Judge Invalidates Software Patent, Citing Bilski 252
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."
Re:Similar to Donald Knuth's Logic (Score:5, Insightful)
What is "non-mathematical software"?
And so, it begins. (Score:4, Insightful)
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
Re:Similar to Donald Knuth's Logic (Score:3, Insightful)
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.
Re:Similar to Donald Knuth's Logic (Score:5, Insightful)
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.
Re:Similar to Donald Knuth's Logic (Score:5, Insightful)
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.
Re:Similar to Donald Knuth's Logic (Score:5, Insightful)
But isn't that exactly the kind of software that *doesn't* deserve patent protection because of how mundane and obvious it is?
how long until the process becomes a "machine" (Score:4, Insightful)
The *real* potential (Score:4, 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.
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.
Backward patent logic (Score:4, Insightful)
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:how long until the process becomes a "machine" (Score:3, Insightful)
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 mean a series of instructions running on a microprocessor.
Re:The *real* potential (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.
Re:Backward patent logic (Score:1, Insightful)
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.
One of the things that really bothers me about software patents is that the patent holders are trying to have their cake and eat it, too.
The purpose of the public offering patent protection to individuals/companies is that the public reaps the benefits of having the details of the patented technology opened. In the case of software, for that to be realized, I would think that a software patent would need to be accompanied by the full source-code to a specific implementation of the patented algorithm.
The problem is that people who try to patent things like a new encryption algorithm are taking advantage of triple protection: the protection of the patent on the method, the protection of copyright law on the binary, and the protection of obfuscation since they don't even release the source-code.
If software patents are to be allowed, then a viable implementation needs to accompany the patent, and that code should be free-and-clear (including no copyright restriction) after the patent protection elapses. Of course that's only one argument against software patents. The other arguments (it's just math, high likelihood of independent discovery, etc.) also sink the whole notion...
Re:Babies and bathwater (Score:5, Insightful)
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.
Re:Similar to Donald Knuth's Logic (Score:5, Insightful)
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.
Mathematicians don't need patents. (Score:4, Insightful)
> 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.
Re:Similar to Donald Knuth's Logic (Score:5, Insightful)
"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:
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
Re:Babies and bathwater (Score:4, Insightful)
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.
Re:Similar to Donald Knuth's Logic (Score:3, Insightful)
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 inherent in the universe itself, since all things ultimately derive from nature and her processes, we merely re-arrange nature.
Re:Similar to Donald Knuth's Logic (Score:2, Insightful)
Permit me the reordering of your comments.
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 machine will then use math). In the other case, the end product is text, interpertable by a human brain to produce the desired thoughts. This may use math as well.
Math is in everything at some level, the only interest is if the math is what is interesting.
Few people would contend that a chef's recipe is chemistry, despite the building blocks requiring some chemicals. (Okay, on slashdot, more people than normal may.)
Re:The C definition, same token on both sides. (Score:3, Insightful)
Re:The C definition, same token on both sides. (Score:3, Insightful)
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'), but it will calculate the numbers 3 1 1 20 ('caat') into ('cat'). The old patent for the GIF files, and the current patents for MP3 and for MPEG, they are nothing but patents on the math equations for transforming one sequence of numbers into a different (usually shorter) sequence of numbers. We usually apply the MP3 math calculations to the sequence of numbers recorded from a microphone, and we usually send the MP3 sequence of numbers to a speaker, and microphones and speakers are patentable, but the MP3 patents are patents on the pure math of calculating numbers into different numbers. The famous RSA patent for asymmetric encryption, one of the most economically important developments and wildly regarded as one of the most "genuinely inventive" software patents, even that is nothing more than a patent on the math equations for transforming on sequence of numbers into a different (encrypted) sequence of numbers. It's a patent on pure math.
You can certainly ATTACH a computer to some industrial device for manufacturing rubber or preforming other physical activities, and you can certainly patent those physical devices for preforming those physical activities, but software is indeed nothing but pure math. Software is incapable of doing anything other than elaborate math calculations changing one set of numbers into a different set of numbers.
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Re:The C definition, same token on both sides. (Score:3, Insightful)
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 they are unique, novel, and produce some useful result of some kind.
Software should not be exempt from this, because the creation of software is a difficult creative process that falls well under the goals of the constitutional patent provisions. We need incentives to produce good software, and said software needs to be well understood in order to be improved upon for the good of society. However, because software is essentially just math for a specific purpose, the only thing really patentable is the method or structure of the math. That structure should be so novel that nobody had thought about doing things that way before.
Software is pure math in the same sense that the design of an automobile is pure math. It is written down in math, in the case of software it is even used via math (i.e. processed through the computer), but the idea behind it is often times NOT math, and the purpose or use of the software is usually NOT pure mathematical in nature. It is often not even related to mathematics. It's the idea, the design, that is patentable.
This should be as true for software as anything else. I think the problem is a lack of understanding of which parts are novel and which parts are the mathematical tools used to perform the work.
Novel methods or processes for any purpose should be patentable, regardless of how simple they are. If nobody else has done it, it should be fair game for a patent. Methods that are the essentially re-iterations of common methods but applied to software or business practices, without anything new and innovative, should not receive a patent. When your patent consists of the software equivalent of pulling trash out of a trash can and walking it to the dumpster, it should be denied. That's the case with the patent in TFA, it was simply a method of collecting data from multiple sites and displaying it in an organized way to the user. There was nothing innovative, it didn't do anything special with the data, it didn't have some new process that nobody has ever thought of to make the whole thing more efficient, it was simply data aggregation applied to financial purposes. It was very non-unique.