by Dennis Crouch
This morning I mentioned one bit of the ongoing software-patent debate to my 9-year-old daughter. I told her that some people argue that the computer is a different machine when it is running Microsoft Word than when it is running her WarriorCat game. As an old Newtonian mechanical engineer, that argument never sits well with me. (I think software is patent-eligible on other grounds). I was surprised that she bought-in to the different-machine argument.
Robin explains:
Sure, the box is the same in both situations. But, Microsoft Word obeys me and the the game thwarts my moves. I see them as very different. Its brain changes.
Robin did something here that comes naturally for children — to think about the issue from her perspective as a participant in the activity. The two programs offer very different experiences – and that is what matters to her. It will be interesting to see whether the court’s approach is the same.
In any event, Happy Halloween from my Woodland Elf & Forest Gnome!
The “computers running a new app are like totally new machines” “argument” is, in most cases, little more than an irrelevant sideshow favored by the pro-software patent folks who are incapable of addressing the issues head on.
Nobody disputes that a programmable computer can be changed or improved by the addition of software. Likewise, nobody except a few fourth graders and the pro-software patent folks believes that such a computer becomes a “new” computer in any ordinary sense of the word, just as nobody really believes that an old car becomes a “new” car when you install a new radio in the dashboard.
The point that the pro-software folks never want to address is that, in every other instance, if you want to own intellectual property rights in your “new” machine you need to describe the machine in objective structural terms that distinguish your new machine from the prior art. Software patent proponents refuse to do that and they insist that they deserve to be granted a judge-crafted exception to the rules because, at least in their own minds, they are Teh Most Important People Evah. Meanwhile, every time a judge strikes down one of their beloved patents, they moan and complain that it’s a Constitutional crisis because “separation of powers” and “nobody could have predicted any of this.”
They’re really very serious and sooper dooper principled people, though. Just ask them.
Just because you want to declare something an issue and all else an “irrelevant sideshow” just does not make it so.
And yes you need to use the legal requirement of ordinary person skilled in the art rather than your emotion laden “fourth graders and pro-software patent folks” to understand that indeed a new machine is in factcreated.
You also need to come to grips with the legal point that the OPTION of writing claims totally “objective structural terms that distinguish” is only an option and that the law FULLY allows a mix of structure and functional language in a vast middle ground.
I get that you don’t like the law as it is.
May I suggest that instead of repeating (ad nuaseum) something that is NOT the law, that you instead contact your congressmen?
(And you are off as to a judge made exception – as I explained previously in that it was a first judge made exception that removed Set B printed matter. Instead of being grateful for that, you want more but you do not deserve more.
“to understand that indeed a new machine is in factcreated.”
Just like the “new car” with a new radio.
More like:
Just like the “new car” is in a different gear.
Neither – as both of those analogies have been debunked previously.
6, you do understand the art of antennae for moving objects was involved for “radio for the car” right?
jesse, you do understand that “different gears” is a bit like “different toaster settings” which I debunked a long time ago, right?
Guys, if you want to have an intellectually honest dialogue, you are going to have to pay attention and not try to sidetrack the discussion with old canards.
Thanks.
“6, you do understand the art of antennae for moving objects was involved for “radio for the car” right?”
What of this “involvement”?
“jesse, you do understand that “different gears” is a bit like “different toaster settings” which I debunked a long time ago, right?”
Tooooootally “debunked”.
You do understand that “different toaster settings” are like “different programs” don’t you?
As I said, if the gears of a clock can be considered an information processing system, then so can the gears of a car.
If a “clock” is an information processor, then so are gears of a car.
If a “computer” becomes a new machine just because it is programmed differently, then so is a car when a different gear is chosen.
” just as nobody really believes that an old car becomes a “new” car when you install a new radio in the dashboard.”
That would make for an interesting, if a bit misleading, used car advertisement scheme!
Subject to fraud?
Robin must have a different version of Word than we are using at the patent office.
link to nytimes.com
Everyone should read this article and get that the attempt to end software patents is about monopolies and money.
Yup.
Fewer monopolies, more competition, and less cost.
Not what you meant though. Fewer monopolies implies fewer patents to prevent competition…
Not really nipping dog. Because patents provide a way for the small to protect themselves from the big and to get capital to compete.
That is the way it works.
No – that is the way it is SUPPOSED to work.
Not how it actually works.
Too many startups have been shutdown, even with patents due to just the threat of a lawsuit.
Nice imaginary world you have. In my world where I really work with silicon valley start-ups that isn’t the way it works. I guess your world is like Justice Ginsburg’s imaginary computer world that exists in the spirit world.
It works far better than you fantasy magic.
Geez. Slow day at ArsTechnica or 4chan, jesse?
Wouldn’t know. I don’t regularly read either.
“Because patents provide a way for the small to protect themselves from the big and to get capital to compete.”
Hm.
And yet all the patent cases turn out to be trolls suing operating companies with garbage patents. Occasionally there’s an operating company suing with a garbage patent, but it’s far from common; small and medium operating companies have better things to do.
Meanwhile the majority of victims of the abusive lawsuits are smaller companies under $10MM. After all, suing a company that can afford to pay a patent litigator is risky.
The only thing small companies would legally be able to do in the world NWPA imagines where every software idea, no matter how inane, were patentable is to file patents themselves and then try to attack the few foolish operating companies left before all creativity is snuffed out.
Startups and nine out of ten programmers aware of patents would rather work on building things and want software to be absolutely free from patenting.
“And yet all the patent cases turn out to be trolls suing operating companies with garbage patents. ”
This has been shown to be empirically and utterly false.
Owen – please stop the nonsense koolaid rhetoric.
So?
And you saying they don’t want patents doesn’t make it true.
Sew buttons.
yeah idk nwpa google was just up ins of your pto giving a presentation on new work they were doing in the actual useful arts that they definitely do want to be able to patent upon.
Sure. Protection for them and not for anyone else. We have Google capture. Google director. Google patent judges. Google federal circuit judges. All those Google bucks buy a lot.
So do the MS bucks.
Your result is that you are acting paranoid with respect to Google.
And so far, Microsoft is still bigger than Google. So the “purchases” made by Microsoft should bother you even more.
What does internets speeds have to do with patents?
I don’t know George. Maybe because it illustrates how the big corps strive for market power and control over their employees. Maybe because that no patents is in the interest of Google to achieve those goals.
” Maybe because it illustrates how the big corps strive for market power and control over their employees. ”
That isn’t just “big corps” bro. It is just that you notice it more with big corps because they achieve those aims better than the small corps trying to do the same.
“Maybe because that no patents is in the interest of Google to achieve those goals.”
I thought you just got through conceding that google wants to patent its own stuff just above? Which is it? “No patents” or “patents just for themselves”? Because let’s be honest, all big (and small) corps would prefer patents just for themselves.
But if you pay attention 6, you could grasp the very easy-to-understand concept that it is the Big Corps that are better off with the death of patents because it is the Big Corps that have the Market Power that patents serve to level. Remove that ‘equalizer’ and it is painfully obvious who benefits more (hint: it is NOT the small corps).
Actually, not.
Because the “Big Corps” have the money to run over any small company with legal expenses.
As happened with various companies.
What about the obvious follow-up question: “Does that mean you are a different child depending on whether you play Warrior Cat or use MS Word?”
Better not ask though. It could prompt novel ways to escape consequences, as in “That was a different girl who was naughty yesterday, go punish her, not me!”
That’s right, her brain was different.
Of course, the usual result is an explanation that she changed her mind, not her brain. After all, she chose to misbehave…
I don’t think you have the ability to talk about the usual result.
Actually, I do.
That was when the first explanation of the difference between a mind and a brain was given to me.
Evidently, you never learned it.
People, please.
We have dozens, literally dozens, of recent posts that address 101. In those threads, in the context of real cases and data points and trends, we’ve expressed and compared our opinions repeatedly, in exquisite and occasionally excruciating detail.
This is a lighthearted post. Can’t we please take it as such, and enjoy the anecdote and the post? You know, like this:
I thought about dressing up as Randall Rader for Halloween, but I couldn’t possibly do justice to his fabulous hairstyle.
Re: “. . . couldn’t possibly do justice . . .”
Good (accidental?) pun. I like it.
Again, a long list of posts about how people feel about things. How would you like to be accused of a crime and have a judge decide whether you guilty based on how they feel about you? No facts needed. Just the indictment and a look at you.
Facts? We don’t need no stinking facts!
Handsome family, nice costumes. Thanks for sharing.
They look like real sweet kids, Dennis.
And the costumes are outstanding.
“I think software is patent-eligible on other grounds” like what? Do share with us your theory on this. People have offered examples of software patents they thought would pass Alice. What happened to those? There may be no per se rule against software, but in practical effect there is. Let’s say your client comes in with a new method (yeah!), but it runs on a server (ohhh). It allows the same hardware to send 5x more data per second over the same lines. In the end, the claimed method is going to be about data processing, how to parse, store, manage, and compress information. It will be shot down amongst much chortling. Someone will insist that you could do the same thing with a pencil and some scratch paper; others will be aghast that you could store a program that embodies the method on carrier waves. I’m sure we’ve all been guilty of storing things on carrier waves when we didn’t have the time to store to something more non-transitory. Talk about an abstraction. Others will wring their hands that you’re going to go around suing mentalists for thinking about sending data 5x faster. There will be calls that the claim is trying to patent the information itself. There is no practical way to justify the patent eligibility of a claim to the software that would program the server, the server with that programming, or the steps that the server would take if running such a program. I had a client for a time that had improved methods for integrating video that was transmitted over both the home’s phone lines and wifi in an ad hoc manner. Better performance came from how the information was handled. Their applications explained how it was accomplished, but the claims all look like receive this, receive that, determine this, determine that, send this, receive something else, etc. In the EPO they’d say it is a technical solution to a technical problem (which is why they got patents in Europe) but here presently that’s just abstract. You can put paisley print on a coffee maker and get a design patent, you can cultivate a new plant and get a plant patent, but improve data throughput using existing hardware, not a chance. That’s abstract.
Ahmen
znutar, there are distinctions to be made. If one simply uses a computer to do its thing where the real object of the invention is not statutory, as in a business method, then the claim is nonstatutory despite the presence of the computer in the claim.
Ned,
Your shorthand view simply is not in accord with the law. See Bilski, see Alice.
In both cases, a (shrinking) minority would have held as you post. That does mean that a majority of the Supreme Court does not agree with you.
(I would also ask you to explain why Congress has not expressly taken the easy path to be straightforward about such a “no business methods” rule of law and instead cemented IN business methods by providing a limited defense against a certain SUB-set of business methods, but I have previously placed that item on the table and have as of yet not recieved an ON POINT answer)
So it sounds like you agree. In my hypothetical, the real object is improving data throughput, and you can’t patent that if it is achieved through the programming of existing hardware. I’m making a further value judgment that the level of innovation is easily on par with cultivating a new plant and equally deserving of protection – but I recognize that as the law is presently interpreted that is just not the case and I’m having to tell clients as much. I’m really curious to see whether Dennis can back up his theory that software is patentable on other grounds other than that there is no per se rule against software. I claim a method of improving throughput ought not to be eligible; a claim that provides method steps and sufficiently explains how to perform them I believe should capture patentable innovation, so long as it is limited to computer implementation so that mentalists shouldn’t be alarmed, and so that the claim doesn’t preempt the field because mentalists are free to perform these methods in the heads, or even with pencil and paper if they’re not quite so mental. Knock yourself out with your abacus practicing the method, you will not be sued.
I agree with your sentiment. As long as a machine (a computer) is claimed that performs this process, the claim should be patentable. Assuming of course, the process is new and useful.
The method is what is critical. The machine merely facilitates the method.
Ned: “simply uses a computer”
Ahh, yes the J. Stevens cognitive model of computers. You write down what you want on a piece of a paper then tell a boy to program it for you.
Or Gingsburg view of computers where there is a computer world and then a “real world.” I guess that computer world operates in the spirit world as she appears to believe that the computer world has nothing to do with machines.
Well said. Wait for Federal Circuit to hear some of the more extreme 101 holdings from the District Courts.
I like the creative thinking, but I don’t believe that that gets us any closer to the solution to what aspects of software make it patentable subject matter.
You could substitute bound paper books and get a similar result: the difference between the utility of a reference book, graphic novel, biography, and cookbook. Books aren’t made newly patent eligible merely by changing what’s in the book or how you use the material in the book.
Note, in that case: the book itself may be patent eligible. The “invention” of a new content of the book is not — simply tacking on a book for its conventional purpose does not change the nature of that invention. And therein lies the SAME patent eligibility problem with your daughter’s perspective.
That’s another Judicial exception. 101 doesn’t itself prevent the patenting of such articles of manufacture.
However, there is the matter that a patent claim must be a single sentence. It would be difficult to claim War and Peace, for example, as a single sentence. Even if that matter were resolved, there is that matter that patents only last 20 years or so, and copyrights are much longer.
Furthermore, anyone could avoid buying your book by getting a copy of the patent.
Now, if your position is that a b0ok could be claimed by describing the contents, but not actually presenting the contents….. that might be a useful patent to have…. and the public would benefit because copycat ripoffs could be prevented. For example, such a patent on The DaVinci Code might have spared us from National Treasure…..
How about claiming the steps of a method that are executed when the software is executed? Why can’t the software be claimed in terms of what it does/causes rather than what it is? Why are we so hung up on the ontological question?
Leave the entire hardware/system elements alone and look at the method steps in isolation.
“Sure, the box is the same in both situations. But, Microsoft Word obeys me and the the game thwarts my moves. I see them as very different. Its brain changes.”
And that is precisely where the mental steps doctrine would take over. Except, oh wait, the federal circuit says it doesn’t.
6,
May I kindly ask you to understand what the mental steps doctrine is?
Note the “all” and “purely” requirements, and then note that one of my favorite words applies (anthropomorphication).
Machines do not think.
See link to uiowa.edu for a succinct statement.
“Machines do not think.”
Be sure to tell D’s child.
I am more than pretty sure that Professor Crouch’s daughter knows that there is a very real difference between a person that thinks and a machine that merely ‘simulates’ thinking.
Thinking is a purely human endeavor, though not all humans engage that activity to the same level. 😉
…machine that merely ‘simulates’ thinking.
Like a machine that “simulates” math, and logic?
Thinking is a purely human endeavor,
Tell that to the animals that dream, and even have nightmares.
Machines already can pass the Turing test.
Or those that create novel solutions to getting food, such as squirrels, raccoons, wolves, dolphins, porpoises, chimpanzees, gorillas…
As to whether a machine will never think… not yet, and if it does it won’t be the same way as we think.
Machines already can pass the Turing test.
ah for an edit. I could have sworn I removed that sentence that is in the wrong place..
What I wanted to say was:
Sorry about that.
Do you get that “thinking” is a word that properly applied in the context of law only to humans?
Do you get that? And as such the legal opinions that refer to mental steps are referring to human brains?
Thinking isn’t restricted to human brains.
That is reality.
There is even a case trying to get chimpanzees declared a “person”…
jesse,
The emphasis in your post related to animals is on “trying.”
When they succeed, do let us know. Until then, animals are mere chattel under the law. Exactly like inanimate objects like machines.
And even then, keep in mind that this is patent law that is discussed here. May I suggest that you refresh yourself on the Chakrabarty case, wherein even living items (non-human) fall with the scope of being patent eligible.
Please abide by the context within which you are located. Your opinion suffers greatly when you make statements that are ridiculous on their face.
If you remember some history….
It wasn’t that long ago that people were chattel too.
And I believe children still are…
And just because a law (or ruling) states something, doesn’t mean that it is a fact.
That is why reality will always trump law.
jesse,
Let me know when your program le toaster has ‘human rights’ and is set free from the oppressive rule of man.
We will celebrate the Independence Day in grand style – we will even invite Elon Musk.
🙂
People already swear at toasters when they don’t do what the people think they should.
And that is treating the toaster as a sentient object.