Google vs. the Luddites: A Patent Battle Neither Side Should Win

Last June, the U.S. Patent and Trademark Office published U.S. Patent Application No. 20170164007, titled Mixed Boolean-Token ANS Coefficient Coding. Originally filed by Google with the USPTO in December 2016, the patent application claims a method for decoding an encoded bitstream using a computing device, the bitstream including frames having blocks of pixels, which involves the use of an entropy decoder state machine including a Boolean asymmetric numeral system (ANS) decoder and a symbol ANS decoder. The claimed invention is intended to improve the transmission of digital video streams with the use of the entropy decoder to reduce the amount of data involved in the transmission of digital streams.

Listed as the assignee on the ‘007 patent application is Mountain View, CA-based Internet giant Google and the only inventor named is an Alexander Jay Converse of Oakland, CA. However, news reports indicate that a Polish computer scientist named Jarek Duda has publicly claimed that he is the inventor of the ANS compression technique and that Google is attempting to patent his technique despite his own desire to maintain that technique as open source. An article published online by The Inquirer indicates Google has responded to this claim by claiming that Duda’s invention was more theoretical in nature and that the company is trying to patent a specific application of Duda’s concept.

Duda’s lamentations regarding Google’s patent application covering the ANS technique can be read in a June 2017 post authored by Duda and found on the forum of data compression website Encode:

“Nice ‘thank you’ from a multibillion ‘don’t be evil’ corporation to a poor academic whose work they use for free and who has helped them with it for the last three years (e.g. through https://groups.google.com/a/webmproj…um/codec-devel ) – there was a moment they gave me hope for a formal collaboration with my University so I could build a team, but then silence … probably due to this patent application.”

Pardon our French, but it’s très intérresante to hear an inventor claim that Google is in essence stealing a technology after having worked with that inventor on the development of that technology. The link provided by Duda brings a person to a Google Groups page for codec developers and the thread about the entropy coding technique that was authored by Duda can be found by searching that website. The thread was started in January 2014 by Duda and includes 63 posts from eight authors. Other post authors on the thread include Google employees such as Paul Wilkins, Aki Kuusela and, interestingly enough, Alex Converse, the named inventor on the ‘007 patent application. Converse is, in fact, one of the last people other than Duda to comment in the thread, which he did back in October 2016, two months before the ‘007 patent application was filed. Between November 2016 and this May, Duda posted 13 times in the thread on various topics, including to inform Google of a patent application filed in the U.S. and UK to cover an ANS compression technique where he asked Google if they would fight that patent application. On June 11th, 2017, Duda posted a link to the ‘007 patent application in the thread, noting that “Now I understand why there was no feedback” from Google. On June 16th, Duda posted his analysis of the ‘007 patent application claims where he said that he couldn’t find anything new in the claims aside from his own invention.

“This patent application and general situation is completely ridiculous … Therefore, I would like to propose not wasting more time with it – please just remove specifying ANS in this patent, and let us forget about this situation – I can further help you with making the best of ANS, and in case of a formal collaboration I am still open for (which e.g. would allow me to build a team or e.g. just through working remotely and summer breaks for Google), in future bring you many new ideas indeed worth patenting.”

The Encode forum post authored by Duda has been updated several times to note actions that Duda has taken with the U.S. Patent and Trademark Office and other patent offices around the world to prevent the issuance of a patent on any of Google’s patents making use of the ANS technology developed by Duda. This includes the filing of a third-party preissuance submission with the USPTO in August 2017 in which he notified the agency that he is the author of the ANS family of entropy encoders and that it was his will that the technology should be in the public domain. “Google did neither respect my will to prevent legal restrictions for using ANS, nor did consult with me or inform me about this patent application, whose claimed innovations can be found, among others, in my well documented work for and with them,” Duda wrote.

Obviously an inventor is going to want credit for his or her work, and if Duda wants to open source his own technological advance, that is by all rights his prerogative. However, although Google’s actions in this saga appear to be fairly dubious, Duda has viewpoints of his own which deserve to be critiqued under the cold light of day. In an e-mail exchange with Duda, he provided a link to a piece of text which he authored and has been published on a website titled End Software Patents. In that piece, Duda makes the following mental blunder:

“Theoretically, the patent system should not allow [software] patents. They ought to be considered ‘obvious.’ In practice, though, these patents can be issued, because the patent office’s criterion for ‘unobvious’ has historically been astoundingly weak.”

The idea that all software is obvious is a theoretical argument that doesn’t just border on the scattological, it wades right into the sewer. Consider artificial intelligence. If AI, which requires the use of software algorithms, is supposed to augment human intelligence and provide us with answers to questions we can’t figure out without the use of AI, how is that at all obvious? What about IBM’s Watson cognitive computing platform? As of January 2011, Watson could perform 80 trillion operations per second. This year’s Wimbledon tennis tournament will use a poster created through the use of Watson’s visual image recognition application programming interface (API). Yes, humans have designed posters for as long as posters have been used for events, but the idea that a human designer could, in a time- and cost-effective manner, go through the historic archive of photos held by the All-England Lawn Tennis Club to create a composite from 8,400 images is real cause for Duda’s opinion on software patentability to lose any and all credibility.

However, Mr. Duda, we have fantastic news for you. Thanks to U.S. Supreme Court schmatta which can be found in the pages of court opinions from cases such as Alice Corp. v. CLS Bank International, challenges to software patents are strong in the United States. When the highest court in the land incorporates such backward-minded patterns of thought which allows them to say that “At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could,” the U.S. patent system must be a relative paradise to Duda and other anti-patent Luddites who believe that software inventions cannot and should not be patentable at all.

One has to wonder whether Google will in the future enjoy the patent system they have so carefully cultivated over the past decade, or whether Google will come to regret their shortsighted strategy to weaken the patent system for all— including itself.

Image Source: Deposit Photos.

Steve Brachmann Steve Brachmann is a graduate of the University at Buffalo School of Law, having earned his Juris Doctor in May 2022 and served as the President of the Intellectual Property [...see more]

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com.

Join the Discussion

38 comments so far.

Anon
July 1, 2018 08:16 am
Poor Benny, you are confusing being engaging with being obsequiently engaging.

I challenge people to think critically. I invite dialogue with such critical thinking.

Anyone with an informed opinion MUST agree with the characterization that I am an engaging person.
Benny
July 1, 2018 01:35 am
“…as I am such an engaging person…”
Not a universally held opinion.
Anon
June 30, 2018 05:12 pm
Night Writer @ 35,

Thank you for your concern. As it is, and as I am such an engaging person, I think that what I am doing with eff is the opposite of encouraging a bad actor.

Leastwise, if that bad actor is here trying to generate support for what he believes in.

As it is, my engaging this person is only providing more evidence of what this person may want to hide. That he may not realize that with each and every additional post of his, that he loses ever more credibility for the position that he wishes to espouse is certainly his problem. One that I am only to happy to oblige.
Night Writer
June 30, 2018 10:48 am
@32 Anon

You really should not engage a person like eff. He/she clearly has no intent of an honest discussion, but rather is merely pushing propaganda. You are encouraging a bad actor.
Night Writer
June 30, 2018 10:47 am
@30 eff

At this point you are noise. You are propaganda. You state again that the information in patents is unreadable. I’ve explained to you why the information in journals, blogs, etc., comes from the information in the patents. Moreover, many senior technical people have no problem reading patents.

You are propaganda bot to keep repeating what you said without responding to fair and substantive responses.
Ternary
June 30, 2018 10:08 am
You are fantasizing eff. There are significant performance issues with arithmetic coding, particularly with multimedia real-time decoding. Furthermore, arithmetic coding which theoretically has a better compression rate, is up against other, more established compression methods, of which many have/had patent protection.

We know from experience that a good invention protected by a patent can find wide adaptation. For instance RSA in encryption. Don’t blame inherent issues of a technology on the patent system.

Nobody on this blog disagrees that the patent system has its problems, but you are just spouting nonsense.
Anon
June 30, 2018 09:30 am
eff,

Since you refuse to travel along the path of the simple aphorism that I provided, perhaps we can engage on a different path.

Your comment about “Which haven’t been used for a few decades” reveals an animus of how you feel about patents.

How do you feel about not being able to use (exactly) someone else’s coding for a MUCH longer period of time due to copyright?

If you are this upset about patents (for your reasons given), you must be absolutely besides yourself and the contrainsts provided by copyright law.

How do you feel about copyright law?
Anon
June 30, 2018 09:24 am
eff,

You (again) show that you just don’t understand what patents are.

Patents are not – and have never been intended to be – engineering specifications.

You appear to want this, don’t understand the difference between what you want and what they are, and in your continued ignorance keep on spouting the mantra that you have been fed – much like a lemming marching up a hill.

You keep on saying things like “their sole purpose is to take your freedom” which just goes to show that you do not understand the concept of freedom. Freedom is not – and never has been – the unlimited ability to do what you want in total disregard to the laws of the state. You are not free to shoot anyone if you merely want to. That is not freedom. That is anarchy.

You want that which you truly do not understand – and want to eliminate something that your truly do not understand.

You are like a pouty child, wanting what you want, when you want it, without regard to the context of society and it’s chosen rules, nor WHY those rules have been chosen.

I have heard your position several times now. I fully understand your position. Repeating your position will not change the errors of your position.

I suggest that you choose a different tactic in order to come to grips with your errors.
eff
June 30, 2018 12:22 am
Anon, no – if one produces patents to help us, definitely PLEASE STOP!
If we want to learn new methods, we read articles, repositories, blogs – definitely not the unreadable patents.
Their sole purpose is taking our freedom – someone had somehow similar blurry idea to what we independently would like to do – and he forbids us to do it.

If one wants to share an idea, please just write an article like others do.
If one wants to forbid us using his idea – WE DON’T WANT YOUR “INVENTION”!

And no, regular programmer don’t want to forbid others using own work, nor shooting people – instead, they usually want wide use of own work, and patent has exactly the opposite result – like arithmetic coding from the above article, which hasn’t been used for a few decades due to patents.
Night Writer
June 29, 2018 10:59 pm
@26 eff

Actually, I think you have an obligation to actually tell us some cases that are a problem.
Night Writer
June 29, 2018 10:55 pm
@26 eff

What real experience are you drawing from?
Anon
June 29, 2018 08:14 pm
eff,

You truly do not understand patents or innovation. You merely are a lemming, mouthing the mantra of those “employers” that fill you with the “Oh Noes” of patents.

You mouth “artificial” and “pseudo” when what you want is to not pay for what others have done.
eff
June 29, 2018 03:56 pm
Anon, from perspective of programmers – making the real work, patents are literally a tool of terror – someone has written some unreadable jargon instead of implementation, completely useles for making a real product … and destroys your employer based on it.

Hundreds of thousands of patents, we would never look at otherwise, take our freedom, creativity and productivity.
We shoud focus, be restricted by real problems – instead of artificial ones: pseudoinventions nobody wants beside their authors.
Night Writer
June 29, 2018 01:21 pm
@22 eff

I used to be a software engineer. I have found people like eff to have this characteristic where they don’t attribute things they or do to where they learned them. They do things like use a software program and then start coding a copy of the software program and don’t seem to realize they are copying.

I also notice that eff doesn’t address the substance of my posts, but rather prattles on about whatever pops in his/her mind. Please go back and address the substance of what I said. You just created a little strawman that you found amusing. No one else did.
Anon
June 29, 2018 10:56 am
eff – thank you for the confirmation that you know nothing at all about patents and innovation.

And with the continued comments vis a vis shooting people, well, you don’t knwo what freedom really means either.
Tim
June 29, 2018 09:30 am
Good luck winning against Google. As Obama loaded them up throughout the government. And after the “Vringo vs IP Internet”, “huge win” against them for infringement, with 12-0 jurors on all charges, over the add-words program, which Vringo held the patent, along with the inventor, Andrew Lang, working for Vringo and testifying throughout the trial. It was a huge win! Only problem was, you have to be concerned about the “stacked deck” later, once Google take’s it to the Appeals Court. Judges “Wallach and Mayer” will not see the jury’s outcome and will “toss” the case, while the only qualified judge, “Judge Chen”, highly dissented. And then, if you take it to the Supreme Court, the case won’t be seen. Abra-Cadabrah! And shareholders will lose their life savings, as they believed in our court system being non corrupt! Vringo is now XSPA. Yesterday, even after a 10-1 reverse split, the stock is around $.35 a share.
eff
June 29, 2018 09:15 am
I wonder what your attitude would be if your natural job activities would accidentally turned out to be described by someone you have never heard of in a general patent, leading to your unemployment. Such destruction of businesses is not rare, and definitely not improve development – what was the original purpose of the patent system, but was deformed into a legal tool to forbid misuse.

“Freedom” to shoot people, or to take away their freedom, for example by forbidding to use own ideas which were earlier registered in a patent office – is not what freedom is about.
Anon
June 29, 2018 08:04 am
eff,

Your finding something “hard to resist” is easy to see that you are a shill for the anti-patent Big Corp.

ALL patents “reduce the freedom” – that is the nature of the exclusivity of patents.

What you want is an unlimited notion to copy freely. You want “freedom” in the sense of “free beer.”

The notion of prison is inapposite to the notion of freedom that you want.

Your notion of “lower quality of software” is also a lazy person’s response to the presence of a “you just cannot take and copy anything you want.”

You continue to fail to grasp the aphorism.

That’s why I started there – read again that aphorism. Come to understand what that aphorism means. Pick up a book on how innovation works. Educate yourself beyond the lemming churn of the Ars Technica, Slashdot, Techdirt and even (or more precisely, especially) the CRAP put out by the Electronic Frontier Foundation.
eff
June 29, 2018 12:13 am
The prison analogy was hard to resist seeing the ridiculous argument that reducing the freedom of those who actually work on solving a given problem, in the name of freedom of those who just write obfuscated patents instead, is good for their creativity – needing to slalom between patents is not the type of creativity we should value, and we all pay for it in lower quality of software we use.
Night Writer
June 28, 2018 06:33 pm
@16 eff

Plus I just worked with a cutting edge start-up. They received millions in funding and now have many people working for them. I wrote all their initial patent applications. The lead engineer actually looked through all the patents and told me what was different about his invention over what was out there. So please. Be real, eff. Try intellectual honesty.
Night Writer
June 28, 2018 06:29 pm
@16 eff

“nobody believes to find anything valuable there.”

Please, stop. So difficult putting up with clear misrepresentations from so many people regarding patents. The way it works is that the patent application discloses the information and allows the free exchange of information. E.g., often in large corporations the programmers are allowed to write papers, articles in magazines, post on blogs about what they invented. Etc. The patent application disclosure allows the inventor to share freely through many mediums and enables the inventor to leave the large corporation and work in the same area. But you knew this, didn’t you?

Eff. Please try to have an intellectually honest debate.
Anon
June 28, 2018 05:36 pm
eff @ 16,

Where is this “putting them in prisons” come from?

Are you unfamiliar with the aphorism I supplied?

As to corporations “generally forbidden to search through patents” – that is an entirely different subject, of which we can discuss if you want to (and if you are willing to learn something). For example, do you know why corporations do so “generally forbid”…? Hint: it is NOT because “nobody believes to find anything valuable there” (which is not really a sentence – I am taking this to mean that you think that corporations do not think that searching patents would provide anything of value). Instead, it is merely that corporations want to avoid any treble damage finding when they choose to “efficiently infringe.”

As to your provided link, yes, many “stupid patents” may get through. But such does not support your position – at all. That you think so – and that you provide a link to the obvious shill that is known as the EFF, says more than you think it does (and NOT in a good way). Further – if anything can be taken away from such a link, it is that better examination is necessary. But actually putting the focus on examination – and taking the focus off of would-be patentees – is not part of the “desired narrative.” I have spoken at length – and for quite some time now – on how the best focus as to reform is misaimed due to all of the dissemblings of the Efficient Infringers and that the aim should have been – all along – on making the examination process better.

As it is, your reply here misses the mark in almost every conceivable manner. You appear to not understand the basic aphorism itself, you seem to deny that the aphorism even approaches reality, and then you spin my statement into some ludicrous “desire” on my part to invoke some type of “prison” statement.

Maybe instead of being so dead set against patents that you just type any passing thought that comes through your mind, you stop, think, and compose something that is more on point with the reality of patent law and how patent law protects innovation.

Frankly, I doubt that you have ever studied how innovation works.
eff
June 28, 2018 05:02 pm
Anon, interesting, so the best way to inspire people’s creativity should be putting them into prisons?
Programmers in corporations are generally forbidden to search through patents – nobody believes to find anything valuable there, only restrictions making their work nearly impossible, or as you would call it: more creative.
https://www.eff.org/issues/stupid-patent-month
Ternary
June 28, 2018 04:56 pm
Socializing intellectual property is as stupid as trying to socialize means of production, which has been tried and failed, miserably (see Soviet Union, China, Cuba, Venezuela, etc, etc).

Your suggestion that the patent system is in any shape or form comparable to “limiting the freedom to shoot people” is laughable and uninformed and is merely intended to stoke anti-patent feelings without providing any empirical or scientific arguments. Your repeated efforts to equate “open-source” efforts with academic research is nonsense. Duda did his publication under the flag of (well-funded) Purdue University. His work is not freebie work. It is in no way comparable to self financed work done by independent inventors. Furthermore, much open source software, when scrutinized under the same rules as academic peer-review, would fall under the category of pure copying if not theft and would be deemed unpublishable.

Much of the research that is published by academia and researchers of commercial firms, like in image processing, error-correcting coding, cryptography ends up in a patent, and rightfully so. It has commercial value. Otherwise that work would not have been funded and would not have taken place.

Open source is not really missing “details.” It is just not interested in new details. It mainly uses what already has been published and adds very little to our knowledge base. It merely creates free software. I have seen no effort by the “open source” crowd to “own” a technology by consistently publishing novel inventions to preempt serious inventors from obtaining a patent.
Anon
June 28, 2018 03:16 pm
eff,

You are so wrong on so many aspects, one scarcely knows where to begin.

Let me then provide one aphorism for you to consider:

Necessity is the mother of invention.

That “blocking” that you seem to dread so much is actually a good thing. For it is when one is blocked, that one becomes MORE creative in order to surmount that block. Your path of no resistance actually degrades creativity.
eff
June 28, 2018 11:25 am
Ternary, “limiting the freedom to forbid” is analogous to “limiting the freedom to shoot people” – and can have similar consequence when patent is used to destroy employers.
The purpose of patent system is to improve development, forbidding has the opposite result. Especially regarding the work of academics and open source programmers just sharing their work to maximize efficiency of development, and who are physically not able to cover every possibility – should not be terrorized by the patent system which allows others to shred ones gift into monopolies for every detail missed by the author of a freshly published article or repository.
A Rational Person
June 28, 2018 10:43 am
Benny@8,

You’ve mischaracterized Night’s argument. Night was not talking about 35 USC 101, not 35 USC 102 or 35 USC 103. Night was pointing out that the fact that claiming that the functions of a device are performed by software instead of by a circuit should not make the device “abstract” and patent ineligible. He was not saying that substituting software for a circuit makes the claimed device patentable.
Night Writer
June 28, 2018 10:19 am
@8 Benny

Again, another ridiculous post from you. Strawmen flowing out your ears with psychotic statements.

First, what I said is not inaccurate and misleading. Anyone that works with real circuits and claims knows what I said is exactly right. I’ve written patent applications to some of the top electronic consumer products and work with Ph.D.’s in EE. You show me some proof that what I said was wrong, boy. I do this for real and have patents licensed by the largest corporation in the world.

Then you add some psychotic strawman.

“An innovative algorithm is worthy of patent protection, but re-writing a known process or idea in a high-level programming language – I’m not so sure.”

Benny, please stop blowing smoke out of your a$$. And, boy, please don’t post again where you state that I am wrong without offering at least some evidence.
Ternary
June 28, 2018 08:58 am
eff, An inventor having made a novel and non-obvious invention on patent eligible subject matter is entitled to obtain a patent on that invention. When you have a patent on an invention you are entitled to prevent anyone else to make or use the invention. That is the rule of the land (still.)

If Duda wants to prevent anyone else from obtaining a patent on the subject matter, (set it free, as you call it), he has to publish all possible patent eligible embodiments of the subject matter prior to anyone else filing a patent application.

Duda wants to prevent anyone else from obtaining a patent on “ANS for video compression” based on a fairly limited disclosure. (I see some possible patent eligible modifications.) He wants to limit the freedom of others under the guise of promoting freedom. He wants to own the idea. Good intentions, I hope/guess, but very bad idea.
Anon
June 28, 2018 08:24 am
Benny,

Your Pro-Efficient Infringer mantra is overflowing again.

Your statement as to the quote from Night Writer being inaccurate and misleading is itself inaccurate, because that quote is in fact accurate.

It appears as well as you take disagreement to launch into some different point. IF there is a known computing process (done in hardware), then doing the same thing in software is ruled out by 102/103 – not 101.

IF there is a non-computing process, then computerizing the process (either in hardware or software should be eligible (note: 101) and may well be patentable (note: 102/103) depending on the facts at hand.

Think of the XKCD cartoon on tasks: https://xkcd.com/1425/

In essence then, your blanket statement is also misleading.
Benny
June 28, 2018 05:27 am
Night @ 1,
quote, “one can replace almost any circuit with a processor and software…Saying software is abstract is saying that electrical circuits are all abstract too”

Inaccurate and misleading. To take your analogy further, if I design (and patent) and electrical circuit, and you replicate the performance of my circuit in software, what is your invention?
An innovative algorithm is worthy of patent protection, but re-writing a known process or idea in a high-level programming language – I’m not so sure.
John Blignaut
June 27, 2018 05:02 pm
In one piece Mr. Brachmann has captured everything that is wrong with our patent system. Couple of thoughts: 1. Ideally President Trump replaces Justice Kennedy with someone that understands digital technology. 2. The Googles of the world controls its consumers and thus does Congress who do not want to miss out on the control and campaign search results, and lobby dollars, and therefore be re-elected into perpetuity. 3. Interesting how Google is anti-patent yet will steal IP and patent it for themselves? Why is it that big tech offers software for sale/license/subscription… be it search, AWS or security software, etc, yet they want everyone else’s software to be unpatentable and free? So anti-patent philosophy is like liberalism, socialism and elitism…applies to everyone else except them and Congress, UPSTO, SCOTUS, and CAFC supports them – within a democracy. Something has to give for our patent system to survive and our economy to prosper.
eff
June 27, 2018 04:24 pm
Ternary: instead of wanting to “own an idea”, Duda’s actions suggest he wanted to make it free: with no owner, what is common among academics and open source programmers.
In contrast, Google not only wanted to “own the idea” of “ANS for video compression”, but much worse: tried to forbid others using this idea – which hasn’t even been theirs as for example Duda has directly written it to them two years earlier.
Ternary
June 27, 2018 12:41 pm
eff: one cannot “own” an idea. The old alchemists already knew that. So, if they discovered/invented something they kept it to themselves or wrote it down in crypto.

Furthermore, Duda applies technology/ideas on Arithmetic Coding that were not his own. So, he does not “own” the field. He advances it by developing a narrow sliver of it. He should be recognized for it, but he cannot prevent others from developing and protecting novel and non-obvious inventions based upon some of his ideas. That is the purpose of the patent system. In fact that is how technology is being developed, because it has some value.

The smart move in this for him (and Purdue University, his employer at the time it seems) would have been to file a patent application on the subject matter. Don’t blame Google for being better informed on the patent system. Though it appears that “open-sourcers” should be more careful in collaborating with companies.

It is unclear what is intended to be “unrestricted.” Everything that was published by Jarek Duda is presumably in the public domain and is still unrestricted in that sense. Everything following Duda that is novel and non-obvious (and clearly was not published by Duda) is basically open to be patentable. Why would Duda “own” that? In fact, he doesn’t own it if he does not invent/develop/discover it.
eff
June 27, 2018 09:01 am
The last quote from Duda starts with “Theoretically, the patent system should not allow those patents” and instead of software patents, seems to refer to previous paragraph – describing situation where patents build legal minefield around somebody else work, often intended to be unrestricted.
Anon
June 27, 2018 08:43 am
Interesting writing. It mirrors a bit my own views in that the Lemmings (Luddites) preaching that all software is obvious are basically making one of two historical blunders.

The first and more easily seen blunder is the “reasoning” that Congress explicitly repudiated in 1952: Flash of Genius.

What the Court prior to 1952 wanted (in its self-christened “The only valid patent is one that has not appeared before us”), was a reflection that patents should be extremely sparse, and that only Genius level work should merit one. An offshoot of this level of a bar to earn a grant is that either one is a Genius or one completely stumbles upon a serendipitous “a-ha” moment through pure luck.

There would be no middle ground.

The problem of course with such a patent system, is that such would absolutely fail to provide the fuel to the inspiration in order to achieve promotion.

No amount of outside fuel will generate genius. Thus, if the level of what it takes to earn a patent is that of a genius, then the system cannot spur on innovation (beyond the small subset of actual geniuses out there).

Likewise on the other end, a patent system is of no use to serendipitous discovery, as the nature of serendipity is not one that builds on the work of others (and let’s face it, the vast majority of patents are follow-on patents per the part of 35 USC 101 that speaks to “or any new and useful improvement thereof,“).

In other words, these strains of “anti-software patent” are really just “anti-patent.”

Now, the other blunder takes a little more nuance to grasp, and it involves the dichotomy in that software is desired to be viewed as not a change (or advance) at all, but merely having an existing machine do what that machine was built to do.

This blunder can be captioned the “House/Morse” blunder.

I have spoken to this blunder many times now over the past few years. A short recap then can be provided thusly:

A television show called House (2004-2012) featured a prickly doctor who would often quip sarcastic tomes that “of course” were always insightful and accurate – leastwise in the land of television fantasy. One of his quips was to the advancement (or lack thereof, per Dr. House) of software. His quip pertained to the view that only the very first computer was an invention, and that all software ever was, was merely using the first invented machine.

This “theory” is analogous to a number of the Slashdot/Techdirt/Ars Technica nonsense so often peddled to lemmings to build up an anti-patent froth. Take your pick among “software is like a recipe,” “software is like writing in a book,” “software is just math,” or whatever is being peddled currently.

However, the plain truth of the matter is that software is a manufacture by the hand of man (as that term is understood in patent law), and carries with it utility for which aspect, the protection of IP under the patent system pertains. It is ALSO true that software may have a different aspect for which different aspect, the protection of IP under the copyright system pertains.

The plain truth is that software is a “ware,” and like most any other type of “ware,” provides a design choice in the manufacture of a larger system.

And as I have pointed out many times previously, software is not the thought of software (a recent thread on the Microsoft Golden Master case at the Supreme Court shows the Court making that blunder). Software is also not the execution of software (albeit, the nature of software makes it such that it is often easier – and more clear – to discuss software through the execution of software).

Software is not a recipe. Software is not writing in a book. Software is not just math. There are (and have been presented without any cogent replies) a number of arguments backing up each of these statements.

So the second half of the “House/Morse” blunder comes from the notion that IF one takes House as being correct and that there is NO innovation from software (and only the first machine is an innovation), then the notion logically extends to be that any innovation presented, must have “already been in there.” So if – like Morse – the inventor of the first computer would be given his due (per the desires of the House argument), then, like Morse, the scope of that invention would have to have been ALL software innovation. Forever. But Morse was blocked from such.

The resolution of course, is that software DOES provide innovation – in and of itself.

The changing of a base machine by configuring that machine WITH software is in fact – a change to that base machine. Recall 35 USC 101: “or any new and useful improvement thereof,“).

This too has been shared on blogs in the patent blogosphere for many years now. This too has never seen a cogent reply that resolves the matter and upholds the anti-software patent mindset. The sharing that I speak of is the “Grand Hall Experiment,” wherein two identical computing machines are presented, and only one of them is (re)configured with software – such as an operating system and perhaps a software that provides a particular innovation. With no further changes to the machines, one is charged with carrying out the innovation. Of course, the computing machine sans software cannot do as the other machine can do.

How much does the innovation weigh? This is often a mindless retort. Of course, the innovation in such case need not be measured by weight. There is no “weight requirement” in the portion of 35 USC 101’s “any improvement thereof.” Nor is there any weight difference in the rebuttal of three resistors in parallel compared to three resistors in series (for which no one would doubt that a change in configuration does indeed have a very real real world effect).
Night Writer
June 27, 2018 08:31 am
One thing that everyone should understand–and everyone knows that actually works on inventions with circuits–is that one can replace almost any circuit with a processor and software. You just put in A/D converters and then do whatever processing the circuit does and then output with D/A converters. Everyone that has to write claims to inventions that includes circuits knows this.

Not only that but it is easy to put in little processors inside a larger chip that can do some of the functionality.

So–again–we have judges telling us the Sun orbits the Earth. Saying software is abstract is saying that electrical circuits are all abstract too.
nicolas
June 27, 2018 07:42 am
“très intéressant”