Beta
×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

Judges Debate Patents and If New Software Makes a Computer a "New Machine"

samzenpus posted about a year and a half ago | from the computer-transubstantiation dept.

The Courts 247

First time accepted submitter ectoman writes "A third party steps into a financial transaction to make sure all parties exchange funds at the same time and as expected. Can you patent this process? What if the third party is a computer? Rob Tiller, vice president and general counsel for Red Hat, details a recent court ruling on this very matter—one that has critical implications for the future of software patents, and one that divided the judges involved. Tiller writes that: 'The judges mostly agreed that the idea of managing settlement risk with a third party was abstract such that by itself it could not be patented. They differed, though, on whether using a general purpose computer for managing settlement risk meant that the patents avoided invalidity based on abstraction.' Interestingly, some judges suggested that a computer becomes a 'new machine' every time it loads different software."

Sorry! There are no comments related to the filter you selected.

Genius! (3, Interesting)

WillgasM (1646719) | about a year and a half ago | (#43776459)

1.Make it so that every time you load a new piece of software you invalidate the license of every other piece of software in an endless recursive loop.
2.????
3.Profit
4.goto 1

Re:Genius! (1)

Synerg1y (2169962) | about a year and a half ago | (#43776505)

The death knell of windows in 4 steps?

Re:Genius! (1)

Anonymous Coward | about a year and a half ago | (#43776551)

i often wonder when someone posts something so fucken stupid; are they a troll or are they really that fucken stupid.

Re:Genius! (-1, Troll)

Synerg1y (2169962) | about a year and a half ago | (#43776711)

You've obviously never dealt with MS enterprise licensing. Adding this layer is unfeasible in that licensing model. You're just a dumb ignorant kid who doesn't know shit. Posting as AC just amplifies that fact. Now... go ask your mom to make me a pb & j sandwich. Get to it!

Re:Genius! (1)

Jack9 (11421) | about a year and a half ago | (#43776769)

> Posting as AC just amplifies that fact

Not posting as AC doesn't change the fact that you're trolling. I award you no points.

Re:Genius! (1)

Synerg1y (2169962) | about a year and a half ago | (#43776909)

I'm just saying that a favorable ruling here would insta kill windows, especially on the business side of things where things are inter-dependent and integrated to a degree that sometimes involves licensing.

Then again this would be all but impossible to enforce as most software is not aware of the software around it. Thus a favorable ruling here is highly improbable. It does seem like what they're getting at is the whole abstract software patent argument, which labeling computers as new machines per software program is just not a viable solution for.

Re:Genius! (1)

Runaway1956 (1322357) | about a year and a half ago | (#43777017)

Let's suppose that loading a machine with a different set of softwares actually did "create" a new machine.

In that case, each new implementation would be the user's creation. That's right - it's the end user's unique creation, not that of some programmer halfway around the world who coded the individual program.

Or, if not the end user (in a corporate setting) then it would be the creation of the corporation's IT department. Copyrightable and patentable, I would guess. Set the machine up to your very precise specifications, register your creation, and NO ONE can use that same setup unless they license it from you!

Or, we could all fall back twenty and punt, with the admission that this "new machine" business is absurd.

Re:Genius! (1)

Synerg1y (2169962) | about a year and a half ago | (#43777099)

So... when I get exchange 2010 running on windows server 2008 r2 I'd be able to patent that? Holy shit would I be rich!

I totally acknowledge that there is a huge gaping hole in our hundred year old patent system in regards to software, which was inconceivable at the time of the patent system's implementation, but even if we did this moving forward (ignoring trillions in existing assets we'd just leave alone)... it just doesn't really make sense does it?

What about the LAMP stack? Would I be able to patent getting it running on windows? :P

What does make sense is judges talking about computers with the skills to check their email on that thingamajig with the blue E letter, and not having a clue.

Re:Genius! (0)

Anonymous Coward | about a year and a half ago | (#43776731)

That's odd, because when I see someone write "fucken" I can't help but wonder the exact same thing.

Re:Genius! (0)

Anonymous Coward | about a year and a half ago | (#43776995)

i often wonder when someone posts something so fucken stupid; are they a troll or are they really that fucken stupid.

Come on down to Hank's, where, for a limited time only, you can try our unique dish comprised of a chicken stuffed with a duck stuffed with a finch. We call it the "fucken". It's sure to set your taste buds a-cluckin' when you taste our brand new fucken. Order today and get a free side of fucken fries.

Re:Genius! (0)

Anonymous Coward | about a year and a half ago | (#43776553)

The Microsoft Marketing Department's collective wet dream in 4 steps, more like.

Re:Genius! (0)

Anonymous Coward | about a year and a half ago | (#43776747)

This "is it a new one now?" business is not at all unique to computers. The problem applies to basically everything humans encounter, since a "thing" is usually a high-level abstraction of an arrangement of simpler parts.

If I swap out my engine, is it a new car? What if I just swap out a tire?

If I swap out a few of my neurons, am I a new person? What I swap out my whole brain?

How many grains of salt must I swap out before my heap of salt is a new heap of salt?

These questions are intended to be rhetorical. They demonstrate that when you group a bunch of separate things together and think of it as a single object, you have this problem.

Usually the resolution is arbitrary, and based on our commonsense intuitions about the essence of the definition. A human is much more a personality than it is a body, so swapping out a brain obviously makes you a new person whereas swapping out an arm does not (the problem remains unresolved for the swapping out of specific subsections of a brain). Similarly, a computer is much more a motherboard than it is anything else, so swapping THAT out gives you a new machine, but swapping out any other component (including the software) does not make it a new machine (IMO).

Re:Genius! (5, Insightful)

interval1066 (668936) | about a year and a half ago | (#43776855)

Since the purpose of a computer is to run programs, asking us to accept that a computer is a new computer everytime it runs a new program seems like a bit of a stretch, and leads me to believe that some judges still don't quite get computers.

Re:Genius! (0)

Anonymous Coward | about a year and a half ago | (#43777015)

Not a whole new machine, but it has new capabilities. Software isn't just a paint job, sometimes, for computers. In many ways software changes computers much more than the hardware. That is why we use them. That is something lost to us at times. You make a deal allowing someone to hull as much as their car holds (trunk). They come back with it modified to look like a poor-man's caballero (truck like car/file compression added to computer). Those are two different scenarios.

We of the nerd inclination tend to just accept this is true and base. Those who aren't entirely aware of what computers are, I suspect most of the RIAA/MPAA at times, don't. This question is a sign of progress and realization of what they are dealing with.

Re:Genius! (0)

Anonymous Coward | about a year and a half ago | (#43777041)

"Since the purpose of a computer is to run programs, asking us to accept that a computer is a new computer everytime it runs a new program seems like a bit of a stretch, and leads me to believe that some judges still don't quite get computers."

The purpose of a house is to house people, but if a new owner rearranges the walls a bit, they might get a visit from an official claiming that it's a new house and he didn't get a fucking permit.

Re:Genius! (0)

Anonymous Coward | about a year and a half ago | (#43777129)

The purpose of a house is to house people, but if a new owner rearranges the walls a bit, they might get a visit from an official claiming that it's a new house and he didn't get a fucking permit.

If the owner paints the walls and rearranges the furniture, however, he probably is in the clear, which seems a much more appropriate analogy. Or are all your computers comprised of reconfigurable FPGAs or the like?

Of course, right at the end of the post there you did let us all know you're an idiot, so perhaps no further clarification of the point will help your complete lack of understanding.

Re:Genius! (4, Insightful)

aaaaaaargh! (1150173) | about a year and a half ago | (#43776899)

Apparently Plutarch already knew this little puzzle called the ship of Theseus [wikipedia.org] problem.
I'm highly confident that some US judges will finally put those those annoying logicians and philosophers to rest and give us the ultimate correct solution.

Re:Genius! (2)

whoever57 (658626) | about a year and a half ago | (#43777087)

Yeas ago, I read of a lawsuit that posed this very question: it concerned who owned the original version of a race car (a Shelby Cobra, IIRC). One of the cars was modified and as part of the modifications, the part of the chassis that had the chassis number stamp (or plate) was discarded. Someone else retrieved the discarded piece of the chassis and built a car around it. Since the value of an original Cobra is much greater than the cost to build a replica, this would be a financially viable project. There were then 2 competing registrations for the "same" car at the DMV. As I recall, the car that was modified was judged to be the original and the registration of the other (the one build around the discarded piece of the chassis) was voided.

Re:Genius! (1)

Runaway1956 (1322357) | about a year and a half ago | (#43777143)

A ship changes with hardware changes, and with crew changes. Removing as few as one crew members can change the character of a ship drastically. Likewise, the addition of one or more crew members. You may change a lot of minor physical parts of the ship, and not notice any real change. But changing a major structural member is almost certain to change her handling characteristics. You cannot duplicate a ship's keel precisely, no matter how hard you try.

Automobiles are mass produced, and you might think that two identical cars coming off the same assembly line on the same day would be indistinguishable. But - try to find two identical cars whose handling and performance characteristics are identical. It's not likely to happen.

Re:Genius! (0)

Anonymous Coward | about a year and a half ago | (#43776895)

goto is not a recommended control structure.

The reason they are judges... (0)

TheBestMerlinEver (2927797) | about a year and a half ago | (#43776467)

Is that they do not have to understand the technical stuff. Patent Judges are the reason for the problem. If they were really qualified, they would not have a low-paying federal job.

Re:The reason they are judges... (4, Informative)

niado (1650369) | about a year and a half ago | (#43776503)

Is that they do not have to understand the technical stuff. Patent Judges are the reason for the problem. If they were really qualified, they would not have a low-paying federal job.

You are thinking of a Patent Examiner [wikipedia.org] , not a "judge". These are two very different governmental positions.

Re:The reason they are judges... (1)

ron_ivi (607351) | about a year and a half ago | (#43776521)

very different

So you're saying he should have changed the word 'low' to 'high'?

Re:The reason they are judges... (1)

Anonymous Coward | about a year and a half ago | (#43777071)

"You are thinking of a Patent Examiner [wikipedia.org], not a "judge". These are two very different governmental positions."

        A tourist wanders into a back-alley antique shop in San Francisco’s Chinatown. Picking through the objects on display he discovers a detailed, life-sized bronze sculpture of a rat. The sculpture is so interesting and unique that he picks it up and asks the shop owner what it costs.

        "Twelve dollars for the rat, sir," says the shop owner, "and a thousand dollars more for the story behind it."

        "You can keep the story, old man," he replies, "but I’ll take the rat."

        The transaction complete, the tourist leaves the store with the bronze rat under his arm. As he crosses the street in front of the store, two live rats emerge from a sewer drain and fall into step behind him. Nervously looking over his shoulder, he begins to walk faster, but every time he passes another sewer drain, more rats come out and follow him. By the time he’s walked two blocks, at least a hundred rats are at his heels, and people begin to point and shout. He walks even faster, and soon breaks into a trot as multitudes of rats swarm from sewers, basements, vacant lots, and abandoned cars. Rats by the thousands are at his heels, and as he sees the waterfront at the bottom of the hill, he panics and starts to run full tilt. No matter how fast he runs, the rats keep up, squealing hideously, now not just thousands but millions, so that by the time he comes rushing up to the water’s edge a trail of rats twelve city blocks long is behind him. Making a mighty leap, he jumps up onto a light post, grasping it with one arm while he hurls the bronze rat into San Francisco Bay with the other, as far as he can heave it. Pulling his legs up and clinging to the light post, he watches in amazement as the seething tide of rats surges over the breakwater into the sea, where they drown.

        Shaken and mumbling, he makes his way back to the antique shop.

        "Ah, so you’ve come back for the rest of the story," says the owner.

        "No," says the tourist, "I was wondering if you have a bronze judge.

The Human Condition ... (3, Insightful)

pollarda (632730) | about a year and a half ago | (#43776545)

What the judges need to understand is that fundamentally, people are general purpose machines. Without any training at all, people are not capable of solving many problems. However, people can solve all sorts of problems based on what you teach them. Sure, you aren't going to be able to get a bushman in the Serengeti to be able to build the Apollo but, the potential is there given enough training. If that same bushman were to go to school and eventually graduate from college, they would be just as capable as anybody else. So how is receiving training through college or a technical school any different than a computer receiving a new set of instructions on how to solve a particular problem?

Computers only run algorithms (which aren't supposed to be patentable). They follow a set of instructions step by step and can't do anything that you and I can't do with a pencil and piece of paper. (They just can do it a lot faster.)

Of course, the beauty of computers is that they only do what you tell them. When they don't do what you want, it is still your fault since you didn't provide the instructions you thought you did. ;-)

Re:The Human Condition ... (4, Informative)

Theaetetus (590071) | about a year and a half ago | (#43776729)

What the judges need to understand is that fundamentally, people are general purpose machines. Without any training at all, people are not capable of solving many problems. However, people can solve all sorts of problems based on what you teach them. Sure, you aren't going to be able to get a bushman in the Serengeti to be able to build the Apollo but, the potential is there given enough training. If that same bushman were to go to school and eventually graduate from college, they would be just as capable as anybody else. So how is receiving training through college or a technical school any different than a computer receiving a new set of instructions on how to solve a particular problem?

Computers only run algorithms (which aren't supposed to be patentable).

Except that 35 USC 101 explicitly says that processes are patentable, and a process is an algorithm. You have to go a bit deeper into understanding why the Supreme Court said that algorithms weren't patentable to understand the distinction. Specifically, they wanted to draw a line between thought and action: because one of the remedies for patent infringement is an injunction, you have to be able to order people to stop infringing. And while you can tell someone to stop performing the process for curing rubber, for example, you can't tell them to stop thinking of the equation for determining when to remove the rubber from the oven.

One way of drawing this line...

They follow a set of instructions step by step and can't do anything that you and I can't do with a pencil and piece of paper. (They just can do it a lot faster.)

... is to require that the claimed process has steps that you or I can't do with a pencil and piece of paper, no matter how slowly. So, for example, a patent claim of triangulating a position given three signals is not patentable, because we could do that on paper. But a patent claim that includes receiving those signals from a GPS satellite with an antenna [harvard.edu] is patentable. Think of it as a system - there's a black box that takes an input of some numbers and outputs some other numbers. You or I could do that as well as a computer (albeit slower), and it's unpatentable. But add on additional hardware that provides that input, or additional hardware that reacts to that output, and it's no longer something that we can do solely in our heads or on paper - you now need to perform an action of getting signals from something else, or closing a switch elsewhere, or whatnot. And so that's patentable, and you can be ordered not to take those physical steps that would infringe.

Re:The Human Condition ... (3, Interesting)

Arker (91948) | about a year and a half ago | (#43776783)

"So, for example, a patent claim of triangulating a position given three signals is not patentable, because we could do that on paper. But a patent claim that includes receiving those signals from a GPS satellite with an antenna is patentable. "

Which just shows the absurdity of the patent regime. Your argument that a human being could not do that is worse than wrong, it's entirely ignorant. There is no way to triangulate signals without having an antenna involved, and the type of antenna is a purely functional choice based on the situation. Absolutely anything that a computer can do, a person can do. I/O devices? All the computer does with them is send and receive numbers - just exactly the same way a human computer would send and receive numbers appropriately in the same situation.

Re:The Human Condition ... (0)

Theaetetus (590071) | about a year and a half ago | (#43776941)

"So, for example, a patent claim of triangulating a position given three signals is not patentable, because we could do that on paper. But a patent claim that includes receiving those signals from a GPS satellite with an antenna is patentable. "

Which just shows the absurdity of the patent regime. Your argument that a human being could not do that is worse than wrong, it's entirely ignorant. There is no way to triangulate signals without having an antenna involved, and the type of antenna is a purely functional choice based on the situation. Absolutely anything that a computer can do, a person can do.

Yes, that is entirely ignorant of you: you acknowledge that you need a physical antenna to triangulate a signal, but then suggest that a person can do it without using any hardware. You're being inconsistent.

Allow me to help, since the prior post went over your head:
A person or a computer can perform calculations on input values and output processed values.
A person cannot necessarily receive those values directly regardless of form: people don't have antennas, don't have A/D converters, don't have signal amplifiers, etc. Similarly, while a person can output a set of values, without some additional hardware, a person cannot transmit a packet, close a switch, render a frame on a display, etc. That's the distinction - just performing calculations isn't patentable; doing something with them or doing something to get them is.

Re:The Human Condition ... (1)

Runaway1956 (1322357) | about a year and a half ago | (#43777081)

The input/output from the antenna is patentable, and presumably it was patented. The bus that transfers the i/o from the antenna to the processor is patentable, and again, it was patented.

The software that manipulates those i/o numbers is the algorithm under discussion - and should not be patentable.

Re:The Human Condition ... (1)

Anonymous Coward | about a year and a half ago | (#43776755)

They follow a set of instructions step by step and can't do anything that you and I can't do with a pencil and piece of paper. (They just can do it a lot faster.)

Sometimes speed matters.

For instance, you can't do calculations fast enough to decode an audio signal. And the calculations need to be done in real-time to reproduce audible sound waves.

Similarly there are things that a computer does quickly enough that a human could not finish within her lifetime. For example, a computer can copy a 1GB file in a relatively short time period. Assuming a human can enter 2 bits per second (somewhat unlikely, especially over a prolonged time period), it would take a human more than 126 years to write the same file.

Your comment is like saying that a human can go anywhere that a boat can go because she can swim, only that she'll just do it slower. That statement is true and yet, if a human were to attempt to swim across an ocean or relatively large sea, they'd certainly drown.

Re:The reason they are judges... (4, Insightful)

Anonymous Coward | about a year and a half ago | (#43776579)

They are, of course, right. An algorithm is conceptually the same as a description of a machine for executing that algorithm, whether you draw logic gates to execute your algorithm, or solder together transistors, or write Python.

As a mathematician working on algorithms right now, I say they are right.

However.

Algorithms shouldn't be patentable, no matter how they are represented. But that's a political decision, not a technical one.

Re:The reason they are judges... (0)

Anonymous Coward | about a year and a half ago | (#43776709)

But that's a political decision, not a technical one.

I think this is the important thing many people miss in this discussion - there is no technical reason why a novel "software defined radio" should be unpatentable when you could burn the logic into a chip and have a novel "hardware radio chip," that would be patentable. Flip the complaints about how "on a computer magically makes something a new patent" on its head, and ask yourself: why should "on a computer" magically make something *UN*-patentable?

These are political and legal decisions, not technical. And no amount of technical wrangling can change the fact that just about anything you can do in a piece of software can be burned into a physical chip, which WOULD be subject to patenting. Making the decision to say "there must be purpose-built hardware for executing the software instructions for it to patentable," but that's a political distinction, not a technical one - as you've correctly noted.

wow (3, Funny)

Anonymous Coward | about a year and a half ago | (#43776483)

If we can slap 'on a computer' onto an old idea to patent it, can we slap on another 'on a computer' to patent it for virtual machines?

Re: wow (1)

Redmancometh (2676319) | about a year and a half ago | (#43776549)

Writing up a patent now...

Re: wow (0)

Anonymous Coward | about a year and a half ago | (#43776601)

Only one? You're missing something.

Re:wow (1)

lister king of smeg (2481612) | about a year and a half ago | (#43776575)

and on a mobile device, then on a virtual machine on a mobile device, then on the internet, then in the cloud(public cloud privet and hybrid) i wonder if we could modify the corporate buzzword bullshit generator to file patents applications... (this idea is patent pending)

I dunno (5, Funny)

marcello_dl (667940) | about a year and a half ago | (#43776485)

As much as I hate trivial patents in any field, I must admit that when I wipe windows off a pc and put debian on it, it sure feels like a new machine...

Re:I dunno (2)

Mike Frett (2811077) | about a year and a half ago | (#43776715)

haha yeah I know what you mean. Always thinking you need to defrag, clean out temp files etc to gain more speed because something didn't 'feel right'. Wiped Windows, Installed Xubuntu, realized absolutely nothing was wrong with my Computer except Windows. Makes me wonder if that's why some people buy a new machine, because of the dreaded Windows degrading performance over time. Well, that and along with having to run software they won't update anymore, AKA Forced Upgrade.

After almost a year of extremely heavy use in Linux, It's just as fast as the day I Installed it. Now that's real innovation. As far as fragmentation in Linux? Old timers were right, e4defrag reports that absolutely nothing is fragmented. And no, new Software doesn't make a Computer new since the Software totally relies on the Hardware. But when you change out all your components for new goodies and smell that new scent, that's what makes a Computer New.

Re:I dunno (0)

Anonymous Coward | about a year and a half ago | (#43776759)

Rated funny, but think about it.
We have individuals that never see the hardware, but they interact with the "machine". When the software is different, does something else, or the same thing but differently, enough that the enduser can observe the difference, they can safely assume, they're interacting with another machine.

Re:I dunno (0)

Anonymous Coward | about a year and a half ago | (#43777107)

At the height of a political corruption trial, the prosecuting attorney attacked a witness. "Isn't it true," he bellowed, "that you accepted five thousand dollars to compromise this case?"

The witness stared out the window, as though he hadn't heard the question.

"Isn't it true that you accepted five thousand dollars to compromise this case?" the lawyer repeated.

The witness still did not respond.

Finally, the judge leaned over and said, "Sir, please answer the question."

"Oh," the startled witness said, "I thought he was talking to you."

Computers becoming *new machines* not unique... (5, Insightful)

Anonymous Coward | about a year and a half ago | (#43776495)

The computer is a new machine many times every picosecond as the data in the registers change, the data in ram changes, the data on the hard drive changes, the data flowing through network interfaces changes, etc...

Since the computer is *new* billions, if not trillions of times a second, then software doesn't make it unique.

Yet again, the clueless making decisions on things they cannot comprehend.

Hyperbole much? (1)

condition-label-red (657497) | about a year and a half ago | (#43776843)

Since the computer is *new* billions, if not trillions of times a second, then software doesn't make it unique.

billions a second == 1e9 per second == 1GHz

trillions a second == 1e12 per second = 1THz

I am pretty sure there are NO general purpose computers operating at anywhere near 1THz.

Re:Hyperbole much? (1)

Anonymous Coward | about a year and a half ago | (#43776901)

I am pretty sure there are NO general purpose computers operating at anywhere near 1THz.

Actually, many many things change in a CPU every cycle. So for each 'unique instance' during that clock cycle the machine is 'new' by GP's definition.

Re:Computers becoming *new machines* not unique... (0)

Anonymous Coward | about a year and a half ago | (#43776863)

The software very much makes it unique. You can have the same data in the registers, the same data in RAM, but if one bit in flash is different then you have a unique system through the every step of the execution path. I don't know what definition of "unique" you use, but I guarantee that the no one else in the world has a Galaxy S3 that's in the same state as my GS3. You can argue over whether or not that uniqueness has any inherent value, but stating it's not unique just makes you look as unfamiliar with the subject as you claim the "clueless" are.

Re:Computers becoming *new machines* not unique... (1)

Livius (318358) | about a year and a half ago | (#43776897)

The human brain changes the same way, at a rate of probably thousands of time a second.

If that mattered, think how it would affect things like acceptance of a contract or even criminal intent.

It has to, for the good of the industry (0)

Anonymous Coward | about a year and a half ago | (#43776497)

The other side of this issue is the argument that the only way to change a computer is to add hardware instructions, since all software is just combinations of add, jmp, xor, etc, and therefore nothing about computers is really patentable except perhaps the instruction sets or implementations thereof. I only pretend to understand it myself, but I believe the argument has been split into an all or nothing camp, where on one side no software is patentable, and on the other 'chmod +x foo.sh' is patentable for any unique foo.sh.

It's all messed up and the answer will be whatever is most easily passed off as sanity without disrupting the current system.

Re:It has to, for the good of the industry (1)

StillNeedMoreCoffee (123989) | about a year and a half ago | (#43776563)

Micro code my friend.

Re:It has to, for the good of the industry (1)

Anonymous Coward | about a year and a half ago | (#43776669)

The other side of this issue is the argument that the only way to change a computer is to add hardware instructions, since all software is just combinations of add, jmp, xor, etc, and therefore nothing about computers is really patentable except perhaps the instruction sets or implementations thereof.

I'm intrigued by that etc operator. Does it do what I want?

general purpose computer (1)

Anonymous Coward | about a year and a half ago | (#43776507)

This may be a step in the right direction, give it a few more casses and they will understand the idea of the general purpose computer and why people like us have a problem with software that prevents one particular purpose.

new finite-state machine (1)

optikos (1187213) | about a year and a half ago | (#43776517)

Loading a new netmask into an FPGA or loading new imperative instructions into a machine-code processor effectively makes it a new finite-state machine.

Re:new finite-state machine (1)

optikos (1187213) | about a year and a half ago | (#43776537)

brain-fart: I mean NETLIST above, not netmask. God, I hate getting old. :-)

Re:new finite-state machine (2)

KreAture (105311) | about a year and a half ago | (#43776821)

But, does teaching your secretary a new way of taking notes make her a new secretary?
If so, does she have a new 3 month probation?

Re:new finite-state machine (1)

optikos (1187213) | about a year and a half ago | (#43777079)

Does teaching an administrative assistant a sufficiently-different shorthand script (or stenotype chorded keyboard) enable her to write in a different set of regular expressions that may be nonisomorphic to the original set of regular-expression shorthand-script?

Re:new finite-state machine (1)

Cosgrach (1737088) | about a year and a half ago | (#43777125)

I have nothing to do with you getting old.

Only "new" as in "different-- (0)

Anonymous Coward | about a year and a half ago | (#43776519)

--in regard to the software it is running. In terms of hardware, it is the same machine.

"How" different is also the question--just how much of a software change are we talking of here? One application, or the entire operating system (and everything else)?
Changing one app does not make the computer a new machine. Changing the operating system could be considered as such. But then again, what if the MAC address doesn't change, or its IP address, or its Intranet designation on a LAN?

If we're talking about just a single app, is the change in the app a version change, or is it a licensing change? Different license could mean different "machine" in some contexts, but not in others, depending on how the ones doing the licensing decide to view it.

Honestly, I don't think the machine should matter, only the license/registration for the app. But try telling that to Windows if you make some major hardware changes in your own machine.

This seems like a chicken or the egg thing.

Another reason software patents need to go--none of it really makes any sense.

It does (4, Interesting)

Anonymous Coward | about a year and a half ago | (#43776523)

I know I'll be flamed for this because everyone here is against software patents, but...

The distinction between a physical machine and a physical machine running software is somewhat pointless. Almost any software can be converted into a physical machine. Using a hardware H.264 encoder/decoder or a hardware crypto card is really no different from doing those things in software. If you want to make a distinction between physical objects and software for patent purposes, the logic part of computers needs to be considered software despite the fact that it's been manifested as a physical object. But general purpose computers running software aren't any different than purpose-built computers executing the same logic in hardware.

Re:It does (0)

Anonymous Coward | about a year and a half ago | (#43776555)

"Almost any software can be converted into a physical machine"

I think you maybe meant "virtual" machine?

Re:It does (1)

Anonymous Coward | about a year and a half ago | (#43776607)

No, it was correct as originally worded by AC: Given enough logic gates, almost any software (i.e., especially any algorithm & surrounding app-domain context small enough to fit into a patent-application teaching & claims) can be implemented in an ASIC, then etched as lithography onto a silicon die.

Re:It does (1)

Anonymous Coward | about a year and a half ago | (#43776623)

Uh, no, he meant "physical machine," as in - a physical circuit board, with all of the software logic burned right into the circuitry.

Allow me to introduce you to the wonders of FPGAs [wikipedia.org] and their close relatives, my ignorant friend.

Next time, try not to be so smug in offering corrections. There's lots of people in this world who are - evidently - much smarter than you.

FPGA is borderline. (0)

Anonymous Coward | about a year and a half ago | (#43776785)

Mathematics has the concepts of tables - and loading a table (the net list) is what programs the FPGA. Now since the F is for Field, which means the net list is written to the device (ie it is a "fixed tangible media") and thus a copyright feature, not a machine feature.

Though I can see it either way, I lean toward it being "copyright" rather than "patent", after all, the "GA" part is designed to process any loaded netlist. The "FP" part is re-programmable - (there is a reason it is called "programmable", it is part of mathematics).

A PGA on the other hand, you write it, true - but it burns out fuses and permanently changes the wiring. In this case I lean more toward a hardware patent (though it is still called "programmable"...) And the gate array is designed to support ANY loaded netlist. Discovering the proper netlist is mathematics...

Re:It does (5, Funny)

ebno-10db (1459097) | about a year and a half ago | (#43776671)

"Almost any software can be converted into a physical machine"

I think you maybe meant "virtual" machine?

The OP was right. As Archimedes said, give me enough gates and a big enough power supply and I can implement anything in hardware.

Re:It does (0)

Anonymous Coward | about a year and a half ago | (#43776727)

"Almost any software can be converted into a physical machine"

I think you maybe meant "virtual" machine?

No: the GP means physical machine. In the end, all software consists of logical operators, and those operators can be built in hardware (for example in lego [ikaruga.co.uk] ).

"Virtual machine" would make no sense in the context of the GP: the distinction between hardware and software is (in a sense) arbitrary - we knew that already, hence "firmware" which has properties of both software and hardware. The reasoning of the GP could not only be used in favour of software patents, but also against all (including hardware) patents.

Re:It does (0)

Anonymous Coward | about a year and a half ago | (#43776923)

No, I didn't. If you can implement something in C, you can implement it in an HDL and have it reified in silicon. That's not a virtual machine, that's an actual machine.

The fact that HDLs allow you to write machines in code makes the distinction between software and machine absurd. Logic that is executed should be conceptually the same whether it's executed from memory by a general purpose computer or by specialized circuits. It's all the same logic and should be treated identically by the patent system.

The patent system needs to come to grips with the fact that physical vs virtual is a useless distinction and that other more meaningful distinctions must be created.

Re:It does (2)

ebno-10db (1459097) | about a year and a half ago | (#43776701)

The distinction between a physical machine and a physical machine running software is somewhat pointless.

That may be, but about the only thing can make a computer running program X novel enough to patent is the algorithms implemented by X. Hence you are essentially patenting an algorithm, which is not supposed to be allowed.

Damn. Is this why they make engineers take Intro to Philosophy courses? What about a Platonic ideal of a computer?

Re:It does (0)

Anonymous Coward | about a year and a half ago | (#43776735)

Wrong! Putting logic in hardware is nothing like executing it in software. You need to go back to elementary electronics and start learning the basics.

Re:It does (1)

ebno-10db (1459097) | about a year and a half ago | (#43776817)

Wrong! Putting logic in hardware is nothing like executing it in software. You need to go back to elementary electronics and start learning the basics.

The OP didn't say putting logic in hardware is like executing it in software, he said it could be converted to hardware. If that's not supposed to be true, then I'm glad I apparently forget my elementary electronics, as I've taken signal processing software and converted it into something that does the same thing (only faster) in hardware.

Re:It does (1)

smartr (1035324) | about a year and a half ago | (#43777127)

The physical machines you are discussing sound like non-useful hardware processor optimizations. You could of course, design a math or video card co-processor highly optimized to do specific processes, but this is nothing that your general purpose Turing machine isn't capable of with more or less efficiency. Creating a gigantic logic board to do just a specific process isn't really all that practical, as anything that was made for practical processor design would just use a general processor or a type of processor focused on a specific area like video processing. A new jet engine or generator has no purpose in software, and would in fact only exist as conceptual representations of patentable machine at hand. If someone could patent the giant logic board, but not the underlying process, they'll have patented something that no one was going to buy in the first place.

Well, this can fix some problems (2)

stewsters (1406737) | about a year and a half ago | (#43776541)

As long as they run a different OS we can get around the patent? Time to add some ideas to the public domain.

Someone want to make a website that scrapes through software patents on http://www.google.com/patents [google.com] and adds ' on a linux based computer' to the end of them, and then reposts them as public domain?

Re:Well, this can fix some problems (1)

Intrepid imaginaut (1970940) | about a year and a half ago | (#43776573)

That would be nice but I think registering patents is a fairly costly process.

Re:Well, this can fix some problems (0)

Anonymous Coward | about a year and a half ago | (#43776641)

That would be nice but I think registering patents is a fairly costly process.

and patent examiners don't give a fuck about the public domain.

Re:Well, this can fix some problems (0)

Anonymous Coward | about a year and a half ago | (#43776681)

So instead of registering a patent create a webpage of prior art on linux. Then when your idea gets patented anyway you only need a small fortune to defend yourself from the patent trolls...

new? (1)

Redmancometh (2676319) | about a year and a half ago | (#43776557)

So if its "new" does it remove market depracation?

Computer (1)

the eric conspiracy (20178) | about a year and a half ago | (#43776591)

A new machine?

So my pencil becomes a new machine depending on what I do with it?

Ho boy imagine how many patents I'm going to have!

Re:Computer (1)

optikos (1187213) | about a year and a half ago | (#43776659)

Where is the software loaded within your pencil? Specifically, where did the pencil obtain a new finite-state machine loaded into its graphite?

Re:Computer (1)

Livius (318358) | about a year and a half ago | (#43776907)

Don't be silly.

It only becomes a new machine when you sharpen it.

software == machine (3, Interesting)

gnupun (752725) | about a year and a half ago | (#43776593)

The judges seem to echo what I posted on another slashdot post that software instructions and data structures create a machine -- very similar to an equivalent machine that could be created with off-the-shelf hardware, custom ASICs or FPGAs. Therefore software patents should enjoy same protection that hardware patents enjoy.

They are both the same in functionality and somewhat in implementation, only hardware is faster, more parallel but limited in functionality. Whereas software is slower, less parallel but has vastly more functionality than hardware.

Re:software == machine (0)

Anonymous Coward | about a year and a half ago | (#43776813)

Hardware should not deserve protection from patents.

The only things which are allowed to be patented are inventions which cannot be reversed engineered and is not obvious to someone skilled in the arts, and therefor are documented with a patent so that other people could build on the invention.

If an invention can be reversed engineered doesn't need this documentation, neither something that is obvious, i.e. if some duplicates the invention without reading the patent that means the patent is invalid (because the patent didn't need to be documentation),

Re:software == machine (0)

Anonymous Coward | about a year and a half ago | (#43776915)

Or, alternately, mathematics can define software instructions and data structures create a machine -- very similar to an equivalent machine that could be created with off-the-shelf hardware, custom ASICs or FPGAs, therefore hardware patents should enjoy the same protection that mathematics enjoys: to wit, patents should be abolished.

Re:software == machine (1)

excelsior_gr (969383) | about a year and a half ago | (#43776969)

For the exact same reason that you mentioned, however, another dude higher in the comments argues that even if the complete software is implemented in hardware, it's still an algorithm, and thus shouldn't be patentable. I guess it really is a political decision in the end.

Conflation of patent eligibility and novelty (4, Interesting)

Theaetetus (590071) | about a year and a half ago | (#43776645)

There are several requirements in the patent act, and they can be thought of as a set of thresholds that must be passed:

35 USC 101 requires that a claimed invention be directed to patent eligible subject matter: a process, machine, article of manufacture, or composition of matter (it also requires that the invention is useful). The courts have decided that these categories are very broad, but don't include "abstract ideas" (though that term is never defined), laws of nature, or natural phenomena.

If the claimed invention passes that low threshold for 101, 35 USC 102 requires that the invention must be new or novel. That's a higher bar, but not a huge one - if I'm the first person to make a red car and claim that in a patent application, that's new, even if blue cars existed.

If the claimed invention passes that threshold, then 35 USC 103 requires that the invention must be nonobvious. The red car is obvious if blue cars existed, even if no one has ever made a red car before.

So, for example, if some piece of software causes a computer to paint the screen in red paisley and that's never been done before, it's new... but it's obvious and still patent ineligible.

The problem is when these get confused or conflated into a single requirement, because obviousness and novelty require evidence, while subject matter eligibility does not. And so, you get cases like CLS or Bilski where the judges want to invalidate the patent because it's stupidly obvious, but they have no evidence on the record... so they declare it an abstract idea and invalid. In particular, here, the judges started carving out everything from the patent claim that made it non-abstract, declaring it irrelevant, until the only thing left was abstract. The outcome may be the right one, but it's for the wrong reason - it's like finding a murderer guilty because you hate his face. Maybe he was actually the murderer, but you're finding him guilty for the wrong reason.

Re:Conflation of patent eligibility and novelty (2)

optikos (1187213) | about a year and a half ago | (#43776771)

As a shape & color, red paisley would be a 14-year design patent, not a 20-year utility patent. The topic here is utility patents, which are for the "useful arts". Because they are outside the "useful arts", the recognizable shape & color in design patents are for trade-dress topics outside of what can be trademarked.

Re:Conflation of patent eligibility and novelty (2)

Theaetetus (590071) | about a year and a half ago | (#43776967)

As a shape & color, red paisley would be a 14-year design patent, not a 20-year utility patent. The topic here is utility patents, which are for the "useful arts". Because they are outside the "useful arts", the recognizable shape & color in design patents are for trade-dress topics outside of what can be trademarked.

Since I was citing and discussing the statutes involved, any reasonable person would assume that I was using an analogy to simplify the discussion, rather than discussing something unrelated having to do with design patents. And then there's you.

Now, would you like to go back and add something to the discussion, rather than just trying to be condescending and failing?

It's not difficult. (3, Interesting)

Impy the Impiuos Imp (442658) | about a year and a half ago | (#43776663)

At the same time, a group of four judges strongly disagreed on the significance of the computer limitation. Chief Judge Rader, writing for this group, said that "a computer programmed to perform a specific function is a new machine with individualized circuitry created and used by the operation of the software." Similarly Judge Moore wrote for this same group of four judges that "a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software," on the theory that software "effectively rewires a computer."

Someone needs to slap the cowards in Congress to clarify this w.r.t. a "general-purpose machine".

Merely shoving some algorithm that is done by hand onto a computer is nothing novel. This isn't to say a particularly clever and non-intuitive software implementation couldn't be patented. But just doing it in software is not novel; it is obvious.

Software is indeed a virtual -- and specialized -- machine -- that is the idea behind computers as "generel-purpose machines". But not in the legal sense driving patents: novel and non-obvious innovation.

I keep recommending these rules:

1. If it's already being done in the real world, doing it on a computer is not patentable per se.

2. Doing a simulation of a real-world item is similarly not patentable per se.

3. Doing something wirelessly formerly done over a network, or remotely formerly done locally, or on a lil' phone or tablet or tricorder, is also not patentable per se.

4. This is not to say particularly clever implementations (the "machine" part of "virtual machine") could not be patented.

There, follow those rules, cowardly Congress, and you protect patentable innovation while eviscerating a ton of current patent problems.

Reading this story makes me feel like a new man (3, Funny)

istartedi (132515) | about a year and a half ago | (#43776693)

Reading this story makes me feel like a new man. Those bills? You'll have to track down the old guy if you want them paid.

What? (2)

Murdoch5 (1563847) | about a year and a half ago | (#43776703)

I completely disagree that loading a computer with new software makes it a new machine. The machine "part" of the computer is the hardware not the software, the software is the operator. So reloading a computer with new software will change the operational purpose of the machine but not the machine itself. To put this another way, if I have a conveyor belt that just moves objects around, like a computer moves data around, then it doesn't matter who is operating the machine it will always be model xxy, I might change the operator many times in the life of the machine but that doesn't change the machine itself.

Now lets be clear that I'm not talking about a FPGA! In a FPGA if you "reload" the software you will change the machine because in essence the "software" for a FPGA is like the internal gear system, you can configure it in 1000 different ways to do different tasks. One day it can be a conveyor build and the next it will be a bottle cap remover. So before someone comes in here and blows a gasket at me, I fully accept the fact that a FPGA is very different then a Computer.

Re:What? (1)

ebno-10db (1459097) | about a year and a half ago | (#43776761)

In a FPGA if you "reload" the software you will change the machine ... One day it can be a conveyor build and the next it will be a bottle cap remover.

Guess you haven't tried the latest Xilinx design software - it turns everything into a brick.

Re:What? (1)

Murdoch5 (1563847) | about a year and a half ago | (#43776791)

Haha well I haven't used the "newest" release of the software, so fair. I'm currently running 13.0 of the suite.

Re:What? (1)

ebno-10db (1459097) | about a year and a half ago | (#43776893)

13.x is good. I couldn't even get 14.x to install. It almost made my computer into a brick.

Re:What? (1)

dgatwood (11270) | about a year and a half ago | (#43777141)

Now lets be clear that I'm not talking about a FPGA! In a FPGA if you "reload" the software you will change the machine because in essence the "software" for a FPGA is like the internal gear system, you can configure it in 1000 different ways to do different tasks. One day it can be a conveyor build and the next it will be a bottle cap remover. So before someone comes in here and blows a gasket at me, I fully accept the fact that a FPGA is very different then a Computer.

Ah, but an FPGA can be simulated in software. Therefore, if you reload the software in the simulator, you change the virtual machine. How is the fact that one is emulated and the other is physical relevant?

The way I look at it, software certainly adds a new state machine into the picture. Whether that qualifies as a machine for patent purposes is a separate question, and there are legitimate arguments on both sides, but whichever way you decide, an FPGA should play by the same rules as software.

Jacquard loom (2)

meerling (1487879) | about a year and a half ago | (#43776707)

So then, since the Jacquard loom used a different set of cards to 'program' each different cloth pattern, it qualifies for millions of separate patents.
We're talking about technology almost 300 years old. I'm thinking some of those judges are not only technically inept, but are in fact Luddites in black robes.

Re:Jacquard loom (1)

Theaetetus (590071) | about a year and a half ago | (#43777011)

So then, since the Jacquard loom used a different set of cards to 'program' each different cloth pattern, it qualifies for millions of separate patents.

No, because, after the first one, the others would likely be obvious in view of the first one. Nonobvious, however, is a separate requirement from whether something is drawn to patent eligible subject matter. And the judge's point here was that a programmed computer is a machine, and machines are patent eligible. They still have to be new and nonobvious and clearly described, but they're not immediately disqualified regardless of how new or nonobvious they are, the way pure software is.

We're talking about technology almost 300 years old. I'm thinking some of those judges are not only technically inept, but are in fact Luddites in black robes.

If you came up with a brand new technology, not even 300 ms old, that was just a series of mental steps - say, a method for calculating time travel coordinates, or the like - it could be the newest, most revolutionary technology in the world... and still not be eligible for a patent, because it's just mental steps. But a machine is different. Embody your brand new method in a machine, and it may be patent eligible. That's what the judge was trying to say.

It IS a new machine, but that's the wrong question (2)

raymorris (2726007) | about a year and a half ago | (#43776837)

A different program DOES make it a different machine, and I'll explain why that must be true. That's not enough to defend an overly general patent, though.

However, it seems to me that's the wrong question to ask in this case. It seems that someone wants to patent the concept of "a machine to do X" rather than patenting one SPECIFIC machine that does X. You can't patent "a machine to take people from place to place". You'd have to invent and patent some specific new transportation machine. So the patent would be invalid on that ground. The patentors claim that "a computer machine to do X" is specific enough to be patentable, and most people disagree - you've got to patent some specific new invention, and "on a computer" isn't new, or specific.

As to the question in the summary, ANY electronic machine* can be implemented is software, and any software machine can be easily rendered as a hardware
machine. Converting between hardware circuits and software instructions is a trivial bit of arithmetic, so the exact same machine can be flashed into memory and
and we'd call it software, or it can be flashed into a gate array and we'd cal it hardware. Therefore, if any electronic device is a device, a software device must also be a device. (Because the exact same functions can be flashed as hardware or software, it's still a device or not either way.)

Gate arrays show that one cannot really distinguish between hardware and software programs. With the original gate arrays, the factory would take some stock
electronic logic parts and add layers of metal to implement a specific product. This isn't much different from soldering components together. It's definitely hardware. The cool thing was, the metal connections would be added based on a precise written description of of how the device should behave - a PROGRAM. In the next generation, the parts started out with fused connections between ALL of the parts and the factory would blow most of the fuses, leaving only the desired connections. Again, the list of which 10,000 fuses to blow was generated from written code, code that is pretty much a software program, a software definition of the hardware. Still, hardware produced according to a software program. In the third generation, the CUSTOMER could blow or reset fuses to reconfigure the electronics in the field, "re-wiring" the hardware. That generation is the FPGA, field PROGRAMMABLE gate array. Hmm, the customer can load different programs, that sure sounds like software programs. Those software programs are implemented as physical connections, so that sure sounds like hardware. It's both software and hardware, showing that in the end, codes that define how a machine operates really are both hardware and software - they can be implemented as either or as both at the same time.

So yes, software can control the other parts of the machine to act differently, making it a different machine. But only specific, newly invented machines are supposed to be patentable, regardless of whether the newly invented machine is rendered as hardware or as software on any given day.

footnote - any electronic machine* (1)

raymorris (2726007) | about a year and a half ago | (#43776887)

I forgot my footnote. When I say "ANY electronic machine* can be implemented is software" that's provably true for a certain definition of "electronic machine".
Those who are very familiar with these concepts, like gnupun, might prefer that I be more specific, but the point is that it's strictly true for a huge class of electronic devices which are obviously machines, and obviously patentable.

Those machines can be rendered directly as relays, groups of transistors, or larger groups of transistors. When they are built as "larger groups of transistors", we call that a "Flash drive" and call it "software". It's still the same machine, doing the same mechanical steps, as it would be if it were built fewer transistors and more solder.

Re:It IS a new machine, but that's the wrong quest (1)

ebno-10db (1459097) | about a year and a half ago | (#43776961)

only specific, newly invented machines are supposed to be patentable

And if the machine is implemented in software, the only thing that makes it novel and different from a bazillion other machines with the same physical implementation is the algorithms. You're not supposed to be able to patent those. Logically this means that algorithms implemented in hardware logic are unpatentable, which is fine. They shouldn't be patentable. However algorithms are not the be all and end all of logic design, let alone electronics in general. You could still patent a new memory cell design for example.

Re:It IS a new machine, but that's the wrong quest (1)

Theaetetus (590071) | about a year and a half ago | (#43777053)

only specific, newly invented machines are supposed to be patentable

And if the machine is implemented in software, the only thing that makes it novel and different from a bazillion other machines with the same physical implementation is the algorithms. You're not supposed to be able to patent those.

Why not? And no, I'm not asking "which Supreme Court decision said that you can't patent algorithms," I'm asking why they said that. It's not an arbitrary rule - there was reasoning behind it, and it's the reasoning that you need to look at when determining whether a machine executing novel and nonobvious software is patentable or not, not the one sentence of dicta.

Sure (1)

macemoneta (154740) | about a year and a half ago | (#43776891)

Mandatory car analogy: New software makes a computer a new machine the same way switching from Exxon gas to Shell gas gives you a new car.

Re:Sure (1)

optikos (1187213) | about a year and a half ago | (#43776955)

At what point did the automobile obtain a revised finite-state machine by changing the brand of fuel (or even changing the formulation of gasoline for that matter)?
Conversely, the FPGA or imperative-machine-code processor obtains a replacement finite-state machine by loading a new netlist or instruction-sequence.

Where is the source code? (3, Interesting)

rollingcalf (605357) | about a year and a half ago | (#43777077)

If loading software turns a general-purpose computer into a new machine, the patent for that "new machine" should include all the internal details to make it work, particlularly the source code. Then if somebody else implements the same concept with different source code and different algorithms, they made a different machine so it's not infringing.

Implications, (1)

Pirulo (621010) | about a year and a half ago | (#43777083)

It means that a murderer, after "changing his mind", is no longer the same person.

  • 1. Commit murder
  • 2. Change your mind
  • 3. No longer guilty
Load More Comments
Slashdot Login

Need an Account?

Forgot your password?