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What Happened to Judge Lourie in CLS Bank v. Alice Corp?


Written by Sue D. Nym
Dewey, Cheatum & Howe
Posted: May 15, 2013 @ 7:45 am
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Chief Judge Rader’s band De Novo should play a dirge tonight.

On May 10, the Federal Circuit issued its en banc opinion in CLS Bank.  Within 48 hours, I had twice read the 135 page decision.  It may be a bullet to the head of the software industry.  Don’t take my word for it:  four different judges say so:

And let’s be clear: if all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents. If all of the claims of these four patents are ineligible, so too are the 320,799 patents which were granted from 1998-2011 in the technology area “Electrical Computers, Digital Processing Systems, Information Security, Error/Fault Handling.” Every patent in this technology category covers inventions directed to computer software or to hardware that implements software. In 2011 alone, 42,235 patents were granted in this area. This would render ineligible nearly 20% of all the patents that actually issued in 2011. If the reasoning of Judge Lourie’s opinion were adopted, it would decimate the electronics and software industries. There are, of course, software, financial system, business method and telecom patents in other technology classes which would also be at risk. So this is quite frankly a low estimate. There has never been a case which could do more damage to the patent system than this one.[1]

That parade of horribles is not entirely fair to Judge Lourie’s concurrence.  Judge Lourie based his opinion on the fact that the disputed patent is directed not just to electronics, but to an insignificant use of modern electronics to implement an arguably basic financial transaction.  I doubt that Judge Lourie would expand the holding in CLS Bank far beyond that specific fact pattern.  Nevertheless, as quoted above, the dissenting judges do not share even this much optimism.

The potential impact of CLS Bank is staggering

Now is an exhilarating, and terrifying, time to work with software patents.  If the dissenting judges are even half right, we could see a 50% decline in the business of software patents.  The decision is a threat to the livelihoods of those who work with software patents, including me.  But the effects are not limited to patent attorneys.  If the premise of the patent system is correct—that patents are a net boost to science and industry—then CLS Bank could deliver a brutal blow to our national economy.

CLS Bank has been a long time coming.  In Diamond v. Diehr, Justice Stevens failed to garner just one additional vote needed for a majority to reinforce the anti-software decisions earlier in Benson and Flook.[2]  Twenty-nine years later, he again failed to garner just another single vote for a majority to endorse a more anti-business method decision in Bilski.[3]  In separate opinions, Stevens made passionate objections in both cases.  Indeed, Stevens’ concurrence in Bilski reads like a majority opinion.  The patent bar widely suspects that Stevens only lost at the last moment when Scalia—Stevens’ conservative rival—joined merely part of the delayed, majority opinion.  If Stevens had commanded the majority in either of those decisions, each could have been the death blow that finished what Benson and Flook started.

CLS Bank comes a giant step closer to realizing Stevens’ dream.  The anti-software plurality does not quite capture a majority.  But, by securing half the votes (5 of 10), the effect is practically the same:  the patent is dead without Supreme Court intervention.  Perhaps more importantly, the dissenting five fail to unite like the dominant plurality does.  They splinter into numerous factions, fighting among themselves, while their larger agreement goes unnoticed.  Technically, the giant decision’s only precedent is limited to the single, unhelpful paragraph of the per curium opinion.  In practice, the Federal Circuit’s silence is deafening.  If anything, the splintered opinions in CLS Bank highlight what is becoming an undeniable fact:  that the United States’ law on patent eligibility, as interpreted by the Supreme Court, is fundamentally broken.

I do hope, and somewhat expect, the Supreme Court to intervene.  One can hardly imagine a Federal Circuit opinion more ripe for review than one where the dissent cries out: “the current interpretation of § 101 […] is causing a free fall in the patent system.”[4]  But Supreme Court review is not guaranteed.  After several similar cases in recent years (Bilski, Mayo[5], Myriad[6]), and twenty-nine years of silence before then, the giant of the Supreme Court may desire to slumber again.  The Court may feel that its guidance is sufficient, and trust the Federal Circuit to apply that guidance according to the facts of each case.  The Court may feel especially pleased with the outcome in CLS Bank—a dead patent.  The Court may also vacate the decision and instruct the Federal Circuit to reconsider the decision in light of new precedent, such as Myriad.  Alternatively, the Court could decline to intervene, perhaps worrying that its prior interventions did more harm than good (as CLS Bank suggests).  If the Supreme Court fails to act at all, that could finally move Congress to amend §101 to overrule the excesses of the Court’s precedent.

Unfortunately, the patent is not the only thing that died in CLS Bank.  The other thing that died is § 101 of the Patent Act (not to mention § 100(b)).  Earlier, the Court recognized both the breadth of the statute, and the Congressional intent motivating that breadth:

As this Court recognized over 20 years ago in Chakrabarty, the language of § 101 is extremely broad. “In choosing such expansive terms as `manufacture’ and `composition of matter,’ modified by the comprehensive `any,’ Congress plainly contemplated that the patent laws would be given wide scope.”[7]

In contrast, in recent years, the Supreme Court has interpreted § 101 not broadly, but restrictively, because, for example, the more liberal approach “would make the ‘law of nature’ exception to § 101 patentability a dead letter.”[8]  But that logic is upside down.  The “letter” that the Court must keep alive is the simple statute, not unworkable judicial exceptions.  Those exceptions apply the statute in the exact opposite manner (restrictively) than it was intended (liberally).  Just as the Statute of Liberty is a clarion call to new and foreign peoples that the United States welcomes them into a land of freedom, §101 was intended to be a clarion call to inventors who make new and foreign inventions—especially those that Congress could not foresee when drafting the statute.  In aggressively applying the judicial exceptions to the statute, the Court, and now the Federal Circuit, has made the statute itself a dead letter.

What about Judge Lourie?

The first thing that any student of the Federal Circuit likely notices when reading CLS Bank is that Judge Lourie not only joined the dominant concurrence, but he also wrote the opinion.  The same Judge Lourie who wrote the first opinion in Mayo[9], after which the Supreme Court asked the Federal Circuit to reconsider, and who then wrote the second opinion in Mayo[10].  The same Judge Lourie who wrote the first opinion in Myriad[11], after which the Supreme Court asked the Federal Circuit to reconsider, and who then wrote the second opinion in Myriad[12].  All of those opinions interpret §101 broadly.  Although the Supreme Court requested that the Federal Circuit reconsider its opinion in both cases, Judge Lourie’s later opinions essentially reinforced his original conclusions without revision.  The Supreme Court finally reversed Judge Lourie in Mayo[13] and will likely do so in Myriad.  This is the same Judge Lourie who, 20 years ago, joined Judges Rich, Newman, and Rader to interpret §101 broadly in the en banc Alappat decision.[14]  As Judge Rader notes in his CLS Bank opinion, this is the same Judge Lourie who joined him and Judge Newman to interpret §101 broadly in Arrhythmia Research Tech.[15]  This is also the same Judge Lourie who recently joined Judge Rader in Ultramercial to interpret §101 broadly.[16]

I am not cherry picking Judge Lourie’s decisions.  To my knowledge, his only notable opinion in the opposite direction is Bancorp., which is the exception that proves the rule.[17]  Judge Lourie has consistently interpreted §101 broadly, as Congress intended, in case after case.  He has shown bravery in defending the Congressional intent of that statute, and its sound policy, despite resistance from the Supreme Court.  Now, Judge Lourie switches sides.  To those whose livelihoods depend on software patents, this reversal stings.

So what happened to Judge Lourie?  I’ll tell you what happened:  Justice Breyer and the Supreme Court wore him down.  After public criticism of the Federal Circuit’s § 101 jurisprudence in Justice Breyer’s opinion in Metabolite[18], and public criticism of Judge Lourie’s own opinions in the Supreme Court’s Bilski decision (Judge Lourie had joined the majority opinion), the vacating of his original Mayo decision, the reversal by the Supreme Court of his second Mayo opinion, and the granting of certiorari from his Myriad decision—Judge Lourie decided to toe the line.

As Judge Newman observes, the decision in CLS Bank utterly fails to unify patent law and provide predictable guidance to the lower courts.[19]  But we should not blame the Federal Circuit for that failure.  That specialized court, which Congress entrusted with administering and unifying patent law,[20] has been broken by a generalist Court that lacks the Federal Circuit’s specific expertise in that area.  Despite the best intentions, a circuit judge can only take so many reversals before capitulating.  Judge Lourie makes clear that, in deciding CLS Bank, he felt bound by Supreme Court precedent:  “Not only has the world of technology changed, but the legal world has changed.”[21]  Judge Lourie felt compelled to obey the Supreme Court—but I doubt that he liked it.

Judge Lourie’s decision here is like Chief Justice Robert’s decision in the ObamaCare case.[22]  There the Chief Justice crossed the aisle from conservatives to liberals in order to uphold ObamaCare.  Among much speculation about Roberts’ motivation, a popular theory is that he joined the liberals to preserve the integrity of the Court and avoid backlash from the Executive and Legislative branches.  A similar concern might have motivated Judge Lourie in CLS Bank to cross the aisle toward those judges who apply Supreme Court guidance on §101 more aggressively.

The wearing down of Judge Lourie fits within a more disturbing trend at the Federal Circuit: a diminishing of patent rights in view of Supreme Court resistance.  In the roughly fifteen years following the creation of the Federal Circuit in 1982, under the firm grip of Chief Judge Markey, there was a Golden Age of strong and uniform patent protection.  I’m saddened to see Judge Lourie joining the newest judges on the Federal Circuit, Judges Reyna and Wallach, both of whom have little background in patent law.  Although Judge Lourie crossed the aisle just now, that moment can mark the culmination of a trend—the Supreme Court’s encroachment on the Federal Circuit’s administration of patent law—that began long ago.

 


[1] Moore op. at 2 including n. 1.

[2] Gottschalk v. Benson, 409 U.S. 63 (1972); Parker v. Flook , 437 U.S. 584 (1978); Diamond v. Diehr, 450 U.S. 175 (1981).

[3] Bilski v. Kappos, 130 S.Ct. 3218 (2010).

[4] Moore op. at 1–2.

[5] Mayo Collaborative v. Prometheus Labs., 132 S.Ct. 1289 (2012).

[6] The decision is pending.

[7] JEM Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124, 130 (2001) (internal citation omitted).

[8] Mayo, 132 S.Ct. at 1303.

[9] Prometheus Laboratories v. Mayo Collaborative, 581 F.3d 1336 (Fed. Cir. 2009).

[10] Prometheus Laboratories v. Mayo Collaborative, 628 F.3d 1347 (Fed. Cir. 2010).

[11] Ass’n for Molecular Pathology v. USPTO, 653 F.3d 1329 (Fed. Cir. 2011).

[12] Ass’n for Molecular Pathology v. USPTO, 689 F.3d 1303 (Fed. Cir. 2012).

[13] See note 4 above.

[14] In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994).

[15] Arrhythmia Research Technology v. Corazonix Corp., 958 F. 2d 1053 (Fed. Cir. 1992).

[16] Ultramercial, LLC v. Hulu, LLC, 657 F.3d 1323 (Fed. Cir. 2011).

[17] Bancorp Services v. Sun Life Assur. Co. of Canada, 687 F. 3d 1266 (Fed. Cir. 2012).

[18] Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc., 548 U.S. 124, 126 S.Ct. 2921 (2006) (Breyer, J., dissenting).

[19] Newman op. at 2.

[20] 28 U.S.C. § 1295.

[21] Moore op. at 37 (including n. 1).

[22] Nat. Fedn. Of Indep. Business. v. Sebelius, 132 S.Ct. 2566 (2012).

About the Author

Sometimes it is necessary to change the names of those involved, to either protect the innocent or provide cover for the guilty. In this case, the author wrote something interesting and topical, but preferred to remain anonymous, hence the pseudonym --- Susan (or Sue for short) D. Nym. Anonymous (at least to the reader) submissions may from time to time appear under the pseudonym --- Sue D. Nym. This should not, however, suggest that any and all anonymous contributions are by the same author. Similarly, it should not suggest that any particular contribution attributed to Sue D. Nym was authored by a female contributor.

109 comments
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  1. Good post. I agree that the Stevens dissent in Bilski is what they are trying to get to. And, I believe that Obama is going to put us into that category.

    Obama’s new appointments are either ignorant of patent law and science, or the solicitor is virulently against software patents. In fact, I think he was the one that gave the verbal arguments for the PTO in Bilski for the en banc Fed. Cir. I remember that he seemed to have a person stake in it and seemed to loath software patents.

    It isn’t looking good at the Fed. Cir. The SCOTUS might surprise us. That is still a possibility. Roberts basically gets it.

    One huge problem is the ignorant men of power like Lemley and Posner that are just throwing as much dirt at software patents as they can. Posner makes outrageous statements of fact of how innovation works that appears to be right out of a Disney movie—stomach turning that a Posner judge of his reputation would have sunk so low. Lemley appears to be willing to make gross misrepresentations and it doesn’t appear that Stanford is going to sanction him for his lack of academic integrity. I am going to read his paper on functional claiming and see what gross misrepresentations he makes in it. All read all the cases on functional claiming in law school. I know that to get to his conclusions he must have made some whoopers.

    So, it is not looking good…. Maybe Scalia will be turned to our side. But still we have all these judges that are now going to be the majority at the fed. cir. who know nothing about patent law. I would advocate at this point dissolving the Fed. Cir. It has been stacked by Obama. O’Malley probably was a disappointment to Obama.

    And, let’s face it. Obama may give us a new director that is virulent against software patents.

  2. “Judge Lourie based his opinion on the fact that the disputed patent is directed not just to electronics, but to an insignificant use of modern electronics to implement an arguably basic financial transaction.”

    Sounds a lot like the rationale for invalidating the Leapfrog patent: using electronics to perform functions previously done electromechanically is obvious and therefore patent was invalid under section 103.

    The key problem is that the Supremes have infected the analysis of what is patent eligible with considerations of obviousness.

  3. I never realized how insignificant not the word “insignificant” is.

    http://patentu.blogspot.com/2013/05/on-software-patents-and-soft-think.html

  4. Sounds like a boon for software developers though.

  5. There is very little evidence that the software industry will be harmed by the loss of patents. It is widely acknowledged that many if not most of the software patents issued are vague, trivial, obvious, and of little value. The cost of defending the against these poor patents or paying the “tax” is a major drag on the software industry.

    The patents here merely automate an age old process, something any competent software developer could have easily done. In fact there were probably unknown (un-published) systems out there already doing pretty much the same thing which the creators thought un-remarkable and never bothered to patent.

  6. While this ruling should definitely put a bullet in the head of software patents (which are just manifestations of mathematical algorithms), it certainly does NOT put a bullet in the head of hardware patents.

    And just FYI, software flourished for many, many years without patents. If patents had existed from the start, you can be pretty sure Microsoft would not exist, at least certainly not in its current form. We’d probably still be using VisiCalc and DBase. Forget any form of SQL driven relational databases, except from IBM, etc.
    The premise that software will cease to be created or that software developers will stop developing is without proof, or even legitimate rationale.

  7. dabble53-

    Impossible to take you seriously when you say so many things that are objectively and provably false.

    First, software is not the manifestation of mathematical algorithms. As I have demonstrated over and over again here, software directs a machine to operate. It is not math. The folks that say it are are wrong. The people you cite for support are either wrong or don’t mean what you claim they mean. It is pretty straight forward.

    If software is a manifestation of math then please solve the IPWatchdog.com homepage. If it is math you will be able to either reduce the code to a single line while the page will still display properly, or you will be able to provide a number that equals the IPWatchdog.com homepage. Of course, you won’t be able to do either because software is not math. Even a simple piece of HTML and PHP code is not math.

    Second, software has not flourished for many years without patents. As PBS explains, the first software patent issued in 1968. See:

    http://kottke.org/13/02/the-first-software-patent

    So it is false to pretend that software flourished prior to 1968 and everyone knows it. You just didn’t realize that software was patentable that long ago, but it was. Even before the Supreme Court authorized software patents in 1981 software patents were routinely granted in the 1970s. The claims were to machines and systems.

    To you and others who think software will be created, maybe we will see. Of course, IBM won’t spend the billions and billions of dollars researching Watson if they cannot recoup their investment. So, while you want to pretend there is no legitimate reason to expect software to cease anyone with half a brain knows better.

    The software that will continue is the beta garbage that crashes, never really works and constantly needs updating. Interesting how software is so obvious yet so much of it NEVER works properly.

    People like you who don’t have the common sense to see what is plainly staring you in the face are extraordinarily irritating. Why not educate yourself before you make ridiculous comments that conclusively prove you are without a clue.

    -Gene

  8. “If the reasoning of Judge Lourie’s opinion were adopted, it would decimate the electronics and software industries.”

    No. Rather, it might decimate (or at least curtail) the electronics and software _patent_ industries (and really, probably wouldn’t impact hardware as much). The patent process in this industry may provide a good living for IP laywers, trolls, and megacorps looking to stifle competitors, but there is absolutely no reason to believe that technology innovation would somehow vanish overnight if these patents disappeared off the face of the earth. Somehow, I think we’ll find the will to go on without multi-billion-dollar patent lawsuits and years in court.

  9. MZ-

    You say: ” there is absolutely no reason to believe that technology innovation would somehow vanish overnight if these patents disappeared off the face of the earth.”

    What is your proof? You have the burden of proof since all objective evidence suggests otherwise. In countries where patent rights do not exist or are weak the average income of individuals is exceptionally low. In those countries with strong patent rights the average income is the highest. In countries with no patent rights or weak patent rights there is a complete lack of innovation, while in countries with strong patent rights there is the most innovation.

    If patents got in the way of economic activity or harmed innovation the exact opposite would be true.

    See: http://www.ipwatchdog.com/2012/12/06/forfeiting-the-future-over-irrational-fear-of-software-patents/id=30957/

    So the facts prove that your naive views are incorrect. So why would we engage in the ridiculous experiment you suggest? Changing what we know works only make sense if there is overwhelming evidence to support your position, and there is no evidence. Just erroneous opinion.

    -Gene

  10. So many words, so little wisdom…

    I gather most of you here, including the author, are lawyers and not practising software professionals?

    Because here is the cold hard fact of the software industry: NO professional software developer, programmer, analyst, etc., actually practising in the field and developing real software for real use, EVER even looks at a patent – most are actually forbidden to do so. The ONLY impact of the patent system is as a background threat that an idea you conceived of yourself will have been patented, despite being obvious to any actual professional, because the patent office applies absurd standards of non-obviousness. I.e., the patent system is a huge threat to innovation.

    Aside: Gene Quinn wants “a number that equals the IPWatchdog.com homepage”, thinking this to be some sort of demonstration that software is not mathematics. This is so absurdly easy a challenge to meet that it proves Gene Quinn is not a mathematician, and the ready acceptance by others here that such a challenge can’t be met shows that they also are incompetent as mathematicians:

    The number: Concatenate all the bits sent down the wire when fetching the home page, and interpret the result as a single number. (Shakes head in amazement that this was not obvious.)

  11. @7: Gene Quinn

    You asked us to solve the IPWatchdog homepage, but there is no need to do so to prove software is math. All the processes that run on computers to get your page to us are algorithms. You make the mistake that Mathematics must have a solution – there are many cases where it doesn’t. The maths simply describes the process. A classic example of this is chaos theory.

    There are Maths algorithms to describe how weather should behave but it cannot produce a good solution because minor inaccuracies in the input produce large discrepancies in the output.

    Some components of a computer are devices and those devices are patentable, but those patents have mainly long since expired and what has resulted is a general purpose computer, with storage, able to run any program and connectable to other computers.

    Your actual content is original on IPWatchdog is an original work and copyrightable, just as software should be. Your content however is not patentable.

  12. @Gene Quinn

    Thanks for engaging in this discussion. The mere correlation between the strength of patent rights in a nation and the amount of innovation and wealth doesn’t prove anything. We could just as validly say that wealth causes countries to create stronger systems of patent protection, just as it causes countries to create stronger systems of public transportation, public health, zoning and building inspection, firefighting, police, military, etc… There is also plenty of reason to believe that patents may be beneficial to support innovation in one field while harmful in another. Just because, say, patents may help to ensure the development of new pharmaceuticals does not mean that the same system of patents would help to ensure the development of new computer software. Indeed, the critical asset for a startup pharmaceutical company is the patent (or patent application) for a promising candidate drug. In contrast, the vast majority of software startups never consider applying for a patent and only look to the patent office after they have achieved great success and need ammunition against incumbents and trolls with massive patent portfolios. Heck, many startups are born and die long before even an efficient patent office could act on a single application.

    But it doesn’t do a lot of good for me to sit around and argue about it. However, I’ll note that the EFF (yes, snicker away if you’d like…) just write a blog post on this very subject: https://www.eff.org/deeplinks/2013/05/whats-stake-cls-bank-software-patents.

    Daniel Nazer cites several studies and scholarly essays on the impact of software patents. Among them, Judge Moore, examining patents in all disciplines, concludes that “patent issuance [is] a poor measure of innovation value.” So simple calculations of patents issued per capita, as compared with national per capita income, are not indicative of a nation’s technological progress. See also Colleen Chien’s work (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2146251) on the adverse impacts of patent demands on small tech startups, you know, the companies that politicians keep saying are vital to create jobs and grow the economy. Even in Prof. Chien’s survey of in-house lawyers for mid to large-size tech companies found big problems: “82 percent of the companies said their customers had been subjected to patent troll demands, for using or implementing their products” (http://arstechnica.com/tech-policy/2013/05/survey-says-patent-attacks-scare-off-customers-kill-business/). And of course there’s New Zealand’s recent announcement, which was welcomed by the CEO of the largest software company in that nation.

  13. @7: Gene Quinn
    I understand that you have a strong vested interest in software patents, as anyone whose livelihood depends on them might, That does not mean that your opinion on software not being math has any truth to it. If Donald Knuth, one the foremost computer scientists say software is math who are you to argue? Go and look up his opinions on the subject.
    You asked dabble53 to “solve the IPWatchdog.com homepage.” Any one with actual knowlede of software would know that a web browser does solve IPWatchdog.com homepage in terms of the halting problem. If you don’t understand this then you opinions on software are as uninformed as mine are on law.

    Ignoring the software is math argument for a moment, a significant problem with software patents is that the solution (i.e, the software itself) is straightforward once you understand the problem. I’ve been a professional programmer for nearly 25 years, software is what I do. Once the problem is defined the algorithm for the code falls out, Software patents patent the descripton of the problem, not the solution.

  14. @Gene:

    If software is a manifestation of math then please solve the IPWatchdog.com homepage. If it is math you will be able to either reduce the code to a single line while the page will still display properly, or you will be able to provide a number that equals the IPWatchdog.com homepage.

    I’m not familiar with PHP, but there are many programming languages where line endings are not part of the syntax; if PHP is one of these languages, then turning it into a single line only requires stripping out the newlines, a trivial operation. Translating it into an integer is also trivial, and doesn’t depend on anything.

    I think you have a misconception about what math is, since these criteria don’t make much sense.

    Why not educate yourself before you make ridiculous comments that conclusively prove you are without a clue.

    This is very nearly exactly what I was thinking when I read the criteria for your challenge. I ended up backing away from that sort of hostile verbiage, since in my experience it almost never helps get a point across.

    Interesting how software is so obvious yet so much of it NEVER works properly.

    The argument is not that software is obvious, the argument is that software is abstract.

    In countries where patent rights do not exist or are weak the average income of individuals is exceptionally low. In those countries with strong patent rights the average income is the highest.

    Correlation is not causation, and more importantly, this says nothing about software patents specifically.

  15. Gene,

    Just a couple of thoughts.

    Have you sought expert opinion from leading members of the mathematics community on whether software is a subset of maths? Perhaps you could do a poll using responses from all/many of the professors of maths and those of computer science. Would you believe these expert opinions if they were to say that software is maths?

    I was thinking about your point about innovation being tied to patents. I’m not a lawyer and only have a curiosity in patents so I sometimes struggle to find what may be there. I consider the games industry to be highly innovative but i’m not aware of any patents specifically linked to that industry. I may do a little research to try to find some but if you would consider thinking about this section of the software industry and how patents have driven innovation in it i’d be interested in your thoughts.

  16. Mike,

    why do you come here and talk nothing but nonsense?

  17. 1) Congress DID set up Supreme Court as overseer of Federal Circuit.
    2) Congress DID set up FC as one that interpret law, but then gave SC power to correct FC to their likings.

    Its strange like this article bash SC for executing their power given by Congress, while prising FC for executing their power given by Congress. And “almost” demanding that FC do revolt.

    The patent in question is as bogus as one can get. If you gave a task to any Computer Science student, to make escrow system, they would ALWAYS come up with the idea that is “patented” here. The knowlege already is present. Escrow is old. Computers are old. Setting up computer to perform tasks for 4 actors from which 2 will order actions remotely is also old (and basic).

    Only new thing in this patent is the idea that you can take all that obvious parts and put it together in a patent.

    (Heck, if not “electronically” in the patent claim, I could prove that one can implement it on LEGO toys :D )

  18. Do not understand why anyone protect that patent. Its dead wrong one in current US law. Why not call it “rotten apple issued by mistake”, and end this case ?

    (Oh, I know. Someone wanted to make cash on it. But everybody else?)

  19. @Gene Quinn

    Shame on you for such lies:

    “What is your proof? You have the burden of proof since all objective evidence suggests otherwise. ”

    EU do not have patent on software, and we do not die out of starvation in IT sector here. In fact one can not see much difference between how IT advances in EU and in US.

    And “burden of proof” lie on You since You mentioned, “objective evidence” but did not mentioned even one item (related to matter that was discussed by FC in ruling mentioned in article..)

  20. @Gene Quinn

    “Even a simple piece of HTML”

    HTML is not programming language. Its markup language. You mark content with it.

    PHP on the other hand is programming language. And it can only express mathematical algorithms. It can direct machine to do stuff, but it only that was true, nobody would use it, as nobody could understand it. Humans also can interpret it, and do stuff based on its instructions. That is common especially in education, when student must interpret and perform actions dictated by piece of code, and give results. Math is same, but most people do it in their minds most often. However as anyone who need to make big calculations, and they will point You to machines which are instructed by math to do stuff.

    (What You seam to miss is that analytical match is not the only math around here…)

  21. @Gene Quinn

    MZ-

    You say: ” there is absolutely no reason to believe that technology innovation would somehow vanish overnight if these patents disappeared off the face of the earth.”

    What is your proof? You have the burden of proof since all objective evidence suggests otherwise. In countries where patent rights do not exist or are weak the average income of individuals is exceptionally low. In those countries with strong patent rights the average income is the highest. In countries with no patent rights or weak patent rights there is a complete lack of innovation, while in countries with strong patent rights there is the most innovation.

    The evidence is New Zealand, Australia, Canada, Europe, and Asia (where only token lip service to software patents is the general case, mostly to just make the US go away).

    If patents got in the way of economic activity or harmed innovation the exact opposite would be true.

    They do – by causing viable businesses to be put out of business to maintain a monopoly, or to just extort even more money until the businesses are non-profitable.

    It isn’t irrational. Software patents cost the US businesses 30 billion a year. That is a lot of jobs gone.

    See: http://www.ipwatchdog.com/2012/12/06/forfeiting-the-future-over-irrational-fear-of-software-patents/id=30957/

    Just saying it doesn’t have an effect, does not make it true.

    So the facts prove that your naive views are incorrect. So why would we engage in the ridiculous experiment you suggest? Changing what we know works only make sense if there is overwhelming evidence to support your position, and there is no evidence. Just erroneous opinion.

    Tough to be wrong, isn’t it.

    A 30 billion dollar a year loss is not “just erroneous opinion”.

  22. More rhetoric (false and empty) here than I have time to deal with. Bad statements of law (Congress setting up the Supreme Court…?) and mouthings of rhetoric (“maths” used as plural as if it is something mystical and not merely a tool of humans, for humans [the map is not the world]; and experts in the field of mathematics to determine a legal effect of anything, when understanding of law is not even attempted…)

    All the while, the ignorance of what patents cover (things and processes that “DO”) permeates the anti-software patent viewpoint, make me feel that I am dealing with children who refuse to understand the world about them.

  23. @ANON

    More rhetoric (false and empty) here than I have time to deal with. Bad statements of law (Congress setting up the Supreme Court…?) and mouthings of rhetoric (“maths” used as plural as if it is something mystical and not merely a tool of humans, for humans [the map is not the world]; and experts in the field of mathematics to determine a legal effect of anything, when understanding of law is not even attempted…)

    It depends on the view of the country – the Second Continental Congress did setup a constitution, the Articles of Confederation. When that was shown to have unfixable flaws, there was a constitutional convention. From wikipedia:
    “Once the Articles Congress certified that eleven states had ratified the Constitution, elections were held, the new government began on March 4, 1789, and the Articles Congress dissolved itself.”

    So a congress did “set up the supreme court”.

    The use of “maths” depends on the country of the author. The UK uses “maths” as the plural of “Math”.

    Your ” [the map is not the world]” is right. Mathematics is not part of the world. And is explicitly excluded. Yet you insist on including it.

    All the while, the ignorance of what patents cover (things and processes that “DO”) permeates the anti-software patent viewpoint, make me feel that I am dealing with children who refuse to understand the world about them.

    Exactly. Software does not DO anything. It is just a written communication. Only PROCESSORS do things.

  24. >>Exactly. Software does not DO anything. It is just a written communication. Only PROCESSORS do things.

    A method for making an alloy. What does the thing here? The pot? The stirrer? The heat? What?

    A method of processing information: what is so hard to understand about that?

  25. So a congress…

    Wow – such revisionism is “refreshing.” Do you really think that your revisionism was what przemoli intended?

    The use of “maths” depends on the country of the author – completely misses the point I am making about that use. My inclusion of math as a tool is expressly in line with what patents are for. I merely insist on understanding what you refuse to understand.

    Once again, your final comment has been dealt with already – software is a machine component. Software is not thinking. Software must be captured in a real world sense, and it is that capture that is the component, not the idea of software, not the thinking. Machines do not and cannot think. You evade the points I raise, from the correct treatment of law to how your views crash and burn in that correct treatment. You return from ignoring the points I make with more of the same rhetoric. You advance nothing.

    Address the points I have made and maybe we can advance the discussion. Until then, I see only your empty mouthing of rhetoric and disdain for what you do not understand. Your illogical drive to have an end result based on nothing more than your emotions and ideology employ a lack of logic that betrays you. Until you step up and recognize the limitations in your position, all you are accomplishing is a weakening of your position.

    Come back when you have more than mere prattling.

  26. @NWPA

    A method for making an alloy. What does the thing here? The pot? The stirrer? The heat? What?

    All three – it is called a transformation of matter. When you patent the product, you have exclusive right to produce that product.

    A method of processing information: what is so hard to understand about that?

    Not hard at all, just not patentable.

  27. @Anon

    Wow – such revisionism is “refreshing.” Do you really think that your revisionism was what przemoli intended?

    You need to review the history of the constitution:
    ref: http://www.archives.gov/exhibits/charters/constitution_history.html


    On July 2, 1788, the Confederation Congress, meeting in New York, received word that a reconvened New Hampshire ratifying convention had approved the Constitution. With South Carolina’s acceptance of the Constitution in May, New Hampshire thus became the ninth state to ratify. The Congress appointed a committee “for putting the said Constitution into operation.”

    So yes, a constitution – specifically the Confederation Congress.

    The use of “maths” depends on the country of the author – completely misses the point I am making about that use. My inclusion of math as a tool is expressly in line with what patents are for. I merely insist on understanding what you refuse to understand.

    Your sentence on “maths” was about the syntax. Using it as tools is just ignoring the fact that mathematics IS plural. Now it is possible I misinterpreted what you said. I do tend to be quite literal minded.

    Once again, your final comment has been dealt with already – software is a machine component. Software is not thinking.

    Never said it was thinking. Software is a written expression.

    Software must be captured in a real world sense, and it is that capture that is the component, not the idea of software, not the thinking. Machines do not and cannot think.

    Never said they did. You insist on misconstruing what is said.

    You evade the points I raise, from the correct treatment of law to how your views crash and burn in that correct treatment. You return from ignoring the points I make with more of the same rhetoric. You advance nothing.

    When the “law” is wrong, it is wrong. You have stated nothing valid.

    Address the points I have made and maybe we can advance the discussion. Until then, I see only your empty mouthing of rhetoric and disdain for what you do not understand. Your illogical drive to have an end result based on nothing more than your emotions and ideology employ a lack of logic that betrays you. Until you step up and recognize the limitations in your position, all you are accomplishing is a weakening of your position

    And you lack the understanding of what mathematics is, and seem to ignore the fact that it is expressly removed from the field of patents.

  28. jesse,

    You continue to miss the points I make and I have to wonder if it is on purpose.

    I am well aware of the early history of this country and especially the interplay with the patent clause. Your reply is an obvious misdirection as to the point that (unless you are using przemoli as a puppet) you cannot be speaking for that poster and re-interpreting that poster’s comment.

    My sentence on “maths” was far more than just about syntax. Are you being obtuse on purpose?

    Your admission of software as a written expression directly links (as I have already noted) to the legal considerations of written expressions. Law (whether or not you like it) has found that written expressions that bear a functional relationship cannot be excluded from patentability merely because the component takes the form of writing. This is established case law and is known as the exception to the printed matter doctrine. I have made this point previously, and the fact that I have to make it again shows that you are either unwilliing or unable to hold an honest adult conversation on this matter. There are plenty of blogs out there where you can trumpet your views and receive the adulation of the crowd based purely on ideology. Here, this forum concerns the law. Please respect the law.

    As for misconstruing what you may or may not have said, the point I make concerning machines and components is valid. The examples I gave (rivets, tires and bullets) are examples you attempted to differentiate from software. I defeated that attemped differentiation. I do not seek to put words in your moouth so much as have you acknowledge the valid point made. Your inability or unwillingness to acknowledge such points only diminishes your credibility.

    Your statement of “when the law is wrong” has already been addressed: you are using a logical fallacy of a circular argument. Yet another point made that you refuse to acknowledge. These are the types of things that I have attempted to appeal to your logical side, and the fact that you refuse to acknowledge that logic is damning to your position, showing only that you are caught up in a desired end result, and you fail to see that cannot ‘get there from here’ (as my Bostonian friends would say).

    You say that I lack understanding of what mathematics is, but you have presented NO points to back this up – other then the tired and mistaken dogma that you mouth. I have shown you and made points of law otherwise. For you to hold that such is expressly removed from the field of patents, you need more – so very much more. A first step for you is to recognize your limitations. A second step would be for you to not evade the points I have made, but to understand them and to understand why the points I have made control. Until you realize these things, you can (and likely will) only spout dogma and miss the logic that what you do actually hurts the cause you believe in.

  29. As any electrical engineer knows and software developer should know, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. Software is just a method of converting a general purpose electronic circuit (computer) into an application specific electronic circuit. If software is not patentable it leads to absurd results. For instance, if I design a pacemaker using logic circuits, it is patentable. However, if I use a microcontroller to do the exact same thing, it is not patentable.
    Software per se is not patentable. Executed software is just a way of wiring an electronic circuit. Electronic circuits have objective results, are a creation of man and therefore an invention. There is no logical reason to distinguish between software-implemented inventions and other inventions.

  30. Ron-

    LOL. You shake your head in amazement. That is a good one. Of course, anyone that knows anything about math knows that arbitrarily interpreting results into a single number is not math. The alphabet can be interpreted into a single number, but does that mean that language is math? How about a novel? Is a novel math? Let’s say A = 1, B = 2, C = 3 and so on. So under your ABSURD attempt to demonstrate that software is math you must be saying that everything is math.

    You also say: “NO professional software developer, programmer, analyst, etc., actually practising in the field and developing real software for real use, EVER even looks at a patent …”

    The fact that you ignorantly and gleefully admit to engaging in reckless business activity is precious!

    As far as the patent system being a threat to innovation, why not take a look at the definition of innovation. To innovate means to do something new. If you are infringing you aren’t doing anything new. You are merely re-doing what has already been done, which is not innovation.

    Thanks for the laugh though, and based on your ridiculous statement the implicit admission that you cannot reduce a simple set of code or solve it with a number that represents reality as opposed to a contrived, arbitrary association.

    -Gene

  31. Mark-

    You say: “The maths simply describes the process.”

    Precisely. That is what I have been saying. Math is descriptive. On the other hand, software is directive. Software does not describe, it tells a machine what to do, when to do it, how to do it, etc. Math does not tell a machine what to do, when to do it, how to do it, etc.

    Your argument supports my position and completely undermines your own position. Thank you!

    -Gene

  32. MZ-

    Oh yes… the old correlation is not causation dodge! Thank you!

    Those who have no facts to back up their own position merely dismiss 100% of the facts that do exist arguing that correlation is not causation. They dismiss volumes of factual evidence and history and then say… see… you have no proof once I ignore all your evidence. LOL. Comical.

    The evidence is clear. You can ignore it if you like, but you have nothing to offer. Overwhelming evidence in the fact of no evidence is just that… overwhelming.

    I also love how you and others ignore facts, figures, financial reality and history and instead rely on thought experiments by academics. That is precious! The surreal is your evidence and the objective reality is unreliable. LOL.

    -Gene

  33. przemoll-

    Do you really understand anything about computers or programming?

    You say: “PHP on the other hand is programming language. And it can only express mathematical algorithms.”

    Why not explain for us what this means:

    < ?php if(function_exists('the_views')) { the_views(); } ?>

    What mathematical algorithm is at work here? None, of course. All this tells the page is to fetch the number of views if that module is installed. It provides a direction! Software is directive. Math is descriptive.

    It is amazing that so many self-proclaimed computer experts and programmers here don’t even understand the basics about what the code is that they write. No wonder software never operates properly. You and others don’t even understand what the lines of code you write are doing. LOL.

    -Gene

  34. @33: Nice one but you know that one statement there is just part of an algorithm not a directive at all.

    A computer can only do calculations and that statement is just more readable for humans than what the compiler or interpreter makes of it. But that end result from the compiler or interpreter is just an algorithm that the computer processes. And since the two are equivalant your example is an algorithm, not a direction. People direct computers to process algoritms, through whatever input you like, wether over the network or from the mouse, touchscreen or keyboard. It is people that direct the computer. One of the directions you can give is to load an algorithm to process when certain input is received. At least one algorithm (to load a program) is hardwired into each computer to boot it. The input (direction) of the user is translated by hardware in to electrical signals that we can represent by numbers and that the computer can only perform math on. The output of that math can be more directions depending on the input given to the previous algorithm or simply displayed on a screen waitign for a user to give the computer a new directive.

    Saying is a directive is misleading, it is not. It is a step in an algorithm. It just does not appear this way, because of the high level that you represent it at here.

    ” You and others don’t even understand what the lines of code you write are doing.”
    The lines of code do nothing by themselves ;-) But I know what the computer does when I direct it to perform the steps in the algorithm (the program).

    maybe you are confusing direction with instruction? Instruction teaches you (an algorithm), direction tells you to do something (with it). The stored program computer concept allows you to store data and instructions in memory, not directives.

    And software is nothing more than the expression of an idea, not an invention. Computers take input which is feeded to the computer as ‘numbers’ based on this input it wil execute a stored algorithm that outputs ‘numbers’, various output devices can interpret these numbers and ‘display’ them accordingly. Thus any idea you have that takes input from an existing input device and turns it into output for an existing output device does not need invention; it needs an algorithm that will take the input and transform it into the intended output. More than one algorithm can often do that, but they need to be discovered, not invented. Some of these algorithms may be more efficient than others. Finding efficient ones is a skill / art, but when you find the algorithm (yes find, not invent) all you have is a set of calculations that take the input from your idea and output it according to your idea. So software should be (and is) protected by copyrights, but patents have no bussiness being applied to software.

  35. Obviously Gene, the code is doing ‘math.’

    The fact that is “doing” something and that ‘thing’ – be it the process or the tool – is expressly what is meant to be protected under patent law is what seems so un-obvious to them.

    The most frightening thing is the abdication of logic for a passionate ideology. That, and the inabillity to recognize the rules in play for a system – the legal system.

  36. What happened to Judge Lourie?

    Maybe this ….
    (copied from http://www.ipwatchdog.com/2013/05/16/are-robots-patent-eligible/id=40430/#comment-888886 )

    35 USC 101 ends with a period.

    It says machine, process, manufacture, composition, PERIOD.

    The Alice (v. CLS) in wonderland per curium says ignore the PERIOD and add on a new further test.

    That is judicial activism pure and simple.

    The other option I can think of is that the CAFC intentionally orchestrated this 5-5 split so that the SCt. can Bee-itch slap down the CLS v. Alice decision and say no, there is no 2nd step test. If it’s a machine it is a machine. PERIOD.

    The new test is this:

    Because we are assessing judicially created exceptions
    to a broad statutory grant, one of the principles that must
    guide our inquiry is that judge-made exceptions to properly
    enacted statutes are to be narrowly construed. … Accordingly,
    the basic steps in a patent-eligibility analysis can be summarized as follows.

    [1] We must first ask
    whether the claimed invention is
    a process, machine, manufacture, or composition of matter.
    If not, the claim is ineligible under § 101. If the invention falls within one
    of the statutory categories, WE MUST THEN ….

    [2] determine whether any of the three judicial exceptions nonetheless
    bars such a claim—is the claim draw_wwwwwww_n to a patent ineligible
    law of nature, natural phenomenon, or abstract
    idea?
    If so, the claim is not patent eligible.
    Only claims that pass BOTH inquiries satisfy § 101.

  37. @ Dale Halling

    As any electrical engineer knows and software developer should know, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. Software is just a method of converting a general purpose electronic circuit (computer) into an application specific electronic circuit. If software is not patentable it leads to absurd results. For instance, if I design a pacemaker using logic circuits, it is patentable. However, if I use a microcontroller to do the exact same thing, it is not patentable.

    Not absurd – just logical. As a matter of fact, the microcontroller itself doesn’t do anything – it is the peripheral device – that converts symbols into a designated physical action or converts a designated physical measurement into symbols. That peripheral device is patentable.

    Using a programmable microcontroller introduces failure modes that don’t exist in the device implemented with digital circuitry. Things like hacking it and changing the programming… Now that doesn’t say it isn’t beneficial to be able to do that, just that there are additional failure modes introduced by doing so.

    Software per se is not patentable. Executed software is just a way of wiring an electronic circuit. Electronic circuits have objective results, are a creation of man and therefore an invention. There is no logical reason to distinguish between software-implemented inventions and other inventions.

    Remove the “per se” and you would be right. Your second sentence is not valid though.

    Executed software does not change any wiring whatsoever. It has been labeled a “legal fiction” which is not true. The same exact wiring exists whether the software is loaded/executing or not. And there is a logical reason to distinguish between “software-implemented inventions” and other inventions. A “software-implemented invention” is not a property of matter, or transformation of matter, and thus not patentable.

    Note, I am trying to say the microcontroller + peripherals are patentable. I firmly believe they are, just not the software.

    There is also the fact that mathematics is excluded from being a patentable subject.

  38. @Anon:

    My sentence on “maths” was far more than just about syntax. Are you being obtuse on purpose?

    Your sentence on “maths” didn’t make any sense.

    The fact that is “doing” something and that ‘thing’ – be it the process or the tool – is expressly what is meant to be protected under patent law is what seems so un-obvious to them.

    This is also very unclear. I suspect there might be a typo (an extra pronoun somewhere, maybe).

    @Gene:

    You also say: “NO professional software developer, programmer, analyst, etc., actually practising in the field and developing real software for real use, EVER even looks at a patent …”

    The fact that you ignorantly and gleefully admit to engaging in reckless business activity is precious!

    How exactly is not looking at a software patent “reckless”? Do you have even a rough idea of how many software patents exist, or the rough complexity of most software? What would you consider a responsible approach? Hiring a large quantity of patent lawyers to spend all their time analyzing a large codebase and the output of the USPTO, hoping they can somehow keep up and discover every possible way you could be sued?

    LOL. You shake your head in amazement. That is a good one. Of course, anyone that knows anything about math knows that arbitrarily interpreting results into a single number is not math.

    Then why did you include doing just that in your challenge?

  39. “[2] determine whether any of the three judicial exceptions nonetheless
    bars such a claim—is the claim draw_wwwwwww_n to a patent ineligible
    law of nature, natural phenomenon, or abstract
    idea? If so, the claim is not patent eligible.

    Only claims that pass BOTH inquiries satisfy § 101”

    Step Back:

    Of course, the above is just a summary of step 2.
    In fact, based on Lourie’s concurrence, step [2] requires a multifactor analysis requiring several “balancing tests” including:

    [A] The How Abstract Balancing Test

    “With the pertinent abstract idea identified, the balance of the claim can be evaluated to
    determine whether it contains additional substantive limitations that narrow, confine, or otherwise tie down the claim so that, in practical terms, it does not cover the full abstract idea itself.”

    [B] The How Much Human Contribution Balancing Test

    “Accordingly, an “inventive concept” under § 101—in contrast to whatever
    fundamental concept is also represented in the claim—must be “a product of human ingenuity.”

    “In addition, that human contribution must represent more than a trivial appendix to the underlying abstract idea.”

    [C] The Meaningful Limitation Balancing Test

    “For example, the ‘administering’ and ‘determining’ steps in Mayo might have appeared to be concrete limitations representing true human contributions to the claimed methods; it is difficult to see how giving a particular man-made drug to a patient or drawing and testing blood could be considered purely abstract or preordained. Yet the Court held that those steps failed to render the claims patent eligible because, as a practical matter, they were necessary to every practical use of what it found to be a natural law and therefore were not truly limiting.”

    I agree with you. Lourie’s concurring opinion is plain and simple judicial activism. There is no way that any type of rational reading of Section 101 could be interpreted to mean you must conduct step [2], much less tests [A], [B] and [C] I have listed above.

  40. Mark G,

    Thank you for the additional analysis.

    Let’s take it one step further because, whatever the new (and judicially-activated) law is as a result of Alice, the US Patent Office has to implement it within the confines of administrative agency law.

    So how exactly will the USPTO implement all these subjective balancing and abstracting steps without violating the statutory prohibition (see 5 USC 706) against arbitrary and capricious decision making by a federal agency?

    Answer: They can’t.

  41. any answer to my questions Gene?

  42. “So how exactly will the USPTO implement all these subjective balancing and abstracting steps without violating the statutory prohibition (see 5 USC 706) against arbitrary and capricious decision making by a federal agency?

    Answer: They can’t”

    Step Back,

    I’m afraid I will have to disagree with you with respect to chemical process claims if not all process claims can, with the right inclination, be interpreted not to meet the requirements of step [2]. So with respect to these type of claims the Patent Office could make a blanket rule that process claims are presumed to be ineligible under Section 101.

    See Humpty Dumpty’s analysis on your own web-site; it could readily be adapted to find nearly any process claim to be patent ineligible.

    That’s just how stupid the Prometheus decision and Lourie’s concurrence in CLS are.

  43. @ MarkG,

    But then again, is Lourie being clever like a fox and saying to to the Supreme Court, Come on guys, overrule me here. Say it can’t be so. That is the real outcome I want. Is that what he is really saying/doing?

  44. Bob-

    You ask:
    “Have you sought expert opinion from leading members of the mathematics community on whether software is a subset of maths?”

    Why would I seek an expert opinion from someone who says software is math? The position that software is math is absurd, as I have clearly, time and time again, over and over explained. Math is descriptive, software is directive. Software tells a machine how to operate. Math does not. Feed a mathematical equation into a machine and you get an answer if and only if it is PROGRAMMED WITH SOFTWARE to give you an answer. Seriously. Software cannot be solved or reduced, so software is not a mathematical equation or algorithm.

    The truth is I don’t disagree with many of the experts who others use as support for their erroneous beliefs. The hard reality is that the people who believe software is math simply don’t understand the positions they are misrepresenting of so-called experts.

    According to E. W. Dijkstra: “The programmer applies mathematical techniques in an environment with an unprecedented potential for complication; this circumstance makes him methodologically very, very conscious of the steps he takes, the notations he introduces etc.”

    This is misunderstood to be saying that software is math. Acknowledging that programmers apply mathematical techniques or logic is not the same as saying software is math. Software applies logic not unfamiliar to mathematics, but the logic is employed to write code that directs operation within a system to achieve a certain desired functionality. Math does not operate to achieve a desired functionality. Math functions to describe an objective reality, not direct a desired outcome. Math is not about choices, it is about solving a problem or coming up with a functional representation of a physical phenomenon.

    You ask: “Perhaps you could do a poll using responses from all/many of the professors of maths and those of computer science. Would you believe these expert opinions if they were to say that software is maths?”

    Why would a subjective opinion be evidence of an objective reality? But to answer your question, no… I wouldn’t accept a poll or group of opinions from those who are objectively wrong and fundamentally misunderstand what software is.

    There is no wonder that software doesn’t operate and needs so many patches and fixes and crashes so often. If programmers think that what they are doing is the same as math they have no idea what it is that they are trying to do. They write code to deliver something, not in search of an objective truth.

    I’m happy to debate anyone on this, even those who arrogantly say they shake their head at me and then can’t provide an intelligent argument. The only stipulation is you must be able to actually debate and not resort to citing others who are not a party to the debate. Of course, that rules virtually everyone out. Those who say software is math are not experts, rather they are first level thinkers who say I am wrong because someone else told them so.

    -Gene

  45. Gene states: “rather they are first level thinkers who say I am wrong because someone else told them so

    That is evident in the inability to provide cogent responses to the points raised. The script of the “don’t patent software” is just too limited and cannot handle the finer points of what intellectual property protection covers.

  46. @Eric

    @7: Gene Quinn
    I understand that you have a strong vested interest in software patents, as anyone whose livelihood depends on them might, That does not mean that your opinion on software not being math has any truth to it. If Donald Knuth, one the foremost computer scientists say software is math who are you to argue? Go and look up his opinions on the subject.

    Everyone seems to ignore the real experts in software. They just don’t want to learn anything about mathematics.

    You asked dabble53 to “solve the IPWatchdog.com homepage.” Any one with actual knowlede of software would know that a web browser does solve IPWatchdog.com homepage in terms of the halting problem. If you don’t understand this then you opinions on software are as uninformed as mine are on law.

    I offered that as a solution, but was ignored.

    I would even go so far as to offer a gif solution, PDF/Postscript solution, a dump of the image, or even a PDF/Postscript dump :)…

    Of course all are just numbers… thus are abstract results.

  47. @Gene:

    Software cannot be solved or reduced, so software is not a mathematical equation or algorithm.

    Unless you have a very unusual definition of solving or reducing, that is not a good definition of math. The fraction 1/2 cannot be reduced or solved, but it is mathematical.

    Your suggestion that software is not an algorithm makes me wonder whether you know what an algorithm is. I can’t think of a way to come to that conclusion that doesn’t involve misunderstanding what software or algorithms are.

    Acknowledging that programmers apply mathematical techniques or logic is not the same as saying software is math.

    Your statement is true, but irrelevant. That is not what people saying software is math are saying.

    Math is not about choices,

    Choices are a frequent concept in combinatorics and game theory, and, of course, choices show up a lot in algorithms.

  48. “But then again, is Lourie being clever like a fox and saying to to the Supreme Court, Come on guys, overrule me here. Say it can’t be so. That is the real outcome I want. Is that what he is really saying/doing?”

    I’m afraid I don’t think so. If Lourie meant to send a message to the Supreme Court, he could have taken a page from Montana Supreme Court Justice James C. Nelson’s dissent in Western Tradition Partnership:

    “While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the [U.S.] Supreme Court’s decision,” wrote Justice James C. Nelson, in his dissent. “And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield enormous power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins: the transition is seamless and overlapping.”

    http://www.alternet.org/story/153623/montana_high_court_says_%27citizens_united%27_does_not_apply_in_big_sky_state

    Full decision:

    http://electionlawblog.org/wp-content/uploads/MT-expenditures-decision.pdf

    Lourie could have called the Supreme Court out for their terrible decision in Prometheus, and explain how their decision could effectively be used by Examiners to find nearly any process to be patent ineligible and would cause attorneys to raise Section 101 issues in virtually all future cases. Then, he could have said, similar to what Justice Nelson did, he then could have said he had to follow the stupid Prometheus decision, because, no matter how illogical it is and despite what potential chaos it creates, it is a Supreme Court decision and therefore is the law of the land even if it guts part of Section 101.

  49. Gene,

    If I wanted to know about some aspect of law I would seek the advice of a lawyer – an expert in the field.
    If I wanted to know how to fix my car I’d seek a mechanic – an expert in the field.

    You aren’t, as far as I am aware an expert in maths… I believe, if my memory serves me, you are qualified in electrical engineering and law. So I’d be happy to ask you questions in both those fields and believe that you were qualified to answer as an expert.

    If you have not sought expert opinion about maths (for anon, math == maths, it is a truncation of the word mathematics) and have not provided any references (urls or books saying what you say would be handy) then you have no evidence that what you say is correct and you are not, imho, behaving properly as one who is qualified in law. I see nothing but rhetoric.

    What evidence do you have that aren’t your own words? I tend not to rely on one source where possible, especially one that doesn’t appear to be qualified in the field.

    And you haven’t answered my question about the games industry.

    Cheers.

  50. Gene,

    You quote Djikstra and say that the quote is misunderstood. What evidence can you show that your interpretation is correct? Have you asked Djikstra?

    The quote doesn’t say that software is maths just as much as it does say software is maths.

  51. @Gene
    Just a short note that really shows you don’t understand software..

    Software cannot be solved or reduced, so software is not a mathematical equation or algorithm.

    The technique is called “refactoring”, and just like “algebraic factoring” done to remove extraneous factors from an equation, it is used to remove redundant expressions from software.

    It is only ONE of the many mathematical methods used to develop or improve software.

  52. @Gene

    Why would a subjective opinion be evidence of an objective reality? But to answer your question, no… I wouldn’t accept a poll or group of opinions from those who are objectively wrong and fundamentally misunderstand what software is.

    That would be the same as saying “Why should I take the opinion of lawyers about law who are objectively wrong about law and fundamentally misunderstand what law is.”

    Sounds really stupid doesn’t it.

    There is no wonder that software doesn’t operate and needs so many patches and fixes and crashes so often. If programmers think that what they are doing is the same as math they have no idea what it is that they are trying to do. They write code to deliver something, not in search of an objective truth.

    No it is not. The software, to be completely evaluated by programmers requires two phases.

    1) discover a solution to a given problem.
    2) prove the solution meets the given problem.

    They do the first phase. However, they are not given the time to do the second. And the time to do the second is much much longer than it is to do the first phase. Many approaches are done to try and reduce the complexity of the second phase. Things like “assertions” which introduce tests that are done to verify that assumptions made about data validity are true. These are mathematical steps to cross check partial solutions to the problem.

    Unfortunately, the developer has to recognize the right placement, AND the right assertion for the tests. Performing the tests also takes time… and most programmers get directed to remove these “tests” because they slow the solution down too much.

    There has also been a lot of analysis give to “theorem solvers”, which are automatic ways of doing this. Unfortunately, this has been shown to be nearly unsolvable at this time. It has been done, unfortunately the approach seems to work only for trivial sized units (on the order a thousand lines, anything over that takes too long). Theoretical studies continue on this subject.

    “Crashes” are violations of the underlying mathematical principles of the processor. These can be considered assertion points that have been made in the implementation of the processor, and the “crash” is just the reporting of the violation of the mathematics the processor is based on.

    “Patches” (when they are correct) are software changes that replace incorrect mathematical expressions for expressions that are correct. Sometimes the correction allows the computation to continue until another invalid expression causes another crash. Patches (when they are incorrect) can introduce additional crashes by causing additional violations of the mathematics the processor is based on.

    Incorrect results are slightly different – These are violations of the original problem. Sometimes these are caused by misunderstanding the problem. Sometimes they are caused by changing the problem in the middle of development (sometimes called “feature creep”, or incomplete problem description). Happens to mathematicians all the time. It is how they learn more about the problem they are trying to solve.

  53. @Gene

    You also say: “NO professional software developer, programmer, analyst, etc., actually practising in the field and developing real software for real use, EVER even looks at a patent …”

    The fact that you ignorantly and gleefully admit to engaging in reckless business activity is precious!

    Not our choice – The company legal department tells us to not read patents. If you DO read patents then you are subject to triple damage if you lose the lawsuit. If you DON’T read patents you are not. Thus, a very STRONG recommendation (and could even cost you your job if you don’t obey) to not read patents.

    Next is the fact that patents are supposed to allow “one skilled in the art to reproduce” the invention. Yet, most (all?) current patents are written in legalese, and not the language of the art. Doing this removes the precision of description that the language of the art provides. Yes, this does make it harder on the patent office to determine validity – it means they need experts in the field to evaluate a patent application… But isn’t that their job?

  54. @gene

    If software is a manifestation of math then please solve the IPWatchdog.com homepage. If it is math you will be able to either reduce the code to a single line while the page will still display properly, or you will be able to provide a number that equals the IPWatchdog.com homepage.

    No problem. My browser dumps an image – I can give you the result as a single number. Will you accept the series of hex digits?

    It is rather long.

  55. My sixth sense kicks in and I am compelled to channel Cole Sear:

    I see abstractions.

  56. @Jesse:

    This is just ridiculous. You never answered my question to you of what is math? And, if you take a step back, you will see that these are instructions for a machine. A machine is sitting there doing something useful. That is not math in any pure sense. If you want to say that a computer performing a method is math, then is a thinking brain math? The answer—NOW THINK ABOUT THIS—must be yes. You want to start yapping about biological vs. electronics, but if you take some time to educate yourself about information theory you are going to realize that a computer is representing information and transforming that information just as a brain does. There can be no intellectual honest distinction.

    Really, Jesse, the problem is with your brain. Your views are those of the 1950′s that were not yet educated on information theory. There was this category of this is maths and that is electronics. Guess what? All the modern universities in the world merged computer science, cognitive science, and electronics. They have all realized these are so inter related that they cannot be distinguished.

    Your attitude is like a caveman. That has a number. It is math. Information processing is what humans do. Transforming information takes time, energy, and space. How it is done is a big deal. The laws of physics apply to transforming information. It is without question as important a field of study as any field humans have ever studied. It will probably eclipse all other fields within 100 years.

    I am sorry your brain is so primitive that you don’t get this. Just ask yourself: a machine that is capable of doing any task a human can and you say that what controls it is maths? How does that make sense? How? What does that even mean Jesse? What is the point of that category you have invented? Just shear and complete nonsense.

  57. @Jesse:

    This is just ridiculous. You never answered my question to you of what is math?

    For a short definition:
    mathematics [?mæ???mæt?ks ?mæ??mæt-]
    n
    1. (Mathematics) (functioning as singular) a group of related sciences, including algebra, geometry, and calculus, concerned with the study of number, quantity, shape, and space and their interrelationships by using a specialized notation
    2. (Mathematics) (functioning as singular or plural) mathematical operations and processes involved in the solution of a problem or study of some scientific field

    For something you are more complete, go visit a mathematics department.

    And, if you take a step back, you will see that these are instructions for a machine. A machine is sitting there doing something useful. That is not math in any pure sense. If you want to say that a computer performing a method is math, then is a thinking brain math? The answer—NOW THINK ABOUT THIS—must be yes.

    Ummmm – no one knows yet. It is VERY possible that mathematics is just a subset of a thinking brain. But no proof either way exists.

    You want to start yapping about biological vs. electronics, but if you take some time to educate yourself about information theory you are going to realize that a computer is representing information and transforming that information just as a brain does. There can be no intellectual honest distinction.

    No, I don’t see that – a digital computer (the hardware) is just emulating boolean algebra operations in a VERY restrictive range of the physical capabilities of the electronics. As was noted in some reading (outside this blog), a very simple boolean expression

    A = NOT A

    Has some very peculiar results when implemented in electronics, depending entirely on the technology used in implementing digital circuits.

    The obvious result of the implementation should be a repeating sequence of TFTFTF (or if you prefer 0101010101…).

    Unfortunately, that doesn’t necessarily work. Field effect transistors don’t do that. The resulting voltage level (between a 0. something for boolean 0, and 0.9 for 1) actually is 0.5 – which is neither.

    Second, a mind, running with a brain can make mistakes. A digital computer is very definitely not working when that happens. The mathematics of a digital computer is that it carries out the operations of boolean algebra exactly the same, every time. Electronic engineers attempt to accomplish this, but they can’t, all the time. The electronics is real. The mathematics being emulated is not.

    Really, Jesse, the problem is with your brain. Your views are those of the 1950′s that were not yet educated on information theory. There was this category of this is maths and that is electronics. Guess what? All the modern universities in the world merged computer science, cognitive science, and electronics. They have all realized these are so inter related that they cannot be distinguished.

    No they didn’t. The only meeting is where mathematics is used to describe what they are studying. In the case of digital computers, they meet only in conversing the need to implement a mathematical concept called a universal algorithm, into a construct of boolean algebra, which can then be used to design circuits that emulate the boolean algebra expressions that define the universal algorithm.

    Now, when synergistic merging happens it is between mathematicians attempting to help resolve the mathematical descriptions of problems engineers face.

    Your attitude is like a caveman. That has a number. It is math. Information processing is what humans do. Transforming information takes time, energy, and space. How it is done is a big deal. The laws of physics apply to transforming information. It is without question as important a field of study as any field humans have ever studied. It will probably eclipse all other fields within 100 years.

    I am sorry your brain is so primitive that you don’t get this. Just ask yourself: a machine that is capable of doing any task a human can and you say that what controls it is maths?

    Nope. You have an assumption that is almost certainly not true. You are ASSUMING a human is math. I am not. Human thought is governed by a LOT more than logic.

    How does that make sense? How? What does that even mean Jesse? What is the point of that category you have invented? Just shear and complete nonsense.

    It means you don’t understand the theoretical foundations.

  58. Jesse-

    You say: “The company legal department tells us to not read patents. If you DO read patents then you are subject to triple damage if you lose the lawsuit.”

    Your company should fire the legal department. That is terrible advice.

    Ask them how often triple damages are awarded in patent cases over the last 5 or 10 years.

    -Gene

  59. Jesse-

    So it is your position that providing a solution meets the given problem is math?

    Sounds like that fuzzy, creative kind of math where 1 + 1 might equal 3.

    As anyone who is willing to honestly consider the issues knows, math describes. Software does not describe, it achieves a desired functionality (or tries to do that before it crashes because it wasn’t coded properly).

    -Gene

  60. @Gene

    You say: “The company legal department tells us to not read patents. If you DO read patents then you are subject to triple damage if you lose the lawsuit.”

    Your company should fire the legal department. That is terrible advice.

    I thought so too. But then, I also wanted to work.

    Ask them how often triple damages are awarded in patent cases over the last 5 or 10 years.

    I don’t think that had anything to do with it. The threat of triple damages would change the risk factors for insurance costs. And there is the wasted time trying to wade through all the crap patents – especially the software patents.

    As anyone who is willing to honestly consider the issues knows, math describes. Software does not describe, it achieves a desired functionality (or tries to do that before it crashes because it wasn’t coded properly).

    Software describes, in exactly the same way that adding multi-digit numbers is described for a person to follow to get the correct result for any two multi-digit numbers. As is true for learning any mathematical procedure.

    This is why mathematics is a multi-layered set of abstractions. Carrying out the operations of mathematics is not easy, but it must be done correctly to get a result – whether that is adding two numbers, or resolving a theorem. The result of development is just a description of the steps necessary to accomplish a goal.

  61. for a person to follow

    Computers are machines. They cannot and do not think.

    Is it on purpose that this crucial point is continuously being ignored?

  62. “The wearing down of Judge Lourie fits within a more disturbing trend at the Federal Circuit: a diminishing of patent rights in view of Supreme Court resistance.”

    As you have phrased the issue, Judge Lourie in CLS is merely following the law as set forth by his superior court, as he is bound to do. “Disturbing” is the fact that (again, in your formulation, which I am not sure I buy) that 5 judges failed to follow the “resistance” of the Supreme Court. If you don’t like the Supremes meddling with patent law, lobby Congress to exclude patents from the Supreme Court’s purview — but until then, the Federal Circuit is still an inferior court bound to follow the Supremes, like it or not.

  63. Jesse,

    You’re assuming that searching through patents is hard. Turns out – it’s not hard, there are tools for that. You can get a pretty decent idea of whether your innovation is truly novel within a couple of hours at most. Then you make up your mind whether to pursue further – or you might be surprised and learn more about your innovation that is used to go back to drawing board and improve further.

    By the way, those tools that allow you to search are called “computers” that run something called “software” that allows the user to search large databases. Imagine that – software that follows a non-abstract sequence of instructions that produces a useful result!

  64. @Jodi

    You’re assuming that searching through patents is hard. Turns out – it’s not hard, there are tools for that. You can get a pretty decent idea of whether your innovation is truly novel within a couple of hours at most. Then you make up your mind whether to pursue further – or you might be surprised and learn more about your innovation that is used to go back to drawing board and improve further.

    If the patent were written in the language of the art, yes, it should be easy. But the patents are not written in the language of the art, so it isn’t. So now those skilled in the art have to guess.

    If we count only one hour of time, to search through poorly written patents, not using language of the art, will take approximately two months to eliminate the apparent candidates.

    It may only take 10 minutes to implement.

    And nothing says that the patents identified by an automatic search engine will be the correct set. I have done that – and found that the keywords of the art are not used.

    After that, you find that most of the patents are really stupid.

    Like the “is not” patent. There are several (3,160 results). The first one listed is 20040230959, filed in 2003/4 for BASIC of all things. The prior art goes all the way back to 1958 or so (at a minimum). EVERY programming language uses this, EVERY interpreter uses it.

    It may only take 10 minutes to implement. Thus, searching through the patents wastes more time than just implementing already known art.

    And that makes searching for possible valid patents nearly useless.

    Note – What I am referring to here only applies to software as that is what I know, and have done for years. Searching through other patents for civil engineering, or electronics, mechanics patents may be different. That is not what I’m skilled in, so I can’t judge those.

  65. Why can a training video, which has utility and may be quite novel not be patentable?

    Why can software built only to entertain and using methods obvious to programmers skilled in the art be patentable?

    Does the first person to do ANYTHING useful with ANY novelty deserve a monopoly on that act for X number of years?

    How do to the millions of businesses that operate without patent regimes manage to compete? It appears from the mindset of some that without the monopoly of a patent, no investment is worthwhile to beat a competitor.

    Shouldn’t the difficulty of copying have something to do with a patent? Software is hard to copy if you don’t have the source code- its often not what software does but how it does it that’s important, but that’s why software can be copyrighted.

    Finally, is there any product other than software that can be copyrighted AND patented ? If not, that should tell you that there is something characteristically different about software than other IP ? Is all this scholastic reaching for abstractness or maths merely proxy for some phenomena we all know when we see but we can’t easily define?

  66. but that’s why software can be copyrighted.

    I have pointed out the difference between copyright and patent, Mr. Snyder. Your view here is simply incorrect.

    And yes, there are quite a few things beyond software that can garner more than one type of intellectual property protection.

    ANd as NWPA has mentioned, ALL engineering is based on “abstractions.” Quite in fact, ALL human effort is so.

  67. @ANON


    ANd as NWPA has mentioned, ALL engineering is based on “abstractions.” Quite in fact, ALL human effort is so.

    Just saying “ALL engineering is based on “abstractions.”” doesn’t make it true. It isn’t.

    Engineering the the transformation of abstract concepts into reality.

    Basing it as just abstractions is wrong – it is the TRANSFORMATION of the abstract into reality.

    en·gi·neer·ing
    /?enj??ni(?)riNG/
    Noun

    1 The branch of science and technology concerned with the design, building, and use of engines, machines, and structures.
    2 The work done by, or the occupation of, an engineer.

    You patent the device, not the design.

  68. Too bad there isn’t an edit – sorry about that.

    I meant to say that it “isn’t complete” rather than “isn’t true”.

    Sometimes engineers even create abstractions from something in reality. But converting it back doesn’t necessarily mean the result is patentable.

  69. eba-

    You are quite right. The CAFC is an inferior court.

    Where you are wrong is you believe the 5 judges lead by Judge Lourie adhered to the requirements of the Supreme Court. As I explained in a different article they did not. In fact, they quite clearly ignored the rulings of the Supreme Court in previous cases.

    See: http://www.ipwatchdog.com/2013/05/13/did-the-federal-circuit-ignore-the-supreme-court-in-cls-bank/id=40267/

    -Gene

  70. Gene –

    As I said, I am not convinced Lourie follows Supreme Court precedent here. That is a question only the Supremes can answer while the rest of us kibitz. I was responding to this article’s last paragraph, which calls for the Fed Cir to actively ignore the Supreme Court on patent law because the Supreme Court is interfering and encroaching on patent law. This is a more and more mainstream opinion within the patent law community (especially among prosecutors, in my experience), and, to me, is a dangerous opinion to hold — akin to those who believe in state nullification. The Supreme Court gets the final word on what existing patent law means, and it’s up to Congress, not the Federal Circuit, to “overturn” them.

  71. przemoli said:

    Shame on you for such lies:

    “What is your proof? You have the burden of proof since all objective evidence suggests otherwise. ”

    EU do not have patent on software, and we do not die out of starvation in IT sector here. In fact one can not see much difference between how IT advances in EU and in US.

    Then why do so little major companies come out of Europe when compared to the U.S.? Just in the last 50years there are hundreds if not thousands that Europeans all use (Xerox, Kodak, Apple, Google, Facebook, VeriSign, Qualcomm, Twitter, Amazon, ……………)

  72. martin snyder said:

    Shouldn’t the difficulty of copying have something to do with a patent? Software is hard to copy if you don’t have the source code- its often not what software does but how it does it that’s important, but that’s why software can be copyrighted.

    If anything, software is a lot easier to copy than just about anything physical. It’s just bits after all. But even if the copier doesn’t want to do that, they can always reverse it and pull out the parts they want.

    When an innovator comes up with something new, it’s rarely the ENTIRE program that the copier wants to copy, but rather some small 2,3, 4 steps done differently that are the difference. And those 2,3,4 steps were what the innovator spent all their time perfecting down to something so simple.

  73. rsteinmetz70112

    There is very little evidence that the software industry will be harmed by the loss of patents.

    Tell that to Xerox in the 70′s after the FTC ordered them to provide licenses to their competitors (mostly Japanese). Revenues were reduced from over 80% to under 15% – despite Xerox creating the product categories AND continuous innovations in them.

    Software is no different. Folks behind Netscape largely created the web and were squashed by a large competitor (Microsoft) once they decided to move in. Guess what, Netscape had no patent protection. Was is right that Netscape was squashed? …maybe that’s not a valid question – maybe the question should be – what smart investor AFTER having seen the destruction of Netscape would invest in the next similar company WITHOUT some kind of protection on the innovation the investor invested in?

    Innovation requires investment.

  74. @Jodi

    rsteinmetz70112

    There is very little evidence that the software industry will be harmed by the loss of patents.

    Tell that to Xerox in the 70′s after the FTC ordered them to provide licenses to their competitors (mostly Japanese). Revenues were reduced from over 80% to under 15% – despite Xerox creating the product categories AND continuous innovations in them.

    Software is no different. Folks behind Netscape largely created the web and were squashed by a large competitor (Microsoft) once they decided to move in. Guess what, Netscape had no patent protection. Was is right that Netscape was squashed? …maybe that’s not a valid question – maybe the question should be – what smart investor AFTER having seen the destruction of Netscape would invest in the next similar company WITHOUT some kind of protection on the innovation the investor invested in?

    Innovation requires investment.

    Patents wouldn’t have helped. MS didn’t use patents either.

    MS made a contract with Spyglass, then violated it in spirit putting Spyglass out of business. MS then made it impossible for Netscape by “embedding” IE in the system. It was, and still is, impossible to remove. In addition, MS made IE nonstandard, then made their tools produce nonstandard documents (and still do for that matter, though they have only recently gotten better about it).

    Innovation requires the freedom to innovate. Software patents do not help innovators.

  75. Innovation requires the freedom to innovate. Software patents do not help innovators.

    Copying is not innovation.

  76. Jesse you are right.
    Patents help “inventors”, not “inNO-vators”.

  77. “InNO-vation” includes the act of taking someone elses’s invention, pretending it was yours first & innovatively selling it to the public that way.

  78. Patenting the trivial and obvious is not valid.

    Patenting abstract ideas is not valid either.

    Patenting mathematics prevents people from using abstract ideas to evaluate other ideas.

    Thus the loss of freedom to have new ideas.

    Too bad you are not allowed to think.

  79. @Anon

    have monopolized entry

    easy choice – pay for what someone else invented or innovate around it.

    Not allowed – remember the patent is on the abstract concept, not a real thing. And all mathematical expressions of the same concept are equivalent – it is an identity. And using mathematical concepts is how mathematicians discover new concepts.

    http://www.bandacorp.com/blog/what-is-not-patentable/

    specifically: “Mental Processes and Mathematical Algorithms or formulas” and “while you can patent a machine, you can not obtain a patent simply for the idea of some machine.”

    And software, and the instruction cycle are part of mathematics.

    And “monopolized entry” has nothing to do with patents. It had to do with illegal exclusive contracts that were FINALLY voided.

  80. jesse,

    Your posts are merely recycling garbage now.

    To wit:

    jesse: Patenting the trivial and obvious is not valid.
    response: no one is arguing otherwise

    jesse: Patenting abstract ideas is not valid either.
    response: no one is arguing otherwise. What is being ignored by you is that there are different definitions of “abstract.” Just as there are different definitions of algorithm. See Benson for how constrained the use of “algorithm’ was in that case. You continue to disrespect the basics of law based on your perception of the legal result, quite missing your ignorance. It is simply not logical for you to proceed in this manner. You are merely repeating your argument as a conclusion, all the while ignoring the points (legal points) that point out the fallacy of your argument.

    jesse: Patenting mathematics prevents people from using abstract ideas to evaluate other ideas.
    response: See Diehr. You are failing to see the logical difference between patenting use of an item and patenting the underlying item. No one is patenting the language of software. What is being patented is the use of software. This distinction has been clearly made – and you continue to ignore it. Just as you (purposefully?) are being obtuse with an electron – obviously not patentable – and the configuration of many electrons – possibly patentable, and most likely patent eligible.

    jesse: Thus the loss of freedom to have new ideas.
    response: there is no “thus” as your argument fails in the first instance. Quite in fact, the freedom to have new ideas is the direct result of the patent system wherein you are spurred to pay for someone else’s inventiveness or you are forced to be inventive yourself. Necessity is the mother of invention.

    jesse: Too bad you are not allowed to think.
    response: Too bad you continue to choose NOT to think.

    As to your comment 79 – you need to understand the ladder of abstraction – and that the legal term of abstract does not cover all rungs but the bottom rung of that ladder. If that were so, that logic would prevent all patents on every subject. Remember – your ‘logic’ must be applicable across the spectrum of the useful arts, as that is how the law is written. You seek a categorical exclusion and ignore the fact that the very Supreme Court you indicated as determining what the law means has in fact spoken on this and spoken against your viewpoint. You preach one thing, but when it is shown to work against your desired end result, you choose to ignore it. That is simply not logical.

    Your last statement of post 79 – I cannot figure out what you are referring to.

  81. @ANON

    jesse,

    Your posts are merely recycling garbage now.

    Yours is just illogical.

    To wit:

    jesse: Patenting the trivial and obvious is not valid.
    response: no one is arguing otherwise

    jesse: Patenting abstract ideas is not valid either.
    response: no one is arguing otherwise. What is being ignored by you is that there are different definitions of “abstract.” Just as there are different definitions of algorithm.

    As soon as a mathematical algorithm is patented, then it doesn’t matter – Mathematics is specifically excluded. And mathematical algorithms are part of mathematics.

    See Benson for how constrained the use of “algorithm’ was in that case. You continue to disrespect the basics of law based on your perception of the legal result, quite missing your ignorance. It is simply not logical for you to proceed in this manner. You are merely repeating your argument as a conclusion, all the while ignoring the points (legal points) that point out the fallacy of your argument.

    The “legal arguments” are not logical.

    jesse: Patenting mathematics prevents people from using abstract ideas to evaluate other ideas.
    response: See Diehr. You are failing to see the logical difference between patenting use of an item and patenting the underlying item. No one is patenting the language of software. What is being patented is the use of software.

    There is no difference. If I cannot use software, then the language of mathematics is not available to me.

    This distinction has been clearly made – and you continue to ignore it. Just as you (purposefully?) are being obtuse with an electron – obviously not patentable – and the configuration of many electrons – possibly patentable, and most likely patent eligible.

    I just have a very strong sense of logic. The configuration of “many electrons” is a requirement of natural law when that “many electrons” (plus a WHOLE lot of atoms) is attempting to model an abstract concept. The “arrangement” may be patented. I have never said differently. But I have never said that abstract concepts expressed (whether it be in electron flow in conductors or ink on paper) may be patented.

    jesse: Thus the loss of freedom to have new ideas.
    response: there is no “thus” as your argument fails in the first instance. Quite in fact, the freedom to have new ideas is the direct result of the patent system wherein you are spurred to pay for someone else’s inventiveness or you are forced to be inventive yourself. Necessity is the mother of invention.

    There you go again, confusing patents again. A patent issued for a device can be perfectly valid. A patent for abstract mathematical expression is not.

    jesse: Too bad you are not allowed to think.
    response: Too bad you continue to choose NOT to think.

    Oh, I think. I’m just not sure you do.

    As to your comment 79 – you need to understand the ladder of abstraction – and that the legal term of abstract does not cover all rungs but the bottom rung of that ladder. If that were so, that logic would prevent all patents on every subject. Remember – your ‘logic’ must be applicable across the spectrum of the useful arts, as that is how the law is written. You seek a categorical exclusion and ignore the fact that the very Supreme Court you indicated as determining what the law means has in fact spoken on this and spoken against your viewpoint. You preach one thing, but when it is shown to work against your desired end result, you choose to ignore it. That is simply not logical.

    What is NOT patentable: http://www.bandacorp.com/blog/what-is-not-patentable/

    The Supreme Court has stated that anything under the sun that is made by humans with the exception of; laws of nature, natural phenomena, abstract ideas, and humans themselves, fall within the patentable realm. So, what does that specifically exclude?
    Mental Processes and Mathematical Algorithms or formulas

    A purely mental process is not patentable. A process claim reciting an algorithm or abstract idea is patentable only if it is embodied in, operates on, transforms, or otherwise involves another class of statutory subject matter, i.e., a machine, manufacture, or composition of matter. Mental processes standing alone are not patentable, even if they have a real world application.

    Do you see the part about “Mathematical Algorithms or formulas” ?
    Do you see the part about “abstract idea is patentable only if it is embodied in, operates on, transforms, or otherwise involves another class of statutory subject matter”

    Software does none of these things. Computation cannot.

    Now, devices that translate between the abstract and “embodied in, operates on, transforms, or otherwise involves another class of statutory subject matter” are called peripherals.

    Software is not one of these things either.

    Software is nothing but the expression of mathematical algorithms.

    Your last statement of post 79 – I cannot figure out what you are referring to.

    You must have overlooked the Microsoft anti-trust lawsuits.

  82. You must have overlooked the Microsoft anti-trust lawsuits.

    You must have forgotten to post a cognitive link between the same.

  83. Your response above, merely labeling my point of law as “illogical” is itself illogical, as you have ignored the system that you are talking about. Hence, my allusion to you being in a different universe.

  84. hen the language of mathematics is not available to me.

    Sure it is – just in a different innovative matter that you must develop – that is rather the entire point of the carrot and stick system.

    That you continue to fail to see this is illogical.

  85. There you go again, confusing patents again

    Coming from someone only too willing to ignore the law, this statement is not logical.

  86. Software is nothing but the…

    Factually and legally false.

    Software is a creation of man for man with both expressive and utilitarian aspects.

    It is a machine component.

  87. Do you seriously (and logically) wish me to place credence with a webpage? Have checked out the “about us” of the link you provided? All you are doing is parroting the mantra – without thinking.

    Thank you for proving my point.

  88. jesse,

    Your bandacorp link lists information that is not only incomplete (exceptions to the printed matter doctrine), but flat out wrong (machine or transformation doctrine).

    It’s as if you are trying very hard not only NOT to be taken seriously, but by (what I can either assume to be willful ignorance) attempting to post points of invalid law.

    One last possibility: you see that your position is hopelessly lost and simply are now in a full-trolling mode. Address the points before in an intellectually honest manner please, if you want to have an actual conversation. If you just want to get on your soapbox and preach false law from another universe, I would ask that you use a different forum.

  89. @Anon

    There you go again, confusing patents again

    Coming from someone only too willing to ignore the law, this statement is not logical.

    I never said patents are useless. You attribute that to me, but that is not what I said.

    Software patents are useless, as well as invalid, being patents issued on a field not permitted to be patented.

    So you are confusing patents on physical devices with patents on abstract fields not permitted to be patented.

  90. @Anon

    Software is nothing but the…

    Factually and legally false.

    Software is a creation of man for man with both expressive and utilitarian aspects.

    It is a machine component.

    No.. it isn’t. As part of mathematics it is discovered. It is expressive though.

  91. jesse,

    You cannot have it both ways – it is either a creation of man deserving protection or it is not.

    If you are OK with copyright, you MUST be OK with patents.

    It is all or nothing, as copyright and patent merely protect different things (expressiveness versus utility), but it is man’s handiwork that is being protected.

  92. And you have not addressed the argument of a machine component with anything other than your word.

    That is simply not good enough.

  93. @Anon

    And you have not addressed the argument of a machine component with anything other than your word.

    It is not a “component” of a machine, as the only “machine” it can be a component of is the instruction cycle, and that is an abstract mathematical concept.

    A very light overview: https://en.wikipedia.org/wiki/Abstract_state_machines

    All the more complete documents are entire text books.

  94. Very easy to talk past one another
    In Europe, “software as such” is not patentable by statute & apparently there have been court decisions on what “as such” means.

    In USA there is no such statute. Some PTo Boards of Appeal have ruled that “software per se” is not patentable but have not explained what constitutes “per se”, what does not & why the “per se” kind is not patentable.

    Finally, the word “software” is a Humpty Dumpty one; have secret meaning for each speaker; meaning whatever they choose it to mean. Thus communication fails.

  95. step back,

    It is even easier when the anti-software side turns a blind eye to the legal world and the meanings established there.

    Easier, but simply not logical.

  96. @Jesse: It is not a “component” of a machine, as the only “machine” it can be a component of is the instruction cycle, and that is an abstract mathematical concept.

    It is pointless to have a discussion with you Jesse. You don’t care what people say you just jump back to it is all abstract. You cannot and don’t address the substance of our arguments. And, the funny thing is that you aren’t even using the arguments from Benson as a last refuge. Nice that you have these words you use to describe something and then say it is ineligible for patentabiliity because it is one of these words. Read about the witch hunts of the medieval age.

  97. @Anon

    It is even easier when the anti-software side turns a blind eye to the legal world and the meanings established there.

    Easier, but simply not logical.

    It is even easier when the pro-software patent people ignore the experts in the field that actually developed the mathematics in their attempt to take over an abstract field of study EVEN when they are directed not to.

  98. @Jesset is even easier when the pro-software patent people ignore the experts in the field that actually developed the mathematics in their attempt to take over an abstract field of study EVEN when they are directed not to.

    You have not addressed these issues:

    Instructions vs. math.
    Represented info being transformed
    methods are patent eligible
    software is a componenet

    Nice that you can say it is math and abstract. We get it. You know those words and can type a sentence making an assertion that software is abstract and math. Glad you can type and know some words.

  99. jesse,

    I cannot speak for Gene or for NWPA, but I assure that I have not ignored the experts in the field – for the topic of which they are experts. They are simply not experts at law.

    Your continued failure to understand the terrain here is baffling. It is simply illogical.

    NWPA,

    The use of Benson would be a trap for the anti-software crowd, In particular, there is a quote in that case of what is expressly NOT held. Further, Benson‘s legal effect has been modified by later decisions, and jesse has already failed to see how his ‘logic’ fails in the Diehr case. Quite frankly, in order to logically hold as jesse does, Diehr cannot exist.

  100. @NWPA

    @Jesse it is even easier when the pro-software patent people ignore the experts in the field that actually developed the mathematics in their attempt to take over an abstract field of study EVEN when they are directed not to.

    You have not addressed these issues:

    Instructions vs. math.
    Represented info being transformed
    methods are patent eligible
    software is a componenet

    Actually, I thought I had.

    1) Mathematical algorithms are instructions on how to carry out mathematical operations. Thus they are part of mathematics.

    2) Information is not transformed (at least not during the computation), it is derived through mathematical logic.

    3) Software is an expression of mathematics. Software is an expression of mathematical algorithms, and are discovered through logical mathematical operations from given postulates.

    #3 is the same for the derivation of the quadratic equation. Given the general formula, solve for x.

    In software you are given a problem that FIRST must be translated into mathematics – that is the “inventive” step, as the problem may not be precisely stated, and very likely has left out some required information.

    The mathematics can be used to derive an abstract solution. That solution is written, though the problem still hasn’t been completed.

    Various numbers (derived from the real world presumably, and possibly another inventive step) are then translated into abstract numbers, and the abstract algorithm used to derive resulting abstract numbers. The resulting numbers can then be converted back into real world effects (conversion may require an inventive step), and the result compared to the desired result.

    Try another set of numbers. This is called “proof by exclusion” and the attempt is to prove the solution is valid. Unfortunately, this is not always mathematically rigorous as the only way finish it is to try all possible numbers. Programmers can’t do that, and (at the present time) it can’t be done automatically either. It is deemed sufficient when enough numbers provide a confidence level (could be a mathematical confidence level, but usually isn’t), or a specific set of numbers cause a failure. Then the programmer gets to start over at what is estimated to be where the error occurred – all the way from the beginning (an error in translating the problem into mathematics), or an error in the derivation of the solution, or an error in the translation of the abstract numbers into reality.

    Nice that you can say it is math and abstract. We get it. You know those words and can type a sentence making an assertion that software is abstract and math. Glad you can type and know some words.

    I also gave some references to the mathematicians. If you have a mathematical proof to the contrary of the mathematicians, I am fairly sure you would get the Nobel Prize in mathematics for it.

  101. @Anon

    jesse,

    I cannot speak for Gene or for NWPA, but I assure that I have not ignored the experts in the field – for the topic of which they are experts. They are simply not experts at law.

    Exactly. The experts in field of mathematics are mathematicians, and you are ignoring them.

  102. Jesse,

    Patents wouldn’t have helped.

    Again, your anti-patents religious ideology has you missing the bigger picture.

    If nothing else, Patents could have provided a bargaining chip for Netscape when at the table with MS.

    Don’t get me wrong, I’m not at all crying over their loss – however, to investors, this single event caused them to start to think twice before investing into OTHER tech companies that wanted to introduce a daring new product. Like it or not, investors provide the money to pay for the programmers salaries before the product/company turns a profit.

    MS made a contract with Spyglass, then violated it in spirit putting Spyglass out of business. MS then made it impossible for Netscape by “embedding” IE in the system. It was, and still is, impossible to remove. In addition, MS made IE nonstandard, then made their tools produce nonstandard documents (and still do for that matter, though they have only recently gotten better about it).

    Again, you are so focused on the small technical/programming details that you miss the bigger business picture: the much larger goliath of a corporation (MS) didn’t invest in the R&D (to build Netscape’s innovations) and instead just copied it (much more cost efficient).

    Innovation requires the freedom to innovate. Software patents do not help innovators.

    Most innovations come from small companies. Small companies provide the overwhelming number of new jobs in the American economy. Patents can help the innovator to bring their innovations to market. Therefore, patents DO help innovators.

  103. @Jodi

    Jesse,

    Patents wouldn’t have helped.

    Again, your anti-patents religious ideology has you missing the bigger picture.

    The “bigger picture” was that MS was forcing other companies out of business through illegal and/or unethical practices as they were convicted of later.

    If nothing else, Patents could have provided a bargaining chip for Netscape when at the table with MS.

    Nope. They couldn’t have afforded a lawsuit any more than Stacker did.

    Either way, they would have been out of business.

  104. jesse,

    Please. You are now miscontrusuing what I have said to be the exact opposite of what i have said.

    Please re-read and acknowledge what my post at 99 is saying. I tire of these games – and quickly.

  105. (missed this part in the email. sorry about that)

    Most innovations come from small companies. Small companies provide the overwhelming number of new jobs in the American economy. Patents can help the innovator to bring their innovations to market. Therefore, patents DO help innovators.

    First sentence is right.

    Second sentence could be right – but only if you include the service industry.

    Third sentence is what should be, and for non-software companies seems to be working. For software companies it doesn’t work at all – they can be sued out of existence for the most trivial of software patents, and if they survive that one, they can’t survive a string of them.

    see: http://www.patentprogress.org/2013/05/16/the-end-users-strike-back/

    and (though not directly connected, does add to the expenses of any small tech business): http://www.patentlyo.com/patent/2013/03/patent-trolls-in-public.html

  106. Ron House, you said:

    I gather most of you here, including the author, are lawyers and not practising software professionals?

    Because here is the cold hard fact of the software industry: NO professional software developer, programmer, analyst, etc., actually practising in the field and developing real software for real use, EVER even looks at a patent – most are actually forbidden to do so. The ONLY impact of the patent system is as a background threat that an idea you conceived of yourself will have been patented, despite being obvious to any actual professional, because the patent office applies absurd standards of non-obviousness. I.e., the patent system is a huge threat to innovation.

    Not true. There are software companies that realize they are cutting edge and pursuing otherwise risky R&D in innovating and realize that patents play a vital role. There are also those software developers who are tired of being force fed requirements or maintaining legacy code and/or want to pursue their own ideas and leave to form a startup – but one of the first things they realize is they need a way to help prevent large competitor corporations from stealing what took them months and months of time to come up with the resulting simplicity.

    The fact that some startups do not pursue patents, is their own decision.

    Also, part of it is simple numbers. Inherently, the number of people that start companies are going to be smaller in number than those that work in them. Not to mention it’s who you talk to – the people you see everyday are your colleague’s who are in similar roles – working in a company and so the same as you – if you’re not pursuing patents then likely your colleague isn’t either.

    But don’t say that NO software developer is pursuing patents. Those who see their value – are.

  107. Jesse:

    It is even easier when the pro-software patent people ignore the experts in the field that actually developed the mathematics in their attempt to take over an abstract field of study EVEN when they are directed not to.

    The field of study is called law and it happens to be what our society is based on. Live and worship and ignore the world around you all you want at your own expense.


  108. But don’t say that NO software developer is pursuing patents. Those who see their value – are.

    You mean like the software engineers at Sun – being pressured to present “inventions” made a game of submitting patents to see who gets the “goofiest” patents passed?

    http://ipbiz.blogspot.com/2010/08/suns-goofiest-patent-contest.html

    Or sun being nearly put out of business by IBM for violating a RISC patent early in its career? After all RISC is just another abstract machine implemented by the instruction cycle, which should have been non-patentable.

  109. The field of study is called law and it happens to be what our society is based on. Live and worship and ignore the world around you all you want at your own expense.”

    @Jodi (107):

    It happens to be true that “law” and “economics” is what our society is based on.

    And that is a scary proposition.

    Because our law-givers (i. e. the judges of Alice v. CLS) and our economic theory-givers (I. e. Milton Friedman) repeatedly demonstrate disconnect from physics and other reality in favor of their mentalist tricks. The latter meaning that what they “think” of how the world is; accurately reflects how the world is. The electrons and transistors in a computer do not worry over what Judge Lourie “thinks”. They do what they do nonetheless.

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