Posts Tagged: "Software"

One of the big reasons there is such a need for software forensics is to interject objectivity into what is otherwise a battle of experts who are supposed to be unbiased but who may be strongly influenced by, if not outright pressured to support, the positions of their clients. This is just as true of experts in other areas of litigation, but as more complex technologies are at issue in today’s IP cases, lay judges and juries are less capable of weeding through technical intricacies to weigh opposing views of experts. Compounding this reality is the ever increasing popularity of police dramas on television, which elevate the desire for juries to have some kind of objective information they can rely on; something of a smoking gun if you will. Software forensics can often provide that smoking gun and cut through the haze. But the question remains, how do we assure that software forensic tools are reliable and consistent and that the expert witnesses who use them are qualified and honest about their analyses?

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.

The consequences of SCOTUS decisions are really severe. The U.S. is no longer a favorable jurisdiction for many biotech patents, medical devices and software. What that’s going to mean is companies are going to move. We’ve known this throughout history. Companies locate where the laws are the best for them. If you’re an innovator you’re going to go where the patent laws are the strongest. And that’s why the U.S. has dominated in these industries. We’re number one in biotech is because of Chakrabarty, which has basically been overruled. Prior to Myriad you would have said the ruling of Chakrabarty was this: if there’s human intervention it’s patent eligible, but now you can’t say that because there was human intervention in Myriad, which they acknowledged, and still the claims were patent ineligible. We know companies will move to jurisdictions with more favorable laws…

“[F]or a living I reverse engineer code and testify in court. Yet I could not reverse engineer this code. Every time I touched it to make some kind of change to test it, the whole thing broke. And I finally had to write the code completely from scratch because this open source code was such a kludge, such a mess, that it was impossible for me to figure out… [T]here’s a bunch of issues here and maybe some of them are that programmers nowadays aren’t well trained and they’re not well disciplined in programming techniques… [they] write code as quickly as you can, throw it out there, people will debug it for you. So first of all maybe we need to be teaching more discipline to programmers. We need to… convince them, hey, now that you’ve really gone through a rigorous program it’s not just okay to throw stuff together but create something with a structure that’s debuggable, that’s understandable, and that is innovative and patentable.”

With the Supreme Court’s most recent foray into the patent-eligibility world in Alice Corp. v. CLS Bank International, we now have a complete and utter disaster as to what data processing claims can (or more unfortunately cannot) survive scrutiny by Our Judicial Mount Olympus under 35 U.S.C. § 101. I once had respect for Justice Thomas’ view on patent law jurisprudence, having considered his substandard opinion in Myriad on the patent-eligibility of certain “isolated” DNA claims to be an “isolated” aberration. But having now read his mind-boggling Opinion for the Court in Alice Corp., I’ve now thrown my previously “cheery” view of Thomas’ understanding of patent law jurisprudence completely into the toilet. I have even less kind words to say about the three Justices that signed onto Justice Sotomayor’s disingenuous concurring opinion that accepts retired Justice Steven’s equally disingenuous suggestion in Bilski that 35 U.S.C. § 273 (in which Congress acknowledged implicitly, if not explicitly the patent-eligibility of “business methods” under 35 U.S.C. § 101) is a mere “red herring.” See Section 273 is NOT a Red Herring: Steven’s Disingenuous Concurrence in Bilski.

On Thursday, june 19, 2014, the United States Supreme Court issued its much anticipated decision in Alice v. CLS Bank. In a unanimous decision authored by Justice Thomas the Supreme Court Court held that because the claims are drawn to a patent-ineligible abstract idea, they are not eligible for a patent under Section 101. In what can only be described as an intellectually bankrupt opinion, the Supreme Court never once used the word “software” in its decision.

There are those who argue against the patentability of software as a whole – never mind finding a test as to what software (or computer-implemented) claims should be patentable. We disagree. Why? Well, the notion that software should not be patentable necessarily indicates that the software industry itself is not capable of innovation worthy of patent protection! Yet, in a country where patent rights are guaranteed by the Constitution, should not all fields of innovation be treated equally under the law? Should we not avoid becoming a country where one field of endeavor (e.g., pharmaceuticals or electronics) is deemed more “patent worthy” than other fields (i.e., computer science and information technology)!? To answer these questions in the negative seems silly to us.

BEAR: ”When the Constitution was written, there was no concept of software. Nor was there computer hardware. We had physical, you know, very physical mechanical inventions. And computers have come around and software has come around, and the interpretation of these statutes has had to shift with the technology. And as unimaginable as it may seem to us here in 2014, there’s something in our future as unimaginable as software was when the Constitution was written. Inventions in that future domain need to not be shut down because of the way we rule today on §101. So the request for not having a real hard line – a bright line – is important. It protects the possibility of fostering future inventions in domains we can’t even imagine.”

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.

Samsung has received dozens of patents for truly unique technologies, such as one patent protecting better walking and balancing controls for two-legged humanoid robots. Other patents recently issued to Samsung protect methods of identifying the likely presence of unknown viruses in e-mails, better systems of personal data and content broadcasting from mobile devices and a solar cell energy collection technology for use with handheld electronic devices… 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.

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.”

IBM has been the top patenting company for more than 20 years. Therefore, any review of IBM patents can barely touch the surface of the innovative endeavors at this innovative giant. Nevertheless, we did find some interesting patents and applications to discuss, such as our featured patent application, which discloses a system for digitizing human physiological inputs in order to determine emotion. This computer analysis program could detect negative and positive behavioral evidence through facial expressions and voice inputs to determine a more exact emotional state for a user. We also profile some patent applications discussing better means of providing online content and communication services to users. Not every patent application filed by IBM reaches patented status, but the company files so many applications that it’s bound to enjoy a multitude of issued patents every week. Since March started, IBM has been awarded a number of interesting patents that caught our eyes here at IPWatchdog. Patents we discuss include a system for canceling sent e-mails, even after they’ve been opened, as well as methods for creating software programs through the World Wide Telecom Web. We also noticed a patent protecting a system that may be integral to a growing field: the interconnected web of home devices, also known as the “Internet of Things.”