In Defense of Software Patents

Guest Post by Martin Goetz

 

This article is in response to the editorial “Abandoning Software Patents” by the Ciaran O’Riordan, Director of End Software Patents (posted on PatentlyO on November 6, 2009) which had as its premise that one is trying to protect “software ideas”.

 

I wrote this article from a unique perspective as the holder of the first Software Patent in 1968 and with a long history of involvement in the protection of software thru patenting and copyright protection. I am recognized as a pioneer in the Software Products Industry and had a successful career at Applied Data Research (ADR), the first company to market a software product. ADR and I were also directly involved in the filing of amicus briefs in the Prater & Wei, Benson, Johnson, Flook, and Diehr cases. More background information and links to my memoirs are in Wikipedia at http://en.wikipedia.org/wiki/Martin_Goetz.

 

Since the 1960s I have been a strong advocate of the patenting of inventions implemented in software and in 1968 I received the first US patent for an inventive way of sorting data on a digital computer[1]. At that time there was controversy over whether software was patentable subject matter and that controversy continues today 41 years later. Although the Supreme Court has previously stated that software is patentable subject matter[2], those rulings could be upset by today’s Supreme Court judges in the Bilski case.

 

This article does not argue for or against the patenting of BPMs. Rather, it tries to explain why inventions implemented in software are well within current US Patent Law[3] using examples and analogies that I believe are irrefutable. It also explains why software should be viewed a machine component of a general purpose computer (a machine).

 

 1. What is a Software-Related Invention? It is well recognized that whatever you can design in hardware circuitry (chips) can be developed in computer software (a computer program) to perform the same functions. Handwriting analysis, voice recognition, video frame analysis, data compression, language translations, artificial intelligence, searching techniques, network monitoring and security — to name just a few functions — are examples of where such implementations have been done in both hardware chips, in software, and a combination of both. The patents that have been issued in these nine areas represent inventions that are very-state-of-the art and not at all obvious. In particular, the analysis of handwriting and voice by a computer — whether in hardware circuitry or in software — is very complex and not at all obvious to one skilled in the art.
 
2. Hardware implementations versus software implementations. The choice of implementation for computer functions is a pure economic choice which mainly has to do with cost, speed, and flexibility. Patent applications normally show the preferred implementation and the patent must disclose the invention adequately for one skilled in the art. But the disclosure could be in the form of circuitry for a hardware implementation or a flow chart for a software implementation or a combination of both. Many professionals view software development as building a software machine. The life cycle of computer software is very similar to the life cycle of computer hardware. And its life span can be equally as long.

 

3. Software Product Companies[4] are High Technology Manufacturing Entities. In the 1980s with the advent of PCs, many new PC software companies called themselves Software Publishers. So are software companies more like publishers of books or more like manufacturers of machines? Based on my many years in the software Products Industry[5], here are my arguments why software product companies are manufacturers of high technology products. 

 

Many software products are state-of-the-art products developed in a very competitive, fast moving environment and require rapid response to meet user demand. Secondly, a great deal of capital is often required and many software companies are funded through private investments, venture capital, and through public offerings. Thirdly, there are active research and development activities within these companies. IBM, as an example has reported that it consistently spends well over one billion dollars in research and development specifically in the software area. Lastly, highly skilled personnel are employed in these companies and many have advanced Computer Science college degrees, including PhDs. And because of its complexity, many software products are built using software engineering disciplines.

 

There is six phases in the life cycle of software products: Definition, Design, Implementation, Delivery, Maintenance, and Enhancements. Let’s look a little closely at these phases and you will see how closely they resemble characteristics common to all manufacturing companies. Often, prior to the definition phase there is research as well as competitive analysis. During the definition phase software companies describe its functionality, its specifications, the environment in which it must operate, and its operating characteristics. During the design phase, it develops and defines all its interfaces, breaks down the functionality into modules, and does all the engineering so that the product can be properly implemented, maintained and enhanced during its lifecycle. During the implementation phase the software is debugged, tested, and goes thru quality assurance. During the delivery phase there is alpha and beta testing, documentation, installation, and training. Often software companies OEMs (Original Equipment Manufacturers) the product to other companies where the software becomes a component of a larger system and is re-packaged. During the maintenance phase the company warrants its workmanship, and guarantees the correction of errors and defects. Finally, during the enhancement phase the software is improved, enhanced, upgraded, and new models (releases) are announced.

 

Note these terms indicative of a manufactured product …..research, competitive analysis,  functionality, specifications, operational environment, operating characteristics, interfaces, modules, engineering, implemented, debugged, tested, quality assurance, alpha and beta testing, documentation, installation, training, OEM, component, system, re-packaged, maintenance, warrants, workmanship, guarantees, errors, defects, improved, enhanced, upgraded, and models.

 

It is obvious that software products are not “software ideas”. But is software more like publishing a book or more like manufacturing and maintaining a machine? And if it’s more like a machine how can the Supreme Court deny the patenting of inventions[6] in software?  

 

I believe the Courts should view software as a component of a general purpose computer (a machine) and that software transforms a general purpose computer into a special purpose computer (or machine).



[1] Patent # 3,380,029 Sorting System Issued April 23, 1968

 

[2] The Diamond vs. Diehr landmark decision by the Supreme Court in 1981 opened the door to the patenting of software when the court stated that “processes” were patentable, and that just because an invention used a formula, program, or computer, it was not necessarily unpatentable.

 

[3] The US Patent Law does not mention any industry or field of endeavor and it is generally accepted that “anything under the sun” can be patented.

 

[4]  The Software Industry is made up Software Product and Software Service companies and is recognized as one of the top three manufacturing industries in the world with 2008 revenues of over 700 Billion dollars. See http://en.wikipedia.org/wiki/Software_industry 

 

[5] My tenure in this Industry started in 1954. In 1959 I was one of its founders and spent almost 30 years at Applied Data Research (ADR), a publicly traded 200 Million software company that was acquired by Ameritech in 1986 and sold to Computer Associates (CA) in 1988. Many of ADR’s products initially developed over 30 years ago have been improved by ADR and CA and are still viable today. Today, I am a consultant and investor in software companies.

 

[6] An invention, in lay terms, can be a novel device, material, or technique which is new, inventive, and useful. It has been well established that machines, including computer hardware, contain patentable subject matter.

 

 

239 thoughts on “In Defense of Software Patents

  1. “agony mouse” (to steal a moniker),

    Your conclusion and manner of reaching it exemplifies the worst in your ability to handle the thing you seem to prize most – logic.

    …as if mathematicians are any less subjective than lawyers.

    Frith, please do hold your breath until you actually understand what patent law is and what it requires. Refrain from making up your own “standards”. Look into a little concept called PHOSITA before you proclaim (incorrectly) that actual source code is required, and why you are so blatently wrong when it comes to the “standard” for hardware, as no design blurprint for hardware is actually required.

    For all you anti-patent tech types, do tax lawyers habitually visit the technical sites and crap all over them with discussions of topics they don’t understand? I say tax rather than patent, because patent lawyers at least have a technical base – to steal from another poster, patent attorneys have a foot in both worlds.

  2. The EPO enjoys a reputation as a killer of software patents and a proliferator of software patents. Simultaneously. Depending which interested circles one frequents.

    I am asked to cite an EPO Decision that reveals something of the way the EPO Technical Boards of Appeal go about their work, in the field of software inventions, on 101 and 103 issues.

    I cite T_1143/06, happily dated April 01, 2009.

    You can download it as a pdf from http://www.epo.org You can also read the entire file of the case in http://www.epoline.org by inputting the application number 00900249 into the search field (no password or registration needed).

    It is a Decision of Board 3.5.01. Note how it distances itself from a precedent (T_0049/04) from another TBA, 3.4.03, and speaks of the evolution of the meaning of “technical” over 20 years of TBA jurisprudence. Note the ability of the Board in the English language (none of the Board members are English native speakers).

    Judge for yourselves whether (as at least one commentator above alleges) the Technical Boards of Appeal at the EPO are “ridiculous” in the way that they interpret the statutory provisions of the European Patent Convention, as they relate to software patents.

    Just to repeat, the Decision of the TBA to refuse the patent application by British Telecom is FINAL. There is no possibility to appeal that refusal to any court of law. The EPO is master in its own house.

  3. @Got a Patent

    “The vast, VAST majority of software patents issued are bleedingly obvious to any of us who work in the field. Most of them deserve to be ridden out of town on a rail to derisive laughter for what they “invent”.”

    Then they should be rejected under 103 and not 101.

  4. @PoIR,

    “Mathematicians always produce a useful output when they work. They write symbols on a piece of paper. This is useful and this is output. It can be a computation that evaluates the value a formula.”

    This is a very silly argument and you appear to be smarter than that. In the absence of a greater context the result is meaningless. Mathematics is merely a language developed by scientists to describe physical reality. Your position is like saying random keyboard tappings constitute a sentence.

    Math neither pushes a button nor diagnoses diabetes, so please tell me why the two software examples I listed should not be patentable.

  5. NameChange,

    All of us disagree — this is obvious as night and day.
    I am not talking about this blog (which is dominated by lawyers and hence subjective; if you want oposition, try slashdot — the majority there have completely the opposite consensus).

    The disagreement is at the highest level you can get: even judges at supreme court show the rainbow of opinions, see In Re Bilski.

    So far, this confirms my thesis that most of the disputes (about software patents at least) will not have any logical or coherent conclusion, and the only finite and hence feasible end of such legal process is financial extortion and exhaustion of smaller companies by large corporations.

  6. “So are software companies more like publishers of books or more like manufacturers of machines?”

    That’s precisely the problem with software patents, software companies want for their products both the protections that publishers of books (copyright) and manufacturers of machines (patents) enjoy. If Mr. Goetz wants to be taken seriously, he should put his money where his mouth is and argue for software to be patentable and not copyrightable. Otherwise he’s just a greedy hypocrite.

  7. An Explanation of Computation Theory for Lawyers
    By PolR
    *****************
    see
    link to groklaw.net
    *****************

    OK
    So let me understand this “Effective Method” algorithm of yours:

    “3. M can (in practice or in principle) be carried out by a human being unaided by any machinery save paper and pencil”

    OK. I insist that M be carried out by a mortal human who is guaranteed to die in finite time and that he is provided with as many pencils and papers as is necessary. Fair enough right?

    “2. M will, if carried out without error, always produce the desired result in a finite number of steps.”

    Fair enough. I desire the result to be whatever it is when my mortal human dies. It will be a finite number of steps for sure because my mortal human will not live forever.

    “1. M is set out in terms of a finite number of exact instructions (each instruction being expressed by means of a finite number of symbols)”

    This not really a limitation because I can choose my finite number of symbols to be 10^100 right? But I’ll be kind to you guys and not go to extremes.

    “4. M demands no insight or ingenuity on the part of the human being carrying it out.”

    Trust me, my mortal human servant is no genius.

    OK let us begin.
    You said we can use paper and pencil, correct?

    Instruction #1 to my menial man servant:
    Label the first page as “page 1″ and enter the following: “Lookup (LUT) Table 00″
    if input =00 then action= same as spacebar, but on paper of course,
    if input= 01 then action= letter a
    if ….
    if input= 42 (in base 6) then action= letter z
    if input= 43 (in base 6) then action= same as toggling caps lock key;

    if input= 55 (in base 6) then action= switchover to next LUT in circular list of LUTs and get next input

    (Here we can insert as many LUTs as we want into the circle each with entries 00 to 55 in base 6)

    Set LUT 00 as curent LUT

    Instruction #2 to my menial man servant:
    Using your teeth or finger nails (or blood) mark the six sides of your No. 2 pencil with indicia representing the symbols 0 to 5.

    Instruction #3 Do this twice: Hold pencil upright with point down and spin it like a top. Record the indicia that lands on top. Use the two digits obtained as input into current LUT and perform indicated action on current output page.

    Of course your reaction is probably Hey no fair! Lawyer making up his own rules, twisting my words and their meanings.

    Well ditto for you when you make up your own rules about what patent law says and means. Did the pencil make its point yet? Probably not.

  8. The hardware == software point, even if taken at face value, does not indicate that software should be patentable in the way that is being done now.

    Consider what a patent is awarded to: an implementation of an idea. The idea is categorically not patentable. In the exact same way that I can patent a hardware-based implementation of voice recognition, but I can’t patent Hidden Markov chains.

    So if this argument is the keystone, then yes, software is patentable. That is, in order to gain the patent you must provide the source code used to create the program to the patent office for public display. No one may use this source code, but anyone may look at it and write their own with improvements (using the same algorithms if so desired), submit their own source code and have that patented.

    This is the standard required for a hardware design – the design must be submitted for public viewing. And anyone is permitted to make their own copy for personal or experimental reasons. (Consider how much easier it would be for the WINE project under these conditions!)

    Of course, I doubt software companies would submit to this kind of patenting, but this is the scenario that would keep the purpose of patent law alive – that of creative endeavour using the publicly available designs of current state of the art.

    I’ll not hold my breath for this utopia to ever exist though.

  9. *******In the FedCir’s defense, the Supreme Court rulings they were forced to deal with are, taken together, even more nonsensical than Bilski.******

    I think we are on the cusp of agreeing on something. It’s the Apocalypse!!!!!

  10. These examples of welding a lawn mower in a metal sculture and feeding a manikin through a wood chipper as performance art point up part of why the machine or transformation test is wrong,

    Rather, they point up only the trivial fact that any legal test is “arguably wrong” when one imagines how a nutball judge unwilling to do his/her job might apply the test crudely to a fantastical set of facts designed to challenge the weakest aspects of the test.

    The so-called “machine or transformation test” is “wrong” because the “particular machine” test was never adequately explained and the alternative “transformation” test was subsequently obliterated by the CAFC’s own opinions (e.g., Prometheus v. Mayo). Given time and perhaps more exposure to the crapola that is out there, the FedCir might have improved upon its poor initial formulation and developed something workable. In the FedCir’s defense, the Supreme Court rulings they were forced to deal with are, taken together, even more nonsensical than Bilski.

  11. *******”Tying a metal sculture to a machine by including a lawn mower is not going to make it eligible under 101 for a utility patent.”

    This would pass 101 because the combination of an unpatentable sculture with an apparatus is still an apparatus. Whether or not the application would ever issue would depend on other sections of the statute. ********

    And feeding the manikin through the wood chipper would pass the transformation prong of the machine or transformation test. Assume that you made the lawnmower part of the static display in such a way that it no longer can be used to mow a lawn. These examples of welding a lawn mower in a metal sculture and feeding a manikin through a wood chipper as performance art point up part of why the machine or transformation test is wrong, and will not be the law of the land. I am also sure that there are software instructions you can put on a computer that merely cause it to play the song that you composed in writing the instructions. That, too is not patent eligible subject matter. But, given these exmaples, it is not hard to imagine that there must also be processes that do not pass the MoT test, and yet are patent eligible subject matter. Tellign the difference properly has to do with contrasting practical utility with pure artistic expression. The MoT test just gets it wrong.

  12. “…all of us who disagree…”

    I’m looking around the room Mooney, and I don’t see anyone who disagrees except you – and maybe a couple of other baboons.

  13. Mooney just doesn’t get it.

    While he is fantastically capable for a baboon, and I applaud that, he is woefully inadequate when it comes to the nuances of patent law and the economic incentives surrounding innovation of any kind…

  14. Got a patent and shouldn’t, I agree with you that many of the so-called problems with software patents relates to lack of novelty, which is why I think the real solution is to expand the prior user right to include at least software, but preferably every kind of patent. If a particular user can demonstrate that he or she were using what could be deemed to be an infringement prior to the filing date, they would be home free. The only people who would have any concern would be late adopters.

  15. Malcolm Mooney,
    did you read the rest of the post?
    what about fairness and justice?
    I’ve just shown you that patent system as it is, supports only the big corporations, and not because they are innovative, but because they can afford crushing everybody else.

  16. I have waded through all of the comments and it appears that a main problem with software patents is that many of the claims should not have been allowed for 102 or 103 reasons. Better prior art data bases, better searching and maybe better technical training for some of the examiners are needed. PTO management should work on this.

  17. MM the baboon wrote: >>disagree with the patenting of software

    At least you are half admitting it is for policy reasons and that there is no sound basis for excluding information processing processes from patent eligibility.

    Perhaps you can evolve to be more than MM the baboon.

  18. anony Now in software patents case, it is quite ironic: they want a method to decide what software is patentable and what is not, but the method itself is an algorithm!

    There is no irony because nearly all of us who disagree with the patenting of software also wish to keep methods of legal analysis from being patented, for similar reasons.

  19. I’m firmly in the anti software patent camp. I’m also the holder of a software patent, and frankly, I’m embarrassed about it because what I “invented” to get this patent should be obvious to anyone of moderate skill examining the problem I tackled.

    I make the following challenge to pro software patent people: make software patents work. As they exist right now, they don’t work. The vast, VAST majority of software patents issued are bleedingly obvious to any of us who work in the field. Most of them deserve to be ridden out of town on a rail to derisive laughter for what they “invent”. One-click ordering? A high-schooler could have come up with that in two seconds. Doing X on the Internet when X is something every Tom, Dick, and Harry already do off the Internet? As an invention, preposterous. Vanishingly few software patents are appreciably better in terms of their non-obviousness.

    Worse, these patents do tremendous damage to industry because everyone who designs useful things gets held up at the patent tollbooth at lawyerpoint for gut-wrenchingly simple common building blocks of everyday constructs. That increases the cost of everything, and keeps many innovative startups out of the game.

    Further, software moves an order of magnitude faster than any physically constrained industry. While current patent terms may be fair for the latter, they are clearly outlandishly long for software, where design iterations are measured in weeks to months, not years to decades.

    The damage done by the many bad software patents far exceeds the benefit created by the few good ones. This does not work. The PTO needs to rachet up its bar for obviousness in the field of software about seventeen notches before we’ll have a system that could be of net value to society.

    If you want to defend software patents, I look to you to make them work. Until you propose a system that honestly addresses the grievous errors we’re currently suffering, it’s all just hot air.

  20. This argument is very refutable.

    1) Every day, children learn to read and speak. It is a process. The children learning are the hardware. Obviously, children who can speak or read are not and should not be patentable. Just because it can be implemented in hardware doesn’t mean I can’t teach Fido or my neighbor to do it. Software is ‘teaching’ the computer.

    Additionally, computers have firmware, which gives varying degrees of functionality without software. But, let’s be equate firmware and software because firmware is just software that isn’t as easy to alter. Regardless the computer can do plenty without software, we just don’t find consuming power for the sake of it very useful.

    2) Disclosing circuitry that represents what the software does is describing an equal-the hardware version is NOT the software. The computer can function just fine with other software.

    3) Books, recipes, how-to/do it yourself guides, etc are not patentable, nor should they be. If you fix your car’s brakes by following a guide, a computer, given applicable hardware, can to it too. Software is the process followed. Recipes are the process to create a food or dish. Computers can do it too, following the same process, given sufficient hardware.

    Software is a process. Yes, it does get copyright, and it SHOULD have copyright protections. But patents are for novel things. I propose the finger test–if I can touch it, it is patentable. If I can’t, then “there is something about it I just can’t place my finger on”. Of course, normal tests of obviousness, prior art apply.

  21. “IANAL, but perhaps these last two suggestion would require a change to the statute.”

    Perhaps you should consider becoming one – your comment is considerably more articulate and logical than those posted by many who claim to be lawyers.

    Your 2nd proposal would interest me if I was convinced that someone could come up with a workable definition of “software patents.” It doesn’t have to be perfect, just workable. In other words, quite a bit better than the “machine-or-transformation” test.

    Offering differing terms based on subject matter might be opening Pandora’s box, however. Something tells me that the pharmaceutical industry would insist that its innovations need 50+ years of protection, while others deserve substantially less than today’s 20 years.

    P.S. Isn’t automatic speech recognition just “maths”? :)

  22. t is important to distinguish between the flaws in the current implementation of the patent statutes and the theoretical underpinnings of those statutes. Software presents an enormous challenge to the USPTO because it is so relatively easy to modify and also because of its very wide applicability. I believe these two features represent fundamental distinctions from most patentable material in (US) history.

    Hence, many more patent applications are submitted than there is staff to adequately vet, and the expertise of the staff is also probably not sufficient to establish novelty (or not) in many cases.

    My experience (I have filed applications – very novel ones, I might add! – on automatic speech recognition technology) is that, as a result of this, the USPTO proceeds by issuing a few pro-forma objections based on very quick (and often very irrelevant) keyword searches of the patent database, asks for some limitations on the original claims, and then, when these limitations are offered, goes ahead and grants. I have even heard that, owing to the huge backlog, there are incentives offered for claims granted.

    All of this seems to me to be very much against the spirit of the statute. Consequently, I believe that the current system does a great deal to discourage innovation, mostly because of legal fees involved in navigating the process and in the litigation which results from poorly vetted patents. However, that is a practical problem – it says nothing per se about the patentability question.

    Some reasonable solutions to these practical issues I have heard are:

    1) Spend more money to hire more qualified staff to review applications.
    2) Reduce the incentives to file by shortening the duration of software patent grants.
    3) Require that inventors demonstrate a working instance of their applied-for invention, including verification that the specified algorithm is what is actually producing the visible behavior.

    IANAL, but perhaps these last two suggestion would require a change to the statute. I don’t believe either is against the spirit of the US Constitution, however.

  23. Chris S: As usual, virtually every argument against software patents is just a rehashed argument against patents in general…

    As usual, a propoenent of software patenting drops some blatant misrepresentation into the mix.

    I was hoping for someone to come up with a cogent argument against software patents that turned on its side isn’t an argument against patents in general.

    Software patents are not necessary for software innovation to occur, nor are they necessary to protect software innovators. Software patents are necessary only for trolls and software patent attorneys. Moreover, software is merely an instruction for a computer and, like an instruction for a person, is not patentable subject matter in spite of the fact that the instruction may be “useful” or “valuable.” Finally, to the extent that software could be claimed as a true method, it would be mere information processing and should be considered an unpatentable abstraction.

    Software could also, of course, be claimed structurally but nobody wants to do that because it would be “very difficult” and the claims would likely be too narrow to garner interest for trolls. Boo hoo hoo.

    You may disagree with these arguments, but they are certainly not “arguments against patents in general,” although no doubt some Diehrbot here will pretend that they are.

  24. As usual, virtually every argument against software patents is just a rehashed argument against patents in general… *sigh*, I was hoping for someone to come up with a cogent argument against software patents that turned on its side isn’t an argument against patents in general.

  25. @Lionel Hutz

    “If the claim merely recites an abstract algorithm that does not produce useful data and has no direct or indirect effect on physical reality then I do not disagree. An algorithm by itself is pure mental masturbation and if that was all the antisoftware people wanted to eliminate, I would not object.

    However, let’s say that the outcome of the algorithm you posit told you what button to push on an array based upon input information, then a claim that included pushing that button should absolutely be patentable. Or, let’s say the algorithm told you whether or not someone had diabetes, then a claim whose final limitation included using the output of the algorithm to determine whether someone had diabetes should be patentable. Any software claim where the output is inherently useful or the output is used for a useful purpose should be patentable. ”

    Mathematicians always produce a useful output when they work. They write symbols on a piece of paper. This is useful and this is output. It can be a computation that evaluates the value a formula. It can be an algebraic process that resolves an equation. It can be the use of the rules of logic to prove a theorem. It can be something different from all the above. In all cases this is a process made of steps that produces a useful output.

    I am saying that the entirety of mathematics is made of processes that produces useful, concrete and tangible outputs. The notion of “maths by itself” abstracted from the output has no practical meaning in real life. This means we have a Gordian knot that can be cut two ways. Either the process trumps the maths and maths is patentable, or the maths trumps the process and the process is not patentable.

    The courts could pull the rug from under the software is maths argument by stating mathematical processes are patentable because they are processes. But I understand this is not the precedents we have.

  26. Dear lawyers,

    Suppose the method for patentability does exist and is waiting to be discovered.
    From Turing-halting problem we know that any method operating on software algorithms (running on general purpose computers) cannot be complete/halt on some algorithms (in fact, majority of them).

    This leads to the situation that if we have a patent dispute, then it may potentially (in majority cases, especially as complexity of inventions grow) take an infinite amount of time.
    This implies that the only winner here is the one who has more money to poor into the court and the looser will be the poorer guy.

    The question is: is this how justice operates? is this fair?

  27. Step, I quite see your point. The word “technical” is a bit like “obvious” in that, if you lack a methodology under which it is debated, it is hard to decide what it means.

    I don’t know about your jurisdiction but at the EPO we get a stream of final decisions from the Technical Boards of Appeal, about 1000 per year, that help us on “technical” and “obvious”. None of these Decisions is appealable to any court that might screw up such legal certainty as we enjoy.

    Anybody who keeps up with those Decisions can tell his or her client what “technical” and “obvious” mean at the EPO. We’ve been through “obvious” at the EPO on this blog exhaustively about 18 months ago, I believe.

    The proof of the pudding is in the eating. When you ask your EPO attorney what’s technical and what’s obvious, do you get i) a shoulder shrug and an “I dunno” or ii) a precise answer, given with a high level of confidence?

    I ask you to keep in mind that the 20+ EPO Boards of Appeal have been vying with each other for decades, to lay down the purest line of legal logic. It’s a bit Darwinian. You see, there’s no Binding Precedent at the EPO. The fittest lines of legal logic prevail. Levels of legal certainty get higher. Peruse the annual Digest of EPO Caselaw. Not much these days on “obvious”. With each year that goes by from now on there will be less on “technical”.

    But then I would say all that, wouldn’t I. I’m an axe grinder too.

  28. Maxdrei said: >>don’t … don’t …don’t … ridiculous

    From what I’ve seen of the European standards for patent eligibility they are ridiculous. Maybe you can point us to a couple of recent opinions that might enable us to understand what the current thinking is in Europe. And, then, I may withdraw my ridiculous remark if they have changed from about two years ago.

  29. Anti-patent guys: your technical rationalizations have no effect in here (and I also doubt about soundness of those rationalizations), chill out.

    Attorneys aren’t interested in technicalities, they are interested in a method/test at best, which would give them guidance on what is patentable and what is not. They do a lot of mental thinking here: propose some criteria and then apply them on all inventions they can think of, preferably already discussed cases at courts and earlier rulings. They have discovered some “clues” which provide some hints, but there is still no definite answer (see In Re Bilski, wikipedia will do).

    Now in software patents case, it is quite ironic: they want a method to decide what software is patentable and what is not, but the method itself is an algorithm!

    Suppose such method/algorithm exists, let’s call it P (patentability algorithm), it takes an argument of type algorithm and returns true if it is patentable, and false if it is not.

    Question: what that method/algorithm should say if one applies it on itself? i.e. what is the value of P(P)?

    Suppose P(P)=1, that means that the patentability method P is itself patentable. Hurry up and patent it, you will “own” all patent attorneys and courts! :-)

    Suppose P(P)=0, i.e. the instrument of law is not patentable — this is the only thing courts would accept. Well, at least there is some software that is *not* patentable (not big news).

    Now notice that P(*) is not a total function (due to results of Turing-halting problem), which means that there are some software inventions that attorneys will take infinite amount of time to analyze, meaning that this dispute will never be over, not in my lifetime, not in yours, despite any opinionated (finite) court rulings today.

  30. Well thanks for that contribution NWPA. You know that TRIPS speaks of patents for all fields of technology. Is that ridiculous too?

    You tell me what “they” find to be the “real problem” in Europe. This would be what you have worked out, would it? Do you not think that for them, what is actually the real problem is the statutory exclusions of Article 52 EPC (you know, business methods as such and computer programs as such)?

    If you like, you can tell me that those exclusions are ridiculous. But let’s not go announcing, eh, that the current European (and steadily evolving to stay up with the cutting edge of oops technology) standard is ridiculous when on your own admission you are out of date.

  31. Max Drei,

    “Technical” is just another meaningless buzz word like “software” and “hardware”. When examined closely it is found to have no clear definition. Why is it not “technical” to use Stokes theorem (from calculus) to determine how many angels dance on the head of a pin? Sounds “technical” to me.

  32. Hierarchy,

    I think you hit on the nail (or head of the pin) when you say SB knows about math versus machine implemented physical process.

    An example of pure math is if we calculate how many angels dance on the head of a pin using Stokes theorem. Not very useful, but entertaining. Part of the entertainment arts.

    Where is the line of distinction drawn between the purely entertainment arts and the “useful” arts? I don’t know. It is not a clear and bright line. Which is the reason why we sit here still debating this 40 years after Diamond v. Diehr.

  33. Maxdrei writes: >>too demanding of continued concentration

    No Maxdrei, the problem is that in Europe a ridiculous standard has arisen between technical and non-technical solutions which is a meaningless distinction. Cite some of the cases on the borderline. Inventory? Sure. A machine that does what people are paid to do is not a technical solution. OK. Whatever.

    The real problem is that in Europe they want to exclude information processing from being eligible for patentability but they realize that there isn’t a good way to do this without crippling many other technical areas. So, tests have been set up to distinguish between those areas they want patents in and those they do not. For example, software that is directed to improving the efficiency of the machine is eligible, but application software is not.

    Of course my knowledge of EPO law is a bit out of date.

  34. totally misses the point. It does not matter what they are more “like”. It’s not a religious argument with patents being a holy gift from God to which you are entitled. They exist to encourage the progress of “science and the useful arts”, and the only question is whether their existence helps or hinders this goal. My answer is a resounding “hinders”—you don’t address either side of this argument in appropriate depth.

  35. 6, one more point about the “circuits,” they could be conventional computer circuits represented by block diagrams, but with the new BCD-binary algorithm written in Boolean algebra.

    So the claim can be written, A card punch machine [describe the basic type of machine], comprising;

    means for algebra step 1;

    means for algebra step 2;

    etc.

    Clearly, under PTO views, the card machine being old, it is insignificant extra solution activity as in Flook. In this example, of course, there is no software at all, but software to implement the algorithm would be trivial and a known equivalent.

  36. Everybody here seems to have an axe to grind. Either everything should be patentable, or nothing, they cry. What I crave is a debate between people who can see where both sides are coming from, but don’t themselves come from either side. I have it in Europe (example, at what point does writing software attain technical character). Is it possible in the USA?

    Is that too much to ask? Is Chief Judge Paul Michel one of the folks that could do this? Is Dennis Crouch another. How about Leonard Hoffmann, who until very recently was the specialist patents judge at the UK Supreme Court?

    Can we hear or read a public debate between such people? Or is it perceived as just too wimpish, tame and long-winded, too esoteric and too demanding of continued concentration, and simply too boring for modern tastes? Michel isn’t boring and Hoffmann certainly isn’t.

    Nevertheless I wonder, is such a debate actually now going on, in private, at SCOTUS level?

  37. To clarify, patentable under 101. I beleive that was obvious, but I want to be clear that I am not considering 102, 103, and 112

  38. Paul,

    “If I take a patent claim which is purely a description of an algorithm, and implement that algorithm by hand, am I violating the patent?”

    If the claim merely recites an abstract algorithm that does not produce useful data and has no direct or indirect effect on physical reality then I do not disagree. An algorithm by itself is pure mental masturbation and if that was all the antisoftware people wanted to eliminate, I would not object.

    However, let’s say that the outcome of the algorithm you posit told you what button to push on an array based upon input information, then a claim that included pushing that button should absolutely be patentable. Or, let’s say the algorithm told you whether or not someone had diabetes, then a claim whose final limitation included using the output of the algorithm to determine whether someone had diabetes should be patentable. Any software claim where the output is inherently useful or the output is used for a useful purpose should be patentable.

  39. I read the relevant section of your memoirs, and while I agree you did a great deal of good in convincing people back then that software was something important that people ought to be able to sell.

    On the other hand, I don’t see any reason for patents to be involved: it seems like all the sorts of troubles you had with IBM back then could today easily be resolved using laws of copyright, trade secrets, truth in advertising, anti-trust, etc.

    Your software vs hardware implementations argument seems to work just as well in reverse: you are making a great case for mere hardware implementations of various algorithms not to be covered by patent protection as well (unlike, say, new methods of implementing such algorithms in hardware).

    The main reason why software patents today seem to many to be of vastly negative overall value to society is that they are regularly awarded for things which are “obvious” in the sense that another expert in the same exact topic is likely to come up with the same thing (and very often does come up with the same thing, without ever having heard of the original patent).

    How do you propose fixing this problem (and from an overall benefit to society point of view, just letting the current patent troll lawsuits continue is not a good answer)? Your article doesn’t seem to address the biggest problems with software patents at all…

  40. And certainly, mathematics implemented in machines that actually do something, even if old, is exactly Diehr. But the Office applies Flook and Benson.

  41. 6, I just wanted to illustrate my point that the new algorithm in the old machine is clearly patentable subject matter in Diehr, but not in Benson and Flook.

    For all others, it really doesn’t make a wits difference whether the algorithm is implemented in hardware or software. They are equivalent. But, under the PTO’s interpretation of Section 101, if the machine is doing something new, it is patentable. If it is completely old and the only thing new is the algorithm, it is unpatentable.

  42. “6, at the end of the day, someone walks in with a machine that does what people are paid to do and you say no patent.”

    That’s how we protectin’ on american jobs.

    Lol.

    “OK, literal MaxDrei, you bring a machine into a patent attorney and he/she says, sorry they don’t give out patents for those machines. ”

    That sounds rather like the patent attorney rejected you, not me. But whomever that attorney is, he is a smart dude.

  43. To those who say greedy lawyers and big corps. are the only ones who advocate software patents, the same silly argument can be flipped; the only ones opposed to software patents are those who hope to profit or benefit from the labor and creativity of others without fairly compensating those others.

    Fact. Patent laws were passed by representatives elected by majority of the voting citizens. The patent laws include broadly worded section 101. Propertly interpreted, section 101 was intended to cover things like software arts. Therefore, the voting citizens are the ones who have given us software patents.

    As to the idea that programming is math, why don’t you please first give us a definition of math? See there is a little trick going on. SB knows that “math” per se (in some sense) is not patentable. SB knows that if he can shoehorn something into being “math” then it follows that it won’t be patentable. The problem is, you are changing the meaning of the word “math” when you do so. If you define “math” in a way to include machine-implemented software, then “math” should indeed be patentable.

  44. >>NWPA, to be facetious, you don’t get a patent >>in return for bringing your new machine to the >>Patent Office. I thought it was only lay >>people who believed that nonsense.

    OK, literal MaxDrei, you bring a machine into a patent attorney and he/she says, sorry they don’t give out patents for those machines. Just no way to describe it without a baboon claiming that the real work is done by angels spinning in its armpit.

  45. “6, at the end of the day, someone walks in with a machine that does what people are paid to do and you say no patent.”

    No, he doesn’t. He blathers and postures on here all day, but he’s never actually issued one of his 102/”capable of” rejections for a computer reprogrammed with a new function.

  46. NWPA, to be facetious, you don’t get a patent in return for bringing your new machine to the Patent Office. I thought it was only lay people who believed that nonsense.

    As we all know, to get a patent you have to formulate a claim that embraces nothing within its scope that is old or obvious, and then you have to enable it over its full scope. You have to survive the obvious/insufficient squeeze (if it’s so self-evident how to implement the concept that no details need be given in the specification, then obviousness falls to be decided on the basis of whether the concept, as such, is obvious). With alert Examiners at the PTO, as now seems to be the case, getting to issue ain’t so easy.

  47. 6, at the end of the day, someone walks in with a machine that does what people are paid to do and you say no patent.

    What is the reason? ’cause there are angels spinning in MM’s armpit that are doing the actual work.

  48. “Now, please try to tell us why you think a machine that can do what people are paid to do should not be eligible for patentability? ”

    It “doing what people are paid to do” has nothing to do with whether or not the machine is eligible. In any event I don’t believe that I’ve yet said that they aren’t eligible in this thread.

    My position is well known, or should be, at least to you. 102 all the way, every time, on your generic computer reprogrammed for some new function. However, that isn’t to say that there aren’t a plurality of ways the USSC could go ahead and lower the 101/constitution ceiling down on them, or at least most of them. You’re aware of most of them and I don’t need to spell them out for you again.

    The bottom line in this thread so far is that your “article” that you wrote was a pile.

    6, your opinion please:

    Spec discloses a mathematical algorithm for converting BCD to decimal.

    Spec. discloses a machine comprising circuits, power supplies, card input means, and card output means for performing the calculation on input cards and punching output cards. There is no software implementation disclosed.

    Aside from the new circuits, the machine is old in combination. The only thing new about the circuits is their logic. The logic implements the algorithm.

    The spec. states that the use of software in a microprocessor to calculate the algorithm is an equivalent.

    The claim is in the form of means plus function, reciting the steps of the algorithm. The claim wholly preempts the use of the algorithm in BCD->binary card punch machines to the extent software implementation using a microprocessor is deemed an equivalent.

    Issue the rejection and specifically discuss Benson and Diehr.

    Alright Ned, let me get this straight. First we’re going to need to sort out the paradox you present:

    “There is no software implementation disclosed.”

    “The spec. states that the use of software in a microprocessor to calculate the algorithm is an equivalent.”

    Seems to be a paradox, so I’m going to assume that you mean that the only software implementation disclosed is that which the spec discloses: that the use of software in a microp to calc the alg is an equiv.

    “Aside from the new circuits, the machine is old in combination. The only thing new about the circuits is their logic. The logic implements the algorithm.”

    Also I take the above to mean:

    “Aside from the new circuits, the machine is an old combination (i.e. the exact circuit layout on the transistor etc. level is the exact same). The only thing new about the circuits is their logic. The logic implements the algorithm.”

    This also appears to be a paradox. If you have the exact same hardwired circuit then the “logic” is the exact same, each and every time, unless we have various widely differing inputs etc over time and we have created a very adv. complex circuit which will have varying behavior over time depending on different conditions being met. I don’t really think that is what you meant to set up as an example. What I think you meant to set up was simply a circuit that was the same as the prior art while you were claiming that the logic was somehow different than that in the prior art, or the prior art didn’t go through the trouble of describing the logic (even though the circuit inherently produces it).

    Given that situation (feel free to better describe the situation if you want to) here is the action in brief:

    101

    stat

    Claim 1 is rejected under usc 101 as being directed to non-statutory subject matter. The claim is directed to an embodiment of a machine which implements an algorithm where the embodiment appears to wholly preempt every use of the algorithm. Such a claim is prohibited as allowing such claims would defeat the purpose of the prohibition against patenting algorithms in the abstract (cite to benson and put blurb) when considered as a whole (cite to diehr and put blurb) and thus it is prohibited by the same.

    102

    stat

    Claim 1 is rejected under U.S.C 102 (b?) for being anticipated by Prior Art et al.

    Art shows a machine comprising means for a, means for b, and means for c as disclosed in the specification.

    6
    12/01/2009

    That is assuming that you were right about the machine just being an old combination. If it was a combination of two refs then make the 102 and 103.

    Wasn’t there a m+f case about this very subject just the other day? If I actually had the case in front of me I’d probably borrow some language from them.

    I should also add that the above 101 rejection could very well be mistaken depending on the claim etc. It seems to me like in m+f you’re only claiming the hardware disclosed in the spec. Depending on whether or not you disclosed that hardware in purely functional terms or not would make a difference.

  49. OK, here’s one for all you legal geniuses out there. If I take a patent claim which is purely a description of an algorithm, and implement that algorithm by hand, am I violating the patent? What if I translate the claim into source code in my favorite programming language, say lambda calculus, and hand it to my friend who uses the source code to implement the algorithm by hand, am I violating the patent, or is my friend violating it?

    What happens if my friend is a programning genius who can correctly read machine instructions and I compile my code and give the resulting machine instructions to my friend to execute by hand?

    What if my friend gets lazy and uses a machine to execute the instructions instead? Does it matter what sort of machine? Would the use of a billiard-ball computer violate the patent? Would the use of a universal computing machine violate it? Where is the line drawn? When is the patent violated?

    To make things more concrete, consider Claim 1 of US 7146604 “Program operators for composing abstractions”:

    “1. A method for composing programming abstractions, comprising:

    defining a composition operation for composing a first abstraction and a second abstraction with a selected composition operator; each abstraction having a form, a prefix, and at least one expression;

    unfolding the expressions from the first and the second abstractions by: (a) removing the prefix of each abstraction, and (b) substituting formal parameter names in each expression with a common parameter name to define open variables;

    transforming the unfolded expressions to a reduced expression using a composition pattern that tunes semantics of the selected composition operator;

    selecting a prefix that depends on the selected composition operator and the form of the first abstraction and the second abstraction; the selected prefix having a formal parameter with a type; and

    nesting the reduced expression in a third abstraction that composes the first abstraction and the second abstraction by: (i) appending the selected prefix to the reduced expression, (ii) binding the open variables of the reduced expression to the formal parameter of the selected prefix, and (iii) computing the type of the formal parameter of the selected prefix.”

    For those unfamiliar with the claim, read the rest of the patent. It seems to be describing a typed lambda calculus.

  50. NWPA writes:

    “nd Maxdrei, I am suprized you haven’t picked up on the distinction between software that improves the operation of the computer vs. application software as the EPO makes such a distinction. And, in fact, you Europeans have tried to make the software that improves the efficiency of the computer eligible for patentability and the application software not eligible.

    Although, don’t ask me for case cites. It’s been over a year since I fought that battle with the EPO”

    NWPA see my contribution at 06.24am this morning.

    Readers, it would be a mistake to suppose that the EPO dismisses applications software as unpatentable. It is “methods for doing business” that are Statute-barred in Europe, OK?

    MacBook writes:

    “@Night Writer Patent Attorney

    Read the recent Gemstar decision here:

    link to bailii.org

    The judge talks about the technical effect, whatever that means.”

    I reply: The EPO has an “effects-based” approach to the analysis of obviousness. Glad to see the English courts adopting it too. If you have never heard of this, I guess you have never had a client who files in Europe. Never mind. There are plenty of prolific EPO filers who never bother to file at the USPTO.

  51. Where’s that baboon with the spinning angels in its armpits? Come on MM, let’s hear more of your rot. The PTO is open today.

  52. Dear Lionel,

    Good, well thought out comment — Thank you.

    Finally, something we can agree on.

  53. Game over,

    “The anti-software-patents zealots or the anti-patent zealots can never provide an answer that refutes the basic (and very popular) notion that people should be rewarded for their labors.”

    If that was the point of IP, we would not exclude purely “sweat of the brow” endeavors from copyright.

    The US does not award patents for the purpose of rewarding people. It awards patents to encourage the development and disclosure of ideas. It is an incentive system. Is it the best incentive system? Reasonable minds could disagree, but it is still an incentive system.

    My fundamental problem with people who argue against software patents is they (1) argue we should create bright line, arbitrary boundaries about what is or is not patentable, (2) assert the rapid obsolence of software (which could be solved by lowering the exclusivity period for such patents, without eliminating them altogether), or (3) any of a myriad other arguments that apply equally to all other patentable subject matter (i.e, when they argue against SW patents, they are essentially arguing against all patents).

  54. I don’t find much of substance in this article:

    “1. What is a Software-Related Invention?”

    Weak argument. Copyright already protects software adequately. Due to copyright nobody can copy your implementation and charge less without the R&D cost _per default_. No need to sign up at the patent office even. Only you decide who can distribute your software.

    By releasing binary blobs (closed source), it is very hard to reverse engineer your particular algorithm also. So you can keep your little secret algorithm, which could potentially benefit everyone. Regarding software, most algorithms worth anything will be independently discovered anyways, when it’s needed.

    What you want to protect is your algorithm, how it works, not the implementation of it. This is not patentable because having patents covering algorithms will commercialize our public domain scientific knowledge, and threaten the progress of cultural and scientifical development. Patents was originally created to promote this, but is sadly being abused like this today to unfairly squash competition.

    “2. Hardware implementations versus software implementations.”

    Same weak argument. See above. Hardware is not covered by copyright, so need extra protection. It can be argued somewhere else wether patents or something else entirely is needed for hardware.

    “3. Software Product Companies[4] are High Technology Manufacturing Entities.”

    The reason we have patents is sheerely because it promotes publication into science. However, the way patents are abused today, means companies cannot AFFORD to review a single patent! This is due to the risk of being charged for triple damages for knowful infringement, and also the legally dangerous knowledge that patents convey in general. Instead you want independent invention, which for software, is not as hard as for hardware. 12 year old kids can do it from the basement and that says something.

    Rather than promoting science, patents are today being used to hinder competition, which is bad for both customers, society’s science and companies.

    You got a patent on _SORTING_ data? Shame on you! Most algorithms on sorting in computing science is public domain, and can be used by ANYONE. This is how science works for our benefit. By publishing and sharing information freely, not threatening with economic violence using government-sanctioned law enforcement and artificial monopolies that patent-law is. This is just a way to both rip off society and hinder competition unfairly. Maybe you get rich that way, by stealing power away from everyone else!

    Just because it is hard, does not mean you should be granted monopoly on knowledge. How much progress would we have had if we had started this crazy business from the time the wheel and fire was invented? Everything would be litigated into the ground before we had a steam engine! It is interesting to note how every large culture in history have fallen to the ground due to decadence and complacency, instead of furthering their progress both spiritually and technically (they go hand in hand, but that’s another book).

    There is also a fallacy to argument for software patents because software is just an extension of hardware. You have to review the law for every single type of industry and technology, and then make informed conclusions wether it will hurt the industry and society or not.

    There is no obvious benefit of patents in the software industry due to software being so different from other technology:
    * Software is easy. You only need an interpreter / compiler and lots of free time.

    * Software is free. Vast amounts of algorithms and libraries make it easy to make complex software in no-time.

    * Software can be duplicated at no cost. Rather than making artificial monopolies, we should investigate how this property of software can benefit everyone. Think: If cloning any object was a matter of plugging a machine into the electric outlets, should we restrict copying / cloning of physical items as well? Why do that, are we that immature yet?

    Welcome to the 21th century. These things will have to be resolved in the natural way sooner or later, not by artificial monopolies, backed up by economic violence and control structures.

  55. Why should software patents last for 20 years?

    I can see some justification for software patents. However, what I have never seen is why they should last as long as patents on say, drugs. To make a new device or chemical can require years of testing in the laboratory. With software, I typically design, write and test each idea in the space of a week or a few months. As well, if the patent lasts significantly longer than it would take a second inventor to discover the idea and publish it, then the patent is becoming harmful to society rather than helpful. In short, because it is easier to invent software than physical inventions and because most software patents would be discovered soon anyway, I believe that software patents should be much shorter in term than physical patents. I want to know why someone thinks that a computer invention from 1990 should still have a monopoly. If there is a case for software patents, it would be for a much shorter term, like maybe 3 years.

  56. Electrical engineering is just physics which is just math waiting which is just waiting to be discovered and should not be patentable.

    Biology is just chemistry which is just physics which is just math which is just waiting to be discovered. Therefore, biology shouldn’t be patentable.

    See link to xkcd.com (great comic)

  57. Actually, JaSchotsmans, if you spent more time understanding innovation, you might realize that the problem is that it is too hard to protect real innovation in information processing.

    How many people are willing to dedicate themselves to improving information processing outside of academia? Academia gives them papers and research money. But, why come up with a better edge detection algorithm if you can’t protect it?

  58. Copyright offers some protection, but no protection for the methods. Look at the open source community that specializes merely copying the functionality of commercial products.

    Somehow they come up with ideas and think that they are not copying. I guess they used unix and they had a good night of drinking and then woke up and had a great new idea for an operating system.

  59. >>JanSchotsmans

    Microsoft (before software patents became mainstream) kept everything secret and they didn’t hire a gazillion researchers.

    Ask youself, why have those researchers without patents? Why? Why disclose anything that a company is doing? Why? It is always easy to forget the benefits of what you have until you lose it.

  60. Software is already overly protected by copyright.

    It doesn’t need patenting.

    Not to mention that innovations in software, if given any patent protection longer then a year is utterly counter productive for the entire world.

    Software innovation needs to be pushed to new boundaries, not locked down so that in 20 years you can still refuse use of the technology you created to whomever you please.

    Not to mention that the patent system is flawed to extremes.

    People constantly patent things that have been around for ages but noone has ever taken a previous patent on, with no intellectual input of their own, they purely seek profit and they’ll stem any innovation to keep those profits.

  61. Hello Night Writer Patent Attorney,

    Re:
    “And in all cases, at the end of the day, what you have is a machine that is doing things that people are paid to do.

    How in the world can that not be exactly what the founders had in mind when they wrote the constitution?”

    If a person invents a new and useful process, that invention is, of course, patentable whether or not it is preformed in a computer. That is exactly what our forefathers meant in the Constitution. You sure got that right.

  62. And Maxdrei, I am suprized you haven’t picked up on the distinction between software that improves the operation of the computer vs. application software as the EPO makes such a distinction. And, in fact, you Europeans have tried to make the software that improves the efficiency of the computer eligible for patentability and the application software not eligible.

    Although, don’t ask me for case cites. It’s been over a year since I fought that battle with the EPO and lost.

  63. Hi everybody, here’s a little bit about my background. I’m not a software developer, or a mathematician, or a patent attorney. However, I did stay in a Holiday Inn Express last night.

    Therefore, software patents are unpatentable.

    QED

  64. I hope you figured out by now that a computer is not math, but a machine. That the information is being represented by a physical machine that is not math. How can you separate a cat’s neurons from a computer and say one is math and one is not?

  65. And in all cases, at the end of the day, what you have is a machine that is doing things that people are paid to do.

    How in the world can that not be exactly what the founders had in mind when they wrote the constitution?

  66. A computer is implementing an information processing process which operates on represented information. Just like a process that operates on wheat.

    Represeted information is being operated on. Think that through.

    The math question is a red herring. Yes, every computer program is a computable function. So, what? That doesn’t mean it is mathematics. Are humans mathematics? Are neural networks mathematics? Are the neurons that causes a cat to run or walk mathematics?

    You also need to think a bit more about what mathematics is in relation to our brains.
    I wish I had more time to go into this. You know Newell actually wrote a paper about this long ago.

  67. 35 U.S.C. 101 Inventions patentable.
    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

  68. Ah Pook wrote:

    “Computer programming is a branch of engineering. It’s about getting machines to perform useful functions.”

    and as such Computer Programming is patentable subject matter. QED

  69. Paul, sorry I mis-spelled your last name. Don’t worry about JAOI’s tone. He is not averse to a bit of provocation. Maybe he just got out of bed the wrong side, on this first day of Winter.

    I also know “dick” about the patent-eligibility of programs for computers. It’s a 101 area where what the law “is” and what the law “should be” get hopelessly commingled and intertwined, especially on this blog site, and especially when SCOTUS is about to opine.

  70. Interesting contribution from Paul Leonard. A propos his “key question”, would he say that an algorithm that causes the computer itself to operate more efficiently than before is something deserving patent protection, as being “more” than an algorithm “as such”.

    What if such an algorithm is written in code on a carrier. Is such a carrier patentable?

    Or must the computer first be programmed, before anything patentable exists?

    Or is there no such thing as an algorithm that causes a computer to run more efficiently?

  71. Dear Paul,

    With all due respect, you don’t know dick about patentable subject matter. No offense intended.

  72. Hi again folks. First, my background. I have degrees in Computer Science, Information Systems and Mathematics. In Computer Science way back in 1981 I learnt about logic, and in 1982 I learnt about the denotational semantics of programming languages. In 2000 I went back to university to learn numerical analysis and computational mathematics.

    Before anyone can categorically assert whether something is or is not mathematics, it would be wise to understand the scope of mathematics and mathematical thinking. The relevant subject here is the design, implementation and analysis of algorithms. Algorithms of all types.
    The key question (to my mind) is whether an algorithm implemented on a general purpose computer is essentially different from the same algorithm implemented manually.
    If it is not, I suggest that you need to look for patentable subject matter elsewhere.
    Adding a general purpose computer should not make
    an unpatentable algorithm patentable.
    Unfortunately, there are already too many examples of US patents which are essentially patents on “unpatentable” algorithms.

  73. Dear Ah Pook,

    Re:
    “Computer programming is a branch of engineering.” etc.

    Brilliant post! Bravo! Thank you.

  74. Any opinion piece on patents and software = big long comment thread, much heat, little light.

    There simply is not any valid “philosophical” basis for saying that “information processing” should be excluded outright from patentability. Which isn’t to say that that it doesn’t presents challenges.

    “Computer programming is a branch of mathematics.”

    That must be why computer programming is taught in the math faculty. NO IT ISN’T. Math and logic are not the same thing. Applied math and applied logic are not he same thing as pure math and pure logic. Computer programming is a branch of engineering. It’s about getting machines to perform useful functions.

    “When you write a program, you’re doing math.”

    You might incorporate some math into a computer program, but most computer code is not math of any kind.

    “The whole foundation of computer program, laid down by Alan Turing et al, is mathematics. Without that foundation, there would be no computer programs as we know them.”

    Mathematical expressions of physical laws are at the heart of most physical engineering. Without that foundation most modern technology would not exist.

    “Would someone please tell me what other branches of mathematics are patentable? Algebra? Trig? Calculus? Topology? Statistics? No? Didn’t think so.”

    Patentable inventions frequently comprise practical applications of mathematics.

  75. @Game Over

    “The anti-software-patents zealots or the anti-patent zealots can never provide an answer that refutes the basic (and very popular) notion that people should be rewarded for their labors.”

    Copyright is fine for rewarding labour. Patents on the other side are just stealing the fruits of the labour.

  76. 2 cents: With a background in embedded systems I have a profound appreciation for the interaction of hardware & software. I’ve always been a bit on the fence as to whether s’ware should be categorically denied patentability, but I must say Mr. Goetz’s post has done nothing to persuade me. From a legal perspective, comparing s’ware development to generalized industry or business is irrelevant. Is Goetz arguing to change the statute? If not, I’m still not sure which category he places s’ware in. Also (as has already been pointed out), the notion that ‘anything done in hardware can also be done in software’ is not quite true.

  77. No one here seems to have read Goetz’s original patent (US #3,380,029). It’s written as a hardware device for controlling a sorting process. The hardware equivalence issue is quite real. Until 1990 or so, it was customary to draft software patents as if they were hardware devices. This led to patents that were hard to understand.

    Goetz’s sorting algorithm is quite clever. It was the first sort to break the “speed limit” of O(N log N). Some textbooks still state that it’s not possible to sort faster than O(N log N), but that’s not really the case. If you only do comparisons (i.e. the sorting algorithm is based on “>”) you’re limited by that limit. But there are other approaches.

    SyncSort owned mainframe sorting for years, and they’re still in business.

  78. The article can be picked at a little if you view it as a treatise on patent law (although only a little), but as a clear and rational explanation as to why software should be patentable it is right on the money. If you implement something that could be implemented in pure hardware as a mixture of hardware and software, upto and including software running on a general purpose computer, then it should be no less patentable than if it were implemented purely in hardware, period. If I had my druthers, that would be the legal test, although jurisprudence doesn’t tend to work that way. Instead, new legal tests are invariably drafted to create the least disturbance to the existing body of precedent. We will have to wait and see.

  79. “it is math because I am manipulating 1 and 0′s and moving/copying those 1/0′s using algorithms that I chose to use and are available to use patent free because they are math. just because you are not literally adding 1+1 does not mean it isn’t math.”

    There is a difference between using math and doing nothing but math — this difference is important but overlooked in your analysis. Any process involves math because math underlies physics, and physics underlies what happens in any physical process. The fact that a computer program uses math does not distinguish it from these other process. Like these other processes, the use of math results is some real-world action/consequence. In software, a data structure within a storage medium may be changed, a user may be prevented/allowed to take a certain action, a communication may occur, etc. These real-world actions/consequeces are more than just math — which is why software will be patentable now and in the foreseeable future.

    The problem that that software geeks have in their anti-software patent crusade is that they have to convince non-technical people (i.e., legislators and judges) using their technical jargon.

    On the other hand, it is easy to take a non-technical person to a computer, show them all the amazing things they can do with a computer running software, and then ask the question “did this software add value to the computer?” The answer to this question will almost invariably be yes. What come next is the question that “if the person writing this software had added value, why shouldn’t this person be rewarded?”

    The anti-software-patents zealots or the anti-patent zealots can never provide an answer that refutes the basic (and very popular) notion that people should be rewarded for their labors. Try as they might, this is a dead issue. The software genie is out of the bottle in the US and it isn’t going back.

    Thanks for playing, but game over.

  80. “Your article does not give one single reason why it is in the public interest to grant software developers a monopoly over their ideas.”

    Why should anybody get credit for their work? If they don’t get paid, why should they share the product of their labors?

    This was a concept that our founding fathers understood — you provide value, you should get rewarded for that value and that also applies for intellectual property.

    Of course, every first-world country in the world has a patent system, so you should be explain why all these countries got it wrong. You are advocating for the massive change of status quo, so you should be the one writing the article.

  81. I agree. The issue is discovery and invention. Take a Radio Shack “101 Projects Kit.” So, once it is wired as a “lie detector application” it is patentable (if novel, useful and unobvious, etc.), but a program to instantaneously wire it as the same “lie detector application” it is not patentable, then we have a problem. Inventors are being forced into formalisms that devalue invention and discourage original thinking.

  82. “That is simply not true. The fact that mathematics may be used to represent the information processing methods on a computer does not mean that the methods are math. The weather is being modeled using mathematics and simulated on a computer. Does that mean the weather is math? No. Math may be used to model any method of playing cards or making steel. Does that mean that playing cards is math or making steel is math?”

    wrong – it is true. there is no such thing as “information processing methods” that is non sense.
    last I checked the weather wasn’t patentable either along with playing cards and making steel.

    software patents are being used to hold back an industry by holding it hostage. software is math. the only people that want software patents are lawyers and big companies who are afraid of not pleasing their stock holders.

    if you write a program to copy files does that mean copying files is patentable? it is math because I am manipulating 1 and 0′s and moving/copying those 1/0′s using algorithms that I chose to use and are available to use patent free because they are math. just because you are not literally adding 1+1 does not mean it isn’t math.

  83. “The math model of a computer process is not the process”

    Point understood and agreed with.

    Maths is not all about models. Some processes are maths. Before the advent of the computer, mathematicians were working with pencil and paper. They still do. This work is in many cases a process made of steps to be executed in a sequential manner. Processes and maths are not mutually exclusive categories.

    I wonder if the mistake is the belief that maths must be disembodied. This is never the case unless you do stuff so simple you can all do it by head. Maths is a written discipline. You need a physical artifact to write down the symbols that are required to carry out the steps of the calculation. It can be pencil and paper. It can be bits in a circuit. In both cases it is maths.

  84. “There is six phases in the life cycle of software products: Definition, Design, Implementation, Delivery, Maintenance, and Enhancements. Let’s look a little closely at these phases and you will see how closely they resemble characteristics common to all manufacturing companies. ”

    okay but I don’t need to hire employees, build a factory, buy machinery (except one computer). I can do all those phases in my house on my computer.

    Software is math just waiting to be discovered and is not patentable period end of story no matter how bill gates tries to twist it.

  85. stepback
    prepare to be seriously disappointed. the mental wanking you see all about you is very real and done by people so delusional that they cannot see the illogic in their pristine logic.

    calls to mind the great quote from william shatner when hosting a live comedy venue.

  86. “The fact that mathematics may be used to represent the information processing methods on a computer does not mean that the methods are math.”

    This is indeed not what means the methods are maths. It is the fact that the method matches the definition of the mathematical concept of “effective method” which means that the method is maths.

    ” The weather is being modeled using mathematics and simulated on a computer. Does that mean the weather is math? No. Math may be used to model any method of playing cards or making steel. Does that mean that playing cards is math or making steel is math?”

    The argument software is maths is not about building a mathematical model. It is about whether or not the work of the computer matches the definition of a mathematical computation that is in usage within the art of mathematics.

    The details of why this is so will be found here:

    link to groklaw.net

  87. “Math may be used to model any method of playing cards or making steel. Does that mean that playing cards is math or making steel is math?”

    A sufficiently accurate simulation of rubber being cured is not rubber. A sufficiently accurate simulation of a computer is a computer. (virtual machine) A sufficiently accurate simulation of a computer program is a computer program. (interpreter)

  88. >>Computer programming is mathematics.

    That is simply not true. The fact that mathematics may be used to represent the information processing methods on a computer does not mean that the methods are math. The weather is being modeled using mathematics and simulated on a computer. Does that mean the weather is math? No. Math may be used to model any method of playing cards or making steel. Does that mean that playing cards is math or making steel is math?

  89. @NameChange:
    I don’t understand why you think there is a difference between low-level and high-level code. If you’re suggesting that low-level code is ‘closer to the machine’, how do you deal with low-level code running on a virtual machine? Can I get away with infringing your patent on an assembly language routine by re-implementing it in C?

    @step back:
    I think you are confusing information theory with physics. The limitations on a computer that you mention are a result of practical computers that we use being finite. This doesn’t make them any less abstract. In any case, the limitations of time and space for a modern computer are very large, and the difference between practice and theory are very small for most programs.

    Are you suggesting that only programs that require so much memory or processor time that they must be optimized before they can be run on modern computers should be eligible for patenting? That seems to be the only conclusion available if time/space concerns are the only thing that can make software non-abstract, but it doesn’t seem reasonable.

  90. This is NOT inventing

    function compress(image file handle)
    {
    prepare memory;
    compressed handle := OSCallCompress(image file);
    return (compressed handle);
    clean up memory;
    }

  91. When you reduce a model of a physical phenomena and your solution to it, to a mathematical formula and then compute the outcome to implement your solution you are inventing.

    When you figure out a novel way to manipulate register transfers, using, for example, a low level programming language, to arrive at a vastly more efficient manner of “computing” a function, you are inventing.

  92. Dear step back,
    It does not matter what you believe you are doing when you write a program. The denotational semantics of programming languages, the existence of Lambda calculus, and the Church-Turing thesis ensures that any time you write, compile and run a program, the entire process can be reduced to computing a computable function.

  93. There is a large number of possible explanations for the anti-software anti-patentists (ASAP’s) that post to this site:

    1. They enjoy teasing with the toads and will say absurd things like “programming is math” just to see how the pro-software pro-patents people (PSPP’s) will respond.

    2. They have not been educated in, or do not remember their education in physics and thus will say absurd things like “all computers are equivalent to a Turing complete machine and vise versa”.

    3. They blindly believe in the absurdities they posit here and fail to comprehend what the PSPP’s are arguing back to them.

    Of these 3 options, I sincerely hope #1 is the most likely. It would be a really sad day if #3 were the correct interpretation.

  94. @nwpa

    Computer programming is mathematics. Sorry, it really is. Mathematically speaking that is!

    Physics, on the other hand, is not math. Rather, it uses math to describe the physical world.

    For a treatise on the subject, see:

    link to groklaw.net

    Written from a mathematics perspective, to be sure, but with a mathematical logic of development and proof.

  95. 6′s biggest problem is not knowing the extent of his own ignorance.

    “Real knowledge is to know the extent of one’s ignorance.” ~ Confucious

  96. Aquarian,

    Spoken like a true baboon. Whether or not a particular piece of software is “patentable” (102/1-3) depends on the prior art. Whether “software” deserves inclusion into the traditionally broad categories of patent-eligible subject matter, the answer is not so simple as a categorical NO.

    Heck, just the fact that the categories are few and broad, in and of itself, argues that 101 is a rule of inclusion and not one of exclusion. 102/103 on the other hand are, rightfully, finer sieves through which not all inventions will pass.

  97. IS software patentable? The supreme court may actually get around to telling us the answer to this question one day. Until then nobody knows. Of course we have to be understanding and give the supreme court a bit of time to make their minds up on this important issue. Software has only been around for half a century. It would be unreasonable to expect them to decide anything in such a short time.

    SHOULD software be patentable. That is a much easier question.

    NO!!!!!!

  98. Dear P=Math

    What you really meant to say; if one is going to be mathematically precise, is that when “YOU” program a computer “you” think of yourself as doing math.

    When I program a computer (a real world computer), I worry about things such as not using up too much memory by, for example, declaring as long a variable that could be integer. I worry about how much time each re-entrant subroutine is going to consume. I worry about the physics of the situation.

    When I program a computer, I do not pretend that I have a fantasy Turing machine with an infinitely long tape of mass zero and an ability to spool that massless tape at speeds exceeding the velocity of light, v>>c (while consuming zero energy in the process of course, in other words, E=mv^2 where v>>c, but m=0 so who cares?).

  99. Contrary to your posit Michael regarding the authors position, I would agree with you and say that the operating system software is probably the most patentable of all… I don’t think there is a lot of dispute about that – unless you talk to the bearded Open Source beatniks of the birkenstock culture.

  100. Michael, where did the poster say that software that improves the operation of a general purpose computer shouldn’t be eligible for patentability?

    He didn’t.

  101. Let’s assume that the original poster is right that software that makes a general purpose computer into a specific machine is (or should be) patentable. What about the software that makes a general purpose computer operate? So he is advocating that such software is unpatentable, but yet application software is patentable? That’s a distinction that makes sense?

    So software that makes an innovative general purpose computer (operating systems, virtual machines, etc.) are all unpatentable. Expand your mind a little and you will realize that a general purpose computer IS a type of specific machine.

    Think about it.

  102. Not convinced.

    Ask Microsoft, or Symantec or Google, or whoever, how much money it takes to develop, release, distribute, maintain and upgrade a successful software program.

  103. Physics = mathematics too, since when did that stop inventions dealing with physics from being patentable.

    Baboon #2, your table is ready… Baboon #2, your table is ready.

  104. >>I don’t believe significant capital is needed >>to develop a PARTICULAR software program. >>Certainly not enough capital that requires 20 >>year monopoly to make profit.

    Do your own google search for software start-ups and venture capital.

  105. I would like to see support for this statement:
    “Secondly, a great deal of capital is often required and many software companies are funded through private investments, venture capital, and through public offerings.”

    I don’t believe significant capital is needed to develop a PARTICULAR software program. Certainly not enough capital that requires 20 year monopoly to make profit.

  106. Computer programming is a branch of mathematics. When you write a program, you’re doing math. The whole foundation of computer program, laid down by Alan Turing et al, is mathematics. Without that foundation, there would be no computer programs as we know them.

    Would someone please tell me what other branches of mathematics are patentable? Algebra? Trig? Calculus? Topology? Statistics? No? Didn’t think so.

  107. 6 ejaculated: >>You’re an embarrassment.

    Calm down 6. Remember to try to use reason and your words. No hitting in class. Be a good boy.

    Now, please try to tell us why you think a machine that can do what people are paid to do should not be eligible for patentability?

    Please stay in your seat and stop throwing your pencils.

  108. Wonderful post.

    I like to think of software as a process that is tranforming information. Transforming information takes time, energy, and space. If you examine the writings of SCOTUS Justices such as Douglas and Stevens you will note that they do not understand the word abstraction and seem to believe that thoughts have no physical representation.

    You will also note that physics has incorporated the concept of information into our understanding of the universe.

    A process that transforms represented information should be treated no differently no differently than a grain of wheat being transformed.

    Lee Rahn: Benson can never be explained away. The best that could have is for Benson to be explicitly over turned as nonsense.

    Note: According to MM and 6 ideas are represented in the armpit of MM according to whether they are spinning clockwise or counter clockwise.

    I mean really. Really. Grow up people. Information processing is as important as anything people have ever done. Really. A machine that can do what people do. How in the world could that not be eligible for patentability. Only if you delve down the bizarre ideas of Stevens who apparently represents his ideas in some nonphysical. In you delve into the bizarre world of J. Moore (all of J. Moore’s thoughts are mere post solution activity.)

    Please add your own insult towards MM. My favorite is that he is really a baboon.

  109. Madhatter says “The argument has now moved from whether “software patents” should be allowed onto whether or not “patents” have any positive effect on society.”

    Incorrect.

  110. Some commentators do not consider the principle of patent law that the claims govern the subject matter to which the right to exclude applies.

    I think it boils down to the claims–if the claims are broad enough to cover abstract ideas they do not cover patentable subject matter and if the claims are limited to exclude abstract ideas, the claims cover patentable subject matter.

    Some may say this test is an over-simplification, but in my 40 odd years of practice dealing with software related inventions, I have yet to see a court decision that fails the test with the possible exception of Gottschalk v. Benson. That case can be explained away by the fact that it was authored by Justice Douglas.

  111. This is a straightforward legal issue. Statute written in the past. New thing comes along (software). Does the statute apply to the new thing? The post analyzes the issue in a valid way by comparing software to other things that are covered by the statute. Many believe this is the right way to analyze the issue. That is, is software (perhaps plus machine/medium/machine-method) sufficiently similar to the things that section 101 is intended to cover? A fair comparison – even the partial comparison of the post – leads one without preconceptions and prejudices to conclude that yes, software (perhaps plus extra) is intended to be covered by section 101.

    As the MPEP summarizes, Congress clearly intended the patent statutes to have broad scope. Despite the knee-jerk guffaws that the MPEP seems to evoke, here’s a quote, not as a source of authority, but as a well-stated legal conclusion that is correct:

    “The use of the expansive term “any” in section 101 represents Congress’s intent not to place any restrictions on the subject matter for which a patent may be obtained beyond those specifically recited in section 101 and the other parts of Title 35…. Thus, it is improper to read into section 101 limitations as to the subject matter that may be patented where the legislative history does not indicate that Congress clearly intended such limitations. … a complete definition of the scope of 35 U.S.C. 101, reflecting Congressional intent, is that any new and useful process, machine, manufacture or composition of matter under the sun that is made by man is the proper subject matter of a patent.”

    Software is made by man.

  112. Fed Up Old Guy :

    before thinking about shorter terms for business method patents, can you tell me what is exactly a ” Business Method Patent” and what is not a ” Business Method Patent” ?

  113. Has there ever been any consideration by the USPTO or others for setting aside different rules and/or shorter patent terms for software/business method patents…similar to how design patents are set processed from utility patents?

    Or is that a bad idea?

  114. 6, your opinion please:

    Spec discloses a mathematical algorithm for converting BCD to decimal.

    Spec. discloses a machine comprising circuits, power supplies, card input means, and card output means for performing the calculation on input cards and punching output cards. There is no software implementation disclosed.

    Aside from the new circuits, the machine is old in combination. The only thing new about the circuits is their logic. The logic implements the algorithm.

    The spec. states that the use of software in a microprocessor to calculate the algorithm is an equivalent.

    The claim is in the form of means plus function, reciting the steps of the algorithm. The claim wholly preempts the use of the algorithm in BCD->binary card punch machines to the extent software implementation using a microprocessor is deemed an equivalent.

    Issue the rejection and specifically discuss Benson and Diehr.

  115. 1. What is a Software-Related Invention? It is well recognized that whatever you can design in hardware circuitry (chips) can be developed in computer software (a computer program) to perform the same functions.”

    Martin Goetz,

    While you’re singing to the choir when it comes to me, two points nonetheless need to be made:

    1. One should almost never make absolutist declarations because they can be easily refuted. Digital computers cannot mimic in software absolutely everything that can be done in [analog] hardware. Take for example the task of producing a set of voltages that represent all numbers between 0 and 3.5 including pi and e. An analog sawtooth wave generator can do it easily and yet a digital computer will never do it. So please be a little more discrete (pun intended) in what you argue to the anti-patentists. Some of them might be slightly intelligent and hence dangerous in the sense that having just a little knowledge is often dangerous.

    2. There is no accepted definition of “software”. So we can can go round and round with a bunch of Chesire Cats and never catch them because they are constantly shifting their undefinitions of the term. (Similarly there are no fully accepted definitions of “business methods” or of “computers” or of “hardware” or of “firmware” or of … well you get the picture.)

    (I recently wasted my time chasing the Chesire Cat’s tail over at link to blog.mises.org over the definition of “property”. Those people won’t even agree to a basic definition of “property” let alone that anything can be protected by IP rights.)

  116. RedMonkey: “This would pass 101 because the combination of an unpatentable sculture with an apparatus is still an apparatus.”

    Says who?

  117. Your article does not give one single reason why it is in the public interest to grant software developers a monopoly over their ideas. Your only argument is “because if it can be done in software then it could have been done in hardware”. So perhaps hardware patents are bad too? Really, if this is the best defence of the system you can come up with, then the system is rotten to the core.

  118. “Tying a metal sculture to a machine by including a lawn mower is not going to make it eligible under 101 for a utility patent.”

    This would pass 101 because the combination of an unpatentable sculture with an apparatus is still an apparatus. Whether or not the application would ever issue would depend on other sections of the statute.

    In your example, it is unclear how the sculpture interacts with the lawnmower to make the lawnmower more than it was before. But in the case of software attached to a computer, the computer acquires abilities it did not have before.

  119. Jim: “Point 3 falls to pieces when one considers that the subject matter being patented may be trivial UI sequences or e.g. a method for one-click ordering which requires no such extensive development cycle and could be coded by one person in one day”

    That’s like saying because some circuits are simple and unpatentable, no circuits should be patentable. You confuse the issue of eligibility of software with the issue of obviousness. I’ve never heard of anyone asking for obvious inventions to be patentable. Some circuit inventions are simple and trivial, and yet novel.

    You give me any field, and I’ll find you some silly patents that one could use to argue that there should be no patents. Patent on brocolli sprouts, for example. Yes, a patent on cruciferous sprouts.

    Please try harder.

  120. “Point 3 falls to pieces when one considers that the subject matter being patented may be trivial”

    The fact that software can be used to implement the trivial does not mean that all software-implemented techniques are trivial and hence unpatentable. Conversely, the fact that a hardware manufacturer can build a simple circuit does not mean that all circuits are unpatentable.

    The patentability of software-implemented methods should be judged based on 102/103, like everything else, notcategorically excluded under 101.

  121. Sometimes I think the question of whether or not software is a component of a machine is a red herring.

    There was a time when slot machines and other “amusement devices” were not patent eligible subject matter because they lacked “practical utility.” They were purley for amusement.

    Similarly, if it is an art object it is not eligible under 101 because its entire function is to create an impression in the mind of a viewer. Tying a metal sculture to a machine by including a lawn mower is not going to make it eligible under 101 for a utility patent. Neither is using a wood chipper to chip manikins as part of a halloween display. But if you adapted that wood chipper to spray fake blood, you could get a utility patent on the new wood chipper. Why is that? Is that right?

    Why do peopel elevate form over function in this debate? Is the real question just too hard to answer?

  122. Malcolm and 6 comment on blog posts, but so far have not written an actual post.

    As such, they do not frame the limits of discussion, or provide the starting point therefor.

    Although they do occasionally hijack a thread, but only because other commenters allow them to do so.

    Due to its starting point, this thread is not worthy of the usual level of discussion found on Patently-O.

    The author has, however, demonstrated in no uncertain terms that neither age nor experience necessarily provide specific knowledge, wisdom, or authority.

  123. There is six phases in the life cycle of software products: Definition, Design, Implementation, Delivery, Maintenance, and Enhancements. Let’s look a little closely at these phases and you will see how closely they resemble characteristics common to all manufacturing companies.

    LOL.

  124. Inviting Body Punches,

    If you let this thread die for your stated reason, this entire blog should likewise die as the majority of posts (e.g., Malcolm, 6), are made by those who lack the required sophistication to meaningfully add to the discussion of patenting.

    Why require sophistication now?

    Long live the Trainwreck!

  125. Obviously a hilarious sarcastic post by NameChange at 11:48 am!!!!

    Let’s let this thread die, shall we? The original commenter lacks the required sophistication to meaningfully add to the discussion of patenting.

    Next thread!

  126. “What they hopefully soon realize is that great minds (such as yours) have been grappling with these questions for decades before they even got on the scene.”

    If by “grappling with these questions” you mean he’s been trying to convince himself that he wasn’t scamming people all his life, I’m sure you’re quite right. There is, after all, no rest for the wicked.

  127. “”It also explains why software should be viewed a machine component of a general purpose computer (a machine). ”

    Can’t wait to hear this,…”

    “K, so what?”

    6 – you HAVE already heard this. The K, so what is that, surprise, surprsie, you are wrong – even Lord Kappos has stated this.

    Let me refresh your memory:
    A
    L
    A
    P
    P
    A
    T

  128. Still can’t get over art being thrown in your face eh Cave? I know, it’s a harsh life, what with people who have bothered to learn things running circles around you.

  129. Incidentally, being called an “embarrassment” by 6 is kind of like a compliment.

    In 6′s dark, twisted and ignorant world atoms fall out of wires.

    Therefore, in 6′s world, you are an “embarrassment” only if you actually know what you’re talking about.

  130. “As such I have always seen the production of software, in an engineering context, as a technical and industrial art.”

    I could live with that if they imposed the “useful arts” restriction.

  131. Thank you very much Mr. Goetz for a well reasoned thesis. I must say, your arguments are systematic, well presented (what I would expect from an inventor in the software arts) and are a far cry from some of the emotional, unsupported and rambling hyperbole that I’ve seen from Mr. O’Riordan.

    What I really appreciate about your perspective is that you have been in the business for a long time and have the benefit of a longitudinal perspective. There are many who have entered the debate as if the question was just asked yesterday. What they hopefully soon realize is that great minds (such as yours) have been grappling with these questions for decades before they even got on the scene.

  132. “It also explains why software should be viewed a machine component of a general purpose computer (a machine). ”

    Can’t wait to hear this, since obviously it isn’t a machine component of a gpc.

    “t is well recognized that whatever you can design in hardware circuitry (chips) can be developed in computer software (a computer program) to perform the same functions.”

    K so what?

    “In particular, the analysis of handwriting and voice by a computer — whether in hardware circuitry or in software — is very complex and not at all obvious to one skilled in the art. ”

    Now we skipped to 103? Could we finish the discussion about the aforementioned software=machine implementation? You still haven’t explained why that is relevant and you still haven’t established the veracity of such a statement.

    “The choice of implementation for computer functions is a pure economic choice which mainly has to do with cost, speed, and flexibility. ”

    Also, the choice is made based upon whether or not you are good enough at designing/programming hardware or software respectively to accomplish the goal.

    “But the disclosure could be in the form of circuitry for a hardware implementation or a flow chart for a software implementation or a combination of both. ”

    K, so what?

    “Many professionals view software development as building a software machine. The life cycle of computer software is very similar to the life cycle of computer hardware. And its life span can be equally as long.”

    K, so what?

    “Many software products are state-of-the-art products developed in a very competitive, fast moving environment and require rapid response to meet user demand.”

    Kind of like the newspaper industry right?

    Even if it isn’t: K, so what?

    “econdly, a great deal of capital is often required and many software companies are funded through private investments, venture capital, and through public offerings. Thirdly, there are active research and development activities within these companies. IBM, as an example has reported that it consistently spends well over one billion dollars in research and development specifically in the software area. Lastly, highly skilled personnel are employed in these companies and many have advanced Computer Science college degrees, including PhDs. And because of its complexity, many software products are built using software engineering disciplines. ”

    K, K, K, K, so what, so what, so what, so what?

    “Let’s look a little closely at these phases and you will see how closely they resemble characteristics common to all manufacturing companies. ”

    Let’s assume that they mirror the characteristics of manufacturing companies 100%, but that “software products” (if it is even proper to call them that) aren’t the same as the actual products being made by manufacturing companies.

    K, so what?

    “Note these terms indicative of a manufactured product …..research, competitive analysis, functionality, specifications, operational environment, operating characteristics, interfaces, modules, engineering, implemented, debugged, tested, quality assurance, alpha and beta testing, documentation, installation, training, OEM, component, system, re-packaged, maintenance, warrants, workmanship, guarantees, errors, defects, improved, enhanced, upgraded, and models. ”

    None of those terms are “indicative” of a manufactured product. Those terms simply arise in relation to manufactured products as well as to software. Note these additional terms “indicative” of a manufactured product: thing, entity, object, “something in existence”… whew boy!

    This is another way of saying: K, so what?

    “It is obvious that software products are not “software ideas”. ”

    What a truly amazing conclusion!

    K, so what?

    “But is software more like publishing a book or more like manufacturing and maintaining a machine?”

    It doesn’t matter what it is “more like”. What matters is whether or not it IS a process or a machine and whether or not it is distinguished appropriately for that stat class.

    “And if it’s more like a machine how can the Supreme Court deny the patenting of inventions[6] in software? ”

    See above. Specifically they can deny it because it isn’t a machine, or it was improperly distinguished, or it didn’t belong to the category of “the useful arts”.

    “I believe the Courts should view software as a component of a general purpose computer (a machine) and that software transforms a general purpose computer into a special purpose computer (or machine).”

    I think you could write a better paper by not simply writing down what “you believe”, calling it a paper, and having D post it. This is nothing more than a glorified old posting of yours.

    link to en.sap.info

    Hey look guys, it’s NWPA. Notice how he never misses a beat in inserting the non-point about: “It is well recognized that whatever you can design in hardware circuitry can be developed in a computer program to perform the same functions.”

    Who gives 2 shts Martin? Not me, or anyone else with more than half a head on his shoulders, and certainly not the USSC.

    You’re an embarrassment.

  133. “Although the Supreme Court has previously stated that software is patentable subject matter . . .”

    “Many software products are state-of-the-art products. . .”

    These two ideas early in the essay set the stage for the missed point and reiterate the confusion that makes this subject so problematic.

    The Supreme Court did not find that s/w is patentable subject matter. This is a serious misstatement of the case.

    The primary categories of patentable subject matter are: composition, article (of manufacture), machine, process. The secondary categories are improvements and new uses.

    S/w is not, per se, in any of these categories, hence the entire imbroglio we find ourselves in. There is, in fact, no such thing as a “software patent.” There are processes implemented by computers and there are hard drives modified to hold s/w instructions. The first is a process patent and the second is an article of manufacture.

    Many s/w products may be state-of-the-art, as Mr. Goetz states, but that is irrelevant to this issue since product is not one of the statutory categories of patentable subject matter. If we agree that s/w code can be a product, you still have to tell us which statutory class it fits into. Then the fight begins anew, or rather continues.

    The only other approach is to argue that the time has come to expand the statutory categories: compositions, articles, machines, process, and software.

    Will never happen.

  134. Palabra, Question for you. What does TRIPS mean, when it says that patents shall be available in “all fields of technology”? Is writing a screenplay a field of technology?

    Greg Aharonian chastises the US legislator and the US courts for failing to come up with a definition of “obvious”? But, don’t we already all have the same sense of what “obvious” means? If so, what would be gained (and would anything be lost) by re-writing the Statute using a word other than “obvious”?

    Are there not some words that are already as basic as can be, so can’t be simplified any further?

  135. “Although the Supreme Court has previously stated that software is patentable subject matter”

    I love how you lie.

    Stating that a small part of a claim doesn’t necessarily kill the whole thing doesn’t make the small part itself patentable subject matter.

  136. @MaxDrei

    “why his inventions are not combinations of technical features and don’t actually solve any objective technical problem.”

    What is technical?

  137. Another thread in the making that is useful for testing whether the EPO has got its filters on patentability set up right. Its 101 filter blocks “pure” business methods and computer programs as such but not claims to a data carrier. Its 103 filter shuts out inventions that solve no technical problem, perhaps a carrier of a new and inventive plot for a novel. Maybe Mr Goetz could be prevailed upon, to comment on whether these EPC provisions meet his requirements and, if not, why his inventions are not combinations of technical features and don’t actually solve any objective technical problem.

  138. Martin,

    You are way behind the curve. The argument has now moved from whether “software patents” should be allowed onto whether or not “patents” have any positive effect on society. I, and many others, including several Nobel prize winners believe that patents have a negative effect upon society, and we have studies that back our assertions.

    Because of this, we are proposing that the Patent System be shut down in it’s entirety. If there is no benefit to society, than the Patent System is in conflict with the Constitution of the United States, and therefore illegal.

  139. For me, this commentary amounts to nothing more than a tepid and sadly incomplete delivery of a subset of known arguments, and does nothing to either further illuminate the existing situation, or advance a new paradigm.

    Conclusory statements just won’t do it.

    If this person is attempting to rely upon his qualifications to lend credibility to his “arguments”, that is also inadequate and does not affect the substance of those arguments.

    A very weak post.

  140. Point 3 falls to pieces when one considers that the subject matter being patented may be trivial UI sequences or e.g. a method for one-click ordering which requires no such extensive development cycle and could be coded by one person in one day.

  141. Good post.

    I studied software engineering as part of a broader engineering course that also covered the classic engineering disciplines. We were taught the use of software as an engineering tool and this perspective has been maintained in industry. As such I have always seen the production of software, in an engineering context, as a technical and industrial art.

    I think some of the vitriol in this area arises due to the breadth of “software” – it covers games and artistic creations at one end and the “nuts and bolts” computer control at the other. Different parties thus have different concepts of the term in mind when debating “software” patents.

  142. “Implementation of such, well that’s a different matter.”

    Can you explain a bit further your point of view?

  143. What about it?

    Patents don’t limit speech. Or ideas.

    Implementation of such, well that’s a different matter. Of course, this is true for all arts – something the anti-patent software people never seem to realize.

  144. “So are software companies more like publishers of books or more like manufacturers of machines?”

    What about Free speech of programmers?

Comments are closed.