Prometheus bound: An important precedent for the next software patent case | Opensource.com

Prometheus bound: An important precedent for the next software patent case

Posted 23 Mar 2012 by 

Rob Tiller (Red Hat)
Rating: 
(7 votes)
Supreme Court
Image by : 

opensource.com

submit to reddit

The Supreme Court’s new opinion on patent eligibility is an important step in the right direction in addressing the problem of software patents. It shows that the Court is mindful of the risks that patents can hold for innovation, and will provide a useful precedent for the next big software patents case. 

The case, Mayo Collaborative Services v. Prometheus Laboratories, Inc., concerned the validity of patents of Prometheus relating to diagnostic testing for autoimmune diseases such as Crohn’s disease and ulcerative colitis. The patents set forth levels of metabolites in the bloodstream that would indicate whether a particular drug dosage should be increased or decreased.

Plainly, this was not a dispute about software patents, but the Court’s unanimous opinion will guide it and lower courts as they analyze future software patent cases. The Court began by noting that 35 U.S.C. Section 101 sets forth a broad area of patent eligibility, but that there is an implicit exception that makes “laws of nature, natural phenomena, and abstract ideas” not patentable. The Court ultimately concluded that the Prometheus patent fell within the laws-of-nature exception. 

The Court’s interpretation of this exception is significant. The Court characterized the ways in which a drug is metabolized in the body as “entirely natural processes,” and found that patents describing such processes “set forth a natural law.” This seems an expansive interpretation of the concept of a law of nature that has major implications for patents on biological processes.  This approach will also be important for cases involving software patents. 

The Mayo Court cited as important precedents three earlier Supreme Court cases that involved software.  According to the new opinion, these cases--Diehr, Flook, and Benson--concerned patents involving “processes that embodied the equivalent of natural laws.”  Diehr concerned a process for transforming uncured rubbed into cured, molded products using the Arrhenius equation.  Although the Diehr process as a whole was patentable, the Court found that by itself, “the basic mathematical equation, like a law of nature, was not patentable.”  In Flook, the Court found a formula for computing an alarm limit as part of a process for catalytic conversion of hydrocarbons was a basic mathematical equation that, “like a law of nature,” was not patentable. 

The Benson case involved a process for converting binary-coded decimal numerals into pure binary numbers on a general purpose computer. The Mayo opinion describes Benson as holding “that simply implementing a mathematical principle on a physical machine, namely a computer, was not a patentable application of that principle.”

These references and the analogy to laws of nature will be important in future software patent cases.  It is also interesting to note the Court’s application of the machine-or-transfer test of Bilski. In response to the argument that the blood of the individual was transformed in the course of the test, the Court said that the machine-or-transformation test was only “an ‘important and useful clue’ to patentability” which did not “trump the ‘law of nature’ exclusion.” In other words, the Bilski test, even if satisfied, does not allow patenting of laws of nature.  The Mayo opinion indicates the same ought to be true for mathematical algorithms.  And software is made up of mathematical algorithms, n’est-ce pas

It also seems noteworthy that the Mayo Court outlined a balanced view of the patent system that took account of the risks it can pose for innovation. It wrote, “Patent protection is, after all, a two-edged sword. On the one hand, the promise of exclusive rights provides monetary incentives that lead to creation, invention, and discovery. On the other hand, that very exclusivity can impede the flow of information that might permit, indeed spur, invention, by, for example, raising the price of using the patented ideas once created, requiring potential users to conduct costly and time-consuming searches of existing patents and pending patent applications, and requiring the negotiation of complex licensing arrangements.” The Court also noted that monopolization of abstract intellectual concepts and other basic tools “through the grant of a patent might tend to impede innovation more than it would tend to promote it.” 

This may not sound surprising to FOSS community members who are knowledgeable about the problems of software patents.  But Americans are taught from an early age to venerate the patent system.  Many end up with an unshakeable belief that it always fosters progress, and cannot conceive that it sometimes hinders innovation. In Mayo, all nine Justices recognized that the reality is more complicated.  The Court may not be ready yet to take on the software patent problem, but its practical, empirical approach could be a harbinger of progress to come.   

submit to reddit

37 Comments

stites
Open Source Champion

"And software is made up of mathematical algorithms, n’est-ce
pas? "

I have a degree in Mathematics and I have written programs off and on for over 25 years. Rob Tiller's statement is so obvious to me that I cannot see how anybody could think otherwise. But the U.S. Supreme Court has ruled on several software patent cases over the years without just cutting off the logic creating software patents at the root by stating that software is not patentable because software is made up of algorithms.

I think that we should find a legal test case for a software patent that is obviously an algorithm even to an intelligent layman. Then we should go to court and keep appealing the verdict until some court, preferably the U.S. Supreme Court, rules that computer software is not patentable because it is algorithms.

---------------------------
Steve Stites

Vote up!
8
Vote down!
0
Neal P. Murphy

Recorded, intangible ideas are protected by copyright. Invented, manufactured, tangible things can be patented.

Software is not patentable, not because it is algorithms, but because it is (1) virtual, (2) naught but ideas and information, (3) bits and bytes. In other words, software is purely and completely intangible.

Software does absolutely nothing by itself. It takes a physical, tangible device--such as a computer or processor--to cause a transformation, such as to transform the software from virtual binary information to readable text on paper, to use the ideas present in the information to control the transformation of something else, such as via a CNC machine.

Software is nothing but ideas. And ideas can only be copyrighted when written, printed or otherwise recorded.

Ideas, including ideas expressed as software, cannot be patented because ideas do nothing. Ideas can be good or bad, moral or immoral, right or wrong, divine or evil. But because they cannot do, change or transform anything, they simply cannot be patented.

I think one of Bill Watterson's short quips in his 'Calvin and Hobbes' cartoon could be used to express the essence of the problem: "Verbing nouns weirds language."

Vote up!
2
Vote down!
0
Brad

The current situation necessitates that claims are drafted to refer to the physical components, rather than purely the software itself.

Software based inventions can still be patented, however they require proper drafting.

Vote up!
0
Vote down!
0
shawnhcorey
Open Minded

No, all software is algorithms and, by law, algorithms can not be patented. You can prattle on about how the world is flat but that does not make it so. The world is round; software is algorithms. Get use to the idea.

Vote up!
2
Vote down!
0
Brad

You have twisted what I said. Get a grasp on the idea before you get too used to it

As we speak a stream of software based patents are being granted.

Vote up!
0
Vote down!
0
shawnhcorey
Open Minded

Yes, a stream of illegal software patents are being granted. That is the fundamental flaw in patents. It is relatively easy to get one; it is very, very, very difficult to get rid of the bad ones. That means patents will expand and encroach with no effective limits. They have even granted illegal patents on the human genome. When are the courts going to enforce the law as written?

Vote up!
2
Vote down!
0
stites
Open Source Champion

That is because some lawyers confused the U.S. Supreme Court into thinking that an HVAC control program is an integral component of the computer it ran on. Technically that claim is absurd but the Supreme Court ruled that all software which is an integral component of the hardware is patentable as part of the hardware.

As you say the lawyers have to draft the patent to claim that the software is an integral component on the machine it runs on. This has lead to the absurd, and expensive, situation where technically no software is an integral component of a computer and legally all software is an integral component of a computer.

-------------------------
Steve Stites

Vote up!
2
Vote down!
0
stites
Open Source Champion

I intended my reply on 26 March to be a reply to:

"The current situation necessitates that claims are drafted to refer to the physical components, rather than purely the software itself."

"Software based inventions can still be patented, however they require proper drafting."

Somehow I tacked my reply onto the wrong post.

----------------------
Steve Stites

Vote up!
0
Vote down!
0
shawnhcorey
Open Minded

@Steve Yes, all software is algorithms. This is the work of Alan Turing and John von Neumann. Since patent law states that algorithms can not be patented, all software patents are illegal.

Vote up!
4
Vote down!
0
Chris Vail

A necessary feature of an algorithm is that it terminates. Many software programs (ideally) do not terminate (think operating systems).

Or, Algorithms + Data Structures <= Programs.

Should data structures be patentable? Or just the data in the data structures? Personally, I'm against patenting information (die Gedanken sind frei).

OTOH, operating systems are patentable.

Vote up!
0
Vote down!
0
stites
Open Source Champion

"A necessary feature of an algorithm is that it terminates."

I think that I have counter examples to that statement. What about an algorithm that calculates the value of PI or an algorithm that calculates the value of a non-convergent Fourier series? Are these not to be classified as algorithms because they lead into an infinite series?

---------------------------
Steve Stites

Vote up!
2
Vote down!
0
shawnhcorey
Open Minded

Every OS has a shutdown feature. It therefore terminates. The calculations of infinite series terminate when the memory gets full. And if someone wants to patent a program that overwrites its own memory, go right ahead. :)

Vote up!
0
Vote down!
0
Sean

Algorithms may need to terminate to satisfy the literal definition, but that doesn't mean that the rest of software is not also math. That kind of argument is like saying that since in algebra the expression "i = i + 1" makes no sense, so code like "i = i + 1" is not algebra, and hence software is not math.

That said, even if we are to assume that only algorithms are math, and hence any program with an infinite loop is not itself an algorithm, the question then becomes "where is the line drawn?" If you argue that an OS is an uncountable number of instructions, what about all of the individual bits of code used by the OS? The CPU scheduler is very clearly an algorithm. The memory manager is very clearly an algorithm. The I/O scheduler is an algorithm. The IPC mechanisms are algorithms. The drivers are algorithms. The security and access control mechanisms are algorithms. All you're left with is the idea that you can patent a loop that uses some specific exact set of other algorithms. The OS functionality -- all of the actual useful and interesting stuff it does -- still remains completely unpatentable by any sane reading of the US patent laws.

Vote up!
2
Vote down!
0
Cam
Community Member

I disagree with Knuth's definition, I could come closer to agreeing if he meant that the instructions were finite, rather than the execution terminating, but I don't think he meant that.

I can think of 'algorithms' that terminate for finite input, but continue for infinite input... compression or encrytion for example. It's nonsense to say that these are algorithms only if they terminate at some point and otherwise are 'computational methods'. There may be some mathematical merit to such a distinction, but practically, it's not useful, and certainly it's not helping sort out the mess of patents to embroil them with terminology that isn't well defined or generally agreed on.

As for data structures, I don't see an argument for patenting them.

An OS is so large and complex that it wouldn't be practical to patent it. Surely it's just a collection of smaller parts that may or may not be patentable depending on the current rules?

Vote up!
0
Vote down!
0
shawnhcorey
Open Minded

If you want to sort out the mess with patents, that's easy: no more patents. The biggest problem with patents (and copyright, for that matter) is that they're relatively easy to obtain and very, very, very difficult to get rid of the bad ones. This means they will grow and expand into areas there were not meant to be used, such as the human genome. The way to fix this is to make is as difficult to obtain as it is to get rid of them or make it as easy to get rid of them as it is to obtain them. Either case means they lose their effectiveness, so why bother with them?

And if you're thinking that there some middle ground where patents are more difficult to obtain and easier to get rid of, this middle ground is unstable. It won't take too many years before obtaining patents becomes easier and getting rid of the bad ones harder. This is what we started with with the first patents laws and we all know how that turned out.

Vote up!
2
Vote down!
0
YetAnotherBob

The courts have already ruled. Data bases of facts only are not copyrightable. Facts just are, and cannot be copyrighted.

Data bases are also a preexisting idea, and as such are not patentable by prior art.

What you do with a data base, and how you do it may or may not be patentable, but the fact of a collection of data is not patentable.

Also, though algorithms perhaps cannot be patented, combinations of algorithms can be patented if they are used in combination with machines to change the physical nature of something.

In Law, after all, it's all about straining at gnats and swallowing camels in one gulp. An art form at least as old as the pyramids.

Vote up!
0
Vote down!
0
SPR

If the logic presented above is used, then nothing should be patentable. A machine merely uses laws of nature (physics) to do something useful, yet remains patentable. Software can be implemented as code, transistors, or vacuum tubes. Why should it patentable as a bunch of transistors but not as code executed by a general purpose computer?

Vote up!
0
Vote down!
0
qwertyz

Interesting. This reminds me of the problem with the "commerce clause." From Donald Rotunda, (if) "everything is "commerce among the states" we no longer have a government of limited or enumerated powers. Under that theory, the Commerce Clause reaches everything, including barroom brawls. The Court has never accepted that argument..."

Is this the legal problem of being "too correct"? If everything is based on some law of nature, then there could be no patents for anything. Any lawyers care to comment???

Vote up!
0
Vote down!
0
jmartin425
Newbie

Thank you. Software + general purpose computer is merely an implementation detail.

After the courts rationally and reasonably held that

special purpose software + general purpose computer = special purpose machine

software patents make perfect sense.

Vote up!
0
Vote down!
0
Jose_X

[I agree that the best logical argument against most-to-all sw pats is on grounds of a failure to promote the progress by stifling more than they promote; however...]

Your simplified equation can't be taken at face value because it does not explain why writing an essay in a word processor (or engaging any sort of general utility machine with special purpose writing or digital content of any sort) doesn't also create a general purpose machine.

When I wear the hat of a fireman, does my general purpose human nature become a new and distinct special purpose human? Maybe technically, but that doesn't make me a new "machine". It merely makes me currently engaged in a special purpose "process". You can call me a special purpose human, but that doesn't create a new "machine" in the sense of patent law where a new physical-material entity of a form and utility that really didn't really exist before now would.

So in name you can call anything a special purpose machine, but in the sense of a new physical entity, you are not creating anything new by taking an existing machine as is and simply engaging it in a new process.

Vote up!
2
Vote down!
0
Jose_X

So the best way to look at sw+hw is as an implementation of a process: we consider the hw by itself to see if a new patentable machine was made and the sw is the purposing of that hw for a particular task/process.

On the question of patentable processes... we are long overdue for "fair use" and need to focus on the question of promoting the progress. Also, what physical transformation (of matter) is being achieved in a novel way when we program hw? Arguably none in the sense of MOT.

Vote up!
2
Vote down!
0
Jose_X

I forgot to note that there is "sw" inside most general purpose hw that could be considered fixed in place for the life of the machine. The question of a new machine should be based on looking at physical structure and not functionality. Such sw is best left for a "process" consideration (fwiw).

Process patents did not come from the "founding fathers".
(A) This might make it easier to argue that processes should be scrutinized more and may not fulfill the intentions of the patent clause (to promote the progress) under many circumstances.
(B) This can also justify creating a broad fair use exception by the Court.
(C) Further, new processes, as created/defined by digital "writing" (instructions) can also more easily be argued to be "abstract" whenever they don't sufficiently engage more matter (eg, in the sense of Diehr).

I think it is important to realize that the point of patents were not to make anyone wealthy or to create gratuitous monopolies and restrictions on (eg) thought and behavior. Just because it requires thought to design a Diehr process as it does a web2.0 process, there are clear differences when it comes to the pool of individuals who can design and implement the latter. There are many more "inventors" because the overall costs are lower and the technology is accessible to a much larger number. This difference means the promote the progress calculus changes significantly, and it is why sw is best seen as writing/digital/abstract that falls already under the "forefathers" copyright IP laws.

Vote up!
2
Vote down!
0
SPR

Let's say I come up with a new and not obvious way of selecting winning stocks that can't be performed mentally because of the complex calculations. Your approach would be that if I implemented it using a bunch of transistors and display devices, I should get a patent. If I write it as software to run on PCs and Macs, I should not get a patent. How does that promote progress?

Vote up!
2
Vote down!
0
Jose_X

SPR>> Let's say I come up with a new and not obvious way of selecting winning stocks that can't be performed mentally because of the complex calculations. Your approach would be that if I implemented it using a bunch of transistors and display devices, I should get a patent. If I write it as software to run on PCs and Macs, I should not get a patent. How does that promote progress?

Well, we no longer create such analog devices, but, if we did (because digital technology was not being leveraged), then considering patent protection *would* make sense, among other reasons, because of costs involved and the risks to a business making investments to produce such a device would be large. A related reason is that the field of inventors and developers would be very small (again, related to the nature of machine creating and its costs) so a much smaller number would be hand-cuffed by the granted monopolies.

However, for the digital scenario, you now would be using patents to block intellectual development (including parallel and independent development) of a form of science, of writing, and of human interaction (which can be done for $0 as per the choice of the participants). Every patent would be a broad handcuff applied to potentially millions of individuals.

As a related note, the patent inventiveness bar: "non-obvious to a person having ordinary skill in the art" is stiflingly low (and hence why it is not used in copyright law). Think about it. Much damage is being done by giving a monopoly on something that the people in the middle of a bell curve would consider merely "non-obvious" and, further, which many many people on the right half would consider to be obvious. That low criteria by itself is reason IMO for the Court to "place a hold" on all currently granted patents pending further review and test against a much higher bar (not to imply that a higher bar would promote the progress, but it arguably would be less stifling).

Vote up!
0
Vote down!
0
Jose_X

SPR, it's odd you would claim patents are needed to promote the progress in light of all the progress that had taken place from software without invoking or taking out any patents. If you actually have written complex software and know how superficial are almost all patents, I don't think you could honestly make that claim.

If you hadn't before, consider this. Mathematicians discover more difficult algorithms and information than does almost any computer programmer. Of course, mathematicians don't need patents as a motivation and in fact would be rather stifled if patents were in effect.

Vote up!
2
Vote down!
0
Jose_X

SPR, would you suggest patents are needed in literature, music, and law in order to promote those arts? Surely, there is a lot of critical thinking taking place in those fields.

Vote up!
2
Vote down!
0
Jose_X

>> does not explain why writing an essay in a word processor (or engaging any sort of general utility machine with special purpose writing or digital content of any sort) doesn't also create a general purpose machine.

Let me try to clarify. The point is to draw contrast between a new process for an existing physical machine (playing a new role) vs a new physical machine.

Every new character added to a word processor app, technically creates a new special purpose machine because the behavior of that machine is different from that point onward. For example, hitting the delete key will perform a different effect than would have been the case before the last character was added and the cursor moved forward.

But this is also true for an ordinary analog typewriter after you type in the next character! This is true for any device: it becomes a new device in some technical way by its mere use (and differentiated by such use).

Another example in the analog world would be pressing down on scissors that have a thread in between the sharp edges vs if paper was in the place of the thread. A different effect and behavior is realized, technically resulting in a "new" machine defined by that effect.

Now, you might say, "well, ordinary data creates a new machine in that trivial way, but we are talking about sophisticated software not mere data."

For the digital scenario, note that both the case of the word processor app taking in new data (your essay) and the general purpose computer taking in new data (an OS), an algorithm was running and continues to run exactly as before, yet the practical effect has changed as impacted by the new data.

So the "sophisticated software" only appears sophisticated because we already have a sophisticated machine that **in the virtual sense** can create new very distinct behavior merely from being loaded with data. From the **physical** sense, the computer has not changed at all by being loaded with a word processor digital software. From the physical machine patent sense, the computer is just like an analog typewriter being used and technically being different as defined by that used (by that data) but otherwise remaining the same physical machine. [Of course, the computer changes "behavior" in a much more advanced way than does an analog machine, thanks to its digital nature, but that doesn't change the fundamental aspect that it's still the same physical machine.]

So the general equation that a special purpose program + a general machines = a special purpose machine.. is trivially true of (m)any machine (or any human) in some technical sense, but that does not mean adding a new program to an existing machine should be seen as potentially creating a new patentable machine as defined by such a program. What we would have is a new process as defined by that program and not a new machine.. in the sense of patent law... as I (IANAL) see it.

PS: As covered in the earlier comments (I just made) on this thread, looking at sw more accurately as a process rather than as a machine makes it easier to understand why they should not be granted patent protection: they are much more likely to stifle progress and were not in the minds of the forefathers (who already recognized copyright as a way to protect actual intellectual content whose value is separate from the physical media associated with it). If we awarded patents to traditional literature, we'd also have a stifling mess on our hands!

Vote up!
2
Vote down!
0
Brad

[When I wear the hat of a fireman, does my general purpose human nature become a new and distinct special purpose human?]

If your house was on fire and you consider humans machines, for the purposes of saving your house I think you would consider a fireman as a different machine to a member of the general public.

The alternative to bundling sw & hw as one is anything based on logical operation is not patentable. That's a big unbending statement for technology going forward.

Vote up!
0
Vote down!
0
Jose_X

>> If your house was on fire and you consider humans machines, for the purposes of saving your house I think you would consider a fireman as a different machine to a member of the general public.

Sure, a computer with one app running vs another enables you in a different way. Agreed. But in terms of patent protection, we still have the same old human being simply running a new process. There are differences in having to create a new human vs using an existing one just as it but loading up a new process. We already have copyright to protect software processes. I would argue that processes of this nature (utilizing the same old machine) are rather different in important ways from a new machine and are much more likely to result in stifling progress. These inventions also weren't in the minds of founding fathers.. except maybe via copyright law.

Vote up!
2
Vote down!
0
Jose_X

It can be very costly to create a complex program married to a physical device, where that program cannot be changed except in creating a whole new device and hence where the field of participants is limited because of costs other than intellectual costs.

Software does not fit this model.

Further, software comes potentially loaded with important trade secrets (eg, necessary for faithful interfacing from competing products as well as sufficient replication of functionality). Add in copyright protections to the trade secret protections, and we have its intellectual content and artificially high market pricing already more than sufficiently protected from "imitators".

The value and cost of software is in the details. If none of these more fine grained protections existed, patents could still stifle because of their overreach in scope (n-o to a PHOSITA) and hand-cuffing affect on so many third party inventors, but now just imagine if we add patents **on top of** these other protections? We are promoting monopolized command economy infringing on the liberties of many and reducing competition by a whole lot.

Vote up!
2
Vote down!
0
Jose_X

Here is a challenge to swpat supporters.

Explain why a patent on a software story (aka, protection of ideas and techniques of a software app) downloaded into your "e-book" (aka, into your computer) is supposed to promote the progress, while we (Congress, the SCOTUS, researchers, and practitioners) know that a patent on a (non-)fiction story downloaded into your e-book does not promote the progress of such downloadable stories?

In other words, what argument can you use to argue that a patent on software (which humans experience and make use of through a standard multimedia environment) helps the software art while a patent on writing (which humans experience generally through standard books and reading devices) does not help the fiction and non-fiction arts?

I.e., in what way would a patent on utility and aesthetics written into existence via software help that industry while a similar patent on utility and aesthetics written into existence via the vernacular would not lead to better writing/music/etc?

Put simply: We don't allow people to own ideas and methods in stories because that would cause lots of damage, so why should we allow people to own ideas and methods in software yet expect different results?

*****

As suggested in earlier comments, a key reason behind the broad powers of a patent, as captured in early patent law by those who were around when the Constitution was crafted, is that it is supposed to promote the creation of a new machine. Patents were not created to promote better or more advanced writing. SCOTUS and many others have always recognized that protection for written works and other expressions of intellect ends at the expression level and does not carry to the idea level. We have copyright and trade secrets for the abstract/intellectual components of new written creations or even no protection at all (as is true for matters of truth, such as mathematics). Broad patent protections (especially at the established super low inventiveness bar) are for things that go beyond great ideas and great expressions. It is for physical machines and devices that do not already exist, so need to be manufactured, and differs from the prior art in ways beyond merely the "story" that is etched within it.

I think Red Hat has missed points of arguments in past briefs I have read. I hope it's not too risky for them to adopt a more aggressive position on how patents should never apply to writing (ie, to "processes" that merely add intellectual/abstract information onto otherwise unpatentable hardware). To accept software patents would be to accept stifling and abridgement in a particular form of writing. The "content" of writing is "abstract" by its nature, and etching the words onto a machine does not create a patentable machine as per those etched words.. at least not if we hope to promote the progress, recognizing that similarly restrictions placed on any other form of writing would not promote the art in those other writings. If the entire novelty comes from those etched words, we would be stifling the progress in those machines by stifling the progress in those etched words.

[BTW, I am not comfortable with Diehr to the extent the novelty does not arise via some new physical creation to make possible that process. I would want the SCOTUS to revisit and clarify that past ruling.]

Vote up!
2
Vote down!
0
Brad

equating software to writing a story sounds like the tale of a storyteller, rather than a software engineer

a better analogy is equating physical art and a machine

Vote up!
0
Vote down!
0
Jose_X

Tale of a storyteller?

Physical art?

Software is a form of writing. It is information. It is not material. Manufacturing costs don't play a significant role in preventing the spread of that invention or taxing the inventor and other investors. There is no significant scarcity issue for society or for individuals. You can clone a program to perfection with next to zero energy and other costs (say to a million copies) in contrast to doing same for a physical product. There are clear differences between all forms of "writing" and manufacturing.

We already have copyright to (I'll say) protect many types of creative investments. Patent law was written to address issues that copyright would not cover and which would help promote the art (eg, supporting financial investments and defending against "imitators", who would have lower costs). Patents attempt to protect the creativity left out by copyright and other laws, adapted to the physical product creation environment.

A computer app running is merely the general purpose computing device prompted by a set of instructions to turn on "blinking lights" in a different order. That amounts to a "use" of an existing product. A software invention creates a new method/process and not a new machine.

Are you suggesting that if a computer is created tomorrow that allows novels to be brought to life in a multimedia way, that the motivation to promote that novel-writing art and to give greater access so that more can promote that art as well will differ significantly then than it does today just because we would then have a computer that can dance to our written "tune" automatically?

If patents weren't good enough in the eyes of the founding fathers, or every Congress since, to cover any form of writing no matter the writing type (and for good reason, eg, to maintain the idea/expression dichotomy), then why should we expect that patents are supposed to apply to software? Patents apply to new machines. Patents for processes of existing machines are very much more limited or else would apply to writing a new novel on a piece of paper.. the paper is used differently after all! Or to new music instructions to be played on automatic pianos.

Software cannot be patented, so the only question is whether a machine with a new and novel feature was created or whether we are using existing ordinary machines in new and novel ways as defined by such software?

Vote up!
2
Vote down!
0
Jose_X

>> If the entire novelty comes from those etched words, we would be stifling the progress in those machines by stifling the progress in those etched words.

Just wanted to highlight that summary line.

Vote up!
0
Vote down!
0
Jose_X

Can a Jules Verne today get a patent on a new submarine that fishes lobsters automatically and prepares a delicious sea-faring dish for each seaman who just love to eat seafood? Yes, if these things are realistic and can actually be put into production.

What if that submarine dances and plays the accordion as well? Yes, if these things are realistic and can actually be put into production.

Now, can such a Jules Verne invent such submarines and get a patent to prevent others from crafting such submarines on paper, eg, into new novels or into software that virtualizes such submarines? No.

Software is all ideal. The results are all imaginary virtualization taking place on a screen. There is no Mother Nature that was newly conquered for each such software invention.

This is why software is "abstract". It is writing. You can create anything you want to emulate/virtualize. Copyrights cover this. Patents cover the physical material things where you actually have to have asked Mother Nature for permission.

.. and that is why patents have such a low inventiveness bar allowing for such broad scope. The bar to denying writing (especially of the independent kind from those who don't pour over hundreds of thousands of patents yearly as they create software) should be very very high instead.. much higher than "non-obvious to a person having ordinary skill in the art".

I hope Red Hat or Google or someone else with money makes this and other related points clear in a future SCOTUS brief. Please. For the sake of progress in the art.

Vote up!
0
Vote down!
0
Jose_X

..and so because "machines" are not being created (as assumed by the founding fathers) with each software invention, we are certainly allowed (and must) place a very high bar on just which "processes" (methods) are allowed to be granted patents. Dieher and the rule-of-thumb value of M-O-T already adopted by the SCOTUS suggest that processes are limited to something almost certainly in manufacturing plants or at least outside the realm of access by most people.

We don't want to curtail writing otherwise accessible to everyone (as is clearly the case with most software development) with these broad patent monopolies that step way beyond the expression/idea dichotomy. Patents are on ideas. The claims cover anything "read" by the broad claims rather than protect the expression of the claims themselves or specific source code. We don't want to prevent Jules Verne submarines from being created in fiction or computers. Copyright stops at protecting what Jules Verne specifically said about those submarines, so that others are still able to keep the conversation going on the general idea.

In consideration of the above and going further, and relevant to Red Hat's business and the business and hobby of a great many, given the open nature of FOSS and its added contribution to society beyond what proprietary software offers, how can there be almost any question at all that all FOSS should basically be immune from claims of patent infringement?

Vote up!
0
Vote down!
0
Jose_X

As concerns the open source slice of the software world:

http://www.stlr.org/volumes/volume-x-2008-2009/torrance/

>> Data generated thus far using PatentSim suggest that a system combining patent and open source protection for inventions (that is, similar to modern patent systems) generates significantly lower rates of innovation (p<0.05), productivity (p<0.001), and societal utility (p<0.002) than does a commons system. These data also indicate that there is no statistical difference in innovation, productivity, or societal utility between a pure patent system and a system combining patent and open source protection.

Vote up!
0
Vote down!
0

Rob Tiller is vice president and assistant general counsel for Red Hat, where he manages patent, trademark, and copyright matters. He is a frequent speaker and writer on open source legal issues. Before coming to Red Hat, he was a partner with the law firm of Helms, Mulliss & Wicker, PLLC, where he specialized in commercial and IP litigation. He is a graduate of the University of Virginia School of Law, and a former clerk for Justice Antonin Scalia of the U.S. Supreme Court, and Judge

Holiday gift guide promo