There seems to be a general misconception about the doctrine of patents. Revisting them would help answer some of the questions raised here
1. Patents are a not a right under any country's law. They are a privilege granted by a Govt. to ensure that innovations in certain fields is not held back due to lack of moneraty incentives. In in certain cases, the WIPO allows compulsary grant of patents when there is a overriding national interest.
In the case of SW, it is nobody's case that innovation is being held back due to lack of patent support. If anything, patents are holding back innovation. Neither Google nor Faceboor nor Twitter got to where they were by asserting patent rights. Nor do the basic components of the web, Linux, Mysql, Apache components, gnu tools, just to name a few, rely on patents. So the basic economic imperative to provide patent protection is simply not there. Apple and MS assert laughably few patents against these pieces of SW. In case anbody cares to think about it, Apple OS is a BSD + MACH hybrid, both patent free.
2. Mathematical patents are not allowed in any jurisdiction. It is a know fact that any piece of SW can be modeled either via various theorem proving tools to exact mathematical formulae. Anybody who is familiar with the theory of computation will not doubt this. But just to show this assertion is valid, see the complete model of an OS done in formal proof.
The whole OS is a set of mathematical constructs.
In fact other than I/O, the whole basis of lambda calculus is a calculus of functions. So as long as it is math, however innovative the solution, patents cannot be granted. So if come come up with a better alternative to iDCT for video compression (you have to admit something called discrete cosine transform is math), is still math. Video compression thus operates fully in the realm of math. You can argue that using it for video constitues someting outside the realm of math. But does that mean I can ship a math library unencumbered by patents and its is OK for the user to use it for viodeo compression. You see how untenable SW patents become.
3. Incremental improvements are typically not patentable and in SW it is next to impossible to find out all the prior art from which a particular design drew its inspiration from. It is kind of like quantum versus newtonian mechanics. As long as you operate in large, macro sized chunks you can hope of doing some reasoning. But the instant you have to examine gazillion wierd sources for prior art, a normal programmer cannot possibly figure out patent violations. In other words, there is no satisfactory way to run the system if you allow SW patents. That in my book is strike three !
Patents are for things you can hold in your hand or, at least, have a physical existence either in hardware or software that affects the external hardware. Patents that cover a numinous exchange of undefined ideas aren't patents - they are junk that clogs up the system and more food for trolls.
Agreed. At one point I accepted the argument that strong patent protection was the mark of an advanced business environment, but I now realize that too much of it is the mark of one that is in decline. Having a good idea at some point in the past doesn't mean that you get to live off it indefinitely. That also applies to Disney, particularly since they are mostly living off of stuff that they stole from the public domain in the first place.
One of the problems with the fashionable Intelectual Property concept is that it commingles patents, copyrights and trademarks. Disney is all about copyrights---I don't think they have many patents, especially in the high tech area. Having said that, they do indeed make excessive use of various extensions granted in the copyright law, in my opinion.
I will grant you a point that both patents and copyrights are being stretched and abused beyond their original role. The basic copyright and patent protections are reasonable---it's just all the amendments and tweaks that the influential players lobbied for and procured that are hurting us.
I think judge Thomas put a pubic hair in my software patents.
This decision provides no guidance whatsoever on what is "too abstract." Why should software be treated differently from other methods? The patent statutes clearly allow methods to be patented and isn't most software just methods performed on a computer?
The Supreme Court sidesteped precedent in Diamond v Diehr that stated that the novelty of claim steps should not be considered when evaluating whether a claim is statutory.
They used Mayo v Prometheus as a template and seem to say that automating a manual process is not sufficient to meet the requirements of 35 U.S.C. 101. Why they didn't use 103 is anyone's guess.
The court here conflated the issues of obviousness (35 USC 103) and statutory subject matter (35 USC 101). They are supposed to be two separate inquiries. If these claims were so conventional, other than the addition of the computer, they should have been invalidated using 35 USC 103 as being obvious. But the claims were not that obvious in my opinion. By using a computer, the order of certain steps was changed due to the speed of the computer.
I have included a more in depth analysis of this case in my history of software patents at patentsusa.blogspot.com
" The justices ruled that the software was generic and did not make technical advancements or improve how the computer functioned."
It talks about anything that does not improve the technology behind how the computer functions today would not be eligible for winning a patent. The statement itself sounds very broad to me. The same could be applicable for the hardware too...correct? I am not sure if I have understood correctly...e.g. how about innovations/novelties related to how the data is presented to the users?
This will start the debate on what can be patented and what not. I guess its a tricky situation for software and hardware systems. But whatever is the case patent lawyers and engineers will always remain busy.
The latest HW languages are Haskell derivatives and Scala ! You can realize them in SW or HW at compile time. So by looking at a design you literally cannot distinguish HW from SW.
So if SW cannot be patented, HW shoudl also not be allowed to be patented. I am not talking about circuit level and semicon level techniques but high level design. In fact Prof. Arvind of MIT has a wonderful ppt titled, why HW design should not be left to EEs ! Basically high level HW design is really a SW discipline.
IMO the most intelligent decision on the "software patents" issue was Diamond v. Diehr, which as I understand it (IANAL) stated that software could be patented as part of an invention that passed the "machine or transformation test". That is, the invention as a whole had to be a particular machine (not a generic computer, though it could have a generic computer as a component) or it had to transform matter in a tangible way. In Diehr, the patent was for a rubber curing process so it involved a tangible transformation.
Unfortunately, Bilsky and now Alice have muddied the waters, replacing the fairly simple and concrete "machine or transformation" test with whatever "abstract" means to the courts.
Personally (again, IANAL), I see that the US Constitution states that the purpose of patents is "to promote Progress of Science and Useful Arts". IMO each patent awarded should clearly show that its award in fact promotes Progress and not the opposite. IMO too many patently ridiculous patents are awarded, and their presence gives their owners too much opportunity to retard Progress of Science and Useful Arts.
IMO, the only time USPTO should award a patent is if the invention is something that took a great deal of time and/or money to develop, but once discovered is cheap and quick to copy. This is never the case with software -- if it takes a lot of time to create the original software, creating a duplicate from scratch would take approximately the same time. Sure, someone could copy the binary, but then they'd be infringing copyright. For software, IMO copyright is plenty of protection.
RTL-based inventions are an interesting question. Here's my IANAL opinion: while in some sense an FPGA is like a general-purpose computer, in most cases it's part of a specific machine so the overall machine can be patented under Diehr, and this would allow the RTL to be patented for that specific machine. OTOH, if the FPGA is a generic component of a generic computer, such as the FPGA in Bunnie Huang's open-source Novena laptop, then IMO it's not a specific machine and RTL written for it would be like software and not patent-worthy.
>> Don't we in the tech industry think of hardware and software distinctions as blurred these days? A chip is several lines of RTL code.
For digital systems, Yes. For analog systems, NO. However with time the software will eat more of the hardware. The fact remains some of the coolest ideas are evolving out of software and in that case, that is the best place to be. You can have the best hardware but only the best software will make people connect and see the best in it
>> , I totally agree with you. Software is as important as hardware for optimal systems performance.Some times the performance is limited by the software and not hardware.
That is why they have valuations in multiples better than IC startups becuase they make all the difference. Hard to see any IC firm at startup phase with $250M valuation. Yet, we see these web startups in the north of billions of dollars.
>> I think that patents are necessary to prove the product of an individual or an organization.
No, patents do not prove anything. It is more of a commercial vehicle than a technology tool. It offers exclusivity which provides incentives to innovate. I support patents but I hate the way it works at the moment because if Pythogoas, Euclides etc had all patented their equations, we may not have modern science as we do today
>> Similarly if C was patented then we shouldn't have seen so much of growth in software development.
It is the chicken and egg question. The true fact is that the software lawyers are smarter than their hardware equivalents. When you buy Windows and want to build an application on it, you pay Microsoft license on the product. But Intel powers the OS for Windows and they simply pay-out for the hardware. Intel could have also asked for royalty for OS running on their hardware. Oracle gets money from banks running banking applications powered by Oracle. Yet, IBM and co that supply the server do not (only puchase revenue).
Operating Systems are not abstract ideas like a push button that represents a way to interact with the system (remember abstract window toollkit), that's we missunderstood of a patent, applications are abstract ways to represent a property of an artifact that consumes resources or allocates them, software creates an interface with hardware in the most pure form, which is patentable because it's a physical artifact, software systems are complex tools that represent not an abstract idea, but a ***physical***description of a processor, that can be a digital signal processor, or a logical inference machine system like a type system that analyzes an abstract machine (the program) in a logical inference machine from the point of view of how a real machine must be executed under program control, so it gives the control steps for a program, and so it's part of the operating system. Unfourtunately typeless programming languages such as assembly or other languages can't control at any point of it's execution that and depend on human control which is not something patentable, so computers in general sense are not patentable because they don't represent a useful trustable artifact for society unless they are correctly defined and automatically checked, As systems depends in all cases of a power control unit, such device is patentable and it's biggest headache for system designers
The title of this article, as well as at ther very least the opening paragraph are seriously misleading, if not outright incorrect. The ruling by the Supremes pertains only to the particular software covered by the Alice Corp. patent. In particular former USPTO Commissioner of Patents Davis Kappos states "From the perspective of the parties involved, this week’s Alice Corp. v. CLS Bank decision held that a process that lessens settlement risk for trades of financial instruments is too abstract for patenting. However, to the leagues of interested onlookers holding their collective breath across our country and indeed around the world, the Supreme Court’s unanimous ruling subtly conveyed a much more significant judgment: software, as a class, is every bit as worthy of patent protection as any other medium in which innovation can be practiced." See http://patentlyo.com/ for further discussions and comments.
I agree the title is somewhat misleading as it relates to the case that is being discussed in the article and NOT at all for software patents in general (which are not granted in many countries). The supereme court already went past the machine-or-transformation test in the well-known Bilski vs. Kappos / State Street bank case as others also quoted below. It left the tough part to the patent applicant and the examiners to exercise rigorously the patentability clauses under sections 101, 102, 103 & 112 in USPTO's MPEP. The arguments made from each side in the interpretation of these sections to the patent application in question holds the key whether that patent gets approved or not. It seems to me that this process has not always been objective with USPTO when you see some patents that get away with outrageous claims!
Per comments, it's important to clarify that the Supreme Court did make a decision *on one case* and not all software patents; though the decision has implications on future patent requests.
Several commenters also have taken issue with abstract ideas being patentable, and I think there may have been confusion over the lede in this article. Software has not always been considered an abstract idea, but abstract ideas have long been considered patent ineligible:
Step 2: Does the claim wholly embrace a judicially recognized exception, which includes laws of nature, physical phenomena, and abstract ideas, or is it a particular practical application of a judicial exception? See Bilski v. Kappos, 561 U.S. ___, ___, 130 S. Ct. 3218, 3225, 95 USPQ2d 1001, 1005-06 (2010) (stating "The Court's precedents provide three specific exceptions to § 101's broad patent-eligibility principles: 'laws of nature, physical phenomena, and abstract ideas.'") (quoting Diamond v. Chakrabarty, 447 U.S. 303, 309, 206 USPQ 193, 197 (1980)).
"A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right." Le Roy v. Tatham,55 U.S. (14 How.) 156, 175 (1852).
Seems to finally rule out Amazon's "One Click" which is long overdue, along with dozens of other SW implementations of existing HW. Take Apple's slide switch to turn off a phone, slide switches have been in use longer than I've been alive and yet they want to patent that LOL!