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“It’s just math.”
I keep seeing this comment.
The fourier transform is a long, drawn out calculation that gives a frequency representation of a time domain signal. This is very, very important is signal analysis (electronic communications). It is also very compute intensive.
The fast fourier transform was developed and first implemented in hardware. It greatly accelerated computations. Was this patentable?
The FFT is now implemented in many software based signal analysis systems (fourier is still a lot more compute intensive and introduces time lag). If the hardware implementation had been skipped (i.e., no prior art), would this have been patentable?
bj, there is a difference between circuits and firmware that are part of the computer and software. Almost everyone here ignores that difference, but it is material and important.
Mano says they are equivalent. Please respond to one of the greats in computer architecture.
NWPA – You may have posted this earlier, but do you have a particular citation to Mano on hand that folks can reference and consider?
Night, when actually operating, there may be no effective difference in functionality.
But, circuits and firmware define a new machine. In contrast, with software, an old machine is being used.
I would have stopped with “circuits”, as firmware is software, and all actions that any firmware can do was already present in the circuits.
jesse, I was thinking of micro-instruction type computer architecture.
What do you think if micro-programming?
I was too (having worked a bit with the J-11 processor used for LSI-11).
It is still software, though most microcode is written to a ROM, it is still software.
Thanks.
And this just makes the point that the anti-patent folks don’t want to draw a line at all.
no. There is a clear line.
Use circuits – get a patent.
Use math – not patentable.
Jesse, but the circuit patents are claimed structurally – not just claiming the result — the math.
In contrast, software patents claim the result, the math.
Big distinction here.
That is why most programmers and computer scientists are against patenting software.
Wrong. Many of my circuit patents have blocks that describe the function instead of the individual transistors. And functional claiming is well settled law.
PS: There’s a difference between function and result. You’re confusing them. The function is the FFT in all cases. The result is a time domain signal represented in the frequency domain, regardless of whether the hardware, ASIC, MICRO, or software does the calculation.
Now what’s your distinction?
Bad joke, one cannot claim novel structure in terms of its function.
One can claim old elements functionally.
One can claim new structure as a combination of old elements, each of which is claimed functionally.
One simply cannot claim new structure entirely in terms of its function.
If I have a new circuit that performs an old mathematical function, I simply cannot claim a circuit that performs the mathematical function. I actually have to claim the circuit structurally. I hope you would agree with this.
The same is true even if the function is new. I cite O’Rielly v. Morse for this proposition.
And this is why claims to structures are different from claims to functions. They must claim the novel structure, they simply cannot claim any structure that might produce the novel function.
In contrast, almost all programmed computer claims simply claim the function — because there is no new structure.
Wrong again. You surely can. You break down the blocks of the system (circuit or device) and instead of talking about every component inside the block, you define it by what it accomplishes on an incoming signal with respect to the output.
This is the same thing that happens with good software claims.
It is function claiming of each of the structures. And it’s a perfectly allowable way of doing it.
BJ, a combination claim consisting of know circuit elements each defined functionally is just fine.
Of course, that is not I am talking about. I am talking about claiming new structure functionally, and not as a combination of old elements.
I believe he actually says “Hardware and software are logically equivalent”, though this is from various presentations that appear to be using his book. Unfortunately, I don’t have that book, and I wouldn’t say “greats” – Knuth is a great.
“logically equivalent” is not physically equivalent.
I wouldn’t say one of the “greats” in computer science. Donald Knuth is one of the greats.
Donald Knuth is also against software patents:
link to archive.org
Or one easier for browsers:
link to pluto.it
Thanks Jesse. Good links.
So you would preclude all patents directed to new uses of existing compounds or objects as well, correct?
I like where this is going.
Different target. physical compounds and objects aren’t abstract.
But I think they may be under attack from other quarters.
I think they are being attacked as patenting the obvious… based on the previous patent, but not adding anything other than the idea to use it for something else.
What a wonderful response. You just said that the law of nature exception shouldn’t be used and that we should use 103 instead. You just made the same argument that the guys working with startups have been saying about “abstract idea” and software patents being invalidated under 103 instead of 101.
You’ve completely flipped sides on the logic here based merely on the subject matter. Nice demonstration.
No. I just stated what I have read.
link to arstechnica.com
A patent troll called Lumen View Technology got stopped in its tracks last year after it sued Santa Barbara-based startup FindTheBest, then asked the company for a quick $50,000 settlement. It lost its case, and has now said it won’t even bother appealing….
[T]he judge in the case ruled that it was nothing more than a computerized twist on an ancient idea. The patent delineated a process of having parties input preference data, and then an automated process of determining a good match. “Matchmakers have been doing this for millennia,” wrote US District Judge Denise Cote in her order invalidating the patent.
Things got worse for Lumen View when its lawsuit became the first case in the country to apply new fee-shifting standards created this year by the Supreme Court. In May, Cote ruled that Lumen View would have to pay FindTheBest’s costs, as punishment for seeking a “nuisance settlement” and then threatening “full-scale litigation” with “protracted discovery.”
Great result.
I note that my challenge to anyone to show me a claim that cannot be rejected under 102, 103, or 112, but has to have 101 to be rejected has gone unanswered. And yet this is the main supporting argument of the anti-patent movement.
I note that you you have gotten at least one response and haven’t been entirely successful in explaining how a CD player with a CD in it hooked to speakers playing a particular genre of music can be rejected without §101.
You argued Alice-style that PTO can separate the unpatentable genre of music and then the CD player can be examined for making a significant novel advance on its own. But I’m pretty sure that Alice was based on §101 and wouldn’t apply without it.
No I didn’t argue in Alice style. I told you that the music does not affect the operation of the stereo. There is no functional relationship between the music and the operation of the stereo. Therefore, it would be obvious to add the element or the examiner can say that there is no functional relationship so that it will not be given patentable weight since it has no effect on the machine.
That is no different then saying wherein a Renoir is attached to the top of the stereo.
I made these points and you have not addressed them.
You must be mistaken…. CD+player creates a new patent opportunity since it MUST create a new machine for any disk put in….
If the music DOESN’T create a new machine, then neither does software.
Sure it is a new machine but an obvious one.
[new CD + old CD player] is a new machine
That would surprise most people, I think.
but an obvious one.
Don’t you need more facts? You need to consider the secondary factors, don’t you? What if the CD player and the CD are sold together (exclusively) and it vastly outsells the CD player sold by itself? Surely that must be considered. Or not?
Obviously I assumed you were extending jesse’s hypo where the CD player is old and the music is new.
Then so is a computer with software. And thus not patentable either.
No because it is like a component that adds functionality to the operation of the machine.
The CD does contain information – it doesn’t contain raw sound. The directives within the code direct the recreation of the sound.
That IS new functionality according to you.
Yes, it is constrained to the computational domain of audio.
Just as the software is constrained to the computational domain of math.
Jesse, it has to do with a functional relationship with the operation of the CD player.
When you put in music the CD player suddenly is not enabled with new functionality to drive or detect a tumor.
Think Jesse. Process information.
Any computer is merely a finite combination of discrete hardware components wherein each have a finite number of operating parameters. The interrelated operation of these finite number of discrete components in any given finite period of time is also finite, and determinable.
A given piece of software presents as merely one of these finite operational permutations of the underlying hardware.
It is unclear how one can posit that one of these operational permutations presents as an improvement to the underlying finite combination of discrete hardware components. No underlying components have been added or subtracted. All components are operating within their original parameters.
Night, “it has to do with a functional relationship with the operation of the CD player.”
It is constrained to the computational domain of audio reproduction… Like I said.
The computer is also constrained to the computational domain of math. Just defining a new math function doesn’t change the computers constraint.
Try adding a real “capability” to the computer… Such as a random number source.
Has the system suddenly gained a new hardware function? no. The software for random number generators cannot provide that. That is why they are called “pseudorandom”. They aren’t really random. Restart them, and you get the same series of numbers.
A real random number generator requires reality. It requires a physical measure. And each time you start them you get a different series of numbers.
Thus, software cannot add something to a computer that didn’t already exist within that computers capability.
Curious, using your analysis, every electronic device (save for those that incorporate novel components) is just one of a finite combination of possible arrangements of old electronic components. Those components interact in determinable ways.
Ergo, every electronic device is unpatentable. You can’t have it both ways – either a machine comprising old electronic components to manipulate electronic signals is patentable, or it’s not. If a purpose-built circuit for doing X is patentable, then so is doing X on a general-purpose computer. On the other hand, if doing Y on a general-purpose computer is unpatentable, then building an ASIC or using a combination of old transistors and wires for doing Y should also be unpatentable. If you disagree, please describe the dividing line — where and when does an electronic machine cease to become patentable based on the particular set of components within it?
Someone else just used the example of chemicals, and the analysis applies equally well there: every chemical is one of a finite arrangement of atomic elements. Does that mean every chemical is therefore unpatentable? Do you intend to use mathematics to disprove the whole of the patent system?
And jesse, to your “autopilot” example, patent eligibility does not (or should not) hinge on whether a given machine can also be used for other purposes. A claim to a machine that performs A B and C does not preclude patentability, even if it is possible to build both a machine that does exactly A, B, C and nothing else, or a machine that does A, B, C, D, E, F, and also knows how to execute software for Microsoft Office and Angry Birds. Are you suggesting that patent eligibility hinges on how inflexible and purpose-built a particular machine is? According to Wikipedia, “modern autopilots use computer software to control the aircraft.”
Big difference between the math…
and the emulation of math.
You can certainly patent the emulation of math, but you should not be able to patent the math.
“A claim to a machine that performs A B and C does not preclude patentability, even if it is possible to build both a machine that does exactly A, B, C and nothing else, or a machine that does A, B, C, D, E, F, and also knows how to execute software for Microsoft Office and Angry Birds. Are you suggesting that patent eligibility hinges on how inflexible and purpose-built a particular machine is?”
The problem is patenting math.
The problem with that is that a patent for “A, B, C”, then prevents you from “B,D E or F”, or any other software because B is now an infringement.
That was why ideas aren’t patentable – only devices. Math was also excluded from patents… yet it is being patented anyway.
A CPU was invented to perform math. That is all it can do. The only things a CPU can do IS math.
Software can only describe how an autopilot should work.
You don’t patent descriptions, you patent the device, the hardware. Thus the same description can be used to create a simulator and without infringing…
SlotGuy where and when does an electronic machine cease to become patentable based on the particular set of components within it?
When you cease to recite in your claim the distinct objective structural features of the machine that distinguish it from the prior art and instead recite only the “new functionality.”
jesse: “A CPU was invented to perform math. That is all it can do. The only things a CPU can do IS math.”
A CPU is just a very small, dense collection of transistors and other electronic components. It is logically equivalent to any other collection of transistors and other electronic components. If a known CPU performing new function X is unpatentable, then so is any other collection of known electronic components performing new function X.
Do you believe all electronic devices are unpatentable unless they include newly-invented components?
If not, please provide a cogent point of differentiation between a collection of electronic components bought from parts bins at Radio Shack performing function X, and your iPhone performing function X, for the purposes of patent-eligibility.
Unless you believe, as MM apparently does, that neither should be patentable, in which case you must also believe that an old machine with improved functionality is nevertheless not “a new and useful improvement to a machine” per section 101. Is this what you believe?
You said “You don’t patent descriptions, you patent the device, the hardware.” But that’s only a small fraction of what section 101 actually says. Its plain language is far broader than just “new machine” — it includes in the realm of patent-eligible things “process” and “improved machine.” Why do you ignore those terms?
Its plain language is far broader than just “new machine” — it includes in the realm of patent-eligible things “process” and “improved machine.”
The Supreme Court has interpreted 101 more narrowly than you.
“Process” doesn’t include all processes (let me know if you believe otherwise and I can set you straight).
“Improved machiens” doesn’t include all “improved machines” (let me know if you believe otherwise and I can set you straight).
please provide a cogent point of differentiation between a collection of electronic components bought from parts bins at Radio Shack performing function X, and your iPhone performing function X, for the purposes of patent-eligibility.
Depends on the claims. Are those your claims? If one is claimed in distinct objective structural terms and the other is claimed only by reciting an old device and a “new functionality”, that’s a huge distinction.
Unless you believe, as MM apparently does, that neither should be patentable
Uh… what? Depends on the claim. Stay out of the mud, SlotGuy. I won’t let you misrepresent me.
in which case you must also believe that an old machine with improved functionality is nevertheless not “a new and useful improvement to a machine” per section 101.
Again, the eligibility depends on the claim. An old iPhone with some instructions printed on the side panel might be “improved” in the minds of some. But it’s not eligible for patenting. Are you starting to “get it”?
MM, no misrepresentation was intended: you said if a claim “instead recite[s] only the “new functionality”” then it is not patent-eligible.
To me, that indicates you believe that old computer hardware or electronic equipment performing new functionality is outside the realm of patent-eligibility. I don’t think I’m reading that wrong.
But patents have issued on many new uses for old things, especially chemicals (e.g., melamine foam or urea hydrochloride). Why are electronic machines different from other machines or compositions for this analysis?
Slot, the new use of a old machine is patenable, if at all, as a process. I know the PTO has issued issue millions of patents with claims to computers running new software, but, in truth, they are all invalid unless the programmed computer is claimed as part of a larger apparatus or process, as in Diehr.
I have no idea whether the PTO/Federal Circuit is allowing patents on old compositions just because a new use has been found. I think the law requires a process claim.
MM, do the PTO grant patents on old compositions when a new use is found? Does the maker of the old composition infringe. What if he sells the old composition?
In truth, I don’t understand how one can re-patent something old.
Slotguy:
“A CPU is just a very small, dense collection of transistors and other electronic components. It is logically equivalent to any other collection of transistors and other electronic components.”
You left out that it is a specific ORGANIZATION of a small dense collection of transistors and other electronic components.
It is not logically equivalent. Your description of a “collection of transistors and other electronic components” is no different than a bag.
“Do you believe all electronic devices are unpatentable unless they include newly-invented components?”
nope. Each device is a composition of matter, specifically crafted to perform a function. The function of a CPU is math. Patent that composition, not the math it happens to interpret.
Others have answered as well as I.
The CD player operates the same no matter which of my 100 CDs I put inside. Different CDs =/ difference in the way the CD player operates.
I agree so no new functionality to the operation of the CD player. So obvious variation of the CD player. Just as if you add, wherein the Cd player has a Renoir attached to it.
And in the same way, no new functionality is added to the operation of the computer. It is designed to carry out math operations… So no new operations are created.
Are you sure you took Theory of Computation? Did you skip Turning machines?
No.
But evidently you skipped reality.
Nothing was added to the hardware via software that wasn’t already there.
Except the capability to perform new operations or old operations in new ways (i.e., a patentable method).
Even that capability was already there.
It was DESIGNED to implement math functions.
That’s interesting because my CD player operates differently depending on which CD I put in. Sometimes music comes out of the speakers, sometimes nothing, sometimes spoken words. The information displayed by my CD player and the options presented also differ depending on which CD is put in.
Maybe you’re using some special definition of “operates”?
How’s that? The function isn’t changed at all. It operates exactly the same given the two different inputs.
It operates exactly the same given the two different inputs.
Huh. Very different from my CD player. Maybe you’re using some specia definition of “operates”.
It would make more sense if you understood how a CD player worked. I promise.
Compare CD versus Blueray – no patentable (or patent eligible) advance…?
I will also remind people that the often the first step in an innovation that is without doubt worthy of patent protection (see Christensen’s Disruptive Innovation theories) involves changes that actually TAKE A STEP BACK in the perception of an advance. So we can avoid the arguments that only linear improvements are worthy of patents.
NWPA: There is no functional relationship between the music and the operation of the stereo.
My CD player doesn’t play music unless there’s a CD in it.
Seems like a “functional” relationship to me.
Maybe you have a special definition for “functional” that you’d like to share with everybody.
Your CD does not affect how the stereo operates. Software does.
Does your music give the stereo new functionality?
Does your music give the stereo new functionality?
No CD, no music.
New CD, new music.
Seems pretty “functional.”
But maybe you have a special definition for “functional” that you aren’t sharing with us.
You can dance around this all you want. But that is not new functionality to the operation of the CD player. Anymore that saying adding wheat to a machine that processes wheat adds functionality.
No wheat no wheat processing machine.
You arguments are so transparently devised to keep pushing your arguments beyond any reasonable interpretation of science, logic, and patent law.
You can dance around this all you want. But that is not new functionality to the operation of the CD player. Anymore that saying adding wheat to a machine that processes wheat adds functionality.
I’m not dancing around anything. I’m asking you to define “functionality” and you’re refusing to do it.
I am not in the business of playing your NWPA do lots of work explaining this to me.
I think the analogy of the wheat processing machine is sufficient to require you to counter that analogy. Tell us what the differences are between the wheat and the music.
NWPA do lots of work explaining this
If it’s “lots of work” to tell everyone your definition of a term that you are relying on for your argument, then it appears that you don’t know what you’re talking about.
Your CD does not affect how the stereo operates.
Sure it does. No CD, no music.
No wheat no wheat processing.
it would be obvious to add the element or the examiner can say that there is no functional relationship so that it will not be given patentable weight since it has no effect on the machine.
That is no different then saying wherein a Renoir is attached to the top of the stereo.
But putting a Renoir on top of the stereo might inspire someone to buy some French music from the same period as the painting.
Seems pretty “functional” to me. But maybe you are using a special definition of “functional.”
As in functional related to the operation of the stereo.
Gee, that is so hard to understand isn’t it? Or is this Vinnie I am speaking with?