IEEE Celebrates Bilski Ruling With Misleading Press Release
from the software-patents? dept
Glyn Moody points us to the news that the IEEE has put out a press release celebrating the Bilski ruling. This is reasonably upsetting many who find software patents abhorrent to those who believe in technological progress. The IEEE had been part of an amicus filing, where it asked the court for clarity, so it's a little surprising to celebrate this ruling, which provided no clarity at all. Instead, the IEEE claims it's happy that "The U.S. Supreme Court ruled 5-4 Monday that a new method of doing business can be patented, and that the ability to patent software should not be limited." Except the overall ruling was 9-0, not 5-4 (though, the majority binding part of the ruling was 5-4), and the majority ruling doesn't actually make it clear that the ability to patent software should not be limited. In fact, it skips over that question pretty much entirely. So it's not clear what the IEEE is celebrating other than that the court didn't actually address software patents.
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That is a victory for those who want to patent software.
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Re:
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those who hate on patents of all sorts will be disappointed and try to say that no judgment was made, but the absence of a judgment has exactly the same effect for the moment as approving something, at least for the time being.
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The most support for software patents that we get from the SCOTUS is likely Diehr, where (a) that was an apparently novel matter transformation being patented and (b) the software formed but a few of those steps such that you could actually replace the software with a human and still end up with the same effect and likely the patent.
Diehr was completely different from essentially simply running novel software on a device and then, eg, displaying the output of those algorithms (mental steps) via an obvious transformation of the digital values held in display memory into the light waves to show the results to the devices user. The data processing results were derived from mental steps manipulating the abstraction of information using the device hardware rather than the human mind (not patentable since it's no more than effecting the algorithm on the abstracted informational content). Displaying the results is obvious post-solution activity that can't make the whole process patentable as reinforced in Bilski from Flook.
Not to be lost is that the patent in question also simply referred to actions people could take and had no transformation of matter or no new machine. It was denied 9-0.
Not to be lost either is that the majority said nothing much new on software patent, while a minority of 4 (Stevens) certainly looked at the question of (a) the need to promote the progress, (b) how monopolies taking from society can be an "embarrassment" (via Thomas Jefferson), etc.
Note that the other minority of 4 (majority opinion throughout the sections where Scalia bailed) stated they did not want to say anything at all against software unnecessarily, but also made clear they were not implying that they think software should be protected at all.
There is a very bright side in this for those against software patents (besides what was mentioned about how it is now perhaps less clear that a software patent will be acceptable): it will be more difficult to justify granting any patent that does not perform a novel transformation of matter; we had reinforced just the past rulings needed to dump pure software patents running on simple machines; another example (Bilski) of a fully rejected patent appears to support this further; and the serious conversation over "promoting the progress" appears to be on track to lead to further better changes in the future.
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I should have clarified that the computer that does the number crunching for the human is a patentable invention, but most people against software patents admit the hardware might be patentable. They key is not to give a new patent for every new set of algorithms being done in software.
Today, those wanting to acquire "software patents" with teeth will have to describe a new hardware machine or else likely a process that changes matter in a novel way. Without this sort of specificity (which, btw, does not cover running the software on a typical consumer device), they would likely get a rejected patent for being "abstract" much as Bilski was rejected.
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Another benefit from Bilski for those of us strongly against software patents (and especially business method patents) is that Stevens wrote some very fine points that a future Court might end up echoing more strongly.
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Not to mention that (again from what people have been talking about) it says that the test used by one court is right but is not the whole test, while saying "nothing in this decision says the other test is right at all" (at least twice).
And the people commenting about it, start saying it is a disappointment, later the same day say it is a great result, and a few hours later say it is so-so...
I think anyone can be forgiven for being a bit confused. From an outsider point of view, it looks more like a Rorschach test than a court ruling: what you see in it reflects what you think about the issues in question.
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Its brief called on the court to reject its prior, inconsistent, confusing, irreconcileable "trilogy", and adopt what the IEEE believed to be a relatively straightforward, bright line test. The court, for whatever reason, chose not to do so...continuing to give stare decisis effect to its prior decisions. In this regard the court did virtually nothing to add clarity in this area, clarity of the very type advocated by Messers. Bessen ane Meurer (sp?) in their recent book.
If it can be said that the IEEE is "celebrating", such "celebrating" is almost certainly based upon the court not making the current state of affairs significantly worse than it already is.
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Legitimate Business Patents are an Imaginary Category, Bilski or No Bilski.
Now, of course, there are a lot of business method patents which amount to nothing more than computerizing and internet-izing established conventional business practices. The Supreme Court has ruled these patents to be obvious. The business practices underlying these patents tend to be very old-- they go back to the fifteenth century, in many cases. The tendency of computer technology is actually to simplify business, because it reduces time-lags. In the year 1450, in November or December, an Italian merchant in, say, Bruges, had to accept that he would not have any communication from the home office until the snow in the Alpine passes melted, say, in March or April, 1451. That meant he had to do a lot of stuff on guesswork. A merchant no longer has to guess at the credit-worthiness of a customer, because an electronic funds transfer has cleared within seconds. Similarly, mail-order dates to at least the early eighteenth century, that I know of. Look at T. H. Breen's _Tobacco Culture:
The Mentality of the Great Tidewater Planters on the Eve of Revolution_ (1987) to get an idea of how George Washington and William Byrd II of Westover did their shopping. Again, there were complexities inherent in the time and distance separating customer from merchant. You might also look at George Washington's notorious expense account (Marvin Kitman, _George Washington's Expense Account_, 1970). There is nothing very new under the sun.
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It's okay to admit that you don't know what you're talking about.
Let me make a few simple points here, in response to the points you make in your post in the order you present them:
1. If you're so upset about Bilski, take your beef to Congress. It's Congress's job to make laws, and the Court's job to interpret them. If the statute says "processes" are patentable, and another statute talks about patents on "methods of doing business", that's the end of the analysis. A business method is a process, therefore it's patentable. It's not the Court's institutional role to substitute its judgment for that of Congress, and certainly not because you and all the other kooks think that it should.
1a. It's been twelve years since State Street. Look at how American innovation has fallen apart since then. Except that it hasn't.
2. Did you read the IEEE amicus filing? The Court's opinion agrees with most of the amicus brief, except the specific test for patentability. The IEEE's test has no basis in the law -- you're not allowed to rewrite the statute because you don't like how it reads. See 1. above.
2a. Arguably, the IEEE's test for patentability overlaps with the Court's precedent on "abstract ideas", which the Court relied on here to deny Bilski a patent.
3. This decision provided much clarity here. For the past year, the discussion has been whether the Supreme Court would kill "business method patents" and "software patents." Instead, they were very clear that those items are patentable, and that one of the tests for patentable subject matter in this area is "machine or transformation." How much clearer do you want it?
3a. The "confusion" the IEEE refers to comes from three early cases in this area: Parker, Benson, and Flook. Have you read those? Do you know why people think they're confusing? Then maybe you'd know why the Supreme Court didn't announce a bright-line test here.
4. They're not talking about the "overall ruling" when they're talking about the 5-4 number. Their quote clearly says the 5-4 decision says that "a new method of doing business can be patented, and that the ability to patent software should not be limited." The "overall ruling" that Bilski didn't deserve a patent was 9-0, but that's not what they're talking about.
5. The Court did address software patents, and all other kinds of patents. If it's purely a software method patent, then it's treated like any other non-software method and it's eligible for a patent if it meets all of the other legal requirements.
I really appreciate a lot of what you write in the copyright space, and I think it's very smart. But your "patents suck" writings are not only tedious, but also poorly thought out. Many of your posts on this topic suffer from confirmation bias, where you seek out information that only confirms your prejudices. Keep up the good work otherwise.
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Re: It's okay to admit that you don't know what you're talking about.
The above has been requested over and over again on this blog, and not once have I seen a satisfactory response--it would be refreshing to have some additional information for a change.
My definition of information that would support your assertion of confirmation bias: multiple peer-reviewed and widely-accepted studies and/or analysis based on peer-reviewed and widely-accepted statistics.
The tired, avoidance response I expect? "I'm not going to do your googling for you..." Please exceed my expectations.
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Re: It's okay to admit that you don't know what you're talking about.
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Re: Re: It's okay to admit that you don't know what you're talking about.
Still waiting for my references, btw.
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Re: Re: It's okay to admit that you don't know what you're talking about.
There is plenty of research demonstrating that this is harming long-term innovation, regardless of whether it "feels" like it isn't. Suggest you read the recent GAO report, http://www.amazon.com/exec/obidos/ASIN/069111725X/techdirtcom, or http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1502864
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Re: It's okay to admit that you don't know what you're talking about.
Thanks for pointing that out (section 273). I read the section a few times. Together with 101 and related sections, it puts many business methods into play.
Unfortunately, there is the issue of constitutionality.
102, of using such a low bar, and the 20 year grant means probably the vast vast majority of all business methods, if not all of them, that would pass those 35 USC tests would fail to be Constitutional. We must place 35 USC within the context of the Constitution. As a short-cut way of addressing this, the Court has rules of thumbs like forbidding abstractions, and I think on this ground the Bilski patent failed.
You can't take away my free speech rights without amending the Constitution.
Until the Constitution is changed, Congress can't pass laws that don't promote the progress (or serve one of their other duties).
The Constitutional context applies to every single law. Rather than to strike down the entire law, it is placed within that context (like a filter). And the Court has until now used short-hand (unpatented) methods of addressing some of these issues. Judging by some of the ruling, they may start to use more tools in the future. This is all allowed and acceptable because the Constitution is the over-riding law, and it's more efficient to write broader laws and then pass them through the filter.
>> 1a. It's been twelve years since State Street. Look at how American innovation has fallen apart since then. Except that it hasn't.
Today a much higher percentage of software for general use is open source v. back then. The majority of this is written by groups that don't take out patents and really dislike software patents. They prefer to use licenses that defend against patents to a fair degree. Even some groups that do take out patents have pledged to support open source today much more than in the past (there are more software patents today, of course). What this says is that groups that don't support patents (or aggressive use of them) have stepped up relative to everyone else. And part of the reason for this is because of.. the Internet.
The Internet has grown up significantly in this past decade. This had nothing to do with software patents and has been central to enabling a lot of innovation and superior forms of collaboration and distribution.
Also, a lot of software patents that came into existence since State Street have not been enforced except as part of the usual broad licensing deals, and those seeking rents tend to wait until a market has been established, so you wouldn't see the bulk of the contributory negative effects in the early years.
As a whole, those that take out patents seek to levy taxes and manipulate winners and losers. They don't seek to kill the golden goose (though there are obviously individual casualties and aggregation of control in fewer hands, something that hurts consumers and competition).
>> The Court's opinion agrees with most of the amicus brief.
There are people on the other side of the road that experienced something similar.
>> Arguably, the IEEE's test for patentability overlaps with the Court's precedent on "abstract ideas", which the Court relied on here to deny Bilski a patent
Again, with that test, perhaps no business method patent likely to be created in the next 100 years would pass.
This is the Courts' ruling.
The argument at this point isn't whether or not some business method or software patent may be created at some point in time and pass muster. The Court said this might be the case. The argument is about probabilities.
The test the Court used suggests they aren't going to go easy on such patents.. as is proper based on the Constitution.
Alright, I think this covers it. Your other points are addressed by the above or else aren't in dispute
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Re: Re: It's okay to admit that you don't know what you're talking about.
What bothers me is that I don't get why software patents are special. It seems to me that either all patents are bad or no patents are bad. I don't think it's defensible to claim that every other kind of patent except software/business methods is fine.
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Re: It's okay to admit that you don't know what you're talking about.
Why yes, of course, they know more. Doesn't mean they don't get things wrong occassionally. Btw, I'm not a "no software patents kook." I explained my position on software patents here: http://www.techdirt.com/articles/20080409/011406799.shtml
Have you actually read the opinion?
Yes, multiple times.
Do you understand the roles of the judiciary and Congress in our form of government?
Yes, indeed. It's why I questioned Mark Lemley on stage at an event last year where I was interviewing him, because of his book insisting that the courts were enough to fix the patent system.
I think you think I'm saying something I'm not saying.
1. If you're so upset about Bilski, take your beef to Congress. It's Congress's job to make laws, and the Court's job to interpret them.
Indeed. We agree. This post wasn't about that. It was about the IEEE's statement.
If the statute says "processes" are patentable, and another statute talks about patents on "methods of doing business", that's the end of the analysis. A business method is a process, therefore it's patentable.
Well, clearly 4 out of the 9 justices disagreed with that analysis. And they made a rather compelling argument on that front. So, are you saying those 4 out of the 9 are "kooks"?
1a. It's been twelve years since State Street. Look at how American innovation has fallen apart since then. Except that it hasn't.
Strawman. No one said that innovation stops. But there is significant evidence that it has been massively hindered, and billions of dollars wasted in legal fights that could have gone towards innovation. No one ever claimed that post-state street all innovation would stop dead.
2. Did you read the IEEE amicus filing? The Court's opinion agrees with most of the amicus brief, except the specific test for patentability. The IEEE's test has no basis in the law -- you're not allowed to rewrite the statute because you don't like how it reads. See 1. above.
Yes, actually. Why do you think I linked to the IEEE filing. The specific test for patentability was the *core* of the IEEE's filing. The whole point was to ask for more clarity, which the court did not give.
2a. Arguably, the IEEE's test for patentability overlaps with the Court's precedent on "abstract ideas", which the Court relied on here to deny Bilski a patent.
I'd argue that point, but you don't want an intelligent discussion. You just want to insult me every chance you get, while misinterpreting everything I write.
3. This decision provided much clarity here. For the past year, the discussion has been whether the Supreme Court would kill "business method patents" and "software patents." Instead, they were very clear that those items are patentable, and that one of the tests for patentable subject matter in this area is "machine or transformation." How much clearer do you want it?
I'm sorry, but this is the first analysis I've seen *anywhere* that says this ruling provided "clarity". The decision doesn't provide much clarity at all. It only says that machine or transformation is one test, but not the only one. But it fails to explain the other tests. It basically tells CAFC "come up with some new tests and then we'll determine if those are right." That's not clarity at all.
3a. The "confusion" the IEEE refers to comes from three early cases in this area: Parker, Benson, and Flook. Have you read those? Do you know why people think they're confusing? Then maybe you'd know why the Supreme Court didn't announce a bright-line test here.
Yes, I'm not a babbling idiot despite your assertions. I've read the relevant cases and have discussed them many times. But I find it funny that in 3 you suggest that the SC has provided clarity and in 3a you admit they have not. Yikes.
4. They're not talking about the "overall ruling" when they're talking about the 5-4 number. Their quote clearly says the 5-4 decision says that "a new method of doing business can be patented, and that the ability to patent software should not be limited." The "overall ruling" that Bilski didn't deserve a patent was 9-0, but that's not what they're talking about.
Um. Do you just not read parenthetical notation?
5. The Court did address software patents, and all other kinds of patents. If it's purely a software method patent, then it's treated like any other non-software method and it's eligible for a patent if it meets all of the other legal requirements.
The majority part of the ruling does not really address software patents. As my more recent post discusses.
But your "patents suck" writings are not only tedious, but also poorly thought out. Many of your posts on this topic suffer from confirmation bias, where you seek out information that only confirms your prejudices.
Obviously, I disagree. As do many, many, many people who work in the field. But, such is life.
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Re: Re: It's okay to admit that you don't know what you're talking about.
Yes, you are. I just read that page.
:-)
It seems the Court may have moved along a similar path as was your wish in that it stuck to a strong existing test that will likely void most software and business method patents while seeking another test if possible. Mentioned among the opinions were other bits that suggest these classes of patents would be different and come with extra liabilities.
[I'm reading fast and jumping around without reading everything (still haven't read the Bilski ruling except in pieces) so feel free to correct mistakes.]
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Re: It's okay to admit that you don't know what you're talking about.
1. Your other reply addresses Stevens' argument about s. 273. I've already responded. I don't find his argument persuasive at all.
No, the justices aren't kooks. They're doing their job, which is interpreting statutes and applying the Constitution when that's necessary. But 90% of the discussion on this topic has nothing to do with any of that. Here's what makes a kook a kook, they argue policy and then, instead of going to the body that makes laws based on policy, they go to the body whose job it is to interpret the laws and then act surprised and upset when the Court ignores all of their policy arguments.
1a. I'm the one making a strawman argument? Why don't you name the country that doesn't have a patent system that out-innovates the United States? The U.S. has had a patent system since 1790, and it doesn't seem to have hurt innovation at all. I think we've probably out-innovated every other nation on earth, and this is doubly true in the software space in the 12 years since Bilski.
2. Every time I hear someone complain about the lack of clarity in Bilski, I ask them, "What should the Court have said? What clarity were you seeking?" So I'm asking you that too; see 3. below.
2a. I'm not going to accede to your views if they don't persuade me. I'm sorry if you find that insulting.
3. Thank you. I wish newspapers would ask me for quotes every once in a while. First off, refer to 2. above. Second, courts are supposed to decide cases based on the facts in front of them. When those decisions apply broadly to other facts, that's precedent. And when those decisions are applied badly to other facts, that's bad for all of us. The Bilski patent application was a horrible piece of crap that should have never gotten this far in the process. It was an abstract idea!
If you wanted the Supreme Court to announce the perfect test that would solve all these problems, they should have been given a patent application that had some merit to it. As it stood, the Court recognized that the facts were bad, that it didn't have enough expertise in this area to announce the perfect test, and by declining to propose the perfect test, it left the lower courts, the Patent Office, the inventors, and the patent attorneys with enough latitude to try and figure out what the right test(s) should be. What more could you possibly ask for here?
3a. C'mon now. You're pretending I'm making ad hominem attacks here and I've said nothing of the sort. I said that your copyright stuff is very smart and I meant it. If I've hurt your feelings, I do apologize. I do appreciate this blog and I've been a reader for years now.
3a.ii. If you're laughing you're not paying attention. Parker/Flook/Benson are not clear. The rhetoric we've seen from the Court over the past five years suggested that business method patents are categorically unpatentable, which conflicted with the Federal Circuit's Bilski decision. That makes things unclear. Now we have a Supreme Court decision that says beyond a doubt they're patentable, here's one test, and we have to work out the other tests together. That's clear. See the difference?
4. Don't complain that the IEEE press release got their numbers wrong. Their numbers were right for the statement that they were making.
5. Back to 3a, if it makes you feel any better, you're right in that I'm in a small minority here. That doesn't mean that I don't think I'm right.
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Re: It's okay to admit that you don't know what you're talking about.
If the statute says "processes" are patentable, and another statute talks about patents on "methods of doing business", that's the end of the analysis
Stevens very effectively explains why your "end of analysis" makes no sense when you actually understand the purpose of the statutes in play. If you read them blindly, without actually understanding the context (something you accuse me of doing), then your analysis is correct. If you read them in context and understand why section 273 exists, you realize that it does not serve the purpose you claim it serves.
I agree that reasonable people can disagree on this, but none of that makes me the babbling ignorant idiot you suggest. If I am, than so are 4 of the 9 justices.
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Re: Re: It's okay to admit that you don't know what you're talking about.
Because of the redefinition, the "method" in that section can mean something very different than the "method" as used in 101. The result being that business methods need not pass the non-obvious and related tests (that apply to the 101 methods) but instead such business methods may exist only in theory (eg, in case the law changes again to keep this wording in tact, or as a word defense measure to limit liabilities.. ie, something related to the historical context you mentioned) or only after a much higher criteria is fulfilled.
Honestly, I looked at 273 b 1 for a little while and still fell into the trap.
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Re: Re: It's okay to admit that you don't know what you're talking about.
If that's truly the case, and s. 273 wasn't meant to tacitly recognize the patentability of business methods, and Congress really doesn't want business methods to be patentable, then why didn't they just amend s. 101 to say that business methods aren't patentable? It's been 12 years now. They clearly know how to define business method patents -- they can just crib the language from s. 273.
Answer -- they don't think business method patents are unpatentable. And Stevens was wrong.
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Re: Re: Re: It's okay to admit that you don't know what you're talking about.
I love it. When SC Justices agree with you, you mock me for disagreeing with what SC Justices say saying how dare I question their knowledge. When they disagree with you, you toss out their position as not compelling.
Sorry. I can't argue with someone who argues so dishonestly. Just not worth my time. You can't appeal to authority and then ignore the authority when it disagrees with you.
hen why didn't they just amend s. 101 to say that business methods aren't patentable? It's been 12 years now.
Are you just playing dumb now? You sound like you know this stuff. If so, you know *damn* well how difficult it is to get patent reform through Congress. You think a *single* member of Congress would be willing to even bring up the idea of explicitly ruling business methods unpatentable? It would be career suicide once the Ronald Rileys of the world got a hold of that.
That Congress did not explicitly outlaw it in the 12 years since State Street says more about the lobbying power of certain special interests than what Congress might think is actually best for our economy.
Answer -- they don't think business method patents are unpatentable. And Stevens was wrong.
Stevens, Breyer, Sotomayor and Ginsburg. But, you know. Details. Wasn't it you who just said "Do you think it might be possible that the justices of the Supreme Court might know a little more about interpreting statutes than you?"
Yup. I'm done discussing this with you. As I said, you're arguing dishonestly and that's not worth my time.
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Mike's full of it, as usual
Write it on your forehead, dude
At least the Supremes were wise enough to realize their limitations and saved US patent system from idiots like you
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Re: Mike's full of it, as usual
My mommy didn't love me!
This that and the other thing!
DUUUUUDE!
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An Assignment For Angry Dude.
Aircraft engine, chemical fueled, to run on kerosene.
Weight: 5 lbs.
Size, not more than 1 ft. long, and 3 inches in diameter.
Thrust: 100,000 lbs, at 50,000 ft and Mach 0.81.
Fuel consumption: not more than one pound fuel per million pound-hours of thrust.
Do you begin to understand the difference between hardware and software?
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Re: An Assignment For Angry Dude.
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Re: An Assignment For Angry Dude.
SOFTWARE == HARDWARE (made of silicon and used in CPU chips, microcontrollers, DSPs, FPGAs, ASICs etc. to control device operations)
There is NO bright line dividing hardware and software
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Re: Re: An Assignment For Angry Dude.
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Re: Re: An Assignment For Angry Dude.
What you've described is hardware. All completely useless and rather pointless bits of sand until SOFTWARE (aka algorithms) are run through it.
Your equivalence no more makes hardware the equivalent of software as it does make electricity the equivalent of a wall switch and a light simply because you complete the connection in the switch.
Unless, of course, you want to say electricity is the equivalent of the hardware is runs on.
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Re: An Assignment For Angry Dude.
If you push very hard on the analysis, the execution of software sets registers and executes operations by moving electrons around and biasing transistors. Your software gets things done by affecting the hardware at the atomic level. To put it in Bilski terms, all software is tied to the particular machine that executes it, and all software transforms an article, i.e., the hardware that executes it.
Your counter-argument doesn't hold weight. Lions and panthers are both cats. That's not any less true because a panther isn't a lion.
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Yes, there is.
The physical laws and materials that apply to each are different despite the fact that there is a logical way to translate from one to the other and vice-versa.
It's one thing to patent a superior (in some way) semiconductor creating processes.
It's another thing to want to patent an arrangement of transistors. This arrangement could possibly have been generated from software tools used for generating circuits.
It's yet a third thing, though very similar in spirit to the second, to want to patent an electronic software state that "runs" on an existing hardware architecture (eg, Von Neumann).
One is clearly patentable by past standards.
Three is the software case, and it should not be patentable (abstraction), for example, because of the vast number of potential contributors to the art and science.
Because of the software/hardware mapping, two perhaps should not be allowed to be patented either, but there are some differences in practice (eg, speech and innovation is limited on hard-coded physical "single-use" devices).
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Re: Re: Re: An Assignment For Angry Dude.
http://www.techdirt.com/article.php?sid=20080319/015324581#c141
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...does not mean that unforeseen innovations such as computer programs are always unpatentable
The Bilski ruling clearly addresses software patents. For example it says:
But times change.Technology and other innovations progress in unexpected ways. For example, it was once forcefully argued that until recent times,“well-established principles of patent law probably would have prevented the
issuance of a valid patent on almost any conceivable computer program.” Diehr, 450 U. S., at 195 (STEVENS, J., dissenting). But this fact does not mean that unforeseen innovations such as computer programs are always unpatentable."
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Re: ...does not mean that unforeseen innovations such as computer programs are always unpatentable
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Re: Re: ...does not mean that unforeseen innovations such as computer programs are always unpatentable
But, software is currently patentable. The Court is aware of that. The Court had an opportunity to change that and chose not to. As Mike points out, "In fact, it skips over that question pretty much entirely".
So...in their silence, the majority said software is patentable.
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