that all math is basic and obvious. Didn't we see a story earlier today where it took 250 years to solve a problem hypothesized by Newton?
Yes, there are too many obvious patents. The problem there is that the patent office was overworked and under-funded (because patent fees that were supposed to be re-invested in the patent office were diverted by Congress to bullshiat). The solution is to hire more examiners and train them better. Saying "[x] industry shouldn't be allowed to have patents" is not a valid solution, because it has no direct relationship to the problem.
If you want to argue that software should be unpatentable, argue that the most novel, non-obvious, useful software invention in the history of man should still be unpatentable. Arguing that software, as an industry, should be unpatentable because some patents suck is as valid as arguing that machines should be unpatentable because some patents on machines suck.
*math should be unpatentable because patenting math allows someone to exert a monopoly over math... so, theoretically you could get an injunction over someone thinking about a math problem, or being subject to gravity, or having chemical reactions in their body. The issue is the lack of control and the potential for making a thoughtcrime. Requiring a computer means that someone can't infringe in those ways.
I think it's safe to say that buying up useless patents and using them to harass new entries to the market does the opposite.
That's begging the question... What evidence do you have that these patents are "useless"? Consider, if they successfully "harass new entries to the market" then they're clearly useful, even if you don't like it.
This is in clear violation of the original intent of patents.
In what way? The original intent is to encourage innovation by allowing inventors to secure commercially-viable time-limited monopolies. If inventors can't sell those monopoly rights, then they're not as commercially viable.
The perspective is the DMCA is flatly unconstitutional by design.
I accuse you of a crime. You get punished for that crime until you can prove otherwise.
No... It's "I accuse you of a crime and provide sufficient evidence that you have committed the crime - the URL of your page with my copyrighted photo, and my sworn statement of ownership of that photo. You get punished for that crime unless you assert that you're innocent, at which point your site returns and we can fight it out in court. And if you can prove I was lying in my sworn statement, you can get lots of money in damages."
There's nothing unconstitutional about that. This isn't criminal, it's civil... there's no requirement for a jury to find you guilty first.
And consider, if I accuse you of stealing, or drug trafficking, or whatnot, you can get arrested and held, potentially without bail, until trial. Isn't that "punishing" you? And yet, it's certainly constitutional.
What is the significant difference between evaluating an algorithm in your head, and doing the same thing with computer assistance, which would justify a patent? What is the novel, non-obvious change in the state of the art which such a patent would document?
You're confusing two different things here. When a patent claims "[super novel and non-obvious technique] performed by a computer," it's not saying that the computer is the point of novelty... and there's also nothing that requires every element of a claim to be independently novel and nonobvious. Hell, if that were true, you could never claim an improvement: "A better mousetrap, comprising..." and someone would jump up and say "mousetraps aren't new!" Similarly, you could create a brand new chemical composition or drug, never before seen in nature, and someone would jump up and say "that's just made of basic elements like hydrogen! It's not new!"
Additionally, you're also confusing two different statutes. 35 USC 102 and 103 are the ones that say patents have to be novel and nonobvious. 35 USC 101 - what we're talking about - is the one that says that even a novel, nonobvious idea is unpatentable if it's not directed to patent-eligible subject matter.
We agree that it's not the algorithm, or the computer; what's left?
Again, there's two different requirements here. The computer makes it patent-eligible. The novel, nonobvious algorithm makes it, well, novel and nonobvious.
More specifically, what is it about "evaluate this algorithm with a computer" which would make it patentable, which would not also apply to "evaluate this algorithm with pencil and paper"?
And now you've moved the goalposts back - the computer. Because it's tied to a computer, it's patent-eligible. The pencil and paper version is not patent-eligible, even if it's the most novel and non-obvious algorithm ever invented.
I can invent a new automobile transmission, and the fact that I wasn't the one who invented the automobile is irrelevant. You've created a new rule whereby each industry gets one patent by the founder of that industry, and any improvements in that industry are forever unpatentable because they incorporate something not invented by the applicant.
This is an obvious straw-man argument. There is no new rule prohibiting patents which build on prior patents.
Then why did you bring up this: "The general-purpose computer was not invented by the applicant" (emphasis in original). I agree with your new statement here - there is no rule that that's a requirement, so it's irrelevant that the computer was not invented by the applicant.
The only rule being applied here, which is hardly new, is that the patent must add something to the state of the art which is both novel and non-obvious. The automobile in your example is not novel, but your transmission is presumably both novel and non-obvious.
Exactly.
The patent would cover just the transmission, not the automobile.
Depends on the claim. It could also cover an automobile including the transmission.
On the other hand, if you tried to get a patent on combining an existing transmission with an existing automobile design, I would expect such an application to be summarily rejected unless there was something both novel and non-obvious about the concept or method of combining the two.
Agreed.
This is where software patents fail. You have two pre-existing components, the algorithm and the general-purpose computer. The patent application only covers combining these two existing elements together in the most obvious way possible, as running algorithms is the sole purpose of a computer.
Except that the algorithm is not necessarily pre-existing
Every dollar spent vying for monopoly control of an idea, is a dollar not spent creating new ideas. The chilling effect of Intellectual Serfdom laws - felt keenly by those who are "skilled in the art" of creating software, as opposed to the art of litigation - is indeed difficult to quantify. However some the direct financial cost of the patent regime, and its cancerous growth rate in recent years, are documented in this nicely-produced infographic.
It's true, patent licensing and litigation is expensive. You know what's also expensive - product liability. Or medical malpractice. In fact, any time someone loses a lawsuit, it's expensive... and that money could be spent creating new ideas instead. Clearly, what we need to do is abolish the entire court system, right?
They're video compression algorithms. I thought we were talking about patents.
that is ALL using math for compression or decompression of a file, yet they've managed to get over 2000+ patents filed on various parts of H.26x. if they were for how a chip can do these calcs efficiently then i'd agree, but as it is no matter how you compress or decompress a video you will most likely step in the H.26x minefield.
So you agree that the base ideas would be patentable if they were embodied in a hardware chip? Then how is that different from embodied in software and executed by a hardware chip?
"...detecting contact with the touch-sensitive display while the device is in a user-interface lock state; moving an unlock image along a predefined displayed path on the touch-sensitive display in accordance with the contact, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; transitioning the device to a user-interface unlock state if the detected contact corresponds to a predefined gesture; and maintaining the device in the user-interface lock state if the detected contact does not correspond to the predefined gesture."
Basically you touch an unlock image and slide it along the path shown on the screen to unlock. Yes, there is a physical device involved, but this is fundamentally a concept rather than an implementation of the concept.
But, as you note, there's a physical device involved. It's not just a mathematical algorithm. You could not possibly infringe that claim with a pad of paper and a pen or by doing math in your own head.
The reference is in the story that a patent troll sued Wild Tangent claiming they had the right to display an ad on a computer screen and needed to pay up.
Putting an ad on a screen is an abstract process already done in television so why is it magically different if its on a computer?
This seems pretty "pure mathematics" to me. I suppose the phosphors of a monitor count as a physical material, but I think that's stretching it a bit.
Claim 1: "1. A 3-D graphics method performed by a computer for real-time rendering of shadows in 3-D scenes to be displayed on a computer monitor..."
The claim explicitly requires a computer and a monitor. That's not pure mathematics. The pure mathematical algorithm is outside of the claims - if you did it in your head, by definition, you could not possibly infringe the patent.
If the only input is data and the only output is data (rather than running a motor controller or servo or something) then I would argue that we're talking about an algorithm, i.e. pure math.
The fact that it runs on a computer is beside the point, you could in theory do it with pen and paper or in your head.
On the contrary, if the patent claims require a computing device, then you cannot, by definition, do it in your head. You could perform the same algorithm, but you wouldn't infringe the patent - hence the patent isn't claiming the algorithm.
Claims must be read in light of the specification as it would be understood by one of ordinary skill in the art. The "broadest possible reading" of a term applies during prosecution, but in litigation, the claims must be interpreted more narrowly based on the spec. In this case, the claims recite correspondents, which the spec describes as including a random number generator and performing computing functions. While it's possible to read these as humans, I think a more reasonable reading is that they're computers.
Claim 1: "1. A method of generating in a digital data processor..."
The ball is in your court; tell us how these patents are somehow not actually patents on pure math.
There you go. In all cases, pure math - or performing the steps in your head or on a pad of paper - would not be covered by the patent claims. Therefore, they can't be claiming pure math.
So I can patent something on a device I have no rights too? The patent law and constitutional clause states for the inventor.
I'm not sure what this is in reference to. Can you quote the previous post or provide more details?
I can't patent an abstract idea because it is in a car that I performed respiration, or it was a LCD laptop screen that displayed the Ad and not a TV. Yet the patent trolls are saying just this.
Do you have a citation of a patent with "[known process for displaying an add on a television] on an LCD laptop display"? Remember, you have to find that in the claims, not just the abstract.
Useful Arts have to do with the manufacture process.
Or other industrial process, but yes.
Not an abstract idea just on another device made from natural laws not invented by applicant. Otherwise I could patent every idea known to man such as typing on a keyboard with a machine with more than 4 gigs of ram. Then patent again with a machine with more than 8 gigs of ram etc.
You're confusing two different statutes: 35 USC 101 is about patent-eligible subject matter. A known or obvious process is directed to patent-eligible subject matter, but is known or obvious and therefore unpatentable under 35 USC 102 or 35 USC 103, respectively. For example, under 35 USC 103 (obviousness), you could not patent that combination. Typing is known, yes? Keyboards are known, too. 8 GB of RAM is also known. Therefore, one can combine typing + keyboards + 8GB of RAM and the result is obvious under 35 USC 103. However, it still may be directed to a patent-eligible subject matter.
Let's make it easier. Say I wanted to patent a basic internal combustion engine. Nothing fancy, same type as Ford used a hundred years ago. It's a machine, right? Therefore, it's directed to patent-eligible subject matter under 35 USC 101, which says that machines may be patented. However, it's not new, so while it's okay under 35 USC 101, it's not under 35 USC 102.
Complaining that some software patents are trivial and should not have been granted for obviousness is a reasonable complaint... but it's simply unrelated to say that because some software patents are obvious, then no software patents are directed to patent-eligible subject matter.
trollolololololol you dont want to debate, you want to argue.
... says the guy whose initial post consisted solely of: "O please, the chilling effect from the current patent situation is felt by every maker on the planet."
If you'd like to come back and actually debate by stating a conclusion supported logical arguments from your evidence-supported premises, then please do. If you'd like to shoot off single-line snipe attacks, then why not just post as an anonymous coward like all other trolls?
If you cant understand how the current patent situation can stifle innovation, then you arent paying attention.
Conclusory statement. Not an argument.
By their very nature, patents restrict, not enable.
Irrelevant, no one had raised an argument that patents "enable" things.
So while we get more money driven inventions, that doesnt automatically mean that its the most productive system or that its societal benefit is maximized.
True, but likewise irrelevant, and fails to support your original argument of a chilling effect. Just because we don't know that the system is not the best system doesn't mean it therefore is the worst system.
Patents are a nicety given by society to encourage innovation. If it becomes apparent that patents stifle more then they benefit, then the entire concept needs to be revisited. Patents are for SOCIETAL benefit, with a side dish of offering the inventor a nice little limited monopoly to give him a 'attaboy'.
Agreed. Now, I'm simply asking for your evidence that patents stifle more than they benefit. This is the original evidence I asked for, to which you demurred and instead said "but everyone knows it exists". If you can't support your conclusion with facts, then, while it may be true, you'll never convince a reasonable person.
Wow, where should I begin; false dilemma, straw man, coincidental correlation?
Begin at the beginning and go on till you come to the end: then stop.
In particular, quote the previous post so that I know what you're referring to in your arguments.
Considering that innovation predates patents (so there cannot be an exclusive causal effect), where is your evidence that patents further innovation?
Patents have been around for over 500 years, and in that time, the pace of technological innovation has greatly outstripped the pace of innovation prior to the 1500s. On a smaller and more recent scale, I would note that the pace of innovation in software alone has increased tremendously from the pace in the pre-software patent 1960s-1970s to the current pace. Here, we have an industry that spans a patent-eligible era and a non-patent-eligible era within recent memory. Clearly, the existence of patents did not stifle innovation in that time, which is what others claim. Can we prove that patents are responsible for any of that increase in pace? Only circumstantially. However, the evidence for it is a lot stronger than the claims that software would have progressed even farther, had it not been for these gosh-darned patents stifling innovation.
Exactly—and an industrial process is a specific way of making a physical product. This is completely separate from the abstract processes under discussion, which are aspects of mathematics—natural laws—waiting to be discovered, not applications of those laws invented to further the production of a specific material good, which is the essence of a "useful art".
Yes, and? The original discussion was whether "process" is not included in the patent act as a patent-eligible category. As you agree, it is. And I agree, abstract processes - a subset of "processes" - are not patentable.
The critical term, of course, isn't "useful arts" (which only occurs in the justification, not the actual power) but "Inventors". Algorithms aren't invented. Like other natural laws, they're discovered. Invention requires the application of the laws thus discovered toward a specific, concrete end.
Agreed. Fortunately, patents claim applications of those laws, and not the laws themselves.
While this is a very common argument, making it requires one to be (deliberately?) obtuse. A patent on an algorithm[1] running on a general-purpose computer is indistinguishable from a patent on the algorithm itself.
Says you. A patent on a computer running an algorithm explicitly does not cover performing the algorithm in your head, on a pad of paper, inherently when you do some other function, etc. It is quite distinguishable.
The algorithm, as a universal natural law, is not eligible. The general-purpose computer was not invented by the applicant, and the use of one to evaluate any algorithm is obvious, as this is the purpose and nature of any general-purpose computer. What is left to patent?
That's not a requirement. I can invent a new automobile transmission, and the fact that I wasn't the one who invented the automobile is irrelevant. You've created a new rule whereby each industry gets one patent by the founder of that industry, and any improvements in that industry are forever unpatentable because they incorporate something not invented by the applicant.
If Google is to be believed, we'll have wearable heads-up displays by the end of the year. I mean, come on - that's freakin' science fiction right there.
Only if they can navigate the patent minefield, and manage to get it to market without anyone blocking it with an injunction. The way the mobile market is looking right now (approaching a complete all-vs.-all digraph of lawsuits), that's not looking very likely.
Let's remember this post and come back in a year. If Google Glasses makes it to market, then you can publicly post a retraction statement that patents don't stifle innovation. Sounds good?
Of course you won't agree to that, though, because there will always be some future product that you can pessimistically say will be vaporware due to patents. It's a very goalpost-moving based argument.
How about this - we have multitouch tablets. Lots of them. In spite of the fact that there are patent disputes, they're selling like hotcakes. And furthermore, we didn't have them 10 years ago. We can look at the past, during which there has been both software patents and patent litigation, and say "look, innovation." Can you do the same and show that the software industry has stagnated because of patent disputes?
Moreover, it's not like the primary roadblock preventing use from having these sorts of wearable HUDs was ever in the software to begin with. It's just taken this long to develop the miniaturized logic circuits, displays, and batteries necessary to make it practical. Are you really trying to argue that no one would develop the (rather trivial) algorithms needed for HUDs without software patents?
I'm saying that software patents require hardware, and as such, innovations in software-using hardware indicate that software patents are not stifling innovation, as many claim. You seem to be arguing that patents on pure software (which, I may add, don't exist) stifle innovation somewhere, but haven't yet pointed out any such area.
That's a link to wiki and a blog. Neither of those are patents. Is there a specific patent number you're referring to?
These are not industrial processes, these are not specific machines, these are patents on pure math with a formal statement about running the software on some computer.
So, in other words, they're not patents on pure math?
It would be easier to discuss this if you'd provide a specific patent number so that we can discuss a set of claims, rather than a wiki page or blog post about someone's interpretation of some "hundreds of other patents" that are not in front of us. I'm happy to discuss any patent number you name.
Sure, and that was the original logic behind the first software patent. The difference is that today's software patents are not on industrial processes, they are on pure mathematics, which is not supposed to be patentable.
But they're not. As noted above, today's software patents "operate on a machine or perform a transformation of some physical material" - such as "operat[ing] a controller". There aren't any "pure mathematics" patents.
Laws of nature are math. Plain and simple and should not be patentable PERIOD.
And they aren't. I already said this, you don't need to keep repeating it as if you've said something new.
Infact a process is math where you do this, then, do that. It doesn't matter where its performed. Just because a computer does it doesn't make it patentable and no longer laws of nature or math. If laws of nature are ruled unpatentable then most of these patents need to be thrown out! A process can not be patentable therefore they need to be thrown out as well.
But processes are explicitly patentable under 35 USC 101, provided they're not merely the mathematical steps.
The arts are refering to blue prints for industrial designs. Not expressions as is the common definition of arts today.
No, they aren't. As it was used in 1787, the term "useful arts" referred to any industrial process, including smelting, forging, shaping, etc. Interestingly, the term "science" referred to expressions of knowledge. Amazing how language changes.
But "blueprints"? No.
I can make a patent for anything and just say "Used in a tablet/computer.." otherwise and get away with patenting math or any other law of nature.
First, no, you can't. Find me a patent that includes a mathematical algorithm, the phrase "used in a computer", and nothing else. I'll wait.
Second, even if you could, then you wouldn't be patenting the math. It could still be freely used outside of a computer.
I doubt a process is considered an arts in design at all.
I have no idea what that sentence was trying to say.
You can't own something that is not real or already exists. A blueprint on the otherhand is a design to an invention in contrast and yes that is man made and real.
Expressions and laws of nature/math, or anything else like a series of steps are not real and therefore not patentable.
And they aren't. However, an industrial process, such as cold forging, is patentable. Even if it's not a blueprint.
It might not be the end of the world, but it could very well be stifling innovation. As in, if we didn't have such a nonsensical patent system, we'd probably have more innovation.
It's a good starting hypothesis, but where's your evidence?
"New" as in from 1790. Specifically, the 1790 Patent Act - passed just 3 years after the Constitution was drafted - included as patentable subject matter "any useful art, manufacture, engine, machine, or device, or any improvement therein." The term "useful art," as it was known at the time, meant an industrial process.
The original constitution states "physical inventions".
The phrase "physical inventions" does not appear in the Constitution.
In fact, the word "physical" does not appear in the Constitution.
If it subverts the original meaning that is grounds for the supreme court to throw it out.
First, as noted above, the same people who wrote the Constitution wrote the Patent Act, passing it just a couple years later. Thomas Jefferson was the first Patent Examiner. It's a pretty tough argument to say that the founders didn't understand what the founders intended.
Second, the patent clause of the Constitution is one of the explicitly enumerated powers of Congress, and Congress has the power to pass any laws "necessary and proper" to performing those powers. Which means that the Supreme Court is supremely deferential when it comes to whether Congress has the power to pass a law regarding one of those enumerated powers. Basically, if Congress says that "useful arts" includes processes, the Supreme Court isn't going to reverse that by arguing they lack the power to define "useful arts".
Third, as noted, the Constitution doesn't include "physical inventions" as a limitation. Accordingly, it's a misreading to say that by allowing patenting of processes, they are "subverting the original meaning". I think you're getting confused with an entirely different clause - the "to promote the progress of [the] useful arts". Whether patenting processes subverts that is an entirely different question, which as of yet, you've not raised.
The second issue is math should not be patentable because they are laws of nature and not manmade. Computer algorithms are just this and a process is simply math.
You're right, and that's why computer algorithms are not patentable by themselves. Instead, they must be explicitly tied to a machine or performed by a machine, because machines are not laws of nature, nor are they man-made.
Laws of nature have been ruled not to be patentable as well in the past and I think your text from the America Invents act are clearly unconstitutional but I am no lawyer.
I have no idea what part of the AIA you're referring to. It says nothing about patenting laws of nature. Would you care to quote a passage?
What I want to know is if laws of nature as unpatentable are a European idea or American or both?
Both. However, "software patents" are patentable in both Europe and America, provided they are tied to a physical machine. It is software per se that is unpatentable.
The grandparent is correct in that original patents were for physical inventions with a prototype already functional only. Not for an idea.
As noted above, the grandparent is provably wrong, based on the Constitution and the original Patent Act of 1790. Additionally, the requirement of a prototype went away in 1880.
Otherwise everyone would be quite wealthy or broke as nothing could be made without infringing on everyone else.
Except that the process clause is meant to cover industrial processes that are not strictly machines, but which are physical inventions nevertheless (at least in the sense that they transform physical material from one form to another).
Agreed... But that doesn't mean that the "process" is a "physical invention," but rather that it must operate on a machine or perform a transformation of some physical material, no (hence the old CAFC test). At which point, software that operates a controller counts.
Patents are supposed to be on physical inventions, not abstract ideas.
35 USC 101 states that "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Processes aren't "physical inventions".
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But the real problem remains bad patents. If only real inventions were patented, we wouldn't see so many trolls grabbing patents on basic (and obvious) technology and preventing others from using it. Patents on math, in particular, have to go.
Respectfully, although I agree for a different reason*, those sentences are at odds with each other:
1) "bad" patents are those that are granted when they shouldn't be because the invention is obvious - i.e. not a "real" invention or a "basic (and obvious) technology".
2) but, saying "patents on math... have to go" as a conclusion would imply that you're saying that all math is basic and obvious. Didn't we see a story earlier today where it took 250 years to solve a problem hypothesized by Newton?
Yes, there are too many obvious patents. The problem there is that the patent office was overworked and under-funded (because patent fees that were supposed to be re-invested in the patent office were diverted by Congress to bullshiat). The solution is to hire more examiners and train them better. Saying "[x] industry shouldn't be allowed to have patents" is not a valid solution, because it has no direct relationship to the problem.
If you want to argue that software should be unpatentable, argue that the most novel, non-obvious, useful software invention in the history of man should still be unpatentable. Arguing that software, as an industry, should be unpatentable because some patents suck is as valid as arguing that machines should be unpatentable because some patents on machines suck.
*math should be unpatentable because patenting math allows someone to exert a monopoly over math... so, theoretically you could get an injunction over someone thinking about a math problem, or being subject to gravity, or having chemical reactions in their body. The issue is the lack of control and the potential for making a thoughtcrime. Requiring a computer means that someone can't infringe in those ways.
I think it's safe to say that buying up useless patents and using them to harass new entries to the market does the opposite.
That's begging the question... What evidence do you have that these patents are "useless"? Consider, if they successfully "harass new entries to the market" then they're clearly useful, even if you don't like it.
This is in clear violation of the original intent of patents.
In what way? The original intent is to encourage innovation by allowing inventors to secure commercially-viable time-limited monopolies. If inventors can't sell those monopoly rights, then they're not as commercially viable.
The perspective is the DMCA is flatly unconstitutional by design.
I accuse you of a crime. You get punished for that crime until you can prove otherwise.
No... It's "I accuse you of a crime and provide sufficient evidence that you have committed the crime - the URL of your page with my copyrighted photo, and my sworn statement of ownership of that photo. You get punished for that crime unless you assert that you're innocent, at which point your site returns and we can fight it out in court. And if you can prove I was lying in my sworn statement, you can get lots of money in damages."
There's nothing unconstitutional about that. This isn't criminal, it's civil... there's no requirement for a jury to find you guilty first.
And consider, if I accuse you of stealing, or drug trafficking, or whatnot, you can get arrested and held, potentially without bail, until trial. Isn't that "punishing" you? And yet, it's certainly constitutional.
What is the significant difference between evaluating an algorithm in your head, and doing the same thing with computer assistance, which would justify a patent? What is the novel, non-obvious change in the state of the art which such a patent would document?
You're confusing two different things here. When a patent claims "[super novel and non-obvious technique] performed by a computer," it's not saying that the computer is the point of novelty... and there's also nothing that requires every element of a claim to be independently novel and nonobvious. Hell, if that were true, you could never claim an improvement: "A better mousetrap, comprising..." and someone would jump up and say "mousetraps aren't new!" Similarly, you could create a brand new chemical composition or drug, never before seen in nature, and someone would jump up and say "that's just made of basic elements like hydrogen! It's not new!"
Additionally, you're also confusing two different statutes. 35 USC 102 and 103 are the ones that say patents have to be novel and nonobvious. 35 USC 101 - what we're talking about - is the one that says that even a novel, nonobvious idea is unpatentable if it's not directed to patent-eligible subject matter.
We agree that it's not the algorithm, or the computer; what's left?
Again, there's two different requirements here. The computer makes it patent-eligible. The novel, nonobvious algorithm makes it, well, novel and nonobvious.
More specifically, what is it about "evaluate this algorithm with a computer" which would make it patentable, which would not also apply to "evaluate this algorithm with pencil and paper"?
And now you've moved the goalposts back - the computer. Because it's tied to a computer, it's patent-eligible. The pencil and paper version is not patent-eligible, even if it's the most novel and non-obvious algorithm ever invented.
I can invent a new automobile transmission, and the fact that I wasn't the one who invented the automobile is irrelevant. You've created a new rule whereby each industry gets one patent by the founder of that industry, and any improvements in that industry are forever unpatentable because they incorporate something not invented by the applicant.
This is an obvious straw-man argument. There is no new rule prohibiting patents which build on prior patents.
Then why did you bring up this: "The general-purpose computer was not invented by the applicant" (emphasis in original). I agree with your new statement here - there is no rule that that's a requirement, so it's irrelevant that the computer was not invented by the applicant.
The only rule being applied here, which is hardly new, is that the patent must add something to the state of the art which is both novel and non-obvious. The automobile in your example is not novel, but your transmission is presumably both novel and non-obvious.
Exactly.
The patent would cover just the transmission, not the automobile.
Depends on the claim. It could also cover an automobile including the transmission.
On the other hand, if you tried to get a patent on combining an existing transmission with an existing automobile design, I would expect such an application to be summarily rejected unless there was something both novel and non-obvious about the concept or method of combining the two.
Agreed.
This is where software patents fail. You have two pre-existing components, the algorithm and the general-purpose computer. The patent application only covers combining these two existing elements together in the most obvious way possible, as running algorithms is the sole purpose of a computer.
Except that the algorithm is not necessarily pre-existing
Every dollar spent vying for monopoly control of an idea, is a dollar not spent creating new ideas. The chilling effect of Intellectual Serfdom laws - felt keenly by those who are "skilled in the art" of creating software, as opposed to the art of litigation - is indeed difficult to quantify. However some the direct financial cost of the patent regime, and its cancerous growth rate in recent years, are documented in this nicely-produced infographic.
It's true, patent licensing and litigation is expensive. You know what's also expensive - product liability. Or medical malpractice. In fact, any time someone loses a lawsuit, it's expensive... and that money could be spent creating new ideas instead. Clearly, what we need to do is abolish the entire court system, right?
How do you explain MPEG-LA and H.26x then?
They're video compression algorithms. I thought we were talking about patents.
that is ALL using math for compression or decompression of a file, yet they've managed to get over 2000+ patents filed on various parts of H.26x. if they were for how a chip can do these calcs efficiently then i'd agree, but as it is no matter how you compress or decompress a video you will most likely step in the H.26x minefield.
So you agree that the base ideas would be patentable if they were embodied in a hardware chip? Then how is that different from embodied in software and executed by a hardware chip?
Your arguments are RETARDING.
I'm sorry, I came here for an argument, not abuse.
As a pro-tip, if you want people to debate you, you have to first not come off as a jackass.
How about Apple's "slide to unlock" patent?
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7,657,849.PN.&OS=PN/7,657,849&RS=PN/7,657,849
"...detecting contact with the touch-sensitive display while the device is in a user-interface lock state; moving an unlock image along a predefined displayed path on the touch-sensitive display in accordance with the contact, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; transitioning the device to a user-interface unlock state if the detected contact corresponds to a predefined gesture; and maintaining the device in the user-interface lock state if the detected contact does not correspond to the predefined gesture."
Basically you touch an unlock image and slide it along the path shown on the screen to unlock. Yes, there is a physical device involved, but this is fundamentally a concept rather than an implementation of the concept.
But, as you note, there's a physical device involved. It's not just a mathematical algorithm. You could not possibly infringe that claim with a pad of paper and a pen or by doing math in your own head.
The reference is in the story that a patent troll sued Wild Tangent claiming they had the right to display an ad on a computer screen and needed to pay up.
Putting an ad on a screen is an abstract process already done in television so why is it magically different if its on a computer?
Do you have a patent number we can look at?
http://www.google.com/patents/US6384822
This seems pretty "pure mathematics" to me. I suppose the phosphors of a monitor count as a physical material, but I think that's stretching it a bit.
Claim 1: "1. A 3-D graphics method performed by a computer for real-time rendering of shadows in 3-D scenes to be displayed on a computer monitor..."
The claim explicitly requires a computer and a monitor. That's not pure mathematics. The pure mathematical algorithm is outside of the claims - if you did it in your head, by definition, you could not possibly infringe the patent.
If the only input is data and the only output is data (rather than running a motor controller or servo or something) then I would argue that we're talking about an algorithm, i.e. pure math.
The fact that it runs on a computer is beside the point, you could in theory do it with pen and paper or in your head.
On the contrary, if the patent claims require a computing device, then you cannot, by definition, do it in your head. You could perform the same algorithm, but you wouldn't infringe the patent - hence the patent isn't claiming the algorithm.
OK, we can go through these patents, if you want:
http://www.google.com/patents?vid=6563928
Claims must be read in light of the specification as it would be understood by one of ordinary skill in the art. The "broadest possible reading" of a term applies during prosecution, but in litigation, the claims must be interpreted more narrowly based on the spec. In this case, the claims recite correspondents, which the spec describes as including a random number generator and performing computing functions. While it's possible to read these as humans, I think a more reasonable reading is that they're computers.
http://www.google.com/patents?vid=6782100
Tell me if you can find a claim that even vaguely refers to a machine, because I cannot.
That one's even easier. Claim 1 recites a cryptosystem, which is illustrated in FIG. 2 including an ALU and RAM.
http://www.google.com/patents?vid=5854759
Again, I am not seeing a claim that mentions a machine, but maybe you can point it out for me.
Claim 1: "1. A method of generating in a digital data processor..."
The ball is in your court; tell us how these patents are somehow not actually patents on pure math.
There you go. In all cases, pure math - or performing the steps in your head or on a pad of paper - would not be covered by the patent claims. Therefore, they can't be claiming pure math.
So I can patent something on a device I have no rights too? The patent law and constitutional clause states for the inventor.
I'm not sure what this is in reference to. Can you quote the previous post or provide more details?
I can't patent an abstract idea because it is in a car that I performed respiration, or it was a LCD laptop screen that displayed the Ad and not a TV. Yet the patent trolls are saying just this.
Do you have a citation of a patent with "[known process for displaying an add on a television] on an LCD laptop display"? Remember, you have to find that in the claims, not just the abstract.
Useful Arts have to do with the manufacture process.
Or other industrial process, but yes.
Not an abstract idea just on another device made from natural laws not invented by applicant. Otherwise I could patent every idea known to man such as typing on a keyboard with a machine with more than 4 gigs of ram. Then patent again with a machine with more than 8 gigs of ram etc.
You're confusing two different statutes: 35 USC 101 is about patent-eligible subject matter. A known or obvious process is directed to patent-eligible subject matter, but is known or obvious and therefore unpatentable under 35 USC 102 or 35 USC 103, respectively. For example, under 35 USC 103 (obviousness), you could not patent that combination. Typing is known, yes? Keyboards are known, too. 8 GB of RAM is also known. Therefore, one can combine typing + keyboards + 8GB of RAM and the result is obvious under 35 USC 103. However, it still may be directed to a patent-eligible subject matter.
Let's make it easier. Say I wanted to patent a basic internal combustion engine. Nothing fancy, same type as Ford used a hundred years ago. It's a machine, right? Therefore, it's directed to patent-eligible subject matter under 35 USC 101, which says that machines may be patented. However, it's not new, so while it's okay under 35 USC 101, it's not under 35 USC 102.
Complaining that some software patents are trivial and should not have been granted for obviousness is a reasonable complaint... but it's simply unrelated to say that because some software patents are obvious, then no software patents are directed to patent-eligible subject matter.
trollolololololol you dont want to debate, you want to argue.
... says the guy whose initial post consisted solely of: "O please, the chilling effect from the current patent situation is felt by every maker on the planet."
If you'd like to come back and actually debate by stating a conclusion supported logical arguments from your evidence-supported premises, then please do. If you'd like to shoot off single-line snipe attacks, then why not just post as an anonymous coward like all other trolls?
If you cant understand how the current patent situation can stifle innovation, then you arent paying attention.
Conclusory statement. Not an argument.
By their very nature, patents restrict, not enable.
Irrelevant, no one had raised an argument that patents "enable" things.
So while we get more money driven inventions, that doesnt automatically mean that its the most productive system or that its societal benefit is maximized.
True, but likewise irrelevant, and fails to support your original argument of a chilling effect. Just because we don't know that the system is not the best system doesn't mean it therefore is the worst system.
Patents are a nicety given by society to encourage innovation. If it becomes apparent that patents stifle more then they benefit, then the entire concept needs to be revisited. Patents are for SOCIETAL benefit, with a side dish of offering the inventor a nice little limited monopoly to give him a 'attaboy'.
Agreed. Now, I'm simply asking for your evidence that patents stifle more than they benefit. This is the original evidence I asked for, to which you demurred and instead said "but everyone knows it exists". If you can't support your conclusion with facts, then, while it may be true, you'll never convince a reasonable person.
Wow, where should I begin; false dilemma, straw man, coincidental correlation?
Begin at the beginning and go on till you come to the end: then stop.
In particular, quote the previous post so that I know what you're referring to in your arguments.
Considering that innovation predates patents (so there cannot be an exclusive causal effect), where is your evidence that patents further innovation?
Patents have been around for over 500 years, and in that time, the pace of technological innovation has greatly outstripped the pace of innovation prior to the 1500s. On a smaller and more recent scale, I would note that the pace of innovation in software alone has increased tremendously from the pace in the pre-software patent 1960s-1970s to the current pace. Here, we have an industry that spans a patent-eligible era and a non-patent-eligible era within recent memory. Clearly, the existence of patents did not stifle innovation in that time, which is what others claim. Can we prove that patents are responsible for any of that increase in pace? Only circumstantially. However, the evidence for it is a lot stronger than the claims that software would have progressed even farther, had it not been for these gosh-darned patents stifling innovation.
Exactly—and an industrial process is a specific way of making a physical product. This is completely separate from the abstract processes under discussion, which are aspects of mathematics—natural laws—waiting to be discovered, not applications of those laws invented to further the production of a specific material good, which is the essence of a "useful art".
Yes, and? The original discussion was whether "process" is not included in the patent act as a patent-eligible category. As you agree, it is. And I agree, abstract processes - a subset of "processes" - are not patentable.
The critical term, of course, isn't "useful arts" (which only occurs in the justification, not the actual power) but "Inventors". Algorithms aren't invented. Like other natural laws, they're discovered. Invention requires the application of the laws thus discovered toward a specific, concrete end.
Agreed. Fortunately, patents claim applications of those laws, and not the laws themselves.
While this is a very common argument, making it requires one to be (deliberately?) obtuse. A patent on an algorithm[1] running on a general-purpose computer is indistinguishable from a patent on the algorithm itself.
Says you. A patent on a computer running an algorithm explicitly does not cover performing the algorithm in your head, on a pad of paper, inherently when you do some other function, etc. It is quite distinguishable.
The algorithm, as a universal natural law, is not eligible. The general-purpose computer was not invented by the applicant, and the use of one to evaluate any algorithm is obvious, as this is the purpose and nature of any general-purpose computer. What is left to patent?
That's not a requirement. I can invent a new automobile transmission, and the fact that I wasn't the one who invented the automobile is irrelevant. You've created a new rule whereby each industry gets one patent by the founder of that industry, and any improvements in that industry are forever unpatentable because they incorporate something not invented by the applicant.
If Google is to be believed, we'll have wearable heads-up displays by the end of the year. I mean, come on - that's freakin' science fiction right there.
Only if they can navigate the patent minefield, and manage to get it to market without anyone blocking it with an injunction. The way the mobile market is looking right now (approaching a complete all-vs.-all digraph of lawsuits), that's not looking very likely.
Let's remember this post and come back in a year. If Google Glasses makes it to market, then you can publicly post a retraction statement that patents don't stifle innovation. Sounds good?
Of course you won't agree to that, though, because there will always be some future product that you can pessimistically say will be vaporware due to patents. It's a very goalpost-moving based argument.
How about this - we have multitouch tablets. Lots of them. In spite of the fact that there are patent disputes, they're selling like hotcakes. And furthermore, we didn't have them 10 years ago. We can look at the past, during which there has been both software patents and patent litigation, and say "look, innovation." Can you do the same and show that the software industry has stagnated because of patent disputes?
Moreover, it's not like the primary roadblock preventing use from having these sorts of wearable HUDs was ever in the software to begin with. It's just taken this long to develop the miniaturized logic circuits, displays, and batteries necessary to make it practical. Are you really trying to argue that no one would develop the (rather trivial) algorithms needed for HUDs without software patents?
I'm saying that software patents require hardware, and as such, innovations in software-using hardware indicate that software patents are not stifling innovation, as many claim. You seem to be arguing that patents on pure software (which, I may add, don't exist) stifle innovation somewhere, but haven't yet pointed out any such area.
There aren't any "pure mathematics" patents.
What about these:
https://en.wikipedia.org/wiki/ECC_patents
Or these:
http://blogs.teamb.com/craigstuntz/2012/04/04/38707/
Or any of the hundreds of other patents on mathematics?
That's a link to wiki and a blog. Neither of those are patents. Is there a specific patent number you're referring to?
These are not industrial processes, these are not specific machines, these are patents on pure math with a formal statement about running the software on some computer.
So, in other words, they're not patents on pure math?
It would be easier to discuss this if you'd provide a specific patent number so that we can discuss a set of claims, rather than a wiki page or blog post about someone's interpretation of some "hundreds of other patents" that are not in front of us. I'm happy to discuss any patent number you name.
O please, the chilling effect from the current patent situation is felt by every maker on the planet.
So, no real evidence, just anecdotes and intuition?
Sure, and that was the original logic behind the first software patent. The difference is that today's software patents are not on industrial processes, they are on pure mathematics, which is not supposed to be patentable.
But they're not. As noted above, today's software patents "operate on a machine or perform a transformation of some physical material" - such as "operat[ing] a controller". There aren't any "pure mathematics" patents.
Laws of nature are math. Plain and simple and should not be patentable PERIOD.
And they aren't. I already said this, you don't need to keep repeating it as if you've said something new.
Infact a process is math where you do this, then, do that. It doesn't matter where its performed. Just because a computer does it doesn't make it patentable and no longer laws of nature or math. If laws of nature are ruled unpatentable then most of these patents need to be thrown out! A process can not be patentable therefore they need to be thrown out as well.
But processes are explicitly patentable under 35 USC 101, provided they're not merely the mathematical steps.
The arts are refering to blue prints for industrial designs. Not expressions as is the common definition of arts today.
No, they aren't. As it was used in 1787, the term "useful arts" referred to any industrial process, including smelting, forging, shaping, etc. Interestingly, the term "science" referred to expressions of knowledge. Amazing how language changes.
But "blueprints"? No.
I can make a patent for anything and just say "Used in a tablet/computer .." otherwise and get away with patenting math or any other law of nature.
First, no, you can't. Find me a patent that includes a mathematical algorithm, the phrase "used in a computer", and nothing else. I'll wait.
Second, even if you could, then you wouldn't be patenting the math. It could still be freely used outside of a computer.
I doubt a process is considered an arts in design at all.
I have no idea what that sentence was trying to say.
You can't own something that is not real or already exists. A blueprint on the otherhand is a design to an invention in contrast and yes that is man made and real.
Expressions and laws of nature/math, or anything else like a series of steps are not real and therefore not patentable.
And they aren't. However, an industrial process, such as cold forging, is patentable. Even if it's not a blueprint.
It might not be the end of the world, but it could very well be stifling innovation. As in, if we didn't have such a nonsensical patent system, we'd probably have more innovation.
It's a good starting hypothesis, but where's your evidence?
That is a new law.
"New" as in from 1790. Specifically, the 1790 Patent Act - passed just 3 years after the Constitution was drafted - included as patentable subject matter "any useful art, manufacture, engine, machine, or device, or any improvement therein." The term "useful art," as it was known at the time, meant an industrial process.
The original constitution states "physical inventions".
Au contraire. The Constitution grants Congress the 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."
The phrase "physical inventions" does not appear in the Constitution.
In fact, the word "physical" does not appear in the Constitution.
If it subverts the original meaning that is grounds for the supreme court to throw it out.
First, as noted above, the same people who wrote the Constitution wrote the Patent Act, passing it just a couple years later. Thomas Jefferson was the first Patent Examiner. It's a pretty tough argument to say that the founders didn't understand what the founders intended.
Second, the patent clause of the Constitution is one of the explicitly enumerated powers of Congress, and Congress has the power to pass any laws "necessary and proper" to performing those powers. Which means that the Supreme Court is supremely deferential when it comes to whether Congress has the power to pass a law regarding one of those enumerated powers. Basically, if Congress says that "useful arts" includes processes, the Supreme Court isn't going to reverse that by arguing they lack the power to define "useful arts".
Third, as noted, the Constitution doesn't include "physical inventions" as a limitation. Accordingly, it's a misreading to say that by allowing patenting of processes, they are "subverting the original meaning". I think you're getting confused with an entirely different clause - the "to promote the progress of [the] useful arts". Whether patenting processes subverts that is an entirely different question, which as of yet, you've not raised.
The second issue is math should not be patentable because they are laws of nature and not manmade. Computer algorithms are just this and a process is simply math.
You're right, and that's why computer algorithms are not patentable by themselves. Instead, they must be explicitly tied to a machine or performed by a machine, because machines are not laws of nature, nor are they man-made.
Laws of nature have been ruled not to be patentable as well in the past and I think your text from the America Invents act are clearly unconstitutional but I am no lawyer.
I have no idea what part of the AIA you're referring to. It says nothing about patenting laws of nature. Would you care to quote a passage?
What I want to know is if laws of nature as unpatentable are a European idea or American or both?
Both. However, "software patents" are patentable in both Europe and America, provided they are tied to a physical machine. It is software per se that is unpatentable.
The grandparent is correct in that original patents were for physical inventions with a prototype already functional only. Not for an idea.
As noted above, the grandparent is provably wrong, based on the Constitution and the original Patent Act of 1790. Additionally, the requirement of a prototype went away in 1880.
Otherwise everyone would be quite wealthy or broke as nothing could be made without infringing on everyone else.
And yet the economy continues and Apple
Except that the process clause is meant to cover industrial processes that are not strictly machines, but which are physical inventions nevertheless (at least in the sense that they transform physical material from one form to another).
Agreed... But that doesn't mean that the "process" is a "physical invention," but rather that it must operate on a machine or perform a transformation of some physical material, no (hence the old CAFC test). At which point, software that operates a controller counts.
Patents are supposed to be on physical inventions, not abstract ideas.
35 USC 101 states that "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Processes aren't "physical inventions".