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The Supreme Court Doesn't Understand Software

Soulskill posted about 4 months ago | from the software-is-a-series-of-tubes dept.

Software 263

An anonymous reader writes We had some good news yesterday when the U.S. Supreme Court invalidated a software patent for failing to turn an idea into an invention. Unfortunately, the justices weren't willing to make any broader statements about the patentability of basic software tools, so the patent fights will continue. Timothy B. Lee at Vox argues that this is because the Supreme Court does not understand software, and says we won't see significant reform until they do.

He says, "If a sequence of conventional mathematical operations isn't patentable, then no software should enjoy patent protection. For example, the 'data compression' patents that Justice Kennedy wants to preserve simply claim formulas for converting information from one digital format to another. If that's not a mathematical algorithm, nothing is. This is the fundamental confusion at the heart of America's software patent jurisprudence: many judges seem to believe that mathematical algorithms shouldn't be patented but that certain kinds of software should be patentable. ... If a patent claims a mathematical formula simple enough for a judge to understand how it works, she is likely to recognize that the patent claims a mathematical formula and invalidate it. But if the formula is too complex for her to understand, then she concludes that it's something more than a mathematical algorithm and uphold it."

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Please (-1)

Anonymous Coward | about 4 months ago | (#47284979)

It's much simpler. The invalidated patents belonged to a foreign entity. Guess whose patents are not going to be invalidated? America: Do as I say, don't do as I do.

Nothing to do with software (4, Insightful)

smitty_one_each (243267) | about 4 months ago | (#47284983)

Everything to do with money

Followed the law. if (false) then false (3, Interesting)

raymorris (2726007) | about 4 months ago | (#47285787)

The judgement reflects current law. The article uses the weasel word "if" to continue to promote the anti-patent lobby's favorite lie:

    "If a sequence of conventional mathematical operations isn't patentable,

Okay, if, but the first half is false. The idea that inventions based on math is simply a falsehood detained to confuse those who a) don't know any better and are too busy or two lazy to read the couple of paragraphs that is the actual law.

The law says what isn't patentable is "the laws of nature, including the laws of mathematics".

That laws of physics aren't patentable. Does that mean that any invention based on the laws of physics is unpatentable? Obviously not. An elevator is an application of the laws of physics. You can patent an elevator design. You can't patent gravity. PageRank is an invention that is an application of the laws of mathematics. You can patent PageRank. You can't patent the associative law of addition.

That's the law. Some people want to change the law, and that's fine. Current law is that you can't patent the fundamental natural laws of a science, and can patent an invention which makes use of the science.

Re:Followed the law. if (false) then false (1)

smitty_one_each (243267) | about 4 months ago | (#47285833)

The law was morphed to grow the litigation market.

Re:Nothing to do with software (1)

Motard (1553251) | about 4 months ago | (#47285891)

Unfortunately, it will be reduced to this, as it has over recent history.

Software = Money, or Software != Money.

A too often ignored, third option, is that "There should be money in software."

I've been around IT for a looong time, and it's been only recently that there's been a complete crowding out of the middle ground.

I think the big corporations - ones like IBM, Oracle and SAP started it. Even through the personal computer revolution, they kept pushing high priced enterprise solutions that were, as we all know, products that any of us could create.

Eventually, it came down to the point that 'we' did. GNU, Linux, Apache, etc.

And it eventually came down to one extreme versus the other.

Some very good products with relatively modest goals got squeezed right out of the picture.

A good example is Delphi. This arose from Turbo Pascal which was very popular amongst computer enthusiasts, even though it cost around $40-$50 (about the same as a game).

But when the holy war came, it was not on any side.

It was demonstrably better than VB, and leagues beyond anything the open source community had to offer - well, at least until the Free Pascal related Lazarus project was created. And even that tends to lag behind, despite some intriguing platform options.

So, it appears at first they thought that they needed to be an enterprise product - and that failed for a lack of soulless corporate sales weasels.

Then they decided to court the open source community with a stripped version called Kylix. But they found out rather quickly that this community didn't like stripped down anythings - and, in any case, wouldn't pay much, if anything for anything.

Now finally, it's been bought up by Embarcadero but has gone back to the enterprise style pricing (which probably means you can get it for nothing if you buy their database tools)

I really long for time when we could buy good tools for a reasonable price, Buying or using Turbo Pascal was never a career threatening proposition, but it's really the sort of middle road that's no longer available.

So, with all that said, I do think this SCOTUS decision, while going to far for some, and not far enough for others, is a good step in the right direction of common sense. As I understand it, they said that just because it's on a computer does not mean it's novel.

Re:Nothing to do with software (1)

Darinbob (1142669) | about 4 months ago | (#47286065)

Right, the patent system is about "is it an idea that can make lots of money". The only reason mathematical formulas and algorithms are not patentable is because someone saw fit to exclude them early on. The very fact that a business process can be patented means the system is broken, and even the SCOTUS should be able to understand that part.

Why not patent compression algorithm? (1, Insightful)

Pulzar (81031) | about 4 months ago | (#47284995)

If somebody comes up with a novel patent compression algorithm, why shouldn't they be able to patent it? I read the argument about math not being patentable, but I don't really understand why. A new data compression algorithm that is truly novel seems like it should deserve some protection so that the inventor can get rewarded for her work. No?

Re:Why not patent compression algorithm? (5, Insightful)

shanipribadi (1669414) | about 4 months ago | (#47285113)

The question should never have been "why shouldn't they be able to patent it", it should always be "why should they be able to patent it". The fact is that a patent is granted at the expense of the many for the benefit of the few, so there should always be a damn good reason for something to be granted as a patent.

Re:Why not patent compression algorithm? (1)

AxeTheMax (1163705) | about 4 months ago | (#47285247)

It's interesting that at the time I'm writing, the parent that asks 'why should they be able to patent it' is modded 0, while the grandparent that asks 'why should'nt they be able to patent it' is modded 5 insightful.

I have no mod points so I can comment only.

Re:Why not patent compression algorithm? (1)

rmdingler (1955220) | about 4 months ago | (#47285317)

It is the product of a human judging panel... +1 agree/-1 disagree system.

Unfortunate sometimes, but like Democracy, the fairest system presently at our disposal.

Re:Why not patent compression algorithm? (3, Informative)

galabar (518411) | about 4 months ago | (#47285507)

Patents are not granted for the benefit of a few. They are granted because: The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; Having said that, I agree that the question should be "why should they be able to patent it."

Re:Why not patent compression algorithm? (1)

gnupun (752725) | about 4 months ago | (#47285793)

"why should they be able to patent it."

Because if the can't, then they likely won't bother investing the time, energy and money needed to create the new compression algorithm. There's nothing for them except some temporary fame for being published in some scientific paper. As a result, humanity will have have to use the less efficient compression algorithm it already uses.

Re:Why not patent compression algorithm? (1)

symbolset (646467) | about 4 months ago | (#47285847)

Google seems to making great strides in "the progress of science and useful arts" of compression algorithms and giving the result away for free.

Re:Why not patent compression algorithm? (0)

speedplane (552872) | about 4 months ago | (#47285967)

Hardly free. I give up a good deal of privacy and I'm subjected to countless paid influence peddlers (i.e. advertisements) to receive the benefits that google "sells". Not saying that it isn't worth it, but it's certainly not free.

Re:Why not patent compression algorithm? (3, Informative)

zippthorne (748122) | about 4 months ago | (#47286105)

The point of patents isn't to reward them for inventing a new compression algorithm. They can do that by selling their compression software and keeping the algorithm secret (if they can keep it secret)

The point is to reward them for telling the world how it works, so others can, eventually, use the same algorithm in their own inventions, or learn about compression and create a better one (which they may or may not patent and then the rest of us benefit from that as well)

Re:Why not patent compression algorithm? (3, Interesting)

Spazmania (174582) | about 4 months ago | (#47285779)

Because a "data compression algorithm" is more than a mathematical equation. Indeed, outside the material scope of a computer it has no existence, except perhaps as a thought problem.

The idea of mechanically separating grain is not patentable but a machine which actually does so is. And that patent will cover any machine which works substantially the same way, which is to say follows the same process or algorithm. Do you follow the difference?

What SCOTUS said yesterday was that merely adding a computer to something already practiced in the public domain does not remove it from the public domain. It is not patentable. Not new. That should come as a big "duh" moment for anyone who thought otherwise. But the invention of something that didn't exist in a non-computer form and for which a computer is an essential component, well that is patentable. And the patent will cover any computer or other device running it.

Re:Why not patent compression algorithm? (1)

symbolset (646467) | about 4 months ago | (#47285969)

Sorry, no. All computer programs are math. Especially compression algorithms. They should not be entitled to patent protection. Most programs are exceptionally poor math, as well.

Re:Why not patent compression algorithm? (1)

pauljlucas (529435) | about 4 months ago | (#47286109)

As it was explained to me by a patent attorney, what is colloquially known as a "software patent" really isn't. Rather, it's a patent on the resulting machine that software transforms a general purpose machine (computer) into.

If I had a black box wherein you fed in paper tape encoding data on one end and different paper tape with the data compressed came out the other end (thus taking less tape), that would be a data compression machine. Certainly, if the black box had no software at all but was instead a bunch of gears and such, i.e., totally mechanical, you'd have to agree that the machine would be patentable.

But it's still the type of machine that's being patented (a data compression machine). The preferred embodiment as described in the patent is just one way to do it. Now if instead of gears you had a computer running software, well that doesn't change the functioning of the machine -- the tape output is the same for a given input. Therefore, the fact that a particular embodiment just might happen to use a computer and software rather than gears is irrelevant.

Re:Why not patent compression algorithm? (4, Insightful)

rolfwind (528248) | about 4 months ago | (#47285143)

Back in the day patents were put in the Constitution to advance the arts and sciences. Medieval guilds protected knowledge which held humanity/society back, so it was preferable to give limited government protection in exchange for opening up the knowledge (so the next generation can have at it, I guess).

Having patents for their own sake seems counterproductive in this regard, as a lot can be reverse engineered in the meantime.

In reality, everyone is told by legal not to look at previous patents ever, just in case they do infringe, it's not willful infringement.... patent portfolios protect the huge corps and the trolls, with very little in between, and the really lucrative stuff is kept proprietary anyway.

So it leads one to ask, while wasting time writing patents apps, what is the patent scheme good for really and is it beneficial for society?

Re:Why not patent compression algorithm? (1)

Anonymous Coward | about 4 months ago | (#47285193)

a patent compression algorithm?

Re:Why not patent compression algorithm? (1)

Ihlosi (895663) | about 4 months ago | (#47285211)

I read the argument about math not being patentable, but I don't really understand why.

Because, at the root, patents protect concrete implementations, not a sequence of process steps.

Part of the art of making a patent is figuring out how to word the claims so that copying the process becomes impossible or pointless.

Re:Why not patent compression algorithm? (0)

Anonymous Coward | about 4 months ago | (#47285649)

Well that's just not true. Business process patents have been a part of the US patent system from the very beginning:
http://en.wikipedia.org/wiki/Business_method_patent

Re:Why not patent compression algorithm? (1)

symbolset (646467) | about 4 months ago | (#47286001)

This was always a mistake.

Re:Why not patent compression algorithm? (1)

speedplane (552872) | about 4 months ago | (#47285987)

So then a concrete implementation of a mathematical formula would be patentable, no? Isn't that exactly what software is?

Re:Why not patent compression algorithm? (0)

Anonymous Coward | about 4 months ago | (#47285213)

It isn't always clear-cut when a script is an invention, an obvious application of well-known practices, or an implementation of a math formula.

Of course it is all data, but reducing it all down to this common denominator isn't useful. In fact, it serves only to obscure the differences that are apposite to the value of the application to us (this same observation applies to calling bitcoins, social security numbers, and mp3 files "just data" and hence deserving of regulation under identical laws).

I submit that reducing all software down to "mathematics" is similarly unhelpful. Programs are wildly different in their value to us, and in their novelty, despite the fact that they can all be thought of as sequential math formulas.

Let us not fall prey to the dicto simplicter fallacy.

Re:Why not patent compression algorithm? (1)

king neckbeard (1801738) | about 4 months ago | (#47285337)

Since you are throwing down the latin gauntlet, I'll have to formally lay down an argument old school.

For the purposes of patent law, all the things you just mentioned are indeed 'just data.' Whether they are 'just data' in other legal contexts is a different issue, although there may be very similar overlaps. Precisely, the legally relevant meaning of 'just data' is that no part of software is not data, no part of data is not math, and that if there is no part of an invention that is not math, it is not patent eligible subject matter.

Re:Why not patent compression algorithm? (0)

Anonymous Coward | about 4 months ago | (#47285935)

If the law already stipulates that software is "just data," then that settles that. However, my contention is that the law should not define software as "just data" any more than it should define buildings, cars, and cell phones as "just construction materials" or people and animals as "just chemicals." The arrangement makes very different that which would otherwise be the same set of basic components.

judges don't understand much (1)

swschrad (312009) | about 4 months ago | (#47285265)

their presumed knowledge is limited to application of 87 US 1.d.23 and related precedents, for instance. they spend 7 to 8 years in university for that, and suck up to politicians for the rest. it is up to the lawyers on both sides to reduce a case to words of one syllable at a 5th grade level of reading to make complex systems understandable. judges' heads swim if you can't lead them through a nasty stew of undocumented code to a conclusion in less time than it takes to search Nexus-Lexus for prior rulings. just how it is.

Re:Why not patent compression algorithm? (1)

sribe (304414) | about 4 months ago | (#47285287)

I read the argument about math not being patentable, but I don't really understand why.

Because that's what the constitution says. Want software patents? Amend the constitution ;-)

Re:Why not patent compression algorithm? (1)

david_thornley (598059) | about 4 months ago | (#47285319)

Would you care to tell us where that is in "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to the respective Writings and Discoveries"?

Re:Why not patent compression algorithm? (1)

sribe (304414) | about 4 months ago | (#47285593)

Would you care to tell us where that is in "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to the respective Writings and Discoveries"?

DING! You are correct, the prohibition on patenting mathematical algorithms, laws of nature, etc, are not in the constitution. They are in the Patent Act. Sorry about the sloppiness.

Re:Why not patent compression algorithm? (1)

symbolset (646467) | about 4 months ago | (#47286049)

Indeed. Also overlooked, although the Constitution grants to Congress the power to declare wars and grant copyrights and patents, it in no way compels them to do so. They could just repeal the whole thing.

Re:Why not patent compression algorithm? (0)

Anonymous Coward | about 4 months ago | (#47285639)

I'll bite. It's in the part where they mention Science and the useful Arts as two separate things, then refer to their respective exclusive rights. Science covers abstract things like Math. The useful Arts [wikipedia.org] covers physical inventions. To protect the former, we secured the exclusive right to the Author's Writings with copyright; for the latter, we secured the exclusive right to the Inventor's Discoveries with patents.

To summarize:
Science, Authors, Writings -> Copyright
useful Arts, Inventors, Discoveries -> Patents

Since math is not a physical thing, it isn't a product of the useful Arts. Hence, it cannot be patented.

Re:Why not patent compression algorithm? (1)

Darinbob (1142669) | about 4 months ago | (#47286087)

Sofware -> copyright AND patents, especially if there's some profit to be made.

Re:Why not patent compression algorithm? (1)

Xicor (2738029) | about 4 months ago | (#47285323)

that isnt the issue. the issue is that right now pretty much anything in software is patentable... hardware has much more difficulty. one example is that apple patented swipe to unlock... which is an idea, not an actual invention.

you cant patent an idea, you have to patent the thing that the idea represents.

Re:Why not patent compression algorithm? (0)

Anonymous Coward | about 4 months ago | (#47285341)

No. As a mathematician, the idea that certain computations are illegal for me to perform strikes me as so wholly unpalatable, and I honestly can't imagine why anyone would think that's okay. Imagine you couldn't use the Pythagorean theorem to find the third side of a right triangle. Just because the math involved here is more advanced, doesn't make the idea any less ridiculous.

Re:Why not patent compression algorithm? (1)

Impy the Impiuos Imp (442658) | about 4 months ago | (#47285383)

Well, can you patent a gene? A ton of expensive investment and clever innovation could be involved to discover it, greater than many "normal" inventions.

You can't patent a molecule. Saying all software is algorithms and thus not patentable is like saying the Wright Brother's plane is a giant molecule and thus not patentable.

Re:Why not patent compression algorithm? (0)

Anonymous Coward | about 4 months ago | (#47285521)

I'd argue that you can patent the machines used to synthesise the gene, but not the gene itself.

Re:Why not patent compression algorithm? (1)

Darinbob (1142669) | about 4 months ago | (#47286095)

You can patent the method to obtain the gene ("add eye of newt after reaching a full boil"), but not the gene itself. Someone could discover another method of doing the same thing and use that. Often however what someone wants to do is isolate the gene and then modify it; the modification is new, but the isolation is a matter of either paying some money to license the existing method or inventing your own method.

Re:Why not patent compression algorithm? (5, Insightful)

Kat M. (2602097) | about 4 months ago | (#47285425)

The purpose of patents is not to reward inventors for being clever. A patent is an extremely powerful monopoly, against which even independent reinvention does not protect and is a privilege that in a free market economy should be granted with extreme reluctance, because of the negative effects monopolies can have on competition and economic freedom.

We have patents because in some fields inventors may be discouraged otherwise because the financial outlay for R&D is too high and it is too easy to duplicate the invention. Patents thus encourage inventors (or the people who bankroll them) by making the financial risk manageable; in exchange, the invention enters the public domain after a set period of time, so society benefits too. I.e., ideally we have a win-win situation where both the inventory and society benefit.

But when R&D does not require expensive labs, materials, or processes, that rationale disappears; instead, patents are likely to become the tools of rent-seeking and regulatory capture and impede progress rather than furthering it. And when independent reinvention is common –as is the case with computer science – society does not benefit from granting inventors such an extremely broad monopoly. The narrower monopoly of copyright is instead more suitable when it comes to protecting the genuine interests of software developers, because the costs associated with software projects are generally caused by sweat of the brow effort (especially when managing a large project), not the underlying novelty.

Re: Why not patent compression algorithm? (0)

Anonymous Coward | about 4 months ago | (#47285537)

Last time checked when you write a book you get it copyrighted. Why would writing software be any different? One is a series of words. One is a series of steps that need to be performed. What is the difference?

I'm not trolling. I really do not how software can be patented.

Re:Why not patent compression algorithm? (1)

meerling (1487879) | about 4 months ago | (#47285627)

It was decided when they set up the patent systems that since math is universal, no mathematical formulas or algorithms could be patented. No owning 2+2=4 or the far more complex mathematical proof of it either. Math and all it's variations belong to everyone, even if you don't understand it.

Patenting math was considered as ill advised as letting some lout wander into the forest, pick up a pretty leaf, and then patent leaves.
It still is, but some lawyers are really good at obfuscating what they are actually requesting patents for, so watch out for that patent troll sending you a bill for your vegetative violations of his lawful patents.

Re:Why not patent compression algorithm? (0)

Anonymous Coward | about 4 months ago | (#47285669)

Because algorithms are the building blocks needed to make real world systems. Especially when it comes to data formats, which frequently require things like compression, you don't even get to chose what blocks you want to use.

The patent on S3 texture compression, for example, has caused problems for open source graphics drivers for more than a decade.

Re:Why not patent compression algorithm? (1)

vux984 (928602) | about 4 months ago | (#47285889)

I read the argument about math not being patentable, but I don't really understand why.

Facts aren't patentable. Everything in math is either a fact (or unprovable axiom which is taken as fact) or is a logical consequence of those facts, and are in turn facts in their own right.

All mathematical methods can be restated as statements of fact about mathematical relationships.

For example suppose I were to attempt to patent a method for computing the length of the hypotenuse of a right triangle. You take side a and square it, and take side b and square it, and then take the positive square root of that to get the length of the hypotenuse... except that "method" is just a particular way of stating the mathematical fact that

a^2 + b^2 = c^2

A fact. That is not patentable.

And all mathematical "methods" have this same characteristic.

When you get to information theory, encryption, compression etc... its just vastly more complicated, but at the end of the day its still just the expression of mathematical facts.

Similarly software is just a specialized notation for manipulating numbers; we associate it with 'computers' but it can be abstracted as pure math, its just set theory, mapping functions, and so forth, and it can be expressed in purely mathematical form.

A new data compression algorithm that is truly novel seems like it should deserve some protection so that the inventor can get rewarded for her work. No?

There's the rub. On the one hand, yes, we want to reward people for hard work, and DISCOVERING the mathematical relationships that allow for the expression of a new compression is very difficult, but on the other hand its not an invention, its still just a factual mathematical relationship and facts are not patentable.

She is not an inventor, she's a mathematician. She solved a math problem. That's not to say its not hugely difficult or that she wasn't creative. But its still not an invention.

Lots of people solve hugely difficult problems -- that isn't the criteria by which we determine whether they are patentable. No more than you can't solve a difficult sudoku and patent the solution... regardless of how hard the sudoku was.

Going further (1)

Anonymous Coward | about 4 months ago | (#47285003)

Going further, all possible inventions can be described as a series of mathematical algorithms. So then nothing should be patentable at all, ever! But perhaps the question shouldn't be self consistency, courts like to hold that up as an ideal but rarely if ever follow through. But what makes the most sense economically. Theoretical papers have shown that what would be best for everyone is a rather stringently light form of patentability and protection, with strict rules as to specificity, prior art, and etc.

That, ideally, would be the goal here. But then that would also ask the Supreme Court to understand advanced concepts of everything including law, software, and economics. Which is probably asking a lot of a group of barely evolved apes that we all are.

Re:Going further (2)

king neckbeard (1801738) | about 4 months ago | (#47285397)

You are assuming that nothing being patentable is an inherently wrong idea without supporting that statement, which is a logical flaw and a strong indication of irrational bias.

You are also assuming that being able to be described mathematically is somehow equivalent to being able to be performed mathematically. Math can model a rocket going to Mars, but it can't send a rocket to Mars by itself.

Re:Going further (0)

Anonymous Coward | about 4 months ago | (#47285707)

While we are at it, lets make sure chemicals and polymers can't be patented. What about patenting new elements? Patenting sub-atomic particles so that permits can be issued? The possibilities are endless.

Data compression is data processing (1)

tomhath (637240) | about 4 months ago | (#47285015)

It seems to me that Kennedy left the door open to software that does something only software can do. The patent they ruled on was an escrow service in software (or something like that). The software angle added nothing to the idea of an escrow service. Data compression on the other hand is a different domain.

Re:Data compression is data processing (1)

Anonymous Coward | about 4 months ago | (#47285073)

However rare it is to do these days -- outside of, for instance, courtroom stenographers -- you don't need software to do data compression.

Re:Data compression is data processing (1)

king neckbeard (1801738) | about 4 months ago | (#47285207)

and that's a door that technically doesn't exist. One, software doesn't do anything. It's merely data. Two, everything that is done on the computer itself could be performed by any universal Turing machine, including a human brain.

Re:Data compression is data processing (1)

markus_baertschi (259069) | about 4 months ago | (#47285633)

> Data compression on the other hand is a different domain.

Why ?
Data compression has been used since a long time, think about stenography or shorthand, for example. This is a manual data compression system, no computer required. Many algorithms are only practical on a computer, but they still are mathematical algorithms.

Re: Data compression is data processing (0)

Anonymous Coward | about 4 months ago | (#47285825)

The point was taking something old and doing it on a computer is not patentable.

Other new and novel things might.

Here's an idea... (1)

Anonymous Coward | about 4 months ago | (#47285019)

How about legislation limiting software patents to 1 year expirations? It'd give just enough protection, hopefully, for startups wanting to get a food hold in the business world, while hopefully preventing big companies from attacking each other year after year.

Re:Here's an idea... (1)

Anonymous Coward | about 4 months ago | (#47285055)

1 year isn't very long when you think about it. Not in the tech world, at least.

Re:Here's an idea... (0)

Anonymous Coward | about 4 months ago | (#47285183)

One problem is it'll create a rapidly changing minefield for developers, without necessarily much benefit to the owners of the patents. It'll be essentially all overhead.
 
Here's a question in return: Why do we need software patents? Why not try out not allowing any software patents and see if there's a lack of innovation, rather than having the default position be that we need to add the administrative overhead, litigation, and restrictions caused by patents? If we as a society can get just as much progress without patents wouldn't that be better than getting along with patents and all those headaches?

Re:Here's an idea... (1)

greenwow (3635575) | about 4 months ago | (#47285259)

One year would be awesome since it almost always takes years to get a patent. In effecte, you are banning patents. You rae making them illegal and making people that spend money to get one, lo0ok like complete foolish morons for throwin g away money. Brilliant. I love how you want to fuck their kind over. They hate working people. They want to make money off of patent scams. Typically they arde arlll rich old white men htat hate minorities. Your plan to fuck them over to help is us is awesome. YI swish we could pull that off. It would really fuck over the Republicans.

Everything is an algorithm (2)

Prune (557140) | about 4 months ago | (#47285047)

At least according to some philosophers and physicists, everything corresponds to algorithms: https://en.wikipedia.org/wiki/... [wikipedia.org] Any patented process and device can be described wholly in algorithmic terms. Does this mean nothing should be patentable? Of course not. There's no sharp dividing line in these things, and this is my point -- there are soft lines here, just like there are soft lines between things that are best described as mathematics, and things that are best described as software processes. Ultimately they all reduce to mathematics, but that in itself doesn't make them unpatentable. The disputes here are on where along a continuum to place a threshold, and everyone has their own favourite point. The summary suggests this is lost on Mr. Lee, who chooses to see this as purely black and white and cut off anything that reduces to mathematics. The problem with that is that, if you were to take this to its logical conclusion, then nothing whatsoever would be patentable. Then again, Mr. Lee may just be radical enough to believe that, even if he's not upfront about it for strategic reasons.

Re:Everything is an algorithm (1)

suutar (1860506) | about 4 months ago | (#47285349)

Perhaps it should only outlaw things that we know how to reduce to mathematics. Software is a gimme. Lots of mechanical engineering stuff can be reduced to math; that's how we can simulate it. So maybe not so much need for patents there. Serious biochemistry (e.g. drug research) isn't fully simulatable yet (hence folding@home), and arguably that's the stuff that needs to keep patents. I'm not sure where something like chip fabrication technology falls on that scale, but I think it's closer to the "not quite simulatable yet" side...

It from bit vs. the universe's quantum DRM (1)

tepples (727027) | about 4 months ago | (#47285361)

At least according to some philosophers and physicists, everything corresponds to algorithms

The difference between "it" (physical things) and "bit" (information) is that unlike "it" [wikipedia.org] , "bit" can be copied. This allows distinguishing methods that work on "it" from methods that work on "bit".

Re:It from bit vs. the universe's quantum DRM (1)

Prune (557140) | about 4 months ago | (#47285433)

Nope: "it" also be copied. https://en.wikipedia.org/wiki/... [wikipedia.org]

Re:It from bit vs. the universe's quantum DRM (1)

tepples (727027) | about 4 months ago | (#47285607)

From the lead section of the article you linked: "[Quantum teleportation] also cannot be used to make copies of a system, as this violates the no-cloning theorem."

Re:Everything is an algorithm (4, Insightful)

JesseMcDonald (536341) | about 4 months ago | (#47285369)

Any patented process and device can be described wholly in algorithmic terms.

Described, yes. Software patents (and business method patents, etc.) are the ones which can be implemented wholly in algorithmic terms. You can describe a new manufacturing process with math, but you can't actually manufacture anything until you apply that math by rearranging matter and energy in the real world. It's the application that the patent covers, not the description. The device, not the blueprints.

This ruling simply states what should be obvious, that adding "on a computer" to an abstract concept does not magically transform it into a patent-eligible invention. The patent is still really about the abstract concept, despite the "on a computer" gimmick, and thus remains ineligible.

There should never have been any question regarding the patentability of taking someone else's invention (a computer) and using it for the purpose it was designed for (speeding up the evaluation of algorithms), regardless of the specific algorithm in question. That would be like patenting the use of an off-the-shelf pocket calculator to evaluate 2 + 2. If you can't patent the algorithm on its own—and you shouldn't be able to, since it's pure math—then it makes no sense to be able to patent it "on a computer".

Re:Everything is an algorithm (1)

Prune (557140) | about 4 months ago | (#47285487)

Information production, writing, storage, and retrieval requires the rearranging of matter and energy in the real world. Information doesn't exist unless it has a physical manifestation. Indeed, physics places very hard fundamental limits on things like processing rate, maximum information density possible (due to Bekenstein bound), and so on exactly because information can only exist through its physical manifestation. This is the case even if said physical manifestation is just the neural correlates in your brain of the thoughts you're having on a possible invention. You cannot sever the idea from physical manifestations. What you refer to as abstract ideas are not fundamentally different from specific applications because there's no such thing as a purely abstract concept that is not married to physics, just as there's no specific application that is not also informational in nature. I stand by my original point -- it's all a matter of degree and subjectivity.

Re:Everything is an algorithm (1)

Theaetetus (590071) | about 4 months ago | (#47286063)

Any patented process and device can be described wholly in algorithmic terms.

Described, yes. Software patents (and business method patents, etc.) are the ones which can be implemented wholly in algorithmic terms. You can describe a new manufacturing process with math, but you can't actually manufacture anything until you apply that math by rearranging matter and energy in the real world. It's the application that the patent covers, not the description. The device, not the blueprints.

This ruling simply states what should be obvious, that adding "on a computer" to an abstract concept does not magically transform it into a patent-eligible invention. The patent is still really about the abstract concept, despite the "on a computer" gimmick, and thus remains ineligible.

But, if you claim a computer configured to perform certain new and non-obvious functions, it can't be implemented wholly in algorithmic terms. It's a device, not the blueprints...

The real question is "what's an abstract concept"? This ruling admitted that it didn't have a definition, but in several passages, seems to state that an abstract concept is one that's made up of known steps. If something has been done before, says Thomas, it's abstract. That seems to be an oxymoron - if something has been done, how can it be a mere abstract idea?

In a world.. where Mathematics is patentable. (2)

Vellmont (569020) | about 4 months ago | (#47285051)

I'd suggest the justiced read a little bit from the late computer scientist Dijkstra liked to imagine a world where math was patentable. He was president of "Math Inc" "the most exciting and most miserable business ever conceived." Where he imagined that an important mathematical proof had been patended, and was demanding all the mathematicians that relied on it to pay up!

My dear Jonathan,

After so many years of silence, you will be surprised to receive such a long letter from me. But, read on, and you will understand that this time I must address myself to a lawyer I can trust and of whom I know that he understands.

Remember our schooldays, when we argued about the relative merits of the Greek and the Roman culture? How I defended the Greeks by quoting Plato and you the Romans by quoting Cicero, and how the unsettled question did not impair the friendship and companionship between the two of us? (Happy youths, who could argue hotly about the relative superiority of classical cultures, whereas, today, the inferiority of contemporary civilization seems to be the only common meeting ground!) Our fates were decided that evening by the choice of our heroes: you chose law and I chose mathematics and our ways parted. (It is a strange thought that, if in that same discussion, I had chosen Homer and you Horatius, we might both have become professional poets and our paths might have continued to cross each other....)

Dear Jonathan, I am in a fix. I leave it to your great wisdom or to your worldly experience to decide for yourself, whether my problem is that I don’t understand them, or whether they are so short-sighted that they are unable to understand me. But the long and the short of it is that I am in a fix, I have painted myself into a corner to the extent that I need legal advice, imagine! As you know —Hugo has certainly told you something about it— I am presently responsible for Mathematics Inc., the most exciting and most miserable business ever conceived. It is really most exciting, because —beside being a most flourishing business (and that is saying a good deal, these days)— by blending the strength of Greek contemplation with that of Roman enterprise, we are changing the face of the world! Our problem is, however, that apparently the world is not quite ready for this (truly!) “Cultural Revolution” and is beginning to fight back in a most unartistic manner, just because it —and in particular: its legal procedures!— cannot cope with it. There are legal procedures for the protection of property of “things”, but there is no true protection of property of “ideas”, and of such nature are the products of Mathematics Inc. (There are, of course, patent law and copy-right, but as you read on, you, as a lawyer, will immediately see that in our cases they are insufficient.)

One of our most successful product lines is connected with what used to be known as the Riemann Hypothesis, but now should be named our Theorem. To bring you into the picture, Riemann —originally trained to become a Lutheran minister!— was one of those romantic mathematicians of the nineteenth century, who maintained his fame by dying young enough to ensure that nobody saw that he himself was also unable to prove his conjecture. Riemann completely missed the vision and imagination, needed to escape from the prejudices of the pre-industrial society and, according to the tradition of the period, he fought his problem single-minded: the amateur, needless to say, failed miserably.

To supply the missing proof was for Mathematics Inc. an obvious target, not only because we have built up the first (and only) corporation in the world, that is technically capable of constructing such a proof, but also, because commercially it is a most attractive proposition. The point is that whole flocks of mathematicians have made themselves dependent on it and have (somewhat irresponsibly) based whole branches of mathematics on Riemann’s assumption. Think what a market! All those dangling results, ready to be harvested by the first company that provides the missing link! We have provided the link and, having the Proof, besides claiming all previous results based on Riemann’s Hypothesis, we insist on substantial royalties for all future use of it. That is fair, isn’t it? You cannot expect a huge company like Mathematics Inc. to distribute its goodies like Father Xmas, can you? But, reasonable as our claims are, we experience the greatest difficulties in getting our rights recognized.

As most royalties would come from abroad, our own government —with an eye on the balance of payments— is in principle eager to assist us and to support our foreign claims, but, Good Heavens!, it is incredible how it paralyzes itself (to the point of complete ineffectiveness) by insisting upon all sorts of clearly inadequate, inappropriate and impossible legal procedures. I have now received three letters from three different departments (Science and Education, Commerce and Foreign Affairs), all of them stating that according to (different!) articles so-and-so they can do nothing for us before we have shown our Proof! What do they think? For, as they also explain, this disclosures does not guarantee that they can do anything real for us, oh no, only after the disclosure they can start the investigations whether our claims can be supported! Knowing how our departments work, my heart sinks, for it would take at least another five years!

But, besides this, disclosure of the Proof is absolutely out of the question! Has no one heard of industrial property? You see, we want to sell the result of the Proof —viz. that Riemann’s Hypothesis is no longer a hypothesis but a truth—, but certainly not disclose the Proof itself, for that embodies a radically new technique of mathematical reasoning that, as long as it is ours and exclusively ours, we would like to apply to a few similar outstanding problems. Disclosure of the Proof would be similar to the disclosure of “manufacturing secrets” of classical industries. How can we make them understand this situation?

(There is another reason —but this is strictly between you and me— why I do not care too much about disclosure of the Proof right now, because the Proof, although essentially correct, is still in the prototype stage: minor deficiencies —of which we know, that they are easily mended: it has already all been planned— could be misused to weaken our claims. My marketing division has made quite clear that, as far as they are concerned, disclosure has to be postponed until the Proof has reached such a state of stability that it won’t require significant maintenance for the first five years after delivery.)

Another serious problem —in view of the huge amounts of money involved— is connected with exportation within the European Community, viz. how to compute the Value Added tax to be paid, when we sell the Proof. As you, no doubt, are aware of, the rules don’t provide for it, as we cannot define our “raw materials”: are they the symbols we use, or the Laws of Aristotelean Logic? (Here, I am sorry to say, I expect from my government an even less cooperative attitude!)

* * *

Thank goodness we don’t have only serious problems, but ridiculous ones as well. Before we could get the top twelve floors of the Hosanna Building, I had (to humour the old gentleman who owned half of them) to order from an architect a Toilet Flushing Water Recycling System —I have included a copy of his design—. As the old gentleman died, he did not need any humouring anymore and we decided not to implement the TFWR System, although brilliantly designed, in view of the risks involved. But now the architect complains, even after having received his fee. His argument is that he is entitled to have his ideas realized. He points out that if all his customers would act as we have done, he would end his days with lots of money, received but not earned, and none of his brain-children to survive him. He is now threatening to sue us for wasting his creative powers. I am afraid he is an uncurable artist. (Don’t worry, our regular lawyer will deal with him in the usual way.)

* * *

Dear Jonathan, one of these days I shall ask my secretary to make an appointment for an afternoon. Can we have a dinner afterwards? (I suggest the Restaurant “Bali”: it adds to an excellent kitchen the advantage of the proximity of a cafeteria where my chauffeur can have some food while we are having dinner.) I would like to discuss with someone like you the current mis-education provided by our Universities. Today’s graduates leave the campus made to believe that it is Knowledge that matters, while all of us know that only Secrets matter. If all goes well, I could endow the major Universities with an appropriate chair. How should I call it? “The Edsger W.Dijkstra Chair of Industrial Espionage” or “The Mathematics Inc. Chair of Security and Privacy”? I shall ask my P.R.-man, anyhow, but would appreciate your unbiased opinion.

I am very much looking forward to meeting you again. Till then!

Yours ever
9th February 1975 Edsger W.Dijkstra
Mathematics Inc.
Hosanna Building

http://www.cs.utexas.edu/users... [utexas.edu]

Re:In a world.. where Mathematics is patentable. (1)

Krishnoid (984597) | about 4 months ago | (#47285575)

The weird thing about this is that other than its verbosity, it sounds like something a corporate IP lawyer at a company might write to another one, and that a Justice at any level would find perfectly reasonable, even ordinary, in the arena of law.

The real cause of the patent problem is exposed... (0)

Obfuscant (592200) | about 4 months ago | (#47285057)

But if the formula is too complex for her to understand, then she concludes that it's something more than a mathematical algorithm and uphold it.

Thus demonstrating that the entire patent problem is because women cannot understand simple mathematical algorithms.

Re:The real cause of the patent problem is exposed (1)

I'm New Around Here (1154723) | about 4 months ago | (#47285131)

Racist!

Re:The real cause of the patent problem is exposed (1)

I'm New Around Here (1154723) | about 4 months ago | (#47285151)

Oh shit! Sorry. Picked up the wrong cue card. I'll try again.

Sexist!

Re:The real cause of the patent problem is exposed (1)

Obfuscant (592200) | about 4 months ago | (#47285205)

I was perhaps too subtle in pointing out the inappropriate assumption that all judges are women. "... a judge ... she ..."

Re:The real cause of the patent problem is exposed (0)

Anonymous Coward | about 4 months ago | (#47285527)

The one who made a hash of the "rounded corners" case was.

She was a gomer too.

Best system in the world!! (1)

bogaboga (793279) | about 4 months ago | (#47285069)

I understand the sentiment but at the same time, won't be surprised if the judges, like most Americans I've met, believe the USA has the best of everything mankind can think of.

Re:Best system in the world!! (-1)

Anonymous Coward | about 4 months ago | (#47285117)

We do. Care to prove otherwise?

bad logic (0)

Anonymous Coward | about 4 months ago | (#47285071)

It does not follow that the supreme court does not understand software just because they don't share the same definition of it that you do. I believe the reason that math is not considered patentable, that it does not have a physical representation. But computers most definitely can project themselves into the physical world. To the extent this is true, software should be considered as patentable as any other complex items which physically exist. There is no reason that a complex electronic device which could equally be produced by software should enjoy more patent protection, as software can in theory take just as much time to develop.

Now, I tend to agree that almost all the software patents I have run across I would consider invalid (including a couple I have filed myself, just to defend against patent trolls), but there are categories of things I think should be patentable as far as software goes. I would say that when encryption algorithms first came out, that they should have been eligible, since they took a non-trivial amount of effort to develop and had a number of practical uses.

Re:bad logic (1)

DrJimbo (594231) | about 4 months ago | (#47285503)

... computers most definitely can project themselves into the physical world. To the extent this is true, software should be considered as patentable as any other complex items which physically exist.

That argument is obvious nonsense. The problem is that the same software can run on lots of different hardware. Are you suggesting someone would need a separate patent for each possible hardware the software could run on? I don't think so. You want one patent to cover all possible hardware implementions. That is clearly patenting an idea, not a device/implementation.

[...] when encryption algorithms first came out, [...] they should have been eligible, since they took a non-trivial amount of effort to develop and had a number of practical uses.

Those are not good reasons for granting patents. A lot of effort goes into making many useful things but the effort and the usefulness do not make those things patent-eligible.

Saw a reasonable analogy for software (0)

Anonymous Coward | about 4 months ago | (#47285083)

If I invent a machine with 100 switches, and I have designed what each of those switches do, I should be able to patent this machine.

Nobody else should be able to come along and "invent" turning on switches 3, 18, and 92.

If I invent a computer with 256 opcodes, and I have designed what each of those opcodes do, I should be able to patent this computer.

Nobody else should be able to come along and "invent" using opcodes 0x03, 0x18 and 0x92.

Re:Saw a reasonable analogy for software (1)

wisnoskij (1206448) | about 4 months ago | (#47285217)

If I invent transistors, resistors, ect, I should be able to patent these.
Nobody else should be able to come along and "invent" hooking up these electronic components in some specific sequence.

Re:Saw a reasonable analogy for software (0)

Anonymous Coward | about 4 months ago | (#47285351)

Correct. If you invented a 500 ohm resistor and a 1000 ohm resistor, I should not be able to patent connecting your 500 ohm resistor to your 1000 ohm resistor to get 1500 ohms resistance. Or 333.33 ohms, for that matter.

Re:Saw a reasonable analogy for software (1)

gnupun (752725) | about 4 months ago | (#47285733)

If I invent a machine with 100 switches, and I have designed what each of those switches do, I should be able to patent this machine.

Exactly, at a very low level of abstraction, software is a bunch of simple operations and switches (things that decide which simple operations to execute and which to avoid). At this level, software resembles a very simple machine, which is patentable, as you have stated. Software is not math, in that, it does invent new concepts of mathematics. Rather, software just uses existing mathematical methods, to build machines, same as every other field of engineering does.

Electrical engineering is chock full of math, but that does not mean an electronic invention is unpatentable, because it is math.Electronic inventions are not math, they just use (apply) math. The same goes for software inventions.

No shit! They're all Republicans. (0)

Anonymous Coward | about 4 months ago | (#47285099)

They hate anything newer than 0 AD. That is the way of their kind. All of them hate anyone that isn't an old white man. That's why every decision they've ever made has been so racist and hateful. After they decided to fuck us over and declare us only 3/5 of a person, that is when smart people gave-up on them. They claim minorities are not complete people. That is the way of their kind. They want us all to die. That is what those Republicans live for. That and guns, and the SCOTUS loves to flood the streets with guns. They've done nothing to stop gang-related violence since their kind supports it. Fuck them and their hatred of the Internet.

Re:No shit! They're all Republicans. (1)

greenwow (3635575) | about 4 months ago | (#47285125)

They are all not Republicans. In the 1940s, there was one progressive on the court. As far as I know, he has never used the word nigger unlike every single other member. They are the most hateful group on the planet. If they were able to get their way, they'd make the Holocaust seem like a night at the opera. They're only 99+% Republican garbage.

COME ON (1)

nicobigsby (1418849) | about 4 months ago | (#47285181)

It's the thing that makes the magic box go!

Program != Theorem (1)

Stenboj (1131557) | about 4 months ago | (#47285215)

A Patent can be issued for a novel and useful composition of matter or process. A theorem is neither, and is indeed not patentable. But an automated process, like the bottle capper at the end of a beer bottling production line, is carrying out a potentially patentable process, even though it may be implemented in a way that depends crucially on the operation of an embedded control program. Agreed so far? Let's take another step: how about the PageRank algorithm that processes information in a way that grew up in an empirically-driven manner without any central core of mathematics? I think that there is a sensible argument to be made that we are still in patentable territory under present law. Dammit. I'd like to see most software patents eliminated, but their continued existence is not good evidence against SCOTUS understanding of software.

Program == Theorem (1)

JesseMcDonald (536341) | about 4 months ago | (#47285461)

Good news! Programs are theorems. I direct your attention to the Curry–Howard correspondence [wikipedia.org] . Every program corresponds to a mathematical proof, and vice-versa.

Re:Program == Theorem (1)

gnupun (752725) | about 4 months ago | (#47285755)

Good news! Programs are theorems.

So a program that "prints recipes stored on disk onto a printer" is a theorem of what mathematical concept?

Nice puff piece, but misses the point. (0)

Anonymous Coward | about 4 months ago | (#47285235)

Sewing machines are just wheels and a needle moving at specific rates and times. Software is just algorithms doing basic math. Computers are boxes of transistors indicating electrical 1's and 0's, and the transistor was a patented device.

The Supreme Court drew a line between generic things being done with generic computing devices, and novel things being done with generic computing devices.

And he's mad that the whole concept of a software patent didn't get thrown out, at the Supreme Court, this time. This whole thing is a signaling to the appellate federal courts (which normally hear these things) that the standards need to be toughened. Said appellate courts have a recent history of being extremely pro-patentholder on software patents. They'll knuckle down, or the Supreme Court will hear a case and have to rule again.

Nothing about the Supreme Court ruling implies a failure of understanding.

Re:Nice puff piece, but misses the point. (1)

overshoot (39700) | about 4 months ago | (#47285555)

This whole thing is a signaling to the appellate federal courts (which normally hear these things) that the standards need to be toughened. Said appellate courts have a recent history of being extremely pro-patentholder on software patents. They'll knuckle down, or the Supreme Court will hear a case and have to rule again.

It's not "federal appellate courts," it's the Court of Appeals for the Federal Circuit. There is only one, and it hears all patent appeals. And much as it needs to be smacked around, this isn't the case for it because the SCOTUS affirmed the (IIRC unanimous) en banc ruling of the Federal Circuit.

In short, this case is not nearly the landmark that people are making it out to be.

Completely unqualified to govern (0)

Anonymous Coward | about 4 months ago | (#47285239)

This "supreme court" has proven itself in a court of law that it is completely unqualified to govern the United States. They simply do not understand the consequences of anything, let alone their decisions.

We really need to rethink the way the supreme court is chosen.

A big problem, but also the only missing piece (1)

ciaran_o_riordan (662132) | about 4 months ago | (#47285263)

With regard to this, one helpful thing in the ruling is that the Court says that old and ubiquitous technologies don't count when judging if an abstract concept has been transformed into a patentable application of said abstract concept.

(Patent lawyers are up in arms about this, complaining that the Court has "mixed up article 101 (subject matter) with articles 102 (prior art) and 103 (obviousness)". To get more patents, they want to reduce the "abstract ideas" exception to a theoretical concept that only happens inside people's brains any patent application can pass.)

So Timothy's right (as usual), but still, at least we have the Justices acknowledging that algorithms shouldn't be patentable, and that "on a computer" doesn't make a non-patentable concept patentable. All we have to do is bridge that last gap and show them that all software is math:

http://en.swpat.org/wiki/Softw... [swpat.org]

For Alice v. CLS, more analyses listed at the end of this page:

http://en.swpat.org/wiki/Alice... [swpat.org]

Software should not be patentable (1)

mrflash818 (226638) | about 4 months ago | (#47285289)

Software are just instructions that run on a processor.

I do not think any software should be legally patentable, and look forward to the day the rest of the global legislative community realizes it, too.

conceptually equivalent != legally equivalent (2)

dominux (731134) | about 4 months ago | (#47285313)

Reading a book to someone is perfectly legal, reading a book on the radio to lots of people is conceptually equivalent to visiting them one by one and reading the book to them, it just saves a bit of time to do it in parallel. Conceptually this pretty much the same thing, but they are not the same from a legal perspective. Same goes for patentability of software, just like art or porn, you know it when you see it, but pinning down the definition is non-trivial - and doesn't need to be pinned down as much as you might expect for practical legal purposes.
Personally I don't support software patents at all, however there is a tendency from technical people like myself to expect the legal system to follow more logical rules than it does.

Yup (1)

fsterman (519061) | about 4 months ago | (#47285347)

Patents were created to help protect the upfront capital investments required for creating physical goods. We came up with a set of rules that protect against utterly absurd misapplications of this temporary monopoly. The justices are trying to apply these baseline protections to an area of investment and innovation that is radically different. If only we could just pass a law saying "this is stupid" and move on....

Simple (1)

CanEHdian (1098955) | about 4 months ago | (#47285469)

the Supreme Court does not understand software

Simple. Appoint RMS to the Supreme Court and let all other judges go. Bring on the software patent cases!

I believe ... (0)

Anonymous Coward | about 4 months ago | (#47285481)

... we are all a part of a giant simulation, running on some alien overlord's server farm. So everything is software and data structures. And none of it should be patentable.

This is my belief, my religion. So what business does Congress have to make law prohibiting the practice of my religion. Particularly if I have been pre-programmed to implement some device or algorithm in a certain manner by The Master Race.

How hard can it be (1)

overshoot (39700) | about 4 months ago | (#47285485)

to explain to a judge that the claimed patent covers something that a human being can do with nothing more than a sufficient supply of paper, pencils, and time?

I'm reminded of how upset the Court got when it turned out that the real heart of one patent was that it claimed infringement by doctors making the mental connection between a lab test and a diagnosis. It wasn't that the lab test was unique, it was that any test that informed the physician of the measured physiological indicator would lead to the diagnosis.

Can't some member of the patent bar get the Court to the same realization with regard to software? Or is it that any party with the warchest to show up before the SCOTUS has too much invested in the current regime?

Re:How hard can it be (0)

Anonymous Coward | about 4 months ago | (#47285681)

I'm reminded of how upset the Court got when it turned out that the real heart of one patent was that it claimed infringement by doctors making the mental connection between a lab test and a diagnosis. It wasn't that the lab test was unique, it was that any test that informed the physician of the measured physiological indicator would lead to the diagnosis.

Medical and surgical procedures have traditionally been exempt from patents, because the doctors union (aka AMA) is by far the most powerful trade union in this country. However, they are even starting to feel the touch of government granted monopolies on ideas.

It's magic (0)

Anonymous Coward | about 4 months ago | (#47285519)

> if the formula is too complex ... to understand

TBL really needs to stop talking (0)

Anonymous Coward | about 4 months ago | (#47285557)

He does not understand the fact the Supreme Court tends to limit its decisions to only what is required to decide a case. His comment make Him look ignorant.

The article misunderstands the ruling (1)

SLi (132609) | about 4 months ago | (#47285741)

I don't think this article quite hits the nail. Specifically, its interpretation of the ruling is wrong (though IANAL). Having said that, this is certainly a positive ruling (if you are, like me, opposed to software patents), and in general my impression is that the trend is clearly against software patents. I'm not sure if there is any software patent the court would eventually uphold, but it generally prefers to avoid such sweeping rulings on matters that are not immediately before it. That is, the court is not entirely sure that no software patent can pass the muster, so it prefers to wait until it sees more credible software patents (like compression algorithms, apparently) to rule on those.

The article claims the Supreme Court ruled that the "invention" is not patent-eligible because "each step does no more than require a generic computer to perform generic computer functions". However, this is not the whole analysis and is akin to saying that no electrical circuit can get patent protection if it can be divided into basic components.

Let me quote the relevant parts from the ruling.

In Mayo, we set forth a framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts. First, we determine whether the claims at issue are directed to one of those patent-ineligible concepts. If so, we then ask, "[w]hat else is there in the claims before us?" To answer that question, ***we consider the elements of each claim both individually and "as an ordered combination"*** to determine whether the additional elements "transform the nature of the claim" into a patent-eligible application. We have described step two of this analysis as a search for an "'inventive concept'"--i.e., an element ***or combination of elements*** that is "sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself."

(page 7, emphasis added, internal quotations removed)

That is, the "elements", or the steps the algorithm in question performs, are to be considered both individually and as an ordered combination. The article somehow reads the second prong of this analysis entirely out, but such a reading is not faithful to the decision. Similarly to how an electrical circuit that consists of basic components can still merit patent protection, the court leaves open the possibility that an algorithm composed of "ordinary" steps might be eligible if the steps "as an ordered combination" contains an "inventive concept" that is "sufficient to ensure that the patent in practice amounts to significantly more than a patent upon [an abstract idea] itself".

The text that the article quotes is from page 15 of the ruling:

***Taking the claim elements separately***, the function performed by the computer at each step of the process is "[p]urely conventional.". Using a computer to create and maintain "shadow" accounts amounts to electronic recordkeeping--one of the most basic functions of a computer. The same is true with respect to the use of a computer to obtain data, adjust account balances, and issue automated instructions; all of these computer functions are "well-understood, routine, conventional activit[ies]" previously known to the industry. In short, each step does no more than require a generic computer to perform generic computer functions.

But this is only the paragraph that analyzes the claim elements separately. What the article does not recognize is the paragraph that immediately follows:

***Considered "as an ordered combination,"*** the computer components of petitioner's method "ad[d] nothing . . . that is not already present when the steps are considered separately." ***Viewed as a whole***, petitioner's method claims simply recite the concept of intermediated settlement as performed by a generic computer. See 717 F. 3d, at 1286 (Lourie, J., concurring) (noting that the representative method claim "lacks any express language to define the computer's participation"). The method claims do not, for example, purport to improve the functioning of the computer itself. See ibid. ("There is no specific or limiting recitation of . . . improved computer technology . . . "). Nor do they effect an improvement in any other technology or technical field. Instead, the claims at issue amount to "nothing significantly more" than an instruction to apply the abstract idea of intermediated settlement using some unspecified, generic computer.

So, the fact that an algorithm only performs "purely conventional" steps is not the end of the inquiry; it just may be sufficient that such an algorithm when viewed as a whole ("ordered combination") may warrant protection.

Sensible criteria for software eligibility (0)

Anonymous Coward | about 4 months ago | (#47285971)

Patent attorney here.

The struggle that the Supreme Court is having with software has less to do with their understanding of software but rather is about whether business methods should be patentable. At least three justices are in agreement that they should not be.

So slashdotters, help me out here: If you assume business methods should not be patentable, how do you distinguish between business methods implemented on computers and/or the internet, and other software innovations such as those in compression, cryptography, or other algorithms? Because once there are five justices on the court or a majority of congresspersons willing to kill business methods altogether but maintain the patentability of true innovation in software, they are going to need to announce what test to apply.

The court distinguished the patent overturned here from those patents that "purport to improve the functioning of the computer itself." Can anyone do better?

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