Despite what you may have heard to the contrary, software patents have a very long history in the United States. Computer implemented processes, or software, has been patented in the United States since 1968. The first software patent was granted by the United States Patent and Trademark Office (USPTO) on April 23, 1968 on an application filed on April 9, 1965, Martin A. Goetz, a pioneer in the development of the commercial software industry, was the inventor of the first software patent ever granted, U.S. Patent No. 3,380,029. Several years ago PBS Digital Studios profiled Goetz and his pursuit of the first software patent.
To listen to the critics of software patents you would never know that software has been patented in the United States for nearly 50 years. The critics erroneously claim that the Federal Circuit first allowed software patents by effectively overruling the Supreme Court, but the Federal Circuit didn’t come into being until 1982, which is some 14 years after the first software patent issued, and after Supreme Court consideration of both Gottschallk v. Benson and Diamond v. Diehr.
Today software patents are under attack in the Courts. “[T]he Supreme Court and now this Court of Appeals for the Federal Circuit seem to be not considering the fact that the United States is leading in many of these emerging technologies and specifically thinking about software,” said Bob Stoll, former Commissioner for Patents and current partner at Drinker Biddle, during our recent webinar conversation on patent eligibility. Indeed, software is very important to the U.S. economy. According to the Government Accountability Office software-related innovations are found in 50% of all patented innovations. Without the availability of patent protection individuals, entrepreneurs, small businesses and start-ups will opt to keep their innovations secret rather than lay them open for inspection (and stealing) by much larger, well-funded entities who have long since lost the ability to innovate.
Pictured (from left) Francis Hamilton (IBM engineer), Clair Lake (IBM engineer) Howard Aiken (Harvard professor) and Benjamin Durfee (IBM engineer) — 2014 National Inventors Hall of Fame inductees for their invention of the Automatic Sequence Controlled Calculator (ASCC)
Later this evening the National Inventors Hall of Fame will induct three IBM (NYSE: IBM) engineers for their invention of the Automatic Sequence Controlled Calculator (ASCC), which was developed more than 70 years ago to rapidly and accurately perform complex mathematical calculations. The ASCC was a precursor to today’s cognitive computing systems like IBM Watson, which rapidly analyze data and learn and interact naturally with people. The ASCC ushered in the programmable computing era, which would ultimately provide the ability to put a man on the moon and to make the Internet a reality.
IBM inventors Benjamin Durfee, Francis Hamilton and Clair Lake, as well as Harvard professor and co-inventor Howard Aiken, will be posthumously honored by the Hall of Fame in a ceremony at the United States Patent and Trademark Office, the home of the National Inventors Hall of Fame. The National Inventors Hall of Fame, Inc. is a not-for-profit organization dedicated to recognizing and honoring invention and creativity, as well as honoring the men and women responsible for the great technological advances that make human, social and economic progress possible.
Durfee, Hamilton, Lake and Aiken will be inducted for their invention disclosed in U.S. Patent No. 2,616,626, which is simply titled Calculator. The patent application was filed on February 8, 1945, but did not issue until November 4, 1952. The invention described in the ‘626 patent was the first automatic digital calculator able to retain mathematical rules in its memory and not require reprogramming to solve a new set of problems. It represented a significant advance. Because reprogramming was not necessary, the invention was a powerful improvement, offering far greater speed in performing a host of complex mathematical calculations.
This article tries to bring a little more clarity to what is a computer-implemented invention —and what is an obvious use of a computer —by reviewing some of the Alice v CLS Bank oral arguments.
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.)
In the oral arguments (P34-L17), Justice Sotomayor in response to a discussion on abstract ideas, inventive contributions and the Mayo test for technological innovation asked Mr. Perry, counsel for CLS Bank, the following…
Justice Sotomayor: “How about email and just word processing programs?”
Electronics developers and manufacturers always make for great profile subjects in IPWatchdog’s Companies We Follow series, and today we want to take a look at Fujitsu’s patented technologies for the first time. This company, awarded the 12th-most U.S. patents among all companies during 2013, has many patent applications and issued patents published every week by the U.S. Patent and Trademark Office. Just in the last two months, we’re seeing some very interesting technologies related to many technologies, including hardware development and improvements to digital networking systems.
Our featured application today discusses a very useful technology for corporate digital networks for detecting illegal connections with external apparatus created through malware. This system addresses some of the ever growing concerns related to cyber attacks on businesses. We also cover other patent applications which discuss better simulation apparati for determining the effects of devastating water events as well as an improved remote car starter that draws less battery power.
The United States Supreme Court is poised this term to decide CLS Bank v. Alice Corporation, which could make meaningful strides toward settling once and for all the patent eligibility of software. The Supreme Court is known to like to dodge the most important questions we all need answered, and that trend is almost certainly going to continue in any decision in CLS Bank. But the Supreme Court won’t be able to dodge the fundamental question about whether software is patent eligible. The will likely, and unfortunately, dodge the question about what specifically must be recited in patent claims in order to properly define a software, or computer implemented invention.
Software is now and will remain patentable in the United States even after the Supreme Court’s decision in CLS Bank. The Patent Act is replete with references to software and computer implemented inventions. In fact, in 2011 Congress essentially said that tax strategies could not be patented in and of themselves, but this exclusion relating to tax strategies does not render an otherwise patent eligible software program patent ineligible. Thus, Congress has spoken, and on this particular issue Congress will be the final word because there is no chance the Supreme Court will rule software patents unconstitutional. That issue is not even before the Court.
Congress clearly has stated that at least some software is patent eligible, and so will the Supreme Court. That being said, the real question is how do you describe a software related invention to satisfy the patent requirements? The short answer is that it takes quite a bit more disclosure than you might otherwise think. Long gone are the days of cheap, easy software patents.
Headquartered in Palo Alto, CA, the Hewlett-Packard Company is an American multinational corporation focused on developing products and software-based services for the information technology industry. Today marks the first time we have taken a look at HP patents and pending applications, having just added them to Companies We Follow.
In today’s Companies We Follow column, we travel over to the West Coast to see what this Silicon Valley stalwart has been busy producing in its research and development programs. We’ve gone through the recent publications coming out of the U.S. Patent and Trademark Office to find the most intriguing HP innovations found in their patent applications and issued patents. In a world where the PC market has dwindled in recent years, Hewlett-Packard seems to be making strides to shore up its legal holdings for other technologies as well, especially imaging and printing tech, but the featured patent application today suggests HP has come up with software that can essentially read lips.
Take a quick listen to the many conversations that have been taking place in the computing world over the past year and you’ll likely notice one term being thrown about fairly often: cloud computing. This new form of computer networking is fraught with possibilities that would completely transform the idea of computing, whether in the home or in the workplace.
Even as more of us are becoming acquainted with the idea of the cloud, many of us are still woefully ignorant of what the term actually means. For example, a survey by cloud software developer Citrix Systems showed that 54 percent of respondents did not believe that they used cloud-based computing, even though 95 percent of them actually did. Almost as many respondents confused the cloud metaphor, believing that stormy weather could actually interfere with cloud systems.
Cloud computing is set to take a much more prominent role in our technologically savvy society. Providing advanced computing applications through networking channels severely reduces the IT needs of homes and businesses who want to use more powerful software programs without installing them on a client computer. With more than $131 billion in economic activityfor the cloud computing sector in 2013, more business infrastructure and software services should be taking to the cloud than ever before.
Entire corporations have begun to narrow their focus on cloud computing. IBM has been developing cloud-based solutions for business needs for a few years now, and Google’s cloud options for Internet users include online file storage and document creation. It is against this backdrop that we want to take a quick look back at 2013 and celebrate what some could call the Year of the Cloud, during which the concept began to truly enter the mainstream consciousness.
This article is the second in a series to provide some help to the Supreme Court as they prep for CLS Bank. See also Help for the Supreme Court in CLS Bank. Now, I realize the Supreme Court has other priorities; but I, as a patent guy, do not. If we (they) screw this thing up, it will have far, far reaching effects which will not be fully known for years to come. This is the Chakrabarty of our age!
There is considerable popular press antipathy to patents right now; big left coast tech and east coast banking are winning the PR battle, and this needs to be turned around. Did you read any of the overblown amici in Chakrabarty about the awful effects of patenting living organisms? Recently the Wall Street Journal just had an Op Ed about the CAFC being Carter’s Costly Patent Mistake. Is there any greater insult a conservative, allegedly business minded rag could hurl? OMG! I think not. It is time for us to head for the sound of the guns! (Perhaps, just perhaps, a little melodramatic. We shall see. But Gene has already responded to the WSJ article at Defending the CAFC, Again, on Software Patents.)
Why am I addressing such a fundamental issue? Because this is, in part, why we’re so fuzzed up right now about software, computer implemented methods, and business methods, etc. and their originality and patentability. It is hard for the lay person to differentiate. You see, the silicon types have made us believe that computers are on the verge of sentient being capability. We have IBM’s Watson, we have the iPhone Siri, self-driving cars, distance maintaining cruise control, self parking cars, etc. I expect people out there really believe you can ask a “computer” a question and expect it to really “think” up an answer. Our brains, we are told, are just sophisticated computers. Likewise we have people believing computers make mistakes, and computer glitches are running amok with our healthcare, crashing trains, performing surgery, etc. None of it is true in the sense of the ordinary definitions we apply to these things; yet it is these definitions that are the crux of our confusion over computers and whether the instructions we provide to control them really result in something patentable or, in anything at all. Isn’t the computer, at some threshold, just doing whatever a computer does? Well, not really; you see a computer does nothing without a program or power supply. Let’s find out why.
Over the past few decades, few companies have been so associated with American technological innovation as Apple Inc. of Cupertino, CA. In recent days, however, this personal electronics corporation has encountered some setbacks to their business. Along with further allegations of safety and workers’ pay violations at Apple’s Chinese supplier plants, the digital financial news website Fiscal Insider reported that Samsung has recently surpassed Apple in profits from mobile device sales in late July.
This week, as IPWatchdog returns to its Companies We Follow series, we check in with Apple Inc. to get an idea of what newly developed systems they hope will help them retain their lead in the electronics industry. Many of the recently published documents from the U.S. Patent & Trademark Office, including both patent applications and issued patents, relate to software system improvements that Apple has developed. One patent application for a voice assistant that can analyze contextual data is specifically for mobile device applications. Two other applications are for more general computer systems: one which protects a system of suggesting search result rankings for online shopping based on a person’s social network contacts; another would protect a cleaner user interface for browser windows with multiple open web pages.
Apple is also interested in improving the hardware systems involved in their devices. One patent issued by the USPTO protects a removable hard drive for small form factor desktop computers that helps reduce the overall weight of the entire computer. A final patent application we feature today describes a system of accurately calibrating a mobile device’s magnetometer in response to interference from other electromagnetic fields.
By now most are likely already familiar with the unfortunate reality that the United States Court of Appeals for the Federal Circuit issued a non-decision in CLS Bank v. Alice Corporation on Friday, May 10, 2013. There were 10 judges who heard the case en banc, with 7 of the 10 finding that the method claims and computer-readable medium claims were not patent eligible. While there may be reasonable room for a difference of opinion relative to those claims, it was the system claims that specifically and clearly recited tangible structure that has thrown the patent law of software into such disarray. 5 Judges would have found that the systems claims were patent ineligible (Judges Lourie, Dyk, Prost, Reyna and Wallach), and 5 Judges would have found the systems claims were patentable subject matter (Chief Judge Rader, Judges Newman, Moore, Linn and O’Malley). For more see Federal Circuit Nightmare in CLS Bank and 5 CAFC Judges Say Computer Patentable, Not Software and Did the CAFC Ignore the Supreme Court in CLS Bank?
Today, however, I want to write about one of the more bizarre passages I have ever seen in any decision, and then pose an almost unthinkable question: Is IBM’s Watson still patent eligible in the view of Judges Lourie, Dyk, Prost, Reyna and Wallach?
First, let’s start with the passage. Judge Lourie, who was joined by Judges Dyk, Prost, Reyna and Wallach, actually wrote: “At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could. Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility.”
UPDATED Friday, March 29, 2013 at 3:30pm ET (see comment #1)
International Business Machines Corporation (IBM) is an international business technology consultant and developer headquartered in Armonk, New York. As the top patenting company for the last 20 years, every week you can expect to see at patents on computer systems and other technologies where IBM is the assignee. This past week IBM received over 120 patents, which is a fairly typical week for the company. Below are a few of the patents and patent applications that caught our attention for one reason or another.
Task management has increasingly become a digital job as it becomes more productive to employ remotely isolated workers on the same job or project. Media and data such as job instructions, video or even computer code for computer-controlled machines can keep business activities going without requiring all workers to be physically present.
IBM looks to improve the access to knowledge for task management applications by creating a system for identifying a task creator and likely task participants. Once these participants are identified, the computer system works to selectively delegate tasks and information to the members that the system deems most likely to participate in a specific activity.
EDITORIAL NOTE: What follows are the prepared remarks of David Kappos, Under Secretary of of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, delivered at the Center for American Progress in Washington, DC, on November 20, 2012. This is reprinted here with permission.
Thank you, Winnie, for that kind introduction. Good morning, everyone. It’s great to be here at the Center for American Progress. I’m pleased to be able to talk about intellectual property and the role that intellectual property rights play in enabling innovative goods and services to come to market. And specifically, I’m going to focus my remarks on software patents and the so-called smartphone “patent wars,” which have become front page news in the last year or so.
It is increasingly clear that intellectual property, or IP, is a key driver of economic growth, exports, and job creation. IP rights are the global currency for creating value for products and services, for all innovators, in all markets. And the protection provided by patents is critical to the innovation ecosystem. In fact, last spring, the U.S. Commerce Department released a report that found IP-intensive industries support at least 40 million jobs and contributes more than $5 trillion to our economy, accounting for 35 percent of America’s gross domestic product. So it is in this context that we are seeing multi-billion dollar acquisitions of patent portfolios and a number of high profile patent lawsuits, involving some of the most innovative companies on the planet, who are producing some of the most popular technologies ever created.