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Software The Courts Patents United States

The Supreme Court Doesn't Understand Software 263

Posted by Soulskill
from the software-is-a-series-of-tubes dept.
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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The Supreme Court Doesn't Understand Software

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  • by smitty_one_each (243267) * on Friday June 20, 2014 @04:31PM (#47284983) Homepage Journal
    Everything to do with money
    • by raymorris (2726007) on Friday June 20, 2014 @06:34PM (#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.

      • by mysidia (191772) on Friday June 20, 2014 @08:23PM (#47286425)

        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.

        • by raymorris (2726007) on Friday June 20, 2014 @09:11PM (#47286611)

          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.

          • by JoelKatz (46478)

            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

            • by ultranova (717540) on Saturday June 21, 2014 @05:35AM (#47287675)

              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 of time?

              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.

              And, if not, what "mechanism" should your patent be tied to?

              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.

      • by TapeCutter (624760) on Friday June 20, 2014 @08:25PM (#47286433) Journal
        It's been argued that had Huffman implemented his famous compression algorithm in hardware rather than software he would have been granted a patent. The social/legal problem is that modern Science is demonstrating the term "the laws of nature, including the laws of mathematics" is synonymous with "everything". Particularly in the computer and biotech industries.
        • by jd (1658)

          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.

        • by Arker (91948)
          "It's been argued that had Huffman implemented his famous compression algorithm in hardware rather than software he would have been granted a patent."

          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
      • by jd (1658) <imipak@nOSPam.yahoo.com> on Friday June 20, 2014 @11:13PM (#47287013) Homepage Journal

        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.

      • by rtb61 (674572)

        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.

    • by Motard (1553251)

      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

      • 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

        • by Motard (1553251)

          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.

    • by Darinbob (1142669)

      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.

  • 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.
    • 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.
    • > 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.

    • by jd (1658)

      There is nothing that software can do that a physical implementation of the model cannot do. See Turing for details.

  • by Prune (557140) on Friday June 20, 2014 @04:39PM (#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.
    • by suutar (1860506)

      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

    • 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".

      • by Prune (557140)
        Nope: "it" also be copied. https://en.wikipedia.org/wiki/... [wikipedia.org]
        • by tepples (727027)
          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."
    • by JesseMcDonald (536341) on Friday June 20, 2014 @05:23PM (#47285369) Homepage

      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".

      • by Prune (557140)
        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 yo
      • 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

        • by Arker (91948)
          "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..."

          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.

    • 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

    • by jd (1658)

      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

  • 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 assumptio

    • by Krishnoid (984597)

      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.

  • 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.

  • 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 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.

  • 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.

  • by fsterman (519061)

    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....

  • 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!

  • 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

  • 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

  • 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.

  • 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.

The bogosity meter just pegged.

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