Judges Debate Patents and If New Software Makes a Computer a "New Machine"

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."

Genius!

[WillgasM]

1.Make it so that every time you load a new piece of software you invalidate the license of every other piece of software in an endless recursive loop.
2.????
3.Profit
4.goto 1

It does

[Anonymous Coward]

I know I'll be flamed for this because everyone here is against software patents, but...

The distinction between a physical machine and a physical machine running software is somewhat pointless. Almost any software can be converted into a physical machine. Using a hardware H.264 encoder/decoder or a hardware crypto card is really no different from doing those things in software. If you want to make a distinction between physical objects and software for patent purposes, the logic part of computers needs to be considered software despite the fact that it's been manifested as a physical object. But general purpose computers running software aren't any different than purpose-built computers executing the same logic in hardware.

software == machine

[gnupun]

The judges seem to echo what I posted on another slashdot post that software instructions and data structures create a machine -- very similar to an equivalent machine that could be created with off-the-shelf hardware, custom ASICs or FPGAs. Therefore software patents should enjoy same protection that hardware patents enjoy.

They are both the same in functionality and somewhat in implementation, only hardware is faster, more parallel but limited in functionality. Whereas software is slower, less parallel but has vastly more functionality than hardware.

Conflation of patent eligibility and novelty

[Theaetetus]

There are several requirements in the patent act, and they can be thought of as a set of thresholds that must be passed:

35 USC 101 requires that a claimed invention be directed to patent eligible subject matter: a process, machine, article of manufacture, or composition of matter (it also requires that the invention is useful). The courts have decided that these categories are very broad, but don't include "abstract ideas" (though that term is never defined), laws of nature, or natural phenomena.

If the claimed invention passes that low threshold for 101, 35 USC 102 requires that the invention must be new or novel. That's a higher bar, but not a huge one - if I'm the first person to make a red car and claim that in a patent application, that's new, even if blue cars existed.

If the claimed invention passes that threshold, then 35 USC 103 requires that the invention must be nonobvious. The red car is obvious if blue cars existed, even if no one has ever made a red car before.

So, for example, if some piece of software causes a computer to paint the screen in red paisley and that's never been done before, it's new... but it's obvious and still patent ineligible.

The problem is when these get confused or conflated into a single requirement, because obviousness and novelty require evidence, while subject matter eligibility does not. And so, you get cases like CLS or Bilski where the judges want to invalidate the patent because it's stupidly obvious, but they have no evidence on the record... so they declare it an abstract idea and invalid. In particular, here, the judges started carving out everything from the patent claim that made it non-abstract, declaring it irrelevant, until the only thing left was abstract. The outcome may be the right one, but it's for the wrong reason - it's like finding a murderer guilty because you hate his face. Maybe he was actually the murderer, but you're finding him guilty for the wrong reason.

It's not difficult.

[Impy the Impiuos Imp]

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."

Someone needs to slap the cowards in Congress to clarify this w.r.t. a "general-purpose machine".

Merely shoving some algorithm that is done by hand onto a computer is nothing novel. This isn't to say a particularly clever and non-intuitive software implementation couldn't be patented. But just doing it in software is not novel; it is obvious.

Software is indeed a virtual -- and specialized -- machine -- that is the idea behind computers as "generel-purpose machines". But not in the legal sense driving patents: novel and non-obvious innovation.

I keep recommending these rules:

1. If it's already being done in the real world, doing it on a computer is not patentable per se.

2. Doing a simulation of a real-world item is similarly not patentable per se.

3. Doing something wirelessly formerly done over a network, or remotely formerly done locally, or on a lil' phone or tablet or tricorder, is also not patentable per se.

4. This is not to say particularly clever implementations (the "machine" part of "virtual machine") could not be patented.

There, follow those rules, cowardly Congress, and you protect patentable innovation while eviscerating a ton of current patent problems.

Re:The Human Condition ...

[Arker]

"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 is patentable. "

Which just shows the absurdity of the patent regime. Your argument that a human being could not do that is worse than wrong, it's entirely ignorant. There is no way to triangulate signals without having an antenna involved, and the type of antenna is a purely functional choice based on the situation. Absolutely anything that a computer can do, a person can do. I/O devices? All the computer does with them is send and receive numbers - just exactly the same way a human computer would send and receive numbers appropriately in the same situation.

Where is the source code?

[rollingcalf]

If loading software turns a general-purpose computer into a new machine, the patent for that "new machine" should include all the internal details to make it work, particlularly the source code. Then if somebody else implements the same concept with different source code and different algorithms, they made a different machine so it's not infringing.

Re:Genius!

[Jane Q. Public]

"Do you know any off-hand or can you find one or two?"

I don't have case citations at hand but you can look them up. In particular, find copyright cases surrounding player piano rolls, in which the courts ruled that it made absolutely no difference whether copyrighted works were used to control a machine.

John Philip Sousa was famously involved in some of those suits.