Re: OT: How I learned to stop worrying and love software patents
Michael K. Edwards wrote: I see your weasel-words and raise you horse-pucky. You are impugning the intelligence and integrity of a whole class of dedicated public servants, whose actions are subject to more public scrutiny that any other branch of government, on pure hearsay. Tell me what cases you would have decided differently and why -- taking into account the actual constraints of statutory language and stare decisis -- and then we can talk about where the error lies on the spectrum from ignorance to corruption. Hmm. Sticking to patents for the time being, let's note that no court bothered to actually test whether the patent or copyright system falls within the Constitutional power to promote the Progress of Science and the Useful Arts. Given this, Diamond v. Chakrabarty is wrongly decided; it rules that the Congressional intent to allow anything under the sun that is made by man to be patentable subject matter is correct, and furthermore that it is the principle by which questions of patentable subject matter should be interpreted. But that's a issue of major legal philosophy. Well, here's a nice simple one for you. Diamond v. Diehr was wrongly decided; it overturned Parker v. Flook for no particularly good reason, and didn't even have the decency to admit it. Respondents' claims must be considered as a whole, it being inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. This might have been avoided had the following actually been true: In this case, it may later be determined that the respondents' process is not deserving of patent protection because it fails to satisfy the statutory conditions of novelty under 102 or nonobviousness under 103; however, footnote 33 of the dissent makes clear that this was not the case. The patent consisted of combining a number of preexisting devices --- including the preexisting temperature sensors -- in a way which was not just obvious, but pretty much unavoidable -- everything in the industry points to it like a laser. Given the description of the problem, *I* would have come up with it, and I don't know the first thing about the subject. The rejection of the Flook method of claim analysis actually rejected precedents dating back to 1854, as noted by Stevens in the dissent. Stevens's dissenting opinion is spot-on. As usual for his later work. ATT v. Excel was decided wrongly, of course. This court, unlike previous ones, didn't bother to look up the meaning of the terms formula, algorithm, or equation, which can only be described as ignorance. But that's a small matter. 'Thus, the Alappat inquiry simply requires an examination of the contested claims to see if the claimed subject matter as a whole is a disembodied mathematical concept representing nothing more than a law of nature or an abstract idea, or if the mathematical concept has been reduced to some practical application rendering it useful.' Yep, this is perfectly parallel to arguments allowing patentable artwork. I invent a unique piece of artwork, but if I render it useful, it's not a law of nature or an abstract idea. In Alappat , we held that more than an abstract idea was claimed because the claimed invention as a whole was directed toward forming a specific machine that produced the useful, concrete, and tangible result of a smooth waveform display. Yep, my invention as a whole produces the useful, concrete, and tangible result of a pretty picture on a screen. This is the bottom of the slippery slope, as someone wrote in Spectrum. Of course, the broad patentable subject matter wouldn't be nearly as serious a problem if the requirement of non-obviousness/non-triviality had any teeth. But it doesn't. In Re Sang Su Lee, Teleflex v. KSR and the entire line of cases which demand specific suggestions in a particular written reference to determine obviousness are wrongly decided. (And they aren't compelled by the Supreme Court precedents, either.) I actually think this line of cases has done much more serious damage to the patent system than anything else -- it's the primary reason for the substantial drop in patent quality. Patent examiners know that if they reject a patent for obviousness without demonstrating exactly why it's obvious with voluminous written references, they will be overturned. It's very hard to prove something obvious now, and very very easy to get it declared non-obvious. Your choice whether this is incompetence or corruption, but it's definitely one or the other. The number of patents overturned on obviousness grounds has dropped from the historical 30-40% to nearly nothing -- and it's not because fewer are being filed. :-P -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: OT: How I learned to stop worrying and love software patents
Summary: There is a real concern with the integrity of the patent process underlying the Federal Circuit's refusal to condone summary patent invalidation without an adequate scrutiny for triable questions of fact. On 7/26/05, Nathanael Nerode [EMAIL PROTECTED] wrote: Hmm. Sticking to patents for the time being, let's note that no court bothered to actually test whether the patent or copyright system falls within the Constitutional power to promote the Progress of Science and the Useful Arts. Given this, Diamond v. Chakrabarty is wrongly decided; it rules that the Congressional intent to allow anything under the sun that is made by man to be patentable subject matter is correct, and furthermore that it is the principle by which questions of patentable subject matter should be interpreted. But that's a issue of major legal philosophy. Both the majority and the dissent in Chakrabarty agreed that the only question before the court was a narrow one of statutory interpretation. Even so, Chief Justice Burger addressed the constitutional concern: quote It is, of course, correct that Congress, not the courts, must define the limits of patentability; but it is equally true that once Congress has spoken it is the province and duty of the judicial department to say what the law is. Marbury v. Madison, 1 Cranch 137, 177 (1803). Congress has performed its constitutional role in defining patentable subject matter in 101; we perform ours in construing the language Congress has employed. In so doing, our obligation is to take statutes as we find them, guided, if ambiguity appears, by the legislative history and statutory purpose. Here, we perceive no ambiguity. The subject-matter provisions of the patent law have been cast in broad terms to fulfill the constitutional and statutory goal of promoting the Progress of Science and the useful Arts with all that means for the social and economic benefits envisioned by Jefferson. Broad general language is not necessarily ambiguous when congressional objectives require broad terms. /quote One can reasonably argue whether Congress excluded bacteria from the Plant Patent Act because they were satisfied with existing administrative and judicial interpretations such as In re Arzberger (the majority's guess), or because the only category of animate inventions they intended to authorize was plants (the dissent's). But at least five generations of Supreme Court jurisprudence have agreed that deciding what boundaries on patentable subject matter will best promote the progress of science and useful arts is Congress's job, and all the judiciary can do is try to construe the law correctly based on the fact patterns presented. It's interesting that you identify this as a question of legal philosophy, though. I would agree to some extent, noting the parallel to non-obviousness as discussed in Justice Douglas's concurrence in AP Tea v. Supermarket (1950), and following it back to Justice Bradley in Atlantic Works v. Brady (1882). But the judicially created (Hotchkiss v. Greenwood, 1851) doctrine of non-obviousness was codified by Congress in 1952, and at the next opportunity (Graham v. John Deere, 1966, about which more later) the Supreme Court adopted Congress's more practical test of patentability in Section 103. I would suggest that the Supreme Court's deference to Congress where the scope of patentability is concerned, once the non-obviousness requirement was duly codified, foreshadows the corresponding view of copyright in Eldred v. Ashcroft. I think it likely that none of the Justices considered the Sonny Bono Act wise; but as the Eldred opinion states in its concluding paragraph, The wisdom of Congress' action ... is not within our province to second guess. Well, here's a nice simple one for you. Diamond v. Diehr was wrongly decided; it overturned Parker v. Flook for no particularly good reason, and didn't even have the decency to admit it. Respondents' claims must be considered as a whole, it being inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. To my eyes, Footnote 12 of the Diehr opinion does a good job of explaining why they didn't need to overrule Flook to arrive at this conclusion: quote It is argued that the procedure of dissecting a claim into old and new elements is mandated by our decision in Flook which noted that a mathematical algorithm must be assumed to be within the prior art. It is from this language that the petitioner premises his argument that if everything other than the algorithm is determined to be old in the art, then the claim cannot recite statutory subject matter. The fallacy in this argument is that we did not hold in Flook that the mathematical algorithm could not be considered at all when making the 101 determination. To accept the analysis proffered by the petitioner would, if carried to its extreme, make all inventions unpatentable
OT: How I learned to stop worrying and love software patents
[Note to d-l readers: the subject is tongue-in-cheek, mmmkay? Film reference.] On 7/24/05, Nathanael Nerode [EMAIL PROTECTED] wrote: Michael K. Edwards wrote: Patent is not copyright; you don't obtain a monopoly on describing your method, you obtain a monopoly on its commercial application. No patent prohibits you from making a computer program implementing any algorithm you like; but if you sell it as a solution to the problem addressed in the patent, without authorization from the patent holder, you are infringing. The same goes for selling its output, if that's covered by the patent -- compare against the enforcement of chemical process patents. Thanks for this informative comment. So I guess you would phrase the problem differently, but perhaps you agree on the existence of the problem. As far as I can tell, (a) mathematical problems are being used as problems in the patent domain (apart from solving a system of linear equations, a cipher is a mathematical transformation and the problem of finding one is a mathematical problem); (b) giving things away is considered just as bad as selling them; and (c) selling it as a solution for a different problem is considered just as much a violation as selling it as a solution for the same problem. I really hope one or all of these is not true, but every time I look at something in software, they all seem to be true. I think these are all judgment calls under the current system, and doomed to be judgment calls under any system that is making an honest effort to promote progress in the useful arts and sciences. Let's take your example of ciphers as mathematical problems. Cryptanalysis is higher math, all right, and no patent on a technique of cryptanalysis should be permitted to issue (and as far as I know, none ever has). But the design of a cipher resistant to cryptanalysis shades over into industrial application of that math as well as the more mundane techniques of efficient coding, just as the design of a corrosion-resistant alloy is an industrial application of surface chemistry as well as metallurgy per se. As for (b) and (c): There is not ordinarily a distinction between giving away and selling an infringing item -- after all, there are ways to profit from undermining part of a rival's business model other than extracting per-unit revenues from his potential customers. And while the domain of application and the nature of the useful result are supposed to be part of the statement of a patent's claims, there is some leeway to argue that the disclosure equally teaches an invention in a closely related area (such as video vs. still image compression). But constructing a device or writing a program that has both infringing and non-infringing uses, and taking some care not to encourage or extract revenues from infringing use, can be a pretty good defense against a contributory infringement claim -- especially where the novelty claimed in the patent is limited to applying a well-known technique to an unexpected problem. (IANAL, TINLA.) There isn't a lot of litigation (as opposed to bluster, brinksmanship, and political posturing) on software patents, and AFAICT what there is is pretty benign. I think the State Street decision is somewhat dubious (as I have written earlier), simply because it risks a major change in the effective scope of patent protection without any indication of a legislative or Supreme Court mandate to do so. Ditto EPO parallels such as Sohei (T 769/92) and Pettersson (T 1002/92). The useful arts and sciences are traditionally understood to be those that manipulate the natural world, not markets. But I don't really have any problem with jettisoning the dualist baggage and adopting the Alappat test to call digital results tangible if they represent a useful advance in the state of the art in an applied field. In any case, just because a patent issues doesn't mean it isn't complete crap. Don't be fooled into lumping USPTO howlers (or, for that matter, their EPO parallels) in with those which have survived scrutiny in an adversarial setting. [snip] applications of software techniques to practical problems are just as patentable when stated using process lingo as when using machine lingo, certainly now (per ATT v. Excel) but AFAICT all along. Well, it's straightforward, anyway. Any algorithm is a process by definition. The problem is that it's a *mathematical* process. If you don't have a prohibition on the patenting of mathematics -- and apparently we don't have one on the statute books in this country -- algorithms are obviously patentable. Whether or not the statute calls it out explicitly, mathematics per se is in the domain of laws of nature, natural phenomena, and abstract ideas (quoted from Diehr, paraphrasing cases going back to 1853), which are reliably excluded from patentable subject matter. I invite you to question the assumption that algorithms are mathematics.
Re: OT: How I learned to stop worrying and love software patents
Michael K. Edwards wrote: ... On 7/24/05, Nathanael Nerode [EMAIL PROTECTED] wrote: ... I invite you to question the assumption that algorithms are mathematics. My preferred US dictionary (American Heritage, third edition) has it that an algorithm is a step-by-step problem solving procedure, and goes on to describe the computational specialization of this idea. That's not really theoretical mathematics any more than a titration technique is theoretical chemistry. Algorthms are, in a general sense, semiotics, for the step-by-step problem solving procedure processes data. When the processing is to be done by a digital computer, the instruction set in which the algorithm can be encoded sets and encloses, since Alan Turing's seminal work in the 1930's, the procedure into the realm of theoretical mathematics. And until Alonzo Church's thesis (cathegorizing this enclosure) is disproved, this enclosure is definite. Either way, whether specifically as theoretical mathematics (via computers), or generally, for being semiotics, algorithms are in the domain of laws of nature, natural phenomena, and abstract ideas (refer to Charles Peirce, Ferdinand de Sausurre or Umberto Eco going back to 1867, only foourteen years later than the oldest quote allegedly paraphrased from Diehr) -- Prof. Pedro Antonio Dourado de Rezende /\ Ciencia da Computacao (61)3072702-212 / \ Universidade de Brasilia, DF, Brasil /\ ?http://www.cic.unb.br/docentes/pedro/sd.htm -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: OT: How I learned to stop worrying and love software patents
On 7/24/05, Pedro A.D.Rezende [EMAIL PROTECTED] wrote: Algorthms are, in a general sense, semiotics, for the step-by-step problem solving procedure processes data. When the processing is to be done by a digital computer, the instruction set in which the algorithm can be encoded sets and encloses, since Alan Turing's seminal work in the 1930's, the procedure into the realm of theoretical mathematics. And until Alonzo Church's thesis (cathegorizing this enclosure) is disproved, this enclosure is definite. Yes, all very lovely, I've read Douglas Hofstadter's books too. Likewise, chemistry is physics and psychology is biology. But that doesn't tell us anything about the skills applied by practicioners in the field (hint: most coders can't do Big O analysis, let alone solve an integral), or about which useful arts and sciences the Constitution authorizes Congress to encourage through the patent monopoly. If you want to understand how far a court is willing to go with you along the mathematics is in the realm of abstract ideas and therefore unpatentable, you have to step from Church and Turing's world into Von Neumann and T. J. Watson's. Either way, whether specifically as theoretical mathematics (via computers), or generally, for being semiotics, algorithms are in the domain of laws of nature, natural phenomena, and abstract ideas (refer to Charles Peirce, Ferdinand de Sausurre or Umberto Eco going back to 1867, only foourteen years later than the oldest quote allegedly paraphrased from Diehr) Nice allegedly -- translates to I didn't bother to check, right? My quote from Diehr (1981) was exact; the Diehr opinion in turn quotes from various other cases back to Le Roy v. Tatham (1853). Here's the Diehr link again, for your convenience: http://laws.findlaw.com/us/450/175.html . Allow me to suggest that, if you do read it this time in search of rebuttal material, you at least read Section III of both opinion and dissent. You might also evaluate the merits of Judge Plager's response to the concerns raised in Justice Stevens's Diehr dissent, found in Section D of ATT v. Excel ( http://caselaw.lp.findlaw.com/data2/circs/Fed/981338v2.html ). In any case, the writings of the most respected of philosophers and novelists are of less precedential value than the most pedestrian of appellate court decisions. It is entirely possible that policy-makers in Brasil have drawn the line differently -- as is well within their rights -- but to prove it to me you will need to show me how it works in your courts. Cheers, - Michael P. S. Watch for a possible grant of certiorari in Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc., which could be followed by a Supreme Court ruling giving better guidance on the whole laws of nature, natural phenomena, and abstract ideas business from Diehr. The heads-up came from http://www.ipfrontline.com/printtemplate.asp?id=4357 , which lists a number of interesting upcoming decisions.
Re: OT: How I learned to stop worrying and love software patents
I wrote, in response to Prof. de Rezende: Yes, all very lovely, I've read Douglas Hofstadter's books too. ... This was a cheap shot, and I'm ashamed to re-read it. I didn't mean by this that Prof. de Rezende was not right to ground the algorithms are mathematics perspective in the primary literature of computer science, or even that it isn't more correct in a theory-of-knowledge sense than other perspectives. It's just that I don't think this calculus is helpful when interpreting a patent statute, because that formal relationship is neither what the legislators had in mind nor representative of the economics of the field. In any case, Pedro didn't get those ideas secondhand from Douglas Hofstadter, nor would they be any less valid if he had (I rather enjoyed Hofstadter's books myself and appreciate his popularization of topics that would perhaps otherwise be much less widely discussed outside academia). It really wasn't nice of me to dismiss Pedro's comments in those terms, and I apologize and ask his pardon. Cheers, - Michael
