The Supreme Court doesn't understand software

>> If a sequence of conventional mathematical operations isn't patentable, then no software should enjoy patent protection.

I agree with the general idea of this piece, and I don't believe that software be patentable (or at least, software should be protected in a very narrow range of cases), but this argument doesn't hold up for me. For a person implementing a complex payroll system or a complicated user interface, the universal underlying mathematics are meaningless. Of all the time spent developing software, algorithm development is a tiny portion, much of which occurs in non-commercial environments anyway. It's comparable to the difference between the laws of physics and mechanical devices that operate as a consequence of those laws.

> The problem is that "software" and "mathematical algorithm" are two terms for the same thing.

The Knuth quotation in the article, used in support of this position, actually seems to invalidate it in my view. "Algorithms are exactly as basic to programmers as words are to writers." The key being words. The value in a piece of literature has little to do with the individual words it's made from, just as a piece of software is clearly vastly more than the sum of its algorithmic parts.

Footnote: I mean this for multiple dimensions of 'value', not simply some measure of economic worth. Information processing and transformation ability, for one.

The author misses the gist of the Supreme Court's opinion in CLS Bank v. Alice:

> In Thursday's ruling, the court rejected a patent that claimed the concept of using a computer to hedge against "counterparty risk" — the risk of making a bargain and then having the other guy not pay up. The Supreme Court complained that in the process described in the patent, "each step does no more than require a generic computer to perform generic computer functions." Such a generic patent, the court said, isn't eligible for patent protection. The problem is that this criticism can be leveled at literally any software patent. At root, software is nothing more than a sequence of mathematical operations.

The Supreme Court in Alice came to two conclusions:

1) The concept of intermediated settlement is a "fundamental economic practice" and is so ineligible for patent protection under the judicially-created exception Section 101 for "abstract ideas."

2) The "method" and "system" claims in Alice Corp.'s patent amounted to nothing more than describing how to implement intermediated settlement on a generic computer in a generic way, and did not render the otherwise unpatentable abstract idea patentable.

The purpose of (2) is to foreclose on clever drafting that tries to get around the "abstract idea" limitation by framing it in terms of a specific implementation on a computer. What Alice says is that implementing the idea in a generic computer doesn't turn an abstract idea into a concrete implementation. It does not say that an otherwise patentable idea is rendered unpatentable because the patent describes how to implement the idea in a generic computer.

OK, but the same logic can invalidate almost any software patent. Apple's "data detectors" patent, for example, claims the concept of detecting data in a document (an abstract idea, it seems to me) plus a generic description of the steps someone would have to take to implement this on a computer. A data compression patent would cover some mathematical principle (replace frequently-repeated sequences with a shorter representation) with some details about what steps you need to do to implement the idea. I think the court's reasoning could be plausibly read as invalidating all software patents.

I see that it's a vox.com article. I'm betting it's a Timothy B Lee article.

* checks *

Yep, Timothy B Lee. He's the Rush Limbaugh of Hacker News, telling us exactly what we want to hear, and the incredibly bad things that are possible, where "possible" means "doesn't defy the laws of physics."