I’m looking for a few examples of high quality software patents outside of the business method realm and that should remain patent eligible under Alice & Bilski. Only send me ideas that you are fine with being publicly discussed.
DC
I’m looking for a few examples of high quality software patents outside of the business method realm and that should remain patent eligible under Alice & Bilski. Only send me ideas that you are fine with being publicly discussed.
DC
[…] granted almost all such motions to dismiss in software patent cases. That trend has led some to question whether software patents can survive the Alice test at […]
If what you mean by “software” is a claim directed to a general purpose processor/computer performing an algorithm of any type, then I believe all of those are invalid under Alice (though not necessarily under Bilski). Why? Well anything performed on a computer can be abstracted out to some “abstract idea”, and then once that’s done, a generic processor/computer doesn’t add anything “more”.
GPS patents? Dead. GPS is at its core simply a mathematical algorithm for determining location based on a bunch of signals. The apparatus itself is just a processor that performs the mathematical manipulation.
Ecryption? Dead. Encryption is at its core simply a mathematical algorithm for modifying data. The apparatus itself is just a processor that performs the mathematical manipulation.
Filtering? Dead. Filtering is at its core simply a mathematical algorithm for modifying data. The apparatus itself is just a processor that performs the mathematical manipulation.
Modulation? Dead. Modulation is at its core simply a mathematical algorithm for modifying data. The apparatus itself is just a processor that performs the mathematical manipulation.
Depends on the modulation…
The standard hardware for modulation (as used in radio/television) are patented as a product of matter.
If by “modulation” you simply mean the encoding of signals using math on a computer… then yes.
The same can be said for “filtering”.
GPS patents should not have been issued anyway. These were done back in the 70s (and earlier)… The same math is used whether it be LORAN or GPS. They are still range-range solutions. Even using hyperbolic geometry has been done for both LORAN and GPS. In fact, one of the reasons the high resolution GPS signals dropped encryption was because hyperbolic math provided the equal resolution using the already public GPS signals – the only issue was that the hyperbolic computations took longer than the range-range computations. But computers caught up.
It also depends for encryption – making an enigma box was patentable… but using software to emulate the box would not be.
So, is what you’re saying is that modulation, which is incredibly important for cell phones for instance and their receiving and transmitting data, is not patentable simply because it’s mathematical? That seems to me to be the logic that Alice uses, but all something has to be is new and useful. A claim to a machine that performs a new and useful modulation should be patentable under 35 USC 101.
ALL engineering is “mathaematical.”
In a very real sense, anything that falls into the Useful Arts is “mathematical.”
No it doesn’t.
Math is a descriptive language. It cannot affect the real world.
DEVICES that affect the real world may be described by math.
Not what I’m trying to say at all…
Modulation (as used in phones) is an analog operation, not digital. The created radio signal is analog, not digital.
The radio signal is decoded by analog devices… which extracts the symbols. But those are still just numbers.
No significant difference between that and the old acoustic modems of yesteryear – except the frequency used.
You seem to think that there is some magical difference between an analog device and a digital device…
Simply the lack of math.
The analog device is a physical device. It may meet some math description… but it is not math.
The analog device always has more – the physics of reality demand it.
jesse,
The digital device is also a physical device.
The same set of physics applies EQUALLY to both.
The software is not.
Is not… what? real? beholding to the exact same set of physics and laws that affect an analog device?
Rest assured it is.
Software has no mass…
It is math.
software is not “of the mind.” We already covered this with a particular aspect of copyright law.
…unless you think that paper has no mass…
And you might also like this article:
link to discovermagazine.com
Let’s walk through the three resistors example as well.
Three resistors in a box.
Has a certain mass.
The resistors are configured in series.
No change in mass.
The resistors are changed – configured in parallel.
No change in mass.
Reality and the laws of physics have applied throughout.
Your “mass” angle is a logical fallacy.
Some people want to call the entire universe “maths.”
(I have previously supplied links).
EXACTLY like that person, your position of “it’s math” is merely an ontological philosophical position. A belief system. It does not align with the reality of our legal world, of our physical world. The continued monologue of “it’s math” just is not helpful in the patent law arena.
Software is equivalent** to firmware and is equivalent to hardware.
Software is a man-made manufacture and machine component, built for a utilitarian purpose***
** yes, we do need to maintain focus and remember that equivalent does not mean “exactly the same as”
*** yes, some software may be made for some non-utilitarian purpose. I am speaking of the ge n eral case, as a person having ordinary skill in the art would speak.
The paper is what has mass as a composition of matter. The ink has mass – the same way.
The information does not.
Neither does it have energy – and for the same reason.
You are confusing the thought of software with what software really is – again.
And your resistors are a composition of matter so of course they have mass.
software is not.
And you are confusing a laymans idea of what software is with reality.
You really should look into the legal reality of the exceptions to the printed matter doctrine – Set C printed matter has the necessary weight in the patent domain.
You want to think that you can ignore this, that the ink and paper can be disassociated, and that ONLY the thoughts that you yourself pick up are present.
Such just is not so.
The problem you have is that software is not JUST for human consumption, or understanding. It is NOT just a novel. It is a machine component. That is the definition of software.
And this single thing makes all the difference in the world. You should not try to ignore its existence.
A layman’s idea…?
Not at all.
I am taking the proper legal view. The one you “don’t care about.”
You really should care about these things.
Look again at the three resistor example jesse.
The point is not that the resistors have mass.
The point is that a changed configuration that includes no new mass has a very real and very physical change.
It is, as you say, a physical change….
You are confusing the expression of an idea with the idea.
You should be able to copyright an expression of an idea.
But not the idea itself.
Software is real.
Your banter of trying to have me be the one that is confused is insulting, as clearly I am not confused.
Try making a real argument for us to discuss. Expressions – in fixed media (thus tangible and real, which wrecks your non-real argument) enjoy a certain legal protection. Manufactures and machine components – also real, and not “of the mind” enjoy a certain legal protection.
Machines really are re-configured with software to effect a change in the machine (enhanced capability).
This is a fact in this reality.
It is as if you do not want to recognize that a real difference exists between three resistors configured in parallel and three resistors configured in series. It is as if you want to say that the “idea” of different configured resistance is only math.
This is eminently illogical.
Thats too bad.
Ideas and expressions of ideas in language are not supposed to be patented.
jesse,
You are acting like a bad comic super-villain: monologueing again.
Now you want to have software only be “expressions of ideas in language” while you want to ignore the very thing that makes software valuable: its utility.
The “expressions of ideas in language” that does not have utility as recognized under the patent system does exist and is quite different from software. It is called literature.
Come back to this reality please, if you want to have a serious discussion on law and innovation.
It is also called abstract ideas.
Like math.
Symbols.
Non physical concepts…
You know, like law.
And like anything else symbolic… all require something to interpret it.
Even literature as an utility.
It just needs something or someone to interpret it.
Just like math. Or software, which is the same thing.
You think literature has the utility that the patent law domain covers…?
You are not even close to the ballpark jesse.
How can I have an intelligent conversation with you when your refuse to be informed on the most basic principles?
All that you want to do here is monologue. Let me know when you decide to have a dialogue, when you come prepared to discuss law and reality.
While before the Supreme Court for a different question of law, i4i’s U.S Patent 5787449 is undoubtedly a software patent, replete with a focus on “written matter” and being but a tool “for use by computer software developers” (published patent, column two, paragraph 57).
Dare I add the Nazomi case, or does that fire on the hallowed grounds of those that shall not be challenged?
Ugh. That Nazomi case is just utterly wrong on the facts. I’m disgusted that the infringers got away with it. I’m more disgusted that Dyk, Lourie, and Wallach were so trivially bamboozled.
I’m pretty sure 7,080,362 is a hardware patent, though.
It looks like the normal macro instruction translation to hardware instruction translation.
That same process is done by the Caruso processor for emulating the X86 instruction set, or what the Intel processors to to translate the X86 instruction set into the RISC set actually used…
The translation may actually be done by hardware. A table lookup with parameter substitution.
Actually, that’s an abstract idea, which is that the idea keeps track of two different instruction sets and processes the instruction sets. It’s merely manipulation of data (instruction sets). Since the abstract idea is applied to a general purpose processor and nothing more is added other than applying the idea, the claim is invalid.
Anything performed on a general purpose processor/computer is invalid under Alice, since anything performed on a computer can be abstracted to a level required to meet the nebulous “abstract idea” test.
“Anything performed on a general purpose processor/computer is invalid under Alice, ”
Really?
I think that PatentBob was just exploring the limits that the Supreme Court actually left in place for their newly written law.
Dear Professor Crouch:
Since you asked for software patents outside of the business method realm, I thinks its fair to ask how do you define patents inside the “business method realm” and how they differ from software patents? Please provide examples of actual patents. Thank you in advance.
The following are all software patents, after a basic version exists as prior art (i.e. sensors and detectors are not considered part of the novelty):
1. Machine vision, including OCR, face recognition and automated labs
2. Air-traffic control
3. Car-safety systems that involve no new specialized hardware
4. Navigation, including route calculation, turn-by-turn diorections and traffic-responsive routing
5. Smart traffic lights that respond to actual traffic
6. Weather forecast systems
Per your conditions, Diehr was a software patent.
The basic version existed prior: autoclaves, thermocouples, even computer run cures. The only novelty was a computer program that used the Arhenius equation on a continual basis (you know, something computers just do).
To be precise, it doesn’t run continually.
Since it is on a digital computer, it can’t. You only get numbers out at the end of a computational cycle of the formula. Thus, not continual.
To get continual output requires a physical, analog device….
Even physical systems are quantized – e.g., the charge of a single electron; the wavelengths of electromagnetic signals; the Planck constant.
And digital computers can’t do them either.
At the macro level where material can be manipulated, machined,… quantum fluctuations don’t enter the system…
And if they did (which would be fine), you would still need other physics to control them. Not simulations.
Also, I would add to my list all forms of CAD/CAM, video compression, audio compression, disk management and memory management (including error detection and error correction), image procession (including white balance, sharpening), text to voice, voice to text, and a zillion other innovations that really matter, many of which would have never been developed without patent protection.
Those would have been discovered anyway, just to provide a better service.
Patents didn’t contribute to it one bit. CAD/CAM existed before software patents, as did video compression, and audio compression.
Disk management existed ever since IBM created drum drives. Memory management (depending what reference as disks/drums existed since about the mid 1950s) also existed. memory error detection and correction was a hardware function, and didn’t patent the math used.
Jesse, by disk management are you talking about filesystems or are you talking about flaw maps?
Just to say, I think an improved disk drive that has data compression or data encryption is entirely statutory.
Either one actually.
Flaw maps have been used for years – in software. A read error causes retries (in the case of the disks I worked with, up to 40 times with the heads shifted to either side of the central track) – when the error count is exceeded, the error sector number gets added to a list – and the list is written back to the disk. Currently that activity is done by the CPU on the disk formatter board, and not the host CPU.
In the case of recent filesystems, errors are also being examined, with extended ECC, checksums being added on top of what the disk subsystem (whether driver or disk unit) does.
This is also what the RAID design does as well, though RAID allows the use of replication as well as parity/ECC/double parity error recovery.
Same thing for tapes – though the tracking location was different (a tape management system instead of previously used sectors for the flaw list).
Disks don’t work very well with compression – the need for block updates usually prevents any compression. Tapes it works for… but not exactly well (already compressed data tends to take up more space). But both compression and encryption are done in software – though there can be some hardware acceleration aids to improve throughput – and those aids I would expect to be patentable; otherwise, no – I wouldn’t expect to be patentable.
Pro se, I didn’t see is software patent and that entire list. You are talking about machines, and improvement in machines in every case. That the software might be at the heart of the improvement is not a problem under the law see Diamond v. Diehr.
No one seems a have a clear definition of a software patent because people are constantly citing examples like yours as examples of software patents. If that were is what is software patent is then there is an should be no problem with software patents under the law. What we are talking about is not software patents per se, but patents to business methods, patents to math, patents to method of playing card games. All these, or nonstatutory, and have been considered to be nonstatutory for very long time, that is, until notorious State Street Bank case was decided.
The fact that CAD/CAM, error correction or audio compression are old news is immaterial since it relates to 102/103 aspects – and we are talking here about 101 aspects.
Had I invented CAD today , for instance, I would certainly have met an automatic 101 Alice rejection, since “design is an abstract concept and CAD is an implementation of the abstract concept on a generic computer”.
Look into my examples (or similar examples you are invited to come up with), with fresh 101 Alice eyes, completely ignoring their 102/103 perspective, and you’ll see that there is a fundamental, terrible flaw in the USPTO (and courts) wholesale adoption of Alice.
If one wants to target the patenting of “making money from money”, the solution is to state, clearly, that “making money from money is not patent eligible”, similarly to the way tax-avoidance patents were banned.
Pro-se, please see below at 10.1.1 for the way the tax items were banned.
Even Congress is reticent about making things ineligible.
If one wants to target the patenting of “making money from money”, the solution is to state, clearly, that “making money from money is not patent eligible”, similarly to the way tax-avoidance patents were banned.
That’s one solution. Not the only solution.
What’s happening now is a process towards arriving at a solution. Everyone is welcome to participate.
That process, by the way, is inelgible for patenting, regardless of any unexpected turns it may take.
“Everyone is welcome to participate”
Absolutely correct – as far as that goes.
Of course, to put the proper meat on that bone, we should state that the participation is properly limited to petitioning your congressmen to write the law – as for patent law, this is the only branch that is sanctioned under the authority of the constitution to actually write the law, and clearly what is under discussion here is the change – or writing of a new law.
(any other solution runs into – and should run into – serious legal foundation issues)
Would claims 1 and 10 of 8,515,829 (discussed at link to ipwatchdog.com ) survive Alice scrutiny? If not, how can they be amended so that they would be more likely to be held to be patent eligible?
“Tax-free gifting”
Are you frick’n joking? The novel subject matter is a method of avoiding taxes?
I really, really, really believe that you guys who support this kind of patent are smoking something. What planet do you come from?
Seriously.
Ned,
I think you move much too fast to dismiss the comment (and do so with an undeserved insult).
Let’s discuss taxes and the America Invents Act. Why do you think Congress in section 14 of the America Invents Act choose to make inventions related to strategies (read that as methods) for reducing, avoiding or deferring tax liability as prior art as opposed to simply declaring such as ineligible subject matter?
Then please discuss section (c)(1) therein, which still allows patents for methods for preparing tax returns or tax filings including the mere organizing of data for such.
We can also discuss section (d), but I have already previously explained that section in great detail on the Hricik side of the blog.
Thanks.
What world do you live in Ned? Innovation is information processing in the 21st century. A growing portion of economy is all about creating software.
Sheesh! The ignorance evinced by your statements are astounding.
The methods used for all information processing are changing because of the ability to automate the processes. That is innovation.
You should read the Luddites. They hated the machines and say many of the things you do about automation of physical processes that you say about the automation of information processes.
The mystics on this board are thick.
Pun intended.
1. A method for the halftoning of gray scale images by utilizing a pixel-by-pixel comparison of the image against a blue noise mask in which the blue noise mask is comprised of a random non-deterministic, non-white noise single valued function which is designed to produce visually pleasing dot profiles when thresholded at any level of said gray scale images.
2. The method of claim 1, wherein said blue noise mask is used to halftone a color image.
11. A method for the halftoning of color images, comprising the steps of utilizing, in turn, a pixel-by-pixel comparison of each of a plurality of color planes of said color image against a blue noise mask in which the blue noise mask is comprised of a random non-deterministic, non-white noise single valued function which is designed to provide visually pleasing dot profiles when thresholded at any level of said color images, wherein a plurality of blue noise masks are separately utilized to perform said pixel-by-pixel comparison and in which at least one of said blue noise masks is independent and uncorrelated with the other blue noise masks.
(from the opinion in Research Corp v. Microsoft (Fed. Cir. 2010).
What we now know about abstractness?
A claim is abstract if the novel subject matter is directed to “fundamental” economic principles.
A claim is abstract if the novel subject matter is directed to mathematics.
A claim is abstract if the novel subject matter is directed to a method for playing card games.
A claim is abstract if the novel subject matter, the exact point of novelty, is “functional” within the meaning of O’Reilly v. Morse, i.e., claiming a result without specifying any of the novel means or methods for achieving it.
I think the last is the only true abstractness. I think the other examples are examples of nonstatutory subject matter and the Supreme Court is merely using the word abstractness in a way that includes nonstatutory subject matter because of Bilski. Had the court followed Stevens and his desire to reinstate Hotel Security, this problem of ambiguity would never have occurred.
Thank you. Don’t know if you are correct, but your analysis certainly makes sense, and more importantly, makes it easier to evaluate my claims.
I’d consider looking at some of the basic wireless LAN patents like US 5487069. Though not purely software, a central part of the invention is the use of signal processing software.
No software is patent eligible under §101 or under Alice, Mayo, and Bilsky. Software is inherently abstract mathematical operations.
Furthermore, no software should ever be eligible because the field is creative more than technical, cheap to innovate in, subject to the thickest of all patent thickets due to its incremental nature, adequately protected by copyright, profitable without any patent protection, and impossible to draw clear boundaries within, making patents inherently subjective and fuzzy and very expensive to litigate.
Nevertheless, to test the position — held by the vast majority of software writers — that patents are completely and always inappropriate, we should consider the very best sort of software patents that have issued. These are a tiny fraction, much less than one percent, of software patents the PTO rubber stamps; they are the ones that represent actual advances described in technical language written so that a programmer could use them.
The Diffie-Hellman patent 4,200,770 was known by everyone to be invalid when issued but claim 8 describes an earthshattering stroke of genius that changes the way you and I and everyone around us works and plays every day. Diffie and Hellman published their paper disclosing their discovery fifteen months before applying and didn’t even think of getting a patent until after the one year deadline, so no incentive was provided by the patent system. The invalidity of the patent ensured that it was not useful in litigation, but it is an example of what a software patent could be and utterly unlike what we see in actual software patent litigation where vague useless derivative garbage patents are the only currency.
The RSA patent, 4,405,829, was built on the key Miller-Rabin algorithm applied to the Diffie-Hellman patent above. It was a significant advance and MIT decided to patent it after RSA had already publicised the technique but before the one year deadline. The result was that US cryptography practice fell behind the rest of the world where the algorithm was still free. In fact, the licensee had to import the Free software code from the free world into the United States to produce usable software implementing the idea in their own commercial product. I spent thousands of dollars myself trying to get our licensed version to work as well as the versions the rest of the world could use freely. But the patent is certainly defensible from a certain standpoint; it does describe a better technique that was unknown before RSA thought it up and it’s not at all analogous to ‘bingo or escrow but on a computer’ style patents.
In another field, compilers have often struggled with optimization techniques given the limited resources that actual programs have and the Halting Problem limits on predicting what code will do. IBM researcher Chaitin elegantly optimally solved one such problem and described it in US patent 4,571,687. IBM offered a free license to use the technique to the world and we’ve all had a slightly better time running programs ever since. If a pure algorithmic software patent could be valid (and it could not — see Flook) then this one would be a classic example of a clear, simple, new, non-obvious, well-described improvement.
So there’s a set of three top quality software patents to discuss. When software writers discuss patents, we’re nearly all absolutely opposed to them in our field, with no exceptions. These are the three classics most often discussed when we test our beliefs against the facts to see if there are any such patents at all that we could support. They are the hardest cases. Enjoy them.
Morse claim 5, the system of dots, dashes and spaces.
The dots and dashes may not be patentable, but they could be copyrighted (morse code alphabet).
Mr. Nobody, the alphabet was not patented, nor the correlation between the dots, dashes and spaces and certain letters and numbers.
Just the system of communicating using dots, dashes and spaces.
The Supreme Court approved this claim. So, I daresay, all claims like in the are eligible even today.
Owen how do you square “abstract mathematical” with the fact that a real machine is sitting there doing useful work? Do you understand that “abstract mathematical” is a word like “witch”?
Night, you are contending, of course, that any use of a machine that does work makes a claim eligible.
Thus, any method for doing business become eligible if one requires the use of telephone for the simple fact that telephones are machines.
I am right now talking about the narrow contention that this invention was being implemented on a real machine, was doing real work, and people were paying real dollars for it.
Doesn’t sound “abstract” to me. This word “abstract” is being used just like witch was.
With a big difference. There is evidence for “abstract”.
Math is one. Law is another. “money” is a third.