This article is the second in a series to provide some help to the Supreme Court as they prep for CLS Bank. See also Help for the Supreme Court in CLS Bank. Now, I realize the Supreme Court has other priorities; but I, as a patent guy, do not. If we (they) screw this thing up, it will have far, far reaching effects which will not be fully known for years to come. This is the Chakrabarty of our age!
There is considerable popular press antipathy to patents right now; big left coast tech and east coast banking are winning the PR battle, and this needs to be turned around. Did you read any of the overblown amici in Chakrabarty about the awful effects of patenting living organisms? Recently the Wall Street Journal just had an Op Ed about the CAFC being Carter’s Costly Patent Mistake. Is there any greater insult a conservative, allegedly business minded rag could hurl? OMG! I think not. It is time for us to head for the sound of the guns! (Perhaps, just perhaps, a little melodramatic. We shall see. But Gene has already responded to the WSJ article at Defending the CAFC, Again, on Software Patents.)
Why am I addressing such a fundamental issue? Because this is, in part, why we’re so fuzzed up right now about software, computer implemented methods, and business methods, etc. and their originality and patentability. It is hard for the lay person to differentiate. You see, the silicon types have made us believe that computers are on the verge of sentient being capability. We have IBM’s Watson, we have the iPhone Siri, self-driving cars, distance maintaining cruise control, self parking cars, etc. I expect people out there really believe you can ask a “computer” a question and expect it to really “think” up an answer. Our brains, we are told, are just sophisticated computers. Likewise we have people believing computers make mistakes, and computer glitches are running amok with our healthcare, crashing trains, performing surgery, etc. None of it is true in the sense of the ordinary definitions we apply to these things; yet it is these definitions that are the crux of our confusion over computers and whether the instructions we provide to control them really result in something patentable or, in anything at all. Isn’t the computer, at some threshold, just doing whatever a computer does? Well, not really; you see a computer does nothing without a program or power supply. Let’s find out why.
A computer is, at a fundamental level, simply a clump of electrical switches each of which are in either an on or an off position. Whether and when a given switch is on or off is the result of the code that configures the switche(s) to be on/off and the subsequent result of passing small amounts of electrical charge through these switches (gates) and observing the output. You may not know it, but you are a computer; or, at least you act as one every day. Let me explain. Every time you enter a room, if it is dark, you turn on the light switch; on the other hand, when it is already light you ignore the light switch. You have just acted both as a “programmer” and a “compiler” for the “computer” which is the single light switch. Sensing light or dark, you initiate (program) an action (compiler code +/-) that either throws a switch or leaves it alone. You have anticipated your need by virtue of observation, and have addressed that need. See, easy. You are a programmer.
Now let’s get a little more complex, but still bearing in mind that a computer is just a switch and you are a programmer (i.e., the thinker, or “Oz” behind the curtain). Suppose that switch for the light was one out of 1,000,000 light switches, and you wanted to create a pattern when the switches were switched and the lights were viewed, like on a Jumbotron. Well, you could do it, you’d just have to move really fast switch to switch, like the Flash (our comic book hero with great fleet of foot). Suppose, just suppose, you were also very small, like an electron, and could move at close to the speed of light while you went switch to switch, and suppose also you could do it again as soon as the light switched on, such that you could create a different pattern by changing all the switches again, and again, and again. Now, have you done any thinking? No. But, you have been very, very busy switching things on and off. You’re quite hot in fact, moving so quickly switch to switch, and because there are not enough of you to go around, you’ve made more of yourself to help you out. You and your electron cohorts are really crowding the switches and, from time to time, the heat created by all the running to and fro to the switches alters the hallway you’re running through heading for the next switch, and you end up at the wrong switch, or end up in a hallway so crowded that you cannot pass through to the switch you were headed towards.
Have you done any thinking yet? No. But, while you’ve been busy, others have been watching the show made by the twinkling lights you’ve been switching on and off. And, when you did not make it to a switch because of the heat, or another switcher showed up ahead of you, having taken a different faster route, a dark spot showed up where it shouldn’t or a light spot remained where it should have been shut off. A glitch, a bug, a computer mistake. And, therein, by-the-way, lies the great pursuit of device technology as far as a computer is concerned: how to get rid of the heat, access more switches, and have more reliable pathways to those switches.
For a real world example of people imitating computers, look at a stadium where people have been asked to hold up a card in their hands at the appropriate moment during the halftime show. Patterns appear, words even, or symbols, etc. Do the people holding the cards in their seat have any idea what they’ve contributed to or what is being shown? No. Have they done any thinking? No. Another example is a marching band walking around at half time. Some bands are amazing in terms of their precision and what they can display. But, if you put a single member out on the field and asked them to walk through their routine one at a time, it would be meaningless. Likewise, without the coordinated movement of the others it also remains meaningless. You see, a computer cannot do anything useful for any purpose until it is programmed to switch its switches and provide a recognizable output, i.e., a light going on, an engine being provided more fuel, an airplane gaining altitude or adjusting trim. A computer is as useful as a rock, until programmed and powered up. (As an aside: when the software your computer used to run is no longer supported, the “rock” utility eventually reappears. Likewise when you misplace your “charger”.)
But, what about the thinking part? Don’t they ask Watson questions and doesn’t Watson respond? No. What Watson has, just like you as the Flash in the Jumbotron example, is speed and numbers. Watson’s programmers have billions of switches and similar numbers of pathways to those switches to access and to compare known data that is represented, itself, by a series of on and off switches symbols +/-.
You ask Watson: these are my symptoms, what is my illness? Programmers have already written into a series of on/off switches a chart of symptoms that correlate with diseases. When a match is found, Watson replies. Sometimes Watson is only close, i.e., there is not a 100% match, but it is 98% and the other possible diseases are at 96% and 94%, so the reply is the 98% correlation.
Computers are the result of programmed logic as represented in the form of outcomes already realized and now anticipated as being needed again in light of the same or similar circumstances being faced. Nothing more. When a program routinely is shown to have not anticipated a useful outcome ahead of time, it is updated (patched) to now address this newly anticipated outcome. It does not think, it merely, and only, throws a switch.
Wait a minute, you say, my car “learns” how I drive! No, it doesn’t. It has “feedback” that tells the “computer” that, at least for your purposes, the “light” in the room is not on yet. Let me explain. Let’s suppose you do not see well, and need more light for your projects than others do. You buy a “smart” light, i.e., it learns your needs. Here is how it works: you turn on the light to its initial setting, it is too low, you click the button a few times and increment the light to a greater intensity. You do this for the first few times you turn on the light. After, say three times of doing this, you turn on the light and you notice it is at your preferred setting. Did the light learn anything from you? No. You have merely re-programmed the light. The original programmer of the light anticipated your need to want a different setting and determined that after 3 adjustments, your patience would wear thin if it did not accept this as the new initial lighting setting. In the same way you used to “preset” radio stations in your car with the big old pull out and push all-the-way in buttons, a programmer has now done this via a program. Same thing for a “smart” anything. You are doing the last leg of the programming for your device. Nothing more.
Hopefully, by now, dear reader, you have come to understand that software (and a power supply) is what makes a computer what we have, by now, come to know as a “computer”, i.e., our smart phone, laptop, or tablet. A computer, as a bundle of configurable switches; it is the “clay” a programmer uses to “sculpt” possibilities of outcomes based on a predigested set of inputs. The more the clay, the more the possibilities and the more “capable” a computer can become. Hence, each new chip with more switches, provides more possibilities, i.e., more and faster clay. The computer is the sculpted clay we hold in final form as determined by the program. The programmer, then, is the “artist” that creates the form, i.e, the utility. A program cannot manifest except on a computing device and the program running on a that computer is what defines that device (i.e., Windows, Mac, etc.). Will it ever think? Not in the same way you or I think, but maybe that is not a bad thing. We self program based on morality and context that we learn through a variety of inputs and adopt or reject as we roll through life. The circumstances that led to one decision when we were 18 lead, thankfully, to a different decision now!