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(Highly Divided) Federal Circuit Opinion Finds Many Software Patents Ineligible

Soulskill posted about a year ago | from the system-and-method-for-bits-and-stuff dept.

Patents 116

ais523 writes "The Federal Circuit has divided CLS Bank vs. Alice Corp., a case about various sorts of patents, including software patents. Although the judges disagreed, to a lesser or greater extent, on the individual parts of the ruling, more than half decided that the patents in question — algorithms for hedging risk — were ineligible patent matter, and that merely adding an 'on a computer'-like clause to an abstract algorithm does not make it patentable. Further coverage is available at Groklaw, or you can read the opinion itself (PDF)."

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about (4, Insightful)

NEDHead (1651195) | about a year ago | (#43694555)

time

Re:about (0)

chr1st1anSoldier (2598085) | about a year ago | (#43694613)

Agreed.

Re:about (-1)

Anonymous Coward | about a year ago | (#43694655)

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Re:about (0)

Anonymous Coward | about a year ago | (#43696097)

You don't have the balls.

Re:about (0)

Anonymous Coward | about a year ago | (#43697677)

hey, it's the closet fag.

Re:about (4, Informative)

Jane Q. Public (1010737) | about a year ago | (#43696727)

"about time"

Yes, about time this was RE-affirmed. Because some people seem to have forgotten their history.

This all took place -- same subject, and in exactly the same way -- about 100 years ago. Musicians were concerned with other people "stealing" their music by copying player piano rolls using stock paper, some glue, and paper punches. (Sound familiar? Gill Gates started this whole software "protectionist" era by suing people for copying his Altair BASIC interpreter that was stored on paper tape.)

John Philip Sousa, in fact was on the plaintiff end of some of these suits. And the courts decided that the form of the work doesn't matter. It can be on paper rolls, or in a book of sheet music, or whatever. AND, the courts also ruled that it doesn't matter whether it is in a form that controls machines, either. A written work is still nothing more than a written work!

And so with software. Software is properly governed by copyright, not patents. Where the software represents novel business practices or formulae, those business practices and formulae may be patentable. But according to ages-old court precedent, software itself never should have been.

Re:about (1)

SuperAlgae (953330) | about a year ago | (#43700059)

And so with software. Software is properly governed by copyright, not patents. Where the software represents novel business practices or formulae, those business practices and formulae may be patentable. But according to ages-old court precedent, software itself never should have been.

I was under the impression that patent law does follow this rule and that "software" patents are really just business method patents in the context of software. The problem is that the idea of a "business method" is too broad and too easy to dress up as novel even when it isn't (especially when it applies to software).

Re:about (1)

Jane Q. Public (1010737) | about a year ago | (#43700703)

"I was under the impression that patent law does follow this rule and that "software" patents are really just business method patents in the context of software. The problem is that the idea of a "business method" is too broad and too easy to dress up as novel even when it isn't (especially when it applies to software)."

Most of them operate that way, but it is my understanding that in some circumstances algorithms can also be patented.

I agree with you that most business methods should not be patentable, and I don't believe ANY algorithms should be patentable. Ultimately, they're just math.

Re:about (1)

davester666 (731373) | about a year ago | (#43700071)

I guess twenty years from now, judges will decide that algorithms won't be patentable just by adding "on the internet"...

Re:about (1)

Yvanhoe (564877) | about a year ago | (#43700353)

But we are not talking about software here, we are talking about algorithms. Patents cover processes which are abstract entities. I agree with the point you are making but I think it is irrelevant to the current case.

Re:about (2)

Jane Q. Public (1010737) | about a year ago | (#43700727)

"But we are not talking about software here

Yes we are. Software is just an implementation of algorithms. And an algorithm that isn't implemented in software is... a manual process?

we are talking about algorithms. Patents cover processes which are abstract entities. I agree with the point you are making but I think it is irrelevant to the current case."

I only used player piano rolls as an example, but it's an important one. At issue was that courts have ruled that the form of the work, or the media in/on which it appears, is completely immaterial, as is whether it controls a machine.

"On the internet" is simply a form of algorithm or software. Or a medium in which it appears. Therefore it should make absolutely no difference to patentability.

Does that mean? (3, Interesting)

Anonymous Coward | about a year ago | (#43694661)

ianal, so all rampant speculation here...

But, if that basically means that using a certain algorithm is not patentable, and doing the required calculations on a computer is not a bright enough idea to make it patentable, then where is the line that makes something patentable? There are so many patented algorithms, this could have gigantic financial implications for many large companies. Or will this be like most such court decisions, that the legal matters are so complicated that this particular decision won't really matter.

Re:Does that mean? (5, Interesting)

Runaway1956 (1322357) | about a year ago | (#43694717)

There is no line. Algorithms were never meant to be patented. If you're using an algorithm, and you don't want other people to know what you're using, then it's a TRADE SECRET. Funny thing though, is that anyone can decompile your software, and uncover your trade secret. So, what happened is, everyone tried to get their not-so-secret secrets to be covered by a patent.

It's a corruption of the system. Nothing more, nothing less.

Re:Does that mean? (0)

Anonymous Coward | about a year ago | (#43694765)

Yes, but the next question is whether or not there should be some protection of trade secrets. Given a state actor aggressively hacking most major companies, and a distributed threat against smaller companies, there is a case to be made for some protection.

Re:Does that mean? (3, Interesting)

Karl Cocknozzle (514413) | about a year ago | (#43694799)

Yes, but the next question is whether or not there should be some protection of trade secrets. Given a state actor aggressively hacking most major companies, and a distributed threat against smaller companies, there is a case to be made for some protection.

I'm not sure what "protection" that would provide: China already is breaking the existing laws of the United States, what makes you think a regimen of laws to protect "trade secrets" will stop them? What it will be useful for, though, is hushing up whistle blowers.

Re:Does that mean? (1)

K. S. Kyosuke (729550) | about a year ago | (#43695309)

China already is breaking the existing laws of the United States

How, by having Chinese people go visit US and commit crimes over there?

Re:Does that mean? (3, Interesting)

Karl Cocknozzle (514413) | about a year ago | (#43695357)

China already is breaking the existing laws of the United States

How, by having Chinese people go visit US and commit crimes over there?

By invading systems in the United States they are, in fact, violating US law. It doesn't matter where you are, when you commit a crime against someone (or a property crime against some thing) in the United States you are breaking United States laws. Now, they're doing so in a way that seems unlikely to lead to prosecution or conviction, but the laws have been broken. You can't come to the US, whether in physical or virtual form, and act with impunity. Laws do in fact apply to Chinese nationals, and if any of them showed up on US soil they could be arrested, tried, and jailed for their crime: Acting under state orders is not an affirmative defense that I've found.

Re:Does that mean? (4, Funny)

K. S. Kyosuke (729550) | about a year ago | (#43695745)

By invading systems in the United States they are, in fact, violating US law.

Unlike the US, which by invading systems in Iran doesn't violate any law at all! :-)))

Re: Does that mean? (4, Informative)

ustolemyname (1301665) | about a year ago | (#43696081)

No, the US knows full well they are violating Iranian law. They, like most, just don't care about Iranian law.

Re: Does that mean? (0)

Anonymous Coward | about a year ago | (#43697225)

So why should China care about US law ?

Re: Does that mean? (0)

Anonymous Coward | about a year ago | (#43697853)

So why should China care about US law ?

1. Because in some cases they have agreed to various treaties.
2. Because when you want to get along with another nation, you general try to respect each other's laws as far as they affect each other.

If you really need this explained to you, I'd suggest you take a High School level course on Government and World Affairs.

Re:Does that mean? (1)

jimmetry (1801872) | about a year ago | (#43697509)

Not entirely relevant, but the Chinese care not for Western frivolities:

http://www.neowin.net/news/ballmer-9-out-of-10-copies-of-windows-in-china-is-pirated [neowin.net]

Re:Does that mean? (1)

sgt scrub (869860) | about a year ago | (#43699987)

That article is total lies. Everyone knows the guy owning the legitimate copy of Windows in China was just visiting.

Re:Does that mean? (2)

Artifakt (700173) | about a year ago | (#43695857)

No, no there isn't. Using a patent MEANS you agree to disclose a secret, period. A trade secret MEANS you are going to take care of protecting that secret yourself without the taxpayer having to meet the costs, as we do for patents. Your question MEANS 'Is there some way I can keep all the benfits for me while getting someone else to shoulder more of the costs?'

Re:Does that mean? (1)

tibit (1762298) | about a year ago | (#43696043)

You distribute your code. It must execute on some hardware. The instructions that are executed ultimately can't be a secret. You can obfuscate things and have to work to keep ahead of people who deobfuscate, mostly by introducing new ground-breaking features, not by wasting time on layers of DRM.

Re:Does that mean? (0)

Anonymous Coward | about a year ago | (#43697935)

You distribute your code. It must execute on some hardware. The instructions that are executed ultimately can't be a secret. You can obfuscate things and have to work to keep ahead of people who deobfuscate, mostly by introducing new ground-breaking features, not by wasting time on layers of DRM.

Most of the time you're not distributing your source code, you're distributing a compiled binary. It's pretty rare to see hand-written machine code circulating around, it's usually only done on embedded devices these days.

But in regards to the Law, I agree that Patents aren't the right way to address rights ownership. Copyright law is close, but it has some shortcomings and some of it doesn't quite 'fit'. What we really need, is to have a discussion about getting a new class of IP protection which is mostly similar to Copyright but with a few things similar to Patents. For example, copyright protects your source code but is too weak because protections against minor alterations aren't strong enough. But going full Patent takes it too far. We need a system where someone can have a limited protection on a particular implementation, but it needs to be relatively short-term and still allow for differing implementations which still fulfill the same 'high-level' algorithms.

Most patents right now are, from a design standpoint, extremely "high-level"... they read more like a general Concept doc. you'd write at the start of a project, and not so much like a blueprint (source code) or working prototype (binary/executables). If we shifted requirements so that you had to submit actual source code and/or working executables (or whatever) things would already be much better.
Think about it like this- you can't go to the patent office and get a patent for a "faster than light" warp drive. You can, however, get a patent for a specific implementation of a warp drive... even if it doesn't actually live up to the claims you've made. Then anyone else can also patent their own warp drive, so long as their implementation has significant differences. For example, if it actually works. Software should be approached from a similar point of view- you shouldn't be able to patent something like DVD compression, only the particular implementations of the routines to read/write. If someone makes one that is faster (or slower), less resource intensive (or more), etc. then they ought to be able to do that.

Re:Does that mean? (-1)

Anonymous Coward | about a year ago | (#43694839)

My smelly penis hole wants to smooch the deepest reaches of your rancid rectum. What say you?

Re:Does that mean? (5, Informative)

Theaetetus (590071) | about a year ago | (#43694967)

There is no line. Algorithms were never meant to be patented.

35 USC 101: 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.

Algorithm: A process or set of rules to be followed in calculations or other problem-solving operations, esp. by a computer.

I'd say it's pretty clear that algorithms were meant to be patented, provided they were new and useful and met the other conditions of the patent act.

Re:Does that mean? (1)

Anonymous Coward | about a year ago | (#43695177)

the difference is that a process is a concrete application,
an algorithm is an idea. it's the difference between an
algorithm for calculating polynomials, and the difference engine.
the issue with software is there is so little invention in taking
an algorithm and making it a process, so there is logical grounds
for criticizing "on a computer" patents.

(ps. the oed dates algorithm in the sense you're using it at 1960.
it's not clear the algorithms were ment to be patented. the founders
would not have known the concept.)

Re:Does that mean? (5, Interesting)

K. S. Kyosuke (729550) | about a year ago | (#43695291)

35 USC 101: 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.

Hm. Hmmm. There's this talk about "machine", "manufacture", and "matter" that makes me think whether "process" meant actually meant "technological process" (including, say, the chemical ones). When exactly was this law written? Before or after Turing? :-) Given the fact that algorithms are essentially very complex equations, one would expect that mathematics would have been mentioned if that were the case.

Re:Does that mean? (2)

ceoyoyo (59147) | about a year ago | (#43695561)

Algorithms are not "complex equations" any more than a machine is. You're making the same mistake patent examiners have been making, except in the opposite direction. "On a computer" is irrelevant to the patentability of an algorithm. That means "on a computer" has nothing to do with whether an algorithm deserves a patent, and it also has nothing to do with whether it doesn't deserve a patent.

Why should, say, the marching cubes algorithm, which transforms bitmap data into polygonal surface data, not be worthy of a patent when the set of instructions for turning bauxite into aluminum is? Because one uses a silicon chip and electricity and the other uses a pressure vessel and electricity?

Re:Does that mean? (4, Interesting)

K. S. Kyosuke (729550) | about a year ago | (#43695733)

Algorithms are not "complex equations" any more than a machine is.

Oh, but Alonzo Church says they are! And I'd prefer Alonzo Church's words to your words any day.

Why should, say, the marching cubes algorithm, which transforms bitmap data into polygonal surface data, not be worthy of a patent when the set of instructions for turning bauxite into aluminum is? Because one uses a silicon chip and electricity and the other uses a pressure vessel and electricity?

I think there are both practical differences (investment levels, for starters: it's quite expensive to experiment with chemical processes, drug manufacture, upscale them, AND comply with medical and industrial regulations, whereas algorithm design is hardly more expensive than any other kind of academic or applied mathematical work) and theoretical differences (example by contradiction: if algorithms indeed *are* patent-worthy, why not the rest of mathematics? And if the rest of mathematics is patent-worthy, why hasn't any country done that yet? Case in point: in my country, anything derivable from math is explicitly ruled out as unpatentable).

Re:Does that mean? (1)

Theaetetus (590071) | about a year ago | (#43699255)

I think there are both practical differences (investment levels, for starters: it's quite expensive to experiment with chemical processes, drug manufacture, upscale them, AND comply with medical and industrial regulations, whereas algorithm design is hardly more expensive than any other kind of academic or applied mathematical work)

If patent subject matter eligibility is based on "is this an algorithm or not," then practical concerns such as investment level should be irrelevant. Furthermore, if patents are objectively granted based on innovation regardless of capitalistic influences, then "but it's expensive!" or "we spent a lot of investment money on this!" should be irrelevant. Do you think patents should be awarded only to big companies who spend lots of money on development and who promise their investors great gains, regardless of invention?

... and theoretical differences (example by contradiction: if algorithms indeed *are* patent-worthy, why not the rest of mathematics? And if the rest of mathematics is patent-worthy, why hasn't any country done that yet? Case in point: in my country, anything derivable from math is explicitly ruled out as unpatentable).

But, under the Supreme Court's Bilski decision (and in most countries, including, I suspect, your country - what country are you in, exactly?), an algorithm or mathematics alone (or software per se) is unpatentable, but the same algorithm or mathematics (or software) embodied in or performed by a machine is patentable - see Diamond v. Diehr, among others.

The dividing line seems to be whether the claim could be infringed by a human, thinking, for good reason - allowing this to be patented would create a thoughtcrime, since people can't control their thoughts.

Re:Does that mean? (2)

LateArthurDent (1403947) | about a year ago | (#43696133)

Why should, say, the marching cubes algorithm, which transforms bitmap data into polygonal surface data, not be worthy of a patent when the set of instructions for turning bauxite into aluminum is? Because one uses a silicon chip and electricity and the other uses a pressure vessel and electricity?

The computer is a general purpose machine that will run whatever program you write for it. That program is copyrightable, and thus already protected. It doens't need any more protection than that.

The machine you build for processing bauxite has one function. And instructions to build the processing plant are not copyrightable (in the same way recipes are not copyrightable). Therefore, the process is patentable.

Re:Does that mean? (1)

Midnight Thunder (17205) | about a year ago | (#43698165)

Why should, say, the marching cubes algorithm, which transforms bitmap data into polygonal surface data, not be worthy of a patent when the set of instructions for turning bauxite into aluminum is? Because one uses a silicon chip and electricity and the other uses a pressure vessel and electricity?

The computer is a general purpose machine that will run whatever program you write for it. That program is copyrightable, and thus already protected. It doens't need any more protection than that.

The machine you build for processing bauxite has one function. And instructions to build the processing plant are not copyrightable (in the same way recipes are not copyrightable). Therefore, the process is patentable.

There is also a notion of relative cost. The machine for turning bauxite into aluminium probably cost millions of dollars and years to develop, which is an investment that needs to be protected. Software costs are often no more than tens of thousands of dollars and took months to develop, possibly even weeks. The relevance of the first investment is probably more than ten years, while the the relevance of the software investment is probably in the order of 2-5 years.

Also, in the first case there is no incentive to replace the technology quickly whereas there is incentive for software - software gets replaced either because the is a commercial incentive or a bunch of geeks just had an urge to prove something could be done.

When we do comparisons of investment, development periods and how long something is useful we can can see that we can't apply the same rule book and carrot in both cases.

As stated, copyright provides sufficient protection in the world of software.

Re:Does that mean? (1)

meta-monkey (321000) | about a year ago | (#43696161)

http://en.wikipedia.org/wiki/Lambda_calculus [wikipedia.org]

Programs is maths.

Re:Does that mean? (1)

ceoyoyo (59147) | about a year ago | (#43696861)

No more or less than anything else that has been patented is "maths."

Re:Does that mean? (2)

rmstar (114746) | about a year ago | (#43696285)

Why should, say, the marching cubes algorithm, which transforms bitmap data into polygonal surface data, not be worthy of a patent when the set of instructions for turning bauxite into aluminum is? Because one uses a silicon chip and electricity and the other uses a pressure vessel and electricity?

Because I don't want it to be patentable. I find patents ugly, inhuman, and perverse. They make thinking dangerous. When it is about software, particularily so.

I have a say in this matter, however small it may be, and I don't want algorithms to be patentable.

Re:Does that mean? (1)

ceoyoyo (59147) | about a year ago | (#43696829)

It's fine and defensible to oppose (or support) patents, but the "when it is about software, particularly so" is just a geek engaging in irrational thinking. The same way the suit rubbing his hands together in greed because "it's on a computer" is.

Re:Does that mean? (1)

rmstar (114746) | about a year ago | (#43697555)

It's fine and defensible to oppose (or support) patents, but the "when it is about software, particularly so" is just a geek engaging in irrational thinking.

No, it is entirely rational to fight something you don't want.

The chemists, for example, seem to be ok with a world ruled by lawyers, or where, after having a good idea, you end up owing someone a shipload of money just because someone has a patent on it. The chemists can get it unlubed in the if they are ok with that. It seems they are a spineless bunch.

[...]irrational thinking. The same way the suit rubbing his hands together in greed because "it's on a computer" is.

Perhaps your idea of what is "rational" is severly limited and crooked. Here is your mistake: that greedy suit is being rational, because the "it's on a computer" is just an argument he uses for his own self interest. Just like that incredibly narcistic "why should I think if i don't get to become rich for some stupid idea" line. The point that should matter is that he or she is a greedy asshole that wants to take your money away, wants to enslave you, and deserves something entirely different from being rich and successful. What is important is that he or she must be stopped.

That whole line with "being rational", especially when the arguments are as stupid as they are when people favour patents, is quite often just a smokescreen and a maneuver to make you think in a way someone else wants.

Re:Does that mean? (1)

Your.Master (1088569) | about a year ago | (#43698821)

No, it is entirely rational to fight something you don't want.

That's not what he said. He said it's irrational to say that your arguments apply any more to software than they do to anything else. That might be what you're getting at with your strange rant against chemists, but it's pretty irrelevant. Whether or not they're spineless, your arguments work equally well for the patents chemists deal with.

I'm not sure yet whether I agree or disagree about software being a "special" category. I do disagree with it being special just because it's "just math" because nearly everything we do is reducible to math, so we have to find some discriminating factor and when we find that line, we can see which side software falls on. Separately, we can discuss whether there should be a line at all.

His notion of rational isn't wrong, by the way, it's just that you seem to insist on misinterpreting it. We're talking about whether the argument is rational. Not whether it's rational for a person to make that argument. Those are different things -- you've correctly identified that the straw "greedy suit" is rational to make the "it's on a computer" argument, but the "it's on a computer argument" is still not rational.

Re:Does that mean? (1)

pepty (1976012) | about a year ago | (#43696291)

Why blame the examiners?

http://www.uspto.gov/patents/law/exam/101_training_aug2012.pdf [uspto.gov]

Step 2: If a process, follow the process analysis. Step 3: Does the claim recite an abstract idea, law of nature or natural phenomenon (a judicial exception)? If no, eligible. If yes, proceed. Step 4: Is the claim as a whole directed to a practical application of the abstract idea, law of nature or natural phenomenon? If no, ineligible. If yes, proceed. A man-made tangible embodiment with a real world use is evidence of a practical application. Step 5: Does the claim cover substantially all practical applications of the exception? Is innovation based on the abstract idea, law of nature or natural phenomenon foreclosed? If yes, ineligible. If no, the claim qualifies as eligible subject matter.

An algorithm never deserves a patent. Practical application, tangible embodiment: patent eligible (for now).

Re:Does that mean? (1)

ceoyoyo (59147) | about a year ago | (#43696849)

And that has absolutely nothing to do with whether an algorithm deserves a patent. In fact, you've just quoted the guidelines by which algorithms are to be judged worthy or not, implying that some ARE worthy.

Re:Does that mean? (3, Informative)

the eric conspiracy (20178) | about a year ago | (#43695917)

Decisions have determined the limits of the statutory classes. Examples of subject matter not patentable under the statute follow:

A. Printed Matter
For example, a mere arrangement of printed matter, though seemingly a "manufacture," is rejected as not being within the statutory classes. See In re Miller, 418 F.2d 1392, 164 USPQ 46 (CCPA 1969); Ex parte Gwinn, 112 USPQ 439 (Bd. App. 1955); and In re Jones, 373 F.2d 1007, 153 USPQ 77 (CCPA 1967).

B. Naturally Occurring Article
Similarly, a thing occurring in nature, which is substantially unaltered, is not a "manufacture." A shrimp with the head and digestive tract removed is an example. Ex parte Grayson, 51 USPQ 413 (Bd. App. 1941).

C. Scientific Principle
A scientific principle, divorced from any tangible structure, can be rejected as not within the statutory classes. O"Reilly v. Morse, 56 U.S. (15 How.) 62 (1854).

Section C disallows abstract mathematics from being the subject of patents.

Re:Does that mean? (1)

Theaetetus (590071) | about a year ago | (#43697937)

35 USC 101: 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.

Hm. Hmmm. There's this talk about "machine", "manufacture", and "matter" that makes me think whether "process" meant actually meant "technological process" (including, say, the chemical ones). When exactly was this law written? Before or after Turing? :-) Given the fact that algorithms are essentially very complex equations, one would expect that mathematics would have been mentioned if that were the case.

Well, the patent act was most recently amendment two years ago, in the America Invents Act. So, almost 50 years after Turing's death. Previously, it has been amended in the 1990s, and substantially in the 1950s, both well after Turing was doing his thing. :-D I think Congress in the 1950s, 1990s, and 2010s, understood processes to include algorithms.

Re:Does that mean? (1)

Anonymous Coward | about a year ago | (#43695335)

C'mon not all processes are algorithms. Not all processes are implemented with MATH

Re:Does that mean? (2)

supertall (1163993) | about a year ago | (#43695345)

I'd argue that the spirit of 35 USC 101 refers to physical processes, not abstract ones; at most a practical implementation of an abstract algorithm is what is patentable, not the algorithm itself. The Juducial Exceptions [uspto.gov] explain this further. This was decided by Gottschalk_v._Benson [wikipedia.org] , and seems to have been confirmed by the current case.

Re:Does that mean? (1)

Theaetetus (590071) | about a year ago | (#43697965)

I'd argue that the spirit of 35 USC 101 refers to physical processes, not abstract ones; at most a practical implementation of an abstract algorithm is what is patentable, not the algorithm itself. The Juducial Exceptions [uspto.gov] explain this further. This was decided by Gottschalk_v._Benson [wikipedia.org] , and seems to have been confirmed by the current case.

Except that the recent cases have affirmed or cited positively Diamond v. Diehr [wikipedia.org] , which was patenting an algorithm, too:

1. A method of operating a rubber-molding press for precision molded compounds with the aid of a digital computer, comprising:
providing said computer with a data base for said press including at least, natural logarithm conversion data (ln), the activation energy constant (C) unique to each batch of said compound being molded, and a constant (x) dependent upon the geometry of the particular mold of the press,
initiating an interval timer in said computer upon the closure of the press for monitoring the elapsed time of said closure,
constantly determining the temperature (Z) of the mold at a location closely adjacent to the mold cavity in the press during molding,
constantly providing the computer with the temperature (Z),
repetitively performing in the computer, at frequent intervals during each cure, integrations to calculate from the series of temperature determinations the Arrhenius equation for reaction time during the cure, which is ln(v)=CZ+x where v is the total required cure time,
repetitively comparing in the computer at frequent intervals during the cure each said calculation of the total required cure time calculated with the Arrhenius equation and said elapsed time, and
opening the press automatically when a said comparison indicates completion of curing.

The current case also cites Diehr positively.

Re:Does that mean? (4, Interesting)

gwolf (26339) | about a year ago | (#43695019)

Right — And nowadays, if you *really* want to protect your secret, you don't even have to ship it to your customer: Just offer it as a Web service. No way to decompile that (although it can, of course, be reverse-engineered).
Given an enough-connected world, trade secret is again tenable for algorithms. Not everything can work depending on a Web service, but it pushes quite far the need.

Big pipes = big eyes (0)

Anonymous Coward | about a year ago | (#43696715)

I think we finally understand now why Google is meeting little resistance in its push for high bandwidth / low latency network infrastructure.

Unless you take assholes like AT&T and Time Warner into account... But who cares about ~them~, mirite...

Re:Does that mean? (1)

ceoyoyo (59147) | about a year ago | (#43695505)

Of course algorithms were intended to be patentable. The process for refining aluminum ore efficiently? An algorithm. A lot of machines are just a physical expression of an algorithm too, and the patent on the planetary gear wasn't awarded for the process of making metal gears (although that would be a process, and thus an algorithm, too).

The problem is that software is a much more flexible medium than wood, metal and chemistry, and it's regarded as nearly magical by so many people, including patent examiners, that obvious patents get granted. Thus "on a computer" not being a reason to grant a patent.

Re:Does that mean? (2)

the eric conspiracy (20178) | about a year ago | (#43695749)

Patents cover implementations, not ideas, i.e. algorithms. This is why software patents are written "algorithm x run on a computer". This provides the implementation. The algorithm is NOT patented, you can still freely use the algorithm by hand, on an abacus, etc.

The Bayer process is not presented as a formal mathematical statement. It's not possible to present it as such because the physics and chemistry behind it is not axiomized. The steps of building a machine to carry out the Bayer process do not involve abstract coding of a representation of the Bayer process which is then implemented on a general purpose chemical processor. Instead the process is implemented on a special purpose physical instrumentality. It is this special purpose physical instrumentality that is patented. Not the abstract laws of chemistry that the process is based on. And the result? The physical reality of a flow of molten metal.

This is very different from the CS algorithms that are patented as formal mathematical steps that are coded in an abstract processing language and carried out on a general purpose Turing machine. No physically specialized machine is needed and no physical product results.

In fact it is stunningly obvious that such an abstract algorithm be processed on a computer. This obviousness itself is a major problem with software patents.

The courts are starting to realize this. Hopefully it will become widely accepted and this era of abstract process patents that really have no distinct implementation will come to an end.

Re:Does that mean? (2)

dgatwood (11270) | about a year ago | (#43696323)

In fact it is stunningly obvious that such an abstract algorithm be processed on a computer. This obviousness itself is a major problem with software patents.

That's not really the problem. It was stunningly obvious that the assembly line (Olds patent) would involve people doing the assembly. That, in itself, does not make the patent obvious.

What makes software algorithms problematic is that there is usually exactly one way to do something, or very nearly so. Therefore, a patent on "a means to do X" usually translates to a patent on "doing X". Given a mathematical data compression algorithm, for example, apart from performance optimizations by vectorization and other tricks, there's usually exactly one way to implement it that doesn't result in precision loss.

The intent of patent law has always been that the obviousness test is not on the problem to be solved or the implementation of the steps to solve it, but rather on whether the steps would be obvious to someone who had not seen them, given the task it is supposed to concern. If there is exactly one way to do it, or exactly one way to do it without performing extra steps, or exactly one way to do it that isn't utterly idiotic, then the steps are obvious, and do not deserve a process patent.

For this reason, any patent in which the supposedly inventive step is "on a computer" is bogus, not because the concept of doing it on a computer is obvious, but because it is begging the question. The problem can be stated as "How would I do this on a computer?" and the answer is "On a computer." The obviousness test fails because the obvious way to do things on a computer is to approximate the way it is done in the real world. Therefore, the steps are obvious. If the steps are substantially unusual in some way that does not occur in the real world, then there's something non-obvious, and it might be worthy of a patent.

Re:Does that mean? (1)

the eric conspiracy (20178) | about a year ago | (#43697271)

> Given a mathematical data compression algorithm, for example, apart from performance optimizations by vectorization and other tricks, there's usually exactly one way to implement it that doesn't result in precision loss.

You aren't going to be able (at least if the patent review process works properly) to get a patent on a pre-existing prior art compression algorithm. It was already patented (maybe the patent has expired as some these go back almost 40 years now), or the material was published. It's fundamentally ineligible.

Now if you invent a new algorithm it used to be you would have a good chance. Inventing a new algorithm puts you in a place where there are many possible choices. Of course I still think it's problematic for the reasons I laid out in the GP.

As far as the Olds assembly line patent, I was not able to find a patent number for this. Just a lot of handwaving that such a thing exists. In any case it's over 100 years old so the legal situation is quite different now. In addition the idea that assembly lines had to be run by people was already known to not be true as Eli Whitney had mechanized an early assembly line more than 100 years earlier. The Most Serene Republic of Venice was using an assembly line to produce warships in the 16th Century.

Re:Does that mean? (0)

Anonymous Coward | about a year ago | (#43696927)

Mathematical algorithms are not patentable, but the problem was that industrial processes could be patented, and they are algorithms of a sort. The most common patent method like that is for the production of chemicals. Often involving many intricate steps, these processes have long been patentable. Patent lawyers have tried and succeeded in extending this idea into software. If you believe a computer works like a factory then you accept software patents. If you believe a computer is just a fancy abacus then you don't.

Re:Does that mean? (1)

Midnight Thunder (17205) | about a year ago | (#43698071)

This where "hosted services" have an advantage, if you are trying to protect your code. Since the code runs on the server, there is nothing really that can be decompiled by the client, other than the UI portion and the communicated data packets - the rest of the logic can remain server side.

At the same time, given the rate at which the software industry evolves, anything more than five years old is probably good for a refresh anyhow. If a company hasn't made an effort to keep their software relevant, then they shouldn't have anything that would allow them to keep an artificial competitive advantage.

The other thing is that individual software concepts don't usually take years to develop and millions of dollars to develop, so why a 20 year patent on something like that. From my experience most software concepts are evolutionary and often have multiple ways of being implemented. For example a 'shopping cart' is a mere concept with plenty of different implementations, so why should the notion of an electronic shopping cart be patentable?

A small first step. (3, Interesting)

wulfmans (794904) | about a year ago | (#43694681)

Now how about fixing the rest of the patent system?

Re:A small first step. (0)

Anonymous Coward | about a year ago | (#43694727)

Dust off, and nuke it from orbit, it's the only way to be sure.

Bilski (4, Interesting)

Etherwalk (681268) | about a year ago | (#43694691)

It is worth noting that despite the difficulty garnering a majority, this was a case with particularly good reasons to expect patent invalidation. First, it is conceptually similar to the hedging risk patent struck down in Bilski--i.e. in broad brushstrokes, the closest thing to it that the Federal Circuit would have thought about first was struck down. Second, and the real crux of it, is that the computer just wasn't that important. Third, although not addressed by the concurring opinion, it was about as obvious as one can imagine.

As an inventor of many patents (2)

MLBs (2637825) | about a year ago | (#43694769)

Most of which are forced by my employer as means to "protect our IP"
I agree that a lot of patents filed and issued I would not consider a legitimate invention.

Re:As an inventor of many patents (1)

Pinky's Brain (1158667) | about a year ago | (#43695915)

Why do you consider your opinion relevant? The current patent system presupposes that legitimacy can be objectively determinable by lawyers following a set of rules after all.

Re:As an inventor of many patents (1)

dgatwood (11270) | about a year ago | (#43696213)

One of those rules requires that it not be obvious to a person having ordinary skill in the art. Therefore, the opinion of engineers as to whether it is or is not inventive is, or at least should be, relevant.

Re:As an inventor of many patents (1)

Pinky's Brain (1158667) | about a year ago | (#43696389)

Except hind sight poisons the opinion in the eyes of the law and is thus rendered entirely irrelevant.

Re:As an inventor of many patents (1)

dgatwood (11270) | about a year ago | (#43696479)

The opinion of the inventor?

should have an xkcd rule for patent applications (0)

Anonymous Coward | about a year ago | (#43694815)

Next, the cases repeatedly caution against overly formalistic approaches to subject-matter eligibility that invite manipulation by patent applicants. . . . Thus, claim drafting strategies that attempt to circumvent the basic exceptions to 101 using, for example, highly stylized language, hollow field-of-use limitations, or the recitation of token post-solution activity should not be credited.

Each application should be accompanied by an xkcd style cartoon (probably longer than 4 panels, but typically less than 30) describing the invention and why it's useful and novel. The typical format would be: this is the current situation; here's what we're adding that's new; here's some detail about our method. If the xkcd is terrible or opaque, that should be a red flag.

Re:should have an xkcd rule for patent application (0)

meustrus (1588597) | about a year ago | (#43695013)

Why XKCD? Why not just a normal cartoon? Either you wanted to post a Slashdot meme but couldn't find any hot grits (you insensitive clod), or you're secretly Randall Munroe suggesting that everybody must hire you to describe their patents for them.

Re:should have an xkcd rule for patent application (2)

dgatwood (11270) | about a year ago | (#43696219)

Each application should be accompanied by an xkcd style cartoon (probably longer than 4 panels, but typically less than 30) describing the invention and why it's useful and novel. The typical format would be: this is the current situation; here's what we're adding that's new; here's some detail about our method. If the xkcd is terrible or opaque, that should be a red flag.

They would always be #927 [xkcd.com] .

Re:should have an xkcd rule for patent application (0)

Anonymous Coward | about a year ago | (#43699793)

They would always be #927 [xkcd.com] .

rofl

borked pdf link, or just for me? (4, Insightful)

girlinatrainingbra (2738457) | about a year ago | (#43694883)

The pdf link gets me to an error message page:
Error

Error

This page can't be displayed. Contact support for additional information. The incident ID is: 0.

on the court's web page. Is it just for me, or a bad link?

According to Groklaw, however, one of the judges said

``Let's be clear: if all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents,'' Moore wrote.

Let's hope that Judge Moore is right, and these patents and deemed ineligible for patenting at all.

Re:borked pdf link, or just for me? (5, Insightful)

JakeBurn (2731457) | about a year ago | (#43694999)

And I completely agree. Software should be treated like a recipes. People who put the time in to figure out how something is cooked can easily make a generic version. People still pay for the good versions of things because everything else that goes into the product is better.

Re:borked pdf link, or just for me? (0)

Anonymous Coward | about a year ago | (#43696981)

Judges are told at conferences ad nauseum that IP is the wave of the future and a cornerstone of American wealth, so they would be loath to eliminate so much wealth with the stroke of a pen. What they don't consider is the reduction in costs to everyone else would probably make up for it.

Good! (3, Funny)

Murdoch5 (1563847) | about a year ago | (#43694939)

Patents are the worlds most ridiculous form of protection ever invented. If your a company and you make a great product that it doesn't matter if someone comes to the market with the same product, if your product is better it will win out. Patents are "But Mom", of the business and technology world. Right now some companies are more focused on getting the patents to market then the product they protect. Patents destroy open development and open collaboration and take everything to a closed tangled web of lawyers and judges instead of the open work bench of weekend builders.

Re:Good! (5, Insightful)

leonardluen (211265) | about a year ago | (#43695029)

at least patents, unlike copyright, still have reasonable expiration dates.

Re: Good! (0)

Anonymous Coward | about a year ago | (#43696645)

How is twenty years for a software patent reasonable?

Re:Good! (1)

Anonymous Coward | about a year ago | (#43695057)

Those "weekend builders" are exactly who patents are meant to protect. If one of them spent a decade making The Next Big Thing and couldn't patent it, ConglomoCorp would instantly copy it and the "weekend builder" would be SOL.

Re:Good! (2)

greg1104 (461138) | about a year ago | (#43695437)

It costs a lot of money to get a patent and take someone to court for violating it. It isn't a game for a small business to play. The odds your small business will be sued into oblivion by a larger company asserting frivolous patents are far higher than the odds you'll sue one successfully.

Re:Good! (1)

Microlith (54737) | about a year ago | (#43697183)

Unless you're a patent troll shell company, and price the licensing fees well below that of actually pursuing the court case.

Re:Good! (1)

tibit (1762298) | about a year ago | (#43696083)

If you seriously think that the "weekend builders" win from patents, you're delusional [tinaja.com] .

Re:Good! (3, Interesting)

Monty845 (739787) | about a year ago | (#43695073)

Suppose I invest $1B in researching a new drug, getting it through FDA approval, and bringing it to market. Then you immediately offer a generic version that is exactly the same composition. Our drugs are functionally identical, there is no way I can offer a superior version because when it comes right down to it, the composition is what valuable, and its easily replicated. How will I make my $1B back when you can offer the drug at a price that never needs to pay back the research investment. Don't get me wrong, the patent system is seriously messed up, but there is a need for patents in some cases.

Re:Good! (2)

Murdoch5 (1563847) | about a year ago | (#43695111)

In some cases yes, I'll agree that if you have 1B dollar investment.

Re: Good! (4, Interesting)

msparker (449164) | about a year ago | (#43695245)

This is, of course, one of the main arguments for protection against copying, but on the other hand, the fashion industry does not have this kind of protection and there is a lot of innovation there. It is argued that this innovation is in large part a result of the lack of copy protection. The high end must have something new to sell after they are copied. Also, this copying frequently involves some degree of change itself.

Re: Good! (1)

Monty845 (739787) | about a year ago | (#43695325)

Right, but value in the fashion industry is more about style, aesthetic, and branding. Very little is about improved utility. People will pay 1000% more for a piece of clothing from a famous designer, but not 1000% more for a branded drug, or branded computer when there is a generic of equal quality and utility available.

Re: Good! (0)

Anonymous Coward | about a year ago | (#43695389)

"the fashion industry does not have this kind of protection"

Actually, they do, in the form of copyright and trademarks.

Re:Good! (1)

K. S. Kyosuke (729550) | about a year ago | (#43695351)

Suppose I invest $1B in researching a new drug, getting it through FDA approval, and bringing it to market. Then you immediately offer a generic version that is exactly the same composition.

What happens when two large companies invest $1B to research a new drug, get it through FDA approval, and bring it to market, only to discover that they're the same drug?

Re:Good! (1)

the eric conspiracy (20178) | about a year ago | (#43695555)

They would discover it when the patents are published, which happens before FDA approval.

Re:Good! (1)

MouseTheLuckyDog (2752443) | about a year ago | (#43695955)

Suppose I invest $1B in researching a new drug, getting it through FDA approval, and bringing it to market. Then you immediately offer a generic version that is exactly the same composition.

Except that "you" can't "immediately" offer a generic version. You still have toget all sorts of approval from the FDA.

Except that ... (0)

Anonymous Coward | about a year ago | (#43696933)

... they don't have to do any of the pre-work, just the paper work.

And because the compound formula was already approved, it will be approved quickly.

Are people really this ignorant about reality??

Re:Good! (1)

msauve (701917) | about a year ago | (#43696245)

You patent all the physical/chemical processes you can discover for making the drug, not the drug itself. e.g. You patent the Bessemer process, not the steel which results.

If you discover the most efficient method, then you have a competitive advantage.

Re:Good! (1)

Areyoukiddingme (1289470) | about a year ago | (#43696489)

If your drug is useful to people (and therefore they buy it) and it's profitable to manufacture (which is true by definition or you wouldn't have a generic competitor), you will eventually make your billion dollar investment back. It will just take longer than you might wish. There is no need for a patent system, broken or otherwise.

Re:Good! (1)

meustrus (1588597) | about a year ago | (#43695077)

...but without any patents, why would people invest money in inventing something that can be easily copied? Evilness aside, drug companies are really the best example for why patents must exist. It takes millions of dollars in research to discover and test a new drug, but the manufacturing cost is usually quite tiny. If a generic drug could come out immediately once you've proved the compound is useful and safe, what financial incentive do you have to spend money on that research in the first place? The original purpose of patents was also to promote public disclosure. Without patent protection, early computers would likely not have been sold but their computations would have been leased out so nobody could disassemble and recreate them. With patent protection, those computers could be sold off without losing the monopoly, and the invention is publicly described for other people to improve upon.

Clearly there needs to be room for the "weekend builders" and if they need to use something still patented (or are improving upon the design), that's when FRAND is supposed to come in. The real problem is that patents have become too broad and non-specific, and often patents are granted for inventions that were already patented by someone else. In these cases it definitely has become legal business more than anything else, but just because there are several hundred patents on the Internet and another several hundred for every single little online thing that was actually invented in the 80's (as well as "doing X, but on the internet") doesn't mean the whole system is invalid.

Re:Good! (1)

micheas (231635) | about a year ago | (#43699461)

Although, it can be argued that patents cause the Medical industry to focus on drugs instead of preventative medicine.

If you have a drug that treats a condition at a cost of $100/month, and a profit of $40/month and the average usage is 10 years that treatment would generate an average of 48k profit per patient, and if the condition effects one million people a year you are looking at a predictable 4.8 billion a year in profit, with an expected profit of 96 billion during the period of patent protection and additional residual profits after the protection lapses. All that for an ante of about 45 million dollars. or an ROI of 200,000% over 25 years. (assuming that the approval process takes about 5 years, which is on the short, side but the 45 million is spread over 3 rounds of clinical trials).

While the numbers I pulled out were not based on any particular drug the are somewhat representative of the current drug development model in the US, with some anti psychotic and AIDS related drugs fetching over $1,000 a month per patient while identical generics are priced under $30 per month per patient.

The result of the current economic incentives of patented medicine has been a huge amount of research into drugs that people will have to pay for for as long as possible, with less investment into preventative measures.

The upside of this type of investment is that a lot of the failures in the hunt for a cure for aids have shown real promise for a treatment for cancer, and it has encouraged private investment in medicine.

The downside is that the potential financial upside of the treatment is considered very early in medical research.

The irony of the current situation is that it is in many ways a more extreme version of the worst case scenario painted by the critics of universal health care.

Not really about software patents (5, Interesting)

meustrus (1588597) | about a year ago | (#43694993)

It looks to me like the judges are finally deciding not against software patents in general, but patents of the type "doing X, but on a computer" or "doing X, but on a smartphone". The judgement is basically that you cannot patent something that's already patented, or is a natural law, or is an abstract concept not specific to any particular application, just because you describe it in an unusual way or put it in a new context, i.e. "turning a page, but on a touchscreen instead of an actual page" or in this particular case, "hedging risk, but by a computer algorithm instead of by bankers". Also not allowed would be "the browning of grain-based spongy material through local application of heat", also known as "making toast".

Thank God for Mobile! (0)

Anonymous Coward | about a year ago | (#43695253)

that merely adding an 'on a computer'-like clause to an abstract algorithm does not make it patentable

Thank God for mobile devices! By adding 'on a mobile device' makes it patentable! And there's 'based on geolocation data' as a backup clause.

Pretty Vital Issue! (4, Insightful)

MarkvW (1037596) | about a year ago | (#43695359)

Robotic manufacture is going to go crazy in the next decade and it's going to change everything.

Software is needed to make that shit work. If software patents can make (profitable) roadblocks to 3d implementation, then robotic manufacture is going to go someplace besides the USA.

This is so obvious that even the Supreme Court is going to see it. (Congress might need some 'lobbying' to understand it, though.)

Re:Pretty Vital Issue! (1)

tlhIngan (30335) | about a year ago | (#43700413)

Robotic manufacture is going to go crazy in the next decade and it's going to change everything.

Software is needed to make that shit work. If software patents can make (profitable) roadblocks to 3d implementation, then robotic manufacture is going to go someplace besides the USA.

This is so obvious that even the Supreme Court is going to see it. (Congress might need some 'lobbying' to understand it, though.)

Where do you draw the line, though?

If I make a robot that's completely controlled by software so that the only thing mechanical I have are motors and sensors, that means I can only patent whatever's in that heap of metal? If I come up with a clever way of doing something like being able to get precision out of imprecise hardware, it's not patentable? Whereas, if I stuck that software inside a hardware implementation (software runs on hardware - I can make fixed hardware do the same thing), I can now patent it?

That's the tricky part. It means the cheap hardware and doing everything in software solution will lose out to the expensive hardware because the latter can contain patents, but the former will have very little actually patentable, because it's all software.

Or consider something like a software defined radio. Very little hardware, and beyond the basics, everything's in software. But if I invent a clever way of using the radio waves, if I do it in hardware, I can patent the crap out of it, but if I use an SDR, I can't?

The main problem with software patents is software is nebulous. There is nothing like it before. Before the computer age, we had "stuff" you could patent, and "creative works" which you copyrighted. But now software bridges the two - is it a create work because it's written, or is it "stuff" because it's a fundamental part of whatever machinery it controls? Nevermind RTL software written and compiled to ASICs and FPGAs.

Software has basically ended up taking two normally incompatible things (you don't patent books, like you don't copyright machinery) and fused them together. Your clever machinery depends on software for part of its operation - together it's interesting, separately, it's a hunk of metal and writing and both are useless apart.

Nevermind software generating software - is the output of such copyrightable? What if software generated a book? What if the inputs to the software are under other copyright?

In fact, what might end up happening is a merging of the two - special protections for software only that combine parts of copyrights (the code itself, and any output it generates), and patents (when embedded with hardware to perform a novel task), thus sidestepping the whole issue entirely - software cannot be patented or copyrighted, but it falls under software based IP.

Software is just not of patent able subject matter (1)

3seas (184403) | about a year ago | (#43695415)

Re:Software is just not of patent able subject mat (1)

3seas (184403) | about a year ago | (#43695473)

Hmmm, Slashdot seems to have had a glitch in posting....The above post I believed did not go through.... Maybe the glitch is patentable?

Software is not of patent able subject matter (1)

3seas (184403) | about a year ago | (#43695447)

when software can be understood in terms of what is not patentable then software will no longer be patented.
http://abstractionphysics.net/pmwiki/index.php [abstractionphysics.net]

One of two things can happen; (0)

Anonymous Coward | about a year ago | (#43696579)

One of two things can happen here: either sanity with a big ginormous stick is inflicted on the world of software patents, with sanity being beaten into the increasingly dodgy and sick software patent world, where 9 out of 10 (or even better) 10 out of 10 software patents are stricken from the world like syphilis from the body, OR the big time patent trolls start calling their local neighborhood elected public 'paid' officials (Hello Orin Hatch, wherever you are!), and legislative branch starts to 'lean on' the judicial branch, and if that fails the 'corporate branch', starts to lean on the 'La Casa Nostra' branch which then 'takes care of' the judicial branch. In one outcome, we get sanity returning to the world, stupidity leaving the world and have a brighter future. In the other outcome, the world sickens, greedy Mandarins and plutocrats continue to devise greater and more evil ways to strip public liberties in the name of profit, and the world cries. So there you have it.

this can only be good (0)

Anonymous Coward | about a year ago | (#43697841)

it means all the current patents for ideas made years / decades ago but appended with "on a mobile device" can be brought into question and eliminated as well

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