H&R Block v. Jackson Hewitt (E.D. Tex. 2009)
E.D. Texas Magistrate Judge Love has recommended that H&R Block's advance-tax-refund patents be held invalid for failing to claim patentable subject matter under Bilski. The claims in question are all directed toward either a "computerized system" or "computer-implemented method." Quoting Nuijten, the court first held that Bilski controls both system and method claims – since a "court should not be 'overly concerned with pigeonholing subject matter once the court assures itself that some category has been satisfied.'"
The claimed invention involves issuing a cash-advance to income tax filers and then retaining a right to receive payment from the government.
The court held that none of the claims satisfied the particular-machine-or-transformation test. The "computerized system" claims did not identify a "particular, special purpose machine" that was more than "an insignificant, extra-solution component of the claimed invention." Likewise, the transformation of "tax return data" into a "spending vehicle" is not the type of transformation required under the test.
"At all steps in the claimed processes, the manipulated data represent legal obligations and relationships. However described, the data and resulting loan represent money. Although tangible in some forms, money is simply a representation of a legal obligation or abstract concept."
Claim 1 of Patent 7,072,862 reads as follows:
-
A computerized system for distributing spending vehicles comprising:
-
- a payment due from a governmental entity;
- an assignable right to receive said payment from said governmental entity, said assignable right held by an individual;
- a spending vehicle offered by a third party sponsor to said individual in exchange for at least a portion of said individual's right to receive said payment due;
- an assignment of at least a portion of said individual's right to receive said payment to said third party sponsor in exchange for said spending vehicle;
- wherein information associating said payment with said spending vehicle from said third party sponsor is stored in and retrieved from a computer to facilitate processing of said spending vehicle and said spending vehicle is issued to said individual in an amount for spending by said individual of said at least a portion of said payment, said governmental entity is electronically notified to transfer said at least a portion of said payment to said third party sponsor, and said at least a portion of said payment is received by said third party sponsor.
I can help you out with that one guys:
The actual definition.
Also, you can read the stern brief as Ned suggested if you want to know about the answer.
Oh and broje, traditionally I think we weed out the artistic pieces with 103, there is a section in the MPEP about it. Not that I would necessarily disagree with you, but I’m pretty sure that’s how we take care of them.
Dear Actual Inventor,
In My Humble Opinion, None.
That’s my 2 cents.
Ned:
What possible interpretation of the “useful Arts” clause of the constitution could the Supreme Court construe that would make business methods non statutory?
Well, Ned, I think everyone can agree that there are some business methods that should not be patentable subject matter, regardless of whether they are novel and non-obvious. The method of advertising by word of mouth comes to mind. Such a patent would impact freedom of speech, wouldn’t it?
But your point is well taken. there are also apparatuses, even non-computerized ones, that should not be patentable subject matter in my opinion. For example, a metal sculpture comes to mind, or a mobile. Those artistic pieces can certainly be claimed in terms that strike one as being directed to patentable subject matter. But they are fine art pieces, with no practical utility. And throwing a lawn mower in the metal sculpture or mobile might tie it to a particular machine, but would still fail to make it patent eligible subject matter in my view.
That’s why the issues are so difficult, and why the machine or transformation test is not the answer. And it’s why looking for the answer of where to draw the line with respect to business methods impacts all areas of patentable subject matter. A misstep here could be disastrous.
But, inevitably, there are people whose minds inevitably run to the worst case scenario of a business method patent, and panic, and bend over backward to throw out the bathwater, with no mind to the consequences. I hope we can all strive not to be one of those people.
Ken, State Street Bank held business methods “useful” because they were not expressly excluded by Section 101. What they did not do and what I expect the Supreme Court will do if they want to exclude business methods per se regardless if they are tied to a computer is decide the case under the “useful Arts” clause of the constitution. Stern’s amicus brief laid it out the argument well. I suggest you give it a read.
If one does not resort to the law to decide this case, it all then devolves into policy arguments. From THAT point of view, I side squarely with Bilski. If someone invents a new and unobvious business method, why is it important to society that others be legally allowed to copy the invention? THAT is the only valid fundamental question from a policy point of view.
Ken Brooks wrote: Can someone tell me why tax avoidance methods shoud be per-say unpatentable?
Only an anti business method ideologue can tell you that. In which case do not expect an answer based on the merits of science and technology. Having worked at Bloch during the time the “Rapid Refund System” {as it was first called}, was actually invented I can tell you now that its is tied to a computer. There is no way this system can accomplish what it was designed to do without a computer. So there can be no pre, post, and extra solution activity. The patent is statutory subject matter.
Can someone tell me why tax avoidance methods shoud be per-say unpatentable? I really don’t get the big deal.
step back wrote:
“”smart enough”
“software engineers”
buried in Dilbert dungeons
and hungrily gulping down mushroom food”
Wow. Way to take the high road…
(BTW, to answer your one valid point — copyright is enouth.)
“There have never been unions of software engineers, [because] these guys are smart enough”
LOL
Yes, which is why these guys reside in dark Dilbert cubicles, drink stale coffee all day and mutter to themselves about how they are the most valued people in our society (thanks to their incredible social manipulation skills).
It is also why these guys are the easiest to convince that they don’t need legal protection –like by creation of property rights for the work they do (via award of patents to workers who are recognized as human individuals).
LOL
“smart enough”
“software engineers”
buried in Dilbert dungeons
and hungrily gulping down mushroom food
“Unions will not be needed.”
Stop right there. There have never been unions of software engineers, these guys are smart enough to survive without unions.
But! Unions will *ALWAYS* be needed. Why? Because without unions, workers have no possibility to get any representation at political arena: no votes, no participation in political project drafts, no opposition to big corporations, nothing! suddenly you can issue new laws without any respect to actual workers.
Is that what you want? You are arguing for corporate fascism, which is already taking the control over US!
MM: :”You were the one arguing that “strong” patents resulted in job creation.”
Ahhh….Okay I see your problem. You are not an Actual Inventor, or Entrepreneur so permit me to educate you on the economic realities of work and business. Unlike a government union job, or one provided by the state in say a socialist system, in America we have to work and compete for a living. The way to create new jobs is to create new successful business that sustain long term growth.
Now, new businesses that invent new technological processes can get in the marketplace and sustain rapid growth and provide hundreds and even thousands of jobs. This technology includes all manners of software and business methods. By having a patent on new, useful, non obvious business methods, and software, a start up can get funding for offices, advertising to attract customers, and hire employees to serve the customers. Since America desperately needs 15 million jobs we can’t get those new business started too soon. By having a strong and valid patent the company can look forward to least 5 years of growth and prosperity in the marketplace thus providing job security for their employees.
Unions will not be needed. Nor will government created hand outs. Now just so you know, other entrepreneurs that wish to compete against these business with patents can still do so. All they have to do is use their imaginative, creative genius to design around the patent with a new and improved process that the public will enjoy even more. This creates even more jobs, lower prices and higher quality goods and services that satisfy the consumer. And this Malcolm is how we create jobs in America.
MM: Seems to me that making it more difficult to invalidate a patent under 103 would make the patent stronger.
No, Malcolm. Patents are strong based on the genius of the inventor, not necessarily on how a law is written or changed. I personally have no problem with the steep incline at 103. As an inventor I am confident I can create new and often pioneering technological processes that no one would have thought of before. In fact, that’s what makes being an inventor so fun and rewarding. But if down the road some other inventor proves they invented and used virtually the same technology before me, then guess what? My invention is not as pioneering and non obvious as I thought. And thats the way it should be. Let the market place decide.
Now enforcement and eligibility are two different sides of the coin. So creating a law that prevents an inventor from having their invention even be eligible for patent examination is clearly stiflingly innovation and helps no one from an Actual Inventors point of view.
I hope you understand Macolmn. I don’t want to change your pro socialists ideology, I just want you to know why we love our free market system in America and want to indeed keep it free and accessible for all.
AI: Exactly how would congress overturning KSR create more jobs?
MM: You tell me, AI
Sorry,I can’t read your mind. If you want your position understood you have to be able to elaborate.
Malcolm, I would “enact” eBay along the lines of the following:
Upon filing of a complaint for infringement of a patent, the court shall, without the requirement of a bond, enter an order to show cause why an preliminary injunction shall not issue or the action not be dismissed in the interests of justice depending upon whether, upon the filing of the complaint, the patent owner has sufficient evidence of infringement to avoid summary judgment of non infringement.
Upon the final determination that a defendant infringes any claim in a patent, the court shall enter an order enjoining further infringement.”
MM Wrote: “Your ignorance sends chills down my spine. ”
Umm…..Thats way too much information
MM Wrote” “I thought you’d finally laid down the sockpuppet after the Supremes crushed your fantastical interpretation of Diehr during the Bilski hearing.
Malcolm, the SCOTUS has not yet ruled on Bilski so they have not crushed anyones interpretation of anything. Personally I have no interpretation, fantastical or otherwise. I simply agree with the majority in Diehr while it appears you agree with the minority in that case.
As for the arguments made during Bilski I did not hear any that indicated the court would support the PTO’s narrow interpretation of Diehr as represented by the MOT test.
Nor did any of the justices, including Stevens, whom I believe is the last living Diehr dissenter still on the court, indicate they believed Diehr is no longer good law. If you indeed heard such an argument being made please reiterate it here and provide your logical reasoning for your interpretation. I would be most interested in hearing it,
AI: Exactly how would congress overturning KSR create more jobs?
You tell me, AI. You were the one arguing that “strong” patents resulted in job creation. Seems to me that making it more difficult to invalidate a patent under 103 would make the patent stronger. But please go ahead and explain yourself. Eventually you’ll hit magma.
Malcolm, I think you have a point here. We should enact KSR as follows:
“If the examiner demonstrates that there are fewer than five variations in the prior art, it should legally be presumed that it would be obvious to try each of these even if the prior art suggested that the claimed combination would not work. If there are more than five variations in the prior, there must be some suggestion in the prior art to make the claimed combination.”
MM Wrote: “Yes, Congress should pass legislation to overturn KSR in order to create jobs. Makes a lot of sense.”
Malcolm, that makes no sense to me. Exactly how would congress overturning KSR create more jobs? If you have a logical reason for your beliefs I would be interested in hearing it.
“Malcolm, I don’t know whether they should pass legislation to overturn KSR, but they certainly should pass legislation to overturn eBay”
Perhaps they should really clamp down on the obviousness standard eh? Make it near impossible to obtain a patent by upping the obviousness standard? Perhaps Ned, I like where you are going with this. Maybe you could flesh this out a bit.
Re ebay, perhaps you’re right, perhaps they should just throw injunctions away completely. Strictly monetary damages, for a practicing entity’s lost profits only? Again, I like where you are going with this, do go on and tell us specifics.
Malcolm, I don’t know whether they should pass legislation to overturn KSR, but they certainly should pass legislation to overturn eBay and re-examinations.
AI: Small businesses and start ups create 85% of all new jobs. And without strong patent protection, especially for business methods and computer software these would be providers of jobs have as much chance at succeeding as a new born baby alone in a forrest of hungry, ruthless tigers.
Yes, Congress should pass legislation to overturn KSR in order to create jobs.
Makes a lot of sense.
cold chills down the spine of every American
Your ignorance sends chills down my spine. I thought you’d finally laid down the sockpuppet after the Supremes crushed your fantastical interpretation of Diehr during the Bilski hearing.
In even considering making processes and methods non statutory subject matter, the Supremes are teetering this country on the precipice of economic and technological disaster!
I have read that America needs to replace 15 million jobs before we can fully recover from the current economic crisis.
Where does the SCOTUS think those jobs are coming from? Surely not from the pro socialists, communist sympathizers and anti patent crowd that want to ban business methods and computer software.
Small businesses and start ups create 85% of all new jobs. And without strong patent protection, especially for business methods and computer software these would be providers of jobs have as much chance at succeeding as a new born baby alone in a forrest of hungry, ruthless tigers.
In fact, I am reminded of the story the Jungle Book, when Badghera (sp?) explains why ShereKahn the tiger wants to kill the boy ( man cub) Mowgli. He says, “ SherKahn will get Mowgli while he is young and helpless.” Never allowing him the chance to grow up and become another hunter with a gun.
The same can be said of those big corps that have submitted briefs for banning business methods or software patents. Yes, without the competition they can remain king of the Jungle. Only problem is these well fed tigers just consume and don’t create jobs. Instead they are eliminating jobs by the thousands.
Ultimately Bilski, Prometheus and process inventions in general should be decided based on ideas that are supported by objective testable scientific evidence, despite the fears of the intellectually constipated that refuse to advance their arguments into the realm of 21st science.
When even one justices is flippant about processes ( the scientific core ) of every invention and waxes philosophically about horse and buggy mechanics rather than asking questions based on the facts of quantum mechanics it should send cold chills down the spine of every American that values free enterprise, capitalism and true progress of the useful arts.
6, you’re fun to talk with. Have a good day and let’s continue this the next time a Section 101 issue arises.
” They got to the result they did by coming up with the wholly preempt holding.”
Bingo.
“But every patent claim wholly preempts what is claimed.”
Does every patent claim defeat the purpose of disallowing claims to disembodied algorithms/math formulas etc? No? Oh, so that is the problem with Benson and that isn’t necessarily a problem with “every patent claim”. Amazing! Truly!
” Such an argument is therefore illogical and is almost a non sequitur.”
This is lawl Ned, not logic 101. In lawl, sometimes we have to look beyond the one principle “all claims preempt what is claimed” and to other principles as well “the purpose of not allowing claims to disembodied math formulas is to prevent someone from wholly preempting the use of the formula”. When we look at that second principle, this ruling isn’t illogical at all.
“The real question the Court should have asked but did not was whether the claim wholly preempted all ways of converting BCD to binary while the disclosure showed only one way.”
So you think they should have considered 112 1st WD req? I think that is “a” real question that the court should have asked, and maybe/probably did ask. They just didn’t write about it because the answer is clear and irrelevant to the logic upon which they made their decision.
“As I demonstrated before, data is real.”
Maybe. So what if it is?
“So what does Benson in the end stand for after Diehr? Not much if anything at all.”
Um, it stands for the exact same thing it stood for the day it issued! JE SUS NED! /facepalm. You may not preempt every use of an algorithm with a claim per 101 reqs. Diehr did not attempt to change that what so ever, and did not change it what so ever. In fact, it reaffirmed it as the proper inquiry to make! Several times and in several different ways!
6, I know what the court in Benson held. I just disagree with it and I am explaining my reasoning.
One can view the claim in Benson in two ways, one as a claim to a mathematical formula, or second, a claim to conversion of BCD data to binary data in a computer.
Let’s turn to the claims themselves.
Claim 8 reads:
“The method of converting signals from binary coded decimal form into binary which comprises the steps of”
“(1) storing the binary coded decimal signals in a reentrant shift register,”…
Now what are signals and what is a reentrant shift register? Signals are data. A reentrant shift register is piece of hardware located in a computer.
This is NOT a claim to a disembodied mathematical formula, but to a conversion process that operates on data using physical hardware. As I demonstrated before, data is real. It is physical. I has real potential energy states in terms of real computers and how much energy it takes to process data in one form vs. anther form.
The Benson court never denied this. They even stated as did subsequent courts that useful applications of laws of nature are patentable. They acknowledged the Benson claims covered just such a practical application. They got to the result they did by coming up with the wholly preempt holding. But every patent claim wholly preempts what is claimed. Such an argument is therefore illogical and is almost a non sequitur. The real question the Court should have asked but did not was whether the claim wholly preempted all ways of converting BCD to binary while the disclosure showed only one way.
So what does Benson in the end stand for after Diehr? Not much if anything at all. The decision was wrong.
MM the PTO is empty. Go home.
BigGuyBecause all effective methods were implemented years ago on Turing-complete looms.
So, who’s going to let the Supreme Court in on this?
LOL. My guess is that Clarence Thomas was independently thinking about the Turing-complete loom issue during oral arguments which was why he didn’t ask any questions.
I see you are losing your mind 6. You’ve been spending too much time with MM.
“The structure is in the software.”
HAHAHAHAHAHAHAHAHAHAHHAHAHAHAHAHAHAH
Wait wait,
LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL
Come on NWPA, that’s rich, but I know you’ve got some better jokes hidden somewhere!
“Transformation counts if it represents something in the “real world.””
Look for that to be the part of Bilski that gets overturned in Bilski.
“Frankly, anyone with 1/2 a brain should be able to understand that CPU + software is a clever way to reduce the size of the computer. That’s all it is. ”
If this is true, as you maintain, then this “clever way” was invented a long time ago. 102b on all of this silly CPU+software.
“And, 6, I am of the opinion that Benson is simply an abomination. It should be striken from the record and Justice Douglas’s name should be forbidden to be spoken on the birthday of Von Nuemann.”
Everyone has an opinion. But since you’re in the minority of ~1, I don’t see why we should pay heed to your opinion. Are you scheduled to become king soon?
“Your knob thing and a new use for an old machine fail because a CPU + software is just a trick so as not to have to build the whole machine. You see how do you reconsile that? You can’t. If I can build a machine to perform some other type of functions, let’s see, all circuits, and then just put the actual processing in software, which I can do, does that mean that then all circuits are then not eligible for patentability?”
The misunderstanding of the basic principles of basic patent law run deep in this one.
“For those of us that aren’t over 70 years old, we better understand this ”
“For those of us that aren’t over 70 years old, we don’t understand this ”
fixt
And, 6, I am of the opinion that Benson is simply an abomination. It should be striken from the record and Justice Douglas’s name should be forbidden to be spoken on the birthday of Von Nuemann.
Frankly, anyone with 1/2 a brain should be able to understand that CPU + software is a clever way to reduce the size of the computer. That’s all it is.
>>WHAT THE COURT HELD
Bilski. Transformation counts if it represents something in the “real world.” So, we are almost there. We just need that information transformation to count always.
The little grains of wheat are represented information. But apparently those little grains of represented information that are transformed only count when the transformation is of something that is somethign that Justice Stevens doesn’t believe that angels take care.
“6, I still think the Supremes were trying to prevent a patent on a law of nature, natural phenomenon, or abstract principle. They believed the BCD to binary formula was like a law of nature standing there, side by side, with F=ma. They believed the claim to the BCD to binary in a computer was, in effect, a claim to the algorithm per se because there was no other practical use for the algorithm. So I do not fully understand why you think I am wrong to say this.”
Looky there, you do understand what they held. I’m not sure how or why you can keep on bringing up irrelevant arguments in threads relating to that holding.
“But compare F=ma and BCD->binary. Using a computer to calculate the one is entirely different from using the computer to calculate the other. I’ll leave you to consider the difference before we continue.”
How about you just tell me what the difference is Ned? Because it isn’t jumping out at me. Or was all that nonsense about potential energies what the difference supposedly is? Along with the whole fallacy that since BCD is created by man then that saves the BCD>binary conversion because it isn’t a “law of nature”.
Outrageous Ned, simply outrageous. I’d love to hear you argue that in court and watch as the judge lols or tries to corral you like a kindergartener into the proper inquiry at hand. Are all algorithms, regardless of what their underlying represented material is, disallowed under the judicial exceptions? The answer is yes, and it always will be.
>>I’m pretty sure you get to the result that the >>PHOSITA considers practically all software to >>be an obvious, suggested use of a general->>purpose computer, and as such unpatentable.
How much do you want to bet? I’m at least a PHOSITA and what you said is very wrong. In fact, it is nearly the opposite of that. Information processing methods are without question some of the most difficult and novel inventions.
Your knob thing and a new use for an old machine fail because a CPU + software is just a trick so as not to have to build the whole machine. You see how do you reconsile that? You can’t. If I can build a machine to perform some other type of functions, let’s see, all circuits, and then just put the actual processing in software, which I can do, does that mean that then all circuits are then not eligible for patentability?
Or a machine that builds molecules. Then software changes to build different molecules. How can that machine infringe when according to you it is nothing more than a new use for an old machine.
The structure is in the software. The invention is in the software.
“First, I note that F=ma is a law of nature, but BCD is a creation of man. ”
First that is kind of stretching it Ned. Man does not create numbers, BCD is just numbers. If we go so far as to say that BCD is a creation of man because it is a system of expressing/representing numbers then we may as well say that F=ma is a system of expressing/representing numbers. I’m not convinced on your “bcd is a creation of man”, but even so, that is irrelevant. BCD /= the algorithm for converting BCD > binary. BCD > binary IS AN ALGORITHM and it then falls into those laws of nature/math etc.
“Third, I note that BCD-encoded data has a lower potential energy than binary data for computer operations involving the manipulation or display of decimals, particularly decimal mathematics performed by the computer’s ALU.”
Ned I’m afraid you just went out of your mind. There is no way to say that BCD date has “lower potential energy than binary data for computer …” That is going to be a situation specific inquiry, and one that you cannot generalize about. Even if it is true, it is irrelevant in the extreme.
“Fifth, I note that the conversion of BCD-encoded data to binary-encoded data involves a physical transformation of data from one potential energy to another. As Night Rider has articulated a number of times, data transformation is physical it is subject to the laws of physics.”
So what? Like NWPA, you fail to mention how that is relevant when you make no mention of this alleged transformation in the claim as in Benson. Again, irrelevant “facts” or irrelevant disputed facts are irrelevant.
You need to tie these into your argument against WHAT THE COURT HELD somehow.
“Presumptively, a claim to the transformation of BCD-encoded data to binary-encoded data is patentable because it transforms something physical from one state to a different state.”
I’m not sure why you bother to “presume” this since a court has told you specifically that it is not, or at least not always, true.
“I believe that the Benson claim was properly tied to a transformation of BCD-encoded data to binary-encoded data in a computer. ”
Let’s assume, just for the sake of argument, that you are 100% correct and that the court believed you. You still lose under their reasoning and your failure to see why is appalling.
“In contrast, F = ma is a fundamental law of nature. Here one has to be careful that the claim is not truly directed to the algorithm itself so that anyone calculating the formula would be an infringer. ”
Why should we not be careful of that exact same scenario in the instance of other algorithms? This is a question which you will never come up with a good way to answer in any other way than: we should. And that is why the court held the way they did.
I don’t know why you want to keep starting the argument afresh Ned, if you could cease such behavior it will lead to your understanding increasing. Finish the hard parts. You know that we were already down to the heart of the matter, issues that the court raised and about which you get very non-responsive:
1 Is a claim that is directed directly to an algorithm permissible?
2 If a claim is directed to an embodiment that effectively preempts every use of the algorithm permissible?
3 If so, does that not negate the entire purpose of the answer to the first question? Please explain your answer whilst touching on the issue of form vs substance.
4 Did Benson’s claim preempt every possible use of the algorithm?
That’s a few yes/no questions with one simple “explain your answer”. Go ahead and give them a shot because that’s what your opponents in court will make you do. And it is where all your irrelevant arguments are going to fail you.
“Returning to my original post, if you want to present policy reasons against patentability of computer-implemented methods, fine.”
First, stop using the neologism “computer-implemented methods” when you don’t mean it. A computer-implemented method is something like the rubber-curing process. If it contains no industrial activity, just software and interactions with human brains and eyeballs, it’s not a “computer-implemented method”, it’s pure software.
OK. Look at the economics: nobody has ever been documented to have been incented to create a computer program by patents, but plenty of companies have been trashed by pure-software patents. There’s piles of economic studies showing what a disaster software patents are.
Some of the earliest such studies caused software to be excluded explicitly from the European Patent Convention, despite while patents on software continue to be issued with the addition of insignificant post-solution activity, as patent lawyers call it.
Furthermore, software is covered very strongly by copyright. Copyright has been highly effective in the software industry.
Yet further, patenting software presents a conflict between disclosure and restrictions on use, because a blueprint *truly* sufficient to construct the software — sufficient to prove that the “inventor” actually wrote it rather than just dreaming it up — is such that it is, in fact, the software itself.
Yet further, patenting software presents a problem of foreclosing entire fields of development. With rare exception, software patents patent “any method of presenting this result to the user”, which is generally completely impossible to deal with except by getting rid of the bogus patent, or ignoring it.
Yet further, when a software patent presents an actual algorithm rather than an interface, it *is* pure math and generally attempts to exclude *all uses* of the algorithm, which again forecloses entire fields of research.
In short, there’s no value whatsoever to software patents (we have copyrights), they almost always violate the principles of the patent system, and they really are the patenting of “abstract ideas”.
“Follow the analogy from there and see where you get. I’m pretty sure you get to the result that the PHOSITA considers practically all software to be an obvious, suggested use of a general-purpose computer, and as such unpatentable.”
Got it. Because all effective methods were implemented years ago on Turing-complete looms.
So, who’s going to let the Supreme Court in on this?
“Let’s suppose that the saw has a bunch of knobs. Lets suppose these saws have been the same for 100 years; no changes. Let’s suppose that everyone has always used the knobs the same way. ”
BEEP BEEP! Analogy fail!
In computers, they are explicitly designed, and intended by manufacturer’s instructions, to be used with *any possible* knob settings (to maintain the analogy), and the record shows that users make radical changes in the knob settings as a *matter of course*.
Follow the analogy from there and see where you get. I’m pretty sure you get to the result that the PHOSITA considers practically all software to be an obvious, suggested use of a general-purpose computer, and as such unpatentable.
Michael Lenaghan:
“”Undecidability” means that an algorithm won’t halt on some inputs.”
Yes, thus effectively such algorithm is useless. Imagine court executing such test: it just runs, runs and runs, and nobody knows whether or when it is going to finish.
“It doesn’t mean that you can’t write an algorithm.”
Right, it doesn’t, but any such algorithm is useless if you want an answer in a definite and finite time.
Night:
To be clear, I wrote my 10:00a comment before seeing your 9:44a comment. I’m not quite sure how to reconcile what you wrote then with what you wrote earlier, but defining that boundary–the boundary between what can and cannot be patented–has been the common thread to my argument. Effective methods are a way of separating the essential from the physical. What’s more, there’s no subjectivity in the separation.
Night:
Your proposed system rests on a different foundation. That foundation assumes, for example, that math can be patented. Your system may be logically consistent but I don’t think it would ever be adopted in the U.S.
From Breyer’s dissent in LabCorp:
“Patent law seeks to avoid the dangers of overprotection just as surely as it seeks to avoid the diminished incentive to invent that underprotection can threaten.”
From what you have described so far I don’t think your system provides limits to the dangers of overprotection. (Breyer explains that that’s the concern–the premise–that drives the exclusion of nature, math and abstract principles.)
Well, Michael, that is a good point and the only reason to have exceptions. And that is preclude other uses exception that comes up in all the different areas of patent law and needs to be considered separate from general eligibility issues under 101.
The absurdity of all this is that even in Bilski the claim itself cannot be represented without a physical representation.
Stevens talks about abstractions as if they exist outside his head. This is really medieval thinking. For those of us that aren’t over 70 years old, we better understand this and prepare for the machine that processes information and can do it better than we can.
Ned:
“F=ma” is math that represents a law of nature. The fact that it’s a representation of a law of nature adds a complication–so let’s eliminate it. Let’s talk about “f(x) = x + 1”. That’s exactly like the BCD algorithm; it’s just simpler. So in what sense–and in what cases–can I patent that?
And–imitating a broken record–I have no issue with patenting a wooden device that does “x + 1”, or a metal one, or an electrical one. What I take issue with is that successfully patenting one would prevent you from building the others.
What you will find is that those who do not get it are the same ones that believe that their thinking occurs on the heads of pins by angels. (Or in the armpits of baboons like MM.)
>>If you’re talking about speed or capacity >>you’re talking about physical properties. >>There’s no question that physical things can >>be patented.
It is information processing. Information has to be physically represented to be transformed.
A transformation of information takes, time, energy and space.
Sounds like a physical process to me.
There is no such thing as a Turing machine with tape of infinite length and tape advancing speed greater than that of light.
If it helps, think of a “Turing machine” as an Intel 4004 processor from the dawn of time. The point is that every algorithm that can run on on a Core i7 can run on a 4004, and vice versa. The same will be true for any chips created 10 years from now. It’s the algorithms we’re talking about. Well, that I’m talking about.
If you’re talking about speed or capacity you’re talking about physical properties. There’s no question that physical things can be patented.
Anony:
“Undecidability” means that an algorithm won’t halt on some inputs. It doesn’t mean that you can’t write an algorithm. Given that, my suggestion still holds: if a sequence of steps can be turned into a computer program it’s empirical proof that the original steps represent an effective method–which is to say, a sequence of steps that could be performed with a human with pencil and paper. That’s all that’s needed.
You are making this all too complicated.
The fact is that F = MA is an invention. It is an approximation of a way of representing the outside world. There is the outside world and then there is us. We represent the outside world to perform information processing tasks.
Math is not outside of us, but a result of our brains.
The only question is whether or not the court should allow or not a patent on something that happens to represent very well how the outside world works.
Really, people, information processors is what we are. Computational intelligence. We represent things with physical neurons and we are physical. Sheesh. This is more about religeon and philosophy than patent law.
And, yes, I understand theoretical computer science very well. I’m still hoping to prove that NP <> P before I die.
6, Michael and Night Writer, we are considering the difference between F=ma and BCD->binary when a computer is involved.
First, I note that F=ma is a law of nature, but BCD is a creation of man. Presumptively, therefore, BCD is patentable subject matter if it physical.
Second, I note that BCD, when tied to data in a computer, is physical because data is physical. A medium encoded with BCD data is physical.
Third, I note that BCD-encoded data has a lower potential energy than binary data for computer operations involving the manipulation or display of decimals, particularly decimal mathematics performed by the computer’s ALU.
Fourth, I note that binary encoded data has a lower potential energy than the BCD-encoded data for computer operations involving manipulation or display of binary data by the computer’s ALU. Binary data operations are particularly useful in so-called RISC machines.
Fifth, I note that the conversion of BCD-encoded data to binary-encoded data involves a physical transformation of data from one potential energy to another. As Night Rider has articulated a number of times, data transformation is physical it is subject to the laws of physics.
Presumptively, a claim to the transformation of BCD-encoded data to binary-encoded data is patentable because it transforms something physical from one state to a different state.
Therefore it seems to me, that even if one can calculate the Benson algorithm on paper, if the claim is properly tied to a physical transformation of data in a computer, it is patentable subject matter.
I believe that the Benson claim was properly tied to a transformation of BCD-encoded data to binary-encoded data in a computer.
Consider the Turing machine. If due to its circuits or cogs or whatever, it processed BCD-encoded cards more efficiently than binary-encoded cards, or vice versa, a machine that read a card of one type and punched out a card of another type for subsequent use in the Turing machine would be a patentable machine. Not so? It is easy to see this because the cards themselves are physical. But so is data encoded on a medium.
In contrast, F = ma is a fundamental law of nature. Here one has to be careful that the claim is not truly directed to the algorithm itself so that anyone calculating the formula would be an infringer. But if the equation were used as part of an otherwise patentable process as we had in the Diehr case, the use of the formula would not render that otherwise patentable process unpatentable.
step back:
“There is no such thing as a Turing machine with tape of infinite length and tape advancing speed greater than that of light. That too is merely an abstract concept and myth.”
Get your facts!!! Turing machine is as real as Internet, or you and me. Anyone with Computer Science (should) have programmed at least the Turing machine emulator.
As for unlimited tape: yes, the stock computers have limited memory, but guess what, you can connect computers! connect them continually as you go, expend the memory as your algorithm proceeds. Ever heard of cloud computing?
Despite this surreal property, Turing machine is as good as you can get in this Universe with current physics. Even quantum computers are not more powerful, they are just faster.
Moreover for halting problem to apply you don’t have to have infinite tape: the state space is exponentially large of any memory and it would take exponential time just to analyze simple algorithm running on finite memory.
Do you have any sense what exponential is? Get a clue, it’s worse than astronomical! Current cryptography operates on numbers where state spaces are larger than there are particles in our Universe as we know it!
Effectively it is as bad as not doable at all.
Michael Lenaghan,
Bilski is very interesting indeed. But here is a proof that patents in general case are in a hopeless position:
1) courts rely on guidance in terms of method/test/procedure (let’s generalize by algorithm) to determine what is patent-eligible and what’s not, useful or not, and other interesting properties. Currently it seems that everybody agree that machine-or-transformation test is just a clue. Actually it is much worse than that, thus read-on.
2) if you were to create a any kind of test to tell any property of software/algorithm, you would have to derive some kind of method/procedure/algorithm just to do that, like MOT test, right?
3) now Rice’s theorem says, that the problem of designing an algorithm which decides about properties of other algorithms is undecidable, i.e. there does not exist such algorithm for any property, even for the most trivial ones.
4) conclusion: in case of software/algorithms there does not exist a test for any property, including patentability or patent-eligibility.
Now this looks totally hopeless, but the current trends in computer science say there is hope with software *models* (think of abstract diagrams with precise semantics). The crucial property software model is that it is not Turing-powerful, i.e. the expressiveness of the model is limited some way or another, which makes analysis by algorithms of such things feasible and thus analysis methods can be derived for that particular model formalism.
Overall conclusion is:
there is no hope what’so ever to find any test for (software) patents, as long as attorneys insist on complete coverage. The most general/liberal constrain could be that patent-eligible algorithm should be analyzable in the first place (there are many formalism and methods to choose from) and then we can search and apply some kind of tests designed in advance (so that everybody knows and agrees what is patentable and what’s not).
Now this clearly has some consequences to other patents (not just software) too, but I am not an expert there.
Posted by: 6 | Nov 18, 2009 at 10:08 PM
“First of all what Flook’s majority AND dissent said about benson was exactly what I just told you. The dissent simply put it in confusing new clothing because they were having a hard time comprehending what was going on in flook’s majority decision and were having a hard time enunciating what they wanted to from benson.”
6, I still think the Supremes were trying to prevent a patent on a law of nature, natural phenomenon, or abstract principle. They believed the BCD to binary formula was like a law of nature standing there, side by side, with F=ma. They believed the claim to the BCD to binary in a computer was, in effect, a claim to the algorithm per se because there was no other practical use for the algorithm. So I do not fully understand why you think I am wrong to say this.
But compare F=ma and BCD->binary. Using a computer to calculate the one is entirely different from using the computer to calculate the other. I’ll leave you to consider the difference before we continue.
“The youngest, no doubt, would be happy to demonstrate a practiced hand.”
You need to show my hand having done the deed sir.
But it seems that attorneys would prefer to see it complete (cover everything) and inconsistent (mess up some parts) rather than consistent (firm and coherent) and open (leave some things out).
Don’t give up hope; the tide turned with Bilski. Now we’re just waiting to see how far out it goes.
p.s.: Before Lotus there was Visicalc. Before Visicalc there was The Void. 🙂
HierarchyOfPontificationBuckets,
I don’t really care if a person is pro-FOSS or not (in earlier thread it was RedHat, and there was material cited concerning FOSS, but this is just coincidence). I do care about technical side and coherence, my ultimate quest is to find out should I care about this legal side or not.
FOSS is treating software as service, not a product, hence contradiction to most companies who try to sell product as a product. If you look at software engineering, it is inherently service: one needs to maintain and improve it constantly.
Now spreadsheets from MacroHard is nothing new, ever heard of Lotus-123?
There is always prior art, and before Lotus there were bunch of accountants doing it on a sheet. I’m sorry, there is no software innovation here.
Malcolm Mooney:
“Might I ask: what sort of information and/or signal processing is a computer theoretically incapable of doing?”
There are fundamental limits to what todays computers can do, please lookup Turing halting problem and Rice’s theorem:
link to en.wikipedia.org
These are the most basic problems that are unsolvable, there are even harder, needless to say.
Oh, and please read Church-Turing thesis that Michael Lenaghan is refering:
link to en.wikipedia.org
Which says that all computers (regardless of novelty and speed) are functionally equivalent (to Turing machine).
As lawers you might want to know Gödels theorem:
link to en.wikipedia.org
which says that any theory is either incomplete or inconsistent — it would be nice to apply it to rules of law and require the theory to be at least technically consistent (coherent).
But it seems that attorneys would prefer to see it complete (cover everything) and inconsistent (mess up some parts) rather than consistent (firm and coherent) and open (leave some things out).
Anony Mouse,
Please keep in mind that is easy for an entity to pose as a “FOSS developer” but in fact be a for-profit undertaking.
Suppose we organize distributed Team to develop FOSS-Spreadsheet-program. We aim to give our code away for free. We pay people on the Team at levels typical for non-profit entities, or, we don’t even pay them because they find the work gratifying in some way. Now we solicit donations. Several large companies, let’s say the government of France (GOF) and MegaCorp contribute $500,000 each to our effort. We buy infrastructure to organize our Team, give them tools needed for software development, we send everyone our team a smokin’ workstation work $10,000 each, so they can work on FOSS-Spreadsheet-program.
The team looks at CommercialSpreadsheet – the commercial spreadsheet program published by MacroHard, which the donors are currently spending $5,000,000 each year to license and use. The team carefully copies the user interface features (easy enough), copies the look and feel of CommercialSpreadsheet. They read the documentation and study the program to uncover most of the functionality. They figure out how all of the features work. They spend a year coding up FOSS-Spreadsheet.
In many ways, Team is like a corporation. They do a decent job. It’s not a facsimilie reproduction of CommercialSpreadsheet, but still missing some of the sophisticated features of CommercialSpreadsheet. They publish their source code and FOSS-licenses. It’s a big hit. Government of France and MegaCorp only buy a fraction of the licenses of CommercialSpreadsheet that they previously bought (for the power users), and the majority of their spreadsheet users now use FOSS-Spreadsheet-program.
Isn’t that a nifty arrangement? The world gets free software. GoF and MegaCorp save millions. They’ve managed to buy the ideas and creative work of MegaCorp for much less than it cost to produce them.
Sadly, the plummeting sales of CommercialSpreadsheet take a substantial hit. Laying off 90% of the American software engineers isn’t enough for MacroHard, and the company folds.
Sure, Team keeps working on FOSS-spreadsheet-program. But without the real thing to copy from, innovation slows considerably. FOSS-spreadsheet-program works, but the public no longer gets new and better CommercialSpreadsheet every year. Over time, the state of the art is not what it would have been.
Realistic? Yes. I’ve worked for a client who faced direct competition from an “open source” knockoff. The closer the knockoff got to the real thing, the less money they made. They started to file more patents and work harder to find out what customers wanted. They’re still in business and doing well enough (even won some major awards about 5 years ago). The opensource group, though, knows about the patents. The company lets them know about patents that might be infringed. The opensource group tries to avoid them. The opensource product is still pretty nice. Students and academia use it. Professionals buy the real thing for big bucks and produce entertaining things with it. It’s a stable and fair arrangement. Plus, the company knows that they have to build something better than the ordinary and routine. The money they make largely corresponds to their advances and creative contributions, rather than from having coded up ideas and algorithms available in textbooks and other unpatened public sources.
I don’t mean to say that there shouldn’t be opensource imitators or competition. I only mean to point out that there are real consequences of letting them “borrow” freely.
You can really continue this hypo full circle. Team members grow up a little. They get married, they have kids and other things that require money. They decide that FOSS-Spreadsheet is so good they really should just sell the next version. They turn into a for-profit company.
Now, TeamB comes along and decides that people shouldn’t have to pay for FOSS-spreadsheet-program. They start to imitate it …. and so on and so on and so on.
We could make up some communities within areas of expertise, perhaps establish some certification process and just vote: electronic voting must be cheap nowadays, quick and efficient and we get to listen to interested majority… wait, is it already patented?
Diebold software is kept as a trade secret, IIRC. Have fun digesting that, teabaggers.
Red Monkey:
“This should come as no surprise. The whole point of law is to make sure everybody is treated fairly (because people who feel unfairly treated can do nasty things). If the law relies on technically unsound arguments but nevertheless manages to keep enough people happy most of the time, it’s working just fine. A fool’s paradise is still paradise.”
It’s not that surprising, but why waste so much time on this pseudo-intellectual discussion (and admitting it) when we can just vote? We could make up some communities within areas of expertise, perhaps establish some certification process and just vote: electronic voting must be cheap nowadays, quick and efficient and we get to listen to interested majority… wait, is it already patented?
As an aside, within the past biweek I’ve done 101s in four cases that fall into the “is tied to a particular machine but does not impose a meaningful limit or does not involve more than insignificant extra-solution activity”. Each case had claims fall into the 101s that did not contain the words “method” or “process” in their preambles.
Hammertime for hogwash.
Moreover you have cited no evidence against my claim.
I am prepared to produce expert witnesses testifying to prior art. The youngest, no doubt, would be happy to demonstrate a practiced hand.
“Lack of novelty. Rejected”
Rebuttal to your failure to show all elements. I don’t recall my hand having ever turned around and hit you upside the head. Moreover you have cited no evidence against my claim.
MM alienates another ernest blogger. Put another in the troll column.
Malcolm, I learned that I chose the right word. Does that qualify? 🙂
snark·y
1. Rudely sarcastic or disrespectful; snide.
2. Irritable or short-tempered; irascible.
Oh well; life is a learning process
Here’s $100 says you didn’t learn diddley.
Malcolm:
It sort of sucked having to wade through your snarkiness. Oh well; life is a learning process.*
* Pat. Pending
Anonymouse
“Attorneys don’t care about the technical details/truths or how things are implemented. All they care about is who gets compensated for what and whether it is “fair”.
This should come as no surprise. The whole point of law is to make sure everybody is treated fairly (because people who feel unfairly treated can do nasty things). If the law relies on technically unsound arguments but nevertheless manages to keep enough people happy most of the time, it’s working just fine. A fool’s paradise is still paradise.
Michael L your summary is correct
Thanks. It sort of sucked having to wade through your windbaggery to figure that out, though.
overlooks the point that the tool has uses beyond 101.
I “overlooked” that “point” because it’s irrelevant to my question. I also “overlooked” mentioning the weather outside my window, for the same reason.
It’s a little surprising that naming the process used in a process claim could be considered “jumping the shark.”
Anyone who brings up “Shewhart cycles” in the context of a discussion about medical diagnostic patent claiming is begging for a smackdown. Get over yourself, dweeb.
6:
Lack of novelty. Rejected.
Hierarchy:
You’ve missed a fundamental point. The basic work that a Core 2 Duo chip does can be done by any device capable of computation. “Capable of computation” has a precise mathematical definition–and a very low threshold. Anything you can compute on one you can compute on any other. And they don’t have to work in the same way; they don’t have to emulate each other’s hardware, for example.
Why does it matter? It matters to Transmeta if you’re thinking about competing against Intel by producing a chip that can run anything a Core 2 Duo can. It matters to Intel if Transmeta can sell a Core 2 Duo-compatible chip that erodes their market (and their profits). So if there’s a patent on the Core 2 Duo does it block Transmeta or not? The issue has nothing–nothing–to do with how a Core 2 Duo is implemented. That’s completely irrelevant.
Indeed, you say that a computer is just a device, without any math in it. I understand what you mean, but you miss the perspective that the device was created in order to process math–i.e., information. That matters. That’s why I can build one chip that does what another one can do even if they’re built on completely different principles.
Software patents represent exactly the same issue–without the benefit of ever having a physical manifestation.
“How can the overall process be “new” if it has an existing name? ”
A process of smacking Michael upside his head comprising:
turning 6’s hand around
striking the backside of Michael’s head.
(add brass knuckles to get around bilski lol)
Assuming you’ve been smacked upside your head at least once in your life there is an example.
Malcolm:
You meant Prometheus, not Mayo. Otherwise your summary is correct but overlooks the point that the tool has uses beyond 101. It isn’t just a 101 filter.
It’s a little surprising that naming the process used in a process claim could be considered “jumping the shark.” How can the overall process be “new” if it has an existing name? I think the fact that it does raises the threshold for any process claim which is simply a feedback process.
MM, runs away. Won’t define abstraction.
The troll is off to a new tread. Tsk. Tsk.
Michael: “What I’m trying to do is explain the boundaries in a consistent way. For example, you can’t patent E=mc^2. But what if that math was hidden inside (i.e., implemented as) a piece of hardware? How would you identify it as math and not hardware?”
Michael, why does it matter? Would we look to a method of refining gasoline, let’s say improved cracking, the method includes some numbers/ratios/etc. We pull out the math, and then somehow say patentability of the method cannot be based on the math? Or we say others can use the math in any way they want?
Here’s another way to see it. The device you pose does not have any math per se. There are no theories, there are no numbers, there are no algorithms. There is a machine. It does things. It does them a certain way. We can describe that way with math (as in a claim), but the math is not performing the actions of the machine. The machine is just a complex set of moving/changing parts. Just like the Newtonian formula for gravity does not pull a feather to the ground. The formula is a way to describe what we can observe and measure about matter.
As has been said here many times, all patent claims have abstract concepts within, whether labeled as math, ideas, laws of nature. But the claim, if valid, must be limited to a real world physical thing/process (that meets all the requirements for patentability). A valid claim does not cover only pure math. It must cover real things acting in real ways that can sometimes be measured and described with math, but a real world machine/process nonetheless.
“Here’s a concrete example. Transmeta was working on a chip that could emulate other chips in microcode. Would a patent on a Core 2 Duo prevent Transmeta from emulating it? (Again, we’re talking patents here, not copyright. And I’m assuming that Transmeta hasn’t stepped on other Intel patents in the process.) By my test, the answer is “no”. My test–which is empirical–lets you identify the “math” buried within the Core 2 Duo.”
The question is unanswerable. One does not obtain a patent on a label like “Core 2 Duo”.
Whether an emulation infringes a patent would depend on the claims of the patent and what the emulation does. An emulation-CPU would presumably operate like the CPU being emulated. If there were claims on how the emulated CPU functioned, e.g., certain ways that information is shared on a bus or certain ways of using the CPU’s cache, and if the emulation-CPU did this, then that could infringe. If there were a patent on a hardware feature of the emulated CPU and the emulation-CPU did not have that feature, then it would not infringe. It’s really impossible to say.
I think the point you’re getting at is whether it matters if a CPU is emulated or real. It would depend on the claims. The mere fact of emulation shouldn’t alone excuse what might otherwise be infringement.
Anyway, the emulation aspect of the hypo is unnecessary. Why not just say the AMD-X chip? Let’s say the Core 2 Duo has several instructions for virtualization and the instructions cause certain processes to occur in the CPU (let’s say some movements of memory or changes in protection). Now lets say the AMD-X is a different device with different architecture. Nonetheless, AMD looks at those instructions and says, “good idea, let’s do the same thing”. The AMD-X is modified to have instructions that when invoked do the same type of memory manipulations. You might say the hardware is different (arguable), but what does it matter?
Same with the Transmeta. If they manipulate memory in the same way, what matters if it is an emulation?
Michael, you really need to shrink your windbag by an order of magnitude. I’m not interested in what the court said in the Mayo case and you pretty much jumped the shark with your reference to a “Shewhart cycle”.
I think the cliff notes version of your novel is “Yes, the Mayo claim passes my “effective test” for 101 eligibility because it recites a step that can’t be carried out with pen and paper (the determining step). But there might be a separate utility issue under 101 with this claim.”
Do I have that right?
Michael Lenaghan,
I am in the same boat as you, except IANAL.
I had my share of discussions on this blog, interesting people, really.
But here is what I learned:
Attorneys don’t care about the technical details/truths or how things are implemented. All they care about is who gets compensated for what and whether it is “fair”.
In case of patents, I tried my own (technical) reasons why software patents are incoherent with this and that, found out a few tricks how attorneys make claims to be compatible with previous cases, and there’s always at least one response: where would we be if not the patent system? would this company have had created that Raven if not for patent system promised compensation?
So I have to agree: creating (novel) software takes time and patents is one way of getting compensation.
Law is dominated by attorneys and it is quite easy to make them believe that somebody has spent awful amount of brilliant thinking into production of this and that, and there was no other way to achieve but through “arts”, thus their model deserves a merit to be compensated with a patent.
And the definition of “arts”, “useful” and “fair” in this soup is historically shifting with majority.
Malcolm:
I believe that Prometheus would fail a similar analysis, although the analysis might add an element which is present in LabCorp but not quite as visible. … I think the additional element gets added to the analysis because the claimed process is more “complex” than that described in LabCorp.
I think I understand those issues a bit better now. In both cases the overarching goal of the processes seems to be “feedback”–basically, a Shewhart cycle. Prometheus seems, at first glance, to be more complex simply because LabCorp. doesn’t cover the full cycle. But in both cases the steps of the process are fully constrained; they have to be applied in a specific order.
I think the “obviousness” arises out of those two things: feedback is common in any iterative process and the feedback steps have to be performed in a particular order.
That in turn explains why the process becomes pre-emptive if the claimed steps consist of effective methods and nothing more. It implies that you’re trying to capture those steps “in the abstract”. Since the sequence of steps is both known and constrained, capturing claimed steps in the abstract leaves you with no other path to the goal.
Now, Prometheus also specifies thresholds. I’m not sure I fully understand the issues involved, but it seems to me that you can’t capture the fact that water freezes at 0 C. You can make use of that, but you can’t own that. On that basis I think Prometheus could make use of the thresholds but not capture them as part of the patent.
Good luck playing World of Warcraft on that Turing-complete loom, guys.
That kind of comment has appeared a few times on this thread. It confuses two issues.
First, what we’re talking about is how to detect the spring in the mousetrap–i.e., the math that can’t be patented. For example, the force that makes an apple fall on your head is the same force that pulls a star into a black hole. The two examples aren’t equivalent *things*–but the underlying law of nature is.
Second, no one has made the claim that a specific piece of hardware can’t be patented. So, yes, of course you can patent a Core 2 Duo.
What I’m trying to do is explain the boundaries in a consistent way. For example, you can’t patent E=mc^2. But what if that math was hidden inside (i.e., implemented as) a piece of hardware? How would you identify it as math and not hardware?
Here’s a concrete example. Transmeta was working on a chip that could emulate other chips in microcode. Would a patent on a Core 2 Duo prevent Transmeta from emulating it? (Again, we’re talking patents here, not copyright. And I’m assuming that Transmeta hasn’t stepped on other Intel patents in the process.) By my test, the answer is “no”. My test–which is empirical–lets you identify the “math” buried within the Core 2 Duo.
Finally: Anyone with any imagination should be curious to see what World of Warcraft would look like running on a loom. Maybe it would come out looking like a Greek tapestry. 🙂