The Supreme Court Doesn't Understand 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."
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."
Nothing to do with software (Score:4, Insightful)
Followed the law. if (false) then false (Score:4, Interesting)
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 (Score:5, Insightful)
Obviously not. An elevator is an application of the laws of physics. You can patent an elevator design. You can't patent gravity.
What people have problems with... is most software patents look like this:
1. Apply the law of gravity, using electric circuits, using a machine to transport people between different levels or heights in a building.
2. The method of claim 1, where a machine is used to carry people between floors in a building.
In other words: the "invention" has been turned into a "black box", which is not explained in the patent.
Instead of the specific elevator design you developed being patented, ALL elevators using the basic principle of gravity are patented, even though gravity itself is not patented.
They just say Apply (basic concept) using (new technology).
The invention is a black box not discussed in detail.
those ARE a problem. Mechanisms, not results (Score:4, Informative)
Certainly those types of patents are bad, and potentially invalid. The scenario you described, where someone attempts to patent result rather than the mechanism is invalid and should be held invalid. Note that this is true whether the mechanism uses gears to perform multiplication or transistors. That problem is completely separate from and unrelated to software or math. It's a bad patent because there's no invention, just a goal or result.
I don't know that anyone has done an analysis to see whether or not more invalid "result" patents have been issued for bit-based "inventions" than molecule-based inventions. Whether the mechanism is made of wood or of bits, I know patents that are too broad have been issued in both.
Of course it's conceivable that some patent examiners could have had trouble distinguishing between the result of a software mechanism (find quality web pages) and a particular mechanism for doing so (PageRank). "High quality" web pages could be determined by any number of mechanisms and PageRank is just one of many different mechanisms that might be invented.
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If you're the first person to develop a mechanism to get a particular result, there's no reason you shouldn't be able to patent the result (within reason). Otherwise, it would be too easy to get around patents by making trivial changes to the mechanism.
Imagine if you're the first person to think of routing cars around areas of high traffic in real time and develop a method to do so. Why shouldn't you be able to get a patent on the result -- routing cars around areas of high traffic for a reasonable amount o
Re:those ARE a problem. Mechanisms, not results (Score:4, Interesting)
Because "sure would be nice if all these cars didn't come here at once" is not an invention? You are not the first person to grasp the concept of load balancing. And indeed, radio has been broadcasting traffick reports for as long as I can remember.
The specific method you developed. Sure, that might mean an alternative method is trivial to develop and you get nothing - but guess what? All that means is that your "invention" was trivial in the first place.
The real problem is that Americans treat the patent system like they treat everything else: as a get-rich-quick scheme to escape the self-inflicted hell that's their "incentivizing" economy.
Re:Followed the law. if (false) then false (Score:4, Interesting)
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I don't see how that's a problem. I don't even see how that's a surprise, given that Turing and von Neumann were saying the same thing before there was a computer industry and back when biotech meant experiments with mould.
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Which would be (relatively) fine. Because if he implemented it in hardware, and got a patent on that, it would only cover the specific techniques he came up with to facilitate implementing it in hardware. It would not necessarily cover all hardware implementations (it would almost certainly be possible to design another hardware implementation of the same algo
Re:Followed the law. if (false) then false (Score:4, Interesting)
You can patent an elevator because you invented it. You cannot patent gravity because you didn't.
Everything that ever was, is or ever will be, in mathematics, always has been and always will be. Nothing in mathematics is invented, only discovered. (You cannot patent Antarctica, either.)
You can patent an elevator because it isn't obvious. You cannot patent a spring because it is.
Everything in mathematics is ultimately obvious. See "Spiked Maths" for details. Or, if you prefer, consider the fact that everything is built from statements already proven to reduce to fundamental axioms. Everything in mathematics is ultimately true, though not necessarily at the same time. There is no innovation, no creation. Nothing has been added. All you have done is taken two truths and constructed a composite truth. You can add whatever physical theory you like to gravity, you will never construct an elevator.
You can patent an elevator because there are multiple solutions to the same problem. You cannot patent sodium chloride because there is only one chemical that is sodium chloride, it is unique.
Any two mathematical statements which yield identical results (which implies both operate over the same domain and range) are provably identical. Thus, there is a unique solution to a given problem.
You can patent an elevator because it is man-made, artificial. You cannot patent a star because it is not.
Ok, this is my one controversial statement. However, those who disagree are wrong, so I don't care. Mathematics is natural. It exists in the same form throughout the universe. If multiple universes exist, mathematics will be the same in all of them. Including the ones in which no life can exist to make use of it. There are bits of mathematics that cannot coexist, ensuring it cannot be both complete and correct (blame Godel), but there's lots in the natural world like that. That's normal for the natural world.
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Shouldn't that mathematical operations also extend to database operations where data is converted into mathematically applied operations. How many patents have flooded the system that are nothing more than column and row name descriptions with simplest data base functions applied. How the hell are they giving away patents the straight forward creation of a database.
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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 al
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A too often ignored, third option, is that "There should be money in software."
That's the crux of many problems, not just software. The "entrepreneurs" are allowed to take far more than their fair share of the "innovation" cake. For some reason many people hold this up as a virtue of the system. Just look at the financial trajectories of Woz and Jobs, yet neither could have built Apple alone.
Disclaimer: Fellow old fart here, cut my teeth on Turbo Pascal and Applesoft basic. Dear old dad is 80, a retired mechanical engineer, I introduced him to Turbo Pascal in the 80's, he traded D
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The only quibble I have in regard to your reply is the use of the word 'allowed'. That is a defeatist word no matter which side of the orange you're on.
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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.
Data compression is data processing (Score:2)
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> 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.
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There is nothing that software can do that a physical implementation of the model cannot do. See Turing for details.
Everything is an algorithm (Score:3)
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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
It from bit vs. the universe's quantum DRM (Score:2)
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".
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If you fully copy the state of a particle, how would you distinguish it from another particle? Particles don't have any inherent identity, you know.
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However, physical things can be copied: see 3d printers. It's only a matter of time before we can do this with a non uniform material (think bw printers to color).
If you 3D scan something and 3D print it out, there will be plenty of generation loss (think photocopier).
Software *is physical*. You may not be able to hold the information in your hand, but you can hold a physical device that holds the information.
The signal read back from a data storage medium is not an exact copy of the signal fed into it due to various noise sources. It too loses a generation. So the device's controller has to use an error-correcting code to write redundant information and correct the noise introduced by generation loss. Most of this time, this works well: bits in, bits out. But once in a great while, enough errors accumulate
Re:Everything is an algorithm (Score:5, Insightful)
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".
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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, h
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And that argument fails on the additional grounds of the novelty requirement.
Using a general purpose computer to execute an algorithm can only be described as blindingly obvious, since this is the one and only function of a general purpose computer.
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Also, any mp3 file is contained somewhere in the binary representation of Pi (*)
Since you cannot copyright mathematics, music can't be copyrighted either.
(*) I lost the proof for that
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Of course you can copyright a number. Every digital audio or video or text file is nothing but a number. That's what digital means. Yet they can be copyrighted.
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Doesn't matter if everything is an algorithm. You aren't patenting an algorithm when you patent a real invention. If I patented a machine that did X and then built a hundred machines off that patent, not a single one of those machines would share the same algorithm as the machine in the patent, nor would any two share the same algorithm. There would be common elements but that is it.
If someone else designed a machine that did X, in a fundamentally different way, that would have yet another algorithm, where
In a world.. where Mathematics is patentable. (Score:3)
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]
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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.
Best system in the world!! (Score:2)
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.
A big problem, but also the only missing piece (Score:2)
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
Software should not be patentable (Score:2)
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 (Score:3)
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 (Score:2)
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 (Score:2)
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!
How hard can it be (Score:2)
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 di
The article misunderstands the ruling (Score:2)
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
Reform (Score:2)
the Supreme Court does not understand software, and says we won't see significant reform until they do.
In a healthy democracy, reform should come from the legislative branch.
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No different from other patents (Score:2)
A patent on some hypothetical one-tap checkout in supermarket is no better or worse than Amazon's 1-click patent for online shopping. I think so long as we need intellectual property, patents in US are better than copyrights, as they last for borderline sane limited time. Software or physical objects, I think the test should be weather an expert in subject area who is not familiar with a particular patent would be surprised after reading it.
Re:Why not patent compression algorithm? (Score:5, Insightful)
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I have no mod points so I can comment only.
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Unfortunate sometimes, but like Democracy, the fairest system presently at our disposal.
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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? (Score:4, Informative)
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)
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No, the point is to reward them, because of the major or minor benefit humanity enjoys because of that invention. It's not a freebie, but rather an exchange of benefits.
If the inventors keep it a secret, they risk being reverse engineered by a competitor, and suffering a minor or major financial loss in the ma
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Because if the can't, then they likely won't bother investing the time, energy and money needed to create the new compression algorithm.
Citation needed.
Inventions of all kinds occurred before the patent system was created. Additionally, we currently have a free software movement devoid of profit motive which actively avoids patents. To get even more specific to your point, gzip is patent-free, and it was specifically created to side-step patented compression algorithms.
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And most of the inventors got squat for all that effort. Do we know who invented the wheel, or bow and arrow?
That's debatable. Free software usually clones popular, successful proprietary software. So, by creating a free software clone, the users of the clone enjoy the same benefits of the proprietary software without paying anything. In essence, they enjoy t
Re:Why not patent compression algorithm? (Score:4, Interesting)
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.
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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
Re:Why not patent compression algorithm? (Score:5, Insightful)
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?
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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.
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judges don't understand much (Score:2)
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 ruli
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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 ;-)
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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"?
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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.
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Sofware -> copyright AND patents, especially if there's some profit to be made.
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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? (Score:5, Insightful)
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.
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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
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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
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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.
Everything in the world is a fact. Any mechanical contraption is just an arrangement of things that uses a set of known facts, in certain combination, to achieve the desired goal. There is no fundamental difference between an algorithm and a device, except that algorithm takes raw information as input and produces raw information as output, while a device takes the state of the physical environment as input (which is ultimately also just information, once you get down to wave functions), and produces a diff
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Write it up and submit to a journal of mathematics. Perhaps it will win a prize.
But the reason generally understood is that one doen't invent a mathematical relation, one only discovers it. It is an intrinsic property of reality. It would be like patenting gravity.
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Any mechanical assembly can also be distilled down to a bunch of physical laws, and described as such. In fact, if you go low level enough, it's all pure math - wave functions etc.
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Yes, but you are combining bits and pieces that don't combine in nature.
It's the difference between knocking fruit down with a stick you found and building a harvester.
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It's the difference between knocking fruit down with a stick you found and building a harvester.
There is only a quantitative difference between knocking fruit down and building a harvester. A harvester may not be found in nature as a whole, but all of its constituent components are, and their particular arrangement follows directly from the laws of nature. Similarly, a specific algorithm is not really found in nature as a whole until such time someone applies it, but its constituent components are the basic laws of mathematics.
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Patent law is filled with quantitative judgments. Degree of novelty for example. What skill level may it require of one who would understand it. Etc.. The quantitative judgement in this case is more inventive than an equation. More inventive than a stick you found.
You can't just find the math and patent it. You must do something unique with that math to reduce it to practice for it to be patentable. Simply coding it up in a symbolic form and running it on a computer isn't enough.
Beyond that, there are many
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Well, I would argue that a sufficiently advanced compression algorithm would pass the common sense quantitative judgement for being innovative and patent-worthy (and it seems that the judges here agree, as well). I would say that to dismiss it as "just math" is really the same as dismissing a mechanical contraption as "just physics". Which is to say, it is, but the particular arrangement that works is not obvious and requires a lot of conscious time and effort to arrive at. Whether you use the term "invente
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Where is the inventor? The algorithm already existed, and had done so a few milliseconds after the Big Bang. That's very much prior art.
All anyone does, when they play with mathematical systems, is record the properties the system already had. The observer has added nothing and has invented nothing.
I can see certain merits to copyrighting a specific implementation, and expecting trivial variants to be covered. That is no different from writing a book and having rights over translations.
But a patent goes bey
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The purpose of a patent is not to "reward inventors for their work". The purpose of patents is "To promote the Progress of Science and useful Arts". The do this by creating time-limited monopolies. If you create a new widget-building-machine, people who make widgets the old fashioned way are not affected. They can continue to do so, although at a disadvantage (less efficient, more costly, whatever). If you patent an abstract mathematical idea, like division, or sum, no one else can use that until the patent
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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
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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.
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Racist!
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Oh shit! Sorry. Picked up the wrong cue card. I'll try again.
Sexist!
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No, I was just joking with ya. :^)
Actually, I'm surprised there weren't others jumping on you about your comment. Not everyone can find the humor.
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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.
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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 exis
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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.
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They can be described *using* a series of mathematical algorithms, but they have substance beyond those algorithms. Software does not. Software has no physical existence, it's an entirely abstract thing, a number, nothing more.
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They can be described *using* a series of mathematical algorithms, but they have substance beyond those algorithms.
In what sense? That "substance" that you claim is really just a bunch of mathematical functions as well. Just because your body is another set of such functions, allowing you to interact with the former directly and "feel" it, doesn't change its nature.
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If you're willing to split hairs over this, then a computer running a piece of software is not the same thing as a piece of software by itself. And it's the former that is patentable, not the latter.
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No, not all inventions can be described in the form of mathematical algorithms. Only computable ones are reducible to such a form and only computable problems with a unique solution will reduce to the -same- mathematical algorithms.
To use the example of an elevator, if you vary the shape, mass, composition, dimensions, enclosure, counterweights, or medium travelled through, you have changed the system of equations. Thus, an elevator in the abstract cannot be reduced to a mathematical description, only a spe
Program == Theorem (Score:2)
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.
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So a program that "prints recipes stored on disk onto a printer" is a theorem of what mathematical concept?
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It's a number on the disk. A series of binary digits. The program can be stored as electrical potentials, or as dots of ink, gaps in a punchcard, the list can always be expanded. But the program is not the electrical potential, or the bits of ink, or even the empty space. It's simply a number.
A number, in this case, which is mathematically equivalent to the algorithm for translating yet another number (the recipes file on the disk) into still another number. That third number is the numbe
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There are plenty of patented electronic (hardware) and mechanical machines that do what humans can do by hand. That doesn't make them unpatentable. Removing a human from a task often saves money, or the hum
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... 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 usefulnes
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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.
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Software patents are not recognized in much of the world. Interestingly, said parts of the world are currently leading the US in just about every aspect of software development. Why would anyone want to continue a model that is a proven failure?