In Defense of Software Patents

Guest Post by Martin Goetz

 

This article is in response to the editorial “Abandoning Software Patents” by the Ciaran O’Riordan, Director of End Software Patents (posted on PatentlyO on November 6, 2009) which had as its premise that one is trying to protect “software ideas”.

 

I wrote this article from a unique perspective as the holder of the first Software Patent in 1968 and with a long history of involvement in the protection of software thru patenting and copyright protection. I am recognized as a pioneer in the Software Products Industry and had a successful career at Applied Data Research (ADR), the first company to market a software product. ADR and I were also directly involved in the filing of amicus briefs in the Prater & Wei, Benson, Johnson, Flook, and Diehr cases. More background information and links to my memoirs are in Wikipedia at http://en.wikipedia.org/wiki/Martin_Goetz.

 

Since the 1960s I have been a strong advocate of the patenting of inventions implemented in software and in 1968 I received the first US patent for an inventive way of sorting data on a digital computer[1]. At that time there was controversy over whether software was patentable subject matter and that controversy continues today 41 years later. Although the Supreme Court has previously stated that software is patentable subject matter[2], those rulings could be upset by today’s Supreme Court judges in the Bilski case.

 

This article does not argue for or against the patenting of BPMs. Rather, it tries to explain why inventions implemented in software are well within current US Patent Law[3] using examples and analogies that I believe are irrefutable. It also explains why software should be viewed a machine component of a general purpose computer (a machine).

 

 1. What is a Software-Related Invention? It is well recognized that whatever you can design in hardware circuitry (chips) can be developed in computer software (a computer program) to perform the same functions. Handwriting analysis, voice recognition, video frame analysis, data compression, language translations, artificial intelligence, searching techniques, network monitoring and security -- to name just a few functions -- are examples of where such implementations have been done in both hardware chips, in software, and a combination of both. The patents that have been issued in these nine areas represent inventions that are very-state-of-the art and not at all obvious. In particular, the analysis of handwriting and voice by a computer -- whether in hardware circuitry or in software -- is very complex and not at all obvious to one skilled in the art.
 
2. Hardware implementations versus software implementations. The choice of implementation for computer functions is a pure economic choice which mainly has to do with cost, speed, and flexibility. Patent applications normally show the preferred implementation and the patent must disclose the invention adequately for one skilled in the art. But the disclosure could be in the form of circuitry for a hardware implementation or a flow chart for a software implementation or a combination of both. Many professionals view software development as building a software machine. The life cycle of computer software is very similar to the life cycle of computer hardware. And its life span can be equally as long.

 

3. Software Product Companies[4] are High Technology Manufacturing Entities. In the 1980s with the advent of PCs, many new PC software companies called themselves Software Publishers. So are software companies more like publishers of books or more like manufacturers of machines? Based on my many years in the software Products Industry[5], here are my arguments why software product companies are manufacturers of high technology products. 

 

Many software products are state-of-the-art products developed in a very competitive, fast moving environment and require rapid response to meet user demand. Secondly, a great deal of capital is often required and many software companies are funded through private investments, venture capital, and through public offerings. Thirdly, there are active research and development activities within these companies. IBM, as an example has reported that it consistently spends well over one billion dollars in research and development specifically in the software area. Lastly, highly skilled personnel are employed in these companies and many have advanced Computer Science college degrees, including PhDs. And because of its complexity, many software products are built using software engineering disciplines.

 

There is six phases in the life cycle of software products: Definition, Design, Implementation, Delivery, Maintenance, and Enhancements. Let’s look a little closely at these phases and you will see how closely they resemble characteristics common to all manufacturing companies. Often, prior to the definition phase there is research as well as competitive analysis. During the definition phase software companies describe its functionality, its specifications, the environment in which it must operate, and its operating characteristics. During the design phase, it develops and defines all its interfaces, breaks down the functionality into modules, and does all the engineering so that the product can be properly implemented, maintained and enhanced during its lifecycle. During the implementation phase the software is debugged, tested, and goes thru quality assurance. During the delivery phase there is alpha and beta testing, documentation, installation, and training. Often software companies OEMs (Original Equipment Manufacturers) the product to other companies where the software becomes a component of a larger system and is re-packaged. During the maintenance phase the company warrants its workmanship, and guarantees the correction of errors and defects. Finally, during the enhancement phase the software is improved, enhanced, upgraded, and new models (releases) are announced.

 

Note these terms indicative of a manufactured product …..research, competitive analysis,  functionality, specifications, operational environment, operating characteristics, interfaces, modules, engineering, implemented, debugged, tested, quality assurance, alpha and beta testing, documentation, installation, training, OEM, component, system, re-packaged, maintenance, warrants, workmanship, guarantees, errors, defects, improved, enhanced, upgraded, and models.

 

It is obvious that software products are not “software ideas”. But is software more like publishing a book or more like manufacturing and maintaining a machine? And if it’s more like a machine how can the Supreme Court deny the patenting of inventions[6] in software?  

 

I believe the Courts should view software as a component of a general purpose computer (a machine) and that software transforms a general purpose computer into a special purpose computer (or machine).

---

[1] Patent # 3,380,029 Sorting System Issued April 23, 1968

 

[2] The Diamond vs. Diehr landmark decision by the Supreme Court in 1981 opened the door to the patenting of software when the court stated that "processes" were patentable, and that just because an invention used a formula, program, or computer, it was not necessarily unpatentable.

 

[3] The US Patent Law does not mention any industry or field of endeavor and it is generally accepted that “anything under the sun” can be patented.

 

[4]  The Software Industry is made up Software Product and Software Service companies and is recognized as one of the top three manufacturing industries in the world with 2008 revenues of over 700 Billion dollars. See http://en.wikipedia.org/wiki/Software_industry 

 

[5] My tenure in this Industry started in 1954. In 1959 I was one of its founders and spent almost 30 years at Applied Data Research (ADR), a publicly traded 200 Million software company that was acquired by Ameritech in 1986 and sold to Computer Associates (CA) in 1988. Many of ADR’s products initially developed over 30 years ago have been improved by ADR and CA and are still viable today. Today, I am a consultant and investor in software companies.

 

[6] An invention, in lay terms, can be a novel device, material, or technique which is new, inventive, and useful. It has been well established that machines, including computer hardware, contain patentable subject matter.

 

 

Comments

[macbook]

"So are software companies more like publishers of books or more like manufacturers of machines?"

What about Free speech of programmers?

[Noise above Law]

What about it?

Patents don't limit speech. Or ideas.

Implementation of such, well that's a different matter. Of course, this is true for all arts - something the anti-patent software people never seem to realize.

[macbook]

"Implementation of such, well that's a different matter."

Can you explain a bit further your point of view?

[Ben Hoyle]

Good post.

I studied software engineering as part of a broader engineering course that also covered the classic engineering disciplines. We were taught the use of software as an engineering tool and this perspective has been maintained in industry. As such I have always seen the production of software, in an engineering context, as a technical and industrial art.

I think some of the vitriol in this area arises due to the breadth of "software" - it covers games and artistic creations at one end and the "nuts and bolts" computer control at the other. Different parties thus have different concepts of the term in mind when debating "software" patents.

[Jim]

Point 3 falls to pieces when one considers that the subject matter being patented may be trivial UI sequences or e.g. a method for one-click ordering which requires no such extensive development cycle and could be coded by one person in one day.

[Inviting Body Punches]

For me, this commentary amounts to nothing more than a tepid and sadly incomplete delivery of a subset of known arguments, and does nothing to either further illuminate the existing situation, or advance a new paradigm.

Conclusory statements just won't do it.

If this person is attempting to rely upon his qualifications to lend credibility to his "arguments", that is also inadequate and does not affect the substance of those arguments.

A very weak post.

[The Mad Hatter]

Martin,

You are way behind the curve. The argument has now moved from whether "software patents" should be allowed onto whether or not "patents" have any positive effect on society. I, and many others, including several Nobel prize winners believe that patents have a negative effect upon society, and we have studies that back our assertions.

Because of this, we are proposing that the Patent System be shut down in it's entirety. If there is no benefit to society, than the Patent System is in conflict with the Constitution of the United States, and therefore illegal.

[MaxDrei]

Another thread in the making that is useful for testing whether the EPO has got its filters on patentability set up right. Its 101 filter blocks "pure" business methods and computer programs as such but not claims to a data carrier. Its 103 filter shuts out inventions that solve no technical problem, perhaps a carrier of a new and inventive plot for a novel. Maybe Mr Goetz could be prevailed upon, to comment on whether these EPC provisions meet his requirements and, if not, why his inventions are not combinations of technical features and don't actually solve any objective technical problem.

[palabra]

@MaxDrei

"why his inventions are not combinations of technical features and don't actually solve any objective technical problem."

What is technical?

[6]

indefensible.

[6]

"Although the Supreme Court has previously stated that software is patentable subject matter"

I love how you lie.

Stating that a small part of a claim doesn't necessarily kill the whole thing doesn't make the small part itself patentable subject matter.

[MaxDrei]

Palabra, Question for you. What does TRIPS mean, when it says that patents shall be available in "all fields of technology"? Is writing a screenplay a field of technology?

Greg Aharonian chastises the US legislator and the US courts for failing to come up with a definition of "obvious"? But, don't we already all have the same sense of what "obvious" means? If so, what would be gained (and would anything be lost) by re-writing the Statute using a word other than "obvious"?

Are there not some words that are already as basic as can be, so can't be simplified any further?

[Down boy, down]

“Although the Supreme Court has previously stated that software is patentable subject matter . . .”

“Many software products are state-of-the-art products. . .”

These two ideas early in the essay set the stage for the missed point and reiterate the confusion that makes this subject so problematic.

The Supreme Court did not find that s/w is patentable subject matter. This is a serious misstatement of the case.

The primary categories of patentable subject matter are: composition, article (of manufacture), machine, process. The secondary categories are improvements and new uses.

S/w is not, per se, in any of these categories, hence the entire imbroglio we find ourselves in. There is, in fact, no such thing as a “software patent.” There are processes implemented by computers and there are hard drives modified to hold s/w instructions. The first is a process patent and the second is an article of manufacture.

Many s/w products may be state-of-the-art, as Mr. Goetz states, but that is irrelevant to this issue since product is not one of the statutory categories of patentable subject matter. If we agree that s/w code can be a product, you still have to tell us which statutory class it fits into. Then the fight begins anew, or rather continues.

The only other approach is to argue that the time has come to expand the statutory categories: compositions, articles, machines, process, and software.

Will never happen.

[6]

"It also explains why software should be viewed a machine component of a general purpose computer (a machine). "

Can't wait to hear this, since obviously it isn't a machine component of a gpc.

"t is well recognized that whatever you can design in hardware circuitry (chips) can be developed in computer software (a computer program) to perform the same functions."

K so what?

"In particular, the analysis of handwriting and voice by a computer -- whether in hardware circuitry or in software -- is very complex and not at all obvious to one skilled in the art. "

Now we skipped to 103? Could we finish the discussion about the aforementioned software=machine implementation? You still haven't explained why that is relevant and you still haven't established the veracity of such a statement.

"The choice of implementation for computer functions is a pure economic choice which mainly has to do with cost, speed, and flexibility. "

Also, the choice is made based upon whether or not you are good enough at designing/programming hardware or software respectively to accomplish the goal.

"But the disclosure could be in the form of circuitry for a hardware implementation or a flow chart for a software implementation or a combination of both. "

K, so what?

"Many professionals view software development as building a software machine. The life cycle of computer software is very similar to the life cycle of computer hardware. And its life span can be equally as long."

K, so what?

"Many software products are state-of-the-art products developed in a very competitive, fast moving environment and require rapid response to meet user demand."

Kind of like the newspaper industry right?

Even if it isn't: K, so what?

"econdly, a great deal of capital is often required and many software companies are funded through private investments, venture capital, and through public offerings. Thirdly, there are active research and development activities within these companies. IBM, as an example has reported that it consistently spends well over one billion dollars in research and development specifically in the software area. Lastly, highly skilled personnel are employed in these companies and many have advanced Computer Science college degrees, including PhDs. And because of its complexity, many software products are built using software engineering disciplines. "

K, K, K, K, so what, so what, so what, so what?

"Let’s look a little closely at these phases and you will see how closely they resemble characteristics common to all manufacturing companies. "

Let's assume that they mirror the characteristics of manufacturing companies 100%, but that "software products" (if it is even proper to call them that) aren't the same as the actual products being made by manufacturing companies.

K, so what?

"Note these terms indicative of a manufactured product …..research, competitive analysis, functionality, specifications, operational environment, operating characteristics, interfaces, modules, engineering, implemented, debugged, tested, quality assurance, alpha and beta testing, documentation, installation, training, OEM, component, system, re-packaged, maintenance, warrants, workmanship, guarantees, errors, defects, improved, enhanced, upgraded, and models. "

None of those terms are "indicative" of a manufactured product. Those terms simply arise in relation to manufactured products as well as to software. Note these additional terms "indicative" of a manufactured product: thing, entity, object, "something in existence"... whew boy!

This is another way of saying: K, so what?

"It is obvious that software products are not “software ideas”. "

What a truly amazing conclusion!

K, so what?

"But is software more like publishing a book or more like manufacturing and maintaining a machine?"

It doesn't matter what it is "more like". What matters is whether or not it IS a process or a machine and whether or not it is distinguished appropriately for that stat class.

"And if it’s more like a machine how can the Supreme Court deny the patenting of inventions[6] in software? "

See above. Specifically they can deny it because it isn't a machine, or it was improperly distinguished, or it didn't belong to the category of "the useful arts".

"I believe the Courts should view software as a component of a general purpose computer (a machine) and that software transforms a general purpose computer into a special purpose computer (or machine)."

I think you could write a better paper by not simply writing down what "you believe", calling it a paper, and having D post it. This is nothing more than a glorified old posting of yours.

http://en.sap.info/%E2%80%9Cyou-have-to-make-sure-your-ip-assets-don%E2%80%99t-walk-out-the-door%E2%80%9D/10757

Hey look guys, it's NWPA. Notice how he never misses a beat in inserting the non-point about: "It is well recognized that whatever you can design in hardware circuitry can be developed in a computer program to perform the same functions."

Who gives 2 shts Martin? Not me, or anyone else with more than half a head on his shoulders, and certainly not the USSC.

You're an embarrassment.

[NameChange]

Thank you very much Mr. Goetz for a well reasoned thesis. I must say, your arguments are systematic, well presented (what I would expect from an inventor in the software arts) and are a far cry from some of the emotional, unsupported and rambling hyperbole that I've seen from Mr. O'Riordan.

What I really appreciate about your perspective is that you have been in the business for a long time and have the benefit of a longitudinal perspective. There are many who have entered the debate as if the question was just asked yesterday. What they hopefully soon realize is that great minds (such as yours) have been grappling with these questions for decades before they even got on the scene.

[6]

"As such I have always seen the production of software, in an engineering context, as a technical and industrial art."

I could live with that if they imposed the "useful arts" restriction.

[NameChange]

Great minds.... in stark contrast to egomaniacal bloviating idiots like 6.

[NameChange]

Incidentally, being called an "embarrassment" by 6 is kind of like a compliment.

In 6's dark, twisted and ignorant world atoms fall out of wires.

Therefore, in 6's world, you are an "embarrassment" only if you actually know what you're talking about.

[6]

Still can't get over art being thrown in your face eh Cave? I know, it's a harsh life, what with people who have bothered to learn things running circles around you.

[Noise above Law]

""It also explains why software should be viewed a machine component of a general purpose computer (a machine). "

Can't wait to hear this,..."

"K, so what?"

6 - you HAVE already heard this. The K, so what is that, surprise, surprsie, you are wrong - even Lord Kappos has stated this.

Let me refresh your memory:
A
L
A
P
P
A
T

[6]

"What they hopefully soon realize is that great minds (such as yours) have been grappling with these questions for decades before they even got on the scene."

If by "grappling with these questions" you mean he's been trying to convince himself that he wasn't scamming people all his life, I'm sure you're quite right. There is, after all, no rest for the wicked.

[Inviting Body Punches]

Obviously a hilarious sarcastic post by NameChange at 11:48 am!!!!

Let's let this thread die, shall we? The original commenter lacks the required sophistication to meaningfully add to the discussion of patenting.

Next thread!

[Noise above Law]

Inviting Body Punches,

If you let this thread die for your stated reason, this entire blog should likewise die as the majority of posts (e.g., Malcolm, 6), are made by those who lack the required sophistication to meaningfully add to the discussion of patenting.

Why require sophistication now?

Long live the Trainwreck!

[Malcolm Mooney]

There is six phases in the life cycle of software products: Definition, Design, Implementation, Delivery, Maintenance, and Enhancements. Let’s look a little closely at these phases and you will see how closely they resemble characteristics common to all manufacturing companies.

LOL.

[Inviting Body Punches]

Malcolm and 6 comment on blog posts, but so far have not written an actual post.

As such, they do not frame the limits of discussion, or provide the starting point therefor.

Although they do occasionally hijack a thread, but only because other commenters allow them to do so.

Due to its starting point, this thread is not worthy of the usual level of discussion found on Patently-O.

The author has, however, demonstrated in no uncertain terms that neither age nor experience necessarily provide specific knowledge, wisdom, or authority.

[broje IANYL TINLA]

Sometimes I think the question of whether or not software is a component of a machine is a red herring.

There was a time when slot machines and other "amusement devices" were not patent eligible subject matter because they lacked "practical utility." They were purley for amusement.

Similarly, if it is an art object it is not eligible under 101 because its entire function is to create an impression in the mind of a viewer. Tying a metal sculture to a machine by including a lawn mower is not going to make it eligible under 101 for a utility patent. Neither is using a wood chipper to chip manikins as part of a halloween display. But if you adapted that wood chipper to spray fake blood, you could get a utility patent on the new wood chipper. Why is that? Is that right?

Why do peopel elevate form over function in this debate? Is the real question just too hard to answer?

[Red Monkey]

"Point 3 falls to pieces when one considers that the subject matter being patented may be trivial"

The fact that software can be used to implement the trivial does not mean that all software-implemented techniques are trivial and hence unpatentable. Conversely, the fact that a hardware manufacturer can build a simple circuit does not mean that all circuits are unpatentable.

The patentability of software-implemented methods should be judged based on 102/103, like everything else, notcategorically excluded under 101.

[NameChange]

"running circles around you..."

In your case 6, just running in circles.

[NameChange]

"LOL"

Another insightful comment from Mooney,

LOL.

[HierarchyOfPontificationBuckets]

Jim: "Point 3 falls to pieces when one considers that the subject matter being patented may be trivial UI sequences or e.g. a method for one-click ordering which requires no such extensive development cycle and could be coded by one person in one day"

That's like saying because some circuits are simple and unpatentable, no circuits should be patentable. You confuse the issue of eligibility of software with the issue of obviousness. I've never heard of anyone asking for obvious inventions to be patentable. Some circuit inventions are simple and trivial, and yet novel.

You give me any field, and I'll find you some silly patents that one could use to argue that there should be no patents. Patent on brocolli sprouts, for example. Yes, a patent on cruciferous sprouts.

Please try harder.

[Red Monkey]

"Tying a metal sculture to a machine by including a lawn mower is not going to make it eligible under 101 for a utility patent."

This would pass 101 because the combination of an unpatentable sculture with an apparatus is still an apparatus. Whether or not the application would ever issue would depend on other sections of the statute.

In your example, it is unclear how the sculpture interacts with the lawnmower to make the lawnmower more than it was before. But in the case of software attached to a computer, the computer acquires abilities it did not have before.

[Michael Kay]

Your article does not give one single reason why it is in the public interest to grant software developers a monopoly over their ideas. Your only argument is "because if it can be done in software then it could have been done in hardware". So perhaps hardware patents are bad too? Really, if this is the best defence of the system you can come up with, then the system is rotten to the core.

[Malcolm Mooney]

RedMonkey: "This would pass 101 because the combination of an unpatentable sculture with an apparatus is still an apparatus."

Says who?

[step back]

" 1. What is a Software-Related Invention? It is well recognized that whatever you can design in hardware circuitry (chips) can be developed in computer software (a computer program) to perform the same functions."

Martin Goetz,

While you're singing to the choir when it comes to me, two points nonetheless need to be made:

1. One should almost never make absolutist declarations because they can be easily refuted. Digital computers cannot mimic in software absolutely everything that can be done in [analog] hardware. Take for example the task of producing a set of voltages that represent all numbers between 0 and 3.5 including pi and e. An analog sawtooth wave generator can do it easily and yet a digital computer will never do it. So please be a little more discrete (pun intended) in what you argue to the anti-patentists. Some of them might be slightly intelligent and hence dangerous in the sense that having just a little knowledge is often dangerous.

2. There is no accepted definition of "software". So we can can go round and round with a bunch of Chesire Cats and never catch them because they are constantly shifting their undefinitions of the term. (Similarly there are no fully accepted definitions of "business methods" or of "computers" or of "hardware" or of "firmware" or of ... well you get the picture.)

(I recently wasted my time chasing the Chesire Cat's tail over at http://blog.mises.org/archives/011097.asp over the definition of "property". Those people won't even agree to a basic definition of "property" let alone that anything can be protected by IP rights.)

[Ned Heller]

6, your opinion please:

Spec discloses a mathematical algorithm for converting BCD to decimal.

Spec. discloses a machine comprising circuits, power supplies, card input means, and card output means for performing the calculation on input cards and punching output cards. There is no software implementation disclosed.

Aside from the new circuits, the machine is old in combination. The only thing new about the circuits is their logic. The logic implements the algorithm.

The spec. states that the use of software in a microprocessor to calculate the algorithm is an equivalent.

The claim is in the form of means plus function, reciting the steps of the algorithm. The claim wholly preempts the use of the algorithm in BCD->binary card punch machines to the extent software implementation using a microprocessor is deemed an equivalent.

Issue the rejection and specifically discuss Benson and Diehr.

[Fed Up Old Guy]

Has there ever been any consideration by the USPTO or others for setting aside different rules and/or shorter patent terms for software/business method patents...similar to how design patents are set processed from utility patents?

Or is that a bad idea?

[Ned Heller]

Fed. Up., Yes.

[jk]

Fed Up Old Guy :

before thinking about shorter terms for business method patents, can you tell me what is exactly a " Business Method Patent" and what is not a " Business Method Patent" ?

[HierarchyOfPontificationBuckets]

This is a straightforward legal issue. Statute written in the past. New thing comes along (software). Does the statute apply to the new thing? The post analyzes the issue in a valid way by comparing software to other things that are covered by the statute. Many believe this is the right way to analyze the issue. That is, is software (perhaps plus machine/medium/machine-method) sufficiently similar to the things that section 101 is intended to cover? A fair comparison - even the partial comparison of the post - leads one without preconceptions and prejudices to conclude that yes, software (perhaps plus extra) is intended to be covered by section 101.

As the MPEP summarizes, Congress clearly intended the patent statutes to have broad scope. Despite the knee-jerk guffaws that the MPEP seems to evoke, here's a quote, not as a source of authority, but as a well-stated legal conclusion that is correct:

"The use of the expansive term "any" in section 101 represents Congress's intent not to place any restrictions on the subject matter for which a patent may be obtained beyond those specifically recited in section 101 and the other parts of Title 35.... Thus, it is improper to read into section 101 limitations as to the subject matter that may be patented where the legislative history does not indicate that Congress clearly intended such limitations. ... a complete definition of the scope of 35 U.S.C. 101, reflecting Congressional intent, is that any new and useful process, machine, manufacture or composition of matter under the sun that is made by man is the proper subject matter of a patent."

Software is made by man.

[lee rahn]

Some commentators do not consider the principle of patent law that the claims govern the subject matter to which the right to exclude applies.

I think it boils down to the claims--if the claims are broad enough to cover abstract ideas they do not cover patentable subject matter and if the claims are limited to exclude abstract ideas, the claims cover patentable subject matter.

Some may say this test is an over-simplification, but in my 40 odd years of practice dealing with software related inventions, I have yet to see a court decision that fails the test with the possible exception of Gottschalk v. Benson. That case can be explained away by the fact that it was authored by Justice Douglas.

[fish bones]

Madhatter says "The argument has now moved from whether "software patents" should be allowed onto whether or not "patents" have any positive effect on society."

Incorrect.

[fish bones]

The analogy to hardware is a good analogy, Mr. Goetz. Thank you for your article.

[NameChange]

"Says who?"

...two salient and erudite points in a row. If you're a third grader.

LOL

[Night Writer Patent Attorney]

Wonderful post.

I like to think of software as a process that is tranforming information. Transforming information takes time, energy, and space. If you examine the writings of SCOTUS Justices such as Douglas and Stevens you will note that they do not understand the word abstraction and seem to believe that thoughts have no physical representation.

You will also note that physics has incorporated the concept of information into our understanding of the universe.

A process that transforms represented information should be treated no differently no differently than a grain of wheat being transformed.

Lee Rahn: Benson can never be explained away. The best that could have is for Benson to be explicitly over turned as nonsense.

Note: According to MM and 6 ideas are represented in the armpit of MM according to whether they are spinning clockwise or counter clockwise.

I mean really. Really. Grow up people. Information processing is as important as anything people have ever done. Really. A machine that can do what people do. How in the world could that not be eligible for patentability. Only if you delve down the bizarre ideas of Stevens who apparently represents his ideas in some nonphysical. In you delve into the bizarre world of J. Moore (all of J. Moore's thoughts are mere post solution activity.)

Please add your own insult towards MM. My favorite is that he is really a baboon.

[NameChange]

...Hey, I'll have you know that Mooney is the smartest (and handsomest) baboon I know.

[Night Writer Patent Attorney]

6 ejaculated: >>You're an embarrassment.

Calm down 6. Remember to try to use reason and your words. No hitting in class. Be a good boy.

Now, please try to tell us why you think a machine that can do what people are paid to do should not be eligible for patentability?

Please stay in your seat and stop throwing your pencils.

[Night Writer Patent Attorney]

That is one handsome baboon. Mooney I had no idea you were so sharp looking!

[Programming = Mathematics]

Computer programming is a branch of mathematics. When you write a program, you're doing math. The whole foundation of computer program, laid down by Alan Turing et al, is mathematics. Without that foundation, there would be no computer programs as we know them.

Would someone please tell me what other branches of mathematics are patentable? Algebra? Trig? Calculus? Topology? Statistics? No? Didn't think so.

[Not convinced]

I would like to see support for this statement:
"Secondly, a great deal of capital is often required and many software companies are funded through private investments, venture capital, and through public offerings."

I don't believe significant capital is needed to develop a PARTICULAR software program. Certainly not enough capital that requires 20 year monopoly to make profit.

[Night Writer Patent Attorney]

>>Programming = Mathematics

Programming is not mathematics. Sorry, but it simply is not.

[Night Writer Patent Attorney]

>>I don't believe significant capital is needed >>to develop a PARTICULAR software program. >>Certainly not enough capital that requires 20 >>year monopoly to make profit.

Do your own google search for software start-ups and venture capital.

[NameChange]

Physics = mathematics too, since when did that stop inventions dealing with physics from being patentable.

Baboon #2, your table is ready... Baboon #2, your table is ready.

[NameChange]

Not convinced.

Ask Microsoft, or Symantec or Google, or whoever, how much money it takes to develop, release, distribute, maintain and upgrade a successful software program.

[Michael]

Let's assume that the original poster is right that software that makes a general purpose computer into a specific machine is (or should be) patentable. What about the software that makes a general purpose computer operate? So he is advocating that such software is unpatentable, but yet application software is patentable? That's a distinction that makes sense?

So software that makes an innovative general purpose computer (operating systems, virtual machines, etc.) are all unpatentable. Expand your mind a little and you will realize that a general purpose computer IS a type of specific machine.

Think about it.

[Night Writer Patent Attorney]

Michael, where did the poster say that software that improves the operation of a general purpose computer shouldn't be eligible for patentability?

He didn't.

[NameChange]

Contrary to your posit Michael regarding the authors position, I would agree with you and say that the operating system software is probably the most patentable of all... I don't think there is a lot of dispute about that - unless you talk to the bearded Open Source beatniks of the birkenstock culture.

[step back]

Dear P=Math

What you really meant to say; if one is going to be mathematically precise, is that when "YOU" program a computer "you" think of yourself as doing math.

When I program a computer (a real world computer), I worry about things such as not using up too much memory by, for example, declaring as long a variable that could be integer. I worry about how much time each re-entrant subroutine is going to consume. I worry about the physics of the situation.

When I program a computer, I do not pretend that I have a fantasy Turing machine with an infinitely long tape of mass zero and an ability to spool that massless tape at speeds exceeding the velocity of light, v>>c (while consuming zero energy in the process of course, in other words, E=mv^2 where v>>c, but m=0 so who cares?).

[aquarian]

IS software patentable? The supreme court may actually get around to telling us the answer to this question one day. Until then nobody knows. Of course we have to be understanding and give the supreme court a bit of time to make their minds up on this important issue. Software has only been around for half a century. It would be unreasonable to expect them to decide anything in such a short time.

SHOULD software be patentable. That is a much easier question.

NO!!!!!!

[HierarchyOfPontificationBuckets]

this is math

[NameChange]

Aquarian,

Spoken like a true baboon. Whether or not a particular piece of software is "patentable" (102/1-3) depends on the prior art. Whether "software" deserves inclusion into the traditionally broad categories of patent-eligible subject matter, the answer is not so simple as a categorical NO.

Heck, just the fact that the categories are few and broad, in and of itself, argues that 101 is a rule of inclusion and not one of exclusion. 102/103 on the other hand are, rightfully, finer sieves through which not all inventions will pass.

[NameChange]

6's biggest problem is not knowing the extent of his own ignorance.

"Real knowledge is to know the extent of one's ignorance." ~ Confucious

[Programming = Mathematics]

@nwpa

Computer programming is mathematics. Sorry, it really is. Mathematically speaking that is!

Physics, on the other hand, is not math. Rather, it uses math to describe the physical world.

For a treatise on the subject, see:

http://www.groklaw.net/article.php?story=20091111151305785

Written from a mathematics perspective, to be sure, but with a mathematical logic of development and proof.

[step back]

There is a large number of possible explanations for the anti-software anti-patentists (ASAP's) that post to this site:

1. They enjoy teasing with the toads and will say absurd things like "programming is math" just to see how the pro-software pro-patents people (PSPP's) will respond.

2. They have not been educated in, or do not remember their education in physics and thus will say absurd things like "all computers are equivalent to a Turing complete machine and vise versa".

3. They blindly believe in the absurdities they posit here and fail to comprehend what the PSPP's are arguing back to them.

Of these 3 options, I sincerely hope #1 is the most likely. It would be a really sad day if #3 were the correct interpretation.

[Paul Leopardi]

Dear step back,
It does not matter what you believe you are doing when you write a program. The denotational semantics of programming languages, the existence of Lambda calculus, and the Church-Turing thesis ensures that any time you write, compile and run a program, the entire process can be reduced to computing a computable function.

[NameChange]

When you reduce a model of a physical phenomena and your solution to it, to a mathematical formula and then compute the outcome to implement your solution you are inventing.

When you figure out a novel way to manipulate register transfers, using, for example, a low level programming language, to arrive at a vastly more efficient manner of "computing" a function, you are inventing.

[NameChange]

If you write an application in a high level source code to compress an image file, you are NOT inventing.

[NameChange]

This is NOT inventing

function compress(image file handle)
{
prepare memory;
compressed handle := OSCallCompress(image file);
return (compressed handle);
clean up memory;
}

[mike]

@NameChange:
I don't understand why you think there is a difference between low-level and high-level code. If you're suggesting that low-level code is 'closer to the machine', how do you deal with low-level code running on a virtual machine? Can I get away with infringing your patent on an assembly language routine by re-implementing it in C?

@step back:
I think you are confusing information theory with physics. The limitations on a computer that you mention are a result of practical computers that we use being finite. This doesn't make them any less abstract. In any case, the limitations of time and space for a modern computer are very large, and the difference between practice and theory are very small for most programs.

Are you suggesting that only programs that require so much memory or processor time that they must be optimized before they can be run on modern computers should be eligible for patenting? That seems to be the only conclusion available if time/space concerns are the only thing that can make software non-abstract, but it doesn't seem reasonable.

[Night Writer Patent Attorney]

>>Computer programming is mathematics.

That is simply not true. The fact that mathematics may be used to represent the information processing methods on a computer does not mean that the methods are math. The weather is being modeled using mathematics and simulated on a computer. Does that mean the weather is math? No. Math may be used to model any method of playing cards or making steel. Does that mean that playing cards is math or making steel is math?

[mike]

"Math may be used to model any method of playing cards or making steel. Does that mean that playing cards is math or making steel is math?"

A sufficiently accurate simulation of rubber being cured is not rubber. A sufficiently accurate simulation of a computer is a computer. (virtual machine) A sufficiently accurate simulation of a computer program is a computer program. (interpreter)

[PolR]

"The fact that mathematics may be used to represent the information processing methods on a computer does not mean that the methods are math."

This is indeed not what means the methods are maths. It is the fact that the method matches the definition of the mathematical concept of "effective method" which means that the method is maths.

" The weather is being modeled using mathematics and simulated on a computer. Does that mean the weather is math? No. Math may be used to model any method of playing cards or making steel. Does that mean that playing cards is math or making steel is math?"

The argument software is maths is not about building a mathematical model. It is about whether or not the work of the computer matches the definition of a mathematical computation that is in usage within the art of mathematics.

The details of why this is so will be found here:

http://www.groklaw.net/article.php?story=20091111151305785

[hindsight from the future]

stepback
prepare to be seriously disappointed. the mental wanking you see all about you is very real and done by people so delusional that they cannot see the illogic in their pristine logic.

calls to mind the great quote from william shatner when hosting a live comedy venue.

[step back]

This is not a pipe:

The map is not the territory.

The math model of a computer process is not the process.

[suezz]

"There is six phases in the life cycle of software products: Definition, Design, Implementation, Delivery, Maintenance, and Enhancements. Let’s look a little closely at these phases and you will see how closely they resemble characteristics common to all manufacturing companies. "

okay but I don't need to hire employees, build a factory, buy machinery (except one computer). I can do all those phases in my house on my computer.

Software is math just waiting to be discovered and is not patentable period end of story no matter how bill gates tries to twist it.

[PolR]

"The math model of a computer process is not the process"

Point understood and agreed with.

Maths is not all about models. Some processes are maths. Before the advent of the computer, mathematicians were working with pencil and paper. They still do. This work is in many cases a process made of steps to be executed in a sequential manner. Processes and maths are not mutually exclusive categories.

I wonder if the mistake is the belief that maths must be disembodied. This is never the case unless you do stuff so simple you can all do it by head. Maths is a written discipline. You need a physical artifact to write down the symbols that are required to carry out the steps of the calculation. It can be pencil and paper. It can be bits in a circuit. In both cases it is maths.

[suezz]

"That is simply not true. The fact that mathematics may be used to represent the information processing methods on a computer does not mean that the methods are math. The weather is being modeled using mathematics and simulated on a computer. Does that mean the weather is math? No. Math may be used to model any method of playing cards or making steel. Does that mean that playing cards is math or making steel is math?"

wrong - it is true. there is no such thing as "information processing methods" that is non sense.
last I checked the weather wasn't patentable either along with playing cards and making steel.

software patents are being used to hold back an industry by holding it hostage. software is math. the only people that want software patents are lawyers and big companies who are afraid of not pleasing their stock holders.

if you write a program to copy files does that mean copying files is patentable? it is math because I am manipulating 1 and 0's and moving/copying those 1/0's using algorithms that I chose to use and are available to use patent free because they are math. just because you are not literally adding 1+1 does not mean it isn't math.

[Rick Peterson]

I agree. The issue is discovery and invention. Take a Radio Shack "101 Projects Kit." So, once it is wired as a "lie detector application" it is patentable (if novel, useful and unobvious, etc.), but a program to instantaneously wire it as the same "lie detector application" it is not patentable, then we have a problem. Inventors are being forced into formalisms that devalue invention and discourage original thinking.

[Crackpot alert]

"Your article does not give one single reason why it is in the public interest to grant software developers a monopoly over their ideas."

Why should anybody get credit for their work? If they don't get paid, why should they share the product of their labors?

This was a concept that our founding fathers understood -- you provide value, you should get rewarded for that value and that also applies for intellectual property.

Of course, every first-world country in the world has a patent system, so you should be explain why all these countries got it wrong. You are advocating for the massive change of status quo, so you should be the one writing the article.

[Game over]

"it is math because I am manipulating 1 and 0's and moving/copying those 1/0's using algorithms that I chose to use and are available to use patent free because they are math. just because you are not literally adding 1+1 does not mean it isn't math."

There is a difference between using math and doing nothing but math -- this difference is important but overlooked in your analysis. Any process involves math because math underlies physics, and physics underlies what happens in any physical process. The fact that a computer program uses math does not distinguish it from these other process. Like these other processes, the use of math results is some real-world action/consequence. In software, a data structure within a storage medium may be changed, a user may be prevented/allowed to take a certain action, a communication may occur, etc. These real-world actions/consequeces are more than just math -- which is why software will be patentable now and in the foreseeable future.

The problem that that software geeks have in their anti-software patent crusade is that they have to convince non-technical people (i.e., legislators and judges) using their technical jargon.

On the other hand, it is easy to take a non-technical person to a computer, show them all the amazing things they can do with a computer running software, and then ask the question "did this software add value to the computer?" The answer to this question will almost invariably be yes. What come next is the question that "if the person writing this software had added value, why shouldn't this person be rewarded?"

The anti-software-patents zealots or the anti-patent zealots can never provide an answer that refutes the basic (and very popular) notion that people should be rewarded for their labors. Try as they might, this is a dead issue. The software genie is out of the bottle in the US and it isn't going back.

Thanks for playing, but game over.

[Alun Palmer]

The article can be picked at a little if you view it as a treatise on patent law (although only a little), but as a clear and rational explanation as to why software should be patentable it is right on the money. If you implement something that could be implemented in pure hardware as a mixture of hardware and software, upto and including software running on a general purpose computer, then it should be no less patentable than if it were implemented purely in hardware, period. If I had my druthers, that would be the legal test, although jurisprudence doesn't tend to work that way. Instead, new legal tests are invariably drafted to create the least disturbance to the existing body of precedent. We will have to wait and see.

[John Nagle]

No one here seems to have read Goetz's original patent (US #3,380,029). It's written as a hardware device for controlling a sorting process. The hardware equivalence issue is quite real. Until 1990 or so, it was customary to draft software patents as if they were hardware devices. This led to patents that were hard to understand.

Goetz's sorting algorithm is quite clever. It was the first sort to break the "speed limit" of O(N log N). Some textbooks still state that it's not possible to sort faster than O(N log N), but that's not really the case. If you only do comparisons (i.e. the sorting algorithm is based on ">") you're limited by that limit. But there are other approaches.

SyncSort owned mainframe sorting for years, and they're still in business.

[GS Rich]

2 cents: With a background in embedded systems I have a profound appreciation for the interaction of hardware & software. I've always been a bit on the fence as to whether s'ware should be categorically denied patentability, but I must say Mr. Goetz's post has done nothing to persuade me. From a legal perspective, comparing s'ware development to generalized industry or business is irrelevant. Is Goetz arguing to change the statute? If not, I'm still not sure which category he places s'ware in. Also (as has already been pointed out), the notion that 'anything done in hardware can also be done in software' is not quite true.

[macbook]

@Game Over

"The anti-software-patents zealots or the anti-patent zealots can never provide an answer that refutes the basic (and very popular) notion that people should be rewarded for their labors."

Copyright is fine for rewarding labour. Patents on the other side are just stealing the fruits of the labour.

[Ah Pook]

Any opinion piece on patents and software = big long comment thread, much heat, little light.

There simply is not any valid “philosophical” basis for saying that “information processing” should be excluded outright from patentability. Which isn’t to say that that it doesn’t presents challenges.

“Computer programming is a branch of mathematics.”

That must be why computer programming is taught in the math faculty. NO IT ISN’T. Math and logic are not the same thing. Applied math and applied logic are not he same thing as pure math and pure logic. Computer programming is a branch of engineering. It’s about getting machines to perform useful functions.

“When you write a program, you're doing math.”

You might incorporate some math into a computer program, but most computer code is not math of any kind.

“The whole foundation of computer program, laid down by Alan Turing et al, is mathematics. Without that foundation, there would be no computer programs as we know them.”

Mathematical expressions of physical laws are at the heart of most physical engineering. Without that foundation most modern technology would not exist.

“Would someone please tell me what other branches of mathematics are patentable? Algebra? Trig? Calculus? Topology? Statistics? No? Didn't think so.”

Patentable inventions frequently comprise practical applications of mathematics.

[Just an ordinary inventor(TM)]

Dear Ah Pook,

Re:
"Computer programming is a branch of engineering." etc.

Brilliant post! Bravo! Thank you.

[Paul Leopardi]

Hi again folks. First, my background. I have degrees in Computer Science, Information Systems and Mathematics. In Computer Science way back in 1981 I learnt about logic, and in 1982 I learnt about the denotational semantics of programming languages. In 2000 I went back to university to learn numerical analysis and computational mathematics.

Before anyone can categorically assert whether something is or is not mathematics, it would be wise to understand the scope of mathematics and mathematical thinking. The relevant subject here is the design, implementation and analysis of algorithms. Algorithms of all types. The key question (to my mind) is whether an algorithm implemented on a general purpose computer is essentially different from the same algorithm implemented manually. If it is not, I suggest that you need to look for patentable subject matter elsewhere. Adding a general purpose computer should not make an unpatentable algorithm patentable. Unfortunately, there are already too many examples of US patents which are essentially patents on "unpatentable" algorithms.

[Just an ordinary inventor(TM)]

Dear Paul,

With all due respect, you don't know dick about patentable subject matter. No offense intended.

[MaxDrei]

Interesting contribution from Paul Leonard. A propos his "key question", would he say that an algorithm that causes the computer itself to operate more efficiently than before is something deserving patent protection, as being "more" than an algorithm "as such".

What if such an algorithm is written in code on a carrier. Is such a carrier patentable?

Or must the computer first be programmed, before anything patentable exists?

Or is there no such thing as an algorithm that causes a computer to run more efficiently?

[MaxDrei]

Paul, sorry I mis-spelled your last name. Don't worry about JAOI's tone. He is not averse to a bit of provocation. Maybe he just got out of bed the wrong side, on this first day of Winter.

I also know "dick" about the patent-eligibility of programs for computers. It's a 101 area where what the law "is" and what the law "should be" get hopelessly commingled and intertwined, especially on this blog site, and especially when SCOTUS is about to opine.

[Just an ordinary inventor(TM)]

Ah Pook wrote:

"Computer programming is a branch of engineering. It’s about getting machines to perform useful functions."

and as such Computer Programming is patentable subject matter. QED

[Just an ordinary inventor(TM)]

35 U.S.C. 101 Inventions patentable.
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

[Just an ordinary inventor(TM)]

process:
1. A series of actions, changes, or functions bringing about a result

http://www.thefreedictionary.com/process

[Night Writer Patent Attorney]

A computer is implementing an information processing process which operates on represented information. Just like a process that operates on wheat.

Represeted information is being operated on. Think that through.

The math question is a red herring. Yes, every computer program is a computable function. So, what? That doesn't mean it is mathematics. Are humans mathematics? Are neural networks mathematics? Are the neurons that causes a cat to run or walk mathematics?

You also need to think a bit more about what mathematics is in relation to our brains.
I wish I had more time to go into this. You know Newell actually wrote a paper about this long ago.

[Night Writer Patent Attorney]

And in all cases, at the end of the day, what you have is a machine that is doing things that people are paid to do.

How in the world can that not be exactly what the founders had in mind when they wrote the constitution?

[Night Writer Patent Attorney]

I hope you figured out by now that a computer is not math, but a machine. That the information is being represented by a physical machine that is not math. How can you separate a cat's neurons from a computer and say one is math and one is not?

[Night Writer Patent Attorney]

P.S. I still think MM is a baboon.

[logic waterboarder]

Hi everybody, here's a little bit about my background. I'm not a software developer, or a mathematician, or a patent attorney. However, I did stay in a Holiday Inn Express last night.

Therefore, software patents are unpatentable.

QED

[Night Writer Patent Attorney]

And Maxdrei, I am suprized you haven't picked up on the distinction between software that improves the operation of the computer vs. application software as the EPO makes such a distinction. And, in fact, you Europeans have tried to make the software that improves the efficiency of the computer eligible for patentability and the application software not eligible.

Although, don't ask me for case cites. It's been over a year since I fought that battle with the EPO and lost.

[Just an ordinary inventor(TM)]

Hello Night Writer Patent Attorney,

Re:
“And in all cases, at the end of the day, what you have is a machine that is doing things that people are paid to do.

How in the world can that not be exactly what the founders had in mind when they wrote the constitution?”

If a person invents a new and useful process, that invention is, of course, patentable whether or not it is preformed in a computer. That is exactly what our forefathers meant in the Constitution. You sure got that right.

[JanSchotsmans]

Software is already overly protected by copyright.

It doesn't need patenting.

Not to mention that innovations in software, if given any patent protection longer then a year is utterly counter productive for the entire world.

Software innovation needs to be pushed to new boundaries, not locked down so that in 20 years you can still refuse use of the technology you created to whomever you please.

Not to mention that the patent system is flawed to extremes.

People constantly patent things that have been around for ages but noone has ever taken a previous patent on, with no intellectual input of their own, they purely seek profit and they'll stem any innovation to keep those profits.