Latest CAFC Ruling Suggests A Whole Lot Of Software Patents Are Likely Invalid

from the target-practice dept

Some more good news on the patent front. Following the Supreme Court's ruling last month in the Alice v. CLS Bank case, there has been some question about how the lower courts would now look at software patents. As we noted, the Supreme Court's ruling would seem to technically invalidate nearly all software patents by basically saying that if a patent "does no more than require a generic computer to perform generic computer functions" then it's no longer patentable. But that, of course, is basically all that software does. Still, the Supreme Court's ruling also insisted that plenty of software was still patentable, but it didn't give any actual examples.

Now in the first post-Alice ruling on a software patent at CAFC (the appeals court that handles all patent cases, and which is infamous for massively expanding the patentability of software over the years), the court has smacked down a patent held by one of the many (many, many) shell companies of patent trolling giant Acacia. The shell, Digitech Image Technologies, got control of US Patent 6,128,415, which had originally held by Polaroid. The patent supposedly describes a setup for making sure images are consistent on a variety of different devices. Acacia/Digitech did what patent trolls do and basically sued a ton of companies, including NewEgg, Overstock, Xerox, Toshiba, Fujifilm and more.

A lower court kicked out the patent, and now CAFC has upheld that ruling, making use of the Alice ruling to make it doubly clear this isn't patentable. The court doesn't waste too much time, as the ruling is quite short. The key bits:
There is no dispute that the asserted method claims describe a process. Claims that fall within one of the four subject matter categories may nevertheless be ineligible if they encompass laws of nature, physical phenomena, or abstract ideas..... The Supreme Court recently reaffirmed that fundamental concepts, by themselves, are ineligible abstract ideas. Alice Corp. v. CLS Bank... In determining whether a process claim recites an abstract idea, we must examine the claim as a whole, keeping in mind that an invention is not ineligible just because it relies upon a law of nature or mathematical algorithm. As noted by the Supreme Court, “an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.” ... A claim may be eligible if it includes additional inventive features such that the claim scope does not solely capture the abstract idea.... But a claim reciting an abstract idea does not become eligible “merely by adding the words ‘apply it.’”

The method in the ’415 patent claims an abstract idea because it describes a process of organizing information through mathematical correlations and is not tied to a specific structure or machine.

[... Discussion of specific claim in the patent ...]

The above claim recites a process of taking two data sets and combining them into a single data set, the device profile. The two data sets are generated by taking existing information—i.e., measured chromatic stimuli, spatial stimuli, and device response characteristic functions—and organizing this information into a new form. The above claim thus recites an ineligible abstract process of gathering and combining data that does not require input from a physical device. As discussed above, the two data sets and the resulting device profile are ineligible subject matter. Without additional limitations, a process that employs mathematical algorithms to manipulate existing information to generate additional information is not patent eligible. “If a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory.”
As Tim Lee notes, this ruling is great for folks opposed to software patents, and should send chills down the spines of those who support them. Because that basic reasoning can invalidate a hell of a lot of software patents.
Consider Google's famous PageRank patent, which covers the algorithm at the heart of Google's search engine. In the language of the Federal Circuit, it claims the use of "mathematical algorithms" (involving eigenvectors) to "manipulate existing information" (a list of links between web pages) to "generate additional information" (a ranking of the pages).
The number of software patents out there that use algorithms to manipulate existing information to generate additional information is... rather large. And they may all be invalid.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Ninja (profile), Jul 18th, 2014 @ 6:35am

    Welcome back, competition.

     

    reply to this | link to this | view in thread ]

  2.  
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    Ninja (profile), Jul 18th, 2014 @ 6:36am

    Re:

    And innovation I must add.

     

    reply to this | link to this | view in thread ]

  3.  
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    Vidiot (profile), Jul 18th, 2014 @ 7:41am

    That name again

    Once again, God bless Newegg. Smite those bastards.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Michael, Jul 18th, 2014 @ 8:01am

    The above claim recites a process of taking two data sets and combining them into a single data set, the device profile. The two data sets are generated by taking existing information—i.e., measured chromatic stimuli, spatial stimuli, and device response characteristic functions—and organizing this information into a new form.

    Wow - who would have thought a judge could actually come up with such an elegant description of something this technical?

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Jul 18th, 2014 @ 8:08am

    Beleive it...

    When I see it!

    And even then... who will protect everyone from the litany of SLAPs that will be coming down the pike regardless?

    Big company can just decide to sue a small competitor for any reason it can get or bribe a judge to hear a case on.

    Drug companies already have x amount of $$$ put away for when a drug patent expires, but just launching a suit against a legal generic keeps their competition off the market long enough to generate more revenue. They pretty much know they are going to lose the lawsuit, its just profitable to do it.

     

    reply to this | link to this | view in thread ]

  6.  
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    Josh in CharlotteNC (profile), Jul 18th, 2014 @ 8:13am

    Wait, a CAFC patent ruling that makes sense?

    Someone call me an ambulance, I think I just had a heart attack.

     

    reply to this | link to this | view in thread ]

  7.  
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    Internet Missionary, Jul 18th, 2014 @ 8:23am

    What are the chances this gets reviewed en banc and reversed or gutted?

     

    reply to this | link to this | view in thread ]

  8.  
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    nasch (profile), Jul 18th, 2014 @ 9:15am

    Re: Beleive it...

    Drug companies already have x amount of $$$ put away for when a drug patent expires, but just launching a suit against a legal generic keeps their competition off the market long enough to generate more revenue. They pretty much know they are going to lose the lawsuit, its just profitable to do it.

    This is about software patents, drug companies have nothing to do with it.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Jul 18th, 2014 @ 9:25am

    Re: Re: Beleive it...

    Well sorry that your widdle bwain cannot handle seeing the parallel.

    The way drug companies do it now, will be how the software companies would start doing it. Its why it up it up there.

     

    reply to this | link to this | view in thread ]

  10.  
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    Anonymous Coward, Jul 18th, 2014 @ 9:43am

    Question

    Under that phrasing would there be any software patents that are actually valid left? Mathematics can be used to describe literally everything software related.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Jul 18th, 2014 @ 9:43am

    Re:

    I'm impressed that the CAFC is starting to abide by Supreme Court precedent.

     

    reply to this | link to this | view in thread ]

  12.  
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    DannyB (profile), Jul 18th, 2014 @ 10:22am

    Question: What is a Generic computer function?

    What exactly is a Generic computer function? Could someone kindly enlighten me?


    > the Supreme Court's ruling would seem to technically invalidate nearly
    > all software patents by basically saying that if a patent "does no more than
    > require a generic computer to perform generic computer functions"
    > then it's no longer patentable.

    Also, what is a generic computer? One that does not have a brand like Lenovo, Dell, HP, etc? Or does it mean something different? Or does it mean anything?


    > But that, of course, is basically all that software does.

    Well, that's what I was thinking.

    Any function done in software could be done in any language, on any OS, on any general purpose cpu.

    Is the Supreme Court trying to suggest that some software should be patentable? If so, how would you define which software?

    If the Supreme Court means no software should be patentable, which seems to natural conclusion of this 'generic computer function on a generic computer' nonsense, then why not just come out and say that no software is patentable?

     

    reply to this | link to this | view in thread ]

  13.  
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    OldMugwump (profile), Jul 18th, 2014 @ 10:28am

    Wow.

    Maybe I misunderstand, but this is almost Richard Stallman's dream ruling - it more or less says "algorithms can't be patented".

    If so, that would invalidate a ton of stuff, including methods for audio and video coding (MPEG, H.26x, etc.).

    Not to mention most of my own patents (too late; I mentioned them). [A price I'm happy to pay for freedom to innovate.]

    While I'd love to see this ruling upheld, I'm pessimistic that it will be - seems like too many connected people will scream.

    So, either I'm misinterpreting the meaning of this ruling (quite possible), or the next few days will be really interesting as people react to it.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, Jul 18th, 2014 @ 10:32am

    Re: Question

    That is exactly the reason why software patents should never have existed in the first place!

     

    reply to this | link to this | view in thread ]

  15.  
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    A World Citizen (profile), Jul 18th, 2014 @ 10:38am

    Re: Question: What is a Generic computer function?

    A non-generic computer would be function specific, as I understand it. This ruling is similar to current patent law in Europe that does not allow generic software patents, but does allow for patenting software as part of a larger specialized solution.

    So for example, if you patented software as part of a device (e.g., an autonomous vehicle), it probably would stand - as long as it's not just any car, but a specific solution that includes specialized hardware necessary for the software to function and which would be useless without the software.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Pat, Jul 18th, 2014 @ 10:46am

    Re: Re: Re: Beleive it...

    You very obviously have no idea how drug patents and drug companies work.

    Not certain you have a grasp of what Generics are either...

    Ah well...

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Jul 18th, 2014 @ 12:11pm

    Too soon to pop the champagne

    It's too soon to pop the champagne, but I think the CAFC got tired of being slapped down every time they made a decision in favor of a software patent holder. Maybe there was financial compensation involved (it's free speech now, not bribery), but if they continued deciding cases the same way, they would be come irrelevant.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Jul 18th, 2014 @ 12:19pm

    Re: Re: Re: Beleive it...

    That was condescending. Are you always this much of an asshole?

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, Jul 18th, 2014 @ 3:19pm

    Re:

    Never underestimate the intelligence or potential for eloquence of federal judges. All of them have graduated from law schools, most were successful practicing attorneys for years, and they get paid gobs of money to listen every day to intelligent people argue vigorously over extremely fine distinctions. On top of that have the people skills necessary to get personally nominated for a lifetime position by a sitting President and get confirmed after grilling by the Senate. They are not people you want as your enemy.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, Jul 18th, 2014 @ 3:21pm

    Re: Beleive it...

    It would be interesting to see the result if someone argued the First Amendment requires courts to dismiss suits that are currently prohibited by anti-SLAPP statutes.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Jul 18th, 2014 @ 4:16pm

    Does this negate DRM ?

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Jul 18th, 2014 @ 5:27pm

    Binary Code

    All computer programs operate on binary code, which is numbers.

    "Leibniz was trying to find a system that converts logic’s verbal statements into a pure mathematical one."

    "What Is Not Protected by Copyright?
    ideas, procedures, methods, systems, processes, concepts,
    principles, discoveries, or devices, as distinguished from a
    description, explanation, or illustration."

    So how is binary code a description, explanation, or illustration?
    ...

     

    reply to this | link to this | view in thread ]

  23.  
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    Sheogorath (profile), Jul 19th, 2014 @ 12:32am

    Wait, what?

    A lower court kicked out the patent, and now CAFC has upheld that ruling, making use of the Alice ruling to make it doubly clear this isn't patentable.
    You mean CAFC actually did the right thing for a change instead of upholding a bad patent with an extremely convoluted ruling? Hey, there's a snowball fight going on in Hell right now!

     

    reply to this | link to this | view in thread ]

  24.  
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    Red Monkey (profile), Jul 19th, 2014 @ 4:39am

    Re: Binary Code

    First of all, binary code has nothing to do with numbers. It has to do with states. Whether combinations of states have meaning is a matter of convention. By way of analogy, the English alphabet is really a 26-ary code.

    Asking if a binary code is a "description, explanation, or illustration is like asking if a set of letters amounts to a "description, explanation, or illustration." Maybe it does or maybe it is pure gibberish.

     

    reply to this | link to this | view in thread ]

  25.  
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    Red Monkey (profile), Jul 19th, 2014 @ 4:52am

    But according to WMS Gaming, a computer that has been programmed to perform some new task becomes a new machine, apparently in much the same way that a player piano loaded with "The Entertaininer" is different machine from a player piano loaded with "Moonlight Sonata."

    There is some logic to this. Even a computer is a set of smaller machines that cooperate to do something. Even a single one of the millions of FETs in a computer is really a "current controlling machine." The dashed box that defines the machine can be very small or very large, and is to some extent arbitrary.

     

    reply to this | link to this | view in thread ]

  26.  
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    Coyne Tibbets (profile), Jul 19th, 2014 @ 11:09am

    What shall we innovate?

    What do you mean we actually have to innovate software to get a software patent? That's soooo hard. Please, can't we just go back to innovating extortion schemes?

     

    reply to this | link to this | view in thread ]

  27.  
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    nasch (profile), Jul 19th, 2014 @ 2:33pm

    Re:

    Does this negate DRM ?

    Since DRM doesn't rely on patents, no.

     

    reply to this | link to this | view in thread ]

  28.  
    icon
    1st Dread Pirate Roberts (profile), Jul 19th, 2014 @ 6:45pm

    Re:

    Does this negate DRM ?

    This has nothing to do with Digital Restrictions Management, although the DMCA is often used to fight circumvention attempts.

    Digital Restrictions Management is a choice made by the author/owner/packager/etc. to try and limit what actions you can perform. Sometimes it works, sometimes it doesn't.

    When Avatar came out some time ago, DVDFab broke the blu-ray restrictions within a couple of hours. It only takes one person to put a movie on the Internet, and then all you are doing is inconveniencing people who might have no intent of doing something like that.

     

    reply to this | link to this | view in thread ]

  29.  
    icon
    IP Trolls R Us (profile), Jul 19th, 2014 @ 10:25pm

    Re: What shall we innovate?

    Since you used the Internet to discuss extortion schemes, you are now in violation of Patent #8621662, which is our client's patent on squeezing money out of reluctant payers by various methods on the Internet. (See? Adding the words 'on the Internet' does make something patentable if you're stubborn enough.)

     

    reply to this | link to this | view in thread ]

  30. This comment has been flagged by the community. Click here to show it
     
    identicon
    staff, Jul 20th, 2014 @ 8:17am

    more dissembling by Masnick

    'As we noted, the Supreme Court's ruling would seem to technically invalidate nearly all software patents... '

    Nonsense:

    http://patentlyo.com/patent/2014/06/scotusblog-symposium-alice.html

    * http://www.scotusblog .com/2014/06/symposium-supreme-court-leaves-patent-protection-for-software-innovation-intact/

    David Kappos – Supreme Court leaves patent protection for software innovation intact

    From the perspective of the parties involved, this week’s Alice Corp. v. CLS Bank decision held that a process that lessens settlement risk for trades of financial instruments is too abstract for patenting. However, to the leagues of interested onlookers holding their collective breath across our country and indeed around the world, the Supreme Court’s unanimous ruling subtly conveyed a much more significant judgment: software, as a class, is EVERY BIT AS WORTHY of patent protection as any other medium in which innovation can be practiced.


    * http://www.scotusblog.com/2014/06/opinion-analysis-the-uncertain-expansion-of-judge-made -exceptions-to-patentability/

    There’s also a detailed analysis and commentary by John Duffy that begins:

    Although Alice Corp. v. CLS Bank was identified by this website and many other commentators as a major case on patent law, the Supreme Court’s unanimous resolution of the case DOES LITTLE TO CHANGE, or even to clarify, pre-existing law. The case becomes the fourth Supreme Court decision since 2010 to hold patent claims invalid based on judicial exceptions to patentability. While Alice Corp. is only an incremental addition, the continuation of that larger trend is hugely important because, as the Court itself acknowledges, the judge-made doctrine in this area has the potential to swallow all of patent law.


    Justin Nelson – For patent litigants, Court affirms status quo

    The reaction from patent litigants to the Supreme Court’s decision yesterday in Alice Corp. v. CLS Bank was ONE BIG SHRUG. The decision was exactly as expected. While the Court made clear that abstract ideas remain unpatentable, it “tread[ed] carefully” in construing patentability. Indeed, the most notable part of the decision was that it shied away from any grand pronouncements. Rather, it relied heavily on prior cases such as Bilski v. Kappos, Mayo Collaborative Services v. Prometheus Laboratories, Inc., and Association for Molecular Pathology v. Myriad Genetics. As the Court correctly concluded, “[i]t follows from our prior cases, and Bilski in particular, that the claims at issue here are directed to an abstract idea.” Yet it went no further than necessary: “[W]e need not labor to delimit the precise contours of the ‘abstract ideas’ category in this case. It is enough to recognize that there is no meaningful distinction between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here.”

    The word on the street is that you and Lee are paid puppets for some of the world's biggest invention thieves. all you know about patents is you don't have any.

    For the truth, please see http://www.truereform.piausa.org/
    http://piausa.wordpress.com/

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous Coward, Jul 20th, 2014 @ 8:51am

    Re: more dissembling by Masnick

    Software is covered by copyright and should not be patentable.
    There is no rational for it.

     

    reply to this | link to this | view in thread ]

  32.  
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    Eldakka (profile), Jul 20th, 2014 @ 8:50pm

    Re: Question: What is a Generic computer function?

    Also, what is a generic computer? One that does not have a brand like Lenovo, Dell, HP, etc? Or does it mean something different? Or does it mean anything?


    (IANAL)

    A specific(or limited)-purpose manufacturing machine with computerised controls would be an example of a non-generic computer.

    e.g. robotic arms used in car assembly plants. They have computers buit into them who's sole purpose is controlling/manipulating the arm, go forward/back, up/down, place weld 10degress to the left and 245mm forward, verifying the positional accuracy by combining positional data from onboard laser sensors etc.

    The computerisation is not general, it is very specifically tied to that machine (even tho it may be made of generic computer chips, e.g. a motorola 68000 CPU may be the chip doing the calculations on how to manipulate the arm) for a limited purpose, controlling the motion of the arm.

    Therefore the software that runs on the robotic arm to control it is not the whole patent, not the sole purpose of the patent, it is a part of the patent. The patent would be on the complete package, the robotic arm and it's controlling soft/firmware.

    A more everyday example would be the software on your digital camera that controls the working of the camera as being a non-generic computer. Or the embedded controller in a stereo.

    But a software calculator that just performs pen-and-paper calculations, but much faster, on your dekstop PC that also runs spreadsheets, word processors, image editing, games, i.e. general tasks, wouldn't (or at least shouldn
    't) be patentable (although it would still have copyright protection).

    If, however, you built an electronic calculator (I remember HP reverse polish notation caculators being all the rage amongst the well-to-do maths nerds in the late 80's early 90's) then the software that controls it could be patentable as a part of 'the machine', the calculator.

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Anonymous Coward, Jul 21st, 2014 @ 2:45am

    Re: more dissembling by Masnick

    Keep sucking that cock, Ronald J. Riley.

     

    reply to this | link to this | view in thread ]

  34.  
    icon
    Seegras (profile), Jul 21st, 2014 @ 6:17am

    Re: Question

    Indeed, perhaps 99% of all software-patents were granted illegally. But there are actually software patents that really qualify in the United States[1].

    I think PoIR has written something about it.
    http://www.groklaw.net/article.php?story=2010092621054289


    [1] In Europe, all software-patents are explicitly illegal.

     

    reply to this | link to this | view in thread ]

  35.  
    icon
    Seegras (profile), Jul 21st, 2014 @ 6:23am

    Re:

    Yesyes, and a bookshelf stacked with "Moby Dick" is of course a "Moby Dick Support Device".

    http://seegras.discordia.ch/Blog/the-moby-dick-support-device/

    Of course, this kind of reasoning was already completely bonkers with the player piano.

     

    reply to this | link to this | view in thread ]


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