By John F. Duffy* [File Attachment (42 KB)]
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 § 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.”[1] Perhaps, the agency has conceded, some “new, unforeseen technology” might warrant an “exception” to this formalistic test, but in the agency’s view, no such technology has yet emerged so there is no reason currently to use a more inclusive standard.[2]
The Bilski en banc hearing attracted enormous attention, and yet there has remained a sense among many patent practitioners that the PTO’s attempts to curtail section 101 would affect only a few atypical patent claims. 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 machine—namely, a computer—and the tie to a machine would provide security against the agency’s contractions of § 101. Even if that view were right, the contraction of patent eligibility would be very troubling because the patent system is supposed to be designed to encourage the atypical, the unusual and the innovative. But that view is wrong.
The logic of the PTO’s positions in Nuijten, Comiskey and Bilski has always threatened to destabilize whole fields of patenting, most especially in the field of software patents. If the PTO’s test is followed, the crucial question for the vitality of patents on computer implemented inventions is whether a general purpose computer qualifies as a “particular” machine within the meaning of the agency’s test. In two recent decisions announced after the oral arguments in the Bilski case, Ex parte Langemyr (May 28, 2008) and Ex parte Wasynczuk (June 2, 2008),[3] the PTO Board of Patent Appeals and Interferences has now supplied an answer to that question: A general purpose computer is not a particular machine, and thus innovative software processes are unpatentable if they are tied only to a general purpose computer.
That stark answer should capture the attention of the many inventors and firms owning, or seeking to own, patents on innovative computer implemented processes, for the PTO’s new interpretation of patentable subject matter provides a clear avenue to reject patent applications and to invalid issued patents on all such innovations without regard to how meritorious or creative the innovation is. To understand the sweeping implications of this new position, we need only to consider how the PTO’s position applies to the patent on Google’s PageRank technology, which is surely one of the most famous and valuable of all modern software patents and which is now almost surely invalid under the agency’s position.
The Patent on Google’s PageRank Technology
Google has constructed its web search technology using a “technology for ranking web pages” that the company refers to as “PageRank.”[4] This patented technology was developed by Larry Page and Sergey Brin while they were attending < ?xml:namespace prefix ="" st1 />
A computer implemented method of scoring a plurality of linked documents, comprising:
obtaining a plurality of documents, at least some of the documents being linked documents, at least some of the documents being linking documents, and at least some of the documents being both linked documents and linking documents, each of the linked documents being pointed to by a link in one or more of the linking documents;
assigning a score to each of the linked documents based on scores of the one or more linking documents; and
processing the linked documents according to their scores.
How does Google’s patent fare under the position advanced by the government in Bilski? The first part of the government’s test recognizes the patentable eligibility for processes that result in “a physical transformation of an article.” Google’s PageRank process seems to fail that part of the test, for the process merely generates a set of scores (which are merely numbers) that are then used to score or rank documents. The documents themselves probably do not qualify as physical articles under the government’s restrictive test, for the documents are typically virtual webpages. Moreover, even if the documents would count as physical articles, they are not transformed; the process merely ranks them. The total output from the Google patent is just a mass of intangible data, and worse still it is intangible data about intangible documents. Simply put, there’s no “physical,” no “transformation,” and no “article.” Indeed, Google’s process is even less physical than the process at issue in Bilski, which involved hedging the volatility in money flows. Dollars and cents seem real and physical enough for many people. If processes affecting money flows do not qualify as producing a physical transformation, it seems impossible to imagine that a process would qualify where it only scores virtual documents by virtual links to other virtual documents.
The second part of the PTO’s proposed eligibility test is thus crucial. Unlike the patent claim in Bilski, which was not limited to machine implemented hedges, Google’s PageRank patent claim expressly states that it is “computer implemented.” But the government’s test does not merely require a connection to a machine; it requires a tie to a particular machine.
On a recent panel held after the oral argument in Bilski, I raised the issue of Google’s patent claim with Ray Chen, the lawyer who represented the PTO in Bilski, and he asserted that, under the PTO’s position, the Google claim was probably still patentable.[8] But in light of the PTO’s subsequent decisions in Langemyr and Wasynczuk, it is increasingly hard to see how Google’s PageRank patent survives. Nor is that one patent an anomaly in Google’s portfolio.[9] Indeed, other patents owned by Google include claims that do not even include a formal limitation to a computer.[10] Google might have thought that the patent system would surely protect new technological developments that are highly creative and socially valuable. The PTO’s new position proves that view mistaken.
Langemyr and Wasynczuk
The patent claim at issue in Langemyr covers a “method executed in a computer apparatus” for producing a model of a physical system using a set of partial differential equations.[11] Even though Langemyr’s claimed invention is more closely tied to the physical world than Google’s PageRank technology is—Langemyr is, after all, modeling the physical systems rather than scoring virtual documents by their virtual links to other virtual documents—the PTO Board still had little difficulty finding that Langemyr’s claimed process does not contain a “physical transformation” and therefore does not qualify as patentable subject matter under the first part of the PTO’s test. The Board reasoned that the claimed process produced no “transformation of subject matter but merely an abstract mathematical expression that is created from the previous steps.”[12] The process, the Board noted, “does not require any physical output into the real world.”[13] Precisely the same can be said of Google’s patented process, which produces merely mathematical expressions—a set of ranks or scores—and lacks any physical output into the real world.
Thus for both Langemyr and Google, patent eligibility under the PTO’s test comes down to the interpretation of the second part of the PTO’s test. Both the Langemyr and Google patent claims are expressly limited to processes “executed” (Langemyr) or “implemented” (Google) on a general purpose computer, and the Langemyr decision holds that “the limitation that the method is ‘executed in a computer apparatus’ does not tie the method to a ‘particular machine.’”[14] The key flaw in Langemyr’s claim, the PTO Board reasoned, was its general applicability to all computer: “Any and all computing systems will suffice, indicating that the claim is not directed to the function of any particular machine. … Thus, the claimed method is not tied to ‘a particular machine,’ but rather is tied only to a general purpose computer.” [15]
In these crucial passages, the PTO Board has provided the foundation for rejecting and invalidating huge swaths of software patents, including not merely Langemyr’s claims, but those of Google, Microsoft,
This is not, however, the end of the story. The PTO’s decision in Ex parte Wasynczuk provides one final twist so Kafkaesque as to strain credulity.
As in Langemyr, the invention at issue in Wasynczuk relates to a “computer-implemented” process for modeling physical systems.[16] As in Langemyr, the PTO Board in Wasynczuk holds the broadest claim in the application to be unpatentable subject matter because “the sole structural limitation recited is the ‘computer-implemented system’ of the preamble” and that limitation “is not any particular apparatus” because the computer could be “essentially any conventional apparatus that performs the claimed functions.”[17]
Yet unlike in Langemyr, the application in Wasynczuk also included a narrower claim in which “the first simulating step [of the claimed process] is performed on ‘a first physical computing device’ and the second simulating step is performed on ‘a second physical computing device.’”[18] The PTO Board holds that claim to be patentable subject matter. The Board concluded that the collection of the two “physical computing devices” operating together “is ‘a particular apparatus’ to which the process is tied, not simply a generic computing device for performing the steps.”[19] Distribution of the process over two general purpose computing devices quite clearly seems to be the key to patentability in the Board’s view, for the Board emphasized that the narrower claim covered only the embodiment in Wasynczuk’s specification that “uses two computing devices” not the embodiment that “uses a single computer.”[20] In sum, an innovative process is not patentable when operating on a single computer processor but is when operating on two processors, even though the Board recognizes that the process in the unpatentable claim “is essentially the method” set forth in the patentable claim.[21]
Google’s PageRank patent claim is of course not saved by the PTO’s caveat that two computer processors are better one when it comes to patentable subject matter. The PageRank claim requires only computer implementation and is thus invalid under both Langemyr and Wasynczuk. But the Wasynczuk definition of “particular machine” opens up vast possibilities for future litigation. In an age when even simple laptops often contain multiple processors, many patent claims could be written as functioning on multiple “physical computing devices.” Will such claims generally be patent eligible? Will dual core processors operating on a single chip (e.g., Intel’s Centrino Duo® chip) constitute a “particular machine”? Or will the processors have to be physically separate chips or physically separate computers? Will the patent claims have to specify that certain steps occur only on one processor while other steps occur solely on the other? Will the result be different if the processors share steps to some degree? All these and many more fascinating questions will provide ample billable hours for patent attorneys even as inventors look on with utter horror and disbelief at the crucial importance the legal system is placing on distinctions that are technologically meaningless to the innovations sought to be patented.
Requiem (?) for Google’s Patent
The apparent death of Google’s pioneering PageRank patent under the PTO’s new rule for patentable subject matter may be a cause for celebration among those who are philosophically opposed to property rights in innovation and are eager to confine the patent system’s ambit. It will surely be cause for mourning among those who believe that allowing patents on cutting edge technologies has served the country well for more than two centuries and that a radical departure from the traditional approach would be unwise. And it is likely to generate puzzlement among business people and innovators, who may wonder how agency decisions supposedly premised on the need for ensuring that “that the patent system be directed to protecting technological innovations”[22] have ended up rendering unpatentable innovations in search engine technology, computer modeling, bioinformatics and many other innovations in cutting edge fields related to software and information technology.
Undeniably, however, the pallor now cast upon Google’s patents and many other software patents highlight the stakes in the Federal Circuit’s pending en banc decision in Bilski. The PTO Board’s reasoning in Wasynczuk also reveals that the agency’s proposed new rule for patentable subject matter will not produce certainty but will instead open up software patents to new and previously unimagined litigation over the precise scope of the concept of a “particular machine.” Vast industries of modern innovation must now wait to see whether the courts will follow the agency’s lead.
[1] PTO Supp. Bilski Br. at 25 (argument section heading; initial capitalization omitted). See also id. at 6 (heading of argument section C.1, stating that “a Section 101 ‘process’ must either be tied to a particular apparatus or transform an article to a different state or thing”) (capitalization modified).
[2]
[3] The decisions are available at, respectively, /media/docs/2008/07/fd081495.pdf and /media/docs/2008/07/fd081496.pdf.
[4] Google Form S-1, Registration Statement (filed
[5]
[6]
[7] The other claims in the PageRank patent include no more connections to a machine than does the first claim. Twenty-seven of the twenty nine claims are directed to “computer implemented” processes that, like claim 1, have no limitation to a particular type of computer. Two claims (18 & 19) are directed to software-on-a-disk claims (so-called Beauregard claims), with the claim covering a “computer-readable medium” containing instructions for the PageRank scoring process.
[8] See Tony Dutra, Bilski Opponents Renew Debate on Patentability Formalisms and Standards (
[9] See, e.g., U.S. Pat. No. 6,678,681 (issued
[10] For example, the first claim in U.S. Patent No. 6,526,440 (issued
1. A method of identifying documents relevant to a search query, comprising:
obtaining an initial set of relevant documents from a corpus;
ranking the initial set of documents to obtain a relevance score for each document in the initial set of documents;
calculating a local score value for at least two of the documents in the initial set, the local score value quantifying an amount that the at least two documents are referenced by other documents in the initial set of documents; and
refining the relevance scores for the documents in the initial set based on the local score values.
See also U.S. Pat. No. 7,222,299 (issued
[11] Claim 1 in Langemyr’s application reads:
1. A method executed in a computer apparatus for creating a model of a combined physical system having physical quantities by representing physical quantities of the combined physical system in terms of a combined set of partial differential equations, the method comprising:
representing at least one of a plurality of systems as two or more selected application modes modeling physical quantities of said one of said plurality of systems;
determining a set of partial differential equations for each of the two or more selected application modes, parameters of the partial differential equations being physical quantities of corresponding ones of said plurality of systems;
forming said combined set of partial differential equations using the determined sets of partial differential equations associated with said one of said plurality of systems; and
outputting a model of said combined physical system based on said combined set of partial differential equations for the two or more selected application modes for the said one of said plurality of systems, whereby the model represents a mathematical expression of the physical quantities of the combined physical system.
Langemyr, BPAI Slip Op. at 2-3.
[12]
[13]
[14]
[15]
[16] Wasynczuk’s claim 1 reads:
1. A computer-implemented system, comprising:
a first executing process that:
implements a first continuous-time model to simulate a first physical subsystem, the first model being programmed in a first language and having a first state variable; and
sends a first series of state-related numerical values, each numerical value reflecting information relating to the value of the first state variable at a different point t, in simulation time in the first model; and
a second executing process that:
receives said first series of state-related numerical values from said first executing process without said first series of state-related numerical values passing through a central communication process;
implements a second continuous-time model to simulate a second physical subsystem, the second model being programmed in a second language and taking as an input values from said first series of state-related numerical values; and
outputs data representative of a state of the second continuous-time model.
Wasyczuk, BPAI Slip Op. at 2-3.
[17]
[18]
[19]
[20]
[21]
[22] Langemyr, Slip Op. at 8; Wasynczuk, Slip Op. at 12.
I quite agree: computer implementable inventions that solve technical problems should be patentable as methods, programmed apparatus and program products – with or without data carriers
– just as they are in Europe.
Now here’s the test: uspat no 4713817 to Wei – dec 1987 (Wei wins the Shannon award for this invention – for those who don’t know the Shannon award is like a objectively award noble prize in communication). Trellis encoding – attributed to Wei – is the major breakthru in modern communications – it is a perfect example of human innovation by that i mean a true human ‘invention’ and not a feature found in nature like E=MC^2 – but of innovation that can (must) be expressed and implemented by mathematical application to the QAM signal. Here’s his method claim:
31. A technique for estimating the most likely sequence of multi-dimensional signal points to have been sent via a channel from a transmitter of the kind that causes said multi-dimensional signal points to carry information about said sequence based on state transitions of a finite state device, said multi-dimensional signal points being drawn from a multi-dimensional constellation partitioned into multi-dimensional subsets corresponding to said state transitions, said multi-dimensional constellation being a concatenation of constituent constellations having fewer dimensions, each said constituent constellation being partitioned into constituent subsets, each said multi-dimensional subset consisting of multi-dimensional types, each said type being a concatenation of said constituent subsets, each said multi-dimensional signal point being a concatenation of a plurality of constituent signal points of fewer dimensions, said technique comprising
determining the distances between each received constituent signal and the nearest constituent signal points in the corresponding said constituent subsets,
determining the distance between each said received multi-dimensional signal and the nearest multi-dimensional signal point in each said multi-dimensional subset based on a combination of said distances with respect to constituent subsets corresponding to said multi-dimensional subset, and
determining said most likely sequence based on the distances between each said received multi-dimensional signal and the nearest multi-dimensional signal point in each said multi-dimensional subset.
Without question, the wei innovation – was sufficiently inventive to warrant a patent, but it appears to fail the new 101 test? Without question the trellis encoder/de-coder is implemented on a general purpose computer – but you can also implement it with an analogue demodulator and state-diagramed discrete logic circuit. Why the distinction? No modern communication product uses discrete circuit design- its all implemented on the dsp (a general purpose computer that happens to be fast at mathematical calculations).
“no rights can exist without the right to translate one’s rights into reality—
to think, to work and to keep the results”
What that means in very simple terms is that a Search Engine Bot should not follow that link. Your commentator receives no link benefit from this and gets no page rank credit from Google. The reason why this is a default action in WordPress is to combat comment spam, to stop people from leaving meaningless comments just to get a link back to their websites
“Not until we let go of the e-g-o is this world going to transcend its childlike practice of needing to be noticed and needing to own everything it creates.”
Albert Hoffman tried, Glen Campbell cried.
This is a good article on software patent issues. I’m convinced that it’s time to eliminate the software patent process, and simply use the existing copyright and trademark protection for software. See my article on blog.startupprofessionals.com titled “Software Patents: Time for a Change” for specifics.
Marty Zwilling, Founder & CEO, Startup Professionals, Inc.
Haven’t courts already denied this line of logic from the PTO (general purpose computer vs. particular computer)? as cited in In re Lowry, In re Bernhart and Fetterer states:
There is one further rationale used by both the board and the examiner, namely, that the provision of new signals to be stored by the computer does not make it a new machine, i.e. it is structurally the same, no matter how new, useful and unobvious the result. . . . To this question we say that if a machine is programmed in a certain new and unobvious way, it is physically different from the machine without that program; its memory elements are differently arranged. The fact that these physical changes are invisible to the eye should not tempt us to conclude that the machine has not been changed. Bernhart, 417 F.2d at 1400.
Under the United States Rejection and Trademark Office standard, word processors, spreadsheets, CAD programs (unless connected to a rapid prototyping machine), web browsers, database management software, etc. are all ‘natural phenomenona’.
Did anyone ever found one grow on a tree?
Moreover, to all those that claim sthat those inventions could be generated by ‘having sufficient number of monkeys given sufficient time, and sufficient number of general purpose computers’ willing to take the delay of ‘sufficient time’ (read ‘infinity – 0.1 sec’) before they could use those inventions?
if so, kindly wait and do not use any of those great inventions unti you have sufficient monkeys work sufficient time.
The USPTO did hurt many of the people that invented those great things and State Street came to fix this grave injustice. Now, the USRTO is trying to bring back the theft of intelectual property by the state, not for the benefit of the state, but for the benefit of their total and utter incompetance.
…..and on and on it goes! Am sure that someone will soon patent a system and methodology for enabling the creation of a universe!
Might even be one of the majors; Monsanto, Beyer etc seeing they’ve already started patenting seeds (material creations already in existence), genetics etc. So why stop there? What if a new material was found on an orbiting planet that could fuel the world’s appetite for power? What if the funders of the program that made the discovery decided to patent the resource and then license the material back to the whole world?
As I wrote before, ideas are formed from various interactions with and observations of ‘things already in existence’. Nothing is formed in a vacuum. Newness is fundamentally a modification of an oldness. Patent holders (those who can afford to protect their newness) believe they have a ‘right’ to their specific newness because they hold a piece of paper acknowledging their right to enforce their ownership. The whole patent system is itself just a perpetual incremental revenue generating engine.
In essence, what it all boils down to is this: patents are about egos and proof of ‘ownership’. As a collective and as a race we don’t have the capacity to truly share in knowledge…well not yet anyway. Not until we let go of the e-g-o is this world going to transcend its childlike practice of needing to be noticed and needing to own everything it creates.
Perhaps the acceleration of global climate change might move us a little closer to harnessing the untold potential we could realize if we actually collaborated on everything from solar power to waste management to super efficient transport systems.
I live in hope we’ll wake up soon ’cause something’s gotta give!
TFD (from the heart not the head)
I don’t agree with some of google’s patents. But they have their reasons why they do what they do.
The patent document contains many general suggestions about the direction Google wants to move their search criteria and ranking techniques in the near future.
The document points out two areas in particular in which “there remains a need to improve the quality of results generated by search engines.”
“The only difference between one program and another is the order in which the commands are sent to the CPU.”
Begin Pseudo Program #1:
Get Random_Number(1,10)
If Random_Number > 6
Then Fetch and Perform Instruction_1
If Random_Number > 2
Then Fetch and Perform Instruction_2
Else, Reformat(HardDrive_C)
End If
End Program_#1
“The only difference between one program and another is the order in which the commands are sent to the CPU.”
Mike “2) Software is, and always will be, an algorithm. It’s a procedure. It is a set of commands that is sent to a CPU. The only difference between one program and another is the order in which the commands are sent to the CPU.”
Another difference between Adobe Photoshop and Microsoft Paint, for example, is that one delivers powerful tools that have been engineered to serve the needs of countless professional users and therefore has a multi-billion dollar market and the other is a simple bitmap editor of no real value to anyone.
Huck “PDS: what patents do MySpace, Facebook and Twitter have?”
Well, Google’s success depends crucially on the quality of its search technology, so right there is a reason for them to have a keen interest in patents. There’s nothing that MySpace etc do that is directly reliant on any particular technology.
And Facebook at least have two published US patent applications. Claim 1 of one of those applications reads:
1. A method for dynamically generating a privacy summary comprising:generating a profile for a user;receiving one or more privacy setting selections from the user associated with the profile;updating the profile associated with the user to incorporate the one or more privacy setting selections; andgenerating a privacy summary for the profile based on the one or more privacy setting selections.
Isn’t that brilliant?
“it was reported today that IT salaries have dropped for the first time in a long time (11 years)”
Nobody could have predicted that would ever happen.
Mr. Rat:
You said “The invention would be the new algorithm – the mode of implementation really being irrelevant to the “newness” of the algorithm itself. The idea of implementing the algorithm in hard wired circuits rather than by software using lower level machine instructions being an obvious step given the state of the art.”
So are you rejecting the claim to this invention under 101 or 103?
Mike,
With due respect, I’m not reaffirming anything. I don’t even understand what you mean by commands being “sent” to the CPU. A conventional CPU has a program counter register and various other registers including base address registers, a stack pointer, scratchpad registers, etc. At the appropriate time and in response to microcode, the program counter sends out an address signal to memory and memory returns the opcode(s) then pointed to by the program counter. The CPU then responds to the fetched opcodes.
All these various signals and registers are real physical things. They are not abstractions. If they were abstractions, nothing would happen.
Okay, Malcolm, I will bite — but be gentle with me.
Photons are compositions of matter because they can be detected.
Stepback and Mike
I think a better example of the grey area between hardware and software would be an algorithm for multiplying or dividing two floating point numbers or taking a square root. Such an algorithm might be implemented in software (as it was when using the original IBM PC based on the 8088 chip) or in microcode or it might be implemented in the permanent physical structure of the chip, or some combination of one or more of these methods.
The invention would be the new algorithm – the mode of implementation really being irrelevant to the “newness” of the algorithm itself. The idea of implementing the algorithm in hard wired circuits rather than by software using lower level machine instructions being an obvious step given the state of the art.
Mike – Huh? follow the money … simple question, asked many times – is RSA patentable subject matter? Why not? Is RSA a business method? Does it enable business methods? Did it not enable the riddance of credit card books & real couriers carrying cash between banks? Or say, privacy protections or free speech … As to your points, you appear to disregard fundamental information theory …
“Software if FUNDAMENTALLY DIFFERENT for many reasons.” actually it is not, in any meaningful way … try: babbage, boole, fourier, laplace, newton (even), nyquist, shannon, von neumann, reed & solomon, & if pendency in patents matters check out friedman’s recently issued patent filed in 1936 (us pat 6130946) … what is unstructured (“analog” – cognition – what we perceive) can be structured quite efficiently but NEVER can it be obscured (one time pads can only be reliably used once – the exception) … chaitin provides a rich basis for understanding the limits of programmability … akin to godel and the limits to mathematics (which i will argue IS the language of nature – software is not)
“1) It is naturally obfuscated. You can NOT see how it works just by looking at it. The distributable (the binary that is sold) is not in a form where people can figure out how it works.”
what people? if i can run the program it is a self-contained oracle … so-what if copyright protects the exactness of a particular arrangement of code (machine, object, executable) … and so what if you use one compiler versus another … no software is undecipherable – in fact, that is the basis for kerckhoff’s law which is to assume your adversary knows your cipher … err software … he formed this opinion in 1883 … it may be easy to think of software as code and a cipher as code plus a key
“2) Software is, and always will be, an algorithm. It’s a procedure. It is a set of commands that is sent to a CPU. The only difference between one program and another is the order in which the commands are sent to the CPU.”
an algorithm? huh. perhaps an organization or compilation of functions which may include algorithms but software is not “an algorithm” alone … & if it were an algorithm what is the CPU doing when it “processes” input>algorithm>output – stop? software enables people to structure data to achieve a particular outcome – very simplistic explanation but how much of the “software” that you “use” is a “procedure”? designed or reduced to practice as a method & by whom?
if you are right, what is the point of diversity in programming? why not agree that mp3 is good enough and leave it at that – mp3 as a codec can also be included in other “software” with very different functionality – say streaming versus playing back a previously saved file. or, it can be used to record the cracked deCSS key which can be hard by others to crack the early DVD security …
“3) Because it is a set of commands that is sent to a CPU, there is a finite number of ways to accomplish a task. This is NOT a finite set of linkages or shapes that you can work with when inventing a mechanism. The sky is the limit. It most certainly is NOT with computer language.”
now you say it is a set of commands – that is not simply an algorithm, is it? who makes the commands? what is the set? which set of commands? computer language is just constrained by the computer – for instance, are you saying that a cpu is just a the same as a gpu? is CUDA the same as C or C++? are these the same? “the sky is the limit” – until your money and/or your creativity runs out … in the meanwhile, plenty of programming languages say they accomplish the same “commands” on different cpus – do they? write once … debug always … is the effort to improve software also not patentable? how about anti-virus or software that is designed specifically to resist the efforts of those programmers coding for malicious purposes?
what is the difference between PDL (well, there was a little history there because it had one of the earliest software licenses CFG-Intel-Boeing – if memory serves – around 1974 – notwithstanding the famous letter to the editor written by a certain OS/apps company founder that software should not be free), LISP, Mathematica, Fortran?
diversity matters and the patent system is the best mans to encourage public disclosure of innovation … you do not seem to provide a counter example of something that would be an adequate substitute – stated many times – litigation is cheaper than R&D
“I can go on, but I’m sure that people already have their minds made up, one way or another…”
please do go on … it was reported today that IT salaries have dropped for the first time in a long time (11 years) and so, how will software folks create value, protect themselves, and get paid? if software is OBFUSCATED why fear outsourcing – the developer of the software will always have a job (no?) – OTOH – even the DoD requires a certain level of documentation for the code – ah, legacy – what happened to all the “free” OS companies that became services providers and were then bought out?
no one disagrees you are free to do things for free … but then again, we all compete against free …
“Thus to me, sending commands to a CPU entails the transmission of electric charge carriers (i.e. electrons) through a conduction medium. All that “stuff”, electrons, wires, transistors, etc. are compositions of matter to my mind.”
What about photons?
They seem like are physical events to me
I’m confused. Are you claiming that software is not a set of commands that gets sent to a CPU? Are you claiming that a set of commands is something physical? Are you reaffirming that the physical storage of commands results in physical changes of hardware? Or are you reaffirming that processing those commands results in physical changes of the hardware?
“Are you serious? There can not be a brighter dividing line between hardware and software. Lets start with the obvious. Hardware is a physical object.”
Mike,
It seems to me that you and I were schooled in markedly different educational institutes. The place I attended taught hard science courses like physics and chemistry. Thus to me, sending commands to a CPU entails the transmission of electric charge carriers (i.e. electrons) through a conduction medium. All that “stuff”, electrons, wires, transistors, etc. are compositions of matter to my mind. Perhaps not to yours.
When I touch an FPGA, it feels tangible to me even though its operations are defined by programming of internal configuration bits.
When I touch a CPU, I know (from experience) that its internal operations are defined by microcode (not to be confused with assembly code). It’s hard and yet it contains code. There is no bright dividing line. Mother Nature does not care that you call one thing “hard” and another “soft”. The electrons move nonetheless. The registers get flipped. The voltages shift. Whether you are aware of it or not.
Peace.
“There is no bright dividing line between hardware and software.”?
Are you serious? There can not be a brighter dividing line between hardware and software. Lets start with the obvious. Hardware is a physical object. It is matter, and it has mass. You can touch it. Software is a procedure. It is a series of commands that you send to a CPU. A procedure is not matter and is not has no mass. You can not touch it. Pretty cut and dry.
Its like the difference between a piano and sheet music. Sheet music is a series of commands that you send to a piano to produce a song.
Mike:
You should also consider quickly filing a provisional application when you come up with a software “invention” (and then follow up within a year with your regular application). Should you later get involved in a controversy with someone contending that they have invented something similar around the same time as your invention date, the provisional application will give you proof of your conception date.
As for your point 3,
if you read what I wrote, I said that (unlike what patents were originally created for) it is NOT obvious how a program works just by looking at it. This is one of the reasons why patent protection is NOT needed. Copyright provides more then enough protection. Also, PageRank IS an algorithm. It’s a mathematical way of determining relevance based upon counting hyperlinks (among other things). Google themselves call it an algorithm. link to google.com. As for your other comments in point 3, I have no idea what you are talking about.
As for your point 4,
That’s the whole point of NOT allowing a patent. Google uses a specific implementation of searching using a method of counting hyperlinks. They obtained a patent on the system of searching by counting hyperlinks. It does not matter if you come up with a better implementation of searching using a method of counting hyperlinks (despite the fact that you came up with it completely independently, as you have no access to Google’s source code, and have no way of determining how Google did it by looking at their homepage). You can not use that ENTIRE RANGE OF IDEAS at all. So there is no point of even trying to advance that system yourself.
Just because it is someone else’s burden to enforce their patent does not mean that I am not at a financial risk from them suing me. It’s like saying it’s ok to drive 5 mph past the speed limit because the cops probably won’t bust you, or it’s ok to speed in the country because the cops probably won’t be patrolling the specific road you are on.
Ask any patent lawyer what the best way to protect yourself against patent law suits when you design software. The best defense is to have a large enough portfolio of patents (that you own) so that if they threaten to sue you, you threaten to sue them back. Hopefully, they believe that the resulting legal issues would cost more then what they expect to receive from you. Not such a bad strategy when you are a multimillion dollar corporation.
Mike,
calm DOWN. you’re shouting. you may be a cpu programmer (& believe it or whatever, many of us out here still do it or did it too), but you also appear to be ill informed about the pragmatics of patent law.
1. You have absolutely no legal duty to go out and find patents that you might be infringing.
2. It is the burden of the patent owner to instead find you if you are infringing and in many cases this is impossible from a practical sense.
3. So you’re excuse for not coming up with today’s killer app is ill founded. All those patents out there are not stopping you. What’s stopping you is you’re lack of creativity. Come on now. I expect one killer app a week from you. After all, they’re all obvious and “mere” conversions of pre-existing business practices or math operations into automated ones. (cough cough)
4. For example, I saw a recent news article about some Google ex-alums claiming to have come up with an even better search algorithm. Obviously you thought of it first and published it on one of those open source forums. So please point out the article so the rest of us won’t have to pay anything (not 1 cent) to those evil people who claim to have an improved search engine
“There is no bright dividing line between hardware and software.”
I agree but the conclusion I draw is that some inventions which amount to algorithms to be implemented in hardware may be objectionable in principle.
[[Software p]] _P_atents are no more than a means of saying that_, for a limited term,_ no [[two people are ever]] _more than one person is_ allowed to [[have the same]] _use a_ bright idea _without risking a lawsuit or paying a royalty_.
Max,
Of course, based upon European case law and commentary, when software is “computer programs as such” and when it is not, is just as vague as the US.
What are you talking about? I AM a programmer. I HAVE written applications. I DON’T write them anymore. It is literally IMPOSSIBLE to write any useful application without infringing on someone else’s patent. So, at my own personal level, patents have most certainly stiefeled innovation. In the software industry, that’s all I have EVER personally seen it do.
Mike,
May you be blessed with the insight to come up with the next killer app,
And then rightfully cursed with the inability to profit from it. 🙂
Mike, many have closed their minds, true, but that doesn’t mean the subject is closed. The European Patent Convention has forbidden patents for “business methods, and computer programs, as such” since it came into force in 1978 but the European Patent Office grants thousands of patents each year on “computer-implemented inventions”. Europe thinks that patentability belongs to technological but not business innovation. The US Patent Statute was written before software was invented. It could be reformed but, hey, that’s proving to be difficult. The courts in the USA could draw the line but, hey, what do the judges know about “computer programs”? The issue, where to draw the line on patentability, is very much a work in progress, where trenchant and logical views can still carry the day.
One last thing. Unlike virtually anything else that patents might cover, in the software industry, COPYRIGHT provide more then enough protection for innovation. Again, because the binary is obfuscated, you can not see how something is done by looking at it. Copyright prevents people from making an exact copy of that code and sell it themselves.
So, the ONLY thing that eliminating patents would do in the software industry is make it easier for software engineers to write programs.
Patents were never meant to cover thoughts, ideas, procedures, or algorithms. The REASON why patents are important and were created in the first place is that form ever follows function. When you invent a mechanism, you can figure out how it works simply by looking at it. So, to encourage people to continue to invent mechanisms without either a) worrying about people seeing how the mechanism is put together and selling their own product based on that, or b) building elaborate concealing devices that obfuscate or completely shield the mechanism, to prevent others from seeing it. The result is that it allows people to continue inventing without worrying about that stuff. Software if FUNDAMENTALLY DIFFERENT for many reasons.
1) It is naturally obfuscated. You can NOT see how it works just by looking at it. The distributable (the binary that is sold) is not in a form where people can figure out how it works.
2) Software is, and always will be, an algorithm. It’s a procedure. It is a set of commands that is sent to a CPU. The only difference between one program and another is the order in which the commands are sent to the CPU.
3) Because it is a set of commands that is sent to a CPU, there is a finite number of ways to accomplish a task. This is NOT a finite set of linkages or shapes that you can work with when inventing a mechanism. The sky is the limit. It most certainly is NOT with computer language.
I can go on, but I’m sure that people already have their minds made up, one way or another…
Malcolm wrote “What’s the use of that? Well, for starters, it’s useful for converting X, Y, and Z to X2, Y2, and Z2, which you might want to do if you were [insert just about anything you want here].
There you are. Give me my patent! Good luck for finding the motivation in the art to do all the steps that I can stick in my specification for blah blah and blah, given my ability to give those steps all kinds of silly technical names that will confound your ability to do a decent search.
Anybody can come up with a new algorithm that works because math always works. You put a “plus” sign in your equation between two values and guess what: they add up. Every time! Add up three values and divide by three, you get the average: EVERY TIME! Is it because I am an “expert” at algorithms? No. It’s because all that is happening is that numbers are being changed to other numbers.”
(1) Mechanical and electromechanical inventions are not required to have any more usefulness than that they do what I claim.
(2) Nice strawman. The alogorithms you describe would not be patentable because of novelty. Which is my point. If it’s known or obvious, it should not be patentable.
(3) X2, Y2, and Z2 have to have some sort of value or use to the user. Assuming they do, and assuming the method is novel, then why shouldn’t it be patentable.
To Malcolm Mooney: Agreed “”Technical” as understood by the EPO” is boring. But at least it’s no more than a minority interest (for those working at the interface between technological innovative activity and business innovation. So “technical because I say it is” is a “puzzle at the edge of the claim” and therefore not much of a legal problem. Unlike “Obvious because I say it is” which is a universal challenge, to all patent attorneys.
I thing the google patents should stay and everything except the 15 or 20 thousand good patents should be revoked There putting trash patents out the door at pto by the millions they will never lead to anything of significance being created. There reissuing the old with minor design changes that amount to reissuances with no justification! Now theres the place to let the proverbial axe fall.
ironcislip: “Experts? What experts? Patent Law should be technology-neutral”
Why? Because that maximizes revenues for lawyers?
ironcislip: “And, no you need not care but please do provide an example of how software patents have caused you any issue versus say a DRM (patented software) in accessing some content you purchased? Where did the patent cause the issue?”
I have already cited the enormous costs of abandoned projects and wasted time. I did so in my very first post here. DRM is a non-sequitur.
I have no way of knowing what Mark Twain’s opinion on software patents would be. He might have taken the government at their word that the point of “intellectual property” is to *promote* innovation. If he did, then he would oppose intellectual property when it is applied in a way that deters innovation, as it does in the software industry.
PDS says: “Although the big guys have lots of patents, try surviving (and prospering) as a little guy without one.”
“Marketing only goes so far … ask Pets.com, e-Toys, Kozmo.com, etc…..”
PDS: what patents do MySpace, Facebook and Twitter have?
I think this situation deals primarily with the issue of Googles patents constituting business concepts and the longstanding argument that they are a restriction of interstate comerce.This is not true because they dont restrict they designate who has the right to the there own created intellectual materials and the profits from them.Also the intellectual material rights awarding only pertains to the segment of the market that the invention creates and without that creation that segment of interstate comerce would not exist.Refusal to grant patents on business concepts should stop because it is valuable property and has created the entire freemarket economy.Of course I created every new business concept including googles since 1953 without witch millions would be out of work with no thank yous either.
“Scientists aren’t documents, are they, even if they write them? And the inventors were clever enough to apply this approach to ranking documents retrieved in response to a search query.”
Leopold, the thing separating the computer-implemented Page Rank algorithm from the status ranking of academics watching their own and their peers’ citations ranking, is that the algorithm – which is quite old: poets in preliterate societies used it all the time, which is why we have Homer’s Illiad and Odyssey, instead of his competitors’ versions – was turned into software. And, for what it’s worth, it’s also the method used by Slashdot, to rank contributors.
The algorithmic details which previously had resided in the brains of the academics and which were expressed in the form of citations on printed documents, were now turned into variables, constants, and the related data structures and lower-level algorithms of the computer programs.
Page and Brin obviously woke up to its value during their studies. (Which makes Stanford U., a PITA, since they’ve sold out their academic integrity at that one point – since the algorithm is basic to academic status, any one university can’t claim ownership of it.)
“I for one am not a patent attorney but I made my living for years writing original software.”
I for one am a patent attorney and I made my living for years writing original software (including microcode, assembly level, higher level; as well as deciding when to implement functions in “hardware” or “firmware” as opposed to “software”). There is no bright dividing line between hardware and software. The electrons move nonetheless –to steal a paraphrase off of Galileo.
“Method patents ARE “recipes” (for accomplishing some technical goal) that are published on paper, so what’s your point?”
Lionel, Lionel, Lionel. As a matter of indisputable fact, method patents (the official ones that the PTO sends to applicants, anyway) are old pieces of paper with new arrangements of English text printed on them. That text describes an alleged “invention” but have you noticed that nobody (or nearly nobody) tries to claim the piece of paper with the descriptive text on it, in spite of the fact that the descriptive text represents new and non-obvious information? There is a reason for that.
Of course, we’ve only seen the tip of the iceberg of business methods that are nearly as bad. I’m talking about claims that purport to cover methods of licensing the invention described in the patent and strategies for protecting the intellectual property described in the patent. I assume everybody has seen those sorts of claims, no? You know what those claims are good for? They are good for lining birdcages and lining patent attorneys’ pockets. That’s it.
“How is coming up with a new algorithm any different than coming up with a new engine?”
Here’s one difference: anybody can come up with a new algorithm with essentially zero intellectual energy expended, e.g., my new algorithm takes input of X, Y and Z and converts it new values X2, Y2 and Z2 by doing blah blah to X, then blah blah to Y, then blah blah to Z, then taking the results and blah blah blah, thus arriving at X2, Y2 and Z2.
What’s the use of that? Well, for starters, it’s useful for converting X, Y, and Z to X2, Y2, and Z2, which you might want to do if you were [insert just about anything you want here].
There you are. Give me my patent! Good luck for finding the motivation in the art to do all the steps that I can stick in my specification for blah blah and blah, given my ability to give those steps all kinds of silly technical names that will confound your ability to do a decent search.
Anybody can come up with a new algorithm that works because math always works. You put a “plus” sign in your equation between two values and guess what: they add up. Every time! Add up three values and divide by three, you get the average: EVERY TIME! Is it because I am an “expert” at algorithms? No. It’s because all that is happening is that numbers are being changed to other numbers.
Now let’s have some software geek try to invent a new non-obvious way of converting gas to motion that actually works.
Malcolm,
Method patents ARE “recipes” (for accomplishing some technical goal) that are published on paper, so what’s your point?
Bureauguard claiming was simply a way to get around the ridiculous, baseless, and logic-impaired bias the USPTO had against software claims.
Patents should not be denied simply on the basis of an arbitrary category. Novelty and obviousness should be more than enough to eliminate all the unpatentable stuff. All the arguments I have heard for eliminating software subject matter could be applied to any subject matter.
Why should a method be unpatentable simply because it’s encoded in software instead of embodied in a physical apparatus? Why shouldn’t search algorithms be patentable? How is coming up with a new algorithm any different than coming up with a new engine?
And anyone who believes there’s a bright line between software and hardware is ignorant or naive.
The only practical arguments I have heard against SW patents regard their utility due to prosecution time and product lifecycles. However, given everyone’s fear of them I would say those are not so much of an issue.
“There is a crippling misunderstanding of software as a mere mathematical algorithm, although at a very low level, it is just that.”
I think that you will find that by and large the people who are skeptical about software patents have a better understanding of what software is than the people in favor of software patents.
I for one am not a patent attorney but I made my living for years writing original software.
Stepback, you make some very good points.
There is a crippling misunderstanding of software as a mere mathematical algorithm, although at a very low level, it is just that.
However, at higher levels, software modules are indistinguishable from physically embodied devices. They can provide automation, communication, conversions, command, regulation, etc. and directly affect industrial and human activity. This is not the ‘how’ but the ‘what’ of the results that software can provide.
Any discussion must consider what type of software, its applicability to the physical world, and the results it generates. I do not believe a generic discussion based on method/business process claims will resolve subject matter issues satisfactorily.
Statement of technical problem: Food processors (e.g., cuisinarts) are susceptible to malfunction (e.g., jamming up, blade shatter, finger gnawing) when fed ingredients in a haphazard order. Insertion of ingredients in a suitably alphabetized procession has been found to reduce malfunction. Food processor preference tends to the roman alphabet, however, ethnic dishes (such as humus) are best processed in order of the alphabet at used at the locale in question (e.g., greek).
“Many of these new concepts will appear to be obvious in hindsight after they virally implant themselves into our collective conscious.”
Question: When can you patent a “concept”?
Answer: When it’s written on an old computer-readable medium.
Question: Is an old piece of paper a computer readable medium?
Answer: Yes.
Question: But can you then patent a piece of old paper with a recipe written on it?
Answer: No.
Question: Why not?
Answer: Stop asking questions or before you know it nobody will write software because a small fraction of software developers think software patents are really important.
Software patents are no more than a means of saying that no two people are ever allowed to have the same bright idea.
Ridiculous.
(If the patent trolls hadn’t so badly abused the system, we wouldn’t be having this discussion.)
MaxDrei “I can’t see how arranging a list of ingredients in alphabetical order can solve a “technical” problem.”
The technical problem is how to alphabetize a list of ingredients that is not alphabetized. As you indicate, nobody can explain why this problem is not a technical problem as that term is allegedly “understood” by the EPO. And for the record: I did not bring this issue up and, frankly, it bores me.
When the “software developers” chime in here about the horrors that patents have wrecked on their craft, it’s usually a case of forgive-them-for-they-know-not-what-they-do (or say).
Most software experts have a very funnel visioned view of the world. They don’t understand that they and their craft would be wholly insignificant if it weren’t for the pack of electrons (a composition of matter) shuttling over to change the charged/discharged state of a gate on a transistor (transforming an article from one state to another).
Design of new and unobvious software goes on even now, as we speak. Many of these new concepts will appear to be obvious in hindsight after they virally implant themselves into our collective conscious. But they are not obvious now. If they were, they would already be there as part of the prior art.
ironsclip: “digital TV was purely a software development”
LOL. Yes, let’s just make it up as we go along.
ironsclip: “Is food a “useful art”?”
Of course.
“Why would you want to patent the “old piece of paper”?”
I don’t. I want to patent the old piece of paper with a new recipe written on it. Why do I want to do that? Because it is easier to sue someone with a composition claim than a method claim. At least, that’s what I’ve been told here a billion times.
But a better question might be: why **wouldn’t** I want that claim to a piece of paper with the new recipe written on it? If I’ve got the money and time to spend to acquire the patent and send letters to all the likely infringers informing them that I am ready to take them to court if they don’t talk to me about a license, then the question pretty much answers itself, doesn’t it?
Patents are business and software developers want to play. Do they have to play? Of course not. But they want to play. Who doesn’t like to gamble anyway? A software developer with a few “big” ideas and a well-heeled venture capitalist can make all kinds of noise if they manage to eek out a couple fat patents. Then you sue 100 other “players” and settle out. You just made all your money back and then some. That’s business.
And the public gets the benefit of having all that innovative software that wouldn’t otherwise exist.
It’s nice work if you can get it. Too bad the last part about the innovation is a giant pile of baloney.
Re: “There is some 80%-90% agreement amongst programmers that we neither want nor need double coverage by patents, that software patents are illogical and a harm.”
And the other 10%-20% have developed new and inventive software.
“Patent lawyers know because they get paid by all sides”
I know lawyers who make money from divorce, personal injury, crime and bankruptcy – I don’t think any of them are so delusional as to think that divorces, injuries, crimes or bankruptcies are good for the economy.
DriedMax – is that a softball question – they go to where the money is! and INDUSTRY, yes, INDUSTRY pays them – even you get a paycheck from said INDUSTRY, no?
Patent lawyers know because they get paid by all sides (even Google) – the most objective measurement – perhaps the contrapositive is true – if there was no infringement Patent lawyers would know something too …
what more proof is necessary – a patent is an instrument of industry – software developer “David”, of course, must not have any lawyers or patent pools or industry standards or policy decisions (broadcast flag & digital TV of course was purely a software development that benefits only patent lawyers?) to point out as examples of “who” benefits … is increased copyright & trademark protection too part of the “[fight] to end the horrible mess” …
the horror
Why not? There are plenty of patent lawyers professing software patents to be good for the industry. How do they know?
“As a software developer, I can tell you the entire software industry, including Google, is desperately fighting to end the horrible mess that software patents have created.”
You can tell us all of that, simply because you’re a software developer? Amazing!
As a software developer, I can tell you the entire software industry, including Google, is desperately fighting to end the horrible mess that software patents have created. They have greatly stifled innovation and have caused nothing but problems for everyone involved. Lawyers are the only ones benefiting from the current mess. Patents have no place in software development.
MONEY – fact remains – Google is now in the patent purchasing game to compete with Intellectual Ventures/patent trolls/innovators ergo patents are valuable enough for Google to work all sides of the intellectual property landscape – counterpoints raised above come largely from folks who may not like patents (and those who simply don’t understand patentability)
As if on predictable cue, your question ignores the point that the patent system should be “useful arts”-neutral – but since you already know what is innovative & don’t suffer any of the hindsight oh-so-plentiful in this thread & massively messaged by those who say they know better … How about we parse what I think you are trying to say:
Money: “So why can’t we patent an old piece of paper with a new recipe written on it? After all, food is useful.”
Is food a “useful art”?
Why would you want to patent the “old piece of paper”?
For educational purposes to train would-be chefs?
Perhaps that has already been patented (now in the public domain thanks to the public notice function, again ignored by most posters – however crappy you or others may think the patent – it was paid for by the applicant and is yet another piece of knowledge for all the world to use or not): US Pat 3,799,550?
We can call the “old piece of paper” a board game, no, or must it be a machine? Say, US Pat 7,044,466?
Maybe you have identified a dark horse trend, even with all the copyright & trademark protection and attention paid to ingredients of would-be candidates baking cookies & BBQ’ing whatever, at least the average person is asking the right questions & helpfully avoiding your prejudice against patentable subject matter, take a look – link to foodandwine.com –
How about using all of this with a machine coded for certain improvements in recipes: Method & system in control of coating color recipe link to patentstorm.us – Is that novel & useful? Ever run a restaurant? A chain of them? How about a franchise operation with layers of revenue streams from a variety of licenses with different rights agreed to by the parties? You know like splits for allowable improvements in a given menu as directed by the franchise? To whom does that improvement belong?
Will a recipe that is most effective in removing trans fats – or even identifying them in ingredients at low cost- be a “useful art” – or does that cut into the bio field you so dearly hold as the one true area of innovation (even if the FDA, not open communications networks, as per the software arts, is the bottleneck/gatekeeper for such innovation – of course, no partisan involvement to maintain neutrality over pharma – no fixed pricing for the “food” to back-end the R&D) – But trans-fats means more drug development! So, what to do?
And, a favorite resource IMHO to educate all people about patents – Uncle Phaedrus, Finder of Lost Recipes (What No Motorcycle Maintenance?) – on the difficulty of patenting a recipe … link to hungrybrowser.com
Remember to not go backwards, Money-hindsight: MPEP 2106 STILL states:
“Prior to evaluating the claimed invention under 35 U.S.C. 101, USPTO personnel are expected to conduct a thorough search of the prior art. Generally, a thorough search involves reviewing both U.S. and foreign patents and nonpatent literature. In many cases, the result of such a search will contribute to USPTO personnel’s understanding of the invention. Both claimed and unclaimed aspects of the invention described in the specification should be searched if there is a reasonable expectation that the unclaimed aspects may be later claimed. A search must take into account any structure or material described in the specification and its equivalents which correspond to the claimed means plus function limitation, in accordance with 35 U.S.C. 112, sixth paragraph and MPEP § 2181 through § 2186.”
Analogous art queries may help you in your decision to patent, no? :: MPEP 2141.01 (truncated) See, for example, Ex parte Bland, 3 USPQ2d 1103 (Bd. Pat App. & Inter. 1986) (Claims were drawn to a particulate composition useful as a preservative for an animal foodstuff (or a method of inhibiting fungus growth in an animal foodstuff therewith) comprising verxite having absorbed thereon propionic acid. All references were concerned with absorbing biologically active materials on carriers, and therefore the teachings in each of the various references would have been pertinent to the problems in the other references and the invention at hand.)
Any novel & nonobvious steps in your recipe – like that new anti-stick, cheese-doodle (tradename?), cotton candy you’ve been hawking at the summer fair? or is that a summer festival? Someone mentioned your involvement with BK Lounge – you think they have patents? Dell has some fairly well-known patents on order taking directing the manufacture of computers – maybe you have special coded recipe paper with coupons, affinity points & the like which has options that you can feed into one of your BK Lounge machines & the food manufacturing apparatus gets it right – user-controlled food manufacture for fast food – remember to have your “old piece of paper” contain trans-fat identifiers …
Now about that relevance index you punted on … How apropos we are in a thread about search …
Thanks for demonstrating your technical competence Max.
To Anita, a web page arguably becomes “physical” when it is displayed on a screen. That aside, I would ignore the hackneyed analogies to pieces of paper with recipes foisted by the likes of Leopold Mooney.
Sorry it doesn’t make sense to you Malcolm. As to your question, I can’t see how arranging a list of ingredients in alphabetical order can solve a “technical” problem. Maybe we are at cross-purposes. I was trying to help Anita K, whereas I suppose you are trying to assist further upthread. If the point you are making is the Aharonian one, that “technical”, like “obvious”, is undefined by the Statute, you’re right.
maxdrei “BTW, the reason why the new recipe isn’t patentable in Europe is because it isn’t a solution to a “technical” problem. Does that make sense to you?”
No. Is alphabetizing a list of ingredients a “technical problem”?
Sorry for the double post, readers. No idea how that happened.
Anita, to get a patent out of the USPTO you need to define in the words of a “claim” the area monopolised by your patent, in such a way that there is nothing old or obvious inside the “metes and bounds” (cute old-fashioned lawyers’ phrase, that) of your definition. A claim is nothing more than a list of “elements”. The more unrelated elements in your list, and the more recently developed things in your list, the harder it is for the PTO to prove that the combination of things in your list already existed, or was obvious. The debate above includes argument whether you can turn an old “book” or “web page” into a patentable book (or web page) just by reciting in the claim that some new, non-obvious and useful cooking recipe is written on it. At least, that’s how I understand it. BTW, the reason why the new recipe isn’t patentable in Europe is because it isn’t a solution to a “technical” problem. Does that make sense to you?
Anita, to get a patent out of the USPTO you need to define in the words of a “claim” the area monopolised by your patent, in such a way that there is nothing old or obvious inside the “metes and bounds” (cute old-fashioned lawyers’ phrase, that) of your definition. A claim is nothing more than a list of “elements”. The more unrelated elements in your list, and the more recently developed things in your list, the harder it is for the PTO to prove that the combination of things in your list already existed, or was obvious. The debate above includes argument whether you can turn an old “book” or “web page” into a patentable book (or web page) just by reciting in the claim that some new, non-obvious and useful cooking recipe is written on it. At least, that’s how I understand it. BTW, the reason why the new recipe isn’t patentable in Europe is because it isn’t a solution to a “technical” problem. Does that make sense to you?
I cann’t understand why an electronic medium (a webpage) is considered different from a physical medium such as a printed paper or a book though both provide the same information to the reader. Why is physical existance so inportant in patent law whereas the end result remains same for bot i.e. getting information.. can anyone clarify please.
I’ve reviewed enough software patents now that I’ve come to realize that most are patently offensive. After marking out the gobbledygook, lawyer double-speak, you can get to the real meat of the patent. You’ll find it describes some marvelous (thick sarcasm on that word) innovation of using a “computer system” to “store data” in a “database”, or even more innovative, “computer algorithm” to manipulate data stored in a database. The solution to all this junk is simple. Issue copyrights on the compositions, the literary works, that talented software developers compose. The code is beautiful when well-written and junk other-wise. Well written code when published for public consumption should be protected, but like any great book, developers or authors should be inspired, but not merely plagiarize the work for profit. Unless of course the original author has placed the “open-source” composition into the public domain to help other author create wonderful compositions.
“Patent Law should be technology-neutral – it is “promotion of the useful arts””
So why can’t we patent an old piece of paper with a new recipe written on it? After all, food is useful.
Huck Finn (ironic given your author was a huge proponent of IP protection – yes, even if that was not the wrod at the time though “patent pirate” most certainly was) “PDS: your slippery slope argument is unpersuasive. I’m a software developer. Why should I care whether patents are effective in semiconductors or pharmaceuticals? Let the experts in those areas argue about it. Each industry has its own economics and insofar as the patent system was supposed to “promote the progress of science and useful arts”, it is the government’s job to make sure the rules do that for all major industries. Most programmers will tell you that software parents are an impediment, not a help.”
Experts? What experts? Patent Law should be technology-neutral – it is “promotion of the useful arts” – And, no you need not care but please do provide an example of how software patents have caused you any issue versus say a DRM (patented software) in accessing some content you purchased? Where did the patent cause the issue?
Slippery slope to what? Another Patent Reform Act to more fully gut inventor rights? Say “hi” to Tom!
“thinkfeeldo” –“You’re all missing the point. Most patents are derived from an observation of something already in existence.” – could that result from requirement that patent be published? how about the massive increase in “defensive patents”?
“Very few are truly original.” – according to you.
‘In the not too distant future we will come to acknowledge them as one of our greatest mistakes realising they have been largely responsible for slowing human progress. TFD” – wow, human progress has been slowed – do tell!
you have anything empirical to support this? it doesn’t exist. that we have several dominant software companies that have been successful in swallowing smaller innovators can hardly be viewed as a “mistake” … a huge uptick in patent purchase activities has been sorely needed to provide liquidity to a previously illiquid “market … and guess who the main purchasers are?
that many entrepreneurs and software developers failed (often at the advice of VCs) to seek patent protection is equally “responsible for slowing human progress” if not far more to blame …
asked before – why is is that copyright & trademark protection experience increased protections? & WHY do large IT/CE/Content folks pool patents? what is an industry standard? what is meant by “open”?
this is business & patents present the most appropriate challenge to the status quo – that was precisely the point of the system!!!
please point me to a patent that meets your “standard” of quality …
Leopold: “And the inventors were clever enough to apply this approach to ranking documents retrieved in response to a search query.”
Why is that “clever”? Seems to me to be about as clever as putting up an umbrella when it rains.
If there was any cleverness in Google’s idea, it was whatever solution they devised (or borrowed) for doing the actual determination of what is being linked/quoted across a significant swath of the internet.
“Next time you have an opportunity to talk to a venture capitalist, ask them what they think the value of patents are for a startup.”
The average venture capitalist is not very bright and tends to lag behind the times about five to ten years.
“Well, Leopold, I have to agree with you, that, with hindsight, everything seems obvious.”
That’s not really correct. Not everything is obvious in hindsight. Haven’t you ever read a paper and been left thinking: “Wow, that’s really clever”. If everything was obvious in hindsight there would never be that sense of wonder at reading something truly novel.
Well, Leopold, I have to agree with you, that, with hindsight, everything seems obvious. Prof Duffy points out exactly that, quoting Milton (if memory serves, Paradise Lost) in his recent Paper published in November 2007 Texas Law Review. But, then again, there’s an awful lot of people pointing out that doing by computer what hitherto was always done without a computer, is hardly a flash of genius but, rather, something lying plumb in the road (latin: ob Via) of technological progress. So, what we need is to examine whether the state of the art, at the date of the claim, contained any hint or suggestion to solve the objective technical problem (making search engines perform better) by Page Ranking. Matter of evidence, wouldn’t you say? Two sides to the debate? May the best evidence win, in a fair balanced fight, I say.
“Excuse me, folks, but from what has been disclosed of the Google Page Rank algorithm reminds me of the method many scientists use to rank a fellow scientist. … Because, if as I guess, it is merely the computer-implemented form of status ranking used by academics from time immemorial – your value as a scientist is ranked by your peers in that if they quote your material, they value it; if they don’t, they don’t value it – then the patent is valueless and void, because it is a method of status ranking as old as scientific publication.”
Uh-huh. Scientists aren’t documents, are they, even if they write them? And the inventors were clever enough to apply this approach to ranking documents retrieved in response to a search query. Seven years later, looking backwards, you’re able to see a vague resemblance. Congratulations – you’ve just demonstrated “hindsight reconstruction.”