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Software: The Heart and Soul of Many Innovative Advances


Written by Charles Cooper
Posted: March 12, 2014 @ 10:42 am
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EDITORIAL NOTE: A diverse group of 46 amici, spearheaded by Trading Technologies International, filed an excellent amici brief worth reading in Alice v. CLS Bank at the United States Supreme Court. The Summary of the Argument is republished here with permission. Charles J. Cooper is the Counsel of Record, but is joined on the brief by Vincent J. Colatriano and William C. Marra (both of Cooper & Kirk), as well as Steven Borsand and Jay Knobloch (both of Trading Technologies)

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In keeping with the Constitution’s expansive grant to Congress of power to secure for “Inventors” exclusive patent rights to “promote the Progress of Science and useful Arts,” U.S. CONST. art. I, § 8, cl. 8, Congress has since 1790 broadly defined the subject matter of inventions eligible for patent protection. For nearly as long, this Court has applied exceptions, of its own making, to Congress’s designation of these “broad patent-eligibility principles.” Bilski v. Kappos, 130 S. Ct. 3218, 3225 (2010). This case focuses on one of those judicial exceptions – the “abstract ideas” exception.

The Court granted certiorari to decide “[w]hether claims to computer-implemented inventions – including claims to systems and machines, processes, and items of manufacture – are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court?” Importantly, the patent claims in this case do not recite “a scientific truth, or the mathematical expression of it,” [2] Mackay Radio & Tel. Co. v. Radio Co. of Am., 306 U.S. 86, 94 (1939), and no court below entertained any evidence relating to whether the claims are novel and non-obvious under Sections 102 and 103 of the Patent Act. Thus, the question here is whether computer-implemented inventions that are not directed to a scientific truth should be deemed ineligible even if such inventions are novel, non-obvious, and otherwise patentable. [3]

In light of Section 101’s expansive language unambiguously making “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” eligible for patent protection, the answer to this latter question must be “no.” There is no doubt that a computer- implemented invention qualifies as a “machine” (e.g., a computer programmed to carry out an invention), a “process” (e.g., the series of steps performed by the programmed computer to carry out an invention), and an “article of manufacture” (e.g., the programmable media on which software comprising the computer instructions is stored). Moreover, given that a general purpose computer is a “machine” within the meaning of the statute, it also follows that software providing new and useful functionality to a computer is an “improvement” of such a “machine.”

The approaches to the “abstract ideas” exception suggested by some of the opinions below and by Respondents and their supporters are not grounded in law and will adversely impact tens of thousands of legitimate patents protecting inventions that solve pressing real-world problems in almost every industry. At the most basic level, the various tests pro- posed below that result in finding any of Petitioner’s claims ineligible under Section 101 are based on a fundamentally flawed understanding of computer- implemented inventions today. These approaches are based on the false notions that a computer is merely a calculator and that programming merely instructs the computer to perform basic mathematical calculations. While this may have been true of many of the applications programmed on the earliest computers over 40 years ago (such as the program at issue in Gottschalk v. Benson, 409 U.S. 63 (1972)), it is simply not the case today.

The capabilities of computers have dramatically grown and evolved – computers are highly configurable machines capable of being turned into new and different machines through how they are programmed. Today, software forms the heart and soul of many innovative advances in all aspects of society, including automobiles, aircraft, mobile phones, audio/visual equipment, medical devices, gaming devices, engine and power generation systems, data mining and analysis tools, administration and management tools, and appliances. Viewing computers as merely calculators is completely disconnected from the reality of where innovation is occurring today and where most innovation will occur in the future.

Broadly construing and applying the abstract ideas exception would jeopardize countless patents and patent-fostered innovations that are providing real, tangible benefits to all levels of society, and that are helping to fuel the domestic and global economies. Indeed, it is impossible to overstate the economic importance of software and other computer- implemented inventions. Virtually all industries now use computer-implemented inventions in some way. As Judge Moore noted in her partial dissent below, between 1998 and 2011, the PTO issued more than 300,000 patents in just one of the host of patent classifications that include computer-implemented inventions. CLS Bank, 717 F.3d at 1313 n.1. Indeed, the U.S. Government Accountability Office recently reported that approximately 50% of all granted pa- tents are software-related. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-13-465, INTELLECTUAL PROPERTY: ASSESSING FACTORS THAT AFFECT PATENT INFRINGEMENT LITIGATION COULD HELP IMPROVE PATENT QUALITY 12-13 (2013). This body of patents comprises an important literature that is available to re- searchers and developers in every field, who are free to use the information disclosed in these patents (much of which would otherwise be cloaked in trade secrecy) to develop improvements and, upon expiration of the patents, to practice the inventions.

Notably, and notwithstanding the alarmist complaints of some interested parties that are most dependent upon computer-implemented technologies, [4] high-tech industries are neither stagnating nor suffering from a dearth of innovation. To the contrary, these industries are highly competitive, vibrant fonts of innovation and economic vitality. The availability of patent protection for computer-implemented inventions has been a spur, not a bane, to their growth and development. Computer-implemented inventions thus reflect the patent system’s “carefully crafted bargain for encouraging the creation and disclosure of new, useful, and nonobvious advances in technology and design in return for the exclusive right to practice the invention for a period of years.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 150-51 (1989).

All of these benefits are put at risk by an expansive reading of the “abstract ideas” exception. Indeed, several members of the en banc Federal Circuit expressed concern that engrafting a broad “abstract ideas” exception onto the plain text of Section 101 would suffocate valuable innovation and investment in the field of software and computer technology. See CLS Bank, 717 F.3d at 1309 (Rader, C.J., et al., concurring in part and dissenting in part); id. at 1332 (Linn & O’Malley, JJ., dissenting); id. at 1313 (Moore, J., dissenting in part).

The warring opinions below vividly reflect the widespread confusion regarding how to apply the “abstract ideas” exception. [5] It is therefore imperative that the Court now provide concrete, practical guidance regarding the exception’s scope and analytical contours. Amici respectfully urge the Court to make two points clear, both of which are compelled by the language and history of the Patent Act, this Court’s precedents, the Constitutional separation of powers, and the purposes underlying the Constitution’s grant of power to Congress to promote technological innovation through the patent system.

First, insofar as it applies to claims that do not recite scientific truths (see note 3, supra), the “abstract ideas” exception to Section 101’s broad designation of patent-eligible subject matter must be narrowly construed and applied. As stated in Benson, the proper focus of the exception is on “abstract intellectual concepts” – that is, purely mental impressions or processes. 409 U.S. at 67 (emphasis added). As this Court has repeatedly acknowledged, Congress chose, for sound policy reasons and in the considered exercise of its Article I powers, to give expansive, permissive scope to the subject matter of inventions and discoveries eligible for patent protection. It should be the rare claimed invention that does not satisfy the generous eligibility criteria established by Congress, and for the courts to broadly apply judge-made exceptions to those statutory criteria would threaten both to usurp congressional authority and to stifle technological innovation.

Second, the exception to Section 101 established in this Court’s precedents dealing with “laws of nature, physical phenomena and mathematical formulas” (i.e., claims directed to scientific truths), is not implicated in this case. The exception to Section 101 that is implicated here – the exception for “abstract ideas” – merely asks whether a claim fails to recite tangible elements, such as computing elements. Patent claims that disclose an invention requiring implementation through computer devices or programmable media do not and cannot constitute an “abstract idea” for purposes of the Section 101 eligibility inquiry. This is not to say that all such claims are patentable; some will fail to satisfy novelty, nonobviousness, and other conditions governing patentability. But a claim that is not directed in any way to a “scientific truth” and that recites tangible elements (such as computing elements) cannot be deemed ineligible under Section 101. Not only do such claims fall well within the realm of eligible subject matter defined by the language and history of the Patent Act, but their eligibility under Section 101 is also entirely consistent with this Court’s precedents.

 

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[2] The exception directed to laws of nature, physical phe- nomena and mathematical formulas (as set forth in this Court’s precedents) addresses such types of claims. For simplicity, the term “scientific truth” is used herein to encompass scientific truths and mathematical expressions of such. Scientific truths are laws of nature, natural phenomena and pure mathematical laws or axioms. A scientific truth can be expressed in words or mathematically. For example, Einstein’s theory of relativity is expressed mathematically as E=mc2. Of course, as this Court’s decisions make clear, not every invention involving mathemati- cal calculations implicates this exception. Indeed, most do not, because they are applying mathematics, not reciting a pure mathematical law or axiom. For example, the automobile- related inventions discussed below apply mathematics (making distance and other calculations based on input from sensors).

[3] Petitioner reads Bilski to have rejected a patent that, like the patents rejected in previous decisions applying the “ab- stract ideas” exception, recited a “fundamental or mathematical truth.” Pet. Br. 25-26. But because it is equally plausible, in amici’s view, to read Bilski as applying the “abstract ideas” ex- ception to claims that do not recite scientific truths, we devote our presentation to a demonstration of why computer- implemented inventions do not fall within the exception even as so conceived.

[4] Such complaints are hardly new. In the 1850s, for ex- ample, sewing machine manufacturers were up in arms over the proliferation of sewing machine patents, and yet judicial intervention was unnecessary to ensure innovation because private-ordering solutions eventually emerged. Adam Mossoff, The Rise and Fall of the First American Patent Thicket: The Sewing Machine War of the 1850s, 53 ARIZ. L. REV. 165, 170 (2011). Similarly, such unfounded complaints were made in the 1980s about the number of semiconductor patents.

[5] See also Mark A. Lemley, et al., Life After Bilski, 63 STAN. L. REV. 1315, 1316 (2011) (“Lemley”) (Following Bilski, “the problem is that no one understands what makes an idea ‘abstract,’ and hence ineligible for patent protection.” (footnote omitted)).


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41 comments
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  1. In the current anti-patent environment applying for a patent on some valuable technology implemented in software does not make any sense at all – it’s actually doing great harm to yourself: disclosing valuable technical know-how to everyone in the world without getting anything back ever….

    I made a fool out of myself filing and getting a “software” patent a few years ago and learned my lesson:
    Fool me once – shame on you, fool me twice – shame on me.

    No more patents for me: trade secrets rule nowdays.

    Start reading up on secure boot for embedded dsp processors and secure usb dongles for PCs for software code protection.

    And screw patents

  2. >Start reading up on secure boot for embedded dsp processors and secure usb dongles for PCs for software code >protection.

    This is where it was going in the mid 1980’s. The other thing that people just don’t get is that not many people read patents, but with patents the management says go ahead and publish an article since it is in the patent anyway. But, without patents, the employees are going to fired and sued if they breath a word of what they are doing to anyone.

  3. NWPA,

    In the mid 80’s code protection technology wasn’t as developed as it is today: in some embedded processors they now have hardware-enabled encryption of executable code with 256 bit keys …
    And you are right – employment contracts in high-tech industry are already draconian, but I can’t even imagine what they are gonna be without patents….

  4. angry dude-

    You say: “In the current anti-patent environment applying for a patent on some valuable technology implemented in software does not make any sense at all – it’s actually doing great harm to yourself…”

    That is simply false. Not moving forward is going to do great harm. If a patent can be obtained not getting one is a mistake. You can say we don’t know what the outcome will be, but if you don’t file now by the time we have certainty it will be too late. Further, you are concerned with disclosing and losing a trade secret. However, there is an easy mechanism available to preserve the secret and prevent publication unless and until a US patent issues. You just file a non-publication request at the time of filing.

    It is your choice to forego patent protection if you want, but it is important for others to realize that what you are saying is not true.

    -Gene

  5. Gene,
    We are not talking about non-publication requests etc..
    We are talking about the actual degree of legal protection afforded by the already issued valid US patent as opposed to keeping invention as trade secret
    I say regarding at least “software” inventions trade secrets are much better choice nowadays
    We are going back to middle ages…

  6. Apologies for the double post – this thought pertains to both threads:

    Alas, as much as I am an advocate for the patent system, angry dude has a very valid point.

    To my clients, one must consider the Trade Secret / PUR alternative route. I will note (strongly) that internal documentation cannot be lessened whatsoever as we have not yet witnessed court rulings as to any level of sufficiency for meeting the sui genereis, near patent, new right of PUR. But clearly, we have ushered in an era in which the Quid obtained is so much less certain that alternative paths must be considered. Combine that with the potential (unforeseen but still very real) benefits of PUR in that PUR is a submarine tactic** which works against the patent system – at potential great expense to those that do still choose to use the patent system, and I have a duty to counsel my clients to at least consider this path.

    ** The submarine effect stems from the fact that this un-shared ‘right’ will only come into effect after someone else spends the time, energy and money to obtain a patent, and then only after that person comes after you to enforce their patent will they discover that you are inoculated from their right to exclude. Not only that, but your customers are likewise inoculated, thus paving an easy and wide open path to a secondary market free from any reach of the person (entity) that did decide to share and obtain a patent. Clearly there is some risk, given that PUR only attaches under certain conditions, but if your technology can be “in the public” while still protected from reverse engineering for a year, then the power of PUR may be an attractive option.

  7. angry dude-

    So you think trade secret offers more protection than a patent?

    You do realize that it is virtually impossible to protect software as a trade secret. Once it is out there if it can be reverse engineered there is no trade secret.

    Trade secrets are great for some things, but for software they frequently will offer very little protection if any.

    -Gene

  8. Gene,

    Even decompiling unencrypted executable software binary and analyzing details of key algorithms behind software functionality is extremely time consuming and very expensive undertaking
    If we go hardware-enabled secure boot route (e.g. some dsp chips from TI) reverse-engineering of key algorithms or even stealing you binary code becomes virtually impossible – you would need a LOT of help from chip manufacturer itself and you are not gonna get it unless you are NSA or something like that…

  9. Gene & Dude,

    This is a discussion where, as often the case, you are both right.

    On the one hand there is no law of physics that says well-buried code can be easily uncovered. As dude points out, the code per se can be buried inside a nonstandard and securely packaged chip.

    On the other hand, code that delivers specific services to users must reveal its services in some way to the users. The mere knowing that something can be done (i.e. within X time, using Y energy and Z bandwidth), can give competitors valuable hints as to how it is done and how a competing process may be put together. Once that happens, the trade secret becomes useless.

    The more important point is that trade secrecy “stifles” invention and innovation by others. The Dark Ages of Europe were marked by resort to secrets and closed guilds. Technology could not easily advance when everyone played their cards close to the vest. The US Congress must ask themselves if that (the Dark Ages) is where they want to take America “back:” to? So far the answer appears to be, yes.

  10. step back,

    What I believe is a take-away of angry dude’s posts is that risk/reward landscape of patents has so substantially shifted that “sharing” may no longer be the best option. To that end, your post is also correct – we are moving back in time to a Guild control setting.

    Why is this so?

    The patent system at its most basic equation is Quid Pro Quo. A balance. Many of posted here about how the patent system must favor the State and I have attempted to show why this is simply not so. An innovation ecosystem must have balance for all parties in the ecosystem or the ecosystem itself will eventually suffer.

    The problem is that large corporations exist both in and outside of that ecosystem.

    The balance has been upset by those whose primary interests are to neither the innovator, nor the State. In past discussions, I have portrayed the large corporations as being State-less. They are beholding to no single State and will readily move from one State to another in pursuit of lowest cost factors and maximum (short term) profit. They will rely on innovation only so far as innovation is an attractive (read that as short term profit driven) option to any other of their tools – and those tools naturally are more geared to size (market position and dominance) and existing business methodologies.

    Understanding this reality makes it crystal clear why the two items most often attacked in patent debates are business methods and software. These are the two areas in which innovation is most threatening to the large corporation. Large corporations will both use patent systems at the same time they attempt to wreck patent systems. Large corporations thus can be envisioned as pathological entities unconcerned with any sense of mutual survival to the State or the Innovator, let alone mutual benefit.

    It is also crystal clear why this battle is magnified in the U.S. We have a deeper culture and reverence for the individual than the rest of the world. Our culture glorifies the individual and this translates to a higher reverence for the individual innovator and smaller corporations. And in some (arguably well-earned) enmity and distrust of large corporations. That is the culture of the U.S. and the context of the Quid Pro Quo.

    So again, why is this so?

    Why changes that bring higher costs? Not a problem to the large and established.

    Why changes that bring weaker protection? Not a problem to the large and established.

    Why changes that create Fear? That create Uncertainty? That create Doubt? Not a problem to the large and established – when one looks at a comparative, competitive landscape. Sure, any one of these makes the patent option less attractive. But when one realize which type of entity has the most upside to patent systems – which type of entity has the most to gain from disruptive innovation, from disruptive innovation that removes the competitive advantages of size and market dominance, it is clear that such entities are NOT the large and established entities.

    Large and established will not be the type to run out and embrace disruption that will negate their intrinsic competitive advantages of – the very advantages of being large and established that rule the day outside of the patent ecosystem.

    So with this in mind we turn back to patent systems and the attempt to balance Quid and Quo. Patent systems that naturally have the desire to share information. But sharing information is not always even on the table for the types of entities that are (in part) outside of the ecosystem. As can be seen by the intense lobbying to broaden Prior User Rights – and remove the stick of the patent system – “Not sharing” is now a protected avenue within the patent system. The traditional balance is most definitely skewed with extra thumbs on the scale, and those thumbs are not in favor of ‘sharing’ anything. Little guys forced to such a system (as Gene points out) face tougher battles.

    Into the balancing equation between “effort to hide” and “effort to innovate” must also be the larger realization that large corporations have a vested interest in not innovating.

    Innovation can be messy and game-changing. Add into that threat any workable system of exclusionary rights, and a working mechanism of enforcement for the little guy, and you have provided a competition mechanism that the large corporations cannot fight with their preferred tools.

    A bit off topic here, but most definitely related to the bigger picture, take a look at another indicator of large corporation bias: the unmitigated propaganda and scare tactics surrounding “Trolls.” How many times in any discussion of “Trolls” do you see the benefits of “Trolls” extolled? Large corporations beat this drumbeat against “Trolls” because “Trolls” upset their Mutual Assured Destruction technique of amassing large stockpiles (which takes large amounts of cash – which again suits the large and established entities just fine as a comparative competitive mechanism) and being able to threaten anyone with that arsenal. But “Trolls” cannot be threatened, because they have no operations to threaten. Look at the resolutions being offered to the so-called “Troll” problem: these resolutions do not solve the “Troll” problem, they merely make it easier for large corporations to identify instances where ‘efficient breach’ of patent rights can be contemplated and perpetrated.

    Truly solving the “Troll” problem – by either attacking litigation costs or by attacking corporation structure laws would unleash more change than what the larger corporations really want.

    First, if litigation costs were attacked and made reasonable, you would have the (un?)foreseen side effect of MORE litigation, as more players with patents who currently find it difficult to enforce their patent rights would be enabled to enforce those rights. Large corporations would be less able to fight from their traditional vantage point of size and market dominance.

    Second, if corporate structures were attacked and required to be simplified and transparent, large corporations would lose their ability to play shell games, hide their assets, and engage in tactics far beyond the patent sphere.

    One can (and should) ask themselves exactly why these reforms are only being pushed within the patent ecosystem. If the rational from the Executive branch for these changes is to be believed, why limit these controls to just patents? And this does not even begin to contemplate the constitutional problems that this push has – coming as it is from within the Executive branch of the government.

    One may ask: Why is this so? The answer is right before us.

  11. Now,

    Having exhausted far more than my allotted fifteen minutes atop my admittedly pro-patent soapbox, I will now offer that attorneys in this world do represent clients, and represent their clients’ interests. These interests necessarily involve non-patent system tactics, mechanisms, and goals. These interests are larger than the patent ‘town.’ As there is no “world law,” there is no oversight from a “world law” ethical constraint. Large corporations being State-less means (necessarily) that the interests I may represent are also State-less.

    Seeing as the playing field has shifted, I must advise my clients as to their best strategies moving forward, even if those strategies play into the hands of large corporations. I can (and do) advocate for a strong patent system as I believe that is in the best system of the ecosystem I want to see flourish, but I also must be aware that the patent system is not the only game in ‘town’, that the ‘town’ itself is not the only interest of certain clients, and that my duty to the client may mean that my ‘duty’ to the ‘town’ may take a back seat.

  12. NWPA,
    Companies such as ours will always maintain software in encrypted trade secret, format because the vast majority of our code does not contain anything which would be considered novel and eligible for patent protection. The code does, of course, represent thousands of man hours of testing and debugging, but is very often a combination of known elements and an application for patent protection would be rejected by any competent examiner. On the other hand, we are not giving the fruit of our labors away free to any offshore manufacturer who thinks he can copy our product on the cheap.
    In any case, we couldn’t afford to file patent applications for all our algorithms even if we wanted to.
    If any of you think you can reverse engineer our software, as Gene suggested, give it a shot. Then you could apply for a patent for a novel method of decryption. There is no published prior art on this one. We don’t do PC or smartphone software – our code is buried in the computer chips.

  13. Benny, you tread (incorrectly) back into legal waters with your bare assumption and assertion of “and an application for patent protection would be rejected by any competent examiner.”

    ALL inventions use items of past and known things – those are the building blocks we have to use.

    You also make the mistake (again) that I pointed out at 129 and 130 of the older thread – someone else independently inventing what you invented and buried will give that person the legal property right – even over you (unless you dutifully comply with what is required for PUR). You indicate here only a possibility of a decryption patent – but that clearly is not the only type of patent available. For argument’s sake, let’s say you fail to achieve PUR (for example, the competitor figures out what is going on, invents, and files before a year is up. His successful patent legitimately can shut you down. Legitimately you would be ‘guilty’ of ‘stealing’ from him his legal intellectual property – even using your own prior (but inchoate) personal ‘invention,’ because you were unwilling to share. Your “fruit of your labor” has no legal property status unless you take the affirmative steps as outlined in law. Just as on the other longer thread, you are making the legal mistake of assuming some legal right that does not exist. You compound this with the notion that anyone else having what you independently and even previously ‘invented’ cannot be a legitimate patentable invention. Your view on this is simply wrong.

    Note that I have explained that sharing does not require patenting, so please, your ‘excuse’ of not being able to afford patents for all of your algorithms is a smokescreen and should not be a part of the conversation.

  14. Plainly stated, your not wanting to share (for whatever reason) should not block others from sharing and obtaining patent rights for so doing.

    No one forces you to share, but on the same token, you lose the right to complain that someone else does share – and even takes advantage of the Quid Pro Quo system set up to promote such sharing.

    All too often, the legal determination of obviousness is confused by technical people. I have pointed out your doing so several times.

  15. Anon @ 10 and 11

    Well thought out and said.

    WE are all guilty of falling for the ruse fairy tale of “just doing my job” (me included),
    as if that excuses us from not being concerned about the greater good of the country, of the world and of being focused only on the selfish money-grub focus of our corporate masters. In the long run we all lose out because of that self-centered approach.

    Trade secrecy is part of the self-centered approach.
    Sigh. If only we lived in a better among the best of all worlds. This one is an IPwatchDog eat IPwatchDog world.

  16. Step Back,
    We, as innovators, have 3 options. We can let our software loose in the public domain, we can encrypt our software and hide behind trade secrecy, or we can file for patent protection for every other subroutine.
    We go with what makes the most economic sense for the company. This is sometimes at odds with a sense of altruism and human endeavor – the greater good – , and sometimes at odds with the best economic interests of our attorneys, but you are correct in your surmise that at the end of the day, we are looking out for number one. Or for you, if you hold shares in our parent company.

  17. Benny,

    I will take immediate issue with the perceived slam I read in your comment of “and sometimes at odds with the best economic interests of our attorneys.”

    It is my ethical duty to my clients to inform and counsel them to their best course of action regardless of the impact to my bottom line. Perhaps I am too sensitive, but your ‘slam’ sounds in unethical behavior of your attorney and the implication that the attorney will feather his own pocket at the expense of the client.

    Granted, people are people and crooks come in all shapes and sizes, even attorneys – but I outright reject your statement as any indication of the professional status of me, mine and the attorneys that I know.

  18. Benny-

    You say: “we can encrypt our software and hide behind trade secrecy…”

    That strikes me as extraordinarily naive. If it can be encrypted it can be decrypted. There really is no useful way to protect software with trade secrets. Those who think trade secrets will be a suitable alternative to patent protection are going to be in for a very rude awakening.

    -Gene

  19. Gene,

    With PUR, the encryption only has to last one year (or less).

  20. Gene,

    “If it can be encrypted it can be decrypted” is simply wrong:

    If decryption is hardware-enabled (key generation is buried inside hardware chip) it can’t be decrypted.
    You would need a LOT of help from chip manufacturer and you are not gonna get it unless you are NSA or FBI or something like that
    At the very minimum the associated costs can far exceed licensing costs – defeating the purpose

  21. Angry-

    We will have to agree to disagree.

    Anything that can be encrypted can be decrypted. That is a pretty fundamental truth. It is excessive hubris to believe otherwise.

    -Gene

  22. angry dude, I am with Gene on this – it is hubris to think that merely hiding a key generation inside hardware will stop decryption.

  23. Anon & Gene,

    I am with Angry on this one.
    Gene appears to be the victim of his own ambiguous words.

    Of course anything that is truly encrypted can be decrypted.
    But by whom and in what length of time and with what amount of effort?
    Those are the questions that should be asked.

    With that said and on the other hand, it is a false choice assumption to decide that you “must” decrypt the code itself in order to figure out what it does and then come up with an alike, competing device. So if you do not have a broad patent, competitors can come in with similar devices without ever having decrypted the and copied the specific code.

    Remember the copyright-avoiding “clean room” approach?
    That is how software companies got around each other’s copyrights, rendering copyright protection close to useless.

  24. step back,

    Your additional questions change the vantage point. If you read my posts, you will see that you and I are standing in the same spot.

    How interesting then, that you view yourself as standing with angry dude, and I view myself as standing with Gene.

    I also find it interesting that you (correctly) note the inadequacy of copyright. But to me, this fortifies rather than detracts with how I see both Gene and I being correct and that angry dude is mistaken.

    Returning to the additional questions you would ask. I think angry dude is wrong because his vantage point is totally on one end of the spectrum that decryption simply is not possible. I think you mistake Gene’s view as that being one of “decryption is always possible in a patent-defeating meaningful way” – adding that last twist to what Gene is saying. My view is that there does exist the twist you would add, but that the fact that decryption may not always be worthwhile does not change the overall view that some manner of decryption is necessarily ‘good enough.’

    This can be seen by the fact that hackers hack. Some do not need to have any sense of ‘reasonable’ business justification to hack. And once a hack has been reached, secondary uses of the hack are basically at zero cost – which completely blows away the “cost is unreasonable” underpinnings that angry dude would depend on.

    These realities make Gene’s perspective (while not necessarily true in the absolute sense) the better perspective.

    So even though we both appear to be standing in the exact same spot, your leaning towards angry dude is an optical illusion that I think you need to take a second look at.

  25. Guys,

    To end this discussion, please google up “texas Instruments secure boot”
    this is used for critical embedded software applications – military-grade communications, medical patient monitoring etc. to prevent things like stealing/analyzing software code or executing some other unauthorized code (hacking) on the embedded processor.
    The encrypted code itself is stored on external unprotected flash but the actual decryption takes place inside the processor using some buried key generation mechanisms.

    I would say unless you are Texas Instruments Inc. (or maybe some other large semiconductor manufacturer with state of the art manufacturing facilities) there is simply no way you can steal my code (I haven’t practiced it this secure way but will start pretty soon…)
    I haven’t heard any complaints about security breaches with TI secure boot – it would certainly kill this part of their business
    If you hear something please let me know :)

    Regarding step back’s comments on “clean room” engineering – it only works for trivial applications like MS DOS – you analyze input commands and responses, and after some (thousands) man-hours spent you can write DOS OS from scratch and avoid stinking MS copyright :)
    Now try this “clean room” approach with embedded speech recognition software application: you speak your words/phrases into the “black box”, see how printed text comes out….
    Good luck with you “clean room” efforts – there is simply no way for you to know what algorithms are combined inside the “black box” to produce the output.

  26. sorry angry dude, but your post does not end the conversation, and your hubris to think so only doubles down on your mistake.

    to prevent things like stealing/analyzing software code or executing some other unauthorized code (hacking) on the embedded processor” is just not the same thing as “WILL prevent” or “MUST prevent.”

    You are missing the point that Gene makes. What you (continue) to say, is said in error. It just is not so. Look back on the history of cryptography – each (succeeding) level that was thought to be unbreakable was broken in short order. Your example simply is no different. Sorry to burst your bubble, but you are simply wrong.

    You just are not grasping how your failure with the technical side is affecting the legal discussion underway here.

  27. Anon,

    Sorry to tell you, but you are out of touch with reality
    let’s try once more, on a different example.

    You trade your stocks and do banking transactions over public internet without worrying too much, don’t you ?
    It uses the same type of technology to encrypt/decrypt the traffic between your computer and your bank’s computer.
    Someone can tap on your line in between but will not be able to decrypt the messages, at the very least this is not possible without massive efforts involving supercomputer and lots and lots of time
    If this were not the case, ecommerce would not exist
    Taking it to the next level is hardware-based key generation
    I have RSA SecurID token in my hand. It keeps generating changing codes which are used to establish encrypted communication channel. This is called VPN – virtual private network. Google it up.
    With this I can connect from my home PC to the critical infrastructure computer servers.
    Even a slight possibility of breaching security of those servers would cause a major scandal in Washington
    In another example, some time ago I was travelling with a friend – he is an oil exec
    We stopped by Kinko’s and he used the same type of RSA token to work on half a billion dollar acquisition

    So encryption works, trust me on this

  28. angry dude,

    This may make you angry, but I know more than a thing or two about encryption, as this is one of the art fields I work in. I do not need to ‘Google” anything to know that you are simply wrong from the technical aspect.

    It is you my friend that is out of touch with reality, with history and with this art field.

    I love the caveat you attempt to slip in with “not possible without massive efforts” You realize (or should) that such is an admission that your position is wrong (as “massive” is a relative term, and what you may consider “massive” may by some be considered “minimal.”)

    The plain technical fact of the matter is that your version of “encryption works” is a non-sequitur to the actual technical question of “does any (including partial hardware) encryption always work?”

    I hate to burst your bubble yet again, but you are not even asking the right technical question.

    If this is the way that you approach technology and patent law, I can see why you are so angry all the time.

  29. I agree 100% with Anon here, and history shows that we are correct. Time and time again encryption techniques have been defeated when it was previously believed that it would be impossible to decrypt. Perhaps the most famous example is the Enigma machine. See: http://en.wikipedia.org/wiki/Enigma_machine. Every encrypted code can be broken.

    Further, even if you can keep your code as a trade secret without a patent anyone can simply code it themselves to perform the exact same functionality. Trade secrets and copyrights aren’t very useful for software because anyone can just code themselves.

    Of course, many inventors will say that no one could ever come up with their masterpiece without copying. That claim is also filled with excessive hubris.

    Finally, let me even ask whether trade secrets can exist for code at all? If it can be reverse engineered, which we know from history is always possible, then there is no secret at all, is there?

    -Gene

  30. Gene,
    We use a chip which locks access to its` memory when tampered with, so good luck. Onthe other hand, if we did have a patent covrering our code, we would have a long days` work trying to prove infringement.

  31. Benny is right

    good luck to anyone trying to get the code out of embedded chips built to secure your code…

    otherwise TI wouldn’t be selling any of their secure boot processors

  32. Benny,

    Are you seriously telling me that locks are not impossible to get around? That ANY lock is impossible to get around?

    angry dude again launches himself into a state of denial. You really do have to realize – from a purely technical standpoint – that TI’s selling has nothing to do with the technical points under discussion. It’s as if you want to now ask a different – but still wrong question.

  33. Benny, Dude-

    Thanks for the luck wish. Of course, I’m not the one that needs the luck.

    It is an undeniable truth that has been shown throughout history that if someone is smart enough to encrypt there are those who are smart enough to decrypt. I will notice that you seem to finally acknowledge that. Initially you were saying that it is impossible to decrypt what you are using, which is of course false.

    You are the ones who need the luck though. Because it is always possibly to decrypt and reverse engineer that may have no trade secret rights. Trade secrets exist only so long as the secret is maintained. Once the secret is out there is no trade secret.

    Of course, no one really needs your code anyway because without a patent they can simply make their own version with their own code that does exactly what your systems do. So good luck to you everyone who invests in computer implemented innovation if the Supreme Court says software is not patent eligible. Any and every innovation will simply be copied. That, of course, means innovation will cease since it makes no financial sense to innovate only to have it stolen by free-riders.

    -Gene

  34. Anon,
    You accused me of “non-sequitur” and at the same time you use words like “impossible” ???
    Impossible for whom ? For you, for me, for Benny’s competitors ? Most certainly yes
    For TI or Samsung ? Maybe not… but try to get some help from them decrypting third party’s embedded code in their processors…
    Good luck

  35. Gene,
    We are kind of in the same boat… sort of.. so you need some luck just as much as we do..
    If that thing currently in US Senate (with it’s horrible fee shifting provisions and discovery restrictions etc.) passes and gets signed into law by Obama, then patent “protection” will make no sense for smaller companies and individuals – they’ll switch to trade secrets and secrecy wherever possible
    Consequently your patent prosecution-related business will shrink
    So good luck to us all

  36. angry dude,

    Impossible for whom is not a technical question. The technical question is the capability itself. It simply does not matter (and thus is a non sequitur) that you want to only focus on someone for whom the technical aspect would be so difficult as to prevent that person from achieving what another person not so disadvantaged could DO technically.

    From a legal standpoint, clearly you are not cognizant enough to hold a discussion and it appears that likewise, from a technical standpoint, you are not competent enough to recognize just what you are saying.

    As I said previously, if all you want to do is complain (and just be angry), please post elsewhere. If you want to discuss a topic intelligently, I welcome your posts.

  37. Dude-

    You may think that patent prosecution business will shrink, but history shows us that simply won’t happen. While you may forego patent protection many, many others will seek patent protection because they understand that trade secret protection is no protection at all really. Further, most patent practitioners do not deal with independent inventors. I myself deal primarily with individuals that are starting a business are already a small business. In order to get funding from investors patents are required. So some independent inventors will cut their nose off to spite their face, but in a world where patent applications continue to grow year after years there will be no stopping in sight.

    Most will realize that if you don’t seek a patent today you won’t ever get one. If the laws are unfavorable today that won’t be the case forever, or even for long. If the Supreme Court kills patent eligibility and Congress further tries to protect infringers the economy will suffer. Eventually, in the not too distant future, the laws would change and swing back to be more favorable, as it always has. At that point those who didn’t get patent protection will be lost.

    So it is up to you. If you don’t want or need to raise funds and if you want to have no protection at all then you forego patent protection. But let’s not pretend that trade secrets are any kind of protection.

    The smarter thing is to do what I suggested earlier. File a patent application and simultaneously file a non-publication request. Then don’t seek to license or enforce the resulting patent for at least 9 months post issuance, make sure you have a lot of claims and multiple patents.

    -Gene

  38. Gene,

    You left out one word of advice. Granted, it is less business advice and more advice of the type that may align with a client’s philosophical rather than business needs.

    For those so morally opposed to the patent system, we as counsel that to reach our client’s goal of putting their professed beliefs into practice, our client may publish their inventions in a forum that guarantees creating prior art status so that no one else can attempt to patent the invention.

    Yes, this will serve to eliminate their competitive advantage (even the ever thin one of a Trade Secret), but counsel will be making sure that their philosophical needs are met, while still allowing clients to invent and help out everyone else. Next, we might advise our clients to dedicate as well their copyright to the public. They may even want to start a newsletter to send these tidbits directly to their known competitors as well. All of this will certainly guarantee that they live up to the mantras that are professed to be so dear to their hearts.

    And above all else, dear clients that truly wish to live by their convictions, please come back and post here the results of these efforts.

  39. Anon,
    Take a tour of the engineering and special interest group forums and see how much patent eligible art is handed out to the public domain. And why is this so? A number of reasons – First, those divulging the information might not understand the patent system and do not know what rights it could grant them. Or maybe they do understand the system well enough to understand that they, personally, have little chance to gain financial benefit from patent protection (I’m talking about individuals with a professional passion, not businesses). Foremost, though, is perhaps the personal and professional pride that engineers derive from sharing their knowledge with their peers.
    I should know. I’ve been there.

  40. Benny,

    I already recognize that patent eligible art is handed out in the public domain for a variety of reasons. Nothing at all wrong with that and your post at 39 while stating that simply does not address the immediate nor the larger topics at discussion here.

    Thus, while your post is technically true, I think you miss the droll humor of my post at 38. As I have posted, nothing stops anyone from handing out patent eligible art to the public domain, and if that is your desire, than more power to you. What you seem to miss is that the option, while available and in keeping with that person’s desires, should not impinge on anyone else’s desire not to give such things away freely. The larger discussion here is that those who feel strongly about giving away freely would also make it mandatory that everyone else give away freely and seek to impose their will when the law provides otherwise.

    I do hope that you realize that living up to the desire to give things away freely, while as I recognize remains the right of any particular individual, is simply something that will most often make little to no business sense. I recognize this is not universal, as the business tactic of a loss-leader is not a novel tactic. But to so fully embrace the concept as to apply it to oneself universally is just not realistic (as can be seen in the utter failure of communism to be applied in the real world), and is downright offensive to be something sough to be forced on everyone (as is done in the desire to eliminate whole categories of patent eligible subject manner).

  41. Don’t worry, Anon, humor doesn’t go over my head, droll or otherwise. I recognized the satire. Point is, people will give something away as long has it has no value to them, even though it has value to others.
    As long as I can benefit financially from patent protection, I will seek it, but If I can’t sell the idea – i.e, it has no monetary value to me – I’d rather give it away free than keep it in my pocket.
    If It appears as though I would hesitate to recommend recourse to the patent system, it is because so few patents actually benefit the inventor financially – a fact, I am sure, you are well aware of.