At June 5, 5:11am you write:

“Like your words, software patents, too, are completely obtuse and 100% useless to any of us who write code. I’ve read them. They’re written by lawyers for judges.”

Now even your worshiped meta-math.org site would interpret the word “any” as used above to mean: for ALL members of the set (persons who write code).

This may come as an utter surprise to your world view, but there are real-world overlaps of the sets (persons who write code) and (lawyers) and (persons who have a hand in writing software patents).

How could this be? You ask.

Well, sometimes, people who used to write code (or otherwise design algorithms that are to be machine-implemented) go to law school and become patent attorneys. That’s one example that falsifies your hypothesis about “any”.

Sometimes, people who write code (or otherwise design algorithms that are to be machine-implemented) have an idea that they regard to be novel (new to the world), nonobvious (to artisans of ordinary skill) and useful (in the sense of being part of the useful arts as opposed to being entirely within the purely entertaining arts). These people sometimes go to a patent attorney (or agent) and have a hand in preparing the “software” patents that you deride as being “completely obtuse and 100% useless to any of us”. That’s another example that falsifies your hypothesis about “any”.

Your worshiped meta-math.org site would probably conclude that the above is a complete disproof of your hypothesis. But then again, cognitive dissonance may block you from seeing it as such.

Don’t get me wrong. I understand how you “feel” and can empathize with those feelings. However, those feelings probably come out of a limited appreciation of the world as it is. Writing code is not the all and everything.

You can keep your “(T)hanks”. I don’t want them. Don’t bother keeping up the blogging. Dennis does it better.

Thanks for your comment. I think you have proven which one of us is “ridiculous.”

If you cannot understand why large companies who have dominant status and a monopoly would want to keep the status quo there is nothing I can say to explain that to you.

-Gene

Get a grip man. European patentable subject matter law is anything but seamless. It is a mess, cannot be followed, is made up as it goes along and provides no certainty. By any measures of what it takes to have a stable and just legal system the European view of patentable subject matter is unfair, arbitrary and purely ridiculous.

What the Supreme Court should do is recognize that Judge Rich was correct and State Street was the only just outcome under US law.

-Gene

It is hard to take anything you say seriously when you continue to perpetuate the myth that software is math. No matter how many times you say it, no matter how many times other say it, it will NEVER be true.

It is curious that you say source code is the best mode, and source code is language. Source code is entitled to first amendment protection because it is expressive. So your own argument proves that software is not math, but you don’t even see that.

-Gene

What they will replace it with, heaven knows. As you say, it’s not going to be a bright line, is it?

I like the EPO line on 101 because it evolves seamlessly, owing nothing to common law Binding Precedent, and adjusting painlessly to new technology, as it arrives, even while that new technology remains gobbledegook to members of any Supreme Court, anywhere in the world.

That’s where we are now, isn’t it: two legal worlds with nary a chance of harmonisation.

Have a look at the 90 or so Amicus Briefs on EPO G3/08, from the likes of AIPLA, MS, IBM, Apple, Pitney-Bowes, Accenture and SAP. Show me any of them that says the present EPO line on 101 is wrong or not clear.

Now consider the EPO line on 103. It is unassailable. That’s because it has been 25 years in the making, by 24 equal rank Technical (that word again) Boards of Appeal, all at first disagreeing with each other but then, as a result of handling thousands of oppositions (between, say, Procter & Gamble on one side and Kimberley-Clark on the other, patent owner and opponent) reaching consensus. That same consensus has now arrived, with “technical” on 101, and it is by now also unassailable. As technology evolves, so will the consensus view within the Appeals Directorate of the EPO, what is “technical”. And no national court has any control whatsoever over any of those TBA decisions to revoke. Ever heard of a phenomenon called “creep”?

England (common law) looks on in horror, from its offshore location, but can’t do anything to stop the burgeoning mainland consensus.

I can’t imagine what SCOTUS will write. With Binding Precedent, and non-specialist judges in the supreme instance, it’s a nightmare. No wonder they are all scared to define a bright line. So they should be.

Another item to consider, if you do not mind.

Gene (and others) have pointed out that the US system is purposefully extrordinarily broad. The “any” in our 35 US 101 has been interpreted as “anything under the sun made by man”, and we provide full sections in our law discussing business methods (which arguably open the door beyond the EP technological effects). Even Bilski, although limiting items to the two prong test also clearly states that there are NO categorical exclusions. We have already been down the path of the “useful arts is limited to technology” – that path is a dead end. It has been put quite emphatically that a “technological arts” limitation to subject matter IS unconstitutional.

Would it appear to you that the US path and the EP path diverge on this critical basis and cannot be rejoined except perhaps for the EP to follow the US? As our courts (especially the Supreme Court) dislike brightline tests (due in large part to the extreme broadness that US patents are meant to cover), do you think that SCOTUS will remove the Bilski Test, which is, in large view, a 19th century mechanistic limitation on “anything under the sun made by man”? A clue (the clue?) may lay in Newman’s dissent in Bilski. I believe the Supreme Court will follow Newman’s thoughts on this and remove the brightline test. I also believe that they will NOT provide a replacement brightline test.

Given the above as a premise, how would you as a non-US observer view the distinct paths?

Let me give credit where credit is due (I knew that you were in a different class than MM and 6).

The above exchange is a beautifully subtle comparison between EP and US systems, without conflating the principles.

Well done.

Most of those words mean absolutely nothing to anyone who actually writes code, though they’re often uttered by those who manage them. I’m not going to argue with your distorted notion of history, except to mention that some of those packages existed long before software patents and that there are well-tested, well-documented systems available for free. But it’s the “disseminate information” part that really gets you. Source code is information to us. More than a few Ph.Ds in computer science have been built from projects within the Linux kernel, for example.

Like your words, software patents, too, are completely obtuse and 100% useless to any of us who write code. I’ve read them. They’re written by lawyers for judges. We have to simplify them to the level of “a patent for a system using cookies and database references to allow someone to buy a product with one mouse click” because that’s as much as we can understand once the claims have been rewritten to cover as much patentable subject matter as possible while disclosing as little useful information as possible. To us, software patents are useless things the managers and lawyers came up with so they would have reasons to sue their competitors and distort the marketplace in their favor under the guise of “innovation.”

The patents don’t “disseminate information” at all and “innovation” is just a silly buzzword used by those who want to create complex schemes to commoditize and monetize the act of thinking. When we want to actually get some of that information from others, we turn to code we license from other people or reuse from open source (which already covered by copyright) fills in all those helpful details the patents never usefully describe. Source code is, in fact, the best mode of describing computer software as far as we, the people who actually make these inventions, are concerned. I don’t remember seeing anything I could compile on any of the patents I have read which cover software. To us, the “best mode” requirements as applied to software patents are a sick joke. The algorithms get rewritten into leaglese when there are perfectly useful, incredibly precise, ways of describing them that are actually useful merely because lawyers don’t know our language.

It gets worse when we have to endure legal fiction. Sometimes I see lawyers arguing that software isn’t math. The site http://metamath.org/ should suffice to prove that wrong.

I guess what I’m trying to say is that, to us who write code, software patents are nothing but a pain. They don’t help me create new and better software. They don’t “incentivize” me. They don’t even improve my pay. They merely help businesses sue each other and waste time arguing over whether a general purpose computer with common, standardized attachments is a “particular” machine or whether shuffling electrons around in a standard way on a commodity device should have been considered a “transformation.”

I guess I’d much rather spend my time writing useful software than arguing about that stuff. But I guess that’s not an option for everyone?

You say that patentability in the USA has never been confined to technology. In theory, I suppose you mean. That’s what State Street said, right. State Street made no difference to conventional and accepted practice, of course. Not sure that it was SCOTUS that set the test as “anything under the sun”. It has yet to announce a definitive test, I had thought.

Let’s think about what “useful arts” meant to those who wrote the Constitution. Is there not at least one CAFC member in KSR who felt able to take a pragmatic, historically-grounded view (useful arts = applied arts=technology) on that ? We can dismiss that view as unConstitutional, can we?

Bonkers, I know, but scientists and engineers taking degrees from Oxford University even now receive the title Master of Arts.

You are right, this is a 101 thread, but you are not correct that judges can rely on their own opinions and common sense with respect to 101. The law in the US is that anything made by man is patentable. Judges are not granted the latitude to ignore that Congressional intent or the Supreme Court cases that mandate that. In the US we will never have a boundary condition, as you put it, and everything that is nonobvious should be patentable, and is in the US with very few exceptions.

Whether you recognize it as “technology” is not the inquiry. Many make the mistake that only “technology” is patentable. That never has been, nor will it ever be the law in the US.

-Gene

I never said that a literary work is patentable. What is patentable is a process or method. You do not receive a patent on a book, but if there is a unique process that can be articulated for people to follow that is patentable, not the verbiage that makes up a book.

There is no tension between patent attorneys and the courts. Selecting the “common sense” language of the Supreme Court case is curious as a proof of your position. I am sure you have to realize that what is obvious to some might not be obvious to others, correct? So what the Supreme Court has done is create a moving, uncertain definition of what is obvious that has no objectivity. The law must be objective for it to be followed, or have any moral force. Uncertainty and purely subjective standards simply ridiculous and do not allow people to order their affairs.

Your opinion is worth something, but I do think you are focusing on the wrong things to inform your opinion. The fact is that virtually all judges have no knowledge of science, and having them decide what is obvious is odd really.

-Gene

Your position is easy to understand, given the premise of “technical effect” as a baseline in your favorite patent system. But ask yourself, is that same baseline a requirement in the US system?

I see that we differ on whether the literary work “How to Win Friends and Influence people”, in the time when it was still new, could have been recognised as a patentable invention, a “process” no less, under 35USC101.

There is a traditional tension between patent attorneys and the courts, the former pushing the envelope of patentability, and the latter necessarily having to push back (if only by resorting to a “common sense” test). My opinion is worth nothing, but it does seem to me that you are doing a remarkable amount of envelope pushing here, and at least enough to offend a sense, of what is patentable, that would be common to most if not all judges.

The term “process” and the term “method” are used interchangeably in patent speak. How to win friends and influence people could be defined as a process. Processes and methods include steps that direct action.

Take a look at this patent covering a process for making dough products – http://www.google.com/patents/about?id=ssEPAAAAEBAJ&dq=4,761,290.

While this may be viewed by some as a silly patent, the core invention relates to reheating dough that has been frozen so that it does not have the distinct and undesirable taste associated with frozen dough, which can be important for a whole host of businesses. This invention shows how one can define a process or method, and processes or methods have always been patentable. If you search for a process or method of cutting grass you will find a lot of examples, and if you search for a process of baking you will find a lot of examples. There are indeed all kinds of examples for doing all kinds of things.

Practically everything can in some way be characterized as a process, and it seems extremely likely that a roadmap could be created defining for someone how to influence people and make friends, so this would qualify as patentable subject matter. The question is whether it is new and nonobvious, if yes then it should be patentable.

This being the case, why not allow patents on software that is new and nonobvious? The way you define software as a process is by explaining the steps that the machine goes through to accomplish certain defined functionality. What is defined are the process steps the machine goes through as directed by the software. So the software provides the instructions to the machine with respect what to do, when and how. Those steps can be defined as a process/method, and this type of invention has always been considered patentable subject matter.

I do not think all software should be patented, but software should be considered patentable subject matter with a patent granted to true innovations that are new and nonobvious. With much done or common sense, much software should not be patented, but software deserves to be considered on the merits of the innovation, not out of some desire to prevent an entire class of invention from being unpatentable subject matter.

-Gene

Your question is a good one. It is unfortunate that patent law uses a misleading term as a part of this whole debate. When we talk about something being patentable that can mean two different things. First, it could refer to whether the invention is considered patentable subject matter. Second, it could refer to the invention warranting the issuance of a patent. With respect to software, when I say that it should be patentable what I am referring to is patentable subject matter, which is only the first inquiry on the way to determining if an invention can and should receive a patent. If an invention is patentable subject matter it would still need to be new and nonobvious in order to obtain a patent. The nonobvious requirement is where many inventions fail, and probably where much software should fall out.

Examples of unpatentable subject matter include laws of nature, a mathematical equation, naturally occurring minerals or processes. The hallmark for whether something is patentable subject matter is human intervention (according to the US Congress and US Supreme Court). If there is human interaction then there is patentable subject matter. So the step of isolating or mutating genes, engineering life forms are examples of where there is human interaction that alters nature and the alteration is potentially patentable (assuming it meets the other requirements of patentability).

Copyright law protects expression, not function. In fact, if something has a function or is in any way useful a copyright cannot be obtained. Patent protect those things with function and use. I am not familiar with Tiger Woods new gold game video, but an example of something that is certainly patentable subject matter are teaching methods. So if he were to create a method to teach people how to golf that would be something that could be patented, meaning that it is patentable subject matter. Whether such a thing would actually receive a patent would depend upon whether the method or process (words that are used interchangeably in patent law) is new and nonobvious.

Software can enjoy both copyright protection and patent protection because the source code for software is written in a language and is expressive. There are many ways to write things in code, but software code has been determined by the courts to be entitled to First Amendment protections because you can communicate meaning through source code. You protect only the source code with copyright law, not the function. So if you have a software copyright that would allow you to stop others from copying the code. It would not stop others from writing original software code to accomplish the same functionality. This is where the patent comes in. To protect the functionality regardless of manner of coding you need a patent.

Much software simply cannot be patented because it is not new and is obvious, which is also true with respect to some (perhaps much) software that is patented. It should not have been patented because it is not new and is obvious. Even when the function cannot be protected because it is not unique enough to warrant a patent a copyright could be obtained on the code, but software copyrights are extraordinarily weak, but justified based on it only costing $45 to receive protection.

I hope this helps. I think I need to expand upon this as a blog article, but hopefully this helps. My feeling is that it is simply wrong to weed out from what could be patented all software or all business methods. We need to accurately apply the novelty and nonobvious requirements in intellectually honest ways to weed out that which is not new or unique, but not sweep up true innovations, even if they are software related.

Much more to come.

-Gene