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Judge Invalidates Software Patent, Citing Bilski 252

Posted by kdawson
from the first-domino dept.
bfwebster writes "US District Court Judge Andrew Gilford (Central District of California) granted a summary judgment motion in DealerTrack v. Huber et al., finding DealerTrack's patent (US 7,181,427) — for an automated credit application processing system — invalid due to the recent In re Bilski court decision that requires a patent to either involve 'transformation' or 'a specific machine.' According to Judge Gilford's ruling, DealerTrack 'appears to concede that the claims of the '427 Patent do not meet the "transformation" prong of the Bilski test.' He then applied the 'specific machine' test and noted that, post-Bilski the Board of Patent Appeals and Interferences has ruled several times that 'claims reciting the use of general purpose processors or computers do not satisfy the [Bilski] test.' Judge Gilford analyzes the claims of the '427 patent, notes that they state that the 'machine' involved could be a 'dumb terminal' and a 'personal computer,' and then concludes: 'None of the claims of the '427 Patent require the use of a "particular machine," and the patent is thus invalid under Bilski.' DealerTrack apparently plans to appeal the ruling. Interesting times ahead."
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Judge Invalidates Software Patent, Citing Bilski

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  • by eldavojohn (898314) * <eldavojohn.gmail@com> on Friday July 10, 2009 @08:47AM (#28648271) Journal

    'claims reciting the use of general purpose processors or computers do not satisfy the [Bilski] test.'

    Sounds familiar to the kind of logic that Donald Knuth employs when discussing software patents. He tried reaching out [groklaw.net] to the EU Patent Office in an effort to avoid making algorithms patentable--he feels this has been a mistake in America. He recently sent the EU Patent Office Commissioner a 1994 letter he had originally sent to the United States Patent Office about patenting software. His argument is simple: (1) math cannot be patented (2) all algorithms are math (3) all software is one or more algorithms and so follows that software cannot be patentable. The USPTO replied by defining non-mathematical software to be patentable while purely mathematical software is not. Knuth sums himself up nicely: 'Basically I remain convinced that the patent policy most fair and most suitable for the world will regard mathematical ideas (such as algorithms) to be not subject to proprietary patent rights. For example, it would be terrible if somebody were to have a patent on an integer, like say 1009, so that nobody would be able to use that number "with further technical effect" without paying for a license. Although many software patents have unfortunately already been granted in the past, I hope that this practice will not continue in future. If Europe leads the way in this, I expect many Americans would want to emigrate so that they could continue to innovate in peace.'

    Maybe the right way to approach this was to claim that general purpose processors are only capable of executing extremely complex mathematical algorithms--which should not be patentable. Therefor the software that runs on general purpose processors should not be patentable.

    • by wrf3 (314267) on Friday July 10, 2009 @08:54AM (#28648335) Homepage

      What is "non-mathematical software"?

      • by eldavojohn (898314) * <eldavojohn.gmail@com> on Friday July 10, 2009 @09:05AM (#28648445) Journal

        What is "non-mathematical software"?

        Well, I've read a lot of Knuth's stuff and though I don't see quite eye to eye with him, I definitely agree with his views on this. The source of the idea of non-mathematical software seems to come from patent attorney Eugene Quinn [ipwatchdog.com]:

        I have been criticized quite a lot for statements I have made that computer software is not the same as math, and I simply cannot back away from that. Nevertheless, as I have read through comments provided to Groklaw I am not so sure that my critics and I are as far apart on this position as one would belief.

        And yes, he goes so far as to cite E. W. Dijkstra's three claims:

        • So much for the care needed to keep the arguments manageable: we can summarize it by stating that in programming mathematical elegance is not a dispensable luxury, but a matter of life and death.
        • The programmer applies mathematical techniques in an environment with an unprecedented potential for complication; this circumstance makes him methodologically very, very conscious of the steps he takes, the notations he introduces etc.
        • Much more than the average mathematician he is explicitly concerned with the effectiveness of this argument, much more than the average mathematician he is consciously concerned with the mathematical elegance of his argument.

        And he claims these statements do not invalidate his idea that non-mathematical software should be patentable! Knuth and probably 90% of software developers will argue that Quinn is either ignorant or insane.

        And these are the people arguing the case and ensuring software patents stand. Worse yet, Eugene teaches the most popular patent bar review course in the US. Ignorance begets ignorance.

        • by Anonymous Coward on Friday July 10, 2009 @09:40AM (#28648797)

          My degree is in mathematics. There's no such thing as non-mathematical software [metamath.org]. There is mathematical proof of this. There's a nice equivalence theorem for the two, and the website linked shows the results of that equivalence.

          I repeat: there's no such thing as "non-mathematical" software, because it is equivalent to math. The only people who think otherwise don't know what math is. It's like trying to claim that 1 != 1. And yes, people really do claim utter nonsense like that sometimes, especially those who don't understand the fact that infinite sequences like 0.99999[repeating] don't have a last digit by virtue of being infinitely long (if an infinite list had a last element, it would be a contradiction in terms, because part of the definition of infinite is that for every element x, there is a successor of x).

          One might as well claim that pi is exactly 3.

          • by tepples (727027)

            The only people who think otherwise don't know what math is. It's like trying to claim that 1 != 1.

            It depends on how you define !=. In Python, 1 == 1, and 1 == 1.0, but 1 != True, and 1 != "1". In PHP, however, 1 == 1, 1 == 1.0, 1 == True, and 1 == "1" (in fact, 0 == any string that can't be converted to an integer), but there is another pair of operators === and !== that strictly compare both value and type: 1 === 1, 1 !== True, and 1 !== "1" like in Python, but also 1 !== 1.0.

            • by Xenographic (557057) on Friday July 10, 2009 @10:30AM (#28649549) Homepage Journal

              I wasn't logged in before, GP anon was me. Anyhow, the period was the end of the sentence, not some attempt to make it into a float/string/boolean/whatever and I certainly didn't use the Python operators. It's supposed to be the same token (1) on both sides. But that's why we use formal languages that are picky about syntax and which can be checked automatically to avoid people finding weird ambiguities to question.

              The theorem I was mentioning above is called Curry-Howard-Lambek correspondence [haskell.org] (it took me a while to find all the links):

              The Curry-Howard-Lambek correspondance [wikipedia.org] is a three way isomorphism [wikipedia.org] between types (in programming languages) [wikipedia.org], propositions (in logic) [wikipedia.org] and objects of a Cartesian closed category [wikipedia.org]. Interestingly, the isomorphism maps programs (functions in Haskell [wikipedia.org]) to (constructive) proofs in logic [wikipedia.org] (and vice versa).

              (Wiki links added because most people are too lazy to Google the terms they don't understand. Especially if they don't realize that they don't actually understand them.)

              So even if you find some crazy language where they define != to be an equality operator or something equally unusual, software is still equivalent to math. Metamath [metamath.org] wouldn't be possible otherwise. And as you can see, they're doing just fine.

              • Re: (Score:3, Insightful)

                by mounthood (993037)
                Mapping does not make them the same. If we map hopscotch to some variation of algebra, does that make the kids game math? Software is not a rose by any other name. The numerical representation of painting is just a big number in the realm of math.
                • Re: (Score:3, Insightful)

                  by Alsee (515537)

                  Any possible software is, in and absolute and literal sense, nothing more than a purely mathematical function. Software is incapable of doing anything but mathematically transforming one set of numbers into a different set of numbers. For example all word processing stores text letters as numbers. If for example a is 1 and b is 2 and z is 26, then the word cat is 3 1 20. Spell check software is nothing but a very fancy math calculation that will calculate the numbers 3 1 20 ('cat') back into 3 1 20 ('cat'),

                  • Re: (Score:3, Interesting)

                    by bill_mcgonigle (4333) *

                    Software is incapable of doing anything but mathematically transforming one set of numbers into a different set of number

                    Would the same principle apply then to electronic hardware? Transistor radios, Xeon processors, flat screen TV sets? They're just taking voltages of certain characteristics and transforming them into voltages with other characteristics. Sure, we hook up the transistor radio to a speaker, but that's not the core of the patented design.

                    If voltages, how about energy? Quantities of atoms?

                  • Re: (Score:3, Insightful)

                    by Bigjeff5 (1143585)

                    The pure math argument against all software patents is intillectually dishonest and little more than "information longs to be free" nonsense. Information may want to be free, but it certainly takes effort to produce.

                    ANY patent is nothing more than a design or an idea put on paper. It is not the physical device you patent, but the design of the device. The only person allowed to use that design to produce a product is the inventor or anybody the inventor gives permission to. What is special about them is

          • by javaxjb (931766)

            0.99999[repeating] don't have a last digit by virtue of being infinitely long

            It's last digit is 1 (as is it's first and only digit [typepad.com]).

          • by Maury Markowitz (452832) on Friday July 10, 2009 @02:12PM (#28652683) Homepage

            > There's no such thing as non-mathematical software

            Which is great and all, but has absolutely nothing to do with the patent process.

            Patentability has nothing to do with the implementation, and everything to do with the intent. If the intent of the program is to control a loom in a new way, that's (theoretically) patentable because the purpose of the program is not to solve a mathematical problem, but a real-world one. If the intent of my program is to run Newton's Method, it's not patentable, because the intent of the program is to solve a mathematical algorithm. It is the _intent_that_is_encoded_, not the form of the encoding, that is the only concern in terms of _theoretical_ patentability - there's other rules that govern whether or not you'll actually GET a patent.

            The basic issue that the new caselaw concerns is the concept of "transformation" in a patent. The original intent of the system was to grant protect to novel devices, either improvements on existing concepts (disk brakes vs. drum), or to totally new devices. But then what is a "device"? Is a deck of cards a device? A new book? The law defined it as something that tranforms something. A machine for freeze-drying coffee to produce Nescafe transforms hot coffee into a powder, which can be re-constituted into something similar to the original. Something is actually "being done", and it's THAT that the patent covers, not the machine itself. You can invent a better freeze drying machine, and get a patent on it, but you'll still have to license the actual concept of freeze-drying coffee.

            This is good, and worked for a long time. Then the CS wags came along. In the 1970s there were a couple of cases where it was argued that a program is literally a collection of instructions that transform one number into another. Thus every program is transformative, and patentable. Once that got into caselaw, then someone pointed out that that _purpose_ of the program is to run an algorithm, so why does it have to be in a program? Why not any process that does any processing? And thus we got into the mess we have today.

            The new caselaw basically noted that something got lost in the 1970s rulings - that the transformation has to _produce_something_patentable_. So consider these cases:

            1) I make a machine called the wingnut that produces gazzezas
            - patentable, gazzezas are a new product
            2) I make a machine called the gizifa that produces gazzezas
            - patentable, but I'll need to license gazzezas, or wait for it's patent to run out. Additionally, someone else is free to make a different machine that makes gazzezas.
            3) I make a machine that runs Newton's Method
            - treated like (2), because - critically - the product is not patentable

            In essence, all patents had to flow from (1). Basically, there had to be a product somewhere. Prior to Bilski, caselaw stated that programs are transforming inputs into outputs, so there is a "product". Oddly, (2) didn't really exist, because they noted that a program can run across a wide variety of machines, so the idea of a "specific machine" (or implementation) was difficult because patents on (1) were automatically so broad.

            The judge in the Bilski case noted that while it is true that all algorithms are transformative, the patent in question failed to actually make a "product" that was patentable, like case (3). Risk hedging is not a product you can patent, so then the only patent you might be able to get would be like (2). So this business practice moved from (1) to (3) - or similar to (2). He then noted that the patent application itself stated that it could be run using any number of different methods, it couldn't be a (2), by definition. So the patent was invalid.

            Bilski was about a business practice, which generally don't produce anything. So now it appears some enormous subset of these are invalid. But what about software?

            DealerTrack shows that the same principal applies. The patent in question did not produce a patentable

            • by Alsee (515537) on Friday July 10, 2009 @04:37PM (#28654669) Homepage

              I was reading along and contemplating whether I wanted to make an appreciative/agreeing comment, until I ran into the part about MP3s.

              I believe most readers would agree that MP3 "really is patentable"

              Programmers overwhelmingly reject software patents, and I think they would generally cite the MP3 patents as a perfect example of such invalid patents.

              The latest Supreme Court ruling touching on software patents was Diamond v Diehr. People on the pro-patent side often point to that case to affirm their position because in a binary yes/no way the ruling was in favor of the patent applicant, but in fact Diamond v Diehr was an extremely anti software-patent ruling.

              You're right about "transformation" being a crucial issue, although you somewhat miss on the "product" angle. The Supreme Court stated that the clue to the patentability of a process patent was the transformation of an article to a different state or thing. The case was ruling upon an industrial rubber manufacturing process, and all of the language is clearly envisioning a physical-process physically-transforming a physical-article into a different state or thing. Note that the end product does not need to itself be patentable. A classic process patent would be such as the one for refining aluminum-ore into pure metallic aluminum. Aluminum metal is not a patentable invention, but transforming ore into refined metal is a patentable process.

              They also explicitly ruled that an algorithm was not a patentable process, and explicitly warned that "insignificant postsolution [physical] activity" cannot be used to turn it into a patentable process. The MP3 patent is nothing more than a patent on the pure-math algorithm for mathematically transforming one sequence of numbers into a different (typically shorter) sequence of numbers. The act of sending that MP3'd sequence of numbers out to a speaker (typically sounding like music) would be an extremely insignificant postsolution (post software) physical activity, and that insignificant physical activity cannot be hijacked to transform non-patentable MP3 math into a patentable physical process claim.

              What the Diamond v Diehr majority ruling actual stood for was the rather simple position that an otherwise valid patentable physical process was not magically REMOVED from being patentable subject matter simply because it added or included a math calculation somewhere along that physical process.

              And earlier Supreme Court ruling (Benson) had already laid out the proper method for considering a process claim that included software. Any possible algorithm (any possible software) was to be treated as a familiar part of prior art, and the claim examined to see if it disclosed any OTHER inventive contribution. You can attach a computer to some physical devices preforming some physical transformation and obtain a patent if it discloses some novel non-obvious inventive contribution beyond the presumed-familiar-presumed-prior-art software.

              -

        • Re: (Score:3, Insightful)

          by blahplusplus (757119)

          One could argue that nothing should be patentable on the same basis, since all information is just re-arranged in the universe, it is not actually "novel", when we make a "discovery" we're discovering things that are already there inherent in the universe. We have these false ideas that we are "Creating" things rather then merely *re-arranging pre existing stuff*.

          Math are just representations of combinatorial elements, that's all particles are in our universe, every invention we "Create" was already inhere

        • Worse yet, Eugene teaches the most popular patent bar review course in the US. Ignorance begets ignorance.

          So you might say that Mr.Quinn has a direct stake in the matter of software patents irrespective of the arguments themselves. If software cannot be patented then it harms the ongoing financial interest of Mr.Quinn, who earns his living teaching patent law and arguing patent cases, because there would be fewer patent cases to argue and fewer students interested in learning patent law.

      • Well, it's that stuff without business logic. Basically a GUI interface to a database, that you could have generated out of the SQL with a script. (I have created something like this myself as it's really simple.)

        • by schmidt349 (690948) on Friday July 10, 2009 @09:20AM (#28648603)

          But isn't that exactly the kind of software that *doesn't* deserve patent protection because of how mundane and obvious it is?

        • by plover (150551) *

          Well, it's that stuff without business logic. Basically a GUI interface to a database, that you could have generated out of the SQL with a script. (I have created something like this myself as it's really simple.)

          And all of that is rooted in math and Boolean logic. Representing the letter 'A' from the bits that make it up onto your screen is all math. SQL and UIs and everything else you see on your machine is built from thousands of those bits of math, each wrapped in semantically easier-to-understand layered abstractions. Just because some people don't remember that it takes math to decide to light up a pixel doesn't mean the math is gone, it's just very well abstracted so that people can understand it, reuse it

      • by ArhcAngel (247594)

        Microsoft BOB

      • Re: (Score:3, Informative)

        What is "non-mathematical software"?

        There is no such thing as non-mathematical software. Even printing "Hello, World!\n" requires math. Taking math out of software is sort of akin to taking carbon out of food.

        • by digitig (1056110)

          Taking math out of software is sort of akin to taking carbon out of food.

          Mmm, taste that salty goodness!

        • Re: (Score:2, Insightful)

          Permit me the reordering of your comments.

          Even printing "Hello, World!\n" requires math.

          At some level, in some sense, sure. Typing it into an IDE makes a machine do math. But so does typing a novel in Word. Yet few people would argue that writing a novel is a mathematical exercise, even if one uses a computer.

          And yes, there is a compiler, but there are similar transformations to print the pages out. The end product in one case is binary code, interpertable by a machine to produce desired behavior (the m

      • anything not written in LISP. And then some.

        Yes, software can be modeled mathematically. You can write good software by using strict mathematical reasoning.
        But not all software is mathematical. A lot of it is procedural. /most/ of it is procedural, really. You can re-write any computer program to fit an ideal mathematical model, but that doesn't make the method by which I chose to sort (that is, all the things that went into generating the number that eventually goes into sort()) returned prices this mornin

    • Re: (Score:3, Insightful)

      by sir_eccles (1235902)

      His logic isn't very good in my opinion.

      There is no concept in any patent law be it US or EU that would allow a claim to an integer by itself of the form "Claim 1, the integer 1009". I don't really see the point of his argument by saying that.

    • by MenThal (646459) on Friday July 10, 2009 @09:11AM (#28648501)

      His argument is simple: (1) math cannot be patented (2) all algorithms are math (3) all software is one or more algorithms and so follows that software cannot be patentable.

      While I agree with the sentiment, this isn't good logic. Since software is a combination of algorithms, the combination of those algorithms may be non-obvious and novel.

      I want SW-patents to go the way of the dodo as much as the next /.'er, but the above struck me as aking to A) atoms cannot be patented, B) all machines are made of one or more atoms, ergo machines cannot be patented.

      • by russotto (537200) on Friday July 10, 2009 @09:18AM (#28648587) Journal

        While I agree with the sentiment, this isn't good logic. Since software is a combination of algorithms, the combination of those algorithms may be non-obvious and novel.

        Any combination of algorithms in software is itself an algorithm. Knuth isn't arguing obviousness or novelty; he's arguing that software isn't patentable subject matter at all, no matter how non-obvious or novel it may be.

      • by Hatta (162192) *

        An algorithm may or may not be novel, it still may not be patented.

      • A mathematical theorem that combines several lemmas in a non-obvious and novel way is still not patentable. Combinations of abstract mathematical concepts leave you with another abstract mathematical concept -- a combination of algorithms is no less abstract or mathematical than a single algorithm.
      • by Anonymous Coward on Friday July 10, 2009 @10:34AM (#28649607)

        I want SW-patents to go the way of the dodo as much as the next /.'er, but the above struck me as aking to A) atoms cannot be patented, B) all machines are made of one or more atoms, ergo machines cannot be patented.

        There is a distinct difference between Knuth's logical progression and yours. It's a matter of a few words, which may seem nit-picky, but what manner of logic doesn't boil down to pure semantics?

        Knuth's "software cannot be patented" argument:
        * Math cannot be patented.
        * Algorithms ARE math.
        * Software IS a series of algorithms strung together (as an aside, a series of algorithms interacting is itself an algorithm)
        * Ergo, software cannot be patented

        Your counter-argument via analogy:
        * Atoms cannot be patented
        * Machines ARE MADE OF one or more atoms strung together
        * Ergo, machines cannot be patented

        Note the emphasized words: ARE versus ARE MADE OF. Math is not a tangible object, so there is no concept of "is made of" in that context. Atoms are tangible, albeit on a microscopic scale. Still, that's enough to say that a machine IS MADE OF specific atoms. However, you cannot say that a machine IS an atom. You can say that a machine IS a group of atoms, but that's not enough to warrant a patent; a machine is more than that. The group of atoms is crafted into unique and complex shapes, and those shapes are put together and mechanical force is applied to make it accomplish a task. That is what warrants a patent.

        I know exactly what you are about to think: aren't you doing the same thing to the series of algorithms? The answer is no. Math cannot be "crafted" into a "shape". It can describe a shape, but it is intangible. No mechanical force can act on math, and a solid object cannot be "made of math". An algorithm, quite simply, IS math; no more, no less. You can string together as many algorithms as you like, but all that does is create one larger algorithm. The same cannot be said about a physical object consisting of multiple atoms strung together.

        The end result of a software may fall under another system, like copyright or trademark. But the underlying logic is all math, and that cannot and should not fall under patent.

        • Effectively, the argument amounts to "Math is a descriptive language. Software is a way of stating mathematical concepts. Software should accordingly be not patentable for precisely the same reason literature is."
      • by bcrowell (177657)

        His argument is simple: (1) math cannot be patented (2) all algorithms are math (3) all software is one or more algorithms and so follows that software cannot be patentable.

        While I agree with the sentiment, this isn't good logic. Since software is a combination of algorithms, the combination of those algorithms may be non-obvious and novel. I want SW-patents to go the way of the dodo as much as the next /.'er, but the above struck me as aking to A) atoms cannot be patented, B) all machines are made of on

      • by Darth (29071)

        a combination of algorithms is also an algorithm. if the algorithms that make it up are math, then the algorithm they are as subset of is also math. If math is not patentable, then that algorithm is not patentable.

        I want SW-patents to go the way of the dodo as much as the next /.'er, but the above struck me as aking to A) atoms cannot be patented, B) all machines are made of one or more atoms, ergo machines cannot be patented.

        this is not the same thing. Atoms would be analogous to numbers in this argument.

    • by thedonger (1317951) on Friday July 10, 2009 @09:11AM (#28648503)

      IANAPT (I am not a patent-troll), but I am interested in your take on this: If fifty years ago I came up with a way to manufacture ball bearings - independently of an existing, patented method - would I not be sued by the patent holder of the bearing production process if I brought a product to market using my bearings?

      If so, how is that different than making an online auction site, basically copying the tried and true functionality of ebay? Software is not manufacturing, and the tools required are readily available for almost anyone to make their own ebay copy at very little cost (compared to manufacturing bearings), but is that enough to make it substantially different to where patent law would not apply?

      To be clear, I like the freedom of Linux, PHP, MySQL, and Apache, and I shudder to think I could come up with some neat idea for a client only to be sued because Amazon patented the "quadruple click" widget.

      • IANAPT (I am not a patent-troll), but I am interested in your take on this: If fifty years ago I came up with a way to manufacture ball bearings - independently of an existing, patented method - would I not be sued by the patent holder of the bearing production process if I brought a product to market using my bearings?

        .

        My understanding is, quite likely, but the patent holder would have lost, unless they held a patent on ball bearings.
        Let's take what I think is a better analogy to the current state (or maybe the just overturned state) of patent law (as interpreted by the courts). If the current interpretation had been in existence in the 1800's, the guy who developed the steam engine for trains could have written a patent for a device that moves under the power of combustion. This would have forced the developers of auto

      • by danaris (525051) <danaris@ma[ ]om ['c.c' in gap]> on Friday July 10, 2009 @09:50AM (#28648961) Homepage

        If fifty years ago I came up with a way to manufacture ball bearings - independently of an existing, patented method - would I not be sued by the patent holder of the bearing production process if I brought a product to market using my bearings?

        Only if your method was identical (or very similar) to his method.

        Despite modern corruptions, particularly in software patents, most patents are not, and should not be, of the form "A patent on making type of object X". They are and should be "A patent on a method for making type of object X."

        In the patent, the entire method is clearly spelled out—it is made "patent," or obvious—and from the patent, anyone in the field and with the requisite equipment/money could produce the same object X by the same method. This, too, is missing from software patents, because to truly match a regular patent in this, the software patent would need to include the source code.

        Dan Aris

        • or if not the source code, some manner of pseudo code or other explicit, mathematical description of the precise algorithm used -- which only makes the "software = math = not patentable" argument more obvious.
      • I believe this should be a look and feel issue, which is usually related to copyright. http://en.wikipedia.org/wiki/Look_and_feel [wikipedia.org] If you built a new fakeBay site using all new code, but the same functionality, I do not think it should be a patent issue.
      • You are comparing lemons to peppers. In the first instance, you are exploring valid patent questions. Software, however, comes under copyright law. We can equate algorithms to an artist's paint. Paint is widely available to almost anyone living in any civilized country. Anyone is free to use paint in almost any combination and pattern they wish to use paint. Some people actually come up with "masterpieces" using that paint. Algorithms, or methods of doing math, are widely available to to anyone with

        • You are comparing lemons to peppers.

          I usually use lemon and pepper in combination as a nice flavor accent to chicken or fish.

          I am aware of the difference between patent and copyright. What I was wondering about - and that a sibling post to yours addressed - is if the use of patents on the methods of creating via software a widget are patentable. Seems the argument is that a programmatic method for creating, say, a shopping cart is not patentable. The program utilizing the shopping cart, however, is copyrightable.

          It seems clear that "quadruple

    • by geminidomino (614729) * on Friday July 10, 2009 @09:15AM (#28648547) Journal

      THERE was his mistake...

      If Europe leads the way in this, I expect many Americans would want to emigrate so that they could continue to innovate in peace

      He told them if they did it, they'd be up to their asses in Americans! Hell, I wouldn't do it either, and I *AM* an American.

    • That is reductionism at its finest. I would agree software patents are generally bad - because they are overly broad (One Click [tm] for example), but not because they involve math. If you used this argument in the physical world it seems to fall apart however, and that's what has me question its validity. At a fundamental level the physical world can be described with chemistry (atoms, physics etc) - and since you can't patent atoms (as far as I know) anything made from them can't be patented - which is ev

      • At a fundamental level the physical world can be described with chemistry (atoms, physics etc) - and since you can't patent atoms (as far as I know) anything made from them can't be patented - which is everything patented including software because its just bits of atoms recorded in magnetic medium which can be described using chemistry.

        There's a huge difference between "can be described by" and "is". There's a difference between "composed from" and "is".

        You can't patent an atom, but a wheel isn't an atom,

    • by tambo (310170) on Friday July 10, 2009 @10:58AM (#28649987)

      "The USPTO replied by defining non-mathematical software to be patentable while purely mathematical software is not."

      Huh? This is completely wrong.

      The USPTO has been arguing against the patentability of software since, well, software was first invented. And its main rationale is that the USPTO is ill-equipped to examine software patent applications. Of course, that argument is quite laughable these days, since it has been obligated to examine software patents since State Street Bank v. Signature Financial Group (1998)... it raises many more questions about the USPTO's recalcitrance to get with the times and meet its legal obligations... i.e., the sharp incompetence and chronic failure of the USPTO administration in managing the day-to-day operations of the organization.

      The only "definitions" that have been applied to the field were created by the Court of Appeals for the Federal Circuit (CAFC), the appellate court that is solely empowered to hear appeals of district-level decisions in patent cases. That body (and its predecessor, the Court of Customs and Patent Appeals (CCPA)) have issued many different tests over the patentability of software. None have been satisfactory.

      There is only one constant holding in the range of varying CAFC decisions over the years: software cannot be categorically rejected as a class of patentable subject matter. This would be a flat contradiction of 35 USC, the body of federal law that empowers the USPTO to issue patents.

      But getting to the deeper problem: Software inventions cannot be categorically excluded from patentability because the technological spectrum of "method"-type inventions has a very smooth gradient. Consider:

      • An abstract solution to an abstract problem;
      • An applied solution to a specific problem;
      • A particular algorithm;
      • Specific code, runnable on a range of hardware;
      • Code embedded in memory of various volatilities (volatile RAM, flashable memory, static ROMs);
      • Configurable hardware (FPGAs) configured to implement a particular method; and
      • Circuits designed by automated processes to implement a solution specified (as software) with a circuit design tool.

      Everyone seems to agree that a particular circuit is, and should be, patentable. And everyone seems to agree that a completely abstract solution to a completely abstract problem is not, and should not be, patentable. Fair enough.

      The logical problem arises when someone (particularly opponents of software patents - Knuth, Stallman, etc.) try to draw a bright line in this list and say, "Everything above this list should be categorically excluded." The problem is that all of these embodiments accomplish the exact same thing in essentially the same way. Sure, there may be various ancillary advantages: cost of implementation, reconfigurability, speed, etc. But technically, they are completely fungible - they are technically equivalent. It is nonsensical and against the logic of technology to try to draw lines in the sand.

      Shame on anyone who attempts to invent arbitrary distinctions in this field. In attempting to warp the business of software to suit your ends, you ignore the conclusions of Turing that form the basis of your area of technology.

      - David Stein

    • Knuth oversimplifies a very abstract topic.
      The US Patent Act provides for patenting of "processes".
      The question here is: Which processes should be patent-eligible subject matter?

      all algorithms are math

      Depends on your definition of "algorithm". Is a recipe for manufacturing a new material via various chemical steps an "algorithm"? If an algorithm is defined as a series of steps, then yes. But chemical/manufacturing techniques have long been considered patent-eligible.

      I remain convinced that the patent pol

    • His argument is simple: (1) math cannot be patented (2) all algorithms are math (3) all software is one or more algorithms and so follows that software cannot be patentable.

      My argument is simple: (1) physics, biology, and chemistry cannot be patented (2) all mechanical operations, chemical/biological reactions are physical, chemical and/or biological (3) all machines, chemical/biological processes and compounds is one or more mechanical operations, chemical/biological reactions and so follows that machines, chemical/biological processes and compounds cannot be patentable.

      While patent trolls in software are real, just like those for cars, machines, detergents, all claims that

  • And so, it begins. (Score:4, Insightful)

    by danaris (525051) <danaris@ma[ ]om ['c.c' in gap]> on Friday July 10, 2009 @09:01AM (#28648405) Homepage

    Let's hope this is a sign of things to come. With some luck, we might even see various patents on codecs invalidated, thus allowing much more freedom for which formats to use with the HTML5 <video> element...

    Too bad we probably have to see the patents invalidated one by one, rather than getting the entire class thrown out in one swell foop.

    Dan Aris

    • by jez9999 (618189)

      Too bad we probably have to see the patents invalidated one by one, rather than getting the entire class thrown out in one swell foop.

      That would indeed be one cunning stunt of a swell foop.

    • by tepples (727027)

      Too bad we probably have to see the patents invalidated one by one, rather than getting the entire class thrown out in one swell foop.

      Would a lawsuit against all members of MPEG-LA, seeking an injunction against enforcing every patent in its portfolio, count as "one fell swoop" for H.264?

      • by Svartalf (2997)

        Heh... You'd have to be well heeled to promulgate either a SJ procedure on the subject or the defense of an infringement case against you, violating their patents.

        Keep in mind, though... The court system doesn't work the way you think it does and the MPEG-LA patents are conveniently for us something that can be implemented on a PC. They're really intended for dedicated hardware which passes the Bilski litmus test. It makes for a difficult call there and I wouldn't want to be the one to gamble on that de

  • by Drakkenmensch (1255800) on Friday July 10, 2009 @09:15AM (#28648549)
    Just when I was going to patent my "process for delivering an online response to a website article post", judges start remembering the Bilski Test!
    • Just when I was going to patent my "process for delivering an online response to a website article post", judges start remembering the Bilski Test!

      You would never be able to implement that without paying royalties for the "process for transferring information between computers" patent, anyway.

  • by fullmetal55 (698310) on Friday July 10, 2009 @09:22AM (#28648623)
    unless the definition of "machine" specifically indicates Hardware, (which i'm sure it doesn't since processes can be patented) sounds to me like Dealerlink didn't have a lawyer who specialized in Patent law. rather than allowing the argument to be lead in the direction of a processor being the "specific machine" the "specific machine" should have been the algorithms used in the code. This case doesn't stop anything. it's not precident setting, it's pretty much a bad lawyer losing a case for his client. IANAL nor do I play one on TV, but I work with enough of them to be able to spot a bad one. As soon as they mentioned specific machine, it seems their lawyer curled up and died, when he should have been arguing that the specific machine test does in fact pass as without the algorithms the process falls flat, and it is in fact the algorithms that constitute the specific machine in the patent. not the CPU or computer. If this does become a precident however, and this judgement does define a machine as "hardware" a LOT of patents are going to become invalid or challengable. and not just software patents. which means it's really just a matter of time before it's overturned.
    • by russotto (537200) on Friday July 10, 2009 @09:45AM (#28648893) Journal

      An algorithm cannot be a "specific machine", as an algorithm isn't patentable subject matter in the first place. For years, software has been patented by using dodges like "A device consisting of CPU, storage, input device, output device executing algorithm X". Bilski makes that dodge invalid.

      Some software patents are even sillier, in that they patent the _media_ containing the software. Some of Microsoft's FAT patents are that way, for instance. I don't know if that dodge has been tested in court since Bilski (or even before)

    • the "specific machine" should have been the algorithms used in the code

      What makes this a valid legal argument? Not challenging it, just would like more explanation.

    • unless the definition of "machine" specifically indicates Hardware, (which i'm sure it doesn't since processes can be patented) sounds to me like Dealerlink didn't have a lawyer who specialized in Patent law. rather than allowing the argument to be lead in the direction of a processor being the "specific machine" the "specific machine" should have been the algorithms used in the code. This case doesn't stop anything. it's not precident setting, it's pretty much a bad lawyer losing a case for his client.

      He didn't have many options, actually... I just read the patent involved. There are two independent method claims, reciting "a computer aided method". That's it. No support in the specification for hardware, specific CPUs, etc. So he really couldn't try to argue the specific machine route.

    • Re: (Score:3, Insightful)

      by Abcd1234 (188840)

      rather than allowing the argument to be lead in the direction of a processor being the "specific machine" the "specific machine" should have been the algorithms used in the code.

      Uhh... what? An algorithm is a process. A set of steps for performing some sort of operation. That is not a "specific machine", anymore than the design for a cotton gin, written down on paper, is a specific machine. The specific machine is that algorithm reduced to practice in some form. For a computer algorithm, that would mea

      • So you can patent a set of instructions for creating a set of instructions. Brilliant.

        • by Abcd1234 (188840)

          Hey, I never said it was smart, that's just the way it is. If you buy into the idea that software is patentable, it makes sense that it should be an implementation reduced to practice for a specific machine, thus at least resembling a real, physical invention. 'course, I happen to believe software shouldn't be patentable, but that's a separate issue.

    • Re: (Score:3, Interesting)

      The legal ruling saying that says that it must work with a "specific machine" is more recent than the ruling that says that processes can be patented. Said ruling appears to be intentionally limiting the ruling that allowed processes to be patented. Additionally, there is reason to believe that the judges in that case felt that the ruling allowing processes to be patented should be reversed, but made a more limited ruling partially because of the nature of the case before them and partially in order to allo
  • by DoofusOfDeath (636671) on Friday July 10, 2009 @09:40AM (#28648807)

    Perhaps the greatest benefit of this ruling is that it could be appealed up to the SCOTUS.

    Granted, this is risky for both sides. But perhaps if the SCOTUS gets enough appeal requests regarding software patents, it will finally address them.

    As a practicing CS researcher and as a programmer, I sincerely feel that patent threats are the greatest limitation we face on software innovation. I can't begin to imagine that the benefits to our society are outweighing the costs.

    • Re: (Score:3, Insightful)

      Perhaps the greatest benefit of this ruling is that it could be appealed up to the SCOTUS.

      Granted, this is risky for both sides. But perhaps if the SCOTUS gets enough appeal requests regarding software patents, it will finally address them.

      I thought they already accepted an appeal of the Bilski case and were going to hear it next year?

      As a practicing CS researcher and as a programmer, I sincerely feel that patent threats are the greatest limitation we face on software innovation. I can't begin to imagine that the benefits to our society are outweighing the costs.

      Patent threats are probably the greatest limitation we face on any kind of innovation. Historically they seem to either slow innovation (eg, sudden advancement of steam engines when the patents expired) or have no discernible effect.

      • p>I thought they already accepted an appeal of the Bilski case and were going to hear it next year?

        Well, so much for that "+5 Insightful" I was going to give my wife for her birthday...

    • by Neil (7455)

      Perhaps the greatest benefit of this ruling is that it could be appealed up to the SCOTUS.

      But the Supreme Court has already said that it will hear the Bilski appeal:

      http://arstechnica.com/tech-policy/news/2009/06/scotus-to-hear-bilski-may-be-huge-for-software-patents.ars [arstechnica.com]

      Surely that's when the precedents will be set?

  • Kind of surprised the court didn't stay the decision considering that Bilski is scheduled to be heard by the Supreme Court.
  • by MobyDisk (75490) on Friday July 10, 2009 @09:42AM (#28648847) Homepage

    I often see the opinion that "mathematical software" should not be patentable, but "non-mathematical software" should be. I appreciate the theoretical arguments on this subject, but the practical ones seem to point the other way.

    When Phil Katz [wikipedia.org] invented a compression algorithm, he patented it. It seems to me, to be a fair thing to do. He invented the algorithm, he should deserve the credit and (if he chose to commercialize a product), the resulting profits. Same thing with encryption algorithms - if I created a new super-encryption algorithm, I should be able to commercialize it.

    The problematic software patents are not mathematical. They are things like one-click shopping and auctions done over the internet, or really all of the something done over the internet patents. These are lame and should be eliminated. But a new algorithm seems like truly inventive to me.

    • Re: (Score:3, Interesting)

      by Theaetetus (590071)

      I often see the opinion that "mathematical software" should not be patentable, but "non-mathematical software" should be. I appreciate the theoretical arguments on this subject, but the practical ones seem to point the other way.

      When Phil Katz [wikipedia.org] invented a compression algorithm, he patented it. It seems to me, to be a fair thing to do. He invented the algorithm, he should deserve the credit and (if he chose to commercialize a product), the resulting profits. Same thing with encryption algorithms - if I created a new super-encryption algorithm, I should be able to commercialize it.

      The problematic software patents are not mathematical. They are things like one-click shopping and auctions done over the internet, or really all of the something done over the internet patents. These are lame and should be eliminated. But a new algorithm seems like truly inventive to me.

      Yeah. Even more so, the policy decision behind excluding novel and nonobvious mathematical algorithms from patentable subject matter has to do with thoughtcrimes... Say I get a patent on 2+2=4. You read my patent specification where I describe in extensive detail how 2+2 comes to equal 4. You understand it and think, "gosh, now I know that 2+2=4". Did you just infringe my patent, merely by thinking it? We don't want that outcome.

      Bilski had two routes for patentability in process claims: "transform" somethi

    • Even supposing we had complete freedom to do so, it would be hard to formalize a clear division between patentable and non-patentable algorithms. I agree with you, and respectfully dispute with Knuth, that some algorithms qualify as inventions. On the other hand, some algorithms arise in such a direct consequence of fundamental mathematical properties that they qualify only as discoveries. And then there's the hazy middle ground.

      It's true that, by construction, and given infinite time, it's possible t
    • by Xenographic (557057) on Friday July 10, 2009 @10:54AM (#28649915) Homepage Journal

      > I often see the opinion that "mathematical software" should not be patentable, but "non-mathematical software" should be. I appreciate the theoretical arguments on this subject, but the practical ones seem to point the other way.

      What does "mathematical" mean to you, exactly? Seems like you think it means that the software has to use a lot of math you've never heard of to do something complex. Now, I can at least respect the argument that very innovative new processes might merit legal protection, though I think it's a terrible idea because it's unnecessary and it carries a high cost for society. Mathematicians can also make life difficult for you. If I create an equivalence relation between something patented and something not patented, what does the patent control? Have I destroyed the utility of the patent, or does the patent swallow up my "invention" too?

      But back to the original point, the division between "mathematical" and "non-mathematical" software is the result of fuzzy-headed thinking by people who don't know what math is. Software is equivalent to math [wikipedia.org] and that link describes how you turn programs into math (and vice versa). There's no such thing as non-mathematical software because there's no such thing as non-mathematical math.

      Now I know there are some people, especially that guy at IP Watchdog who was in the news quite a while ago, who think that because they can do a few fancy integrals, partial derivatives, and linear algebra, they know all there is to know about math. But they totally ignore the stuff that's relevant here and probably don't even know what type systems [wikipedia.org] or proof calculi [wikipedia.org] are. Suffice it to say that anyone who thinks they know all there is to know about math is wrong.

    • by Wolfbone (668810)

      The "it's all maths / it's not all maths" arguments are indeed bogus - but so are the "it's truly inventive, it deserves a patent" arguments. Credit should be given and easily can be without also entailing powerful monopoly exclusion rights; your ability to commercialise some invention is not dependent on its being patentable and is not something which can be guaranteed by patents anyway; furthermore, third party patents can and often do work in exactly the opposite direction!; the patent offices never have

  • Babies and bathwater (Score:4, Interesting)

    by McGregorMortis (536146) on Friday July 10, 2009 @09:46AM (#28648901)

    I'm not entirely comfortable with Bilski. I think the Bilski test has thrown out the baby with the bathwater.

    Not, in the case at hand... this patent sounds like 100% pure unadulterated bathwater. But nevertheless...

    I'm not sure why so many Slashdotters are so opposed to software patents as a concept. To my mind, the problem has been that the "non-obvious" requirement has been ignored or interpretted in such a way as to render it meaningless.

    There are some really clever algorithms out there, though. Algorithms that are not at all obvious, and really advance the state of the art. If Quicksort was invented today, wouldn't it deserve a patent?

    But if the bath water is going to include such notorious crap patents as 1-Click, Desire2Learn, NTP, and many others, then I would have to say that the bathwater is so rank and disgusting that it's not too high a price to pay to lose a handful of babies, as Bilski does.

    But can't we do better? Can't we find an "obviousness" test that works?

    • But if the bath water is going to include such notorious crap patents as 1-Click, Desire2Learn, NTP, and many others, then I would have to say that the bathwater is so rank and disgusting that it's not too high a price to pay to lose a handful of babies, as Bilski does.

      But can't we do better? Can't we find an "obviousness" test that works?

      Bilski wasn't about obviousness - Bilski was about patentability of certain types of inventions. For obviousness, you want to look at KSR v. Teleflex, where the Supreme Court laid out 9 different ways to find something obvious.

    • by Svartalf (2997) on Friday July 10, 2009 @10:21AM (#28649407) Homepage

      The position is pretty explicit. The past law was such that if it were a business process or describing an algorithm in the traditional sense (the bulk of software patents do this...) then it wasn't patentable- same goes for that which resides in nature. Bilski puts it back to where it was prior to all the fun and games when it was thought that it was a "good idea" to allow patenting damned near anything. It's not throwing the baby out with the bath water- it's fixing part of what's been broken for a while now.

      • Yes, but none of that answers the actual question GP was asking.

        Is it useful to society to allow patenting of non-obvious algorithms that accomplish new things in new ways? We certainly want to see the development of these things, so is this the right way to encourage it, or is a funding model like basic research more appropriate? Or should we leave it entirely to the private market and see what comes up incidentally through the development of new products and services?

        I don't think patents are the
    • Re: (Score:3, Interesting)

      I'm not sure why so many Slashdotters are so opposed to software patents as a concept. To my mind, the problem has been that the "non-obvious" requirement has been ignored or interpretted in such a way as to render it meaningless.

      Patents are based on the idea that you have a person who is an Inventor, and needs to have special privileges to be able to invent new things. Historically what seems to happen is that lots of people will be experimenting in the same area and possibly sharing notes, and will all converge on an invention.

      Patents are fundamentally based on the assumption that Inventors are uniquely special, and a particular Invention is unique to a particular Inventor. This is not correct.

    • by winwar (114053)

      "I'm not sure why so many Slashdotters are so opposed to software patents as a concept. To my mind, the problem has been that the "non-obvious" requirement has been ignored or interpretted in such a way as to render it meaningless."

      I think your second sentence answered your first :)

      In any case, what's the useful purpose of having a patent on something that is copyrighted? Especially due to the permanence of copyright.

      Aside from stifling innovation, of course...

    • by Jason Levine (196982) on Friday July 10, 2009 @11:19AM (#28650309)

      I'd point out that software is covered under copyright. If I make a great new program and you copy it, I can sue under existing copyright laws. Giving that program patent protection "protects" it twice which isn't needed and merely reduces competition. Instead of you needing to write, from scratch, your own competitor to my "great new program," you're locked out of the market because it is patented.

      Add to that the vast number of patents that are too vague, aren't enforced until a technology becomes popular (aka patent trolls), or just cover some mundane thing done "over the Internet" or "using a computer," and you can see why people don't like software patents.

    • I'm not sure why so many Slashdotters are so opposed to software patents as a concept.

      Because all Slashdotters (100% of them) use the Internet.

      Networks are about communication and interoperability. Software patents got a lot of attention, starting in 1989 when the LZW thing came up in DDJ, because they prevent interoperability. You were not allowed to implement a side of a conversation, such as decoding a GIF.

      Quicksort can be replaced with other sorts; nobody really needs Quicksort to get their proje

  • Double Edge (Score:2, Informative)

    by duanes1967 (1539465)
    This is really a tough situation. Consider the CODEC. It is primarily a series of mathematical algorithms, but is quite complex and provides a function never before found. This is the brunt of intellectual property. We have moved beyond mechanical devices to the point that the device is not unique, but it's application is. On the other hand, what if the patent on a pencil covered the output from the pencil? In my opinion, a codec is definitely a process that is non-obvious, while Amazon one-click purc
    • by SirGeek (120712)

      I have a device and software that I want to patent that falls into between "Duh-Why didn't I think of that" and "Holy Sh#$, that's awesome".

      I think most people would say, THAT is patentable (at least the device piece). No one says that a device that is unique shouldn't be patentable, just algorithms should not be.

      I don't think people are against a device with a specific "implementation" of an algorithm being patentable.

  • Decision Text Here (Score:5, Informative)

    by Theaetetus (590071) <theaetetus.slash ... m ['ail' in gap]> on Friday July 10, 2009 @09:54AM (#28649009) Homepage Journal
    Summary points to a press release. The actual decision is available here: http://bfwa.com/docs/dealertrack.pdf [bfwa.com] (7 page pdf)
  • The case (Score:3, Informative)

    by Absolut187 (816431) on Friday July 10, 2009 @11:19AM (#28650311) Homepage

    It is actually Judge Guilford (not "gilford") of the Central District Court of California.

    The case number is 2:06-cv-02335-AG-FMO.

    Full text of the order granting summary judgment below:

    ---

    UNITED STATES DISTRICT COURT
    FOR THE CENTRAL DISTRICT OF CALIFORNIA
    DEALERTRACK, INC., ) CASE NO. CV 06-2335 AG (FMOx)
    )
    Plaintiff, )
    ) ORDER GRANTING MOTION FOR
    v. ) SUMMARY JUDGMENT OF
    ) INVALIDITY OF '427 PATENT
    DAVID L. HUBER; FINANCE )
    EXPRESS, LLC; JOHN DOE )
    DEALERS, )
    )
    Defendants. )
    )
    Defendants Finance Express, LLC ("Finance Express") and RouteOne, LLC ("RouteOne") (collectively, "Defendants") have filed a Motion for Summary Judgment of Invalidity as to U.S. Patent 7,181,427 ("Motion"). Because the Court finds that the '427 Patent is directed to unpatentable subject matter under 35 U.S.C. 101 and the recent case of In re Bilski, 545 F.3d 943 (Fed. Cir. 2008), Defendants' Motion is GRANTED.
    BACKGROUND
    Plaintiff DealerTrack, Inc. ("DealerTrack") asserts that Finance Express and RouteOne

    have infringed three of DealerTrack's patents, including U.S. Patent 7,181,427 (the "'427 Patent"). The '427 Patent, which was issued on February 20, 2007, is entitled "Automated Credit Application System." According to the Abstract, the patent is directed to a "computer based credit application processing system [that] provides a graphical user interface, automatic software update downloading, lender to lender routing of credit applications, and integration with in-house finance and insurance systems and third party data entry facilities, among other features." The background section of the patent explains that before the '427 Patent, most processes for obtaining credit and financing of major consumer purchases had been done manually. (Hadley Decl. Ex. 1 at 1:23-25.) With the invention of the '427 Patent, the "entire indirect loan application processing, routing, and funding" is placed in an environment with graphical user interfaces. (Id. at 1:48-2:56.)
    DealerTrack asserts that Defendants have infringed on claims 1, 3, and 4 of the '427 Patent. Claim 1, an independent claim, recites a "computer aided method" of managing a credit application, consisting of the following steps:
    [A] receiving credit application data from a remote application entry and display device;
    [B] selectively forwarding the credit application data to remote
    funding source terminal devices;
    [C] forwarding funding decision data from at least one of the remote funding source terminal devices to the remote application entry and display device;
    [D] wherein the selectively forwarding the credit application data step further comprises:
    [E] sending at least a portion of a credit application to more than
    one of said remote funding sources substantially at the same time;
    [F] sending at least a portion of a credit application to more than

    one of said remote funding sources sequentially until a finding [sic] source returns a positive funding decision;
    [G] sending . . . a credit application . . . after a predetermined time . . . ; or;
    [H] sending the credit application from a first remote funding source to a second remote finding [sic] source . . . .
    Claim 3 recites the method of Claim 1, with the additional steps of "aggregating data for a dealer having a plurality of dealerships located at different locations" and "providing the dealer with a consolidated report using the aggregated data." Claim 4 recites the method of Claim 1, with the additional step of "obtaining credit report data from at least one remote credit bureau terminal device."
    Defendants now seek summary judgment that the '427 Patent is invalid based on a recent Federal Circuit decision.
    LEGAL STANDARD
    Claims of an issued United States patent are presumed valid. 35 U.S.C. 282. "A party seeking to establish that particular claims are invalid must overcome the presumption of validity in 35

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