The Death of Nearly All Software Patents? 731
An anonymous reader writes "The Patent and Trademark Office has now made clear that its newly developed position on patentable subject matter will invalidate many and perhaps most software patents, including pioneering patent claims to such innovators as Google, Inc. In a series of cases including In re Nuijten, In re Comiskey and In re Bilski, the Patent and Trademark Office has argued in favor of imposing new restrictions on the scope of patentable subject matter set forth by Congress in article 101 of the Patent Act. In the most recent of these three — the currently pending en banc Bilski appeal — the Office takes the position that process inventions generally are unpatentable unless they 'result in a physical transformation of an article' or are 'tied to a particular machine.'"
Read the WHOLE article... (Score:3, Informative)
They are holding patentable when there are two computers involved. So, any networking code may still be patentable since it is a system of multiple computers. This may help to invalidate non-network software. Fraunhofer, I'm looking at you...
Re:Good (Score:5, Informative)
During my phd I created a dynamically resizing matrix like structure for representing gene networks of arbitrary size.
Shortly after this I found that something effectively identical had been granted a patent in the US.
The patent didn't effect me at all, so I wasn't concerned on that front. What shocked me was that a patent had been granted for it at all.
The design was useful for me, because it reduced memory usage by around 96%, but in no way was it something that should have been granted a patent.
I imagine that patent will cause some researchers problems unless reforms prevent its usage. I've not heard of it being used offensively yet, I assume the holder will be waiting for a chance to get some serious settlement cash.
Re:Mixed Blessings (Score:5, Informative)
other search engines can legally use PageRank
That's where Google's pal "Trade Secret" comes in, after all, it's not like they list the algorithm they use to rank pages on their front page. Their patent reads more like "PageRank exists [uspto.gov] and we use it to order results from most relevant to least relevant and then display those results with links to the user, doing so is hereby patented" i.e. business process at its finest, with not a word that can be used to actually implement PageRank.
Skeptical but Researching (Score:3, Informative)
Here's what I've found so far:
And, the original article: The Death of Google's Patents? [patentlyo.com]
Re:Good (Score:5, Informative)
You are completly right, there is even a mathematical foundation for this, it's called the Curry-Howard correspondence : http://en.wikipedia.org/wiki/Curry_Howard [wikipedia.org]; which says : "The Curry-Howard correspondence is the direct relationship between computer programs and mathematical proofs. Also known as Curry-Howard isomorphism, proofs-as-programs correspondence and formulae-as-types correspondence, it refers to the generalization of a syntactic analogy between systems of formal logic and computational calculi that was first discovered by the American mathematician Haskell Curry and logician William Alvin Howard."
Re:quick (Score:4, Informative)
To be precise, the European Commission is pushing for software patents, but to date all their attempts have been struck down by the European Parliament.
Re:This violates my patent (Score:1, Informative)
Worst part about the joke-on-joke is that this really is how patent litigation is used.
Re:About damn time! (Score:5, Informative)
This calls for a Kermit full-waving "YAAAaaaaaaaaaaaaaaaay!"
Err... not so fast.
The PTO is an administrative body, not a legal body. It has no authority to state, "these types of inventions are patentable, and these aren't." It cannot impose new substantive requirements on inventions, including "physicality."
The PTO has taken this position a dozen times in the past - and it has been repeatedly rejected by the federal courts. The federal judges must be tired of having to explain to the PTO that "physicality" is not, and never was, a requirement of patentability.
So what we have here, once again, is the PTO exceeding its authority. The federal court has already hammered the PTO once this year for this (relating to its imposed requirements on continuation rules.) Expect this to occur again when the federal court decides In re Bilski.
Look, guys - nothing's gonna change. IT is one of the only consistently thriving segments of the U.S. economy, and the drivers of that market - Intel, IBM, Microsoft, Apple, Google, Yahoo, Adobe, eBay - all utilize and support software patents. If anything, they're pinning an increasing emphasis and reliance on software patenting. And they all have great lobbyists, so expect Congress to step in with new patent legislation if it looks like software patents are in jeopardy. (They've done it before, folks. Consider 35 USC 103(b) [uspto.gov] for a specific instance where Congress changed the law to support biotech patenting.)
- David Stein
It'll Never fly, Orville (Score:3, Informative)
There are too many Intellectual Property attorneys out there that would be put out of business by such a ruling.
Of course, the whole concept OF "intellectual property" actually IS something of an oxymoron, when one considers the actual meaning of the term... property that exists only intellectually... and not on the physical plane...
It will be interesting to see how the COURTS rule on this, as opposed to the Patent Office. It's the courts that will have the final say, anyway... not the Patent Office...
Re:Good (Score:5, Informative)
I used to agree with what you're saying, but that was before I realized a few things:
1. Computer Science != Programming
Computer science is more about research, not about writing accounting and billing programs. The mistake colleges make is not mixing computer science with math, it's making the assumption that all programmers must be computer scientists.
2. You can only get away with being a programmer while sucking at math because of the many layers of abstractions that have been built on top of the math. The math is still at the bottom, but we now have higher-level, more right-brained ways of expressing that math.
An example might be SQL and relational databases. SQL is a very English-like language that is interpreted into relational algebra by the database engine. You don't really need to thoroughly understand all of the relational algebra to write basic SQL, but there it is nevertheless.
Re:Good (Score:4, Informative)
Not some software; all software. That's not a very convenient way to describe it, to be sure -- but when you get under the hood and look at what the CPU is doing, it's all -- completely -- 100% math.
You should mention your experience to RIM (Score:3, Informative)
The makers of the Blackberry would then educate you about that $600 million check they had to write.
Re:Good (Score:1, Informative)
(Caveat: IANAL, but I am a Patent Agent.)
A patent does not give anyone a right to use a process. Rather, a patent gives the holder the right to _exclude others_ from using the patented process.
In some instances, a 2nd patented process may infringe on a 1st (already-patented) process. The holder of the 2nd patent must license from the owner of the 1st patent in order to practice the 2nd patent.
Re:About damn time! (Score:5, Informative)
IBM has also started a patent fund with other companies to make sure nobody gets sued for broadly affected patents and work with others to find prior art and prior invention on modern software patents. IBM would like to see everything move towards a software services and support model mainly because they are in the forefront and most of the patents they are now putting through are hardware patents.
Page Rank is well known (Score:2, Informative)
The whole pagerank algorithm is well know and not particulary complex. Implementing it and writing a spider was one of many homeworks i had in my numeric programming course (thou one of the most interesting) Basically you put the probability to get from website A to B into a matrix and find it's eigenvalues (which is best done numeric). Those are the pagerank. ...
What's not so well known is how to find a good set of a few hundred websites out of the trillions of pages your spider indexed to build that matrix
Re:This violates my patent (Score:3, Informative)
This is the first post I'm making informing you of your new, patent-holding, overlord. I suggest you welcome him, you insensitive Clod!
I threw a chair at him but it missed and hit a statue of Natalie Portman.
Which then fell into a vat of hot grits.
Re:Good (Score:5, Informative)
Yes.
What he's saying is that software patents are not patents on math because you aren't patenting the math. You're patenting the concept.
It's the difference between copyright and patents. And people here are not clear on the distinction.
Copyright grants exclusive rights to the creator of a specific expression of an idea. I can hold a copyright on my specific play about a man, a woman, a gerbil, 10 pounds of cucumbers and a jar of petroleum jelly. My copyright only covers my play; if someone else rights a different, independently created play about a man, a woman, a gerbil, 10 pounds of cucumbers and a jar of petroleum jelly, that's just my tough luck.
A patent, on the other hand, grants exclusive rights to a concept or an idea. If I couldn't patent plays, I could patent the concept of a play involving a man, a woman, a gerbil, 10 pounds of cucumbers and a jar of petroleum jelly and no one else could write a play with those elements in it.
Seen differently in software, a copyright prevents someone else from ripping off my specific program, Stylus Toolbox. If there were no prior art, I could patent the concept of writing GUI front-end to a command-line utility for the purposes of controlling an inkjet printer. Then no else could write such a program. But I am not patenting MATH (or software), I'm patenting the concept of such a program.
Whether software patents are a good idea is another matter entirely. The fact is that existing law allows for software patents, and the reason is is that you aren't patenting the software, but the concept.
Re:About damn time! (Score:5, Informative)
So what we have here, once again, is the PTO exceeding its authority.
It's almost like you didn't RTFA at all. The decisions in question, In re Nuijten, In re Comiskey and In re Bilski, are all CAFC decisions not PTO decisions. And in case you haven't heard, the CAFC does have authority to state, "these types of inventions are patentable, and these aren't." They rejected rehearing en banc of Nuijten. Additionally, I doubt the rehearing of Bilski will come out the way you seem to believe it will.
Additionally, the major players in the IP market, are increasingly getting patents for defensive purposes and pushing for patent reform (See the Patent Reform Act of 2007).
So, if you haven't been following recent developments both in the CAFC and SCOTUS, and by the tone of your comments you obviously haven't been, the trend is clearly away from stronger patent rights, especially in the field of software patents.
Now it is entirely possible that the system will not change and inane and overly broad software patents will continue to come flowing out of the PTO.. However, the trend is certainly in the opposite direction.
Re:About damn time! (Score:2, Informative)
I can't believe anyone reading /. possibly thinks the gov't is going to step up and piss off every big tech campaign contributor all at once. Never happen, too late in the game.
The only thing they could do at this point is a "use it or lose it" rule to invalidate patent troll patents.
Re:But don't forget Turing.. (Score:1, Informative)
Well see you pretty much stated the difference right there. The programs are equivalent to a machine. They aren't actually a machine and therefore should not be patented. They actually are a mathematical algorithm.
Re:Good (Score:4, Informative)
I think that most of this could be solved if they re-wrote section 101 to say "you have patent the process or mechanism, not the result."
The "result" is the problem that people scream about today, not the process. The reason patents are out of hand isn't because people are patenting a specific set of bars, wheels, levers, and computers to paint the side of a barn red, they are patenting "A red side of a barn."
Now, to be sure, there are many patents which truly are in the original spirit of patents - a new way to obtain some result. That's the key thing that seems to be missed by many in the discussion. Make patents the means, not the result, and be done with it.
Re:But don't forget Turing.. (Score:4, Informative)
Turing machine is a mathematical construct. It is just like you can construct a 3D or 4D or even 160D Cartesian space in your brain, in paper, or in a computer at any time you like - but they are just mathematical constructs! Just look at Wolfram's page [wolfram.com], it says "A Turing machine is a theoretical computing machine invented by Alan Turing (1937) to serve as an idealized model for mathematical calculation."
To prove the computer you're using to post thing to Slashdot is not a Turing machine - just ask yourself - Can you computer fit in a program that is infinite in length? Can you computer run a program that requires an infinite amount of memory? If you answer "no" to any of my questions, you are not using a Turing machine.
Re:About damn time! (Score:5, Informative)
IBM is on your lists for supporting software patents. They do not believe in them.
Wrong. [ffii.org] IBM is an ardent supporter of patents, and has consistently argued in favor of them. And an increasing share of its business is based on software patents.
Rather, IBM's position is that it is against bad patents: those that are not adequately examined, and that issue despite invalidating prior art. IBM supports software patents just as ardently as electrical patents... so long as the patented invention is novel, non-obvious, adequately described, etc.
(And, really, who could oppose that position? Even though better examination lead to a higher rejection rate, they also lead to greater certainty in the validity of issued patents. In fact, the only opponent of this position is the USPTO itself, which throttles the amount of time and resources that an examiner can throw at an application in the interest of "productivity." I'll let you draw your own conclusions about that.)
Also wrong (same article as above.) IBM's software patenting efforts have grown over the last decade.
- David Stein
Re:Good (Score:4, Informative)
Inductive reasoning [wikipedia.org] != inductive proof. [wikipedia.org]
Inductive reasoning works up from specific example to general properties. The development of the law of gravitation is a classic example. Tycho Brahe took many detailed observations of stars, planets and other celestial bodies. From these, Kepler derived general principles of planetary motion. Newton took Kepler's laws and generalized them one step further, showing that the same principle could explain both the fall of an apple and the orbit of planets. Finally, Einstein (with General Relativity) showed that other phenomena could be attributable to gravity as well (such as light distortions). All throughout, the trend has been from specific to general, starting with individual observations, working up to general principle. Note that at no point is the general principle assumed to be correct. If there are observations that contradict the general principle it is presumed that the general principle needs to be modified, not the observation.
Now contrast this with deductive reasoning. Deductive reasoning starts with the general principles (a small set of highly general axioms) and applies them to generate individual proofs. If at any point one of the axioms is violated, it is the proof, not the axiom that is incorrect. Descartes was a master of deductive reasoning, showing how even complex mathematical proofs could be built up by applying a small set of axioms (initial assumptions).
Strangely enough, an inductive proof is a form of deductive reasoning, which is why its taught in math class and not in science class.
RTFA!!! (Score:1, Informative)
The article specifically states:
"The vast bulk of patents on software, business and information technology are thought by some not to be threatened because those innovations are typically implemented on a machineâ"namely, a computerâ"and the tie to a machine would provide security against the agencyâ(TM)s contractions of  101."
Yes, it affects PageRank because that software the technology not tied to a specific machine. But according the the article it shouldn't affect patents which are tied down to a specific hardware and software specification. Apple's iPhone software should be totally patentable. My personal view is that all this does is narrow the scope of patents so that you can't patent some technology for general use all computers.
RTFA Everyone: (Score:3, Informative)
Re:This violates my patent (Score:3, Informative)
nd then there's the issue of Software being seen as a product, but not being sold, and it being -licensed- instead...
That's copyright law, not patent law.
Short answer: Copyright law does not grant the author full control of the work. There are only five rights [copyright.gov] granted by copyright: reproducing, distributing, derivatizing, public display, and public performance. A holder of the copyrighted work can do anything with it that doesn't fall into these bins. And even these rights are limited by certain principles (fair use, first sale doctrine, etc.)
- David Stein