Priceline, one of the few dot-com bubble survivors, develops travel search engine tech

By Steve Brachmann
August 19, 2015

Priceline Negotiator and DaughterPriceline.com is a website that facilitates consumer purchases of travel plans and vacation packages, including airline tickets and hotel stays. After the dot-com bubble popped on Wall Street in 2000, causing Priceline to lose 99 percent of its value over an 18 month span, the Internet company has battled back to become the strongest selling stock on the S&P 500 with a market cap of about $66.8 billion as of this writing. In early August, Priceline released its earnings report for 2015’s second quarter, posting an 11 percent profit increase over 2014’s second quarter on the force of good hotel night reservations and car rentals at the start of the summer season.

Priceline.com is wholly owned by The Priceline Group (NASDAQ:PCLN) of Norwalk, CT, which possesses a really interesting portfolio of entertainment service operations, mostly for the facilitation of consumer purchases of entertainment services. The Priceline Group owns online booking website Booking.com, which will soon be rolling out Airbnb-style homestay reservations; travel search engine Kayak, which Priceline agreed to purchase in November 2012 for $1.8 billion; and online restaurant reservation service OpenTable, which recently released a survey of users, 76 percent of whom thought that was room for more inclusion of OpenTable and related technologies at limited service restaurants.

Priceline IP clusterIn total, the holdings of the Priceline Group own an intellectual property portfolio that claims 71 patents issued by the U.S. Patent and Trademark Office, as well as 68 patent applications filed with the PTO. As the text cluster created by Innography’s IP portfolio analysis tools can show us, much of the company’s research and development has focused on conditional purchase offer (CPO) technologies and travel searches.

 

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Priceline’s Issued Patents: From Better Flight Searches to Mobile Payments at Restaurants

A number of the patents recently issued to Priceline Group companies protect technologies that make it easier to find the travel accommodations people need to enjoy their vacations or pursue their business needs. The quicker and easier those services are for consumers to use, the more value that these services will bring to Priceline.

More accurate search engine results for engines that have to navigate massive datasets to return suggestions to a user is the focus of U.S. Patent No. 8972434, entitled Multi-Phase Search and Presentation for Vertical Search Websites. This patent, assigned to Kayak, discloses a computer program product storing code executable to operate a travel reservation search engine with a query interface module to receive a user search input with a constraint, a constraint evaluation module that can generate queries configured to obtain fewer search results or achieve a quicker response time, and a website query module that executes the multiple queries. This technology was developed in order to reduce the delay that a search engine user would often experience when waiting for the most relevant results from a vertical search engine that queries many other websites. Kayak also developed the flight information retrieval innovation reflected within U.S. Patent No. 8874492, which is titled Flight Caching Methods and Apparatus. The method claimed here involves generating a flight information cache with a plurality of flight solutions, applying a machine learning model for classifying the fidelity of a flight solution, applying a classification to that flight solution and performing an action based on the classified plurality of flight solutions. This invention seeks to optimize which flight information is cached in order to reduce time and cost burdens experienced when trying to process a search query for flight information. More collaborative travel search engine sharingfunctions are at the center of U.S. Patent No. 8719251, entitled Sharing and Collaboration of Search Results in a Travel Engine and also assigned to Kayak. The method for sharing search results among users disclosed here involves querying information sources based on a received search request from a first user, maintaining the set of search results in a first user separate session state, providing a set of search results for display on a first user’s client device, creating a second user separate session state that includes the set of search results, providing that set of search results in accordance with its separate session state for display on a second user’s client device and enabling a process of modifying separate session states on either client device. This technology is intended to benefit groups of people, from couples to business teams, who are trying to make travel plans together.

Priceline has developed a technology designed to help those who may need to make lodging plans while traveling which is protected by U.S. Patent No. 8868343, which is titled Locating Place of Lodging Along a Route. It claims a computer-implemented method of determining a starting point and a destination point, locating lodgingdetermining a route of a journey by a mode of transportation between the points, selecting a plurality of search points along the route, performing point searches for places of lodging, identifying two or more places of lodging located along the route, selecting a search result point which has achieved a threshold for a certain number of lodging places and displaying the search result information associated with the route. The interface would also display price level and other information that can help a user make a better lodging choice while in transit.

Online restaurant reservations made through OpenTable are described within U.S. Patent No. 8856117, mobile paymentstitled System and Method of Accelerating Response Time to Inquiries Regarding Inventory Information in a Network. The system for providing availability information protected here includes web servers that receive requests for restaurant table availability and a yes/no change in inventory server that stores change in inventory information regarding inventory at specific locations. This “yes/no” system for identifying that a table has been reserved is designed to improve online messaging efficiency, thereby increasing overall online reservation searching efficiency. OpenTable has also produced a technology that is meant to streamline the process of paying for a meal. U.S. Patent No. 8949142, which is titled Mobile Payments Integrated With a Booking System, claims a data processing method of associating a reservation record with a location identifier at a merchant booking computer, obtaining a location identifier and transaction ticket data, receiving at a mobile computing device a request to pay an amount of the transaction using the ticket data and requesting a payment gateway computer to initiate a payment transaction. This invention will allow those using OpenTable to make a reservation at a restaurant to pay for their meals directly through an OpenTable app on a mobile device.

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Patent Applications of Note: More Group Outing Tech and Presenting More Profitable Search Results

CPO management systems, in which CPOs are received from potential travel customers and those CPOs are checked against a number of rules designed by airlines selling those seats, are the foundation of much of Priceline’s business. U.S. Patent Application No. 20140279172, filed under the title Conditional Purchase Offer Management System, claims a method of processing airline ticket sales by receiving a purchase offer for travel which includes price from a customer, identifying restricting rules from a plurality of sellers of airline tickets and comparing the purchase offer to the rules to determine if any of the airline ticket sellers will accept the CPO. This innovation helps Priceline leverage its customer base for selling excess airline capacity in a way which airline providers are able to individualized marketingprofit. Encouraging the sale of available hotel rooms, flight tickets and car rentals is the focal point of Kayak’s U.S. Patent Application No. 20140136316, entitled Individualized Marketing to Improve Capacity Utilization. The method for executing marketing campaigns claimed here involves receiving information for a campaign associated with a supplier and including information about an item promotion, receiving forecast data for a supplier based on future availability of items and automatically modifying the execution of the marketing campaign based on the forecast data. This technology is intended to better identify consumption patterns before putting together marketing communication.

Search engine results designed to make sure that the travel choices you select are the most profitable ones for Kayak to offer are the result of the technology that would be protected by U.S. Patent Application No. 20150199621, titled Profitability Based Ranking of Search Results for Lodging Reservations. It discloses a method of identifying a plurality of travel results in response to a search query associated with a travel reservation, assigning a measure of profitability to various travel results and displaying the travel results with preference given based on the measure of profitability. This system gives Kayak a tool for presenting the travel options which are the most remunerative to the company after a customer has already set filter levels for price and more.

shareable favoritesCollaborative systems for group entertainment were outlined in a few other patent applications that caught our attention today. Showing up in Priceline’s IP portfolio is U.S. Patent Application No. 20140229854, filed under the title Shareable Favorites Sets. The patent application would protect a method of displaying a graphical user interface with a plurality of item summary titles and a set of favorites buckets, receiving an input specifying the addition of one item to a set of favorite buckets, storing data identifying the item, receiving another input specifying the sharing of the set of favorites buckets and automatically creating an electronic mail message with hyperlinks that identify an online description of items from the favorite buckets. The technology is intended to improve the process of sharing favorites lists on mobile touchscreen devices. This patent application was first filed by two inventors, John Caine of Fairfield, CT, and Jonathan Taylor of Ridgefield, CT, in February 2013 before its assignment was legally changed to Priceline that same month. Better systems for recommending entertainment options to a group of people are discussed in U.S. Patent Application No. 20140365313, titled Providing Personalized Recommendations Relating to Group Actions. The computer-implemented method disclosed here involves determining information related to each of a plurality of individuals, determining a group action recommendation and causing presentation of the group action recommendation at a computing device of a particular individual in the group. This OpenTable group recommendation system would be helpful to friends who want to try a restaurant by pointing out locations that their other friends have enjoyed.

An invention for the collection of consumer data to develop better marketing operations has been developed by OpenTable, as is evidenced by U.S. Patent Application No. 20150046199, entitled Computer Based Guest Monitoring and Identification System and Method. The system for identifying a guest that would be protected utilizes an input interface that receives data identifying a guest from a device, a processor that determines whether the guest is found in a database and indicates the name and service queryless presentationprofile of a guest if that guest is in the database. This system would help restaurants better develop loyalty programs by automatically identifying if a person is a VIP customer and quickly uploading that customer’s VIP service profile.

Finally, we were intrigued by an e-commerce tool developed to better suggest recommendations without any input from a user, outlined within U.S. Patent Application No. 20140258270, which is titled Context-Based Queryless Presentation of Recommendations. It discloses a data processing method of determining which of a plurality of context sets to consider as relevant as represented by stored data, generating a query based on the stored data and presenting results of the generated query without receiving an explicit query from a computing device. This system uses past purchase data, time of day, weather, a device’s current location and other data to generate relevant recommendations. This patent application was first filed in March 2014 and is assigned to Ness Computing even though OpenTable, prior to become a Priceline property, bought Ness Computing the prior month.

The Author

Steve Brachmann

Steve Brachmann is a freelance journalist located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He writes about technology and innovation. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients and is available for research projects and freelance work.

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. Read more.

Discuss this

There are currently 22 Comments comments.

  1. Joachim Martillo August 19, 2015 9:58 am

    I don’t understand why any of this stuff is patentable. The applications and patents simply claim a program that runs on the vast NORMA (No Remote Memory Access) multicomputer that is the World Wide Web. All the inputs come from within the NORMA multicomputer and all the outputs are put on the multicomputer.

    These patents and applications should all be invalid by Gottschalk v. Benson.

    I made the following comment on the PTO’s 2014 interim guidance.

    I have been reviewing the CAFC decision in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (F. Cir. 2014) because I am working on a WWW (World Wide Web) based patent application for an employer. Unfortunately, I cannot disclose anything about that, but I have served as a patent litigation consultant to several law firms in the past and have thought about the issues addressed in this case on my own time.

    The CAFC seems to have been distracted by the networking protocols.

    The World Wide Web/Internet is a vast giant NORMA (defined below) distributed multiprocessor system.

    Today practically all computer systems are multiprocessor systems because almost all the major CPU chips are available in multicore versions that contain multiple processor cores that run in parallel. (It has been a long time since I have actually worked with a single core single processor system although I know one could still design such a system with available microprocessor chips.)

    Generally multiprocessor systems fit into three categories:

    UMA (Uniform Memory Access) — all processors see memory in exactly the same way,

    NUMA (Non-Uniform Memory Access) — each processor can access its local memory quickly and can access remote memory more slowly. Local memory to one processor is remote memory to a separate processor,

    NORMA (No Remote Memory Access) — each processor accesses its local memory quickly and cannot access remote memory directly. Instead remote memory is typically accessed by message exchange (over some sort of network medium — like the Internet). In the past such systems have generally been IP based distributed systems that use RPC (remote procedure call) libraries to access resources. (Of course, in the past IBM, DEC, Prime, et alia all had their own proprietary distributed systems based on proprietary networking protocols.)

    Various open and proprietary software packages are available as a means to run some number of separate computer systems as a NORMA distributed system. Beowulf is an example of an open software system meant to create a NORMA distributed cluster from off the shelf computer systems. Mercury Systems, Inc. is an example of a company that provides a proprietary cluster distributed systems.

    The latest distributed systems skip building RPC libraries and developing (or using) various sorts of resource location systems. Instead they piggy-back on WWW protocols and use extended versions of URLs (Uniform Resource Locators). SOAP (Simple Object Access Protocol) or REST (Representation State Transfer) or combinations thereof are generally used in implementing a WWW based NORMA distributed computing system.

    Sometimes NORMA systems use a software layer to emulate NUMA systems.

    When such software emulation is built into hardware logic, one typically refers to (NUMA) fabric interconnected systems. Starfabric provides this capability. The DOD likes it, but generally fabric-interconnect has been a solution in search of a problem.

    If the CAFC judges that adjudicated DDR Holdings understood the WWW as computer scientists (like me) do, the claims of the DDR Holdings patents would have been invalidated by the precedent of Gottschalk v. Benson, 409 U.S. 63 (1972).

    Below is the first independent claim of the ‘399 patent. As long as the desktop or laptop computer is running the browser, it is part of the vast NORMA distributed computer system that is the WWW.

    1. A method of an outsource provider serving web pages offering commercial opportunities, the method comprising:

    (a) automatically at a server of the outsource provider, in response to activation, by a web browser of a computer user, of a link displayed by one of a plurality of first web pages, recognizing as the source page the one of the first web pages on which the link has been activated;

    (i) wherein each of the first web pages belongs to one of a plurality of web page owners;

    (ii) wherein each of the first web pages displays at least one active link associated with a commerce object associated with a buying opportunity of a selected one of a plurality of merchants; and

    (iii) wherein the selected merchant, the outsource provider, and the owner of the first web page are each third parties with respect to one other;

    (b) automatically retrieving from a storage coupled to the server pre-stored data associated with the source page; and then

    (c) automatically with the server computer-generating and transmitting to the web browser a second web page that includes:

    (i) information associated with the commerce object associated with the link that has been activated, and

    (ii) a plurality of visually perceptible elements derived from the retrieved pre-stored data and visually corresponding to the source page.

    In the above DDR Holdings’ claims, a web page was just calculated/generated at a server from some (browser) terminal inputs (something quite trivial by use of common automatic web page generation systems) and displayed on a (browser) terminal. The server queried a database that was also located within the NORMA distributed computer system. These claims are at least as directed to an abstract idea as those of Benson as was decided in Gottschalk v. Benson.

    Note that as a PHOSITA using the ‘399 patent as a guide, I would first implement the DDR Holdings method of Claim 1 on a Linux system by installing the mongodb database server thereon along with the node.js server-side scripting system. I would then install one of the node.js mongodb interface packages along with the node.js express server framework package. Then I would simply code the described DDR holdings server. The whole server is unlikely to exceed more than a few hundred lines. I could test the whole system by means of a Chrome, Mozilla, or Safari browser installed on the Linux system. Voilà I have implemented the method of Claim 1 in three local programs (my server script+off-the-shelf browser+mongodb server) on my Linux system. Because I implemented the server by means of node.js, the server script could be run on any computer system that hosts node.js and implements WWW protocols. The server script could access a mongodb server on any computer system that implements WWW protocols. In other words, I just implemented a system that implements the method of Claim 1. As far as I can tell, the USPTO and the CAFC have allowed patent claims whose inputs and outputs are purely within a single (distributed) multiprocessor computer system and that don’t in anyway represent an improvement to the WWW viewed as a vast NORMA distributed computer system. All of the ‘399 independent claims should be ineligible under 101 even though the CAFC incorrectly decided otherwise.

    Note the USPTO abstract idea guidance (http://www.uspto.gov/patents/law/exam/abstract_idea_examples.pdf) provides ways to formulate Web-related claims that would be eligible under 101. The desktop/laptop has sort of a dual personality/identity/aspect. If the user terminates the browser, the user’s computer is no longer part of vast NORMA distributed computer system.

    If the browser uploaded a file from the laptop/desktop to a web server that analyzed it and generated a new/modified file that is saved to file storage on the user’s desktop/laptop computer and that could be reviewed by the user independent of the World Wide Web (browser) and of the vast NORMA distributed computer system that the WWW forms, a claim could be written that avoided 101 ineligibility.

    I have also seen robotic systems that are controlled (or at least configured) via the Web. Such systems would probably be 101 eligible according to the precedent of Diamond v. Diehr, 450 U.S. 175 (1981).

    BTW, the logic that renders the ‘399 patent invalid under 101 should also apply to the Google Panda patent (US 8682892) and similar patents. The USPTO needs to seriously reevalute 101 eligibility within the context of NORMA distributed systems, and judges in the district court system as well as those on the CAFC need to be brought up to speed with respect to modern distributed computing concepts before the patent system is inundated by a new flood of trash patents.

  2. Curious August 19, 2015 10:57 am

    These patents and applications should all be invalid by Gottschalk v. Benson
    What did that abomination of a decision say about software? It is said that the decision precludes a patent for any program servicing a computer. We do not so hold.

    The reasoning behind the Benson decision: Here the “process” claim is so abstract and sweeping as to cover both known and unknown uses of the BCD to pure binary conversion. The end use may (1) vary from the operation of a train to verification of drivers’ licenses to researching the law books for precedents and (2) be performed through any existing machinery or future-devised machinery or without any apparatus.
    This is where SCOTUS mixes up breadth of claims with being directed to an “abstract idea.” ALL broad claims are necessarily abstract in some sense since they cover multiple, different embodiments of the invention.

    Their analysis, in a “nutshell” (Douglas’s word, not mine), is the following:
    It is conceded that one may not patent an idea. But, in practical effect, that would be the result if the formula for converting BCD numerals to pure binary numerals were patented in this case. The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that, if the judgment below is affirmed, the patent would wholly preempt the mathematical formula and, in practical effect, would be a patent of the algorithm itself.

    Regardless, you have yet to explain why Benson applies to the claims you’ve identified.

  3. Joachim Martillo August 19, 2015 11:33 am

    From Gottschalk v. Benson.

    “It is conceded that one may not patent an idea. But, in practical effect, that would be the result if the formula for converting BCD numerals to pure binary numerals were patented in this case. The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that, if the judgment below is affirmed, the patent would wholly preempt the mathematical formula and, in practical effect, would be a patent of the algorithm itself.”

    In this case the digital computer is the vast NORMA multicomputer which is the World Wide Web.

  4. Joachim Martillo August 19, 2015 12:02 pm

    Here is a book from 2010.

    https://books.google.com/books?id=Q5F5AgAAQBAJ&pg=PA31&lpg=PA31&dq=%22world+wide+web%22+is+a+multicomputer&source=bl&ots=eQmiEbpAPA&sig=8yioEEmLVuXEJUDjE_6U9FQDeWo&hl=en&sa=X&ved=0CEcQ6AEwBWoVChMIifeozsC1xwIVgooNCh14Mw5E#v=onepage&q=%22world%20wide%20web%22%20is%20a%20multicomputer&f=false

    I am expressing something which is obvious and has been obvious for years.

    If a procedure has no substantial practical application except in connection with a digital computer, it is patent-ineligible.

    Why should that procedure become patent eligible upon moving it to a multicomputer like the World Wide Web? There are programming languages like node.js expressly designed for this purpose.

  5. Joachim Martillo August 19, 2015 12:19 pm

    Here is a 1997 book that points out the potential of the World Wide Web to act as a metacomputer, which is a type of multicomputer.

    https://books.google.com/books?id=Qtd8X8KYPBcC&pg=PA218&dq=multicomputer+%22world+wide+web%22&hl=en&sa=X&ved=0CDoQ6AEwBjgUahUKEwiQ587axbXHAhVFkg0KHeCBAmk#v=onepage&q=multicomputer%20%22world%20wide%20web%22&f=false

  6. Curious August 19, 2015 12:45 pm

    If a procedure has no substantial practical application except in connection with a digital computer, it is patent-ineligible.
    No the digital computer was incidental to the Court’s analysis. The important part is that despite being limited to a digital computer environment, “if the judgment below is affirmed, the patent would wholly preempt the mathematical formula and, in practical effect, would be a patent of the algorithm itself.”

    Benson was about patenting of a mathematical formula such that its entire practical use is preempted. The claim you identified above bears little semblance to what was claimed in Benson. There is no “mathematical formula” being invoked.

    Whether or not the WWW acts as a metacomputer is immaterial.

  7. Gene Quinn August 19, 2015 1:15 pm

    Joachim-

    Gottschalk v. Benson has long since been functionally overruled by both the Supreme Court and the Federal Circuit, and ignored by the Patent Office.

    You say: “If a procedure has no substantial practical application except in connection with a digital computer, it is patent-ineligible.”

    That is exactly backwards based on the law today. In order to have any hope of being patent eligible the process must be tethered to a machine, such as a digital computer.

    -Gene

  8. Curious August 19, 2015 1:49 pm

    Gottschalk v. Benson has long since been functionally overruled by both the Supreme Court and the Federal Circuit, and ignored by the Patent Office.
    SCOTUS gives lip service to Benson — if only because Benson created the “abstract idea” exception. However, as I have noted in the past, at least some of the claims of Benson would sail through the USPTO today — at least as far as 35 USC 101 goes since some are tied to a machine.

    In order to have any hope of being patent eligible the process must be tethered to a machine, such as a digital computer.
    In today’s environment, yes, but that is not what SCOTUS said in Benson, which left open the possibility of a non-tethered method claim as being patent eligible. It is the current SCOTUS that has mucked things up by essentially ditching the MOT test. The claims of Alice were surely tied to a machine, but that wasn’t enough. As such, the MOT test has been transformed (patent eligible now?) into a MOT patent eligibility factor.

    As a MOT “factor,” the Court is free to place whatever weight on the factor the Court chooses (including zero weight). The Supreme Court’s eschewing of “bright line” tests simply permits the Court to arrive at whatever result it deems “correct.” When the correct result being deemed, the Court can monkey with the factors whatever way it pleases so as to arrive at the correct result. With a reviewing Court, they can reverse a lower Court’s result-choosing (I think that phrase is more appropriate than decision making) as failing to give “proper” weight to the factors in play.

    Of course, without any “tests” to work with (only factors), those of us who have to draft the claims have little idea as to what is patentable subject matter and what is not. While SCOTUS, in Alice, basically stated that we are basically employing the same analysis they employed in Bilski to knock the claims out, the Courts and the USPTO have read Alice far more broadly than they read Bilski.

    Unless SCOTUS fixes the mess they made, the eventual impact of decisions of the USPTO and the other federal courts to innovation in this country will go from a trickle to a flood. Right now, most people cannot believe how Alice is being (mis)used by both the Courts and the USPTO and they are holding out hope that SCOTUS/Congress will put an end to this nonsense. However, without intervention, this disbelief will soon turn to acceptance and people/companies will rethink their investments in a whole host of technologies if those investments in intellectual property cannot be protected.

    It is a sad, sad state of affairs if you are an innovator. However, if you are a copier these days, life couldn’t get much better.

  9. Night Writer August 19, 2015 11:44 pm

    Joachim Martillo : So, you would hold that a computer that does your job is not eligible for patentability?

    Also, what an abomination reading your nonsense that mixes 101, 102, 103, and 112. Alice shames our nation.

  10. Joachim Martillo August 20, 2015 8:41 am

    Are you guys seriously claiming that if I write a patent application for program software that does nothing outside the computer on which it is running, valid patent claims will be allowed that are directed to software methods that do nothing outside the computer on which the program software is running?

    I read through the Priceline patents and patent applications. Such is exactly what happened here, in the case of the Google Panda patent claims, and in the case of the DDR Holdings claims, but it is quite clear that the judges and the patent examiners did not have a clue that the World Wide Web is simply a vast metacomputer/multicomputer on which relatively simple software was being executed with no effect whatsoever outside the metacomputer/multicomputer.

    As for #9, if you can write a node.js program script that does my job, it would be doing a hell of a lot of stuff outside the multicomputer/metacomputer on which it is running. Reasonably written patent claims would almost certainly pass the Alice test and would be far more than the procedure claimed in the Benson patent application.

  11. Curious August 20, 2015 9:13 am

    Are you guys seriously claiming that if I write a patent application for program software that does nothing outside the computer on which it is running, valid patent claims will be allowed that are directed to software methods that do nothing outside the computer on which the program software is running.
    What is magical about the claims being directed solely to the environment within a computer (or not)? Why should that distinction matter? Nothing in the statutory law makes that distinction or even implies that distinction matters. Moreover, if that distinction applies to a computer, why shouldn’t it apply to other environments?

  12. Joachim Martillo August 20, 2015 10:55 am

    Neither do I write the guidance, the regulations, or the statutes nor do I decide the case, but I do make suggestions to patent agents or to lawyers with respect to patent issues.

    As far as I can tell a program running on a computer whose inputs and outputs never go beyond the computer is not patent-eligible.

    That seems to be the sense of articles in this forum.

    The Patentability of Software: Myths, Facts and a Proposed Test

    http://www.ipwatchdog.com/2014/05/28/the-patentability-of-software-myths-facts-and-a-proposed-test/id=49792/

    I have the impression that far too many judges (including Chen) and examiners don’t have a good grasp that the World Wide Web is just a big computer.

  13. Curious August 20, 2015 11:23 am

    As far as I can tell a program running on a computer whose inputs and outputs never go beyond the computer is not patent-eligible.
    I believe you are misreading the law. Moreover, that statement does not even square with the USPTO’s guidance that claims directed to software that improves the functioning of a computer itself is patent eligible (see slide 21 of 2014 Interim Guidance on Patent Subject Matter Eligibility).

    I have the impression that far too many judges (including Chen) and examiners don’t have a good grasp that the World Wide Web is just a big computer.
    I doubt that. Chen wrote the following:
    But these claims stand apart because they do not merely recite the performance of some business practice known from the pre-Internet world along with the requirement to perform it on the Internet. Instead, the claimed solution is necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks.
    Chen wasn’t saying the internet is different from a computer. Instead, Chen was stating that the invention is more than applying the a known business practice to a different environment — i.e., the internet.

    Chen also recognized that the addition of the internet is not merely enough when he wrote (in characterizing another case): these claims in substance were directed to nothing more than the performance of an abstract business practice on the Internet or using a conventional computer. Such claims are not patent eligible.

    That seems to be the sense of articles in this forum.
    The article you cited does not appear to support your proposition.

  14. Joachim Martillo August 20, 2015 11:35 pm

    Improvements to the functioning of the computer itself

    Slide 21 of the 2014 Interim Guidance

    The above is not relevant to the patents at hand.

    For example, in the old days computers might exist in two versions one with hardware support for floating point and another with software support via a linkable library for floating point.

    Executables built for the former might not run on the latter.

    Sometimes it was possible to hack the interrupt vector table to capture the unsupported instruction trap to make it possible to run executables with floating point instructions on computer versions that did not have hardware support for floating point.

    Companies like DEC would patent such kludges to prevent 3rd parties from interfering with upgrade sales.

  15. Curious August 21, 2015 12:02 am

    The above is not relevant to the patents at hand.
    My reference to the USPTO guidance material was DIRECTLY in response to your statement that “[a]s far as I can tell a program running on a computer whose inputs and outputs never go beyond the computer is not patent-eligible.”

    The rest of your comments are technical babble that, while perhaps interesting and relevant to somebody, aren’t relevant to the law at hand. Why you mentioned them is a complete mystery.

  16. Joachim Martillo August 21, 2015 12:15 am

    I may have obscured my meaning by writing “WWW/Internet” in the original comment. I meant World Wide Web over Internet. Computer keyboards do not generally have a good way to represent the vinculum that is used in fractions to substitute for “over”.

    Substituting Internet where I used WWW, web, or WWW/Internet shows precisely the confusion that is a associated with Web application and that I seem to be doing a poor job of explaining.

    The terms, WWW and Internet, are not equivalent.

    The Internet provides a virtualized layer/level 3 communications media “on top of” various layer/level 2 media to provide something that looks like global connectivity across (possibly) heterogeneous layer/level 2 media.

    The modern World Wide Web builds on top of the Internet a distributed execution environment comparable to the execution environment traditionally provided by computer systems running some sort of operating system or by clusters of such computer systems+OSs running some sort of multicomputer OS software like Beowulf, Scyld, or proprietary solutions provided by companies like MCS.

    [One can also describe private Webs built on private Intranets isolated from the global Internet.]

    Modern Webs are somewhat more dynamic than older multicomputer/metacomputer environments. A laptop becomes part of a Web by running a browser that enables it to become an I/O device in the multicomputer/metacomputer environments, but the laptop maintains a sort of dual identity and can leave the multicomputer/metacomputer entirely by terminating the browser. Similar logic applies to servers and other Web resources.

    Chen and the CAFC found the DDR Holdings claims allowable under 101 because they focused on the lower Internet software and ignored the Web execution environment, which they did not seem to understand.

    The CAFC found Claim 1 of the ‘399 patent allowable because the claimed solution is necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks, but the Inventors did no such thing. The execution environment provided by the World Wide Web overcame that problem. The Inventors were just software writers that wrote a software application whose inputs and outputs were all on one (multi-/meta-) computer.

    Such a software application belongs to the second row of the table that Millien & George provide in The Patentability of Software: Myths, Facts and a Proposed Test.

    Unfortunately, because the defendants settled, SCOTUS will not get a chance to overturn the wrongful decision and will have to wait for the next crappy set of invalid Web application patent claims to clarify the issues associated with Web applications.

  17. Curious August 21, 2015 12:28 am

    Such a software application belongs to the second row of the table that Millien & George provide in The Patentability of Software: Myths, Facts and a Proposed Test.
    No. The second row of their PROPOSAL (mind you, not necessarily a statement of the law) is that a computer program that does nothing more than take inputs and present them on a screen where the user is providing the “intelligence” is nonstatutory. Claim 13 of the ‘572 patent in DDR holdings does not fall within that description. Rather, claim 13 appears to fall under the first row of the table.

    The Inventors were just software writers that wrote a software application whose inputs and outputs were all on one (multi-/meta-) computer.
    Again, nothing magical about that (one way or the other). If you could provide me with some logic that explains why this is important (or should be), I would be glad to consider it. However, you have yet to do so (and I suspect that you won’t make the attempt).

    Unfortunately, because the defendants settled, SCOTUS will not get a chance to overturn the wrongful decision and will have to wait for the next crappy set of invalid Web application patent claims to clarify the issues associated with Web applications.
    That’s your opinion. Frankly, since your take on the law seems pretty twisted, I suspect that your opinion will also prove wrong.

  18. Joachim Martillo August 21, 2015 5:13 am

    In re: Comment 15. In Comment 14 I described patching an Interrupt Vector Table, an Interrupt Descriptor Table, an Interrupt Gate, or something similar within the OS. In that case, most programmers, software engineers, or former MIT faculty/Computer Scientists like me would consider the program to be the OS and not the code fragment that constituted the patch. Nothing in the DDR Holdings or Priceline patent addresses patching an OS.

    I mentioned the technique of patching because it might be (part of) an example of the sort of patent-eligible improvement to the computer functioning that the PTO guidance was referring.

    As for “technical babble”, we can either use the epistemic jargon of the art (2111.01 Plain Meaning [R-11.2013]) or we can go to the level of gates, of transistors, or of solid state physics. My degrees are in physics. I can describe the operations of a computer at the level of basic physics. I don’t know why anyone would in the written description.

  19. Joachim Martillo August 21, 2015 5:57 am

    In re: Comment 17. Here is Claim 13.

    13. An e-commerce outsourcing system comprising:

    a) a data store including a look and feel description associated with a host web page having a link correlated with a commerce object; and

    b) a computer processor coupled to the data store and in communication through the Internet with the host web page and programmed, upon receiving an indication that the link has been activated by a visitor computer in Internet communication with the host web page, to serve a composite web page to the visitor computer wit a look and feel based on the look and feel description in the data store and with content based on the commerce object associated wit the link.

    We are looking at a draftsman’s/wordsmith’s effort to make a fairly trivial Web application appear to be a real patent-eligible innovation.

    The “data store” is a Web service (a component of the metacomputer that is the Web) — either a Web file server or a Web database server. Today it would probably be implemented with mongodb or something similar.

    The “computer processor coupled to the data store and in communication through the Internet with the host web page” is described atrociously (how does a computer processor communicate with a host web page) and is some sort of Middleware Web service that communicates both with Web Servers and with Web browsers. Today it would probably consist of a few hundred lines of a scripting language like node.js, which is a language optimized for writing Middleware programs.

    The “visitor computer” is a Web browser.

    So we have 3 web programs that run together on the metacomputer and that provide a GUI which displays information to a user and through which the user may make an input.

    It seems like the second row to me.

    I must add that I remember discussing this sort of Web programming with a report back in 1993-4. It was not an innovation with us. People saw the possibility when the Web was first unveiled in 1989.

    Thus conceptually this concept of Web programming was already old by the time of my 1997 reference above. Who thought in 1994 anyone would be allowed to claim such silly stuff?

    As for the issue of the patent-eligibility of a software application, all of whose inputs and outputs are confined to the computer on which it is running, I don’t see that described in 35 U.S. Code § 101 – Inventions patentable. The courts have been struggling with the overlapping usage of Process (35 U.S. Code § 100 (b)) in Chemical Engineering, Metallurgy, Business, and Software Engineering for something like 63 years now.

  20. Curious August 21, 2015 7:50 am

    It seems like the second row to me.
    Really? The claim recites “a computer processor … programmed, upon receiving an indication that the link has been activated … to serve a composite web page … based on the look and feel description in the data store.” Here, the intelligence is within the program — not the user.

    I don’t see that described in 35 U.S. Code § 101
    Its called (i) a process (method) when the program executes or (ii) a machine when the program is part of a computer. Pretty basic non-controversial stuff here.

    Are you a patent examiner? (because you argue like some of the ones I know)

  21. Joachim Martillo August 23, 2015 7:48 am

    As for the issue of the patent-eligibility of a software application, all of whose inputs and outputs are confined to the computer on which it is running, I don’t see that described in 35 U.S. Code § 101 – Inventions patentable. The courts have been struggling with the overlapping usage of Process (35 U.S. Code § 100 (b)) in Chemical Engineering, Metallurgy, Business, and Software Engineering for something like 63 years now.

    Its called (i) a process (method) when the program executes or (ii) a machine when the program is part of a computer. Pretty basic non-controversial stuff here.

    Only someone that knows hardly more than enough epistemology and computer science to be dangerous considers this material to be basic non-controversial stuff.

    I have the impression that Millien & George understood the issue even if they did not articulate the critical point clearly.

    Wiki points out.

    [T]he Church–Turing thesis states that a function on the natural numbers is computable in an informal sense (i.e., computable by a human being using a pencil-and-paper method, ignoring resource limitations) if and only if it is computable by a Turing machine.

    Claims directed to mere computerization of pencil and paper calculations are not patent-eligible.

    Wiki points out a major limitation on the Church-Turing model of computation.

    There are a number of ways to explain why Turing machines are useful models of real computers:

    1. Anything a real computer can compute, a Turing machine can also compute. For example: “A Turing machine can simulate any type of subroutine found in programming languages, including recursive procedures and any of the known parameter-passing mechanisms” (Hopcroft and Ullman p. 157). A large enough FSA can also model any real computer, disregarding IO. Thus, a statement about the limitations of Turing machines will also apply to real computers.

    2. The difference lies only with the ability of a Turing machine to manipulate an unbounded amount of data. However, given a finite amount of time, a Turing machine (like a real machine) can only manipulate a finite amount of data.

    3. Like a Turing machine, a real machine can have its storage space enlarged as needed, by acquiring more disks or other storage media. If the supply of these runs short, the Turing machine may become less useful as a model. But the fact is that neither Turing machines nor real machines need astronomical amounts of storage space in order to perform useful computation. The processing time required is usually much more of a problem.

    4. Descriptions of real machine programs using simpler abstract models are often much more complex than descriptions using Turing machines. For example, a Turing machine describing an algorithm may have a few hundred states, while the equivalent deterministic finite automaton (DFA) on a given real machine has quadrillions. This makes the DFA representation infeasible to analyze.

    5. Turing machines describe algorithms independent of how much memory they use. There is a limit to the memory possessed by any current machine, but this limit can rise arbitrarily in time. Turing machines allow us to make statements about algorithms which will (theoretically) hold forever, regardless of advances in conventional computing machine architecture.

    6. Turing machines simplify the statement of algorithms. Algorithms running on Turing-equivalent abstract machines are usually more general than their counterparts running on real machines, because they have arbitrary-precision data types available and never have to deal with unexpected conditions (including, but not limited to, running out of memory).

    Note the text that has been emboldened. In this qualification we see where software becomes a component in an epistemologically synthetic “process, machine, manufacture, or composition of matter, or any new and useful improvement thereof”, to which eligible and allowable claims may be directed.

    Claims directed to purely analytic calculations based purely in prior knowledge simply are neither eligible nor allowable according to the statutes (101, 102, and 103) and to the case law.

    Unfortunately, few congressmen, examiners, judges, patent lawyers, and patent agents have sufficient grounding in epistemology either to express the key issues succinctly or to understand them precisely. If they did, crap patents like those of Priceline, DDR Holdings, and Google either would not pass examination or would be quickly invalidated by the judiciary.

    BTW, my degrees come from Harvard and Yale in physics. I have a background in computer science and in mathematical economics as well as in electronic, mechanical, chemical, and civil engineering.

    Perhaps Curious would enlighten us with respect to his CV.

  22. Curious August 24, 2015 11:11 am

    Perhaps Curious would enlighten us with respect to his CV.

    I am a patent attorney. This is why you cite wiki articles and I cite case law and statutes.

    Claims directed to purely analytic calculations based purely in prior knowledge simply are neither eligible nor allowable according to the statutes (101, 102, and 103) and to the case law.
    Let me suggest that you are confusing the law as it is and the law as you see it.

    Unfortunately, few congressmen, examiners, judges, patent lawyers, and patent agents have sufficient grounding in epistemology either to express the key issues succinctly or to understand them precisely.
    Unfortunately for you, your academic pedigree has not provided you with the capability of explaining these issues to these people in such a manner so as to convince them that your position correct.