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The Supreme Court doesn't understand software

vox.com

41–50 of 64 posts

Re: The Supreme Court doesn't understand software

#41
post #6

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…

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."

Since he's already here, maybe I could solicit a comment from him to an older post of mine regarding another of his articles: https://news.ycombinator.com/item?id=7849386

Re: The Supreme Court doesn't understand software

#43

While I'm not a fan of most software patents, I don't agree with this statement, except in the most pedantic sense: 'The problem is that "software" and "mathematical algorithm" are two terms for the same thing.' You could say that anything at its root is simply a mathematical algorithm. These days it is possible to do a great many specialized tasks with either dedicated hardware, or software running on general purpos…

> You could say that anything at its root is simply a mathematical algorithm. Nonsense. A brick is not a mathematical algorithm. You can use mathematical algorithms to calculate things about bricks but that's not the same thing at all.

Hyperbole perhaps, but not nonsense. A photograph can be saved as a file on a computer. The file essentially just consists of instructions for displaying the photo. Does that mean photography === mathematical algorithms?

Or yesterday there was a frontpage story about a guy who spent 13 years of his life building a (pretty cool) freeware game. I'm not arguing that he should be able to patent the mechanisms of the game, but not because it's just one big "mathematical algorithm". That's ridiculous; it's a work of art.

To use the example from the article, any design must be described with a sequence of words. You can't patent a sequence of words, so all patents should be invalid. To me, that's not much more of a stretch than saying that all software is simply a collection of mathematical algorithms. Perhaps literally true in a sense, but essentially meaningless.

Edit: By the way, since the perfect patent system is probably a pipe dream, I expect the world would be better off if software patents were abolished. I just don't believe this particular argument holds much water.

Re: The Supreme Court doesn't understand software

#44
"The problem is that "software" and "mathematical algorithm" are two terms for the same thing."

This ain't necessarily true. Unless you extend math to encompass reasoning about hardware, operating systems, browsers, other apps, networks etc. Math deals with more basic things.

The real reason software patents are harmful is because the industry moves so quickly, fueled by openness, that the patent examiners don't always know the current state of the art, let alone obviousness. This basically kicks the can down the road and creates waste.

Re: The Supreme Court doesn't understand software

#45
post #14

Earlier quoted context omitted.

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 re…

The key phrase in your comment is: "an abstract idea, it seems to me." The phrase "abstract idea" is, in this context, a legal term of art. It means what the Supreme Court wants it to mean. If you look at CLS Bank v. Alice, the Court concludes that intermediated settlement is an abstract idea because it is "a fundamental economic principle." So to use your example, data compression (replacing frequently-repeated sequ…

It sounds like you're saying that Alice is really about invalidating what Mark Lemley calls functional claiming: attempting to claim components by their function rather than by their structure. I read parts of the Alice opinion, and it seemed like that might be what the justices were getting at, but I didn't see the point made as clearly as I would have liked.

Despite your assurances, I am uncomfortable with this decision. Indeed, I am uncomfortable with Gottschalk v. Benson. I don't think a bright line exists between patent-eligible software and ineligible algorithms -- in this I agree with the Vox article. I would much rather have seen a decision that invalidated this patent on the grounds that taking an existing manual process and computerizing it is, by itself, obvious.

Re: The Supreme Court doesn't understand software

#46
post #13
post #9

I was with him until: "The idea behind patents is to create a financial incentive to promote innovation: patents ensure that the inventor of a new idea can get compensated for it, rather than seeing her idea immediately ripped off by copycats." The purpose of patents had nothing to do with compensation. It was already presumed that an inventor could sell an invention. The real purpose was to promote disclosure of how…

> The real purpose was to promote disclosure of how to make things. http://en.wikipedia.org/wiki/History_of_patent_law By the 16th century, the English Crown would habitually grant letters patent for monopolies to favoured persons (or people who were prepared to pay for them).[13] This power was used to raise money for the Crown, and was widely abused, as the Crown granted patents in respect of all sorts of common go…

The US constitution gives the reason explicitly as to "Promote the Progress of science and the useful Arts" though

Re: The Supreme Court doesn't understand software

#47
post #34

The problem is that "software" and "mathematical algorithm" are two terms for the same thing. No they're not, at all. Software, as the name implies, is a commodity, which typically includes textual and graphical elements for human interaction and which interacts with multiple different mechanical and electronic subsystems. You might as well argue that mechanisms involving gears are not patentable because their behavi…

I fail to see how a program is not a mathematical algorithm.

Is a building a blueprint?

Re: The Supreme Court doesn't understand software

#48
TFA boils down to the following points, and a lot of people are (rightfully) questioning it:

> The courts have repeatedly said that mathematical algorithms can't be patented. But many judges also seem to believe that some software is worthy of patent protection. The problem is that "software" and "mathematical algorithm" are two terms for the same thing.

This is false on multiple levels:

1) Laws of physics and laws of nature and cannot be patented. Elements of the periodic table are naturally occurring materials and cannot be patented. Yet machines applying these very same laws of physics and made out of these very same materials can be patented. As can compounds that are new arrangements of atoms of various elements.

This is because machines and compounds are specific applications of patent-ineligible physical laws using configurations of patent-ineligible individual materials. Similarly, software is an application of patent-ineligible mathematical algorithms (along with a healthy dose of I/O that translates wholly non-mathematical things into mathematical representations). Just as machines are patent-eligible, software is too.

Laws of Physics : Machines :: Elements : Compounds :: Algorithms : Software

2) As evidence of the above, note that most claims for software don't even claim specific algorithms, but rather just high-level descriptions that could be implemented in a thousand ways using a thousand different algorithms. A claim will almost never say, as one of its steps, "looking up a value using a key in a hashtable" -- it will almost always say something like "determining a value corresponding to a key", which covers all O(1), O(logN) or O(N) algorithms. (If they even get to that level of detail at all... most claims are at an even higher level, e.g. "receiving a compressed image and detecting faces in it", where each element would involve a multitude of disparate algorithms) Such language could cover any number of ways of doing something.

Some take this as a sign of abstractness. But when you look at patents on physical machines, their claims also rarely ever mention the precise measurements of the various components and the actual materials used. The number of materials and relative sizes that could be used in making a mechanical invention is as numerous as the number of languages, data representations and storage technologies that could be used in making a software invention. As such, machine patents also cover all ways in which to implement it. This is not abstractness, but rather the eliding of details that are irrelevant to the essence of the invention.

3) When the court says algorithms are un-patentable, they mean abstract formulae like E = MC^2. By itself, that formula does nothing, and hence is not useful. On the other hand, software for a web browser can cause your computer to fetch data from another machine a thousand miles away and display it on your screen. Regardless of level of technical competence, everyone can agree that this is non-abstract and useful. That's the primary reason that software is worthy of patent protection: it meets the statutory requirements, i.e. "any thing under the sun that is made by man".

Re: The Supreme Court doesn't understand software

#49
post #34

The problem is that "software" and "mathematical algorithm" are two terms for the same thing. No they're not, at all. Software, as the name implies, is a commodity, which typically includes textual and graphical elements for human interaction and which interacts with multiple different mechanical and electronic subsystems. You might as well argue that mechanisms involving gears are not patentable because their behavi…

I fail to see how a program is not a mathematical algorithm.

Lets flip this around: The court considers mathematical algorithms abstract. Noting that it enables you to achieve the very practical utility of posting on this forum, is the software running your computer abstract?

The obvious answer is that our definition of what is an algorithm and what is abstract differs from the court's.

Re: The Supreme Court doesn't understand software

#50
post #46
post #13

Earlier quoted context omitted.

> The real purpose was to promote disclosure of how to make things. http://en.wikipedia.org/wiki/History_of_patent_law By the 16th century, the English Crown would habitually grant letters patent for monopolies to favoured persons (or people who were prepared to pay for them).[13] This power was used to raise money for the Crown, and was widely abused, as the Crown granted patents in respect of all sorts of common go…

The US constitution gives the reason explicitly as to "Promote the Progress of science and the useful Arts" though

> The US constitution gives the reason explicitly as to "Promote the Progress of science and the useful Arts" though

Yeah, I agree. The entirety is:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

That's the whole description in the constitution. At the time (1780s-1790s), other countries had patent systems, including the Empire from which the authors drew inspiration for at least other aspects of the constitution. A patent system wasn't a new idea. For that matter, the 1790 implementation of the patent system also looked very similar to the others of the time. My guess is they were thinking "hey, let's do that too".

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