An illustration of Alice by Lewis Carroll circa 1887.
In Part I, I addressed many of the issues that are being considered by the Supreme Court in the Alice v. CLS oral arguments, and continue the analysis here, looking at particular issues and what various amicus briefs argue, and whether those arguments hold up or not.
The Equivalence of Software and Hardware
There is a further gulf between those who view In re Alappat as sound logic and engineering (ABL, AIPLA, Alice, Mr. Ronald Benrey, BSA, CCIA, Mr. Dale Cook, Prof. of Computer Science Lee A. Hollaar, IEEE-USA, Microsoft) and those who it as mistaken (Electronic Frontier Foundation, Prof. Robin Feldman, Red Hat) and primarily responsible for an increase in such patents (Electronic Frontier Foundation, Google, “Law, Business and Economics Scholars”). The IEEE-USA provides an excellent analysis of the relationship between software and hardware, pointing out the incontrovertible principle of equivalency, that “special-purpose programming of general-purpose hardware” is “equivalent to special-purpose hardware,” though IEEE-USA fails to mention that this is a fundamental principle of computer science, as established by Alan Turing in the 1930s. To assert, as does the EFF, that the Federal Circuit “concocted” the equivalency of hardware and software goes beyond denying the foundational work of Turing and others. The equivalency of software and hardware is what makes it possible for Java to run on any type of computer using the Java Virtual Machine, as well the electronic design automation industry, which enables complex electronic circuits to be entirely designed in software before being implemented in hardware.
Eric Gould Bear is an inventor on over 100 patents and patent applications in the software space. He has spent over 25 years working with numerous Fortune 500 corporations with respect to assisting them in the creation of new user experiences. He is also a founder of the design studio MONKEYmedia, who signed onto the Trading Technologies amici brief filed in Alice v. CLS Bank at the Supreme Court. Bear is also a testifying expert witness for patent infringement cases. He is an expert in the software/patent space, and has seen the industry from multiple different angles over the years.
With the oral argument in Alice v. CLS Bank scheduled for Monday, March 31, 2014, I reached out to Bear to see if he would go on the record to discuss the issues he saw in the various briefs filed, what was good, what was problematic, and how he as a software expert would try and convey the issues to a layperson, or scientifically untrained jurist such as the Justices on the Supreme Court. He agreed and we spoke on the record about the issues, using as our focal point several of the high profile amici briefs filed.
What appears below is part 1 of my 3 part substantive software converation with Bear. In part 1 we discuss the false distinction between hardware and software, and Bear goes into deal with examples, saying at one point that most of the innovation today relates to software. He also takes issue with the ACLU amicus brief, calling it “embarrassing.”
Alice with Lion and Unicorn from “Through the Looking Glass,” published 1871.
Reading the merits briefs of Alice Corp., CLS Bank and many amici induces the strange feeling that there are multiple, parallel universes operating, and it is hard to know which one you are in. Are you in a universe in which Alice’s claims are for a software invention or a business method? Where software has always been patent eligible or has never patent eligible? Where the Supreme Court’s jurisprudence is absolutely clear and consistent over the past 150 years or entirely murky and at odds with itself? Of course, it would be foolish to expect universal agreement on a topic that is controversial, and we expect nothing less than zealous advocacy from lawyers. Instead of summarizing the briefs individually, I’ve organized my analysis by topics, looking at particular issues and what various briefs argue, and whether those arguments hold up or not.
Framing the Debate: The Question Presented
The fractured views of the world begin with the question presented, and reflect how different parties frame the debate in very different terms. Alice’s merits brief presents the question before the Court as “whether claims to computer implemented inventions…are patent-eligible.” Putting the question this way allows Alice to place its inventions and claims in the larger context of all computer-implemented inventions, the subtext being that if the Supreme Court holds that computer-implemented inventions are patent eligible—which is a fair bet—then Alice’s patents should be valid. Further, phrasing it this way allows Alice to distance itself from pure business method claims from the invalid claims in Bilski v. Kappos.
There are numerous briefs listed on the ABA’s brief publication webpage for Alice Corp. v. CLS Bank that are filed in support of the respondent, most of which make specious claims about software patents blocking innovation, or which make arguments that claims that specifically recite computers, data storage units, devices and more are somehow abstract and imaginary. These arguments should be easy enough to dispose of as ridiculous on their face, but who knows how the Supreme Court will respond. Still, one would hope that the Supreme Court would notice that neither patents generally or software patents specifically have done anything to block innovation in the smartphone industry.
Whereas the Alice supporters feel that the U.S. Patent and Trademark Office’s issuance of software patents are important for protecting and spurring innovation in many fields, the supporters of CLS Bank have largely responded that software patents hurt innovation. But that can’t be! One of the areas critics always say has been allegedly hamstrung by patents, the smartphones industry, is barely over 6 years old. Have patents stopped innovation of smartphones? Hardly. In fact, with every new version companies tout just how much more the phones do and how they are so far superior to the previous model. Thus, it is easy to see that those claiming that software patents block innovation simply ignore market reality and how the functionality of current devices (which is thanks to software) match up with previous generations of devices over the last 6 years. Corporate critics must also ignore their own marketing of new smartphones, which directly contradicts the ridiculous claim that software patents are preventing innovation. Still they make these and other specious arguments as if they are true.
WASHINGTON – The Department of Commerce’s United States Patent and Trademark Office (USPTO) today commemorated the issuance of the 700,000th design patent during a ceremony with United States Secretary of Commerce Penny Pritzker at Langdon Education Campus in Washington, DC. The patent for the ornamental design for a “Hand-Held Learning Apparatus” was issued to Jason Avery of Berkeley, California and is currently assigned to Emeryville, California-based LeapFrog Enterprises, Inc. (NYSE: LF). The ceremony also included the launch of a new Intellectual Property (IP) Patch developed as a joint project between the USPTO, Girl Scout Council of the Nation’s Capital and the Intellectual Property Owners Education Foundation (IPO).
“Design patents play a critical role in ensuring that America’s intellectual property system continues to be a catalyst for American companies and entrepreneurs to innovate,” said Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO Michelle Lee. “The design area has increased from twenty five and a half thousand applications in 2009 to just over thirty five thousand filings in 2013.”
Much has been said and written about China’s “low quality” and “junk” patents both domestically and internationally, but no one agrees what this means – what exactly constitutes “junk” and “low quality”? For that matter, what is “high quality”?
Unfortunately for the Intellectual Property industry, there is no single accepted or consistent measure for patent quality. Some say “low quality patents” refer to Chinese Utility Models because they are not examined, while others also include Chinese Design Patents as well. Others define low quality or junk patents to encompass all Chinese Invention Patents, Utility Models and Design Patents. However, a lack of in-depth analysis risks dismissal of the entire Chinese Patent System as being “low quality” or “junk”; such a rough stereotype is a grave mistake.
Note that among patent attorneys, “patent quality” has a different nuance from “patent strength”. Typically a patent’s strength is more indicative of patent validity with respect to the prior art, as opposed to quality, which is a broader concept. Like personalized concepts of “beauty” and “value”, the concept of patent “quality” is subjective and depends on one’s perspective, each case, and even changes over time.
Last week the United States Patent and Trademark Office announced that they will be holding a roundtable event on April 10, 2014, to discuss President Obama’s desire to find ways to allow the public to provide the Patent Office with prior art.
The patent laws already allow the public to submit prior art, and the public has hardly noticed. In fact, the America Invents Act (AIA) ushered in a new era of so-called crowdsourcing of prior art with the institution of third-party preissuance submissions. Despite how sexy this initiative seemed at the time or may seem in a social media, crowdsourcing conscious public, the reality is that during the first 15 months one could make a third-party preissuance submission there were only 1,228 such submissions filed, During this same time there were never fewer than 584,998 applications at the Patent Office awaiting first action.
The number of applications third party submissions could be filed in during this time would be much, much higher since a third-party submission can be filed prior to the earlier of: (1) The date a notice of allowance; OR (2) The later of: (i) 6 months after the date on which the application is first published by the USPTO, or (ii) The date of the first rejection of any claim by the examiner. But even if we conservatively assume that 584,998 application were available for such a filing that means that a minimum of 99.8% of applications have received no third-party preissuance submission. So much for the popularity of crowdsourcing prior art, at least prior to patent issuance.
The immense wave of technological innovation that continues to pour out of Samsung makes it a favorite one for us to cover here in IPWatchdog’s Companies We Follow series. Our investigation of Samsung’s recent patent applications and issued patents from the U.S. Patent and Trademark Office showed us some very novel new digital systems for Samsung’s various consumer devices. We wanted to share some of the most intriguing innovations from this company with our readers today.
First, we start by taking a close look at our featured patent application, which describes a system of linking applications on a single electronic device. By linking applications, a user can more easily switch between programs without using a multi-window view, which limits usable space on a touchscreen. Better methods of providing flash storage memory for smartphone devices and reader methods for adding multimedia effects of their choosing to an eBook are reflected in other patent applications we discovered.
How to Write a Patent Application is a must own for patent attorneys, patent agents and law students alike. A crucial hands-on resource that walks you through every aspect of preparing and filing a patent application, from working with an inventor to patent searches, preparing the patent application, drafting claims and more.
Without hesitation I recommend One Simple Idea and think it should be required reading for any motivated inventor. There is so much to like about the book and so much that I think author Stephen Key nails dead on accurate. The book is educational, information and inspirational. For the $14 cover price it is essential reading.
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