On Tuesday, June 11, 2013, the Patent Trial and Appeals Board issued a ruling in SAP America, Inc. v. Versata Development Group, Inc., which is the result of a Covered Business Method challenge to U.S. Patent No. 6,553,350 filed by SAP on September 16, 2012. The PTAB, per Administrative Patent Judge Michael Tierney, determined that “Versata’s ’350 claims 17, and 26-29 are unpatentable under 35 U.S.C. § 101.” Looking more closely at the ruling, however, makes it clear just how significant this ruling will be. The breadth of the 101 determination is shocking and virtually guarantees that 101 will be used by patent examiners to effectively prevent software patents from issuing altogether.
In a nutshell, the PTAB ignored all the recited tangible computer elements embodied in the claims. Once the specifically articulated and necessary structure is ignored the PTAB then concluded that the claims protect only an abstract idea.
In order for there to be infringement each and every limitation would have to be found in the accused infringing method. So under what authority does the PTAB ignore specifically recited structure? The authority that the PTAB seems to be relying on to ignore claim terms is unclear and not explained in the opinion in any satisfactory way. It does, however, seem that the fact that the invention can be implemented in any type of computer system or processing environment lead the PTAB to treat the method as one that could be performed on a “general purpose computer,” rather than a specific purpose computer. Thus, the PTAB picks up on the arbitrary and erroneous distinctions between general purpose computer and specific purpose computer without as much as a thought and wholly without factual explanation.
Sadly, the PTAB makes the same mistake that so many courts and so-called software experts make. It is undeniable that the presence of a piece of software turns a dumb terminal that is incapable of accomplishing anything into a machine that is specifically useable for the intended purpose. In order to grasp this unassailable reality the PTAB should instruct the tech people at the USPTO to remove all software (including operating systems) from their laptops and desktops. They should then attempt to accomplish any task. They will then conclusively prove to themselves that without software the computer ceases to be able to provide any functionality; even functionality of a general purpose computer, whatever that may be. Then they can instruct the tech people to load software onto the oversize paperweight occupying space on their desk, which had formerly been a computer with myriad capabilities all thanks to the presence of software. When software is reloaded the PTAB will notice that the machine can be once again used to accomplish whatever specific task the loaded software enables. Presto-chango! The paperweight is now a useful machine! No black magic, just basic understanding of software and the inherent limitations of hardware, which as it turns out is capable of absolutely nothing in and of itself.
The Claims at Issue
Before proceeding to dissect this unfortunate decision let’s actually look at the claims at issue, which surprisingly is not something that is done in the PTAB decision. Sure, they piecemeal discuss the claims, but nowhere are the claims actually listed in their totality. Exceptionally surprising since the PTAB decision did quote the entirety of claim 8 from the patent at issue in the Supreme Court’s Benson decision. How or why it is appropriate to quote that claim in its entirety by not quote the claims they were actually deciding is peculiar to say the least.
There were three independent claims at issue, so let’s look at them. Claim 17 recites, with emphasis to point all the tangible structure ignored by the PTAB:
17. A method for determining a price of a product offered to a purchasing organization comprising:
arranging a hierarchy of organizational groups comprising a plurality of branches such that an organizational group below a higher organizational group in each of the branches is a subset of the higher organizational group;
arranging a hierarchy of product groups comprising a plurality of branches such that a product group below a higher product group in each of the branches in a subset of the higher product group;
storing pricing information in a data source, wherein the pricing information is associated, with (i) a pricing type, (ii) the organizational groups, and (iii) the product groups;
retrieving applicable pricing information corresponding to the product, the purchasing organization, each product group above the product group in each branch of the hierarchy of product groups in which the product is a member, and each organizational group above the purchasing organization in each branch of the hierarchy of organizational groups in which the purchasing organization is a member;
sorting the pricing information according to the pricing types, the product, the purchasing organization, the hierarchy of product groups, and the hierarchy of organizational groups;
eliminating any of the pricing information that is less restrictive; and determining the product price using the sorted pricing information.
Notice, that although not specifically recited explicitly, the retrieving of the pricing information must be from the data source. This is significant because if you remove the data source the claimed invention wouldn’t work. The data source is absolutely required.
Claim 27 recites, with emphasis to point all the tangible structure ignored by the PTAB:
27. A computer implemented method for determining a price of a product offered to a purchasing organization comprising:
retrieving from a data source pricing information that is (i) applicable to the purchasing organization and (ii) from one or more identified organizational groups, within a hierarchy of organizational groups, of which the purchasing organization is a member;
retrieving from the data source pricing information that is (i) applicable to the product and (ii) from one or more identified product groups, within a hierarchy of product groups, of which the product is a member; and
receiving the price of the product determined using pricing information applicable to the one or more identified organizational groups and the one or more identified product groups according to the hierarchy of product groups and the hierarchy of organizational groups.
Notice again how the data source is absolutely required and imposes a real and significant limitation on the claims.
Claim 29 recites, with emphasis to point all the tangible structure ignored by the PTAB:
29. An apparatus for determining a price of a product offered to a purchasing organization comprising:
a memory coupled to the processor, wherein the memory includes
computer program instructions capable of:
retrieving from a data source pricing information that is (i) applicable to the purchasing organization and (ii) from one or more identified organizational groups, within a hierarchy of organizational groups, of which the purchasing organization is a member;
retrieving from the data source pricing information that is (i) applicable to the product and (ii) from one or more identified product groups, within a hierarchy of product groups, of which the product is a member; and
receiving the price of the product determined using pricing information applicable to the one or more identified organizational groups and the one or more identified product groups according to the hierarchy of product groups and the hierarchy of organizational groups.
Notice once again how the data source is specifically required and could not be removed without the entire claimed invention collapsing and ceasing to operate. Notice also the inclusion of a processor and memory, all of which are tangible items in and of themselves.
I would be happy to have a discussion about whether these claims are new within the meaning of 35 U.S.C. 102 and non-obvious as required by 35 U.S.C. 103, but to say that these claims merely protect an abstract idea is clearly erroneous and intellectually dishonest.
Unfortunately, as much as I hate it, this decision from the PTAB is sound. It is 100% intellectually dishonest in all that it says and holds, but it is mandated by ridiculous state of the law thanks to the United States Supreme Court ruling in Mayo v. Prometheus that conventional steps or means cannot render an abstract idea patent eligible under 101.
Clearly, the Supreme Court is wrong. They conflate 101 with 102 and 103 despite decades of warning by earlier panels of the Supreme Court never to do such a thing. In Mayo the Court gleefully and ignorantly proclaim that they “decline the Government’s invitation to substitute §§102, 103, and 112 inquiries for the better established inquiry under §101.” First, it is not an invitation to use 102 and 103 for novelty and non-obviousness; it is absolutely required by the Patent Statutes unless and until the Supreme Court decides to rule them unconstitutional, which they have never done. Second, 101 is not the “better established inquiry” because in the 2020 years leading up to Mayo v. Prometheus it had NEVER been used by any court to find a patent claim invalid because it lacked novelty, which is exactly what the Supreme Court did when it acknowledged that the claims did not cover a law of nature but rather only added conventional steps. The question about conventionality is one for 102 and 103 specifically.
Still, while the PTAB may have strictly followed the nonsense cobbled together by the Supreme Court in a variety of inane missteps relating to patent eligible subject matter, that does not change the fact that what was determined factually and held legally is utterly and totally dishonest from the viewpoint of objective reality. Furthermore, some of what the PTAB said was unnecessary and ridiculous in its own right.
For example, at one point the PTAB decision explains:
[W]hile the challenged claims are drafted to include computer hardware limitations, the underlying process that is implemented on such hardware could also be performed via pen and paper.
This is the same incorrect analysis undertaken by the 5 Federal Circuit Judges who would rule all computer implemented innovations patent ineligible. Why is the PTAB, an examiner or a Federal Circuit Judge looking at the underlying process at all? When they look to the underlying process they are by their own admission ignoring the claims. Do they look to the underlying process when the claims are inartfully drafted but the underlying invention is patentable and an important innovation? Absolutely not! So what authority gives the PTAB, an examiner or any Court the authority to ignore the language of the claims? Either the claims matter or they don’t matter, you can’t have it both ways despite nebulous Supreme Court dicta over the years acknowledging the clever drafting of patent attorneys. Either we patent innovations based on disclosure and no longer require claims or we determine whether claims are valid. It is unfair and wholly without support to ignore the claims and make determinations about patent eligibility based on the specification.
I wonder whether the PTAB would find a calculator patent eligible. After all, all a calculator does is something that can be performed via pen and paper, or even in the mind of a particularly bright and mathematically inclined individual. Surely the fact that a calculator is a stand alone machine can’t make it patent eligible, can it? That would be ridiculous.
Perhaps a calculator is patent eligible as a stand alone machine but a complex piece of software that is so functional and innovative that it can run on any platform is not patent eligible because of the very fact that it is flexible, dynamic and machine independent. That seems to be what the PTAB is saying here:
The claimed invention of the ’350 patent requires only routine computer hardware and programming. The ’350 patent states that its invention may be implemented in any type of computer system or programming or processing environment… Thus, as with the “shift register” in Benson, the recitation of generic general purpose computer hardware (processor, memory, storage) in the challenged claims represents routine, well-understood conventional hardware that fails to narrow the claims relative to the abstract idea.
By any objective definition of innovation a stand alone machine capable of only a single thing is inferior compared to software that can enable any machine, even the phone in your pocket, to be transformed into a machine specifically useful for a specific purpose.
Yes, I just had the audacity to acknowledge the truth. Software is transformative. It takes a machine, any machine, that is otherwise wholly incapable of operating to perform a particular function and transforms it into a machine that is capable of offering the specific functionality defined by the code. Thus, if we are going to be perfectly honest and acknowledge undeniable objective reality, software is patentable under the machine-or-transformation test despite being tethered to a machine and because it is transformative.
Still, I wonder if the PTAB, or any court for that matter, has ever considered what computer implemented processes are patent eligible under the tests that they so willingly apply. I doubt it because that would require meaningful articulation of what is a general purpose computer and more importantly what is a special purpose computer. Truthfully, there is a chicken and the egg problem. You see, despite what the learned Justices on the Supreme Court believe, there is no such thing as a special purpose computer, which you would expect to be self evident to technically trained individuals on the PTAB. A computer is hardware wired together that is wholly incapable of doing anything on its own. The PTAB and other courts pretend that a special purpose computer actually is something that exists and is real. The reality is that a special purpose computer is akin to Bigfoot or perhaps a unicorn. A computer becomes capable of providing specific and “special” functionality upon the loading of software. There is no such thing as a special purpose computer in the absence of software.
The PTAB conclusion that Versata’s claims preempt an abstract idea is flat wrong and, frankly, insulting. The PTAB could say their hands are tied by Supreme Court precedent, but they shouldn’t pretend that these claims that specifically recite tangible structure preempt an idea. And if they are going to say that shouldn’t they be required to define what is an abstract idea?
Join the Discussion
221 comments so far.
Jon GilbertAugust 19, 2013 05:47 pm
To say software does not alter the physical machine is wrong. Software is stored as a specific orientation of magnetic particles on a disc, or a specific orientation of physical electrons stored within a memory matrix (RAM, SSD). Software sends specific computing instructions to a processor in the form of precise physical patterns of electrons. Just in the same way, the distributor in a car sends electrons to spark plugs in a specific sequence enabling the engine to run, and most cars now use a computer to control much of this. Further any machine is nothing more than information temporarily conveyed in the arrangement of protons, neutron, and electrons within the spatial matrix of the “reality” of the universe, which is arguably itself a giant quantum computer that we ourselves are merely software running on (see MIT theorist Seth Lloyd’s paper, “Universe as quantum computer”). The fact that genes are patentable belies the validity of arguments against software patents since gene sequences are merely biological software! And biology is merely software running on the universe itself.
Re Bilski was denied because they tried to tack “on a computer” to their ideas just to make it patentable. Citing a “data source” does not require a computer: an autistic guy who memorized the phone book is a data source, too. Software that relies on specific things about computers like network protocols, markup languages, complex data structures that are clearly defined by the patent, etc. are things that remain patentable. Saying “a piece of software that accomplishes goal X” is not patentable without thoroughly explaining how that goal is accomplished by the software.
step backJune 22, 2013 08:17 pm
A writer? –LOL
Then surely your opus was writ with quill dipped in nonexistent ink.
For to use real physical ink and mark up real paper physically alters the paper just as surely as rearranging magnetic domains (on a hard disk) or trapped electrons (of a flash drive) alters the physical memory device in which those bits are writ. And once pricked with poison of the physical mark, the computer becomes one marred with different structure, hence no longer a clean slate. Perchance.
Or should I say, Tim’shel?
AnonJune 22, 2013 04:24 pm
Software does have a physical existence Wayne.
Perhaps you missed the point earlier concerning the ability to obtain copyright protection and what that ability necessarily entails.
Perhaps you also missed the point earlier about the rule of law and the printed matter doctrine, or more properly, the exceptions to the printed matter doctrine.
ALso, not yet put on the table in this discussion thread is the notion of constructive reduction to practice. Not even constrained to software, but I can obtain a patent on a Wodget that is never actually made physical. For this discussion, all that suffices is that I inform you that a Wodget has nothing to do with computers or software, and yet he plain legal truth endures.
Perhaps, you need to understand the discussion before you wade in trying to make points long refuted.
You ask if one patent should cover such a wide range of manners of doing something, and in law, you should learn not to ask questions that you do not know (or will not like) the answers to.
The answer is yes. The reason is the doctrine of equivalents. Sorry, Wayne, but what you want is not what you have, and you cannot have what you want.
Wayne BoreanJune 22, 2013 03:45 pm
Surrealism is useful. Of course I’m a writer, so I tend that way 🙂
The point being that tires, bullets, and rivets have a physical existence. Software doesn’t. Should that make a difference?
That depends. Patents are allowed on processes, like for rubber curing. Is software a process?
Gene argues that it transforms a machine. As I’ve pointed out, my current computer is capable of being a great variety of machines, due to VirtualBox. If software is patented, should a Word Processor for Windows which has patented features block the implementation of similar, but totally differently implemented features on a Word Processor for OSX or Linux?
Take for example a function to access the Internet for searches through a Word Processor on Windows. It is going to use particular calls in the Windows API. The same sort of function on OSX is going to use calls in the OSX API. There’s no code in common, the API calls are done in a different manner, and may use different programming languages which have nothing in common with each other in function or form.
In fact it may be impossible to implement the idea in anything like the same way, because of the differences. Should one patent cover such a wide range of manners of doing something?
AnonJune 22, 2013 03:09 pm
You have entered the realm of the surreal.
These examples have been presented several times lately on several different blogs – and I am sure that they have been presented on this blog (probably, because I was the one that presented them):
None of these have any utility outside of the interacting systems that they are a component to. All of these are perfectly patent eligible in their own right.
I don’t mind that you have a different view of the law, but please, at least come close to what the law is.
And jodi – this does not count as a nice duck – this duck won’t quack.
jodiJune 22, 2013 02:45 pm
An automobile engine is useless without gasoline too but we don’t ask why are engine improvements patentable.
But nice duck and switch to move topic away from large tech corps duping software developers :-).
Wayne BoreanJune 22, 2013 12:33 pm
Why? Seriously. To reverse what Gene said, a program is useless without a computer to run it on. So since a program by itself won’t do anything, why should it be patentable?
Yes, that’s section 101, but how can you patent something that won’t do anything?
jodiJune 22, 2013 10:57 am
Sorry, my autocorrect keyboard corrected “Stanford” patent to “Standard”! I meant “Stanford patent that Google inherited”.
No worries, once software patents disappear, no incentive for some small guy with bright idea to reduce chances of the above happening to follow thru because he knows my smartphone vendor will scoff at him/her when approached with the idea & details – and simply copy it.
jodiJune 22, 2013 10:52 am
Trans-national corporations is right. If/when patents disappear, then large tech companies will recognize their most efficient profits will come from monitoring the competitive landscape (especially all the smaller or independent developers) and simply COPY their innovations. That’s what Microsoft wanted to do with Google 12years back but couldn’t find a way around that Standard patent Google inherited. Something like 80% of R&D is wasted effort, thrown in the bit bucket, brainstorming ideas re-evaluated as not feasible, failed prototypes tossed aside, etc… So why would a large tech company bother innovating with costly R&D? The investors won’t stand for it – correction: the SMART investors won’t stand for it – they’ll push for cheapest, safest, fastest way to get the highest return on their investment. Nothing beats having the competitors work thru the technical details and simply assigning 2 or 3 developers/programmers in whatever foreign country has the lowest salary at the time to re-implement the features/innovations/etc…
All easy to understand, however, getting the point to other developers (for I am one) is difficult to say the least. This is one of the few sites that allows me to speak on this topic – but guess what – there are no Developers reading here. They are all too busy over on other sites beating the same old drum, patting each other on the back in their echo chambers. The fact they are working for the man, in a cubicle, marching towards a cliff is lost on them – for they are lemmings obeying the teachings of the scripts handed to them.
AnonJune 22, 2013 09:46 am
And the fact that many otherwise intelligent programmers are themselves programmed with the “patents are bad” lemming script is almost the ultimate irony.
They imagine themselves heros in their own mind by ‘fighting the good fight’ against patents with the script that they have been handed, not realizing just who is benefiting from their march up the hill towards the cliff.
AnonJune 22, 2013 09:43 am
Exactly right Jodi – and exactly why you see just who is pushing for just what types of ‘reform’ in patent laws.
There is a phrase for this: Agency Capture.
There are huge dollars at stake and the large corporations simply don’t give a rip about innovation or about any one nation. They are trans-national in their lust for the only thing they care about: profit.
jodiJune 22, 2013 08:48 am
Regarding trade secrets, we’re closer than you think. Previously, you were able to obtain the software (usually in binary or compiled format) – so you could inspect and learn from it. More and more functionality is moving to back end – eg web services, Cloud, etc. Patents at least “lay it open” to enable others to stand on the shoulders who came before them.
In other words, we should be strengthening reasons to patent innovations in software – not looking to ban or weaken.
jodiJune 22, 2013 08:37 am
Wayne @197 you said:
1) I assume you’re talking about medium-large companies – the funding may not be an “issue” but I assure you that some entity had to pay for the developers time. The funding had to come from somewhere – e.g. siphoned off from other operations, investors, etc.
2) patents aren’t there to incent the “vast majority of software written” but rather to incent the innovations. The “vast majority” are inherently not innovative. In other words, MOST of creations are not advancing technology or knowledge.
3) Generally speaking, and lets not fool ourselves, but patents are there for the smaller entities. Does a Google really need patents to squeeze anybody out? They have a myriad of other means at their disposal. For one, they can deploy an innovation almost instantly and squash others that are not substantially different. Conversely, the independent and small, generally, have to fight tooth and nail to bring their innovations to market. How many cases do we see where big company cans projects (innovative or not) – whereas rare with smaller entities.
Yeah, … So I’m going to call BS on this one. Last month you said you’d never seen a non-obvious patent. Sorry, but I’m not sympathetic with bullies from companies that have resources like “internal programming teams” and “funding wasn’t an issue”. Give true innovation a chance, allow software patents for the smaller entities.
AnonJune 21, 2013 06:20 pm
To wit: the ascendancy of Trade Secrets and the bestowing of a near-patent “right” with the Prior User Right.
Don’t get me started…
step backJune 21, 2013 04:45 pm
The Founding Fathers were followers of the Enlightenment movement of the 18th century.
They believed in an Enlightened citizenry.
In other words, one that knew what was going in their government.
And one that knew what was going in the sciences and useful arts.
They believed in a citizenry that joined together and shared with one another so as to promote the general welfare, for now and for posterity.
In other words, the Founding Fathers believed in open sharing of know how so that collectively the people of America would promote progress in science and the useful arts and share in the bounty that flowed from that promotion.
Certain political groups have hijacked ownership of the Founding Fathers and have flipped the original beliefs upside down, for example by alleging that trade secrecy and secret goings on in our government are good for the general welfare of the American people. That is a lie. The Founding Fathers believed in the opposite.
AnonJune 21, 2013 07:11 am
And one element in that calculus of whether to patent or not (or publish, if you are not patenting – for whatever reason – and want to block someone else from patenting) is whether or not you find your invention worthwhile enough to use in your business.
The premise put forth by Wayne was that there was enough value to use the invention internally.
This leads full circle back to the point of having a patent system: the reason was to ‘promote the progress” and the legal term of art for ‘promote’ is akin to ‘spread the word.’
You choose NOT to spread the word you place yourself at risk to those who DO choose to spread the word. That’s the Stick.
And that system works.
But we have grown soft, and the agency has suffered from Agency Capture by the moneyed interests and the Stick of innovation is being removed. There are easily foreseen consequences to this.
step backJune 21, 2013 06:12 am
The problem of some innovators not knowing that they can patent the work they just did is not unique to the software industry.
It’s pretty much everywhere.
(Although if you work for a Big Pharma Co and you don’t understand that you need to patent the useful “synthetic” genetic fragment you just discovered then someone needs to get fired, you, your boss, or both.)
The mere fact that something is new, useful and nonobvious (e.g. a novel software process) does not mean one should rush out and spend the big bucks on patenting it. There are many variables. At the end of the day it should be a business judgment. Where do you invest your scarce R&D dollars? What will the ROI be? Best to talk (in confidence) with a trusted patent practitioner about that.
As a vague example, let’s say there are already 1000 known ways to skin a cat and you invent a new and nonobvious 1001’th way. Let’s say your invention is not economically superior to at least a few of the already known other ways. It would then be economically foolish to patent it. (You might do it for vanity. Some inventors do that. But most people watch carefully where they spend their next dollar.)
Gene QuinnJune 21, 2013 03:01 am
You say: “A lot of people doing internal work, don’t regard what they are doing as cutting edge, or for that matter innovative. They are just filling a corporate need.”
I agree. One of the issues that many companies have is that the people who are on the front lines of innovation are unfamiliar with what can be patented. Many times those who do innovate have an incorrect view about what level of “newness” is required in order for there to be a patentable innovation. I think a lot of folks who come up with patentable innovations think that “I’m not inventor so if I came up with it there is no way it is patent worth.” This is why companies are advised to continually educate their front line engineers and scientists about what is patent eligible and what they should be bringing to the attention of their supervisors through invention disclosures. Internal audits and training are critical to success.
AnonJune 20, 2013 10:33 pm
The problem Wayne, is that the progress is not promoted by those who do not share and then the same selfish people complain when people do share.
Sorry, but the patent system was designed to have both the carrot and the stick. Don’t like the stick? Then share (and this does not even have to be share by patent, as even a publication would suffice).
In the meantime, stop whining.
step backJune 20, 2013 10:11 pm
Two quick points:
(1) Just because you believe something and you are wrong in your belief doesn’t mean you get a reward for holding on to that belief.
(2) Much of the work done by programmers and other IT types of “ordinary” skill is ordinary and not patent worthy; often having been invented many many years before by someone of “extra-ordinary” skill and then shared with the world one way or another (as opposed to being kept a trade secret).
Wayne BoreanJune 20, 2013 10:04 pm
Problem arises when you believe that the process/design is already in use, or so obvious that it wouldn’t be patentable. A lot of people doing internal work, don’t regard what they are doing as cutting edge, or for that matter innovative. They are just filling a corporate need.
AnonJune 20, 2013 09:15 pm
Carrot and Stick – that internal effort does not promote the progress.
Easy way around that – without the cost of attempting the patent: publish it.
Now on the other hand, if you want to hoard that and not share, and someone else is willing to share and obtain a patent, well shame on you.
That’s the way it has worked for hundreds of years across ALL art fields. Such served the constitutional objective. If you have a problem with that, then you need to take it back to the very source of our law.
Gene QuinnJune 20, 2013 09:13 pm
I agree with what you say about Travis. Rather than talk about the issues he wanted to continue to forward absurd statements and play ignorant. There are plenty of places on the Internet where that type of head in the sand approach is welcome. I’d rather not have it get in the way of a useful discussion of the issues.
step backJune 20, 2013 08:44 pm
Until the 2011 America Invents Act came into effect, when there was a contest between a 1st group who chose the trade secret route (as you relate above) and a 2nd group who chose the patent-and-disclose route, then the 2nd group won because they were helping to “promote the progress of science and the useful arts”.
In other words, patent rights trumped trade secret rights.
(**Caveat: However if the 1st group put on sale or otherwise publicly revealed their invention more than 1 year before group 2 filed their patent, that could have been a 102b bar to patenting)
The 2011 AIA Act includes a “Prior User Rights” section which allows the group following the trade-secret route to privately shield themselves against a patent infringement charge. That changes the landscape somewhat. Bu the “Prior User Rights” section has not yet been tested in actual litigation. So we don’t know for sure how it will play out.
Under the older patent law, saying “I did it first” did not help if you kept it as a trade secret.
Wayne BoreanJune 20, 2013 07:31 pm
But the vast majority of software is written internally for companies, i.e. it never gets sold because it is a trade secret. Every company I’ve worked for since 1988 had internal programming teams. None of that software was sold, and funding via patents wasn’t an issue.
What was an issue was an outside company with a 2000 patent claiming that software which we’d written in 1990 was infringing on their rights. I’ve seen that happen.
What about VirtualBox? With it I can (and do) run Windows XP, Windows 98, FreeBSD, Ubuntu Linux, and OpenSolaris on my MacBook Pro. Each operating system has different software installed, for different purposes. I also run DOSEmu. I like playing some of the classic DOS games.
Does that make my MacBook into eight different computers?
Agreed. With the extra space, it isn’t necessary to get super crazy with memory anymore. I can remember using the cassette buffer on the Commodore C64, because there just wasn’t enough memory to do things otherwise. Had similar issues with DOS – string space was a huge issue with larger programs.
step backJune 20, 2013 01:53 pm
The human brain is a funny thing.
Some people have certain ideas permanently stored in the ROM part of their brain rather than in the reprogrammable Flash memory part of their brain.
Travis appears to have the equation Computer=Toaster permanently etched in his ROM.
And also Patents=Bad permanently etched in his ROM.
No attempt at reprogramming will succeed.
Gene QuinnJune 20, 2013 01:28 pm
Clearly adding software to a computer provides the computer with abilities that the computer did not have prior to installation of the software. Why you fight that undeniable truth is a mystery. I can only guess it is because you do not have it in you to admit when you are wrong and others are correct, which means you never were interested in a debate. You merely want to repeat your clearly erroneous statements over and over again. Continuing with the same erroneous statements over and over again is not the level of commentary deemed acceptable on IPWatchdog.com.
AnonJune 20, 2013 07:45 am
One more thought for you to consider.
By analogy and extension of your logic to basic chemistry, the entire notion of patents disappears across the board.
The chemical elements, the building blocks of everything, are each well known. How each block can be attached to any other block is also well known. Therefore, any combination is per se obvious per your rationale. Nothing is patentable if it consists of any element put together under the known methods of molecular bonding. That is, nothing is patentable at all. This is the equivalent Morse treatment of the chemical world to your treatment of the computer world.
There are two phrases that you should contemplate:
1) There is nothing new under the sun.
2) What is patentable is to include anything under the sun that is made by man.
When you understand how you can integrate both of these statements, and when you decide that you want to step up and over the circle, you will emerge as a three-dimensional being. But you have to want to leave the circle. As you retreat back to analogies that have been debunked, I just don’t see you wanting that. In this regards, Jodi is exactly right – you are not here to understand. You are here merely in an attempt to reinforce the lemming script that you have been handed. My apologies if this sounds harsh and dismissive, but until you are truly willing to learn – and that means letting go of your script – I cannot force you to learn and what I can do is dismiss you.
AnonJune 20, 2013 07:21 am
You are being obtuse and not understanding the analogy (again see my post at 178).
I am not disassembling your toaster as much as I am properly setting the analogy. Your multi-purpose computer does not – in fact – have functionality that is not yet programmed into it. There is a very real difference between potential and actuality.
Your understanding of ‘functionality fails the Morse logic. Again. Still. You simply do not HAVE all functionality when you have the capability of having functionality.
Again, your arguments follow an old script, and each item you want to ‘discuss’ has been discussed, and debunked, many times previously.
And no, you do not get to switch the conversation to just one switch. Would you do so in a discussion of resistors in series or in parallel? The proper analogy is a box of resistors and what you do with them. You can take a handful and put them in series. You can take a handful and put them in parallel. Do you have the same thing? Do you understand the analogy?
As to the useful arts, your understanding is obviously flawed. You do not grasp the simple idea that for something that is not in the useful arts, the remaining doctrines are inapposite. It is not whether the item under consideration passes or fails the remaining doctrines, it is that the remaining doctrines do not apply.
The easy example to contemplate is music. The basic components of music are actually very limited, and yet, no one would say that the vast majority of music – as each item is taken as its whole – would (or would not) fail 102 and 103, not because an examination would or would not take place, but rather, from the legal doctrine perspective, such examination is simply meaningless.
As I said, these are script items that you advance, and none of these items hold water.
And that, too, is a fact.
TravisJune 20, 2013 12:52 am
Why are you disassembling my toaster/computer? Why do I need to compare a box of parts to a programmable item? A multi-purpose machine is not a box of parts – it is a ready assembled machine with a dial already on it, just waiting for you to turn the dial to any of its multiple purposes.
A computer is a device which has a series of ‘switches’ in memory. If the switches are arranged in a particular way at the right time, something will happen on the computer. Because it has billions of switches, we’ll simplify to one switch.
A toaster has one switch: on or off. Because it is designed to have that switch flipped, you can’t claim that flipping the switch turns it into a different machine which cooks toast. You haven’t introduced new functionality to the toaster, you’re just using it to cook toast rather than look pretty on your counter.
A computer has billions of switches. If you flip them all to the right position, you get Windows 7 on your computer. The combination of switches is not obvious, and the function they produce might not be readily apparent, but it is inherent to the design of the computer that its purpose is to have the switches flipped.
Installing software on a computer is just flipping switches in memory. THAT is a fact.
If you install software on a computer, you don’t add new functionality: all its functionality is in how it responds to the flipping of switches. Instead, you find a new use for the computer. New use != New functionality.
As for your distinction of useful arts – as I understand it, there are four questions to ask: Is it new? Is it useful? Is it non-obvious? Is it patent-eligible subject matter? All of these questions are independent and can be evaluated individually. So we can very well discuss the novelty, obviousness or patent-eligibility of something which we know is not useful, and use the conclusion of that discussion to evaluate the novelty, obviousness or patent-eligibility of an item which is useful and shares common characteristics.
step backJune 19, 2013 08:49 pm
Respectfully, in my dictionary; “same” means “identical”.
Otherwise it is not the “same”.
I see that you are noncomprehending a fundamental aspect of patent law.
The claim does not have to recite all states of the switch (e.g. on, off or intermittently teetering between those states while underwater).
On the other hand the specification may explicitly or implicitly teach a number of states (not necessarily ALL) of the various components.
When a second arriving inventor shows up, he has to beat what is disclosed in the spec, not what is recited in the first inventor’s claim.
But who ever said patent law is easy to learn?
AnonJune 19, 2013 08:25 pm
How about a toaster that does not have a dial compared to a toaster with a dial?
Compare a toaster that is configured to have a dial (and notably, that dial can be provided in software) to a box of toaster parts.
I pointed this out much earlier in the conversation – you appareantly did not understand the limit of the analogy you attempted prior and now return to yet again (see my post at 178).
Travis – step back may use a different thought platform for expressing his views (one I ‘get,’ but would not choose to use myself, as it is, at the same time, too easy to picture and too difficult to reach what step back noted at post 168: “Our problem is that we do not have the language to unambiguously describe these two phenomenon in a precise way.” – stepback, btw, your post at 171 is in error – you conflate process and item and you AGAIN miss the important distinction of useful arts (music is not ‘obvious’ – as that term simply does not apply to that concept – but that is a different discussion based on our relative knowledge as compared to Travis and ikh).
The bridge, if you will, is the very ‘purpose’ – that explicit improvement to the machine by the actual increased purpose – that makes up the multi-purpose machine. A multi-purpose machine without the specific programmed purpose is like the box of toaster parts. Once you program that machine, you have created a new machine with the dial.
Again, if you do not understand that Morse does in fact apply – that the ‘capability to be programmed’ is necessarily different than the ‘has actually been programmed’ you cannot rise above the 2-D circle. An improvement to the machine is in fact a new machine.
This is fact and is not up to debate.
TravisJune 19, 2013 08:05 pm
@Step back 188
I never said the machines are ‘identical’, but it doesn’t stop them from being the same machine.
A door is the same machine whether it is locked or unlocked.
Two otherwise identical cars are the same machine even if one has a flat battery and the other has no petrol.
A toaster is the same machine whether the dial is on 3 or 5.
A Swiss Army Knife is the same machine, whether you have the knife or the can opener out.
A light switch is the same whether it is on or off.
Any machine which is designed to be able to enter a number of different states, all those states are the same machine even if they have superficially or significiantly different uses. Otherwise I could file a patent for a light switch, only to be followed by two people filing patents for the switch in the ‘on’ position and the switch in the ‘off’ position. Any other position would completely invalidate the entire purpose of a reconfigurable or multi-purpose machine.
step backJune 19, 2013 05:05 pm
NO. I’M NOT FINE WITH there being people who are totally ignorant of science.
On the other hand I am not going to ignore the reality that they exist.
I am not going to ignore the reality that converting them to accept and learn science is very difficult if not, for many, basically impossible.
I’m still waiting in that parking lot at the top of the shining hill for Travis to show up with his exactly identical automotive machine so that he can prove to me that the machines are exactly the same even though he leaves his headlights switch closed (binary “1”) and I leave my headlights switch off (binary “0”) and we run that “abstract” experiment overnight so as to come back in the morning and … according to Travis … discover that his machine is still exactly the same (IDENTICAL) to mine.
What keeps playing through my mind is that scene in the comedy movie, My Cousin Vinny where the District Attorney assures the jury that tire tracks in the mud are IDENTICAL:
AnonJune 19, 2013 04:44 pm
I think even before ‘keeping the argumetns simple’ is understanding what the argument is about.
ikh’s last post makes me believe that he knows nothing whatsoever about the laws of intellectual property. I am not saying this for any ad hominim effect. I truly do not think he has a clue.
JodiJune 19, 2013 04:23 pm
if you want to keep the argument simple, then focus on how to protect innovations for individual inventors or small companies.
AnonJune 19, 2013 03:54 pm
At 182, it appears that yo are fine if people tell you the world is flat and is still at the center of the universe, and you would be fine with that as just that person’s ‘world view.’
That might be fine in private. That is most definitely not fine when such a view intersects with law.
AnonJune 19, 2013 03:52 pm
“but it only truly died as a result of Bilski. ‘
Completely false ikh.
Again, you dare to tread iin waters that you do not know.
1) Bilski had nothing to do with computers and Alappat
2) Bilski did not over-rule Alappat
3) Alappat was reconfirmed in the first CAFC case after Bilski (as if to remove any doubt).
Making a statement like that, that is objectively false will get you into trouble here. If you don’t know what you are saying, it is far better to just admit that and not make outlandish statements.
As to copyright, I provided the portion and the fact that you still don’t understand it (and say that copyright is enough) is truly frightening. It’s as if you don’t even know the basic requirements for having a copyright.
I am at a loss as to how to proceed in a conversation with you – I just don’t know how much you don’t know (and yet you are willing to take legal positions – that’s absolutely insane).
ikhJune 19, 2013 03:28 pm
I fully agree with your first paragraph. It is one of the reasons I take part in the discussions here. My mind is far from welded shut, but no, you have not convinced me. I have learn’t two things during this discussion.
The first is using the fixed functionality of the CPU is a powerful argument. I know it will not persuade you, but then I doubt any argument would persuade you.
The second is so obvious I wonder how I missed it. I have read both Benson and Alappat several times and not until now had I realised that they completely conflict with each other. Under Alappat, Benson would have been granted a patent for his BCD to Decimal conversion algorithm. It would have been given the fictional status of a new machine.
You try to argue for software patents from first principles. But there are legal precedents that you just ignore. Alappat was never compatible with Benson but it only truly died as a result of Bilski. Not because Bilski explicitly ruled against Alappat. But because they ignored Alappat and re-afirmed Benson.
The CAFC still has not fully understood Bilski which is why we got the split decision in CLS v Alice. In Bilski the court said that they could not exclude the possibility Business Process patents because the statute did not explicitly exclude them. However, IMHO, the court implied that hell would likely freeze over before they would see a valid Business Process patent, however claimed.
If I am right, then the CAFC will continue to get cases sent back to it by SCOTUS every time the CAFC finds a Business method patent 101 eligible.
There is no script and it is a little insulting for you to make that allegation. There are only a limited number of effective arguments . I have personally found that keeping the argument simple, is the most effective.
Regarding the supposed abstract/copyright dichotomy, the courts have held that software is an abstract idea since Benson and yet to my knowledge they have never had a problem upholding copyright. IANAL so I am not equipped to argue law from first principles unless I have had a chance and the time ( and interest ) to study a particular area. I do know that I have never heard of a problem with copyright in the software world. So, I don’t know why you think that there is a dichotomy.
step backJune 19, 2013 12:57 pm
I doubt that Travis & IHK are paid shills.
They simply have a different world view.
It’s like when you drive along a country road and meet up with an old school farmer. He might say, “You city slickers have your fancy ideas but I know what my eyes tell me. The sun rises in the East. ”
For Travis & IHK what they see with their naked eyes is all that there is. The rest of the stuff including the “software” and the “intellectual property rights” is pure hokum
AnonJune 19, 2013 11:29 am
One avenue that I would like our Congres to walk down is to make treble damages the norm. We have a patent system. That patent system’s purpose is to share (promote in the legal sense of the term) the progress.
When we de facto encourage people NOT to look at the patent system we need to do a FULL STOP.
I would place a presumption (virtually unrebuttable) that the knowledge is there, because the knowledge IS there. Incentivizing people not to look defeats the purpose of the system. I personally have had clients who have forbidden their engineers from exploring existing patents. To me, that does border on the criminal.
Such is a purposeful frustration of the system.
Remove the financial incentive for doing so.
Make it an incentive to look, to know what is out there already.
This would also have the un-obvious benefit for a strengthened push for writing that is more clear, and for far less applications to attempt to claim work already invented, and for a far more efficient (read that as truly higher quality and much quicker) examination. All of the reasons why people actually do complain about patents would be reduced with STRONGER patents and STRONGER patent damages. Making things weaker has the opposite effect. Making things weaker PROMOTES infringement.
Much like in general contract law, those who do not want to innovate are very desirous to morph the concept of efficient breach into a concept of efficient infringement. The path to doing so takes many flavors – but all of those flavors have one thing in common: they all weaken patent protection. And thus, the side effect – whether intended or not, but very much real and unavoidable – is that innovation suffers.
JodiJune 19, 2013 11:03 am
Earlier we discussed strengthening the patent system, how likely or feasible would increasing the “treble” be? …seems simple enough. Recent trends suggest large software companies analysis of new products results in favoring copying over innovating.
Or, perhaps it’s simply a matter of time, once software matures, it’ll become regulated just as every other industry and things like malpractice will emerge. This has already been suggested in the area of security (ongoing debate). In other words, possible jail-time for infringers.
Strengthening the system would increase certainty – much needed in business.
JodiJune 19, 2013 10:50 am
I have recognized this for a long time. In terms of openness, this forum is quite different from the various anti-patent sites. On these anti-patent sites almost all of my comments trying to shed light on patents are either diminished to near ineligibility (font sizes, font color blends into the background, etc…) or deleted entirely. A virtual echo-chamber where they bounce the same ideas back and forth, pat themselves on the back, and can’t believe others don’t see what they’ve discovered. The ‘script’ you refer to are mostly built in these echo chambers.
I’m not sure if was intentional or a typo – but when you said
this might actually be a better description of those folks than terms like “anti-patents” or “anti-software patents” since by trying to derail 230-year American patent system they are actually blocking or impeding further funding to new innovative software – hence “anti-software”.
AnonJune 19, 2013 09:51 am
I recognize quickly when someone is actually engaging, and when someone is merely pretending (the circling back to bad analogies is a give away). And I do hope that they ‘analyze.’ But I disagree that they are using my time against me. If they find some logical legal flaw in my thinking, then they are doing me a favor by presenting their ‘attack’ on that flaw.
My problem with such people stems more from the fact that they do NOT have anything new or different to ‘attack’ with. Under the thin veneer, the same script is there. I hope that these ‘good little soldiers’ or intellectual lemmings can appreciate that their tactics do not work, and that they will need to do a much better job of understanding the law.
I also hope that those among the anti-software crowd, those who are truly independent thinkers, or fancy themselves as thought leaders recognize some of what is posted and begin to awaken from the views that have been fed to that ‘culture.’ Some in fact are capable of being self-motivating and obtaining an awareness that patents are a legal protection that in fact can be extremely useful against “The Man,” “The System,” or “Big Corp,” or any other name that a truely independent and free-thinking young rabble-rousing individual might find philosophically enticing.
Personally, I am always (joyfully) amazed at the looks the tech people have on their faces as realization dawns on them during a discussion with me over a few drinks after hours. They begin to realize that their “anti-establishment rebellion against patents” is not so anti-establishment after all and how very much like a lemming they themselves have been programmed to be with the anti-software-patent script.
ikh’s failure to address the abstract/copyright dichotomy – if and when he realizes that he has failed – would alone be worth my time. And even if he does not realize the contradiction, there are other techs who surely will.
(under my breath) And thinking does happen.
JodiJune 19, 2013 08:28 am
Anon, step back –
It’s obvious they are not here to learn or discuss anything – anyone looking to learn would have picked something up by now. The time and effort spent on one very specific detail could have been better spent studying a dozen prior art patents and been truly further ahead 🙂 Missing the bigger picture that software innovations need funding.
They are paid trolls here probing for holes and weaknesses to use later. They are not MOTIVATED to learn or understand – their motivations are to shutdown patents.
Their tactics are shallow – where possible, start off with something positive, then say something on-topic focused on their main point. Hope that opponent responds with some kind of clue or insight. Analyze, repeat. Use your time against you.
AnonJune 19, 2013 06:59 am
After all the exchange, see that the minds opposed to patent protection for software are still welded shut. There will be no venturing beyond the script. They will not venture over the circle.
I would also add to your eligibility note of post 175 that ANY improvement to a machine is also patent eligible.
It is most difficult to not accord software as an improvement – and you do not even need to move out of the circle to recognize the improvement.
Lastly, you did not take the complete message from my second sentence at 171. You stepped immediately from functionality into an example of non-useful arts. You engage in the same fallacy as those working from the limited script of anti-software patent – all the while you recognize that anti-software patent is actually the same as anti-anything patent or simply anti-patent.
step backJune 19, 2013 06:15 am
The gist of your position is that you wish to dissect what the computer does into its elemental part and then critique each dissected out part as being old and predictable (not novel).
First, that argument has nothing to do with patent eligibility under 101. The machine is still a machine. (101 permits the patenting of a “machine”.)
Second, dissection of an invention into its elemental parts is not allowed under the law (35 USC 103). If the latter were allowed then almost nothing would be patentable because we can simply reduce every new machine, manufacture ir composition of matter into its chemical elements (or subatomic particles if you wish to go yet further) and say, see, there it is in the Periodic Table. Basically. you want to do away with all of patent law.
TravisJune 18, 2013 11:35 pm
@step back 168
You said “[software will] cause the overall computer to behave in a new (novel), unobvious and useful way and thus defines a new “machine”.”
I see it differently: the software can define a novel and non-obvious idea (or computer readable encoding thereof) but when presented that encoding, the computer will still behave in the manner it is supposed to. If I discover a way to (frivolous example) manufacture carbon fiber with my toaster through a very weird sequence of button presses, the toaster itself is not changed to a non-obvious machine even if the idea is non-obvious. Rather, you have a (potentially) patent eligible process.
You list a number of concepts of things which were novel when they were first brought to market. The nature of the ‘machine’ inside them, the code which runs them, is obvious; even the concept might be obvious, yet the machine wasn’t brought to market for technical reasons. According to programming legends, Microsoft Excel began development of a number of complex features many years before computers could support them well, backing on Moore’s Law that computers would be fast enough by the time the software was released. Likewise, a ‘social network’ as we view them today could have been an obvious concept the moment that computer networks were invented, but didn’t ever make sense to implement until internet speeds were fast enough to support fast image transfer. Or, every single one of those concepts is itself built upon thousands of other concepts – a word processor needs to be able to highlight text, it needs drop-down boxes to choose fonts, both of which I believe actually are patented. You can’t pick a single point of the word processor and say ‘this is a non-obvious invention’ – you have to take the product as a whole which is combined of many older concepts.
Ask any competent programmer how to make a social network, and they can describe it to you without a huge amount of thought (its a standard interview question I ask prospective hires). If they can describe it to you that easily, was your invention ‘non obvious’ or did you just get there first? If your patent covers their description without them ever knowing about your invention, you either took the obvious route to solve the problem, or your patent is overly broad.
You say we don’t have a clear definition between hardware and software. This might be true, but there is clearly a technical line that we can draw on when software patents should be allowed: never. Any step over this line creates all manner of slippery slopes. I’m not sure that drawing the line there is necessarily the best thing for innovation: but it is the only place that makes technical sense.
ikhJune 18, 2013 10:19 pm
step back @164
My apologies, I responded to Anon’s mixed metaphors. I read it as a deliberate attempt at trolling. That does not excuse my response. Two wrongs never make a right.. Mea cupa.
I am familiar with the concept of soft instruction sets. Of course the ultimate is software on a CPU re-programming an FPGA with VHDL. However it is still no more expressive than a Universal Turing machine.
If we ever improve on the Universal Turing machine that would be a major mathematical break through.
You say that it is a philosophical difference, I think you are looking far too deeply into how an electronic computer works to an artificial level. Given your very good understanding of computers, I would be surprised if you were not aware that we can build computers from cogs, wheels, and levers. Charles Babbage designed the “Analytical Engine”, a mechanical Universal Turing Machine. A Computer. No free electrons involved :-).
BTW, I too have felt the effect of AC electrons in my body, not a pleasant feeling :-).
step backJune 18, 2013 09:57 pm
As a further point of what some may call “sophistry”, I do not have any clear definition for what is “software” and where the software/hardware dividing line should be drawn.
When a binary “0” or binary “1” signal arrives at the gate of a transistor that is wired to perform a Boolean NOT function is that not “software”? And when that one transistor “computes” the correct answer for the question NOT(input), is it not then functioning as a “computer”?
And if you prick me do I not too bleed? (Green Martian blood?) Are we not all merely eggs in the cusp? (–Stranger in a Strange Land)
step backJune 18, 2013 09:50 pm
Now you cast me to the other side of the debate line.
The code that is inscribed on a music CD does do something utilitarian. It tells the loud speaker driver circuits how to drive the speakers so that the desired music is produced.
However, the recording of new music (even if unobvious music) on a CD using the known music encoding techniques is an obvious process, hence not patentable under 103.
AnonJune 18, 2013 08:59 pm
But we do. The distinction is based on functionality and the useful arts. This is not that difficult – ask yourself, what are patents supposed to protect? What is the purpose of software? As a general rule, software is meant to DO something, and that DOing is typically utilitarian. It is only if you throw out common sense (or subscribe to an intellect-negating philosophy), that any other result can overcome reason.
step backJune 18, 2013 08:47 pm
I see your point.
This has always been a dilemma in the software patenting area.
Some arrangements of code, i.e. digital music on a CD is merely that, unpatentable music.
Other arrangements of code, i.e. that intended to be executed by a CPU; cause the overall computer to behave in a new (novel), unobvious and useful way and thus defines a new “machine”.
Our problem is that we do not have the language to unambiguously describe these two phenomenon in a precise way.
After many of a software inovation, plenty of people kick themselves and say, “I should have thought of that!” But they didn’t:
Visicalc (spread sheets)
and if the next big thing is so “obvious” to you all, just list it in the below open space lines:
step backJune 18, 2013 08:38 pm
“And self modifying code”
I’ve done worse in a past life –but only because memory was ultra tight and I absolutely need those few extra bytes:
Place op codes and data bytes in key reset spots of lower memory so that op code at times functions as data and data functions as op code (in other words intentionally throw the program counter out of sync)
But that was then and this is now.
(Nice song, but Murphy was wrong. Absolutely nothing goes wrong and all code runs as golden until the worst possible moment, namely, when the customer shows up for the demo.)
TravisJune 18, 2013 07:57 pm
Just because electrons could potentially be ‘considered moving parts’, does not mean that any/every possible configuration of them represents a different machine. I own lots of other machines with moving parts, machines which only perform certain functions when particular parts are in particular configurations. A CPU is only a series of switches, and will perform ADD functions when switches X Y Z are on – just like my car will have air conditioning when buttons A B and C are pushed.
In fact, to consider that every possible position of electrons within a computer represents a different machine is to deny the inventiveness and purpose of the general purpose computer. If you could claim that every single possible combination of pixels coming from your TV was a different machine (because the electrons are differently arranged) then what is the point of the patent on the TV as general purpose machine for producing all combinations of pixels?
Wayne BoreanJune 18, 2013 07:23 pm
Hot Dog – there’s a version on YouTube as well, being sung by Mercedes Lackey, who wrote the original lyrics that Duane parodied so well.
Threes Rev. 1.1 written by Duane Elms, and performed by Mercedes Lackey
And here’s the original Threes, lyrics written by Mercedes Lackey, music by Leslie Fish, performed by Julia Ecklar
FYI, I know Leslie Fish and Duane Elms.
Wayne BoreanJune 18, 2013 07:18 pm
How about Threes Rev. 1.1 by Duane Elms? The full lyrics are at:
From the chorus:
The song is available on “Vince Emery’s Funniest Computer Songs” which came on cassette (I have a copy), but has never been released on CD. Which is too bad, the entire album is a riot.
step backJune 18, 2013 06:40 pm
Anon & ihk,
Sad to see that this thread has turned to ad hominem attack. We were doing so well up until now.
But to correct a technical misunderstanding, there is nothing in computer science that prevents a CPU instruction set from being a software varied one. I’ve worked on computer systems where the CPU instruction set included a software-redefinable portion. The problem with this approach is that you can easily crash the computer if there is a bug in one of your “soft” microcode downloads. Which is why main stream CPU manufacturers avoid that option.
At the end of the day it is a philosophical choice as to whether you choose to see electrons as physical moving parts, thus making computers into machines with moving components or you choose to ignore the electrons and you choose to insist that all you see is the “fixed” (unmoving) hardware at a gross level.
Me. I believe in electrons due to having personally felt a few coming out of a local wall outlet and into an unguarded body appendage in moments of safety oversight.
Travis & ihk appear to not believe in them there things. Only in what their lying eyes show them. I can grok that and hold no ill will to that point of view.
Let’s keep it civilized gentlemen (gentle persons? gentle aliens? on the internet one never knows).
AnonJune 18, 2013 05:16 pm
I have to laugh yet again – you claim I’m in love with sophistry, and yet it is you that engages full bore with the sophistry that you blandly repeat from the anti-software patent school for lemmings, expounding on law that you don’t know the meaning of (and cannot recognize beyond the script that you have).
I notice (conveniently) that you did not explain the copyright/abstract dichotomy. My guess is that your script doesn’t cover that.
It’s just more of the typical ‘soapbox’ style discussion that typifies the anti-software patent crowd. My expectations had been set appropriately low, so I do not harbor any hard feelings, just pity.
ikhJune 18, 2013 04:30 pm
Anon @153 & @161
@153 I have already explained to you that programs do not change the function of the CPU. It can only perform the computations in its instruction set.
@161 I see that you are still in love with sophistry. I can’t see any useful purpose in discussing this with you further, so this will be my last post on this thread.
SCOTUS has repeatedly reaffirmed Benson, Flook, & Diehr so I guess my statement that software is an abstract idea, has some support, even when loaded into a computer. I wonder how long it will take the Patent Office to realise that they should not be issuing software patents.
AnonJune 18, 2013 07:49 am
Your post at 159 indicates how little you understand intellectual property law.
And yet, you want to advocate a certain path for legal protection.
It is this type of height of lunacy that I find astounding. You show yourself to be an intellectual lemming with such give-aways as “my” industry, any attribution to Stallman, and the notion that copyright is enough. Your example does not prove the point that you think it does, and the fact that you think it does actually proves that you do not understand legal protection in “your” industry.
I have to laugh at your insistence that your programs are both abstract and are protected by copyright, as you may know (I do not want to assume) that to actually have copyright protection, you do have to have your programs fixed in a tangible medium (and thus they are no longer abstract).
You are guilty of ignoring one of the simplest distinctions: machines do not think. You arrogantly (the royal you) associate your mental efforts with your work product and assume that the work product itself is a mental item only. Until computers are enabled to be programmed with mental telepathy, that critical step must be accounted for. As to the cognition involved, sorry, but this type of mental work is common to all engineering, and is simply not an impediment to obtaining patents. Quite in fact, it is an indication that something more than just nature is involved and thus is an indicator that patent protection is applicable.
I have to wonder if you understand even the most basic difference in protection (expression versus functionality).
While I appreciate the civility in which you conducted yourself (thank you), at the end of the day you are no better off in your understanding and you have clung tightly to the script that secures you within the two dimensional circle.
ikhJune 17, 2013 10:23 pm
Thanks for your comment at 157. I agree that we have reached the end of the road and should probably agree to disagree..
Likewise, I understand your POV but just disagree with it. I also appreciate your and Anon’s sense of humour. I will try to be very careful with my toaster and my magnetic bubbles :-). And I will try very hard not to toast my bubbles.
My comment at 158 was meant to explain my position at a more personal level and is not something that I really wanted to get into a long discussion of.
I have enjoyed the argument, Take care and absolutely no hard feelings 🙂
ikhJune 17, 2013 09:41 pm
step back @154
Of course I can visualise a sequential state machine, I write lots of them. Unlike you, I think software patents are a bad idea and harm my industry.
But it is also true that the CPU at the logical level is a very simple device it computes numbers, does comparisons between numbers, moves numbers around in memory, and has branch instructions. As I write computer programs I run them in my head. Most if not all programmers do the same. So the fact that the SCOTUS has ruled them abstract thought seems to me very reasonable.
As, I believe, Richard Stallman once wrote, my “if”” statements don’t rub against my for loops, my programs don’t rust, there is no effect from vibration on my programs. In fact, they suffer from none of the problems that affect real world inventions. My programs are abstract thought.
Don’t get me wrong, I am not anti patents. Just software patents. Copyright gives the correct level of protection, in my, and most programmers opinion. And yes, I have read Gene’s rants against this on many occasions and how wrong it is to copy ideas.
However, l will give you an example to explain why he is wrong. Lotus Corp, the creators of the spreadsheet Lotus 123, had 6 founders who took 18 months to write the first version, which was written in 8088 assembler. I.e. 9 man years. When they came to create version 2 they added a few more formulas and Macro programming instructions and re-wrote it in the “C” programming language. The founders no longer wrote the code, they hired teams of programmers and it took the project about 2 years to complete and took over 300 man years. So a company that understood the idea inside out, and even had access to the assembler source code, had to invest very much more than the original cost, predominately just to do a re-write.
And this is common in software. If I want to copy a web browser the effort I need to make is very closely akin to the effort that the original company had to exert. Ideas are cheap writing software is not.
So no, there is no good economic case for software patents.
step backJune 17, 2013 09:22 pm
As is the case with Travis, I think we’ve reached the end of the road on this debate and we simply will have to agree to disagree.
I do understand your point of view (PoV) that you are looking at only the cold metal of the toaster or of the computer and giving zero weight to how the electrons or magnetic bubbles in the latter are arranged. But as a matter of caution please don’t reset all the magnetic bubbles on your hard drive to “0”. You may not like how that computational toaster toasts from then on. Have a good day. No hard feelings. 🙂
ikhJune 17, 2013 07:58 pm
step back @152
I”ve heard the argument before and it is pure sophistry. Gates switching is not re-routing and is certainly not re-wiring.
The idea that a machine is a different machine because a switch is in a different position is laughable. A toaster is still a toaster whether it is on or off. Likewise a computer does computations based on the inputs and it is still the same machine as it was before the program was loaded.
This argument is silly at the everyday level, but as a legal argument it is absurd! It would mean overturning Benson. And that is never going to happen :-).
TravisJune 17, 2013 07:52 pm
You sound like my old preacher. You’re right… no amount of ‘education’ will get me to believe in a fiction such as the one you mention. I’m going to leave now if that is all you’re going to do. This was fun.
step backJune 17, 2013 07:14 pm
I think at this point, you and I are talking past ihk and Travis and vice versa.
They cannot visualize a machine that performs entirely new sequences of actions over a lengthened period of time. Instead they focus on the one AND gate and the idea that all it does is perform the Boolean AND function and nothing more in any given machine cycle. Thus for them, the function is “fixed”.
It appears that no amount of educating will get them to visualize a sequential state machine that can be programmed to perform different “sequences” of operations, including those not yet heretofore thought of. Sigh.
AnonJune 17, 2013 07:01 pm
“So, No, morse does not apply‘
I have to laugh ikh, as it is not up to you to decide ‘if Morse applies.’ Morse fully applies to the logic that you are attempting to use. You are attempting to claim all future improvements based on a comepletely un-enabled concept. You are playing games with ‘functionality’ as the programming is what is changing the functionality of the machine. And that is precisely why you have a new machine. You are still stuck in the land of two-dimensions and you do not understand the level difference between this machine and the Loom. Your reasoning is that of the person arguing against the patent eligibility of the loom because it only does what the human can do in a series of steps.
Step above the circle to escape your being trapped.
step backJune 17, 2013 06:29 pm
ihk @ 150
Now you’re moving the goal posts. That’s not cricket.
You asked me to show you how a computer can re-wire itself to route signals to different places or from different places & I showed you. Now you want to pooh pooh the answer away with the “mere” word. Oh, that’s “mere” switching. Switching is re-routing which is another way of saying re-wiring the paths that the signals will follow. A computer with a switch closed IS a different machine from a computer with the same switch open.
Don’t buy that?
Maybe you want to meet me at that desolate parking lot with Travis @141 and we can do that switch open versus switch closed test with your car as well? You keep your switch closed so that your headlights are “on”. I’ll keep my switch open so that my lights are “off” overnight. Then in the morning we’ll test the machines for equivalent performance. If the machines are truly the same either way then, since they were in the same environment overnight (parking lot) and since we are applying identical stimuli in the morning (turning the start key), they should perform exactly the same way. Otherwise they are NOT the same machine either way. 😉
ikhJune 17, 2013 05:34 pm
Nope. Since the discovery of the Universal Turing machine, nobody has been able to increase the functionality of a CPU beyond the capabilities of the Universal Turing machine. So all CPU’s are equivalent at the logical level. So, No, morse does not apply.
Improve the speed of the CPU cool, Find a way to improve it in any physical way fine. These improvements would pass USC 101.
ikhJune 17, 2013 05:32 pm
step back @147
Finally, you clearly state that you are referring the the switching functionality of logic gates. Logic gates do what they were designed to do and differing inputs do not make a new device. The functionality is fixed once the circuits are fixed. No computer program can change the functionality of the CPU.
The computer performs only the computations that it was designed to do.
AnonJune 17, 2013 03:48 pm
Having a minor* in the history of science and technology (way back in my undergrad days), I appreciated your Galileo reference.
*truth be told, it was not called a minor, but it was called a sequence, but not a product of nature sequence…
AnonJune 17, 2013 03:45 pm
What was Morse not allowed to have, and why?
By your reasoning, the first person to have built a “computer” machine earned every ‘non’-invention improvement to the machine regardless of enablement. You have achieved what Morse could not.
step backJune 17, 2013 03:39 pm
ihk @138 part 2:
Please, draw a circuit diagram and show how a CPU is supposed to re-wire itself.
This should not have been necessary, but here is something of that ilk:
ikhJune 17, 2013 03:33 pm
I’m afraid you have to explain that a little further. I am familiar with the Morse case but I don’t understand what you are trying to say.
step backJune 17, 2013 03:25 pm
p.s. And be thirsty my friend … for knowledge.
step backJune 17, 2013 03:23 pm
ikh @ 142,
Regrettably you are unabashedly unknowledgeable (I don’t want to say ignorant) in how modern computers work.
Inside of every transistor (of the MOSFET kind) there is a little bridge that the electrons must race across when the light turns green.
Those skilled in the art refer to that bridge as the “channel” and the length of that bridge as the “channel length”.
Indeed one of the holy grails of the semiconductor industry is figuring out how to make that bridge shorter so that the electrons can run across (or “drift” as physicists would say) from one end to the other in less time. With current technology the bridge length is about 40 to 22 nanometers. If the scientists can cut that in half, to say about 14 nm, that would cut in half the time it takes for the electrons (as particles) to run across and that would double the speed of the computer (while also quadrupling the number of transistors squeezed onto a standard sized chip).
The only thing I’m smoking is journal articles written by persons skilled in the current state of the art.
You my friend, are smoking a stale old cigar from the 18th century.
Just because your naked eye can’t see the electrons running across the bridge does not stop them from their moving nonetheless. And yet they move. (I was paraphrasing Galileo. He was talking about the planets moving nonetheless –reportedly under his breadth as the Church forced him to recant. Search for “recant” in the following:
JamesJune 17, 2013 02:56 pm
Yes, only as it was designed to do. A transistor is merely a gate, which either lets another electrical signal pass or not based on an input voltage. This is no different than a mechanical relay, and in fact early computers were created with mechanical phone relays (Google the Z3, created by Zuse in 1941). Nothing is “rewired” by this process – an electrical current is either applied or not and there is a resultant output voltage (or not).
There are no magic little hands rewiring things inside the CPU, everything is static – the instructions are merely the input voltages to those gates which determine the output voltages, no different than the punch cards that control whether or not the programmable loom’s hook should be raised or lowered, resulting in the different output patterns.
AnonJune 17, 2013 02:39 pm
“It functions only as it was designed to do ”
Now who is smoking what?
You have just ‘enabled’ a CPU to do something that was explicitly withheld from Morse.
ikhJune 17, 2013 02:13 pm
step back @140
Wow! Now you have Galileo knowing about electrons 200 years before they were first theoryised about. Can I have some of what you are smoking
Would that be electrons as waves or as particles :-). Sill, they can not re-wire the CPU. It functions only as it was designed to do by its fixed circuits.
step backJune 17, 2013 01:37 pm
Let’s you & I do a scientific experiment:
Meet me at a remote parking lot with your car one evening.
I’ll bring mine and park next to yours.
We both shut off engines and lock our cars except that you leave your headlights on and I don’t.
We leave the test machines alone overnight.
Maybe you & I have some beers before retiring for the night.
We come back in the morning and apply identical stimulus to our respective cars (turn the key to start the engine). We observe the results. If they are different then the machines were “different”. That’s science. 😉
step backJune 17, 2013 01:30 pm
As Galileo said (sort of), the electrons move nonetheless.
Maybe you haven’t heard, they discovered moving parts known as electrons. 😉
ikhJune 17, 2013 01:27 pm
“Those that want to get to the nub of it and use a known bad analogy are really saying that they do not want to leave their circle”
You seem to have a reading comprehension problem. I dd not make any analogy. I simply asked a question.
“If you are unwilling to recognize the level difference of the computer, you are unwilling to listen to the explanations and you are unwilling to learn.”
Now you seem to be suffering from hallucinations. I explicitly stated that a computer is not a loom.
So now why don’t you try answering the very simple question I asked?
ikhJune 17, 2013 01:10 pm
step back @ 126
Belief systems are for Religions. They allow people to adopt beliefs that are unsupported by evidence. Like your belief that CPU’s re-wire themselves. CPU’s are, as I previously said, made of Transistors and some Capacitors. The circuits are all fixed and there are no moving parts. Please, draw a circuit diagram and show how a CPU is supposed to re-wire itself.
AnonJune 17, 2013 10:54 am
Further – revisit 113 – you are not permited – and I do not allow you to – ignore the law regarding the exceptions to the printed matter doctrine.
Quite in fact, this is a tool you need to understand in order to lift yourself into the third dimension and step over the circle.
AnonJune 17, 2013 10:51 am
How to love the atom bomb is pertinent in that the Court is pursuing (loving) the atom bomb of 101 as opposed to any view of a more precise – but ultimately unwieldy 102/103. Just because you don’t understand the legal applicability of my comments does not mean that such is not there.
A perfect example actually of you are living in your little circle.
And no, you most defiintiely should not be an attorney, because you are way too comfortable living in your little circle.
I will not limit myself to the best 2 or 3 of my posts. Each of them are relevant.
TravisJune 17, 2013 10:29 am
Because all of your posts are relevant to the particular discussion of the analogy of the Jacquard Loom to a programmable computer, lets pick a few at random.
How about your first one?
“How to Love the Atom Bomb (of 101)”. Well, this is obviously a thorough refutation of the Jacquard Loom analogy, because all one has to do to be a good debater is say 101, and that wins the argument. Got it. I should be a lawyer.
How about your next?
“Your counterpoint is a fallacy, as the toaster has the actuality of both 3 and 4. To parlay this back to my point, it is effectively already programmed with the software. To appropriately place this in a software context, you would need to have a box of parts that is not yet configured and compare that to a completed toaster. There can be no doubt from a real world perspective that software and hardware are interchangeable – both are machine components.”
This is also a good argument, because a Jacquard loom is actually a toaster (not a computer) and each set of punch magically appears on the loom when you turn the heat dial to 4. It is also obvious that all hardware (including aspects such as the the needles that weave the scarves on a loom, or monitor and wireless antennas on a computer) can be replaced with software, and this is evident because you said so.
Perhaps you could pick out which are your best 2 or 3 posts. The above were decent, but didn’t quite convince me.
AnonJune 17, 2013 09:30 am
Travis you asked and I answered (nicely): all of my posts are relevant.
TravisJune 17, 2013 08:46 am
Point me at your argument and I’ll re-read it. I’ve asked you quite nicely a number of times to give me a particular post number. If you can’t do that, perhaps you are not the higher dimensional being you believe you are.
AnonJune 17, 2013 08:42 am
“Does the change actually affect the hardware, or is it surface only, like paint?”
Does the actuality of what the hardware does change? Without the software, can you DO the same thing? Remember – patent laws are meant to protect this type of DOing.
Travis, I have demonstrated my points. But like a three dimensional being trying to explain to the two dimensional being that the two dimensional being can leave the circle by jumping over the line, you are not grasping the explanations already provided.
TravisJune 17, 2013 08:25 am
Perhaps, rather than declaring that an analogy is ‘known to be bad’ , you could… you know, demonstrate that? Argue the point? If you think you already have, point out where? The only thing that I can pick that you’ve said, is that a computer is not a loom. Well, obviously. At what point does the analogy go to far?
Wayne BoreanJune 17, 2013 08:08 am
Adding software does not change the machine. It changes the functionality of the machine, but not the machine itself.
Let’s take an automobile. I can reprogram the engine for Racing, EPA Emissions Standards, Euro Emissions Standards, EPA Emissions Standards Sports Driving, Euro Emissions Standards Sports Driving, EPA Emissions Standards Economy Driving, Euro Emissions Standards Economy Driving, and a dozen other settings.
Does that change the computer in the car? No. Because five minutes later I can reprogram it yet again. The computer itself doesn’t change, its performance remains the same, though the way it performs changes.
Consider it like hooking up a DVD player to a Television set. The television worked fine before you hooked up the DVD player. Hooking up the DVD player didn’t change the television. But the pictures on the screen will now be different, so obviously it has changed something…
Then we hook up a Game Console. Again, the television itself doesn’t change, but what is displayed onscreen does.
Then we hook up a hard drive recorder, so I can record some TV shows. Again, the television doesn’t change, but the pictures displayed on it can be displayed over and over again.
The concept of change is a slippery one. Does the change actually affect the hardware, or is it surface only, like paint?
AnonJune 17, 2013 07:26 am
Travis refuses to understand that it is not “nonsense to be able to go from the inside of a circle to the outside of a circle. The circle is a solid line after all.
AnonJune 17, 2013 07:25 am
Those that want to get to the nub of it and use a known bad analogy are really saying that they do not want to leave their circle.
If you are unwilling to recognize the level difference of the computer, you are unwilling to listen to the explanations and you are unwilling to learn.
TravisJune 17, 2013 07:13 am
I appreciate that a computer goes through many states as it executes instructions. I still need to delve into assembler occasionally as I work. But it is never taught that a computer is ‘re-wiring’ itself: that is just amazingly untrue. It enters different states which cause a number of different things to happen; but this is purely cause-and-effect configuration. It would be like saying a car is a ‘different machine’ with its lights on or its doors open. Or, if you put a weight on one side of a balance, the balance reconfigures itself into a new machine with one side up and one side down. Nonsense.
step backJune 17, 2013 06:51 am
@ ikh at #117,
I understand how and why you and Travis believe that a computer is a fixed machine rather than one that rewires itself millions of times per second (so as to be a different machine with each rewiring) but you are both wildly wrong in your belief systems.
Perhaps you are not aware of the “microcode” software that executes in each machine one level below the assembly language code?
Perhaps you do not appreciate that storing result data (e.g. that initially in the Accumulator (A) register in different memory locations is a form of signal routing and thus a rewiring of the computer?
Suppose, as a hypothetical; you have integer value X stored in register R1 and Y stored in register R2
and you give the CPU the command:
ADD R1 R2;
You have just instructed the CPU to wire one input of its ALU to the R1 register,
the other input to the R2 register, the out put to the Accumulator and to internally wire the ALU so that it performs an addition function.
Suppose next you instruct the CPU
MOV A M1
which in this hypothetical moves (copies) the A contents to memory location M1
MULT A M1
which in this hypothetical multiplies the contents of the Accumulator with those of M1 and places the results in the Accumulator.
In doing so,
you have just instructed the CPU to wire one input of its ALU to the A register,
the other input to the M1 data store, the out put to the Accumulator and to internally wire the ALU so that it performs an multiplication function.
The result is that you have added X to Y and then squared the result.
In other words, (X+Y)^2.
But in the process you have caused the computer to rewire itself many times and in many ways.
Maybe they don’t teach these basics in school anymore? If so, quite sad.
TravisJune 16, 2013 10:48 pm
– edit Von Neumann Machine -> Universal Turing machine.
@ ikh. I did ask that question multiple times before. perhaps it got lost amongst other, lesser analogies. I still would appreciate an answer also.
TravisJune 16, 2013 10:42 pm
@ ikh #122
Thankyou. You are right about that – the claims in question only talk about software ‘in memory’. Which of course isn’t where the software is ‘installed’ in any likely embodiment of the patent, or indeed in most embodiments of any software.
IMO the PTAB is right to say that the claims do not meaningfully narrow the claims.
You said in your article
“Perhaps a calculator is patent eligible as a stand alone machine but a complex piece of software that is so functional and innovative that it can run on any platform is not patent eligible because of the very fact that it is flexible, dynamic and machine independent. That seems to be what the PTAB is saying here:
By any objective definition of innovation a stand alone machine capable of only a single thing is inferior compared to software that can enable any machine, even the phone in your pocket, to be transformed into a machine specifically useful for a specific purpose.”
I agree with you that this is perplexing and possibly illogical. It is mostly this line of reasoning that is keeping me somewhat in support of software patents: if a specific purpose computer is useful, surely software designed to do the same function on general purpose hardware is more useful? But I think this is the only logical conclusion when you acknowledge the fundamental nature of software. At the very least, it doesn’t seem any more illogical to me than saying that only installed software is patent eligible.
However, as ikh mentioned earlier (#78), there is indeed such a thing as a special purpose computer and it is not what you seem to have in mind. I think it is accepted in academia and industry that a general purpose computer is any Von Neumann machine (or best attempt thereof), whereas a special purpose computer is implemented in hardware to perform a specific function – like an ethernet controller – and cannot be loaded with software.
ikhJune 16, 2013 10:01 pm
I’d like to simplify Travis’s question and maybe get to the nub of it.
I’d like to use the Jacquard Loom as an example and I fully appreciate it is not a computer. It is a Loom that can produce a large variety of patterns.
The question is, does each set of metal punch cards make a new machine that is USC 101 patent eligible?
If I understand your previous writings correctly ( and most of the other lawyers here ) the answer will be no. However, a brief explanation of why, would be greatly appreciated.
Thanks and regards
ikhJune 16, 2013 09:43 pm
You really are missing the point and talking past Gene. The reason is incredibly simple. A computer is only the CPU and RAM. Nothing else is the computer. So installed means installed means installed into RAM. This is also consistent with the Universal Turing Machine. Storage devices do not matter.
Everything apart from CPU and RAM are peripherals. I.e. devices that attach to a computer. A Computer is just a device that performs computations.
TravisJune 16, 2013 09:04 pm
Sorry it took so long to reach that point. I didn’t realise the law could be so stupid and backwards as to claim that difference, seeing as it has no bearing on the invention itself.
A consequent issue is that ‘installed’ isn’t really a useful concept or distinction, given the prevalence and multitude of removable media options. All long-term storage options are interchangeable: I could implement a computer which uses CDs as its main storage, or one which uses tape, or HDDs, or flash sticks. Given that many computers allow hot-swappable HDD’s now you can literally insert a new HDD with installed software in the way you claim that inserting a CD is not patent eligible. From a practical point of view, to the programmer, there is no difference. If that is what the law says, it should be changed.
Does this mean that any software delivered over the internet or from a CD cannot be patented?
Or, if I deliver an uninstalled version of the same software, does it still infringe?
What legal language in the claims indicate that the software must necessarily be installed? Shouldn’t the claims contain that language to that effect somewhere?
Gene QuinnJune 16, 2013 08:46 pm
You say: “Isn’t the implication then that software is only patent eligible (under the concept of creating/improving a machine) if it is installed?”
Finally you have figured it out! Thank GOD!
Yes, software is only patent eligible if it is loaded onto a machine. Whether that is the right test, the wrong test, or just plain stupid… that is the law.
If you want to have a further discussion please read the relevant case law, please read the relevant USPTO guidelines, and when you are finished let me know so I can attempt to further your understanding.
ikhJune 16, 2013 08:33 pm
Sorry Jodi, but your history is a little lacking.
“1) The Internet and TCP/IP protocols were initially funded by govt entity DARPA”
No, DARPA funding was for packet switched networks that preceded the Internet. Initial version of IP .Implementation of IP (IPv4 ) may have had some ARPA funding however, at the initial bake-off for IPv4 there were six implementations trying to inter-operate. ARPA would have been very unlikely to have funded more than two of them. I know that one of the implementations was funded and written by DEC. Most of the internet protocols were implemented and funded by companies such as DEC, HP, Merit, BBN, MCI etc. This was so that they could sell equipment and services based on Internet protocols. SO yes, there was seed money kicking around, but most of the development money came from companies.
“2) Similarly, the web was initially funded by academia consortium CERN ”
That is a misleading statement. Tim Berners-Lee created the first browser and server for the web. But it was never an official CERN project. It was done as a skunkworks project because Tim thought it would help him and his team with their work. Lots of people wrote their own simple web software until NCSA wrote NCSA Mosaic as an academic project. When this project was killed, that was when the key people left and formed Netscape.
Patents were never a significant reason for Netscape’s demise. Well documented anti competitive acts by Microsoft were.
TravisJune 16, 2013 08:03 pm
You say that copying MP3 data onto a computer changes the machine.
You say that reading MP3 data from a CD does not change the machine.
You say that copying EXE data onto a computer changes the machine.
So, reading EXE data from a CD does not change the machine.
Isn’t the implication then that software is only patent eligible (under the concept of creating/improving a machine) if it is installed? Hopefully you can see that this is ridiculous: installation is purely about distribution of software, and has little (if any) to do with the inventive process.
If you believe new functionality is added to a computer when software is installed, WHY is new functionality not added to a CD player when a CD is inserted? The argument you used in your article suggests that, because the CD player could previously not play music, it now has new functions. Perhaps you say ‘the functionality of a CD player is to play any CD which is inserted into it, thus loading a CD does not change the function’. To which I reply: the functionality of a computer is to execute any instructions given to it.
ikhJune 16, 2013 07:46 pm
step back @115
If you believe that a computer “re-wires itself millions of times a second” you really are living in cloud cuckoo land. A CPU is made of electronic components such as transistors and capacitors and the wiring is all absolutely fixed.
I know that the legal fiction that a computer plus software is a new machine comes form Alappat.. However, given that the Supreme Court, in recent cases, has re-affirmed Benson, Flook, and Diehr and completely ignored Alappat it seems likely that this argument is dead. Even this PTAB decision has ignored Alappat and ruled that computer plus software is not 101 patent eligible.
Wayne BoreanJune 16, 2013 03:32 pm
Something has gone weird with WordPress. It hasn’t posted the last two comments I made in this thread. I’ll admit they were rather long, but there were no links, so the spam filter shouldn’t have caught them.
step backJune 16, 2013 03:18 pm
Well there it is.
You do not grasp the most fundamental aspect of Von Neuman computing machine.
It “re-uses” its hardware parts millions of times per second, re-wiring itself between each step
Gene QuinnJune 16, 2013 01:21 pm
The trouble you are having is you are just not familiar with basic concepts of patentability or even mechanics.
You keep asking about a CD even though it is clear that there is a different. Load a CD to a CD player and the machine does not change. The functionality of the machine is identical to what it was before. Load software onto a computer and the functionality of the computer changes. Your continued ignorance on such a simple concept is perplexing.
If you want to talk video games then lets do that. If you add a module to a game unit to make the game play faster or differently have you created a different machine? Of course you have and anyone who is going to be objective know that to be perfectly true. The combination of machine and module, which could in fact be a second machine, creates a new machine.
You want to talk MP3s, and that is fine. You are completely right to point out that a computer with an MP3 is functionally different than a computer without an MP3. Your arguments support my position and undermine your own.
You are hopelessly confusing whether a patent should issue with whether the claims are drawn to patent eligible subject matter.
If you seriously want to inform yourself you need to familiarize yourself with the 5 basic patentability requirements. These cases and issues only raise the first — namely is the claim drawn to patent eligible subject matter.
Is a computer implemented process patent eligible? The answer should be yes. Then the next question is whether the claimed invention is useful, and the answer will be yes. Then the question turns to whether the process is novel. That is where your MP3 computer implemented method fails the patent test.
So let’s be perfectly honest here and not pretend that anyone is saying that an MP3 should be patent eligible.
TravisJune 16, 2013 11:09 am
I apologise for perhaps being slow to grasp your argument, but I can’t see anyone refuting my analogies. You say ‘they’re wrong’, ‘it doesn’t work that way’, or ‘you take the analogy too far’ but with no explanation why. If you feel you have adequately addressed this point, please refer me to which post and I’ll do my best to re-read it. Otherwise you are just as ‘guilty’ as me for not advancing the conversation.
I’m not saying that the loom (or computer) is unpatentable. I’m not even arguing that software is unpatentable. I’m saying, punch cards for a programmable loom, or software for a computer, don’t qualify for ‘creating or improving a machine’. At the very least, the line of reasoning discussed by Gene in his article (if you remove X then X can’t be performed, therefore X is patent-eligible) is flawed.
I know I don’t understand the law as well as someone who practices in that domain. That’s why I’m coming to a site like this to discuss with people who supposedly know the law. I just feel that a lot of the law or the ideas about the software industry discussed here are far and away removed from anything experienced ‘in the trenches’ by software engineers.
Perhaps I went down the wrong track with CDs – you are right that the printed matter doctrine somewhat changes the situation. If you’d permit me to ‘ignore’ the printed matter doctrine for a moment though, do you still argue that adding a CD or an MP3 to computer alters the machine (even if it is not a useful alteration)?. I’m still not convinced that the analogy with the loom is off. I need to think about that for a while.
AnonJune 16, 2013 09:27 am
Everything I have said is relevant.
You keep asking if there is a difference, not listening as people tell you yes there is a difference. You keep on drawing an analogy that has limits and you keep on ignoring those limits.
You are not interested in advancing the conversation – you are interested in stopping the conversation at the analogy level.
The modularity of a machine does not make it any less of a machine. If you move machine components to a disk, you have not negated the change of a machine with different components. The development of the machine – taking ideas from the Jaquard Loom – is indicative that you are using the analogy, but you are not grasping the reality. The computer is not a loom. It is a different class of machine altogether. It is as if you are arguing that the very idea of a physical loom should not be patentable because all a loom does is the mechanical equivalent of what a single individual once did purely by hand. You are missing the jump in level.
You seek to seduce by depending on an analogy that is stretched beyond its usefulness into being misleading. You are now starting down the path of accusing others of semantics, while all along it is you that has been playing with semantics. You keep on saying ‘same way’ as if you have a bullet-proof rationale, ignoring the points that I have shared with you. Your position does not die by bullets alone – a bullet-proof vest does not protect you.
Finally, you then enter into the realm of law and think that you are applying the legal concepts correctly.
You are not.
As is evidenced by your dependence on an analogy that involves the non-useful arts. Whenever I see such analogies I know that I am talking to someone that does not have a grasp of the legal terrain, that has left the path of rationality and ventured deep into the weeds.
Your realize on “just the instructions are different” for example, ignores the critical legal concept of the doctrine of printed matter, or more to the point, the legal importance of the exceptions to the doctrine of printed matter.
You are standing at ground zero of a missile strike with your bullet-proof vest ignoring the warning of those around you telling you that you are not safe, that your bullet proof vest is not enough. You do not comprehend the missile, thinking it only a ‘really big bullet.’
You are like a two dimensional being trapped in a circle, unable to rise above the plane and leave that circle. And what adds insult to injury is that your own intelligence traps you there, or rather, your own intelligence limits you there. Your mind is set, your vest is on, you do not want to move from your circle.
TravisJune 16, 2013 07:46 am
@ Step Back
Again, is there a difference between this and loading a record or cassette or CD or punch cards?
Instructions can be read from insertable media without being installed. Likewise, data (eg an MP3 file) can be copied onto disk and give the computer the ability to play that song, with ‘little robot hands moving the wires around’. Although we can do without the ‘moving wires’ false analogy – I’ve programmed enough in assembler to have a better grasp than most about the lower level workings of a CPU. Nothing is being moved, and the ALU is never changed.
I think your problem is that you *do* see little robot hands where none exist. A CPU simply takes voltage inputs on some pins and they produce electric output on other pins. The process is the same whether you are ‘giving the CPU’ an MP3 or a EXE file – just the instructions are different and so the outputs are different.
I understand that physically, in terms of magnetic/electric charge, a computer with X software is different to a computer without X software – but only in the same way that a computer with/without Y MP3 is different.
step backJune 16, 2013 07:30 am
I think your problem is that your eyes do not show you a mechanical machine being re-manufactured by the so-called “software”.
But what if you could see little robot hands moving wires around? Changing connections between the execution of each next task?
Because that is in effect what happens as the software re-routes electrical signals and re-configures the ALU to perform a different task with each next instruction.
The mere fact that your eyes do not see it does not mean it is not happening. It’s simply a lack of vision.
TravisJune 16, 2013 04:08 am
I haven’t insulted you directly, and I’d appreciate if you could also keep ad hominems out of this. I do have a background in software engineering, I have an academic paper being published, I have worked for two of the largest software companies in the world and I’m in the process of filing for 2 patents related to database efficiency. I apologise if I sometimes use colloquial terms rather than legal ones on discussion forums.
If I misspoke about software ‘running from’ a CD, surely you can see that I was pointing the lack of difference between reading instructions installed on disk (HDD) as opposed to instructions encoded onto a CD. Gene says that there is a difference because a CD isn’t ‘installed’: I say that installation is a semantic difference and the songs on a CD could be copied onto disk just as easily as software instructions can be read from the CD.
I am trying to debate a specific point about whether installing software on a general purpose computer creates a new machine. I don’t believe it does, and I think it is analogous to CDs or looms or anything else where the machine is designed to accept an instruction set or data. While it is an important aspect of patent law, your mentions of protecting innovation don’t have any bearing on the technical question of whether a punch card creates a new machine.
I don’t want to get drawn into a debate about Android vs iPhone, whether the patents should have been granted or if they infringed, or whether both companies just headed the way that the LG Prada pioneered in the same way that both Microsoft and Apple ‘copied’ Xerox… That’s a long rabbit hole to go down. I will address a particular point you make here:
” and software folk don’t bother learning from prior art – then what does this say about the patent system? Is it really doing what it’s supposed to? Is it rewarding inventing and discouraging copying?”
‘Software folk’ don’t bother learning from prior art because there is very little to learn, and reading all the prior art is physically impossible. A lot of prior art also doesn’t appear in patents because people never thought it was necessary to patent various things, and so aspects of computing which are ubiquitous are patented years after they become common knowledge. The reason that a lot of ‘software folks’ have a problem with patents is that they are not technical enough to learn from – The patents are on the ‘idea’ of a particular function, but too sparse in the particular details to actually describe how it is implement. Despite that, show a programmer ‘bounce back on overscroll’ (or even just describe it vaguely) and he will know how to implement it. These patents aren’t ‘teaching’ anything – and very often they are worded so vaguely as to cover an enormous amount of ways to achieve the same outcome.
There is also little to no ‘efficiency gain’ by reading prior art – you can only gain efficiency when the patent holders agree to license, which some refuse to do and others charge exorbitant fees.
The patent system isn’t supposed to reward inventing and discourage copying. It is supposed to “promote the Progress of Science and useful Arts”. Rewarding inventors may be a very good way to go about this, but if you get to a stage where rewarding inventors is not progressing science, then the means may need to be revisited.
JodiJune 16, 2013 02:28 am
Yes, I believe the American patent system is if anything too weak. Couple of quick examples:
1) Travis himself mistakenly leaked:
This speaks volumes. For one, he fails to recognize the efficiency losses of re-inventing the wheel (his employers loss). Secondly, and more importantly, “without a care in the world” is the typical example of ignorance and recklessness of others property. His priority is himself, not his employer, not others property – but himself. Do not stand on the shoulders of giants and learn from them, but rather re-invent the wheel. Do not adhere to law but rather ignore it. Steal and copy – for that is as others are doing it. Steal and copy and then complain loudly that the system is at fault and others as being the source of the problem.
2) Since we’ve touched on the topic of the iPhone, the whole Android (aka iPhone-copy) is another illustrative example. As I elaborated on earlier (that Travis tellingly opted not to engage me on), Android being more similar to the iPhone than earlier phones from Samsung, HTC, or the other Android phones – to me suggests that some kind of copying may have taken place. Together with other public evidence (e.g. Eric Schmidt had inside knowledge of the iPhone by being on the board of Apple, internal Samsung requirements document that had 23 requirements points showing exactly what functionality of the iPhone to copy) – are all indications that infringers do not fear copying. Travis himself said that “it’s ok to copy because Apple is winning enough”.
So, in other words, if Steve Jobs couldn’t prevent the copying of Apple’s innovations – and software folk don’t bother learning from prior art – then what does this say about the patent system? Is it really doing what it’s supposed to? Is it rewarding inventing and discouraging copying?
Like you said, to fix it, more power, not less is required. Otherwise, if the patent system is continued to be weakened, then at some point, copying becomes a more attractive business model than innovating (due to all the costly and risky R&D). What the anti-patent gang fails to understand is that the copying model leaves no room for expensive American salaries – and instead opts for those $5-15k developer salaries in China or India. I mean, copying is easy – just fire off an email saying “copy software X and tell me when you’re done”. This is what Samsung essentially did with their 23-point requirements document that had screenshots of what features of the iPhone to copy. Where true innovating requires trial and error and throwing away 80% of the stuff tried – copying involves none of that and very little risk! Don’t bother copying anything other than what’s successful. Notice how Google with Android didn’t copy Blackberry – they focused on the future by copying iPhone. Copying is easy but at the cost of jobs, but hey, loss of jobs hasn’t stopped the ideologues recently, so why stop with American R&D? Let’s ship those jobs off too. People in China need to eat right? Travis said we’re “winning enough” – so we can afford to ship off some of our R&D jobs. Don’t worry – it’s only R&D jobs, we’ve still got textiles, manufacturing, automotive jobs right? Besides, a good chunk of those R&D jobs are in Silicon Valley – it’ll be good for some to leave – reduce demand and knock down the cost of living right? We don’t need to build more new products, just setup subsidiaries offshore, hire offshore developers in those subsidiaries for $15k/year, and then sit back and just monitor the competitors and figure out what is selling and then send off the emails to copy the parts that work. Don’t go off on a tangent but copy the features exactly. We’ll have to make sure those guys aren’t doing anything new, risky, or anything that could eat up the bottom line – only copying of features. Maybe Travis will be happy to move his family there and not have to do anymore thinking – just implement exactly what the screenshots show. Put on headphones and sit in his chair until the copying is done. Don’t ask any questions, don’t point out any further improvements, just get it working exactly like the screenshots of the competitors show. Because that’s the competitor product that is selling, so copy it, no need for improving it. That’s the anti-patent gang model for the future.
JodiJune 16, 2013 01:28 am
Travis, I was suspecting you were an academic and didn’t really work in private industry, but now I am starting wonder whether you even have a technical background?
Lasers involve light, decoding is done elsewhere.
Secondly, software doesn’t “run directly from the CD” – the sequence of instructions are read from the CD, the computer runs the instructions.
You’re not fooling anybody. No doubt you have some kind of Arts degree and sent here as a paid assignment.
Hello?!? I’m over here!!! I’ve been trying to engage you but you keep avoiding responding to me!
JodiJune 16, 2013 12:04 am
In your first post, you said under what is now obviously false pretenses:
Yet, when engaged, you shy away from properly answering my questions and instead back out with answers like “As for the rest of your argument, I guess we’ll just have to disagree.”.
I’m not the only one who gave reasonable and logic based arguments, yet you continue to hold your ideological based views. You’re not really here to learn, you’re here to push your hidden agenda.
JodiJune 16, 2013 12:01 am
Travis showed his cluelessness again with:
by blocking copying, a patent forces competitors to create new ways of doing something. Or, as Gene elegantly said:
JodiJune 15, 2013 11:53 pm
Travis naively stated:
From a business perspective, that is incredibly naive statement. There are plenty of examples that show being first mover isn’t enough, as well as business wisdom directly teaches not to rely on it. Since we’re talking about the iPhone – despite having first mover advantage and being highly innovative, copiers came, pillaged and stole significant market share. Copying is not innovating nor what we necessarily want to encourage. Furthermore, as I pointed out before, Steve Jobs was encouraged to innovate BECAUSE of what patents promised to bring. Otherwise, there is the possibility that he might have played his cards differently – likely in the direction of less innovation.
TravisJune 15, 2013 11:28 pm
@Anon. Is there any specific post you are referring to? Perhaps you could quote again what you feel is relevant.
AnonJune 15, 2013 10:32 pm
You are now moving the goalposts.
Go back and finish reading ALL of my posts. When you want to have a serious conversation, let me know.
TravisJune 15, 2013 09:56 pm
You really did nothing to ‘explain’ to me the difference. You said ‘lolz howstuffworks’. THAT is far below the level of discourse that I would expect on a site like this.
Thankyou for this time trying to clarify where you believe the differences are, but I honestly believe that *you* are showing a gross unfamiliarity with many aspects of computer science in your attempt to differentiate. I don’t believe that my ideas have been debunked – I’ve just been ‘told’ to ‘stop extending my analogy’, with no reason why my analogy is too far extended.
Firstly, you are hopefully aware that software doesn’t need to be installed to be used: most games consoles are a continued reminder of fact that it can be read with a laser from an optical disk. Installation is simply a convenient and efficient way to distribute software but is in not necessarily integral to its function. Or we could replace ‘CD player’ with ‘MP3 player’, and having removed the lasers from the equation the situation is again analogous to installed software. Or, you can view software over the internet, which again is not installed. The beauty of it is that a modern kernel doesn’t have appreciable difference whether it is sourcing data from memory, disk, optical disk or network.
To use your own words:
How about you remove all of the [CDs] from your [CD player]. Then once it is removed, without [re-inserting a disk]] try and [play a song]. You will probably be shocked to learn that once the [CD] is removed your [CD player] will operate differently. You actually won’t be able [play a song]. Then [re-insert your CD] and miraculously your machine will behave differently and you once again will be able to [play a song].
Or, to use the (better) analogy of a programmable loom, seeing as you seem to think that lasers make all the difference between CDs and software:
How about you remove all of the [punch cards] from your [Jacquard loom]. Then once it is removed, without [re-inserting any cards] try and [weave some clothing]. You will probably be shocked to learn that once the [cards] is removed your [Jacquard loom] will operate differently. You actually won’t be able [weave some clothing]. Then [re-insert your punch cards] and miraculously your machine will behave differently and you once again will be able to [weave some clothing].
I’m not really sure why you believe that lasers are the difference here. Lasers in a CD player are simply the means of decoding binary data on the CD. If software is running directly from the CD, then lasers are still in play. If software is installed on disk, then we are using magnetic readers (and the precursor to CDs, the cassette, used magnetic readers to decode data). Punch cards and magnetic tape can also be used to give a computer instructions. In any case, adding a CD to a cd player, or punch cards to a loom, seems exactly as much ‘adding to the machine’ as ‘installing software’ – you’re just adding data to the place that the computer expects to read data from. Considering the vast physical change, I would say it is much more ‘adding to the machine’.
I am willing to debate this. In the past I have very much respected and agreed with your opinion pieces about software patents. I’m not saying that software shouldn’t be patentable… just that I don’t believe it creates a new machine and you haven’t yet made an argument to convince me otherwise.
@Anon. Thankyou for your response.
You said “What a loom does with different inputs, or stacks of cards is appreciably – and fundamentally – different than what a computer does.”
This is obviously true; a computer is a vastly complicated machine capable of a truly astounding array of useful functions; such is the nature of math and the myriad ways we have of encoding and interpreting data with complex output devices. I don’t think that changes the lack of any technical difference between loading computers with binary instructions vs punch card instructions. Remember at one stage, software was written with punch cards and the array of output devices was very limited and ‘software’ was less complex.
Is there an appreciable difference between they ways we give the different machines instructions? Is it the complexity of the instructions, which is directly related to the complexity of all the other peripherals added to the CPU? I can see that line of reasoning, but then again a DVD can be hooked up to a bewildering array of complex outputs but we wouldn’t consider each DVD to be changing the DVD player.
saulgoodeJune 15, 2013 06:19 pm
Installing software on a computer is more akin to loading a song onto an MP3 player. You see, the song actually “becomes part of” the MP3 player, giving it new capabilities that it didn’t have previously.
Try this experiment: remove all copies of “Never Gonna Give You Up” from your iPod and then try to play the song — you can’t do it. Now reload the song onto your iPod and miraculously your iPod is able to play it. You have created a new machine that has capabilities it did not have before.
Gene QuinnJune 15, 2013 01:54 pm
I’m getting sick of you asking about adding a CD player to a CD machine. I explained this to you already and invited you to educate yourself on the difference between a CD being added to a CD player and code being installed on a machine. If you are interested in debating here that is fine, but ridiculous hypotheticals over and over again after they have been debunked and explained do nothing to forward the debate and are below the level of discourse expected here on IPWatchdog.com.
But to answer you one final time, a CD player reads the CD with a laser. The CD is not made a part of the machine. The machine operates identically every single time regardless of which CD is placed in the machine.
When software is added to a computer the computer operates differently. This should hardly come as a surprise to anyone who is at all familiar with computers. Presumably you have at least passing familiarity with a computer since you are commenting here.
So to prove that you are wrong and we are correct why not try an experiment? How about you remove all of the browser software from your computer. Then once it is removed, without re-installing, try and get to IPWatchdog.com and leave another comment. You will probably be shocked to learn that once the software is removed your computer will operate differently. You actually won’t be able to surf the web, and you won’t be able to visit IPWatchdog.com or leave a comment. Then re-install your browsers and miraculously your machine will behave differently and you once again will be able to surf the web.
Seriously, Travis, if you want to participate in a meaningful discussion inform yourself and lose the asinine hypotheticals. They prove only that you are ignorant.
AnonJune 15, 2013 12:47 pm
I invite you to read my several posts and respond with reason. Please stop taking analogies beyond their reasonable stopping points.
AnonJune 15, 2013 12:45 pm
Your statement that patents are too weak rather than too strong has made me think. I agree with you.
Not only that, but this needs to be combined with an aspect captured in a post I made this morning explaining that the shallow argument that patents block improvements (the mundane obvious improvements) needs to be challenged and seen as a good thing.
I would posit that the doctrine of equivalents needs to be strengthened so that obvious improvements fall under the scope of patent protection. If an inventor can be rightfully blocked because his invention does not overcome a hurdle of obviousness, then his reward should capture anything obvious to what he does obtain a patent for.
In fact, I go to that (much despised) Supreme Court decision KSR: 550 U.S. 398, 419
“and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.”
Often overlooked, but perhaps needing a sharper focus, is the deprivation aspect: depriving value of prior prior inventions. Often in today’s anti-patent culture, every avenue is explored to weaken or denigrate the value of patents. But what lays fallow in these words of the Supreme Court is that a patent – rightfully granted – is robbed of value when someone follows on with an obvious improvement.
What we really should be asking is how do we strengthen patents so that such obvious improvements do not rob value from the previous patent holders. In a counter intuitive sense then, strengthening patent law and the power of patents would reduce what many consider the scourge of patents granted on obvious improvements. More power, not less, is needed to address this concern. The [pardon the pun] obvious drawback is that those who don’t want ANY patents – who only really want to copy and not actually innovate will be further incensed at the larger necessity to design around. But if you want to promote more powerful innovation, this counter-intuitive path is exactly the path you want.
TravisJune 15, 2013 12:21 pm
“It sounds like you are suggesting that no combination of right-to-left weaving, or using alternating colors of thread, or lighting on fire and throwing in a freezer, etc” MIGHT be patent eligible and/or patentable. (Specifically the latter are completely new processes which quite obviously occur without the loom).
I am specifically asking about how/why adding punch cards to a loom could possibly be “creating a new machine”. How is adding CD to a CD player “creating a new machine”? How is adding software to a CPU “creating a new machine”? If these are different situations, can you explain where and why they differ?
Ad for the rest of your argument, I guess we’ll just have to disagree. I know that every single piece of software I write, I work the best of my ability to innovate and compete for market share without a care in the world for whether it is patented or not, and it has seemed to work reasonably well for me so far.
JodiJune 15, 2013 11:57 am
Unfortunately you missed my underlying question: at what point is something worthy of a patent? Since you want to focus on the details of punch cards and looms – at the end of the day – how far does it have to move the ball to be patentable? What combination of operations in maneuvering a loom would impresses you enough to say “You know what, that’s something clever that I might not have thought of and is patent eligible”? Would there ever be any loom-related improvements that you could justify allowing a patentee to get a limited time monopoly? Where do you draw the line – no combination of punch cards can ever be patentable, or maybe if conditions X, Y, Z are met, or …??
If it’s 1805, and you are a small inventor with an idea for how you might be able to improve some small function of looms but don’t have the distribution channels, brand name, other resources – or the ability to manufacture an entire loom (read: $financial, business acumen, etc…) – how do you bring your small improvement to the world?
Don’t worry, I know what point you’re trying to make. You’re suggesting that it doesn’t alter the machine, and not only do I disagree, I also am trying to point out that there is a point where innovation is rewarded with a patent. Do you get that? It sounds like you are suggesting that no combination of right-to-left weaving, or using alternating colors of thread, or lighting on fire and throwing in a freezer, etc… should ever be patent eligible. I totally disagree. My examples are silly, but I think you understand my drift that at some point there exists some combination of operations that are novel, non-obvious, and provide utility. And that’s what is patentable.
Regarding your point on the iPhone, this further supports my point that patents play an important role in driving innovation. At the launch of the iPhone, Steve Jobs said:
Later, in his biography, Steve Jobs spoke about Android’s copying of iPhone:
Based on his statements + his deep history with the industry, I think it’s pretty clear that he 1) knew the iPhone was going to be revolutionary, 2) there would be copiers, 3) copiers would take $revenue.
Up until the iPhone launch, the leading innovative smartphone was RIM’s Blackberry – by far and away no question. Blackberry was the phone everyone wanted and had the majority of marketshare.
Nothing looked close to the software based touchscreen with pinch-to-zoom and rubber banding etc… of the iPhone. The majority of cellphones were 12digit keypads but Blackberry had a real keyboard (mini-keyboard) along with some other advantages (security).
But Jobs intuitively knew the iPhone was a killer, and his experience and wisdom knew there would be an appetite for copying it. So he ordered his team to patent the hell out of it.
Yet, here we are today with Android products that are much closer in resemblance to the iPhone than to the Blackberry or the phones the companies produced before their Android versions. Once again supporting the fact that companies copy (e.g. all the Android related: Google, Samsung, HTC, etc…). Why didn’t they copy the BlackBerry? Why didn’t they stay on their course of 12digit keypads? Why didn’t they come up with a different way than pinch-to-zoom, software based touchscreen, etc…? If they had, we as consumers, would have more options than a) Apple iPhone, and b) nearly-identical-to-iPhone aka ‘Android’.
This suggests there is a problem in the patent system – I suggest it’s that the patent system is too weak – not too strong. There is too much leeway and allowance to copy. It should be clear that
it’s better to innovate than to copy. Right now, that’s not the case. But I digress.
I’ll suggest that Jobs might not have pushed ahead with the bold, new, risky, cutting edge that the 1st iPhone brought to the market. Who knows what strategic move Jobs would have made, but without patents at his disposal (and the protection they theoretically SHOULD have provided), there is (at least some) probability the iPhone would have been different – quite possibly less-innovative.
We’ll never know, but what proof do you have that Jobs’ would have forged ahead with the expensive R&D costs of the iPhone had he NOT had patents at his disposal?
In other words, patents provided Jobs the incentive to innovate. For one, he was willing to risk going to the shareholders suggesting to spend R&D costs to introduce a new phone in an already competitive market. In 2004/2005, the cellphone and telecommunications market was both strong and mature, and yet here was Jobs pitching to investors that his computer company should venture into the phone industry! Unheard of! There was some risk in spending R&D to introduce a completely new product in an established market – by a company with little-to-no experience in the market. Investors don’t like putting their money in harms way. Do you really think the investors understood what even the first iPhone would look like (let alone the following versions, or iTunes, or the AppStore, etc…)? The investors were at best given a speech by Jobs (sure, pretty persuavive guy) and maybe even some rough prototypes or paper mockups. It’s likely that at least some of the investors were skeptical, but they knew Steve and perhaps more importantly they recognized that patents would bring some chance to stopping others from copying their product IF it were to become successful. A calculated risk.
Now are you starting to understand the value of patents in driving innovation? There’s more to technology (including software) than just the technical aspects – those are straight forward, measurable, and largely controllable. It’s the business side and other parties (in particular large competitors that have a bottom line to feed and their investors to answer to) that add unpredictability and uncertainty – things that investors fear and make them move to greener pastures.
AnonJune 15, 2013 11:51 am
Are you aware of the difference between patent eligible and patentable?
It is critical to recognize and understand this difference.
Wayne BoreanJune 15, 2013 11:32 am
That’s the problem with writing programs late at night – you make silly mistakes.
As to the TI calculator, it is a “that depends” scenario. The calculator might be patentable. Writing a program to have the calculator do something doesn’t really change the calculator. FYI, I know a guy who ran his business on an early TI programmable calculator, he wrote his own accounting software for it.
The real question comes down to when does something become patentable. Let’s ignore computers for a minute, and switch to internal combustion engines, since I worked in that field for a long time.
Take the Otto cycle engine, which was developed by Nikolaus August Otto in 1876. It was a modification of the external combustion, or steam engine, but had some unique features. Assuming the modifications were not obvious (and we are assuming that), a patent could have been issued. Assuming we are dealing with the current United States system, and that Otto filed for a patent immediately, the patent would have lapsed in 1896.
The first “automobile” was produced in 1886, the Benz Patent-Motorwagen. Was it patentable? There is prior art. Nicolas-Joseph Cugnot produced a steam powered “fardier à vapeur” in 1769. It was unreliable, and potentially explosive. Replacing the cumbersome steam propulsion apparatus with a small Otto cycle engine would seem obvious to me.
When engines became smaller, strapping one to a bicycle to make a motorcycle seems like an obvious idea. In fact the “Petroleum Reitwagen” predates the Benz Patent-Motorwagen by one year. But wait, there’s also the Michaux-Perreaux steam velocipede of 1868 and the Roper steam velocipede of 1869.
Were any of them worthy of patent protection? That so many different people were working on essentially the same general concept in the same general time period makes me think that the answer is probably not. What had happened was that power technology had finally been miniaturized enough so that it could be applied to carts and bicycles, where before it was really only suitable for locomotives in mobile applications.
Since a smaller power source had become available, a wide range of people started working in different places on turning the concept into something that would become commercially viable. There was (and still is) a huge need for inexpensive transportation solutions.
Note that I’m using the word inexpensive in general terms. Prices didn’t drop enough for the average person to be able to buy something like that until Henry Ford decided to drive prices downward, and did so quite successfully, much to the annoyance of his competitors.
Going further, once you have a powered vehicle, changing the power source, or adapting the vehicle for another purpose isn’t all that inventive. Clark Equipment Company needed a way of moving stuff around their plant, and designed an internal combustion powered vehicle for in plant operations. Some customers saw it, and wanted to buy their own. It wasn’t the first such device, in 1906 the Pennsylvania Railroad introduced battery powered platform trucks for moving luggage at their Altoona, Pennsylvania train station. At nearly the same time Towmotor Company (1919) and Yale & Towne Manufacturing (1920) developed their own in plant machines. A British company called Ransomes Simms and Jeffries had developed a lot of these concepts during World War 1 because of a manpower shortage, however a lot of those could be traced to even earlier devices such as the chain hoist.
So what above was patentable? What would have seemed obvious to the engineers and tinkerers of the time?
AnonJune 15, 2013 08:34 am
The loom analogy only goes so far. As I pointed out above, pushing the analogy beyond reason yields a wrong result.
As to your second paragraph – this rational (first mover) leads to an abandonment of the patent system – for any and all arts. This fails of its own weight, as that rationale existed at the time our country was founded, and the Fathers of this country chose otherwise.
As to encouraging continuous innovation, your announcement is also without merit. There is a reason that the adage of ‘Necessity is the mother of invention” exists. Patents, through their exclusionary trait, serve more than simply as a reward for the inventor, as fuel for his innovation. Patents also serve as a way of blocking the easy path – forcing new innovation in design around efforts. All too often today, the shallow notion of patents blocking someone else is merely accepted at face value, without the concomitant understanding that this is a good thing, that this type of blocking creates other innovation of an order of magnitude greater than the simple path of obvious improvement.
We need some thought leaders in the IT space to understand these deeper truths. I sincerely hope Scott Dunn reads and contemplates this message – I think that if he understood patent law, he could be a monumental champion.
step backJune 15, 2013 08:27 am
That code you have upthread at #86 …
It loops forever
(or until us fossil fools run out of fuel)
because the GOTO 20 command keeps resetting “I” to 1.
You left our an END FOR command to complement your “FOR” DO loop.
…and you thought us legal creeps only knew how to insert heretofore’s into contracts. ROFLMAO 🙂
TravisJune 15, 2013 02:13 am
@ Jodi #77
You’re still missing the point.
The stack of punch cards that instruct the machine may be patentable. I’m not necessarily arguing that it isn’t.
But the punch cards do NOT create a new machine. The loom which everyone used to weave left-to-right was perfectly capable of weaving right-to-left given the correct instructions: you haven’t altered the machine at all, any more than a CD player is made into a new machine whenever a new disc is inserted. If you want to find the punch cards patent eligible, you need to do it using another criteria.
As for how to encourage innovation… first mover advantage is where it’s all at. You see the iPhone and iPad have made enormous amounts of money and still have a large market share (esp in US/UK) just by being first. Even if you believe their competitors are illegally copying them, Apple is still ‘winning’. But if you do follow those developments, you’ll see a general opinion that iPhone innovated once and then generally rested on their laurels while their competitors have been innovating and innovating to come up with better products. A patent only encourages innovation once to get the monopoly: no patents encourages continuous innovation to compete.
JodiJune 15, 2013 01:36 am
I stand corrected – Netscape DID have patents, and technically Netscape still exists. For whatever reason, Netscape opted not to use their patents in the 90’s against Microsoft. But, in further support of my points AND patents importance to investors – in 2012, Microsoft’s $1b purchase of AOL patents included the Netscape patents that AOL owned.
In other words, my contrast of Netscape vs Google is not a contrast but rather highlights similarities: BOTH had software patents and BOTH benefited from them. Netscape patents eventually (10+ years later) resulted in rewarding the holders of those patents (AOL). Investors who study history will recognize this and will not be reluctant to invest in the next patent backed innovations.
The rest of my previous argument holds.
step backJune 15, 2013 12:38 am
Soooo a low level programmable TI calculator is a “General Purpose” computer because it can be made to do a “variety” of tasks. Got it. It’s not complicated.
JodiJune 15, 2013 12:32 am
ikh conveniently overlooked the importance funding plays in driving innovation with:
1) The Internet and TCP/IP protocols were initially funded by govt entity DARPA (agency of the United States Department of Defense responsible for the development of new technologies for use by the military).
2) Similarly, the web was initially funded by academia consortium CERN (today representing 608 universities and research facilities and 113 nationalities).
PRIVATE INDUSTRY generally does not have luxury of government or academia funding. Patents are one particularly useful item small startups have. Google backed with their Stanford patent is an especially pertinent example in that it helped solidify in investors eyes that their investment $dollars would stand a chance against the then seemingly invincible Microsoft (think back to 98/99).
Furthermore, since you brought up the Internet, an important contrast is that of Netscape. Netscape failed to or opted not to patent (I don’t feel sorry for them, their own fault). A company that played a major role in all of the excitement of the 90’s and led to the dot.com boom (bubble or not) could not survive the onslaught of the large behemoth of Microsoft. Contrast Netscape without patents vs Google with patents. Netscape died and investors bit the bullet, while Google $GOOG is valued close to $300billion. Sure, there’s other factors, but make no mistake patents played a role – and in particular a major role at the start.
So it’s convenient to overlook the importance of funding, but the cold hard reality is money matters. Small private startups can only survive for limited time without funding. Given 2 identical companies, investors will put their money with the one that has patents over the one that doesn’t. Or at least the SMART investors.
Do you really think that a couple of guys would have sat around in a garage in the 1960’s working on building a “robust, fault-tolerant communication via computer networks” to withstand nuclear attacks – aka the Internet?
Wayne BoreanJune 14, 2013 11:26 pm
Assume that someone does this, and removes Windows and Microsoft Office from their machine. Now assume that they install Ubuntu Linux and Libre Office.
You now have a machine that does the same things, but is totally different in how it functions. Note that I’m not stating that Office, Windows, Ubuntu, and Libre Office are patentable, or are not patentable. I’m just using them as an example of how removing and replacing the software can give the same capabilities, with different functionality.
Or you could use Boot Camp to install Windows and Microsoft Office on your Mac in place of OSX and iWork suite. For real fun, say we install VirtualBox on my Mac, and in it I install Windows XP, Ubuntu Linux, Open Solaris, and FreeBSD. Do I now have five special purpose machines, if I install five different sets of software to perform different functions?
That depends. There is no definition of what a Data Source is above. It could be a data input clerk feeding the machine with punch cards (yes, I’m old enough that I’ve worked with punch card systems). Or the data source could be a spread sheet that has been exported in comma delimited format.
The patent is so non-specific that I could come up with dozens of examples. That in itself makes this a bad patent in my book. Effectively there is no way to build this, because the description of the invention is so lacking that it could literally be talking about anything.
From the PTAB Decision:
Or on a totally different piece of hardware, with the same software modified to operate with a different processor. When Apple switched from the Motorola 68K family to PowerPC processors they built an emulator into Mac OS. Effectively a PowerPC Mac could do the same things as a 68K Mac running the same software with an emulator imitating the 68K Mac hardware.
Now we get into a real problem. How do you define a Specific Purpose Computer?
There are several main chip families.
The one that gets the most attention is the X86/AMD64 chips, which are manufactured by Intel, AMD, and Via for mostly desktop computers (which includes laptops/notebooks), but which are also used in some tablets, phones, and gaming systems (PS4, XBox One).
The most popular is the ARM series, which are used in a wide range of devices, including phones, tablets, desktop/laptop systems, microwave ovens, televisions, automobiles, etc.
Then there’s the MIPS type, which competes with ARM, the Itanium, which appears to be dying, the Sparc, which is used in workstations/servers mostly, and the Power line, which is used in IBM mainframes, in workstations/servers, and was used in the last generation of gaming consoles (PS3, xBox 360, Nintendo Wii).
All of these are General Purpose processors. How general purpose? While Windows runs mainly on X86/AMD64 chips, and can barely run on ARM chips, Linux can, and does run on all of them, and at least one of the BSD versions can also run on them all.
From that point of view, there are no Specific Purpose Computer chips. They are all General Purpose chips. The only way to differentiate them is to install different ancillary hardware.
But you run into issues here as well. The cost of setting up a production line is so high that there is no hardware which isn’t designed to be general purpose. There is no economic sense in making hardware any other way.
Any software that can be added to a General Purpose Computer, can be added to any other General Purpose Computer, often with little or not modifications. That’s how Apple was able to make the switch from PowerPC to Intel processors so quickly and seamlessly. Oh, there was a fair bit of work involved, but Apple’s OSX operating system uses the BSD kernel as a base, and BSD will run on damned near anything, even on systems that are so obsolete you can’t find parts to repair them anymore.
I don’t know that this is what the PTAB is arguing. I don’t know if they have the technical knowledge to have come to that conclusion.
I do have the technical knowledge, and to me it seems that something that isn’t tied to a specific piece of hardware may not be suitable for Patent protection. Copyright is a different issue, though even there you can have issues.
The above short program would not qualify for Copyright protection, because it is totally functional in nature, except for the first line. Note that I’m pulling this from memory – this is what I remember Commodore C64 Basic looking like, I haven’t touched a C64 in ages.
I’m sorry I’m ignoring just about everyone else, but I’m way behind on a bunch of things, so only Step Back is getting a specific answer.
Actually the term General Purpose Computer means that it can be modified with software to perform a variety of useful tasks. This means that an iPhone is a General Purpose Computer in function, even if it comes in the form of a mobile phone.
Now when we get into embedded circuits, where the software is burned into durable flash memory, then we are approaching a Specific Purpose Computer, however it isn’t the computer itself that matters, but the hardware system it controls. Take Fuel Injection systems as an example, the EFI system including the computer is probably patentable (assuming it meets 102 and 103), but the embedded computer with software probably isn’t, even though the embedded computer might itself be patentable as a piece of advanced hardware, if it was designed in a novel manner.
Oh, and thanks for posting the Penrose diagram and that article. It looks like some more interesting reading!
In case you wonder exactly why I’m busy, I’ve got a bunch of writing deadlines coming up. I need to punch out another 40,000 words this month.
ikhJune 14, 2013 10:39 pm
Thanks very much for your comments. You have very succinctly summarized both my position and that of SCOTUS. I know that you and most others here, strongly disagree with my position and that of SCOTUS.
You describe my position as “preposterous” and “Insanely absurd”. And yet software innovation developed at an incredible rate prior to the earliest software patents. I believe the earliest software patents were around 1968. Software innovation continued at an incredible pace including the development of the internet and later the development of the world wide web almost all without needing or using software patents. This was through to the early 1990’s.
I would love to be able to explain to you why software patents impede innovation IMHO, but I suspect that cultural differences make the gap unbridgeable. I do understand your position. However, I have always failed to be able to explain our position in a way that software patent proponents understand.
So, we are left with the ultimate arbitrators, the courts. For the last 30 years, you have won the argument in the courts, but now the boot is on the other foot.
What will be in the best interests of your clients. Do you defend Allapat Or do you go with the flow and support Benson, Flook, Diehr, Bilski, and Mayo. If I was a lawyer I know which way I would go!
step backJune 14, 2013 10:07 pm
In searching for a copy of Penrose’s diagram, I ran across this “fourth” world expanded diagram:
Obviously we are living inside the “fourth” world.
step backJune 14, 2013 09:58 pm
“If you put together a reasoned and coherent argument …”
I would be happy to.
Let’s start with Roger Penrose’s famous diagram showing the difference between the abstract or conceptual math model world and the real physical world:
A simple example is that where in the math world you can “construct” (conceptually) a straight line having an infinite number of points and a zero width.
In the real physical world, one cannot fabricate a line made of matter and composed of an infinite number of mass-filled points and having zero width. That is because atoms have finite width and they have empty spaces (electron orbit exclusion zones).
So right away you see that the “conceptual” world of math models does not accurately reflect the real world. It is a tool. It is a mental tool that we resort to because our feeble brains cannot handle the complexity of the “real” physical world.
The “general purpose” computer is similarly an abstract conceptual tool and so is the Turing machine.
AnonJune 14, 2013 09:22 pm
I have to chuckle as I posted while /ikh’s post was processing and my post answers his ‘point.’
“Therefore a general purpose computer [ ] can execute all special purpose Turing machines” translates into “all future computer (and software) innovations are per se obvious and no patents can be – or should be – obtained – even if there is no actual further innovation or improvements.
AnonJune 14, 2013 09:18 pm
I agree with you completely.
If you want to stop innovation in the software domain, treat the current state of the art as a de facto patent eligible platform – make general purpose be what Morse was denied: an un-enabled bar – regardless of what is actual, any thing capable is deemed granted, expired and in the prior art.
No other art unit has such a preposterous view on what ineligible means.
ikhJune 14, 2013 09:13 pm
If you put together a reasoned and coherent argument I would be happy to discuss it with you.
A set of bald, fairly meaningless assertions without context come across as trolling. And I know from reading some of your previous comments you are not a troll.
Gene argues, in the post, that there are no special purpose computers only general purpose computers plus software, so I don’t get your point! Special purpose and Universal Turing machines are mathematical objects that allow us to reason about the ability and limitations of computational machines. A computer powered by e.g. an Intel, AMD, or ARM processor plus ram is an implementation of a Universal Turing machine. The CPU plus memory is what is generally refered to as a general purpose computer. It has been mathematically proven that all special purpose Turing machines can be executed on a Universal Turing machine. Therefore a general purpose computer ( as defined above ) can execute all special purpose Turing machines. That is fairly general purpose in any usual meaning in the English language.
What is your point?
step backJune 14, 2013 07:55 pm
There is no such thing in the “real” world as a “general purpose” computer.
There is no such thing in the “real” world as a Turing machine.
They are both conceptual fictions.
“General purpose” implies that such a computer can be used for any and all purposes and that is absolute rubbish. No one has ever built such a machine.
ikhJune 14, 2013 07:37 pm
Firstly, I want to agree with you that a computer without software is not very useful.
However, your post does contain some factual inaccuracies.
1) There is such a item as a special purpose computer. In fact, they are quiet common. The standard Ethernet controller is an example. It is usually implemented as an ASIC ( Application Specific Integrated Circuit ). implements the Ethernet protocol. It puts that data into the correct size frame. It calculates the checksum. It does carrier sense and collision detection and executes the back off algorithm. All of this is implemented directly in hardware. I.e no software. This is an example of a special purpose Turing machine whereas a general purpose computer is an instance of a Universal Turing Machine. They are used because when manufactured in volume, they are much cheaper then a CPU plus software. They are also much faster. This is why ASICs are commonly in high performance routers. There are many examples of special purpose computers and their function is hard coded in the circuitry. So, yes, special purpose computers exist and they exist without software.
2) You state that a general purpose computer is incapable of doing anything without software. This is not strictly true. It is certainly true that it is unlikely to do anything particularly useful. However, on each clock cycle, a general purpose computer will execute the next instruction pointed to be the program counter register and perform that calculation. It will keep doing calculations, performing memory fetches, incrementing the program counter etc on each clock cycle. The point is that the computer continues to function, in the way that it was designed to do, even without software loaded. It just not usually do anything useful. The issue i am taking is that a computer is *not* “wholly incapable of doing anything on its own”
However, none of this, despite the hyperbole in the post, is particularly relevant to the PTAB decision. Having just read the judgement, it looks to me to be a textbook argument based on Benson, Flook, Diehr, with the odd reference to Bilski and Mayo. It steps through the arguments simply and logically. It looks to me like it follows the reasoning of the Supreme Court exactly. Which should make it bullet proof if appealed.
So. In answer to Gene’s question from the title of the post, “Did the PTAB just kill software patents?” Yes! I think it just did. I hope the CAFC read this decision and take note of the reasoning.
So where does this leave computer implemented inventions. They are still patentable, if, after subtracting the computer and its software, there is still a meaningful invention. An example might be a fly by wire aircraft that uses unstable aerodynamics. I.e. machines, processes, materials that exist outside the computer.
JodiJune 14, 2013 01:05 pm
Suppose all the prior art weaved from left-to-right, and somebody figured out a way to weave from right-to-left. Also suppose novel, non-obvious, and unique. Why would that NOT be patentable?
If that’s too silly of an example for you, then suppose everybody was using thread where the entire roll was one color and someone figured out having alternating colors on the same thread roll – why would that improvement NOT be patentable?
If that’s still too silly of an example for you, then suppose someone found that by using alternating colors of threads AND moving the weaving bar (or whatever it’s called) right-to-left, then top-to-bottom, then left-to-right, then dropping it into a bucket of dye, then lighting it on fire, then throwing it into a freezer resulted in some new groovy-pattern quilt/weave – or even considered a new kind of material. Why would that NOT be patentable?
Point is – how do you encourage investment into innovation? How do you ensure the IBM/Microsoft/Google of 1805 doesn’t just cut R&D and instead monitor the landscape of small weaving startups for the best new techniques and then copy those? We know that large majority of R&D is waste (except the learning what doesn’t work that it results in) – and usually monitoring competitors + copying is more efficient than R&D. We also know that the majority of innovations come from small or individuals that are free to pursue their own ideas. How do you encourage innovation over copying?
In 1805, fabrics were all the rage, in the 80’s Fletch taught us “it’s all ball bearings”, and now in 2013 it’s software.
Brad OlsonJune 14, 2013 10:54 am
Gene: Very apt regarding President Lincoln as prior to the presidency, he was a patentee and represented inventors before the Office. He would have understood 101 issues today as he knew that bags of air will float since Roman times but when they are deployable with steam air and affixed to a steamship to get over shoals, they are 101 and the only issues collapse into 102/103 and 112 or their equivalent back then.(Act of 1852). Look up his patent. Keep on teaching ’em Gene.
Gene QuinnJune 14, 2013 10:33 am
Thanks Brad. Between the PTAB decision and the Myriad decision from SCOTUS the crazies who know nothing about law, science or life are coming out in force.
These folks would do well to take to heart the reminder of President Lincoln that it is better to be thought a fool than to open your mouth and remove all doubt.
Brad OlsonJune 14, 2013 10:30 am
Gene- We said re Motorola Processor and thank you for elevating this discussion and setting the context for this discussion. The SCOTUS chose to ignore many elements of the claims that do indeed make them 101 matter–SCOTUS made the same beginner mistakes that many of your posters are making in their statements. Keep up the great work and sharp repartee.
Gene QuinnJune 14, 2013 10:18 am
Were the Roman’s in possession of a Motorola processor some 2,000 years ago? Just curious, since the patent defines processor as a Motorola microprocessor.
So… NO. The Romans did not infringe claim 27.
AnonJune 14, 2013 08:51 am
I disagree that the Court ignores the words “discovers” and “composition of matter.”
What the Court did was simply say that not all discoveries and compositions of matter are subject to being patented.
The Court has long excluded certain, otherwise category-fitting items that, per Chakrabarty, quoting Funk: “Such discoveries are “manifestations of . . . nature, free to all men and reserved exclusively to none.”
step backJune 14, 2013 07:34 am
Note how the Supreme Court Myraid decision conveniently ignores the words “discovers” and “composition of matter”.
step backJune 14, 2013 07:32 am
For you edification, here is what the written law actually says:
35 U.S.C. § 101 35 U.S.C. 101 Inventions patentable.
invents or discovers
ANY new and useful
or composition of matter,
or any … improvement thereof,
may obtain a patent therefor,
subject to the conditions and requirements of this title.
step backJune 14, 2013 07:27 am
Thank you for your thoughtful come back.
I suspect that a fundamental flaw in our debate is that our language does not contain words of sufficient clarity to carry out meaningful discussion.
“Software” is a nebulous and inconcise term.
Almost anything can be called “software”.
Almost every electronic digital device can be called a “computer”
… because any transistor with a drain load “computes” the inverse of the binary signal presented to its gate.
One needs to get into the deeper details of what the invention is is without conflating novelty with the question of patentable subject matter under 35 USC 101
The first loom that responded to punch cards WAS a new and useful “machine” and thus eligible under 101.
step backJune 14, 2013 07:18 am
“the fact that many of us involved in the legal world of patents really do understand the technology, …”
I would be very carefully stepping up onto that soap box.
I very much doubt that “many” in the legal field understand technology.
Think of the demographics more in terms of the Marine Corps. ad tag: “the few, the under-appreciated, the patent prosecutors …”
AnonJune 14, 2013 07:09 am
I think the difference between the loom and a computer for Travis’ analogy is what is “done.”
As I mentioned, patent law is meant to protect the ‘what is done’ or utility of man’s creative or innovative efforts (copyright covers the expressive portion of man’s creative or innovative efforts, and that is why certain efforts can be covered by the different forms of protection). What a loom does with different inputs, or stacks of cards is appreciably – and fundamentally – different than what a computer does. The analogy is seductive, because the loom was indeed a precursor to the modern marvel of the computer, but for that very reason any such analogy must be thoughtfully and carefully used.
Here, the analogy is a misuse, causing more confusion rather than clarifying the difference.
Paul JohnsonJune 14, 2013 06:27 am
Maybe I’m a bit dump, but looking at claim 27 for example, if one cancels the two words “computer implemented”, isn’t that exactly what traders did since far before the Romans? Using the knowledge about prices for products and what certain buyers might pay gained by communicating with others?
TravisJune 14, 2013 12:34 am
I’m not necessarily saying they shouldn’t be patentable: just that adding a punch card stack to a loom doesn’t make a new machine, and so they wouldn’t be a ‘improvement or transformation’ (or whatever the term is) even if they are novel, useful and nonobvious.
JodiJune 13, 2013 11:40 pm
Whether we’re talking OSes, looms, or CD players – each can be implemented, built, or assembled differently. Some may involve improvements, some may involve new techniques. Why would those NOT be patentable?
TravisJune 13, 2013 10:58 pm
@ Gene (#35)
There is no need to be rude here. I am genuinely interested in software patent issues and I’m not partisan for either side. I work for one of the companies that frequently gets mentioned on sites like yours, and they want me to patent the software that I write – even though 90% of the time I feel like this software is ridiculously simple and obvious. I don’t necessarily buy in to the ‘all software is math’ argument; I just feel that the ‘transform into a new and useful machine’ argument is particularly misinformed in light of many other devices which only ‘function’ when given external inputs.
I do know how a CD player works. It seems that you don’t understand how similar it is to how software works. The fact that you make a distinction about ‘installed’ software though is odd – surely you recognize that software doesn’t need to be installed and can run off a CD.
Both a CD and a compiled piece of software are just binary encoded data. You give this data to a machine which ‘knows’ how to interpret it, and it will produce a certain type of output. For a CD, the interpreter ‘knows’ to convert a sequence of 1’s and 0’s to another set of 1’s and 0’s and direct that towards a particular output port, producing sound. This can even be done mechanically (see, Gramophone).
How is this significantly different to a software binary? The interpreter reads 1’s and 0’s, produces output, and directs those towards certain places – sound, monitor, memory, disk.
A computer with Microsoft Windows software is a machine which can run Microsoft Windows. You argue that taking away Windows makes the computer “an oversize paperweight”, and adding Apple OS/X turns it again into a useful machine. How is this significantly different to a CD player, which without a CD in it is “an oversize paperweight”? If you remove the CD from a CD player, can you use it to “accomplish any task”?
If you don’t like the CD analogy for some reason, how about the others that I proposed? A programmable loom is certainly a lot closer to a computer – the Jacquard loom was an important precursor to computer programming, and indeed used punched cards or tape to load instructions. Would you consider the Jacquard loom an ‘oversize paperweight’ until someone ‘transformed’ it into a ‘new and useful machine’ by adding the punch cards? Why or why not? How is that significantly different to the way a computer works? Would each set of punch cards be considered a patentable invention because of its ability to ‘transform’ the loom?
I understand that your time is valuable, but I would appreciate a considered response to this rather than a trolling redirect to howstuffworks like you posted before. Perhaps you could actually convince me.
AnonJune 13, 2013 10:09 pm
I appreciate the banning of those who would play parlor games and not pay heed to what this forum is for: the discussion of law.
If I want to hear people get on a soapbox and parrot arguments they do not understand, I know where to go.
It’s OK to forgive, and I have no problem doing so. But like the last threads on software, I just don’t have patience for those who refuse to engage with any sense of what the law is, and yet boldly proclaim what the law should be. Then on top of that, ignore the fact that many of us involved in the legal world of patents really do understand the technology, but that we must not because we do not adhere to the near-metaphysical religion (that patents are bad).
I have heard the script. I do not need to engage in a conversation to hear the script again from those who know nothing other than the script.
bundyJune 13, 2013 07:19 pm
The PTAB and (BPAI) rarely got the 101 issues correct, so this doesn’t surprise me. The CAFC doesn’t seem to be getting 101 right either. With Stevens gone from the Supreme Court, I think they will finally straighten this out. We will just have to be patient and put up with more crazy decisions like this one until that happens.
Gene QuinnJune 13, 2013 07:18 pm
I appreciate what you are saying about banning people. The problem we have is that once someone has a comment approved the can automatically post without moderation (unless the spam filter catches it or there is more than 1 link in the comment). So if those folks are allowed to continue to post they will disrupt meaningful dialogue and we have to traverse, and re-traverse, ground every time an article about software is posted.
It is a shame that so many self-proclaimed experts on software don’t even fundamentally understand what software is or does and how it differs from math. It is as if it has to be mathematical because the code uses mathematical operators. It is utter nonsense and they never learn. They don’t take the time to inform themselves and they gleefully write about how they are correct all over the Internet. So anyone who thinks math is software can go to any number of places to spew that nonsense. Here I prefer to keep the debate honest and truthful.
I would love to forgive them… and in the real world I do forgive them for their lack of understanding. Here, unfortunately, we get over 4,000 spam comments a day and a lot of outright vile comments that aren’t caught in the spam filters. Censoring stinks, but I’m not going to allow the forum to suffer.
Cheers my friend.
step backJune 13, 2013 06:51 pm
On banning the software-is-math pundits:
I posted an opening remark in the False Distinction comments section here:
Because people do not read long comments, I tried to keep it short (a relative term).
My discussions at dinner with the software guru included how “computer scientists” are trained now a days.
There are parts of computer science that are analytical in nature; for example, can an algorithm complete in a bounded number of steps. CS majors are taught these analytical, physics-free concepts. Perhaps some of them get confused and can’t see the demarcation line between mathematical model and physical reality. I wouldn’t simply banish them so quickly just because they are confused on that point. Confusion doesn’t make them evil.
I was surprised during that dinner last week in having the software guru concede to me that the “ideal” Turing machine with the “infinite” tape is physically impossible. It is just a way of thinking, he explained. It was never meant to be a true model of all computers. Real world computers have physical constraints: speed, power, size, etc. Many computational math models do not account for physical constraints.
To sum it up, forgive them for they know not what they say.
Gene QuinnJune 13, 2013 05:46 pm
Software is not math and anyone who says otherwise is wrong. I have gone over this time and time again and the reality is that software directs, math describes. It is no more difficult than that. The fact that you are unable to grasp such a simple concept speaks volumes of your intellectual dishonesty and complete lack of familiarity with the basics of software and the basics of mathematics.
As with everyone who insists that software is math, you are now banned from commenting on IPWatchdog.com. There are plenty of places on the Internet you can spew such lies and be celebrated. I don’t tolerate that brand of nonsense here. It gets in the way of intelligent discussion of the issues.
JonCBJune 13, 2013 05:29 pm
“As I mentioned, you come to this arena, armed with but a limited and trite script, unwilling and unable to discuss the full legal and real scope of the patentability of software.”
It appears that either i’m speaking gibberish or you can’t even take the effort to read what I write. I am not discussing the “full legal and real scope of the patentability of software” because i’m not a lawyer. I am uninterested in what patentability applies to because that is not the point of my comment. The point of my comment is to show that the idea that you get a new machine by loading some software into it is not a “reality” but an absurdity. My forlorn hope is that one day patent law will recognise the reality that is sitting in front of them and come up with a more robust justification for software patents.
You say that my observation that “at a fundamental level all software is mathematics” is just not so, and yet the computer science experts who have made all this possible (e.g. Knuth) say otherwise. You will excuse me, i hope, if I accept their authority over your lack of same.
Gene QuinnJune 13, 2013 04:43 pm
The problem with people like you is you think you know everything, when in fact you are really rather ignorant.
Does the patent specification provide support for the processor being a human brain? The answer will obviously come as a shock to you, but the answer is NO! Here is how the processor is defined:
“In one embodiment of the invention, the CPU 13 is a 32-bit microprocessor manufactured by Motorola, such as the 68030 or 68040.”
So is your brain manufactured by Motorola? LOL. You are so clueless you don’t even know what you don’t know. If you want to play in this space inform yourself! Actually read the patent and figure out what the terms you mock actually have been defined to mean!
Hysterical rantings that fail to take into consideration the meaning of terms shouldn’t be taken seriously!
Gene QuinnJune 13, 2013 04:30 pm
Have you ever tried to compile an instruction manual and then run? LOL.
You make it too easy to completely ignore what you write with a moronic statement like software being identical to a printed instruction manual.
AnonJune 13, 2013 04:18 pm
Please explain. There has been no Supreme Court case overturning Alappat. Quite in fact, Alappat was re-affirmed after the Bilski case.
Please do not make up law.
SteveJune 13, 2013 03:20 pm
Software does not create a completely new physical machine. Most definately not in the 21st century.
Software is instructions that perform a function, no different than an instruction manual on how to assemble an actual physical device from the pre-manufactured parts. That is the reality of what software is, and anyone who argues otherwise is either someone not “skilled in the art” of computer programming, and/or has a vested interest in software patents. It’s gotten to the point where I think anyone entering the fray should wear a badge that shows they are A) someone that works in the field of computer programming, B) a patent lawyer, C) a software patent holder or an employee of a software patent holder, or D) none of the above. I would be interested to see which categories of people stand as for or against software patents. I would guess that 90% of A would be against software patents, 100% of B and C are for software patents and D would be 50/50.
The “software creates a completely new machine” argument falls apart under it’s own weight, especially in light of modern multi-processor, multi-core computers. Most people now a days are familar with Windows or Apple computers. In some cases, they can run on the same hardware. Then you load a program written for both computers, like a word processor or web browser and run it. They are completely different physical machines and the both have a different look and feel, which can be customized by the user, but if they are running the same web browser displaying the same webpage in the exact same way, are they the same machine or identical copies of machines?
The answer is not even remotely. The software that was written once, had to be compiled for each machine so that the device could actually follow the instructions the author wrote. The one’s and zero’s may share some similarity, but are not the same.
Now, the two machines run another program, like a spreadsheet, and open completely different files, but still have the same web page open in the browser. Now each machine is doing stuff that the original author of the web browser never intended, and never programmed. Now, a screen saver kicks on both physical machines, while still running the web browser and spreadsheet.
According to the “create a completely new machine” doctrine, that is one physical machine with three distinct software running. (A general purpose operating system, a web browser, a spreadsheet and a screensaver.) That the law should qualify them as three separate machines at the exact same time is beyond silly. In the 90’s, the CPU would take turns for all the software it was running. So, even if someone knew every detail of how their software affected the physical machine, it would be impossible to point out which micro second was their software running or another. And with multiple cores and processors the same physical hardware is literally doing more than one thing at the same time.
The point I am making is that all of this functionality is built into each and every general purpose computer, and it’s always been there. Someone didn’t “invent” a way for the computer to do any particular function, as all of that capability is built into the device.
An analogy I would use is blackjack. The dealer has specific rules they have to follow. The instruction book did not magically transform the person that wanted to be a blackjack dealer into someone new. And writing the first instruction book to be published on how to be a blackjack dealer does not mean that anyone who used a different set of instructions instructions infringed on the property rights of the person who was published.
Duncan MacdonaldJune 13, 2013 03:12 pm
Some people are saying that the PTAB is bound by the Federal Circuit – however it is also bound by the Supreme Court and in light of the Supreme Court’s recent decisions about patents this decision seems to be correct. The basic method could be carried out by a human being with the “data source” being a pile of documents, the “processor” being the human brain and the “display” being writing on another piece of paper.
(This is after all what buyers have been doing for many decades.)
Reciting the components of a computer has added nothing of substance to the claim and has not restricted it sufficiently to make it a viable claim
Gene QuinnJune 13, 2013 01:51 pm
re: Paid Bloggers…
You may well be right. I’ve banned a number of folks already today for failure to meet our guidelines that require comments to be truthful and forward discussion. Not going to let folks get in the way of meaningful discussion when they are only interested in misrepresentation and deception.
Gene QuinnJune 13, 2013 01:48 pm
How can these folks even believe for a second that they understand anything about computers, hardware or software when what they don’t even understand fundamentals about what software is and does.
Gene QuinnJune 13, 2013 01:45 pm
I agree with you that the PTAB is bound by the CAFC. I suppose after the CLS Bank mess they could convince themselves that they are left to their own devices to figure it out in the first instance.
There is no doubt that what we are seeing in the software space directly flies in the face of Alappat. Perhaps even more directly contrary to Arrhythmia Research.
Gene QuinnJune 13, 2013 01:43 pm
I agree with you about any computer having software being a specific purpose machine, but is that really what the cases are talking about? I challenge the existence of a special purpose computer to address the nonsensical comparison between a general purpose computer and a special purpose computer.
Any general purpose computer with software then becomes able to do something specific. It seems that the law requires a machine capable of only one thing in order for software to be patent eligible. That simply can’t happen. Software can change any machine on which it is installed.
The syllogism is terribly flawed.
Gene QuinnJune 13, 2013 01:39 pm
I agree with you 100%. The big issue in the room is going to be Chevron.
I sadly feel the walls closing in on all sides.
NWPAJune 13, 2013 01:26 pm
Gene, you might want to consider that some of these people posting anti-software posts are paid bloggers. I am sure some are on patently-o and some have admitted it. There was a job posting on patently-o for paid bloggers to post anti-software patent posts.
NWPAJune 13, 2013 01:11 pm
-Gene Finally… I will address the asinine comments of those who mention CD roms and Record players in another comment.
Thanks Gene for fighting the good fight. It appears, though, that we are losing. What gets me is the massive ignorance regarding computers.
JodiJune 13, 2013 12:17 pm
Collin Bell naively repeated the myth:
The abusers are those who *COPY* the property of others. We know they copy because the patentee clearly worked through the invention and filed a patent application long *BEFORE* the infringer came along and copied. The copycat infringers are the real patent trolls.
JodiJune 13, 2013 12:08 pm
Stefan G cluelessly said:
Just as there are differences between engines, there are differences between software implementations. Some are better than others. Have you not noticed how much faster running Linux on the same hardware is over running Windows? Advancements are patentable.
Yeah, so the joke is on you! I am a software engineer of 25years with no official qualifications in patent world other than the patents I’ve filed. I wasn’t keen on moving up corporate ladder and wanted to continue ‘making’ but I tired of the whole cubicle world long ago and looked for a way to fund my love for advancing technology. Patents and investors go hand in hand. Investors look for a variety of things, one of which is the safest way to make a $buck. Patents reduce their risk by providing a form of guarantee on their investment in innovation.
Also, what I’ve discovered is that I am not alone, I estimate there are thousands and thousands (and growing) of software engineers in the U.S. similar to me. Furthermore, many of the recent software companies that survived had patents. Google is but one great example where the biggest thing standing between Microsoft copying Google’s backlinks and PageRanking was that Stanford patent. One piece of paper played a large part in why they have that $288billion market cap today. Indeed, Search still accounts for the overwhelming majority of $GOOG’s revenues.
AnonJune 13, 2013 11:53 am
Another question for you – perhaps to the point of the article:
Is not the new PTAb (an admittedly Article 1 court) still required to follow precedence of the higher authority Article 3 courts – specifically, how can this decision stand given that In re Alappat – an en banc Appeals Court decision is still controlling law? I do not see anything in the AIA that changes In re Alappat, and this court certainly does not have authority to change controlling law, does it?
AnonJune 13, 2013 11:49 am
I have one quibble with your statements – and it may be more semantics than substance.
Rather than saying that a special purpose computer does not exist, I would posit that a working general purpose computer does not exist.
Let me explain: Somehow a notion (a legal notion) has evolved that a general purpose computer would not be patent eligible (not not patentable – not eligible, and yes I think we both know there is a difference). This of course is absurd, as even a general purpose computer is a specific type of machine, and the 101 question simply does not delve down to subcategories of categories. I view this “general purpose” thing to be – like my ‘human analogy’ above – indicating that the machine is the same as all other machines – not “is like” but “is.” Of course, we know that even on the hardware level, the modularity and possibilities of configuring a machine makes this a ludicrous idea.
Now on top of the bare bones hardware, we then enter the realm of adding another machine component: software. I would posit that the moment software is introduced you have transformed the machine from the mythical universal (even though we know there is no such thing) general purpose machine into a specific purpose machine – because that is what software does. The only purpose for software is to do something. Software is not a novel – whose purpose is for enjoyment of mental enjoyment, fantasy or aesthetics. Software is required to make the computer DO something (other than act as a paperweight or a heat engine).
In essence then, ALL working computers that DO something (and thus fall into the realm of what Patent Law is all about, are in fact specific purpose machines, and they are thus based purely on ‘software.’
MarkGJune 13, 2013 11:45 am
A vivid example of how software makes a machine a “new machine” is the operating system software. For example, many people who are running Windows 7 do not want to upgrade to Windows 8 because they do not want their existing Windows 7 computers turned into a new machine, i.e., a computer that operates in the Windows 8 environment instead of the Windows 7 environment..
You also might want to use the example of how various software applications can change a computer, table, softphone, etc. into a new machined. For example, lets say I install on my computer a software application that adds softphone functionality to my computer that I could not previously use a phone. Adding a phone capability to my computer makes my computer a new machine, i.e., a combo computer and phone that it was not before. Similar idea if I add a bar code scanner app to my smartphone, a time keeping application, etc. I am changine my smartphone into a new machine ever bit as much as if I had added a physical bar code scanner, timekeeping device, etc. to my smartphone.
Brad OlsonJune 13, 2013 11:43 am
Gene: Well-reasoned arguments from you as per usual. In my opinion, the penny yet to drop is whether we are seeing the level of patent law jurisprudence that we should now expect from the new PTAB and how AIA is going to be interpreted? Bigger issue is whether we will see Chevron deference (Chevron v. NRDC) and will that be applied by the Fed Cir./SCOTUS when the PTAB (SAP v. Versata) opinion is appealed? (See footnote for background)
Btw, your assessment of how SCOTUS mishandled Mayo as far as 101 was spot on.
FN: Field, Thomas G. Jr, “Chevron Deference to the USPTO at the Federal Circuit” (2002). Pierce Law Faculty Scholarship Series. Paper 11.; http://lsr.nellco.org/piercelaw_facseries/11
Gene QuinnJune 13, 2013 11:12 am
Google is my friend? Obviously you haven’t been watching the news lately!
Yes, a computer built for a specific purpose. Great! Thank you! You prove my point, although you aren’t likely informed enough to understand.
So in order for software to be patent eligible the computer has to be built from scratch and designed only for 1 specific function. LOL. And you actually think that a computer can be build and only capable of performing a specific function?
I suppose since you and the others here don’t understand software at all you probably do believe that a computer can be designed so that to the exclusion of all other things it can only perform 1 specific function. WOW… you have an extremely low opinion of people who write code if you don’t think code can be written to transform your computer from scratch that is only capable of doing 1 thing into a computer that is capable of doing whatever the code tells it to do.
You see, Paulovsky, the definition of a specific purpose computer is WRONG! Simply saying something exists doesn’t mean that it does exist.
I really feel sorry for you and the other self proclaimed experts who don’t even know what you don’t know.
JodiJune 13, 2013 11:10 am
Travis also cluelessly put foot-in-mouth:
There are differences between models of engines. If new way of doing something is found, then patentable.
Gene QuinnJune 13, 2013 11:06 am
You use the undefined term “specific purpose computer.” If you know so much then define the term.
It is asinine for anyone to suggest there is such a thing as a specific purpose computer. Software is what directs the machine. How a bunch of self-proclaimed computer/software experts fail to grasp such a simple truism is quite funny.
Gene QuinnJune 13, 2013 11:04 am
Do you understand how a CD player works? Seriously, your comment suggest that you lack a fundamental understanding of how a CD interacts with a CD player. Thus, your analogy, which you must think is clever and wins the argument for you is ridiculous and childish.
You see, the CD player reads what is on the CD Rom. Please inform yourself:
A CD player reading a CD is not like installed software that directs a machine.
JodiJune 13, 2013 11:04 am
JonCB contradicted himself with:
Observing that software patents leading to WORSE results are diminishing is suggesting improvements are taking place. Improvements require innovation. Innovation is patentable.
Gene QuinnJune 13, 2013 11:00 am
You say: “The software confers no new power that the computer did not already have.”
Sorry… you are wrong. Without the software the computer has no power to accomplish anything, so it is 100% correct to point out the obvious. The software enables to machine to do something that the machine could never do without the software.
If you want to continue to comment here on IPWatchdog please keep your comments honest. I’m not going to tolerate moronic nonsense that only attempts to prevent a serious, factually correct discussion of reality.
PaulovskyJune 13, 2013 10:58 am
He is one definition that just I just googled.
A computer designed from scratch to perform a specific function. Contrast with general-purpose computer.]
Gene, google is your friend – in future, use it before engaging fingers with keyboard.
JodiJune 13, 2013 10:52 am
What you say makes sense. Supreme Court will add yet another test that we’ll have to digest and work through.
I look at the various international trade agreements being worked on (e.g. TPP where U.S. is looking for increased intellectual property protection) combined with software being an area where the U.S. is so much further ahead of others – and it’s hard to believe protecting software innovations is going anywhere.
And, as a software engineer & entrepreneur looking to protect my investments in software innovations – thanks for the great article (and site)!
Gene QuinnJune 13, 2013 10:51 am
WOW… so much uniformed nonsense to respond to from the masses who don’t understand patent law and obviously are unfamiliar with software. Seriously folks, if you are going to comment please be honest and try not to show yourself as lacking even a modicum of understanding. Dealing with the drivel from the naysayers really gets in the way of having a meaningful discussion.
First…. anonymous… you say: “One could argue the patent is still owned by its owners.”
WRONG! When claims are found to be patent ineligible no patent is issued and if a patent has been issued the claims are invalidated. NOTE: If you are going to comment on a patent blog please inform yourself about the basics before commenting. I’m not going to tolerate misinformed nonsense on this thread.
Second… Colin Bell… you say: “A general purpose computer (eg PC, server etc) has ALL the capabilities required to deliver ANYTHING that is ever programmed for it, within the constraints of its hardware configuration. Software, firmware, hardware are simply levels of abstraction…”
Obviously you are unfamiliar with software or hardware. If you want to keep commenting on this thread please get a clue and get it quickly. Software is not “levels of abstraction.” That is a moronic statement. Software directs a machine. Without software the machine won’t operate and everyone who is being honest knows that to be 100% true. So the fact that the hardware possesses all the capabilities to do whatever the software directs supports my position and undercuts yours, although based on your relative ignorance I doubt you will understand that. Let me try and explain this so even you can understand… the software tells the machine what to do. Pretty simple stuff really. How you can be so clueless is astonishing.
As for your ridiculous explanation as to what a dumb terminal is… please! You are too cute by at least half. Everyone (except you obviously) understands that a computer without software is nothing different than a dumb terminal. A computer without software is just as useful as a dumb terminal.
Tell me, Colin, why don’t you remove all the software from your computer and then compare its functionality to a dumb terminal and get back to me. Seriously. It is hard to believe you are so ignorant.
Third… Stefan G says: “You people really, really, ought to educate yourself on the subject of computers and programming, and realize what kind of paralyzing patent thicket you are advocating for the software industry.” And then he takes issue with me referring to those who know nothing about patent law and obviously very little about software as “so-called experts.”
Really you need to educate yourself on history. The best thing we could hope for is a paralyzing patent thicket. It is undeniably correct to observe that whenever there has been a patent thicket that has been the precursor to unprecedented leaps forward in innovation and technology. So if you are going to use terms of art and concepts please endeavor to understand them. We don’t have a patent thicket here. What we have is a lot of very lazy software developers who don’t want to have to engage in appropriate business and respect the rights of others. The so-called experts who hate patents really just want to copy others. They are not innovators at all. Innovators create new things. So YOU “really, really out to educate yourself on the subject of computers and programming” before you make it clear to everyone that you really, really understand nothing.
Finally… I will address the asinine comments of those who mention CD roms and Record players in another comment.
AnonJune 13, 2013 10:34 am
What you consider ‘obvious’ clearly does not align with what that word means in the real world of law.
Again, you parade a typical nonsense (and unbridled arrogance) by wanting the law to be something that it is not, not wanting to understand what it is, and then crabbing about the ‘injustice’ of it all.
Plain and simple, your view of obvious would render nothing patentable.
Take ANY manufacture for example – even your example of a music player. At a fundamental level, any such item is composed of three very well known atomic particles and all of these particles are ‘put together’ under very well known laws of physics. To your view, ANYTHING then that results from the obvious way of combining of obvious particles must be obvious.
At a fundamental level, your position is absurd.
AnonJune 13, 2013 10:27 am
You assume that I lack a technical understanding.
I do not.
Your analogies fail for the reasons given. Belaboring the point? In what way would your understanding of my position belabor the point? You are simply copping out.
The bi-directionality of hardware software quite misses the point that both are constructs of man, made for a purpose and that both are machine components. Or is that too, a point that you do not wish to belabor?
As I mentioned, you come to this arena, armed with but a limited and trite script, unwilling and unable to discuss the full legal and real scope of the patentability of software.
You claim the pointing out of the difference between what patent law is designed to cover and what it is not designed to cover and claim “unresponsive and telling.” Pardon my directness, but it is your ignorance that is telling. A music player is not music. Please don’t waste my time with goal-post moving misstatements. The critical difference between music and software which you need to realize is that software is created for a purpose, and thus has utility, and thus is exactly what the patent laws were designed to cover.
Your labeling of my views as mindless fallacies when you do not understand the terrain of law is simply too shallow to place any value in. You think that I do not understand the technical, but I do. You admit that you do not understand the legal. This arena deals with both. You simply do not understand what you are saying, and this is evident in your misrepresentations and shallow responses to my comments deconstructing your (sorry if this hurts) feeble analogies. Your “reality” is not reality, so even if you “deal with on a day to day basis,” all you are dealing with is the repetition of a false idea. You are amused, but you are amused based on your own limitations of the arena. What appears ‘mindless’ to you only appears so because you have been unwilling to accept the plain truth of what has been offered.
You ask for ‘professional’ courtesy when what you are really asking for is for blind allegiance to a philosophy that does not stand up to scrutiny. You are simply incorrect in your ‘reality’ that “at a fundamental level all software is mathematics.” It just is not so.
Lastly, you err in the ‘running’ comment. The machine does not change due to the ‘running.’ The machine changes when the machine is configured with the software to enable it to ‘just run.’ Again – your deconstructed analogy of the toaster points this out. The toaster with the capability of ‘just running’ at 3 or 4 is already programmed – configured – a new machine – in proper comparison to the box of parts. You cannot ‘just run’ a machine if that machine lacks the software. It is the act of adding the software to the machine that transforms the machine. This is simply not a question of ‘running’ the software.
anonymousJune 13, 2013 10:20 am
Step back: “I’m at a loss to understand how an old property right already fully granted by the federal government (Versata’s 6,553,350 patent) under older laws could be subject to an ex post facto take-back by the government.”
Well, we could start with mining laws and flyover rights of airplanes or redemption rights. This isn’t exceptional. We *expect* the courts to do so in some cases. Software patents are inherently harmful to society.
Besides, property rights aren’t taken away here. One could argue the patent is still owned by its owners. The patent, though, may be voided i.e. stripped of its value.
I’m pretty sure the decision didn’t require any compensation to those who have already paid royalties or those whose actions were influenced by the patent or the record of the patent being granted being stricken. Also, patents are granted proviso they may be voided.
So, it’s not really “ex post facto”. It’s “business as usual”. Stop being hysterical.
JodiJune 13, 2013 10:19 am
JonCB put foot-in-mouth:
just as software adds functionality to hardware
JonCBJune 13, 2013 10:09 am
Oh and before someone pipes up, no i don’t mean “software tool” in terms of running a program, I mean software tool in the same way that one would talk about a craftsman’s tools. If I apply a thought process as old as computation (in some cases which actually predate computers… Fun Historical Fact!) to design some software component then I don’t consider the results to be anything other than obvious.
Now come to me with a patent whereby doing the thing that would be obvious leads to worse results, Then i have absolutely no problems with that as a patent. However the number of software patents i’ve seen that hit that bar seem vanishingly small sometimes.
JonCBJune 13, 2013 10:00 am
If your yardstick is that if i change something about a machine (and after all loading software is nothing more than twiddling a few million electrical frequencies) and then I end up with a machine that has more capability then i MUST make a “New Machine” then my Toaster MUST become a “New Machine” when i change its dial from 3 to 4. Perhaps if you could describe your definitions better, i could give you better analogies. Having said that, I see that you are not skilled enough in the art to see that analogy to its obvious conclusion so i won’t belabor it.
As a technical point, while software can always be replaced with hardware, the same is not true the other way around. As I mentioned above, no software will completely replace my wireless antenna, that is a piece of hardware that will always be required. I, likewise, cannot replace my CPU with software. Also, Monitors, Mice, Keyboards (i.e. anything considered an Input/Output device). While i can pretend that my hard drive has more space than it really does with software (c.f. “DriveSpace” on windows) that are physical limits (commonly you get about twice the physical hard drive space, though it varies depending on how well your content compresses) and I can never do away with it entirely. While my software can use my hard drive to pretend i have more physical memory than i actually have, again there are physical limits (virtual memory is slow, hard drive space is still finite) and i can never do away with it entirely.
Your point against my media player comment is as unresponsive as it is telling. From a technical reality perspective there is no realistic difference between playing a music file using a Music Player and running software on a CPU. Certainly the individual instructions are different, and the hardware they are being run on are wildly different, but the same process is observed, I load a set of electrical signals into this component called “Memory” and I load them piece by piece through some form of processor (CPU for the software, some form of advanced DAC for the music player) the results of which are sent to one or more separate hardware devices to be sent back to the user as feedback (e.g. video displays, speakers, etc). Any difference you perceive in these two processes is information about you, not about the process in question.
And are you saying that a music player isn’t covered by patents? I believe Apple’s lawyers would like to disagree with you on that point. That your argument would consist solely of music not being covered by patent law is strangely harmonic since I know many engineers who say the same thing about software, perhaps the two analogies are closer than even i’d suggest.
I find it amusing that you talk of “mindless repetition of those that would ignore reality and law” and yet all i see here are arguments based on a mindless repetition of the same fallacies and misunderstandings of the realities that I deal with on a day to day basis.
Funnily enough i don’t mind if software is patentable. However I think if you take a common everyday process and then apply a generic software tool to it, then it should be called obvious. And “put it in a database” is about the most obviously generic software tool we have, sorry Gene. The leading edge of software thought leaders wish that people DIDN’T immediately think of how they were going to store this stuff in a database. It leads to bad software.
I imagine you (and certainly Gene Quinn) deal with the realities of law on a day to day basis and that is why i would not argue with you on the subject of whether all software is unpatentable because that is a question of law, not of reality. I defer to lawyers better understanding of the law, I wish patent lawyers would give me the same professional courtesy when i tell them that, “Yes at a fundamental level, all software is mathematics (no i don’t know whether that makes software unpatentable)” and “No, you don’t transform your machine into a new one by running a program (and no i don’t know whether that makes software unpatentable or not)”.
AnonJune 13, 2013 08:46 am
Your counterpoint is a fallacy, as the toaster has the actuality of both 3 and 4. To parlay this back to my point, it is effectively already programmed with the software. To appropriately place this in a software context, you would need to have a box of parts that is not yet configured and compare that to a completed toaster. There can be no doubt from a real world perspective that software and hardware are interchangeable – both are machine components.
Further, your examples of music merely perpetuate fallacy. Patent law governs the useful arts. Music is not within the useful arts, and thus your analogy fails before it even begins.
Please try to come to this discussion with reason and understanding, and not the rather mindless repetition of those that would ignore reality and law. As the discussion threads of the last go around on software revealed, if you are not willing to understand what the law is, you are only going to be able to repeat your limited script and will not be able to have an actual conversation on the merits. Please do not waste either your time or my time with such.
JonCBJune 13, 2013 08:30 am
“necessarily means that a machine capable of such – in comparison to a machine not so configured with software, not so changed, and not so capable – must be a different machine.”
Why must it?
If a toaster has its dial set to 4 instead of 3 must THAT be a different machine?
I mean the toaster is capable of creating MUCH browner toast… it is obviously different to the one not so capable. So surely by moving my toaster dial from 3 to 4 i’m creating a whole new machine right?
JonCBJune 13, 2013 08:22 am
That is illogical. A car frame designed without an engine cannot be said to have been designed with any power to move (no engine, no moving force) thus adding an engine means you have added a function to the car frame. No one would see a car frame and go, you know i expect that could move.
By contrast a CPU is intrinsically designed to run any piece of software that is describable in its instruction set and that software is incapable of changing the hardware realities of the machine. It doesn’t matter how good i am at writing software, i am NEVER going to be able to add 3G functionality to a computer without an antenna. I am also NEVER going to be able to add 3G functionality to a computer without an antenna that is capable of communicating in the relevant 3G spectrum.
It is a testament to the quality of the hardware that we DO have antennas that can be “modified” (most technical people would probably rather “Configured” because that would be like saying turning a steering wheel has “modified” your car from being a specific machine that drives in a forward direction into a specific machine that turns to the right) to talk in many different spectrums. And hey thats cool and no-one could argue it’s not worth a patent (assuming one was taken) but the SOFTWARE is irrelevant here. It is the hardware that is interesting.
Ask yourselves this. Do you REALLY believe you create an entirely new machine every time you switch tracks on your music player of choice? That each time the MP3 changes your music device undergoes some magical transformation in your very hands to become not just a general purpose music device, but a QUEEN playing music device, or an AC DC playing music device. Because that is exactly how crazy the whole “new machine” fiction sounds to me. Speaking as someone who is well versed in the art.
Hey i’m not saying that’s not the law… the law does some incredibly stupid things every day of the week.
I’m just saying that if you’re talking about “the realities”, you’re talking horse hockey.
AnonJune 13, 2013 08:18 am
Are you this Scott:? http://scottdunn.blogspot.com/
If so, then I applaud your leadership mentality and ask that you not be a lemming follower to the cult of misinformation concerning the legal nature of improvements to machines.
Quite in fact, software does transform a machine in both the real world sense and the legal sense.
I suggest that you read the case of In re Alappat 33 F.3d 1526, especially this section:
We have held that such programming creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software. In re Freeman, 573 F.2d 1237, 1247 n. 11, 197 USPQ 464, 472 n. 11 (CCPA 1978); In re Noll, 545 F.2d 141, 148, 191 USPQ 721, 726 (CCPA 1976); In re Prater, 415 F.2d at 1403 n. 29, 162 USPQ at 549-50 n. 29 with a leader’s mind and not a follower’s blind obedience.
Keep in mind (pun intended) that a machine does not have a mind – it cannot think and the phrase ‘follow instructions’ necessarily means that a machine capable of such – in comparison to a machine not so configured with software, not so changed, and not so capable – must be a different machine. Yes, a computer is a breathtaking modern day item in that it is readily adaptable to be changed. But from a real world and legal basis, this “capable of being changed” is simply not the same as the “capable of performing a new function” after a computer is made a new machine by the addition of software. One is merely potentiality. The other is actuality.
If we want to carry this reasoning into the human sphere, a (very) limited analogy may suffice to make a small point: each newborn child is capable of being the next Hit1er just as much as the child is capable of being the next Ghandi. But the newborn child is neither. Your argument that a machine does not change with programming equates to saying that each human is the same as any other human. Not ‘is like,’ but ‘is.’ You are saying that ANY machine IS any other machine. This is simply not true in reality nor in law. Of course, this limited analogy breaks down when one considers that humans are expressly ineligible for patenting while machines are expressly eligible for patenting. And critically, improvements to machines are expressly eligible for patenting.
Colin BellJune 13, 2013 07:49 am
“It is undeniable that the presence of a piece of software turns a dumb terminal that is incapable of accomplishing anything into a machine that is specifically useable for the intended purpose.”
This statement is so unbelievably naive, that I am at a loss that anyone should convince himself that it might be true. It is a statement that indicates complete prejudice.
A dumb terminal has NO capability to accomplish anything. No a mount of software will do anything to a dumb terminal, because it’s DUMB. A general purpose computer (eg PC, server etc) has ALL the capabilities required to deliver ANYTHING that is ever programmed for it, within the constraints of its hardware configuration. Software, firmware, hardware are simply levels of abstraction and economic convenience. Now, if someone said: “Here is my source code, this is the compiler I’m using and this is the hardware I’m using”, THEN it might be argued that a SINGLE MACHINE is being described for an intended purpose. I know that’s not how the law works to-day. But until people are a LOT MORE specific about their implementations, then the knowledge being shared should not be eligible for protection through the patent system. The cost to society of the current abuse of over-broad software patents is too high, and the Appeal Court is completely right to smack them down. What we don’t have yet is the right guidance to determine specificity. Actually, because this is a mathematical technology, there is probably some functional analysis capability that could be used to do precisely that: I just don’t know what it is.
JonCBJune 13, 2013 07:41 am
This just in! Gene Quinn, Patent Lawyer, CONCLUSIVELY PROVES that a record player without a record on it isn’t a record player at all. A Piano player without anyone pressing piano keys isn’t really a piano. In a stunning display of logic, Mr Quinn has taken on a case involving Sony V Everyone who owns a PS4 on the grounds that if put a game DVD into a PS4, that PS4 is a COMPLETELY NEW MACHINE, one that is OBVIOUSLY derived from the Sony created PS4.
For his next case, Mr Quinn hopes to show that Black equals White and thus cause zebra crossings to destroy human civilisation.
This is the reason why we can’t have nice things Mr Quinn.
step backJune 13, 2013 05:52 am
Let me phrase my position from another angle.
We all know that “the map is not the territory” — see http://en.wikipedia.org/wiki/Map%E2%80%93territory_relation
An extension to that might say that a simpleton’s map of a complex territory is oft highly inaccurate, perhaps dangerously inaccurate.
That brings the following joke to mind. One involving a radar screen which is a two dimensional map of sorts:
This is the transcript of a radio conversation of a US naval ship with Canadian authorities off the coast of Newfoundland in October, 1995. Radio conversation released by the Chief of Naval Operations 10-10-95.
Americans: Please divert your course 15 degrees to the North to avoid a Collision.
Canadians: Recommend you divert YOUR course 15 degrees to the South to avoid a collision.
Americans: This is the Captain of a US Navy ship. I say again, divert YOUR course.
Canadians: No. I say again, you divert YOUR course.
Americans: This is the aircraft carrier USS Lincoln, the second largest ship in the United States’ Atlantic fleet. We are accompanied by three destroyers, three cruisers and numerous support vessels. I demand that YOU change your course 15 degrees north, that’s one five degrees north, or countermeasures will be undertaken to ensure the safety of this ship.
Canadians: This is a lighthouse. Your call.
(BTW, the above is not true. Just an urban legend. A joke.)
step backJune 13, 2013 05:32 am
Thanks for the link to the Groklaw piece.
In response I would say:
1) The Universe is complex while “we” are simple (in our thoughts and deeds).
2) Simple thinks as simple is –a corollary to the Forest Gump rule.
3) All folk are simple but some are more simple than the others –a corollary to George Orwell’s Animal Farm rule.
The simpleton view that software is merely “instructions” and the computer is a fixed machine which remains unchanged by storing and/or executing the instructions truly ignores fundamentals of the physical Universe in which we live.
One of the fundamentals of our physical world is that arrangement of electrons matters. It matters greatly. The chemical behaviors of all molecules large and small depends on how their electrons are arranged. Computer software results in a rearrangement of electrons within the computer and hence creates a new composition of matter just as surely as altering the chemicals within a physical thing does so.
Computational theory is not a science, but rather a math –one that is often divorced from the physical constraints of the Universe we live in. The Groklaw article you cited appears to base itself purely in the realm of computational math theory and not in physics. Math does not alter reality. Physics also does not alter reality. However, physics is reality while math is not.
Stephan H. WisselJune 13, 2013 03:57 am
don’t fully understand the emphasis on “data source” – if anything that’s an archetypical abstract IT concept and not a physical thing. The argument that the law at time of filing and not current is flawed at best – if you follow the argument, then all copyrighted works of old would instantly fall into the public domain instead of enjoying (IMHO questionable) extended protection.
The law giveth and the law taketh 🙂
bobJune 13, 2013 03:39 am
also, on reading only the claims as shown here, the invention seems to be on using a relational database… a few simple, but normalised, tables and sql select statements.
am i to assume that your view is that patents should be available to all combinations of tables + select statements?
i see this patent has a priority date of 1996. this is amusing to me because a year earlier i was doing this in class. i know i wasn’t the first. (i also realise that your arguing that ptab should have used 102/103 rather than 101)
Stefan GJune 13, 2013 03:23 am
Your analogy gives more support to the opposite view: A car frame is designed, very obviously, with the intent of having an engine added to it. Without an engine, it doesn’t work as intended, just like a computer is designed to be programmed, and doesn’t work as intended without software. Just as you shouldn’t be able to patent the conventional and anticipated process of adding an engine to a car frame in the manner which both items were specifically designed for, you can’t patent the process of adding software to a computer in the manner both were designed for. Furthermore, software is not analogous to a car engine, because it is abstract information, hence your analogy is deeply flawed. A more suitable analogy would be to patent the process of adding an instruction manual to the glove compartment of a car, to instruct a driver how to operate the car. Then, you also patent the process of adding a racer driving manual to the same glove compartment, telling a driver how to operate the car with a different purpose. I won’t say it’s a good analogy, but it’s better, because it deals with adding instructions, information, abstract things to the car, rather than building it.
You people really, really, ought to educate yourself on the subject of computers and programming, and realize what kind of paralyzing patent thicket you are advocating for the software industry. But seeing how you insist calling intelligent and well educated people in the useful art under scrutiny “so-called computer experts” instead of respecting their knowledge and insights, you are obviously not interested in learning anything that might change your opinion.
bobJune 13, 2013 02:40 am
obviously the physical calculator is patentable but is using a calculator to calculate patentable?
Duncan MacdonaldJune 13, 2013 02:38 am
By now computers are so ubiquitous that “using a computer” is about as exclusive as “using a wheel” and just adding using a computer (even if as in the claim above the individual components of a computer are enumerated) to an abstract method does not stop the claim from being an abstract method and therefore unpatentable under 101.
In the above claim none of the actions could not be performed (slowly) by a human being with pen and paper using the processor between his ears.
TravisJune 13, 2013 01:57 am
Scott said ‘if it alters the hardware, then it creates a new machine’. Adding a frame to an engine is altering the hardware.
JodiJune 13, 2013 12:51 am
That’s irrelevant. By your logic, adding an engine to a car frame would not confer power the car did not already have. Yet without the engine, the car frame just sits there.
Scott DunnJune 12, 2013 11:38 pm
Loading software onto a computer does not create a new machine. The software confers no new power that the computer did not already have. It does not alter the hardware, if it did, then it creates a new machine. Software merely gives instructions to the machine.
For further reference, please check out the following: http://www.groklaw.net/article.php?story=20120719130253497
Of course, those who stand to profit from the contrary view would disagree.
TravisJune 12, 2013 10:20 pm
If I have a CD player with a CD in it, it can play music. This is useful.
If I put a different CD in it, the CD player now has a different function: it plays a different song! I’ve transformed the CD player to do something it was otherwise completely unable to do.
If I take the CD out, the CD player can’t do anything anymore. Have I stopped it from being a useful machine?
Does this mean that each CD represents a new and useful machine, and is patentable?
One could substitute other machine+data combinations here. Is a programmable loom (1805) weaving silk scarves a different machine to one weaving woolen trousers? Is a player piano a (1880) playing Bach a different machine to one playing Tchaikovsky? Is a CPU running windows a different machine to one running windows?
I’m not trying to troll here. I’m a software engineer, I’m genuinely interested in your answers. But I really can’t see the difference between a programmable loom and a programmable computer: the machine (loom, cpu) is the invention, and its purpose is to process the data given to it.
radiantichorJune 12, 2013 10:01 pm
The author goes on to state that this is a bad decision because clearly a general purpose computer with software loaded becomes a specific purpose computer.
I can’t see how anyone but a lawyer could argue that. The fact that it has software loaded onto it does not stop you loading additional software. A computer with software for spreadsheeting that has software added for word processing is no longer just a computer for doing spreadsheets on, it now is also a computer for doing word processing. Add desktop publishing software. Add games. You can no longer argue that this computer is a specific purpose computer. The hardware hasn’t changed at all – it is still the exact same computer it always was. In other words you cannot argue that software transforms hardware. The capacity and potential are exactly the same whether software is present or not. It is still and always will be a general purpose computing machine. Adding software simply applies that machine to a particular task, it does not transform the machine.
The author is simply trying to wrangle language to end-run around patent restrictions for software that runs on general purpose computers.
Gene QuinnJune 12, 2013 09:05 pm
I can’t see the Supremes sitting this one out. If they are true to form they will have to recognize that at least some software is patent eligible (as they did in Bilski when they recognized that at least some business methods are patentable). Congress has written software patents into the patent laws in various places, so that has to mean that software is patent eligible.
The trouble we have here is that as a result of this articulation and the articulation of 5 of the 10 CAFC Judges on CLS Bank, no software is patent eligible. So the Supremes will be left to say some software has to be patentable and then give us a nebulous test that will be abused, mischaracterized and ignored over the course of the next decade.
Gene QuinnJune 12, 2013 09:03 pm
I have long wondered that very thing. The law of software patentability has been evolving (to be kind) for years. Applications and patents should be governed by the laws in place at the time of filing, not the changing laws years or decades later. There are a ton of patents and patent applications that once upon a time disclosed patentable subject matter, but with the evolving standards they are no longer patentable.
I suppose if this is going to be the law of the USPTO it really doesn’t matter because it looks like software is dead. At the moment I can’t conceive of anything that could be patented if this test is to hold up.
The computer technologies are all conventional. So if you remove the convention and you are left with only method steps, and the USPTO continues to ignore the reality that software transforms, then a huge part of the patent backlog has just been solved and software is not eligible.
I wonder if Judge Tierney et al realize that this ruling will invalidate the IBM claims to Watson… the real world and functioning version of the omnipotent Star Trek computer.
step backJune 12, 2013 08:36 pm
I’m at a loss to understand how an old property right already fully granted by the federal government (Versata’s 6,553,350 patent) under older laws could be subject to an ex post facto take-back by the government.
Anybody have thoughts on that?
JodiJune 12, 2013 07:36 pm
How naive am I in thinking this plus CLS v Alice is a setup for Supreme Court to come in and create certainty around software patents? One way or another.
AnonJune 12, 2013 06:08 pm
How to Love the Atom Bomb (of 101)