How Software Patents' Fuzzy Boundaries Create Unnecessary Litigation

from the subject-matter-test-please dept

James Bessen and Michael Meurer, authors of an important new book on the patent system, have a great post on the problems created specifically by software patents. They argue that the most serious problem with software patents is that they tend to cover abstract concepts rather than specific physical devices or processes. As a result, the boundaries of software patents tend to be uncertain, leading to a lot of litigation. In many areas of patent law, the "enablement" rule (which says that patent applications have to describe an invention in enough detail to "enable" someone to replicate it) helps to ensure more precise definition of patent boundaries. But the patent office only requires a general description of an "invention's" functionality to get a software patent. As a result, there tends to be a lot of uncertainty about what a software patent covers, and uncertainty inevitably spawns litigation.

Bessen and Meurer don't offer a strong recommendation on the best way to solve the problems with software patents, but they tentatively endorse a "subject matter test" -- that is, reinstating the ban on software patents -- as one part of a solution to the problem. However, they worry that a subject matter restriction won't entirely solve the problem because applicants might resort to creative drafting to evade it. I'm not sure it's so hard to draw a line to exclude software patents. Ben Klemens has suggested a standard that strikes me as pretty serviceable: mathematical algorithms are not patentable, and coupling an algorithm with "insignificant postsolution activity" does not transform an unpatentable mathematical algorithm into a patentable machine. In particular, the mere act of loading software onto an ordinary general-purpose computer cannot transform an unpatentable algorithm into a patentable machine. Although this standard might not invalidate all problematic software patents, it would invalidate most of the really harmful ones. To take one example, NTP's infamous wireless email patents almost certainly wouldn't pass muster under Klemens's test because the "invention" in question consisted of running certain email-processing algorithms on generic computer hardware. If you took away the software component, you'd be left with an unpatentable collection of generic computers and generic wireless links. I'm sure there would be some hard cases that Klemens's test wouldn't deal with precisely, but it's certainly more precise than the tests the Federal Circuit is using now.



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  •  
    identicon
    angry dude, May 23rd, 2008 @ 10:56am

    Speed dial, huh ?

    Hey, do you have all this anti-"software" patent crap on a speed dial, little punk ?

     

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    MLS, May 23rd, 2008 @ 11:17am

    Software Patents

    "...they tentatively endorse a "subject matter test" -- that is, reinstating the ban on software patents -- as one part of a solution to the problem."

    We must have been reading different articles. Their point was with regard how to pin down what is generally known as "abstract ideas", though they did not use those words. This issue is currently before the CAFC in the matter of Ex Parte Bilski.

    "But the patent office only requires a general description of an "invention's" functionality to get a software patent."

    Quite to the contrary, "enablement" and "best mode" (a term you did not mention) are a far cry from your notion that only a general description is required.

    Re Klemens, of course he wants to dump software patents. Is he not, after all, a vocal advocate of open source? Presumably he has the same view concerning copyrights.

     

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      Tim Lee, May 23rd, 2008 @ 12:12pm

      Re: Software Patents

      Quite to the contrary, "enablement" and "best mode" (a term you did not mention) are a far cry from your notion that only a general description is required.

      I was paraphrasing the following: "as a result of Federal Circuit decisions on software patents during the 1990s, [software] patents no longer need to provide computer code, a flowchart, nor any detailed description of specific operation in order to be enabled." I'll defer to Bessen and Meurer, who know more about the subject than I do.

       

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        angry dude, May 23rd, 2008 @ 12:26pm

        Re: Re: Software Patents

        "I'll defer to Bessen and Meurer, who know more about the subject" Huh ????????????

        This is a joke, right ?

        How can some clueless piece of useless academic shit who never invented anything in his entire life know anything at all about the subject ?

         

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      John Wilson, May 24th, 2008 @ 10:04am

      Re: Software Patents

      One supposes that you actually know what you speak of when you accuse Klemens of being automatically anti-patent and, incredibly, anti-copyright.

      Not all Open Source licenses take a hostile view of patents though GPL v3 certainly does. Some BSD licenses do not. I'm pretty sure Microsoft's open source licenses are fairly patent friendly.

      Your remark concerning copyright and Open Source does noting but reveal abysmal ignorance of Open Source. All GPL licenses, for example, protect copyright. I don't recall even a murmur from Stallman that comes across the least bit anti-copyright.

      I may disagree with a lot of what you say, MLS, but you often make sense once I factor in your biases.

      This time you're out to lunch.

      ttfn

      John

       

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        MLS, May 24th, 2008 @ 10:33am

        Re: Re: Software Patents

        "And that, dear reader, is where software patents come from. And that is why we must end software patents."

        The above is a quote from a Klemens article excoriating the decision in In re Alappat.

        As for open source (a concept with which I am intimately familiar), I find it interesting that those decrying patent law as applied to software are only too eager to embrace copyright as applied to software. Yes, I understand why this is so (i.e., "derivative works"), but nevertheless Klemens' views concerning the application of patent law to software is largely based upon a substantial misunderstanding of what it is that a software patent actually covers.

         

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          John Wilson, May 24th, 2008 @ 1:09pm

          Re: Re: Re: Software Patents

          It is not merely Klemens who has doubts about software patents or need I remind you of the famous concern expressed by Bill Gates about the whole idea.

          Confusion about software patents is far more widespread that simply Klemens and concern about them far more widespread that a buch of wild eyed open source/free software fanatics.

          Indeed it appears that the USPTO, the courts and juries are as confused, at times as anyone else. That, if not the core of the concern/confusion around them as much as anything even leaving out the core question as to whether things like software, business methods and so on are reasonable candidates for patenting to begin with.

          As you know copyrights and patents protect different things so it shouldn't be surprising that people who oppose patents should "embrace" copyright. It's an apples and oranges comparison to begin with.

          The only similarity is that both are intended to protect something for a limited period of time by granting a creator a monopoly. The creator isn't limited in what they may do with that creation but it belongs to them unless they assign it to someone else.

          The purpose of both is to encourage innovation and creativity. I don't know too many people who doubt that copyright does exactly that, the RIAA and MPAA notwithstanding. The DCMA is another matter but that is bad law rather than a valuable legal, economic and social concept.

          The concern about patents is that, as currently structured, they stifle innovation and creativity rather than encourage it. Note that again, patents as a concept are valuable as a legal, economic and, to a somewhat lesser degree, social concept but that the body of law growing up around patents isn't.

          ttfn

          John

           

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    www.custompcmax.com, May 23rd, 2008 @ 11:36am

    I think there is probably a difference between what is given for the "general description" and the actual details of the copyright.

     

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    Anonymous Coward, May 23rd, 2008 @ 1:05pm

    Why not take it a step further and says that you also can't patent anything that is simply a rearrangement of existing matter....dooohhh then that would mean nothing can get patented because everything is made of matter!

    Do you see how ridiculous it is to describe software patents as mathematical algorithms. A software patent is NOT mathematical algorithms, the mathematical algorithms are what is used to "implement" the software idea.

    Aerodynamics is full of mathematical algorithms that describe how to make an object fly. So, I guess you feel that the Frisbee should never have been patentable because it's simply plastic formed to mathematical algorithms that enable it to fly?

    Any non-software invention that you feel is patentable, is probably "implemented" in some physical form using some type of physical materials. But, if you remove the physical materials from such inventions, then all you are left with is the idea - an idea that you must use physical materials to ceate.

    Well, if the only way to create a particular idea is by implementing it in software, then how does the mer fact that software is needed to produce the idea lessen the significance of that idea?

    My point is, if you break anything down far enough, everything because equal, so there would be no differences between one idea from another at that level.

    So, it's inappropriate to differentiate ideas by what is needed to create them - they are still all ideas.

     

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      Tim Lee, May 23rd, 2008 @ 2:41pm

      Re:

      A frisbee's shape can be described by a mathematical formula, but the frisbee itself is a piece of plastic. In contrast, software is literally mathematics encoded as a stream of 1s and 0s. "Software is mathematics" isn't a metaphor or an approximation but a literal fact. You don't have to "break it down far enough" to get to the math, math is all there is. And math is an abstract idea.

      Patent law is supposed to cover physical objects, not information. Obviously, every man-made object embodies certain types of information, but patentable machines are not themselves information. Software is.

       

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        angry dude, May 23rd, 2008 @ 7:35pm

        Re: Re:

        "software is literally mathematics encoded as a stream of 1s and 0s."

        Huh ?

        Ever finished your G.E.D. degree ?

        "Patent law is supposed to cover physical objects, not information"

        Who told you that, little punk ?

        Ever heard "anything under the sun made by man" ?

         

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    Anonymous Coward, May 23rd, 2008 @ 2:09pm

    This article is poorly written and screams of bias. Your "solutions" use ambiguous language.

     

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  •  
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    Lawrence D'Oliveiro, May 23rd, 2008 @ 7:33pm

    Dual-protection test

    How about the following test: if it's copyrightable, then it's not patentable.

    That would get rid of the ability of software to get two kinds of legal protection, both copyright and patent, which is something other products of human endeavour cannot.

     

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    Anonymous Coward, May 24th, 2008 @ 8:27am

    "A frisbee's shape can be described by a mathematical formula, but the frisbee itself is a piece of plastic."

    So, are you saying that the patent for the frisbee was actually for "plastic" in general? Of course not, so if it's not the plastic, then it must be the mathematics or the "idea" to apply the mathematics to obtain a specific goal (fly)? It can't be the mathematics, because that's your basis for disqualifying software patents. So, then it must be the idea on how to apply those mathematics to a physical material to achieve the goal, right?

    Can't you see that even if you consider software a mathematical encoding of 1s and 0s, what do you call the particular arrangement of those 1s and 0s that allows it to accomplish a particular goal? It's called an idea.

    "Patent law is supposed to cover physical objects, not information."

    1st: Who brought up "information" as being patentable?
    2nd: Name the place in the patent law which states it is *only* suppose to cover physical objects.

    "Obviously, every man-made object embodies certain types of information, but patentable machines are not themselves information. Software is."

    You could just as easily say that your "Patentable machines" are really just a particular rearrangement of positively and negative charged atoms. So, how does that differ from a software patent which is a particular rearrangement of 1 and 0 bits?

     

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      Anonymous Coward, May 24th, 2008 @ 10:33am

      Re:

      This isn't a loki's wager. And computers STILL run pure algorithems compared to a phsicaly applied algorithm.


      Oh, and you have no clue what you're talking about, because matter is far more then just electrons and protons (The positively and negatively charged ones). It's also mesons, neutrons, pions, muons, quarks, photons, anti-neutrons, positrons (anti-electrons), negatrons (Anti-protons), gluons....

      And lots of them don't even have an applicable charge.

      You don't even know what bosons are do you?

       

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    identicon
    Anonymous Coward, May 24th, 2008 @ 11:13am

    "phsicaly applied algorithm"

    Where does it say in the patent law that something has to be "physical"?

    "is far more then just electrons and protons"

    I was simply trying to come up with an similar two-part definition of matter just as software has two-parts (1s and 0s). But, if the only thing you can find wrong with my opinion is that I used a too simplistic of a description for matter, then I take it as a compliment that you then must be agreeing with the rest of my opinion :)

     

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    •  
      identicon
      Anonymous Coward, May 26th, 2008 @ 12:43am

      Re:

      No, I'm pointing out that your PREMISE is flawed. it doesn't matter what logic you build on that, it's a flawed premise

       

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    identicon
    Anonymous Coward, May 25th, 2008 @ 10:55am

    Patents of Physical things are just matter arranged in a particular order.

    Software Patents are just 1s and 0s arranged in a particular order.

    It's the creativity/idea of how to arrange the matter or bits that should be protectable - it's a very simply concept.

    Before computers, everything was done with physical materials - which was the standard of that age. Now in the digital age, more and more things are being done digitially when they use to be done physically. (i.e. Mailing a letter is now done via email). It's a natualy course that things once done physically are now being done digitally, main because of numerous advantages of doing it digitally vs. physically.

    So, software patents are a natural next-step progression of ideas that are implemented digitally instead of a physical form.

    Why is it so hard to understand this very simple concept when it is staring everyone in the face each day they use a computer to do something that they once did manually?

     

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    identicon
    Anonymous Coward, May 25th, 2008 @ 11:00am

    Patents of Physical things are just matter arranged in a particular order.

    Software Patents are just 1s and 0s arranged in a particular order.

    It's the creativity/idea of how to arrange the matter or bits that should be protectable - it's a very simply concept.

    Before computers, everything was done with physical materials - which was the standard of that age. Now in the digital age, more and more things are being done digitially when they use to be done physically. (i.e. Mailing a letter is now done via email). It's a natualy course that things once done physically are now being done digitally, main because of numerous advantages of doing it digitally vs. physically.

    So, software patents are a natural next-step progression of ideas that are implemented digitally instead of a physical form.

    Why is it so hard to understand this very simple concept when it is staring everyone in the face each day they use a computer to do something that they once did manually?

    Why should the method used to implement an idea (i.e implemented in software) be dimminished just because you can't hold it in your hand, but yet the new idea offers numerous advantages over other ideas implemented using a physical method?

     

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      angry dude, May 25th, 2008 @ 11:55am

      Re:

      "Why should the method used to implement an idea (i.e implemented in software) be dimminished"

      I'll tell you why...

      Because CPF and BSA members dislike the very idea that some poor dude sitting in his basement with a 300$ PC can outsmart and outinvent all those large corporate R&D departments...

      Thus we have the current patent "reform" (now happily dead)
      and all the whining in the mass-media about "broken"
      patent system

      To achieve their goals CPF and BSA members teamed up with the most unlikely ally - open source software folks
      They also give generouisly to congress critters and all kinds of mass media whores - including the producers of this shitty internet blog
      Now you know why

       

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  •  
    identicon
    Anonymous Coward, May 26th, 2008 @ 2:04pm

    "We thward your argument, undermine your logic AND DISPROVE YOUR FUCKING PREMISES and still you repeat the same argument as if it makes a difference? There's no bite in it. We already won this argument. Over and over and over...."

    Any physical item that is patented, can easily be described in mathematical dimentions, so your argument is moot.

     

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  •  
    identicon
    Anonymous Coward, May 26th, 2008 @ 2:53pm

    "No, I'm pointing out that your PREMISE is flawed. it doesn't matter what logic you build on that, it's a flawed premise"

    Any physical thing that is patented can also be described in mathematical dimentions. So, don't you see that your premise is flawed when you try to use this as an argument about software?

     

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