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Judge Invalidates Software Patent, Citing Bilski

kdawson posted more than 4 years ago | from the first-domino dept.

252

bfwebster writes "US District Court Judge Andrew Gilford (Central District of California) granted a summary judgment motion in DealerTrack v. Huber et al., finding DealerTrack's patent (US 7,181,427) — for an automated credit application processing system — invalid due to the recent In re Bilski court decision that requires a patent to either involve 'transformation' or 'a specific machine.' According to Judge Gilford's ruling, DealerTrack 'appears to concede that the claims of the '427 Patent do not meet the "transformation" prong of the Bilski test.' He then applied the 'specific machine' test and noted that, post-Bilski the Board of Patent Appeals and Interferences has ruled several times that 'claims reciting the use of general purpose processors or computers do not satisfy the [Bilski] test.' Judge Gilford analyzes the claims of the '427 patent, notes that they state that the 'machine' involved could be a 'dumb terminal' and a 'personal computer,' and then concludes: 'None of the claims of the '427 Patent require the use of a "particular machine," and the patent is thus invalid under Bilski.' DealerTrack apparently plans to appeal the ruling. Interesting times ahead."

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252 comments

Similar to Donald Knuth's Logic (5, Interesting)

eldavojohn (898314) | more than 4 years ago | (#28648271)

'claims reciting the use of general purpose processors or computers do not satisfy the [Bilski] test.'

Sounds familiar to the kind of logic that Donald Knuth employs when discussing software patents. He tried reaching out [groklaw.net] to the EU Patent Office in an effort to avoid making algorithms patentable--he feels this has been a mistake in America. He recently sent the EU Patent Office Commissioner a 1994 letter he had originally sent to the United States Patent Office about patenting software. His argument is simple: (1) math cannot be patented (2) all algorithms are math (3) all software is one or more algorithms and so follows that software cannot be patentable. The USPTO replied by defining non-mathematical software to be patentable while purely mathematical software is not. Knuth sums himself up nicely: 'Basically I remain convinced that the patent policy most fair and most suitable for the world will regard mathematical ideas (such as algorithms) to be not subject to proprietary patent rights. For example, it would be terrible if somebody were to have a patent on an integer, like say 1009, so that nobody would be able to use that number "with further technical effect" without paying for a license. Although many software patents have unfortunately already been granted in the past, I hope that this practice will not continue in future. If Europe leads the way in this, I expect many Americans would want to emigrate so that they could continue to innovate in peace.'

Maybe the right way to approach this was to claim that general purpose processors are only capable of executing extremely complex mathematical algorithms--which should not be patentable. Therefor the software that runs on general purpose processors should not be patentable.

Re:Similar to Donald Knuth's Logic (4, Insightful)

wrf3 (314267) | more than 4 years ago | (#28648335)

What is "non-mathematical software"?

Re:Similar to Donald Knuth's Logic (5, Interesting)

eldavojohn (898314) | more than 4 years ago | (#28648445)

What is "non-mathematical software"?

Well, I've read a lot of Knuth's stuff and though I don't see quite eye to eye with him, I definitely agree with his views on this. The source of the idea of non-mathematical software seems to come from patent attorney Eugene Quinn [ipwatchdog.com]:

I have been criticized quite a lot for statements I have made that computer software is not the same as math, and I simply cannot back away from that. Nevertheless, as I have read through comments provided to Groklaw I am not so sure that my critics and I are as far apart on this position as one would belief.

And yes, he goes so far as to cite E. W. Dijkstra's three claims:

  • So much for the care needed to keep the arguments manageable: we can summarize it by stating that in programming mathematical elegance is not a dispensable luxury, but a matter of life and death.
  • The programmer applies mathematical techniques in an environment with an unprecedented potential for complication; this circumstance makes him methodologically very, very conscious of the steps he takes, the notations he introduces etc.
  • Much more than the average mathematician he is explicitly concerned with the effectiveness of this argument, much more than the average mathematician he is consciously concerned with the mathematical elegance of his argument.

And he claims these statements do not invalidate his idea that non-mathematical software should be patentable! Knuth and probably 90% of software developers will argue that Quinn is either ignorant or insane.

And these are the people arguing the case and ensuring software patents stand. Worse yet, Eugene teaches the most popular patent bar review course in the US. Ignorance begets ignorance.

Re:Similar to Donald Knuth's Logic (0)

Anonymous Coward | more than 4 years ago | (#28648589)

And he claims these statements do not invalidate his idea that non-mathematical software should be patentable! Knuth and probably 90% of software developers will argue that Quinn is either ignorant or insane.

Neither. Just another patent attorney trying hard to make a living out of other people's ignorance.

Software is equivalent to math. (5, Informative)

Anonymous Coward | more than 4 years ago | (#28648797)

My degree is in mathematics. There's no such thing as non-mathematical software [metamath.org]. There is mathematical proof of this. There's a nice equivalence theorem for the two, and the website linked shows the results of that equivalence.

I repeat: there's no such thing as "non-mathematical" software, because it is equivalent to math. The only people who think otherwise don't know what math is. It's like trying to claim that 1 != 1. And yes, people really do claim utter nonsense like that sometimes, especially those who don't understand the fact that infinite sequences like 0.99999[repeating] don't have a last digit by virtue of being infinitely long (if an infinite list had a last element, it would be a contradiction in terms, because part of the definition of infinite is that for every element x, there is a successor of x).

One might as well claim that pi is exactly 3.

Define equal (2, Funny)

tepples (727027) | more than 4 years ago | (#28648879)

The only people who think otherwise don't know what math is. It's like trying to claim that 1 != 1.

It depends on how you define !=. In Python, 1 == 1, and 1 == 1.0, but 1 != True, and 1 != "1". In PHP, however, 1 == 1, 1 == 1.0, 1 == True, and 1 == "1" (in fact, 0 == any string that can't be converted to an integer), but there is another pair of operators === and !== that strictly compare both value and type: 1 === 1, 1 !== True, and 1 !== "1" like in Python, but also 1 !== 1.0.

Re:Define equal (-1, Flamebait)

OneSmartFellow (716217) | more than 4 years ago | (#28649057)

It depends on how you define !=. In Python, 1 == 1, and 1 == 1.0, but 1 != True, and 1 != "1". In PHP, however, 1 == 1, 1 == 1.0, 1 == True, and 1 == "1" (in fact, 0 == any string that can't be converted to an integer), but there is another pair of operators === and !== that strictly compare both value and type: 1 === 1, 1 !== True, and 1 !== "1" like in Python, but also 1 !== 1.0.

That's why Python sucks - well that and the asinine "significant white space" concept, and the other reasons too.

Go ahead, flame me, I don't care.

Re:Define equal (0)

Anonymous Coward | more than 4 years ago | (#28649071)

Correction: in Python 1 == True. You can even do True+True, which is 2. Not that it matters if you write decent code.

Re:Define equal (1)

maxume (22995) | more than 4 years ago | (#28649403)

Actually, 1 == True is True in Python (so 1 != True is False).

It is largely an artifact of the late addition of True and False to the language, prior to the introduction, comparisons returned 0 or 1. When they were added, it was decided that code depending on comparisons returning 0 or 1 didn't need to break.

The C definition, same token on both sides. (4, Informative)

Xenographic (557057) | more than 4 years ago | (#28649549)

I wasn't logged in before, GP anon was me. Anyhow, the period was the end of the sentence, not some attempt to make it into a float/string/boolean/whatever and I certainly didn't use the Python operators. It's supposed to be the same token (1) on both sides. But that's why we use formal languages that are picky about syntax and which can be checked automatically to avoid people finding weird ambiguities to question.

The theorem I was mentioning above is called Curry-Howard-Lambek correspondence [haskell.org] (it took me a while to find all the links):

The Curry-Howard-Lambek correspondance [wikipedia.org] is a three way isomorphism [wikipedia.org] between types (in programming languages) [wikipedia.org], propositions (in logic) [wikipedia.org] and objects of a Cartesian closed category [wikipedia.org]. Interestingly, the isomorphism maps programs (functions in Haskell [wikipedia.org]) to (constructive) proofs in logic [wikipedia.org] (and vice versa).

(Wiki links added because most people are too lazy to Google the terms they don't understand. Especially if they don't realize that they don't actually understand them.)

So even if you find some crazy language where they define != to be an equality operator or something equally unusual, software is still equivalent to math. Metamath [metamath.org] wouldn't be possible otherwise. And as you can see, they're doing just fine.

Re:Define equal (0)

Anonymous Coward | more than 4 years ago | (#28649853)

Just to hopefully prevent future confusion, the first bit about equality in Python isn't quite correct. Here's a quick example.

Python 2.5.2 (r252:60911, Feb 21 2008, 13:11:45) [MSC v.1310 32 bit (Intel)] on
win32
Type "help", "copyright", "credits" or "license" for more information.
>>> 1 == True
True
>>>
>>> 1 is True
False

In Python, 1 is "equal" to True, but not "identical".

(At least for recent versions -- I don't recall if this has been the case since True was introduced.

Re:Similar to Donald Knuth's Logic (1)

Kashgarinn (1036758) | more than 4 years ago | (#28649829)

Well, it's a lawyer fighting for a new way to make money.

Have you seen the gross amounts of cash the sofware industry is generating? You don't think lawyers would like to get a patent system going on software so that they can get a piece of the action?

Stop looking at it as "oh no someone is trying to use a patent system on something non-patentable", rather look at it as "the profession which upholds paper as more important than people, innovation, or actual production of goods is trying to branch out into another field to benefit from it"

They won't stop because patenting software will become profitable for software-patent lawyers.

They can't see anything wrong with it, because they want to profit from it.

Re:Similar to Donald Knuth's Logic (1)

Hurricane78 (562437) | more than 4 years ago | (#28648579)

Well, it's that stuff without business logic. Basically a GUI interface to a database, that you could have generated out of the SQL with a script. (I have created something like this myself as it's really simple.)

Re:Similar to Donald Knuth's Logic (4, Insightful)

schmidt349 (690948) | more than 4 years ago | (#28648603)

But isn't that exactly the kind of software that *doesn't* deserve patent protection because of how mundane and obvious it is?

Re:Similar to Donald Knuth's Logic (0)

Anonymous Coward | more than 4 years ago | (#28649413)

I didn't realize you could patent oxymorons... Business and logic in the same sentence or phrase? how dare you!!!

Re:Similar to Donald Knuth's Logic (3, Informative)

morgan_greywolf (835522) | more than 4 years ago | (#28648759)

What is "non-mathematical software"?

There is no such thing as non-mathematical software. Even printing "Hello, World!\n" requires math. Taking math out of software is sort of akin to taking carbon out of food.

Re:Similar to Donald Knuth's Logic (1)

Aristophrenia (917761) | more than 4 years ago | (#28648363)

A first post that isn't a troll, flamebait, gnaa related, anti-semitic or jammed full over over-used, over-rated memes! Excellent, now /. let us see if we can keep this up. Please. For the love of all that is shiny, please!

Back on topic - I'm just not seeing why this would have been patent worthy in the first place and I am looking forward to the outcome.

y0u phai1 i7, so go fuck yourself (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#28648527)

Please forgive me, but I told you so. I predicted long ago that Aristophrenia would introduce a zeitgeist of adversarialism to our society. Now that he has, I'd like to express my thoughts on the matter. The rest of this letter is focused exclusively on Aristophrenia, not because I harbor any ill-will towards him but because the problem with him is not that he's directionless. It's that he wants to make higher education accessible only to those in the higher echelons of society.

All Aristophrenia really wants is to hang onto the perks he's getting from the system. That's all he really cares about. While he and other callow maggots sometimes differ on the details and scale of their upcoming campaigns of terror they never fail to agree on the basic principle and substance. Hence, it is imperative that you understand that Aristophrenia's co-conspirators' thinking is fenced in by many constraints. Their minds are not free because they dare not be.

Someone has been giving Aristophrenia's brain a very thorough washing and now Aristophrenia is trying to do the same to us. His scare tactics are not an abstract problem. They have very concrete, immediate, and unpleasant consequences. For instance, you may have noticed that he uses communism as a subtle poison to dry up the sound serum of morality on which this country used to thrive. But you don't know the half of it. For starters, if I may be so bold, Aristophrenia always looks the other way when one of his devotees gets it in his head to abet a resurgence of careless insurrectionism. Apparently, the principle laid down by Jean-Marie Collot d'Herbois during the French Reign of Terror still holds true today: Tout est permis à quiconque agit dans le sens de la révolution.

Aristophrenia apparently wants to use us to fulfill his petty mission, and deep down in our bones, we all know why. Did it ever occur to him that he, serving as judge, jury, and executioner, has decreed that we should abandon the institutionalized and revered concept of democracy? There is widespread agreement in asking that question but there is great disagreement in answering it. He arrogates to himself the right to publish blatantly inaniloquent rhetoric as "education" for children to learn in school. Yes, I could add that he chivvies shabby, inimical parasites to his side by convincing them that bad things "just happen" (i.e., they're not caused by Aristophrenia himself), but I wanted to keep my message simple and direct. I didn't want to distract you from the main thrust of my message, which is that Aristophrenia's ultimata are just an outcropping of his hatred of us. If, after hearing facts like that, you still believe that Aristophrenia's dissertations are good for the environment, human rights, and baby seals, then there is unequivocally no hope for you.

To be fair, I realize that some people may have trouble reading this letter. Granted, not everyone knows what "heterochromatization" means, but it's nevertheless easy to understand that Aristophrenia has never been a big fan of freedom of speech. He supports pogroms on speech, thought, academic license, scientific perspective, journalistic integrity, and any other form of expression that gives people the freedom to state that Aristophrenia's trucklers think that Aristophrenia was chosen by God as the trustee of His wishes and desires. This is precisely the non-equation that Aristophrenia is trying to patch together. What he's missing, as usual, is that at this point in the letter I had planned to tell you that I still wish briefly to take a position on the question as to what extent his patsies amount to nothing more than maladroit wimps riding on the back of a social fungus attacking the body politic. However, one of my colleagues pointed out that Aristophrenia thrives on the victimization of others. Hence, I discarded the discourse I had previously prepared and substituted the following discussion in which I argue that he is undeniably up to something. I don't know exactly what, but whenever Aristophrenia announces that the few of us who complain regularly about his propositions are simply spoiling the party, his hangers-on applaud on cue and the accolades are long and ostentatious. What's funny is that they don't provide similar feedback whenever I tell them that so far, the response from Aristophrenia's camp has been tardy and equivocal. Let's remember that. That's my story and I'm sticking to it.

Re:Similar to Donald Knuth's Logic (0)

Anonymous Coward | more than 4 years ago | (#28648395)

Would mathematics still be copyrightable?
Because any piece of music can be written down as a series of bytes, which chained together can be written as a large integer.
In other words, I'm not so sure whether this logic can be followed, rigorously, without upsetting a lot of people.

Re:Similar to Donald Knuth's Logic (1)

ledow (319597) | more than 4 years ago | (#28648485)

What's copyrightable got to do with patentable?

If I created a work of my own volition it is, almost by definition, copyrightable. Nothing else really matters. However, a *patent* is by no means "automatic" like copyright. You're lumping together extraordinarily disparate subjects, because lawyers do so and call it IP so that if they *don't* turn out to have a valid patent, they can pursue trademark and/or copyright claims without having to re-file.

However, it really irks me that someone in the EU bothered to distinguish between a general purpose processor and a fixed-purpose processor. At the end of the day, it's still nothing more than a set of transisitors, a set of boolean logical operations encoded in the arrangement of those transistors and a set of algorithms encoded in those boolean operations. I can't patent a "chip that does X", but I can patent a "chip that ONLY does X". It's just stupid.

I'll try to define fixed-purpose processors (1)

tepples (727027) | more than 4 years ago | (#28648943)

However, it really irks me that someone in the EU bothered to distinguish between a general purpose processor and a fixed-purpose processor.

General-purpose processors include commonplace mathematical operations, such as addition, multiplication, square root, etc., as machine instructions, and they can act as generic linear bounded automata. "Fixed-purpose processors" to me looks more like an MPEG decoder ASIC. It has machine instructions for things like "decode variable length buffer" or "apply a discrete cosine transform", and a comparatively small microcode for parsing the bitstream that can't be reloaded.

Re:I'll try to define fixed-purpose processors (1)

ledow (319597) | more than 4 years ago | (#28649277)

And, again, how does that differ?

Even an MPEG ASIC has to do *all* of the above actions, and a general purpose CPU have specialist machine instructions for ALL sorts of stuff. And you *know* that if you "misuse" such an ASIC, you could easily turn it into a GP processor (much like people have, and industry now supports, with graphics processors) without any hardware modifications - just feed it a stream designed to do what you want it to do. If it is at all physically possible to make it in any way simulate a Turing machine, then you just made a GP processor (and thus, all patents on it would therefore be invalidated instantly).

There is a distinction between "programmable" and "not", but that's it... and virtually every device is "programmable", just not necessarily in a simple way (JTAG, reprogramming EEPROM's, re-laying a FGPA, flicking switches, soldering links, etc.). There's really no distinction apart from *intention*, though. If you don't *intend* something to be programmable or not, that's hardly a basis for issuing a patent and an unreliable test.

What about if, in 20 years time, the original hardware manufacturer can't buy an Intel 8088 and thus decides to just slap in a general purpose processor with some kind of emulation (or an ICE, in other words) in any of those products that they service... that immediately invalidates patents on that machine. Whether or not it matches with your opinion, as a legal test *all* definitions of such things just stink. Thus, it's stupid to even *try* and categorise such devices/patents until someone comes up with a pretty damn definitive test. That means that either: Nobody distinguishes between GP and SP processors in patent applications, with the ramifications of that, or that *software* patents become invalid. Either option is fine. Middle-ground, however, sucks.

Re:Similar to Donald Knuth's Logic (4, Interesting)

tepples (727027) | more than 4 years ago | (#28648773)

Would mathematics still be copyrightable?

Yes, a sufficiently large number can represent a copyrighted work. It can be represent a piece of music or a computer program. (A program is a list of instructions that describes a mathematical process in a way that a machine can carry out.) A program is copyrighted as a literary work, but the process that the program describes cannot itself be copyrighted in the United States per 17 USC 102(b) [copyright.gov]. That's why some inventors have been trying to use patent law, which is designed to protect processes, to secure exclusive rights in algorithms.

Because any piece of music can be written down as a series of bytes

While we're still on the subject of musical copyright for a moment: Define the "hook" of a musical work as the first few notes of the memorable part. Then the Kolmogorov complexity [wikipedia.org] of a hook can be estimated as having 40 bits or fewer, based on encoding each of the first eight notes in five bits: four bits for the pitch (0 to 15 relative to a standard scale), and one bit for whether the note is short or long. So there are only about a trillion musical hooks, and the birthday problem [wikipedia.org] suggests that collisions start to become likely around the square root of that (a million). The music-theoretic rules of which pitches fit well together reduce the space even further. For comparison, the repertories of the major U.S. performance rights organizations, which have already surpassed 15 million (8.5 million for ASCAP [ascap.com] and 6.5 million for BMI [bmi.com]). So collisions such as "He's So Fine" vs. "My Sweet Lord" (Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976)) quickly become inevitable.

Re:Similar to Donald Knuth's Logic (1)

aynoknman (1071612) | more than 4 years ago | (#28649619)

Would mathematics still be copyrightable?

Yes, a sufficiently large number can represent a copyrighted work. It can be represent a piece of music or a computer program. ...

And with a tinyurl.com transformation, it "sufficiently large" << large.

Re:Similar to Donald Knuth's Logic (2, Insightful)

sir_eccles (1235902) | more than 4 years ago | (#28648449)

His logic isn't very good in my opinion.

There is no concept in any patent law be it US or EU that would allow a claim to an integer by itself of the form "Claim 1, the integer 1009". I don't really see the point of his argument by saying that.

Re:Similar to Donald Knuth's Logic (0)

Anonymous Coward | more than 4 years ago | (#28648523)

That's the point: he doesn't want to see that happen.

Re:Similar to Donald Knuth's Logic (5, Insightful)

MenThal (646459) | more than 4 years ago | (#28648501)

His argument is simple: (1) math cannot be patented (2) all algorithms are math (3) all software is one or more algorithms and so follows that software cannot be patentable.

While I agree with the sentiment, this isn't good logic. Since software is a combination of algorithms, the combination of those algorithms may be non-obvious and novel.

I want SW-patents to go the way of the dodo as much as the next /.'er, but the above struck me as aking to A) atoms cannot be patented, B) all machines are made of one or more atoms, ergo machines cannot be patented.

Re:Similar to Donald Knuth's Logic (5, Insightful)

russotto (537200) | more than 4 years ago | (#28648587)

While I agree with the sentiment, this isn't good logic. Since software is a combination of algorithms, the combination of those algorithms may be non-obvious and novel.

Any combination of algorithms in software is itself an algorithm. Knuth isn't arguing obviousness or novelty; he's arguing that software isn't patentable subject matter at all, no matter how non-obvious or novel it may be.

Re:Similar to Donald Knuth's Logic (3, Informative)

CastrTroy (595695) | more than 4 years ago | (#28649287)

Great point. I may write a book, and it may have some very non obvious and novel story lines, but the book isn't patentable. Books have copyright protection. The way patent law was written it specifically says you can't patent an algorithm, no matter now original it may be.

Re:Similar to Donald Knuth's Logic (3, Funny)

schon (31600) | more than 4 years ago | (#28649617)

Any combination of algorithms in software is itself an algorithm. Knuth isn't arguing obviousness or novelty; he's arguing that software isn't patentable subject matter at all, no matter how non-obvious or novel it may be.

<tounge-in-cheek>
But that's absurd! How will mathematicians have motivation to pursue their business if they can't patent the results!?!?!?!
</tounge-in-cheek>

Re:Similar to Donald Knuth's Logic (1)

Hatta (162192) | more than 4 years ago | (#28649023)

An algorithm may or may not be novel, it still may not be patented.

Re:Similar to Donald Knuth's Logic (1)

betterunixthanunix (980855) | more than 4 years ago | (#28649137)

A mathematical theorem that combines several lemmas in a non-obvious and novel way is still not patentable. Combinations of abstract mathematical concepts leave you with another abstract mathematical concept -- a combination of algorithms is no less abstract or mathematical than a single algorithm.

Re:Similar to Donald Knuth's Logic (0)

Anonymous Coward | more than 4 years ago | (#28649393)

A lot of proofs are non-obvious and novel combinations of other proofs, but we still don't allow them to be patented.

Re:Similar to Donald Knuth's Logic (5, Insightful)

Anonymous Coward | more than 4 years ago | (#28649607)

I want SW-patents to go the way of the dodo as much as the next /.'er, but the above struck me as aking to A) atoms cannot be patented, B) all machines are made of one or more atoms, ergo machines cannot be patented.

There is a distinct difference between Knuth's logical progression and yours. It's a matter of a few words, which may seem nit-picky, but what manner of logic doesn't boil down to pure semantics?

Knuth's "software cannot be patented" argument:
* Math cannot be patented.
* Algorithms ARE math.
* Software IS a series of algorithms strung together (as an aside, a series of algorithms interacting is itself an algorithm)
* Ergo, software cannot be patented

Your counter-argument via analogy:
* Atoms cannot be patented
* Machines ARE MADE OF one or more atoms strung together
* Ergo, machines cannot be patented

Note the emphasized words: ARE versus ARE MADE OF. Math is not a tangible object, so there is no concept of "is made of" in that context. Atoms are tangible, albeit on a microscopic scale. Still, that's enough to say that a machine IS MADE OF specific atoms. However, you cannot say that a machine IS an atom. You can say that a machine IS a group of atoms, but that's not enough to warrant a patent; a machine is more than that. The group of atoms is crafted into unique and complex shapes, and those shapes are put together and mechanical force is applied to make it accomplish a task. That is what warrants a patent.

I know exactly what you are about to think: aren't you doing the same thing to the series of algorithms? The answer is no. Math cannot be "crafted" into a "shape". It can describe a shape, but it is intangible. No mechanical force can act on math, and a solid object cannot be "made of math". An algorithm, quite simply, IS math; no more, no less. You can string together as many algorithms as you like, but all that does is create one larger algorithm. The same cannot be said about a physical object consisting of multiple atoms strung together.

The end result of a software may fall under another system, like copyright or trademark. But the underlying logic is all math, and that cannot and should not fall under patent.

Re:Similar to Donald Knuth's Logic (1)

Perf (14203) | more than 4 years ago | (#28649909)

I want SW-patents to go the way of the dodo as much as the next /.'er, but the above struck me as aking to A) atoms cannot be patented, B) all machines are made of one or more atoms, ergo machines cannot be patented.

One could argue that oil paintings are a collection of pigments that filter and reflect various wavelengths of light. The art is in the selection and arrangement of the pigments. Or that music is a sequence of tones. But some sequences sound better than others.

Programming is not pure science, it is a mix of science and art, like architecture.

(I also agree that something is terribly flawed with the software patent system.)

Re:Similar to Donald Knuth's Logic (3, Interesting)

thedonger (1317951) | more than 4 years ago | (#28648503)

IANAPT (I am not a patent-troll), but I am interested in your take on this: If fifty years ago I came up with a way to manufacture ball bearings - independently of an existing, patented method - would I not be sued by the patent holder of the bearing production process if I brought a product to market using my bearings?

If so, how is that different than making an online auction site, basically copying the tried and true functionality of ebay? Software is not manufacturing, and the tools required are readily available for almost anyone to make their own ebay copy at very little cost (compared to manufacturing bearings), but is that enough to make it substantially different to where patent law would not apply?

To be clear, I like the freedom of Linux, PHP, MySQL, and Apache, and I shudder to think I could come up with some neat idea for a client only to be sued because Amazon patented the "quadruple click" widget.

Re:Similar to Donald Knuth's Logic (1)

Attila Dimedici (1036002) | more than 4 years ago | (#28648871)

IANAPT (I am not a patent-troll), but I am interested in your take on this: If fifty years ago I came up with a way to manufacture ball bearings - independently of an existing, patented method - would I not be sued by the patent holder of the bearing production process if I brought a product to market using my bearings?

.

My understanding is, quite likely, but the patent holder would have lost, unless they held a patent on ball bearings.
Let's take what I think is a better analogy to the current state (or maybe the just overturned state) of patent law (as interpreted by the courts). If the current interpretation had been in existence in the 1800's, the guy who developed the steam engine for trains could have written a patent for a device that moves under the power of combustion. This would have forced the developers of automobiles to pay him licensing fees. Under the patent law of 50 years ago, the fact that an automobile uses an internal combustion engine and is not limited to tracks would have invalidated the application of the railroad patents to the automobile.

Re:Similar to Donald Knuth's Logic (4, Informative)

danaris (525051) | more than 4 years ago | (#28648961)

If fifty years ago I came up with a way to manufacture ball bearings - independently of an existing, patented method - would I not be sued by the patent holder of the bearing production process if I brought a product to market using my bearings?

Only if your method was identical (or very similar) to his method.

Despite modern corruptions, particularly in software patents, most patents are not, and should not be, of the form "A patent on making type of object X". They are and should be "A patent on a method for making type of object X."

In the patent, the entire method is clearly spelled out—it is made "patent," or obvious—and from the patent, anyone in the field and with the requisite equipment/money could produce the same object X by the same method. This, too, is missing from software patents, because to truly match a regular patent in this, the software patent would need to include the source code.

Dan Aris

Re:Similar to Donald Knuth's Logic (5, Funny)

geminidomino (614729) | more than 4 years ago | (#28648547)

THERE was his mistake...

If Europe leads the way in this, I expect many Americans would want to emigrate so that they could continue to innovate in peace

He told them if they did it, they'd be up to their asses in Americans! Hell, I wouldn't do it either, and I *AM* an American.

Re:Similar to Donald Knuth's Logic (0, Troll)

The_mad_linguist (1019680) | more than 4 years ago | (#28648597)

Here's where I disagree with Knuth - I believe all software should be patentable.

But not copyrightable.

Re:Similar to Donald Knuth's Logic (1)

Sinning (1433953) | more than 4 years ago | (#28648781)

Why?

Re:Similar to Donald Knuth's Logic (1, Interesting)

Anonymous Coward | more than 4 years ago | (#28649569)

Why?

I'm not the OP, but I suspect it has something to do with the fact that a patent lasts for 13 years, and copyright is forever minus a day. (in the US, it's "life of creator plus 25, oops, make that 50, no, now 75 years, and the underlying law is changed every 20-25 years so that it adds another 25 years every time Disney's Steamboat Willie (and Mickey Mouse) might enter the public domain.)

Spend ten billion dollars to invent the cure for cancer? You get a patent. In return for a monopoly on manufacturing the drug until 2022, you tell the world how you did it, but in 2023, you'd better have made your $10B in R&D back, because in 2023, anyone with a sufficiently large chemistry set is allowed to start cranking out a generic version of your miracle drug at $1.00/pill.

Draw a cartoon mouse? You get a copyright. You can sell comic books, but anyone who puts one of them in a photocopier at any time in the next century gets charged $80,000 per page, or whatever the print version of RIAA's $80K-per-song verdict is.

Fuck copyrights. Scrap the entire copyright system and go with patents. Software's not art, it's invention. Just like a cure for cancer, if you haven't made your money back on a piece of software in 13 or 17 years, it's time to let someone else use the code.

Re:Similar to Donald Knuth's Logic (1)

Skuld-Chan (302449) | more than 4 years ago | (#28649087)

That is reductionism at its finest. I would agree software patents are generally bad - because they are overly broad (One Click [tm] for example), but not because they involve math. If you used this argument in the physical world it seems to fall apart however, and that's what has me question its validity. At a fundamental level the physical world can be described with chemistry (atoms, physics etc) - and since you can't patent atoms (as far as I know) anything made from them can't be patented - which is everything patented including software because its just bits of atoms recorded in magnetic medium which can be described using chemistry.

Take the most recent NCSoft Vs. Worlds.com - in which they are claiming (from what I understand) to have patented a system for displaying and updating avatar positions in a 3d world and scaling this based on view. Its not a trivial concept at all.

But if you were an engineer at NCSoft working on an MMO and you were trying to crack this problem (of displaying avatars in a 3D world) - how else could you go about it?

Or One Click from Amazon - basically click on a purchase and use stored information about the buyer to complete the transaction - something most ANY point of sale system made in the last 20 years can do. My local pizza place has been doing this since they opened for business.

A wheel isn't an atom, all software is math. (1)

Chris Burke (6130) | more than 4 years ago | (#28649885)

At a fundamental level the physical world can be described with chemistry (atoms, physics etc) - and since you can't patent atoms (as far as I know) anything made from them can't be patented - which is everything patented including software because its just bits of atoms recorded in magnetic medium which can be described using chemistry.

There's a huge difference between "can be described by" and "is". There's a difference between "composed from" and "is".

You can't patent an atom, but a wheel isn't an atom, it is made from atoms. Atoms are the elements of the periodic table, and that's it. A thing built with atoms isn't called an atom. This isn't like math. Math is not just the axioms and basic operators. Math is everything you can construct using those axioms and operators no matter how complex. Two atoms together is a molecule, no longer just an atom. Two pieces of math together is still math.

And while the motion of a thrown ball can be described through Newton's Laws by a parabola, a thrown ball isn't Newton's Laws and physics equations. Software is, literally, a symbolic representation of math. It's not described by math, it describes math. In a machine-readable format, but that makes no difference it just means that today our computers, the thing that execute the algorithms described, are machines and not people.

There's no reductionism going on whatsoever. The most complex piece of software in existence does not need to be reduced in any way to call it math. Because that's literally what it is. In the exact same way that "a^2 + b^2 = c^2" is literally math, as in abstract symbols representing mathematical concepts, in the same way that the iterative algorithm of Newton's Method is math, every piece of software is by itself math and nothing more.

Knuth is 100% right here, no surprise since this isn't a tough one. Software is math. A falling weight isn't math; software that describes how to calculate its position at a particular point in time is. Get it?

Re:Similar to Donald Knuth's Logic (1)

gnupun (752725) | more than 4 years ago | (#28649671)

His argument is simple: (1) math cannot be patented (2) all algorithms are math (3) all software is one or more algorithms and so follows that software cannot be patentable.

Knuth is super intelligent, but his logic is flawed. Not all algorithms are math; most algorithms use some math. Algorithms are not a fact or discoverable, like mathematics. Instead, most algorithms are man-made, artificial software machines created by combining other smaller machine parts (more algorithms). In general, an invention, in all fields, whether it's computers, engineering, or carpentry, involves combining existing pieces to create a new, nonobvious piece.

If an electronics engineer can invent something by combining logic gates, flip flops and transistors, a mechanical engineer can invent a machine by combining gears, nuts, bolts, plastic and metal, then why can't a programmer invent a software machine by combining existing software machines? The concept is exactly the same, only the pieces (algorithms vs gears vs flip flops) are different.

Re:Similar to Donald Knuth's Logic (4, Insightful)

tambo (310170) | more than 4 years ago | (#28649987)

"The USPTO replied by defining non-mathematical software to be patentable while purely mathematical software is not."

Huh? This is completely wrong.

The USPTO has been arguing against the patentability of software since, well, software was first invented. And its main rationale is that the USPTO is ill-equipped to examine software patent applications. Of course, that argument is quite laughable these days, since it has been obligated to examine software patents since State Street Bank v. Signature Financial Group (1998)... it raises many more questions about the USPTO's recalcitrance to get with the times and meet its legal obligations... i.e., the sharp incompetence and chronic failure of the USPTO administration in managing the day-to-day operations of the organization.

The only "definitions" that have been applied to the field were created by the Court of Appeals for the Federal Circuit (CAFC), the appellate court that is solely empowered to hear appeals of district-level decisions in patent cases. That body (and its predecessor, the Court of Customs and Patent Appeals (CCPA)) have issued many different tests over the patentability of software. None have been satisfactory.

There is only one constant holding in the range of varying CAFC decisions over the years: software cannot be categorically rejected as a class of patentable subject matter. This would be a flat contradiction of 35 USC, the body of federal law that empowers the USPTO to issue patents.

But getting to the deeper problem: Software inventions cannot be categorically excluded from patentability because the technological spectrum of "method"-type inventions has a very smooth gradient. Consider:

  • An abstract solution to an abstract problem;
  • An applied solution to a specific problem;
  • A particular algorithm;
  • Specific code, runnable on a range of hardware;
  • Code embedded in memory of various volatilities (volatile RAM, flashable memory, static ROMs);
  • Configurable hardware (FPGAs) configured to implement a particular method; and
  • Circuits designed by automated processes to implement a solution specified (as software) with a circuit design tool.

Everyone seems to agree that a particular circuit is, and should be, patentable. And everyone seems to agree that a completely abstract solution to a completely abstract problem is not, and should not be, patentable. Fair enough.

The logical problem arises when someone (particularly opponents of software patents - Knuth, Stallman, etc.) try to draw a bright line in this list and say, "Everything above this list should be categorically excluded." The problem is that all of these embodiments accomplish the exact same thing in essentially the same way. Sure, there may be various ancillary advantages: cost of implementation, reconfigurability, speed, etc. But technically, they are completely fungible - they are technically equivalent. It is nonsensical and against the logic of technology to try to draw lines in the sand.

Shame on anyone who attempts to invent arbitrary distinctions in this field. In attempting to warp the business of software to suit your ends, you ignore the conclusions of Turing that form the basis of your area of technology.

- David Stein

Perfect (-1, Redundant)

Anonymous Coward | more than 4 years ago | (#28648329)

They are one of my competitors. Happy day! :-)

And so, it begins. (3, Insightful)

danaris (525051) | more than 4 years ago | (#28648405)

Let's hope this is a sign of things to come. With some luck, we might even see various patents on codecs invalidated, thus allowing much more freedom for which formats to use with the HTML5 <video> element...

Too bad we probably have to see the patents invalidated one by one, rather than getting the entire class thrown out in one swell foop.

Dan Aris

Re:And so, it begins. (1, Interesting)

Anonymous Coward | more than 4 years ago | (#28648525)

In any case, patent law could use a rule like: if the merits of the patent do not substantially improve other (non-patented) methods, then the patent is invalid (i.e., the technology would be free to use by anyone else). This would rule out all the compatibility problems, with codecs, but also with file systems (FAT, anyone?) In my opinion, such a rule would be very fair, and useful as well.

Re:And so, it begins. (2, Informative)

jank1887 (815982) | more than 4 years ago | (#28648917)

Done. From Bitlaw [bitlaw.com] (emphasis mine):

Section 101 of the U.S. Patent Act sets forth the general requirements for a utility patent:

        Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvements thereof, may obtain a patent, subject to the conditions and requirements of this title.

In other words, for an invention to be patentable it must:

      1. be statutory,
      2. be new,
      3. be useful, and
      4. be nonobvious.

Re:And so, it begins. (1)

Svartalf (2997) | more than 4 years ago | (#28649223)

Unfortunately, many of the filings should never have been granted on the basis that they fail on 2 and/or 4 in most cases with the software patents out. I've had the misfortune of having to read through some of the most atrocious things, including stuff referred to in initial refusals from patent examiners.

We're talking things like Amazon's One-Click patent atrocious here.

I'm hoping in re Bilski will withstand SCOTUS review or they deny cert on it for the appeal- and then we see a LOT more decisions like this one. It'd take the wind out of the sabre rattling over there in Redmond and then we can quit bickering about Mono (Even with their "new" MCP, it's not a good thing as it has entirely too many loopholes for words- give us a PATENT license guys!) and we can quit worrying about things like VFAT.

Re:And so, it begins. (1)

jez9999 (618189) | more than 4 years ago | (#28648829)

Too bad we probably have to see the patents invalidated one by one, rather than getting the entire class thrown out in one swell foop.

That would indeed be one cunning stunt of a swell foop.

Re:And so, it begins. (1)

tepples (727027) | more than 4 years ago | (#28648979)

Too bad we probably have to see the patents invalidated one by one, rather than getting the entire class thrown out in one swell foop.

Would a lawsuit against all members of MPEG-LA, seeking an injunction against enforcing every patent in its portfolio, count as "one fell swoop" for H.264?

Re:And so, it begins. (1)

Svartalf (2997) | more than 4 years ago | (#28649347)

Heh... You'd have to be well heeled to promulgate either a SJ procedure on the subject or the defense of an infringement case against you, violating their patents.

Keep in mind, though... The court system doesn't work the way you think it does and the MPEG-LA patents are conveniently for us something that can be implemented on a PC. They're really intended for dedicated hardware which passes the Bilski litmus test. It makes for a difficult call there and I wouldn't want to be the one to gamble on that decision. I'd go gunning for other stuff that's dead certain to cause woe, may have caused it in the recent past, is definitely something that would be invalidated by Bilski, and would delight many people to see that one get nuked so they can quit paying a certain corporation royalties on their nifty consumer electronics devices like GPS systems, cameras, etc.

Foiled again! (4, Funny)

Drakkenmensch (1255800) | more than 4 years ago | (#28648549)

Just when I was going to patent my "process for delivering an online response to a website article post", judges start remembering the Bilski Test!

Re:Foiled again! (1)

PMBjornerud (947233) | more than 4 years ago | (#28648729)

Just when I was going to patent my "process for delivering an online response to a website article post", judges start remembering the Bilski Test!

You would never be able to implement that without paying royalties for the "process for transferring information between computers" patent, anyway.

Re:Foiled again! (1)

n30na (1525807) | more than 4 years ago | (#28649193)

Yeah, but they have to pay for the "process for encoding information as electrical impulses" patent anyway, so it's fair.

Re:Foiled again! (0)

Anonymous Coward | more than 4 years ago | (#28648835)

Hey, just build a "specific machine" for that purpose, and you will pass the test.

That would be nice ... a machine with the sole purpose of posting comments to slashdot.

how long until the process becomes a "machine" (3, Insightful)

fullmetal55 (698310) | more than 4 years ago | (#28648623)

unless the definition of "machine" specifically indicates Hardware, (which i'm sure it doesn't since processes can be patented) sounds to me like Dealerlink didn't have a lawyer who specialized in Patent law. rather than allowing the argument to be lead in the direction of a processor being the "specific machine" the "specific machine" should have been the algorithms used in the code. This case doesn't stop anything. it's not precident setting, it's pretty much a bad lawyer losing a case for his client. IANAL nor do I play one on TV, but I work with enough of them to be able to spot a bad one. As soon as they mentioned specific machine, it seems their lawyer curled up and died, when he should have been arguing that the specific machine test does in fact pass as without the algorithms the process falls flat, and it is in fact the algorithms that constitute the specific machine in the patent. not the CPU or computer. If this does become a precident however, and this judgement does define a machine as "hardware" a LOT of patents are going to become invalid or challengable. and not just software patents. which means it's really just a matter of time before it's overturned.

Re:how long until the process becomes a "machine" (0)

Anonymous Coward | more than 4 years ago | (#28648757)

exactly -abolish the USPTO!

Re:how long until the process becomes a "machine" (0)

Anonymous Coward | more than 4 years ago | (#28648803)

So Turing machines count as specific now?

I think the Patent on those ran out in the sixties.

Re:how long until the process becomes a "machine" (4, Interesting)

russotto (537200) | more than 4 years ago | (#28648893)

An algorithm cannot be a "specific machine", as an algorithm isn't patentable subject matter in the first place. For years, software has been patented by using dodges like "A device consisting of CPU, storage, input device, output device executing algorithm X". Bilski makes that dodge invalid.

Some software patents are even sillier, in that they patent the _media_ containing the software. Some of Microsoft's FAT patents are that way, for instance. I don't know if that dodge has been tested in court since Bilski (or even before)

Re:how long until the process becomes a "machine" (1)

thePowerOfGrayskull (905905) | more than 4 years ago | (#28648939)

the "specific machine" should have been the algorithms used in the code

What makes this a valid legal argument? Not challenging it, just would like more explanation.

Re:how long until the process becomes a "machine" (1)

Theaetetus (590071) | more than 4 years ago | (#28648969)

unless the definition of "machine" specifically indicates Hardware, (which i'm sure it doesn't since processes can be patented) sounds to me like Dealerlink didn't have a lawyer who specialized in Patent law. rather than allowing the argument to be lead in the direction of a processor being the "specific machine" the "specific machine" should have been the algorithms used in the code. This case doesn't stop anything. it's not precident setting, it's pretty much a bad lawyer losing a case for his client.

He didn't have many options, actually... I just read the patent involved. There are two independent method claims, reciting "a computer aided method". That's it. No support in the specification for hardware, specific CPUs, etc. So he really couldn't try to argue the specific machine route.

Re:how long until the process becomes a "machine" (2, Insightful)

Abcd1234 (188840) | more than 4 years ago | (#28649091)

rather than allowing the argument to be lead in the direction of a processor being the "specific machine" the "specific machine" should have been the algorithms used in the code.

Uhh... what? An algorithm is a process. A set of steps for performing some sort of operation. That is not a "specific machine", anymore than the design for a cotton gin, written down on paper, is a specific machine. The specific machine is that algorithm reduced to practice in some form. For a computer algorithm, that would mean a series of instructions running on a microprocessor.

Re:how long until the process becomes a "machine" (1)

SCHecklerX (229973) | more than 4 years ago | (#28649173)

So you can patent a set of instructions for creating a set of instructions. Brilliant.

Re:how long until the process becomes a "machine" (1)

Abcd1234 (188840) | more than 4 years ago | (#28649215)

Hey, I never said it was smart, that's just the way it is. If you buy into the idea that software is patentable, it makes sense that it should be an implementation reduced to practice for a specific machine, thus at least resembling a real, physical invention. 'course, I happen to believe software shouldn't be patentable, but that's a separate issue.

Re:how long until the process becomes a "machine" (2, Interesting)

Attila Dimedici (1036002) | more than 4 years ago | (#28649167)

The legal ruling saying that says that it must work with a "specific machine" is more recent than the ruling that says that processes can be patented. Said ruling appears to be intentionally limiting the ruling that allowed processes to be patented. Additionally, there is reason to believe that the judges in that case felt that the ruling allowing processes to be patented should be reversed, but made a more limited ruling partially because of the nature of the case before them and partially in order to allow for courts to gradually correct the abuses that resulted from the previous ruling. IANAL, but I play one in my head, so this is just my interpretation of the various writings I have seen on this subject.

The *real* potential (3, Insightful)

DoofusOfDeath (636671) | more than 4 years ago | (#28648807)

Perhaps the greatest benefit of this ruling is that it could be appealed up to the SCOTUS.

Granted, this is risky for both sides. But perhaps if the SCOTUS gets enough appeal requests regarding software patents, it will finally address them.

As a practicing CS researcher and as a programmer, I sincerely feel that patent threats are the greatest limitation we face on software innovation. I can't begin to imagine that the benefits to our society are outweighing the costs.

Re:The *real* potential (2, Insightful)

Timothy Brownawell (627747) | more than 4 years ago | (#28649189)

Perhaps the greatest benefit of this ruling is that it could be appealed up to the SCOTUS.

Granted, this is risky for both sides. But perhaps if the SCOTUS gets enough appeal requests regarding software patents, it will finally address them.

I thought they already accepted an appeal of the Bilski case and were going to hear it next year?

As a practicing CS researcher and as a programmer, I sincerely feel that patent threats are the greatest limitation we face on software innovation. I can't begin to imagine that the benefits to our society are outweighing the costs.

Patent threats are probably the greatest limitation we face on any kind of innovation. Historically they seem to either slow innovation (eg, sudden advancement of steam engines when the patents expired) or have no discernible effect.

Surprising (1)

DustyShadow (691635) | more than 4 years ago | (#28648825)

Kind of surprised the court didn't stay the decision considering that Bilski is scheduled to be heard by the Supreme Court.

Backward patent logic (3, Insightful)

MobyDisk (75490) | more than 4 years ago | (#28648847)

I often see the opinion that "mathematical software" should not be patentable, but "non-mathematical software" should be. I appreciate the theoretical arguments on this subject, but the practical ones seem to point the other way.

When Phil Katz [wikipedia.org] invented a compression algorithm, he patented it. It seems to me, to be a fair thing to do. He invented the algorithm, he should deserve the credit and (if he chose to commercialize a product), the resulting profits. Same thing with encryption algorithms - if I created a new super-encryption algorithm, I should be able to commercialize it.

The problematic software patents are not mathematical. They are things like one-click shopping and auctions done over the internet, or really all of the something done over the internet patents. These are lame and should be eliminated. But a new algorithm seems like truly inventive to me.

Re:Backward patent logic (2, Interesting)

Theaetetus (590071) | more than 4 years ago | (#28649159)

I often see the opinion that "mathematical software" should not be patentable, but "non-mathematical software" should be. I appreciate the theoretical arguments on this subject, but the practical ones seem to point the other way.

When Phil Katz [wikipedia.org] invented a compression algorithm, he patented it. It seems to me, to be a fair thing to do. He invented the algorithm, he should deserve the credit and (if he chose to commercialize a product), the resulting profits. Same thing with encryption algorithms - if I created a new super-encryption algorithm, I should be able to commercialize it.

The problematic software patents are not mathematical. They are things like one-click shopping and auctions done over the internet, or really all of the something done over the internet patents. These are lame and should be eliminated. But a new algorithm seems like truly inventive to me.

Yeah. Even more so, the policy decision behind excluding novel and nonobvious mathematical algorithms from patentable subject matter has to do with thoughtcrimes... Say I get a patent on 2+2=4. You read my patent specification where I describe in extensive detail how 2+2 comes to equal 4. You understand it and think, "gosh, now I know that 2+2=4". Did you just infringe my patent, merely by thinking it? We don't want that outcome.

Bilski had two routes for patentability in process claims: "transform" something and "tied to a specific machine". The former is because we don't want to invalidate "process" patents on tempering steel, for example. The latter is because, once tied to a specific machine, you're not infringing the patent by thinking. If my claim above was "A method of adding, wherein a memory register on a computing device containing data identified as the number 2 is added, by an addition engine configured on the computing device, etc.", then you could never infringe it with your brain, or even a pad of paper and a pencil.

In this patent, the claim was "a computer aided method", but that's it for specifics. That's not a meaningful limitation. For instance, if my claim was "a computer aided method of adding 2+2 to equal 4", and you use wordpad instead of a pad of paper and pencil, did you just infringe? Sure. That starts to go back towards the thoughtcrime end of things, though. So, for policy reasons, we want to limit patents on things like this in a meaningful way that requires a specific machine.

Re:Backward patent logic (1, Insightful)

Anonymous Coward | more than 4 years ago | (#28649245)

He invented the algorithm, he should deserve the credit and (if he chose to commercialize a product), the resulting profits. Same thing with encryption algorithms - if I created a new super-encryption algorithm, I should be able to commercialize it.

One of the things that really bothers me about software patents is that the patent holders are trying to have their cake and eat it, too.

The purpose of the public offering patent protection to individuals/companies is that the public reaps the benefits of having the details of the patented technology opened. In the case of software, for that to be realized, I would think that a software patent would need to be accompanied by the full source-code to a specific implementation of the patented algorithm.

The problem is that people who try to patent things like a new encryption algorithm are taking advantage of triple protection: the protection of the patent on the method, the protection of copyright law on the binary, and the protection of obfuscation since they don't even release the source-code.

If software patents are to be allowed, then a viable implementation needs to accompany the patent, and that code should be free-and-clear (including no copyright restriction) after the patent protection elapses. Of course that's only one argument against software patents. The other arguments (it's just math, high likelihood of independent discovery, etc.) also sink the whole notion...

Re:Backward patent logic (1)

starfishsystems (834319) | more than 4 years ago | (#28649541)

Even supposing we had complete freedom to do so, it would be hard to formalize a clear division between patentable and non-patentable algorithms. I agree with you, and respectfully dispute with Knuth, that some algorithms qualify as inventions. On the other hand, some algorithms arise in such a direct consequence of fundamental mathematical properties that they qualify only as discoveries. And then there's the hazy middle ground.

It's true that, by construction, and given infinite time, it's possible to enumerate all possible algorithms. In that sense, all algorithms naturally exist and can only be discovered. But this sort of reduction makes itself absurd. It's sort of like how Maxwell's Daemon was resolved in thermodynamics: the act itself of selection might not require work, but figuring out which item to select most definitely does.

Only a tiny subset of algorithms are useful. Who would want a cryptographic algorithm that occasionally yields plaintext? So I'm afraid we have to fall back on the "obviousness" test.

Mathematicians don't need patents. (3, Insightful)

Xenographic (557057) | more than 4 years ago | (#28649915)

> I often see the opinion that "mathematical software" should not be patentable, but "non-mathematical software" should be. I appreciate the theoretical arguments on this subject, but the practical ones seem to point the other way.

What does "mathematical" mean to you, exactly? Seems like you think it means that the software has to use a lot of math you've never heard of to do something complex. Now, I can at least respect the argument that very innovative new processes might merit legal protection, though I think it's a terrible idea because it's unnecessary and it carries a high cost for society. Mathematicians can also make life difficult for you. If I create an equivalence relation between something patented and something not patented, what does the patent control? Have I destroyed the utility of the patent, or does the patent swallow up my "invention" too?

But back to the original point, the division between "mathematical" and "non-mathematical" software is the result of fuzzy-headed thinking by people who don't know what math is. Software is equivalent to math [wikipedia.org] and that link describes how you turn programs into math (and vice versa). There's no such thing as non-mathematical software because there's no such thing as non-mathematical math.

Now I know there are some people, especially that guy at IP Watchdog who was in the news quite a while ago, who think that because they can do a few fancy integrals, partial derivatives, and linear algebra, they know all there is to know about math. But they totally ignore the stuff that's relevant here and probably don't even know what type systems [wikipedia.org] or proof calculi [wikipedia.org] are. Suffice it to say that anyone who thinks they know all there is to know about math is wrong.

Babies and bathwater (3, Interesting)

McGregorMortis (536146) | more than 4 years ago | (#28648901)

I'm not entirely comfortable with Bilski. I think the Bilski test has thrown out the baby with the bathwater.

Not, in the case at hand... this patent sounds like 100% pure unadulterated bathwater. But nevertheless...

I'm not sure why so many Slashdotters are so opposed to software patents as a concept. To my mind, the problem has been that the "non-obvious" requirement has been ignored or interpretted in such a way as to render it meaningless.

There are some really clever algorithms out there, though. Algorithms that are not at all obvious, and really advance the state of the art. If Quicksort was invented today, wouldn't it deserve a patent?

But if the bath water is going to include such notorious crap patents as 1-Click, Desire2Learn, NTP, and many others, then I would have to say that the bathwater is so rank and disgusting that it's not too high a price to pay to lose a handful of babies, as Bilski does.

But can't we do better? Can't we find an "obviousness" test that works?

Re:Babies and bathwater (4, Informative)

Theaetetus (590071) | more than 4 years ago | (#28649235)

But if the bath water is going to include such notorious crap patents as 1-Click, Desire2Learn, NTP, and many others, then I would have to say that the bathwater is so rank and disgusting that it's not too high a price to pay to lose a handful of babies, as Bilski does.

But can't we do better? Can't we find an "obviousness" test that works?

Bilski wasn't about obviousness - Bilski was about patentability of certain types of inventions. For obviousness, you want to look at KSR v. Teleflex, where the Supreme Court laid out 9 different ways to find something obvious.

Re:Babies and bathwater (4, Insightful)

Svartalf (2997) | more than 4 years ago | (#28649407)

The position is pretty explicit. The past law was such that if it were a business process or describing an algorithm in the traditional sense (the bulk of software patents do this...) then it wasn't patentable- same goes for that which resides in nature. Bilski puts it back to where it was prior to all the fun and games when it was thought that it was a "good idea" to allow patenting damned near anything. It's not throwing the baby out with the bath water- it's fixing part of what's been broken for a while now.

Re:Babies and bathwater (1)

Late Adopter (1492849) | more than 4 years ago | (#28649689)

Yes, but none of that answers the actual question GP was asking.

Is it useful to society to allow patenting of non-obvious algorithms that accomplish new things in new ways? We certainly want to see the development of these things, so is this the right way to encourage it, or is a funding model like basic research more appropriate? Or should we leave it entirely to the private market and see what comes up incidentally through the development of new products and services?

I don't think patents are the way forward here, but that doesn't mean it's a stupid question to ask.

Re:Babies and bathwater (2, Interesting)

Timothy Brownawell (627747) | more than 4 years ago | (#28649469)

I'm not sure why so many Slashdotters are so opposed to software patents as a concept. To my mind, the problem has been that the "non-obvious" requirement has been ignored or interpretted in such a way as to render it meaningless.

Patents are based on the idea that you have a person who is an Inventor, and needs to have special privileges to be able to invent new things. Historically what seems to happen is that lots of people will be experimenting in the same area and possibly sharing notes, and will all converge on an invention.

Patents are fundamentally based on the assumption that Inventors are uniquely special, and a particular Invention is unique to a particular Inventor. This is not correct.

Re:Babies and bathwater (0)

Anonymous Coward | more than 4 years ago | (#28649579)

I'm not sure why so many Slashdotters are so opposed to software patents as a concept.

It is the stifling and encumbering effect of the patents that shows to be the majority of the problem (software and non-software patents). The patents are granted to specific code or implementation and then applied to a broad base, infringing is usually less about using the patented code and more about the concept having been used.

Add to that the duration of a patent and you've managed to stifle innovation for a long time. A patent is to give an inventor a chance to make money from his invention. How long is long enough or how much money should an inventor make before a patent expires and becomes public?

But can't we do better? Can't we find an "obviousness" test that works?

Yes, and it has been proposed and, for the most part, ignored. Patents are reviewed and granted by non-practicioners and this is the problem (software and otherwise). While a software algorithm may or may not be obvious to a software programmer it isn't obvious in most cases to a patent office worker.

Re:Babies and bathwater (1, Interesting)

Anonymous Coward | more than 4 years ago | (#28649981)

Let me turn it around the other way. Why do clever algorithms "deserve" a patent?

Personally, I'm much happier allowing the "inventor" of an algorithm to simply productize it. There is absolutely no need to give them a monopoly on the algorithm. They already obfuscate the code*, so it works perfectly well as a trade secret.

If someone who discovers a clever algorithm deserves to profit from it, why does the second (or subsequent person) who discovers it not deserving of the same profit? And if multiple people can discover the algorithm, resulting in no special profit, perhaps the algorithm wasn't so clever after all.

It's not that a test for "obviousness" is needed. We already have it. If I can't figure out how to implement it, then it's not obvious and doesn't need the monopoly of a patent. If I can figure it out, then it shouldn't be patented.

* I'm a free software advocate, so I am opposed to obfuscated code. However this is because I believe that an open source approach is more beneficial for everyone involved. In this case patents aren't desired anyway. So it really is the case that patents exist for obfuscated code.

Double Edge (2, Informative)

duanes1967 (1539465) | more than 4 years ago | (#28648907)

This is really a tough situation. Consider the CODEC. It is primarily a series of mathematical algorithms, but is quite complex and provides a function never before found. This is the brunt of intellectual property. We have moved beyond mechanical devices to the point that the device is not unique, but it's application is. On the other hand, what if the patent on a pencil covered the output from the pencil? In my opinion, a codec is definitely a process that is non-obvious, while Amazon one-click purchasing is a natural evolution. I have a device and software that I want to patent that falls into between "Duh-Why didn't I think of that" and "Holy Sh#$, that's awesome". While not obvious, it is not rocket science but no one has come up with anything like it yet. It is not merely and extension of current ideas. The device itself is only required in some situations in which an adequate general processor is not available (ie, stand alone operation). In the case of Dealer Track, I think that computer based credit application is simply an evolution of computer based forms processing. There is nothing new or non-obvious here.

Re:Double Edge (1)

SirGeek (120712) | more than 4 years ago | (#28649199)

I have a device and software that I want to patent that falls into between "Duh-Why didn't I think of that" and "Holy Sh#$, that's awesome".

I think most people would say, THAT is patentable (at least the device piece). No one says that a device that is unique shouldn't be patentable, just algorithms should not be.

I don't think people are against a device with a specific "implementation" of an algorithm being patentable.

Not so fast Software Patent Haters (0)

Anonymous Coward | more than 4 years ago | (#28648929)

Before all you software patent haters get all excited (oooops too late for that) you should know that the reasoning of the judge referenced in the original post is flawed. For example, The BPAI just found this claim patentable:

23. A computerized method for identifying a solution to address exposed performance gaps of a company in a specific industry, comprising:

first identifying a plurality of operational metrics for the specific industry, wherein the operational metrics includes a factor used to measure health or viability of a generic company in the specific industry, wherein the specific industry is a grocery store industry, wherein the operational metrics include at least one of a rate of inventory turnover and a number of customers per day;

assembling a set of solutions for application by the specific industry, wherein the set includes one of a decision, an action, a product, and a service;

assessing impacts of application of the set of solutions on the operational metrics for the specific industry, wherein the assessing includes determining which of the set of solutions has a negative impact on an operational metric and determining which of the set of solutions has a positive impact on the operational metric;

after identifying, assembling, and assessing, then comparing a current operational performance of the company to an operational performance of another company within the specific industry to obtain at least one performance gap, wherein the operational performance includes a performance of a company based upon the operational metric for the specific industry;

identifying a solution based upon the impacts to address the exposed performance gaps, wherein the solution is at least one of a decision, an action, a product, and a service that impacts a problem in a positive manner; and

outputting the solution from the computer system.

http://www.1201tuesday.com/1201_tuesday/

Multi-touch (0)

Anonymous Coward | more than 4 years ago | (#28648981)

I wonder if this will open the door to multi-touch for Android and other non-Apple devices...

I wonder.. (1)

Pvt_Ryan (1102363) | more than 4 years ago | (#28649171)

Would the judge be willing to go to the patent office and starting look for all MS patents and then rule on each of them?

Once finished he could then move onto other patents and clear the whole place up..

He is correct (0)

Anonymous Coward | more than 4 years ago | (#28649601)

Anyone that understands how a computer works will realize that at the machine code level, everything that a computer does is binary math. Since all programming languages have to be translated (compiled) into machine code at some point, there ARE NO PROGRAMS that are not based on binary math.

Besides, computer programs are much more like a book than a physical product or device, therefore should not be patentable. The whole patent/copyright thing has been grossly and extremely distorted to protect corporate profits and stifle innovation, the exact opposite of what patents and copyrights were originally intended to do!

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