Posts Tagged: "computer software"

Software forensics is the examination of software for producing results in court. The objective of software forensics is to find evidence for a legal proceeding by examining the literal expression and the functionality of software. Software forensics requires a knowledge of the software, often including things such as the programming language in which it’s written, its functionality, the system on which it’s intended to run, the devices that the software controls, and the processor that’s executing the code. Whereas a digital forensics examiner may attempt to locate files or sections of files that are identical, a software forensics examiner must look at code that has similar functionality even though the exact representation might be different.

Certain things are obvious. It was obvious in the oral arguments that it was a challenge for both the Supreme Court judges and the lawyers to distinguish between abstract ideas, ideas, computer programs, technological innovations, patentable subject matter, and inventions. This confusion also showed up in the seven different written opinions of the judges in the Appeals Court review of this same case… Mr. Perry was wrong about word processing and e-mail. Providing a “technical solution to a then unmet problem” and providing a “technological advance” often does not constitute making an invention. That’s because with computers you can often make a technical advance that is obvious.

That only three briefs are filed in support of Alice Corporation is a little misleading in this case, however, since many of the briefs that were filed in support of neither party come out and directly support the patent eligibility of software. For example, the IBM amicus brief, which was filed in support of neither party, concludes that a Section 101 patent eligibility analysis is the wrong analysis to use in this and similar cases since the abstract idea doctrine is unworkable and yet to be defined by the Supreme Court. IBM suggests the Court use Section 103, the obvious analysis and the well developed case law under KSR, to determine patentability in this and similar cases. Thus, while IBM did not take a position on the specific merits of the case, as with many of the briefs filed, if the Supreme Court were to follow the IBM counsel it would lead to an Alice victory. Even Microsoft/Adobe/HP, which does not support Alice on these claims urged the Supreme Court to find software patent eligible. Thus, characterizing the position of the amici based on whether the support Alice, support CLS Bank or support neither party has proved quite difficult in this matter.

By Martin Goetz, inventor on the first software patent granted by the USPTO: “Much of this negativism is based on the poor job the US patent examiners have done in weeding out those many patent applications where the so-called invention is just one of the almost infinite, but obvious, ways one can automate a manual or semi-automatic process or procedure. But there are also true inventions that use a computer as part, or all, of the implementation of the invention. There is no reason to throw out the baby with the bathwater. So it is of utmost importance that we examine the many falsehoods related to software patents.”

… in order to handle the messy reality that the system claims, illustrated above, are clearly not abstract under any intellectually honest definition, they merely say that if the method and computer readable medium claims are not patent eligible neither are the system claims because… well just because. It seems inventions rise and fall based on what the applicant really wants to protect, not the claims… Assuming you have snapped back from the Twilight Zone yourself you may be hearing in your head the clanking of coconuts as several Monty Python players exit stage left in search for the holy grail! Of course, regardless of whether the coconuts migrate, those coconuts are are obviously abstract and not tangible, clearly not patent eligible and a fiction of your imagination. Therefore, you really can’t be hearing the coconut clanking noise because imaginary non-migratory coconuts that don’t exist can’t be banged together to make a sound.

The reason the abstract idea doctrine is unworkable is because the Supreme Court has never defined what is an abstract idea. The Supreme Court has treated the term “abstract idea” much as they have the term “obscenity”; they know it when they see it. Such a level of subjectivity leads to chaos, which is exactly how the Judges on the Federal Circuit can manage to find themselves evenly split on the issue of whether software is patent eligible. The Supreme Court abhors bright line rules unless they are the ones who announce them. Such an irrational fear of certainty and predictability is curious given how those concepts are so fundamentally important to a functioning judicial system. Still, if they don’t like bright line rules that everyone can follow as announced by the Federal Circuit they at least owe us a workable test that they are willing to endorse.

As the end of 2013 approaches and I look back on what has transpired I am saddened to see that through the year patent rights have continued to erode. Make no mistake about it, at every turn patent rights are eroding. You might think that there has been some collective, open-air discussion about whether this is a good idea. Nope! It seems government you get is the government you can afford, and those who have the ear of decision-makers on Capitol Hill are the extraordinarily well funding big tech companies that want to weaken patent rights or do away with them altogether. Indeed, there has been scant consideration paid to the effect of weakening patent rights. The erosion of patent rights is exceptionally alarming given the fact that the Founding Fathers thought it was self evident that a strong patent system was essential for America. The Founders believed the importance of patent rights to be so self evident that little debate was had on the topic. How the pendulum has swung!

A computer is, at a fundamental level, simply a clump of electrical switches each of which are in either an on or an off position. Whether and when a given switch is on or off is the result of the code that configures the switche(s) to be on/off and the subsequent result of passing small amounts of electrical charge through these switches (gates) and observing the output…. Software (and a power supply) is what makes a computer what we have, by now, come to know as a “computer”, i.e., our smart phone, laptop, or tablet. A computer, as a bundle of configurable switches; it is the “clay” a programmer uses to “sculpt” possibilities of outcomes based on a predigested set of inputs. The more the clay, the more the possibilities and the more “capable” a computer can become. Hence, each new chip with more switches, provides more possibilities, i.e., more and faster clay. The computer is the sculpted clay we hold in final form as determined by the program. The programmer, then, is the “artist” that creates the form, i.e, the utility. A program cannot manifest except on a computing device and the program running on a that computer is what defines that device (i.e., Windows, Mac, etc.). Will it ever think? Not in the same way you or I think, but maybe that is not a bad thing. We self program based on morality and context that we learn through a variety of inputs and adopt or reject as we roll through life. The circumstances that led to one decision when we were 18 lead, thankfully, to a different decision now!

The clearly erroneous Wall Street Journal article in question was published on December 15, 2013, under the title Jimmy Carter’s Costly Patent Mistake. The article, written by Gordon Crovitz, seems to take the position that patents stifle innovation, although Crovitz thesis is not explicitly stated. As ridiculous as it is to suggest that patents stifle innovation, this ill-defined Crovitz thesis isn’t the major issue with the fiction published by the Wall Street Journal. Crovitz erroneously states that software was not patentable until the Federal Circuit changed the rules of patent eligibility. That is simply false. There can be no dispute or argument to the contrary. Crovitz is wrong.

my iPhone can be a bell that you physically shake and it goes “ding” like a hotel desk bell; or it can be a carpenter’s level to help hang pictures, level a cabinet; or, it can be a compass that swings this way and that just like the one from a long ago scouting exercise; or it can be a flashlight. Clearly, one can patent a bell, level, or compass in whatever form it exists, it is a device. That much is not in dispute. But, what about the “code” that creates that “device”. It is now that we have the conundrum: is software (the code that both creates and instructs the machine) patentable apart from the machine? The answer to this question, when phrased in this way, is self-evident; yes, of course it is patentable. For the same reasons machines have always been patentable, they are a part of the “useful” arts. You see, the software is the machine. The machine is software. These are one in the same “thing”. If this is all so simple, then what is the argument about?

Deriving energy from the sun has been aggressively, albeit periodically, pursued since at least the 1970s when the U.S. suffered through several gas shortages. But over time gas prices decreased, the technology could not compete with cheap alternatives, so interest waned, although it never thoroughly disappeared… The Obama Administration, which seems exceptionally cozy with Google, seems to have real disdain for software patents, which is the Google articulated position. Thus, it is hard to reconcile the Obama Administration positions that are in favor of alternative energy but which are also against the patent eligibility of software. So many alternative energy innovations today and in the future will incorporate software.

Not surprisingly, the decision of the latest Federal Circuit case on software patent eligibility – Accenture Global Services, GMBH v. Guidewire Software, Inc. – could be predicted from the makeup of the CAFC panel. Judge Lourie, joined by Judge Reyna, issued the majority opinion that the system claims were invalid. The Court followed the analysis for determining patent eligibility from CLS Bank, 717 F.3d 1269 (Fed. Cir. 2013) and affirmed the district court’s finding that the system claims of U.S. Patent No. 7,013,284 (“the ‘284 patent”) were ineligible. Judge Rader predictably dissented from the majority and stated that he would hold the system claims to be patent-eligible subject matter. One takeaway from this decision is that the Court remains predictably divided. In this case, all three judges on the panel ruled in a way that was consistent with their ruling in CLS Bank, 717 F.3d 1269 (Fed. Cir. 2013).