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."
Similar to Donald Knuth's Logic (Score:5, Interesting)
'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.
Re:Similar to Donald Knuth's Logic (Score:5, Interesting)
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:
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.
Re:Similar to Donald Knuth's Logic (Score:4, Interesting)
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.
Re:And so, it begins. (Score:1, Interesting)
In any case, patent law could use a rule like: if the merits of the patent do not substantially improve other (non-patented) methods, then the patent is invalid (i.e., the technology would be free to use by anyone else). This would rule out all the compatibility problems, with codecs, but also with file systems (FAT, anyone?) In my opinion, such a rule would be very fair, and useful as well.
Re:Similar to Donald Knuth's Logic (Score:5, Interesting)
Would mathematics still be copyrightable?
Yes, a sufficiently large number can represent a copyrighted work. It can be represent a piece of music or a computer program. (A program is a list of instructions that describes a mathematical process in a way that a machine can carry out.) A program is copyrighted as a literary work, but the process that the program describes cannot itself be copyrighted in the United States per 17 USC 102(b) [copyright.gov]. That's why some inventors have been trying to use patent law, which is designed to protect processes, to secure exclusive rights in algorithms.
Because any piece of music can be written down as a series of bytes
While we're still on the subject of musical copyright for a moment: Define the "hook" of a musical work as the first few notes of the memorable part. Then the Kolmogorov complexity [wikipedia.org] of a hook can be estimated as having 40 bits or fewer, based on encoding each of the first eight notes in five bits: four bits for the pitch (0 to 15 relative to a standard scale), and one bit for whether the note is short or long. So there are only about a trillion musical hooks, and the birthday problem [wikipedia.org] suggests that collisions start to become likely around the square root of that (a million). The music-theoretic rules of which pitches fit well together reduce the space even further. For comparison, the repertories of the major U.S. performance rights organizations, which have already surpassed 15 million (8.5 million for ASCAP [ascap.com] and 6.5 million for BMI [bmi.com]). So collisions such as "He's So Fine" vs. "My Sweet Lord" (Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976)) quickly become inevitable.
Re:how long until the process becomes a "machine" (Score:5, Interesting)
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)
Babies and bathwater (Score:4, Interesting)
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?
Re:Backward patent logic (Score:3, Interesting)
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" something and "tied to a specific machine". The former is because we don't want to invalidate "process" patents on tempering steel, for example. The latter is because, once tied to a specific machine, you're not infringing the patent by thinking. If my claim above was "A method of adding, wherein a memory register on a computing device containing data identified as the number 2 is added, by an addition engine configured on the computing device, etc.", then you could never infringe it with your brain, or even a pad of paper and a pencil.
In this patent, the claim was "a computer aided method", but that's it for specifics. That's not a meaningful limitation. For instance, if my claim was "a computer aided method of adding 2+2 to equal 4", and you use wordpad instead of a pad of paper and pencil, did you just infringe? Sure. That starts to go back towards the thoughtcrime end of things, though. So, for policy reasons, we want to limit patents on things like this in a meaningful way that requires a specific machine.
Re:how long until the process becomes a "machine" (Score:3, Interesting)
Re:Babies and bathwater (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.
Re:Similar to Donald Knuth's Logic (Score:1, Interesting)
I'm not the OP, but I suspect it has something to do with the fact that a patent lasts for 13 years, and copyright is forever minus a day. (in the US, it's "life of creator plus 25, oops, make that 50, no, now 75 years, and the underlying law is changed every 20-25 years so that it adds another 25 years every time Disney's Steamboat Willie (and Mickey Mouse) might enter the public domain.)
Spend ten billion dollars to invent the cure for cancer? You get a patent. In return for a monopoly on manufacturing the drug until 2022, you tell the world how you did it, but in 2023, you'd better have made your $10B in R&D back, because in 2023, anyone with a sufficiently large chemistry set is allowed to start cranking out a generic version of your miracle drug at $1.00/pill.
Draw a cartoon mouse? You get a copyright. You can sell comic books, but anyone who puts one of them in a photocopier at any time in the next century gets charged $80,000 per page, or whatever the print version of RIAA's $80K-per-song verdict is.
Fuck copyrights. Scrap the entire copyright system and go with patents. Software's not art, it's invention. Just like a cure for cancer, if you haven't made your money back on a piece of software in 13 or 17 years, it's time to let someone else use the code.
Re:Babies and bathwater (Score:1, Interesting)
Let me turn it around the other way. Why do clever algorithms "deserve" a patent?
Personally, I'm much happier allowing the "inventor" of an algorithm to simply productize it. There is absolutely no need to give them a monopoly on the algorithm. They already obfuscate the code*, so it works perfectly well as a trade secret.
If someone who discovers a clever algorithm deserves to profit from it, why does the second (or subsequent person) who discovers it not deserving of the same profit? And if multiple people can discover the algorithm, resulting in no special profit, perhaps the algorithm wasn't so clever after all.
It's not that a test for "obviousness" is needed. We already have it. If I can't figure out how to implement it, then it's not obvious and doesn't need the monopoly of a patent. If I can figure it out, then it shouldn't be patented.
* I'm a free software advocate, so I am opposed to obfuscated code. However this is because I believe that an open source approach is more beneficial for everyone involved. In this case patents aren't desired anyway. So it really is the case that patents exist for obfuscated code.
Re:Similar to Donald Knuth's Logic (Score:3, Interesting)
And patents require that you show how you did it. Essentially, that setup would force all software source code into the public domain after seventeen years. Software is also much more similar to machinery than, say, artwork, as well.
Re:Software is equivalent to math. (Score:5, Interesting)
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.
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Re:The C definition, same token on both sides. (Score:3, Interesting)
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?