Judges Debate Patents and If New Software Makes a Computer a "New Machine" 247
First time accepted submitter ectoman writes "A third party steps into a financial transaction to make sure all parties exchange funds at the same time and as expected. Can you patent this process? What if the third party is a computer? Rob Tiller, vice president and general counsel for Red Hat, details a recent court ruling on this very matter—one that has critical implications for the future of software patents, and one that divided the judges involved. Tiller writes that: 'The judges mostly agreed that the idea of managing settlement risk with a third party was abstract such that by itself it could not be patented. They differed, though, on whether using a general purpose computer for managing settlement risk meant that the patents avoided invalidity based on abstraction.' Interestingly, some judges suggested that a computer becomes a 'new machine' every time it loads different software."
Re:The reason they are judges... (Score:5, Informative)
Is that they do not have to understand the technical stuff. Patent Judges are the reason for the problem. If they were really qualified, they would not have a low-paying federal job.
You are thinking of a Patent Examiner [wikipedia.org], not a "judge". These are two very different governmental positions.
Re:The Human Condition ... (Score:5, Informative)
What the judges need to understand is that fundamentally, people are general purpose machines. Without any training at all, people are not capable of solving many problems. However, people can solve all sorts of problems based on what you teach them. Sure, you aren't going to be able to get a bushman in the Serengeti to be able to build the Apollo but, the potential is there given enough training. If that same bushman were to go to school and eventually graduate from college, they would be just as capable as anybody else. So how is receiving training through college or a technical school any different than a computer receiving a new set of instructions on how to solve a particular problem?
Computers only run algorithms (which aren't supposed to be patentable).
Except that 35 USC 101 explicitly says that processes are patentable, and a process is an algorithm. You have to go a bit deeper into understanding why the Supreme Court said that algorithms weren't patentable to understand the distinction. Specifically, they wanted to draw a line between thought and action: because one of the remedies for patent infringement is an injunction, you have to be able to order people to stop infringing. And while you can tell someone to stop performing the process for curing rubber, for example, you can't tell them to stop thinking of the equation for determining when to remove the rubber from the oven.
One way of drawing this line...
They follow a set of instructions step by step and can't do anything that you and I can't do with a pencil and piece of paper. (They just can do it a lot faster.)
... is to require that the claimed process has steps that you or I can't do with a pencil and piece of paper, no matter how slowly. So, for example, a patent claim of triangulating a position given three signals is not patentable, because we could do that on paper. But a patent claim that includes receiving those signals from a GPS satellite with an antenna [harvard.edu] is patentable. Think of it as a system - there's a black box that takes an input of some numbers and outputs some other numbers. You or I could do that as well as a computer (albeit slower), and it's unpatentable. But add on additional hardware that provides that input, or additional hardware that reacts to that output, and it's no longer something that we can do solely in our heads or on paper - you now need to perform an action of getting signals from something else, or closing a switch elsewhere, or whatnot. And so that's patentable, and you can be ordered not to take those physical steps that would infringe.
Re:Genius! (Score:5, Informative)
"I'm just saying that a favorable ruling here would insta kill windows, especially on the business side of things where things are inter-dependent and integrated to a degree that sometimes involves licensing."
F*cking clueless judges. There is precedent going back well over 100 years that software is irrelevant to the nature of the machine. Examples: different cards in a Jacquard loom do not make it a "different" loom. Different player piano rolls do not make it a "different" piano. Etc. There are actual court decisions to this effect.
Not to mention that it is also common sense.
Re:Genius! (Score:3, Informative)
In other words, the judge is making a moderately subtle argument that software patents ought to be unlawful.
No, the judges were serious on that point. FTA:
At the same time, a group of four judges strongly disagreed on the significance of the computer limitation. Chief Judge Rader, writing for this group, said that "a computer programmed to perform a specific function is a new machine with individualized circuitry created and used by the operation of the software." Similarly Judge Moore wrote for this same group of four judges that "a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software," on the theory that software "effectively rewires a computer."
Judge Moore’s tone was in places apocalyptic. She worried that Judge Lourie’s approach would mean "the death of hundreds of thousands of patents" and would "decimate the electronics and software industries." She said, "There has never been a case which could do more damage to the patent system than this one." Chief Judge Rader, in an unusual second opinion titled "Additional Reflections," stated that without patent protection "investors would quickly opt to put their resources" into some field safer than technology.
Lets see how bad this could get. Somehow, somewhere there is a business method patent that claims the process of using the idea that "a computer becomes a 'new machine' every time it loads different software." as a way to secure a software patent...
Either every software patent applicant and patent owner would have to pay licensing fees ...