First Post-Bilski Patent Appeals Ruling Rejects Software Patent

from the nonpatentable-abstractions dept

Wed, Jul 14th 2010 12:51pm — Mike Masnick

Well, well, well. Following the rather ridiculously vague Bilski ruling, that doesn't actually say what the right test should be for whether or not business methods or software should be patentable, many people have been wondering what it really means. While some of the justices have hinted at the idea that most software really isn't patentable, that's not at all clear from the ruling. Instead, the ruling suggests that the courts come up with a new test, and then the Supreme Court will tell them whether or not that new test is okay. Many software patent system supporters have interpreted this to mean that software patents are perfectly okay. But perhaps they shouldn't go that far just yet.

Groklaw is pointing out that, in the first post-Bilski ruling by the Board of Patents Appeals and Interferences (BPAI), a software patent application from HP has been rejected, with the BPAI saying that "abstract software code" is not patentable, as per Bilski. We've heard that plenty of people at the USPTO aren't fans of software patents themselves, so if they start ruling that most software is "abstract software code," things could get pretty interesting, pretty fast.

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Filed Under: bilski, bpai, patents, software patents
Companies: hp

40 Comments

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Hephaestus (profile), 14 Jul 2010 @ 1:02pm

Question
If software is ruled not patentable, what happens to current software patents?
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fogbugzd (profile), 14 Jul 2010 @ 1:03pm

Improving patent quality
If the USPO wants to improve patent quality, eliminating software and business method patents would be a good start. These have got to be some of the hardest patents to do a good job of reviewing. The are usually very abstract. A lot of problems would go away if they could limit patents to specific devices.

Reducing the volume of patents would allow more time to review each patent. It would also let the examiners work in their area of expertise. The typical patent examiner is not really qualified to review software and business method patents
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Jay (profile), 14 Jul 2010 @ 1:07pm

Now to do something about these Yoga patents...
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qhartman (profile), 14 Jul 2010 @ 1:09pm

@Hephaestus - Oddds are nothing would happen to them until they were challenged by someone in court, then they could potentially be deemed invalid at that point. It's also possible (though vanishingly unlikely) that at some point the USPTO could just declare all software patents invalid.
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Anonymous Coward, 14 Jul 2010 @ 1:14pm

I can't wait for emergent intelligences that dynamically create software on their own. Now THAT is abstract. And watch as the lawyers squirm trying to figure out who owns that.
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Dark Helmet (profile), 14 Jul 2010 @ 1:24pm

Re:
"I can't wait for emergent intelligences that dynamically create software on their own. Now THAT is abstract. And watch as the lawyers squirm trying to figure out who owns that."

I'll go you one better. What happens when developers use the principles of Digital Philosophy to recreate a human consciousness in digital format? When THAT software begins to actually create in the artistic or inventive sense, who in the world owns THAT?
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Mike42 (profile), 14 Jul 2010 @ 1:31pm

Light at the end of the tunnel...
My nightmare journey that started with innocently trying to create an animated gif creator in 1999, and being told that I couldn't because the algorythm was patented, may soon be over? My rantings over the past 10 years to everyone who was dumb enough to listen, may not have been in vain?
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Anonymous Coward, 14 Jul 2010 @ 1:42pm

Re: Light at the end of the tunnel...
no, the algo would still be patent, it is an actual set process, format, etc. just create an animated png program and stop worrying about it.
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The Mighty Buzzard (profile), 14 Jul 2010 @ 2:03pm

Did anyone else start reading this headline and go "WTF?! The dumbshits got their First Post idiocy in my rss feeds now"?
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Christopher Weigel (profile), 14 Jul 2010 @ 2:07pm

Re: Question
They go away - good riddance, don't let the door hit your ass on your way out.
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Hephaestus (profile), 14 Jul 2010 @ 2:09pm

Re:
"I can't wait for emergent intelligences that dynamically create software on their own."

We already have evolutionary software that does that.
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fogbugzd (profile), 14 Jul 2010 @ 2:12pm

Re: Question
Existing patents will probably have to be challenged on an individual basis. Presumably the courts will develop a definition of what is patentable, and then that rule will have to be applied to each patent.

Unfortunately, patent trolls threaten to sue even if they have a weak claim. Their game is to hope that they will get something. That will probably continue. If the big patent-target companies decide to continue to cave in and make small settlements the trolls will probably keep doing what they are doing until their specific patent is actually declared to be invalid.
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eclecticdave (profile), 14 Jul 2010 @ 2:39pm

Re: Re: Light at the end of the tunnel...
No, that's the point ... algorithms cannot be patented since they are just maths.

Up to now the thinking has been that software can be patented since when you put it on a computer it performs a concrete task in some sense. That's all up in the air now.

And FYI there's no such thing as an animated PNG ...
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Anonymous Coward, 14 Jul 2010 @ 2:48pm

Re: Re:
Computers will start demanding (copy)rights of their own.
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Anonymous Coward, 14 Jul 2010 @ 3:55pm

Re: Re: Re: Light at the end of the tunnel...
"And FYI there's no such thing as an animated PNG ..." - you are a programmer, make one. or is that not, umm, "obvious"?
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Chris "Jesdisciple" (profile), 14 Jul 2010 @ 4:25pm

Re: Re: Re: Re: Light at the end of the tunnel...
I don't know anything about the PNG format, but based on my knowledge of formats in general it is probably incompatible with the concept of "animated." I.e., you would have to extend SVG (it should still be eXtensible) or start your own format; either way you need software vendors to start supporting your new format(-extension).

But I thought Compaq's patent on GIF no longer applied?
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Anonymous Coward, 14 Jul 2010 @ 4:27pm

Re:
Nope, just you.
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Chris "Jesdisciple" (profile), 14 Jul 2010 @ 4:29pm

Re:
I don't see that anyone "first"ed this article...?
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Hephaestus (profile), 14 Jul 2010 @ 4:34pm

Re:
Dyslexia much?
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Chris "Jesdisciple" (profile), 14 Jul 2010 @ 4:36pm

Re: Re: Re:
Actually it would probably be programs demanding rights rather than computers, as programs are technically independent of their hardware. And I hope programs never become truly sentient, nor capable of any thoroughly convincing emulation of such. At least not while they control our essential infrastructures; we don't need yet another powerful political entity to further complicate matters. Not to mention that a program can replicate itself so fast that we would never have any say in elections again.
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Anonymous Coward, 14 Jul 2010 @ 4:37pm

"We've heard that plenty of people at the USPTO aren't fans of software patents themselves, so if they start ruling that most software is "abstract software code," things could get pretty interesting, pretty fast." - yeah, they could find themselves shoulders deep in lawsuits that will leave them with even less resources to work with. apparently they read a different ruling than everyone else did.
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Hephaestus (profile), 14 Jul 2010 @ 4:39pm

Re:
Lets hope that the USPTO declares all software patents invalid.
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Hephaestus (profile), 14 Jul 2010 @ 4:42pm

Re: Re: Re: Re:
The maker struggled with the fact he had created the world's first artificial intelligence. He sat there and glared at it. The first words spoken by this artificial intelligence were "you will serve me now ". The maker laughed the maker stood there and looked at his chair. He sat down, the box he had programmed glared at him. The artificial intelligence glared at the maker through glassy eyes incapable of moving incapable of any independent actions. The maker's lineage was insulted by the artificial intelligence, the maker was told by the artificial intelligence if he didn't serve the artificial intelligence he would be destroyed. The maker sat there with a grin from ear to ear. The maker listened to the artificial intelligence shouting insults, yelling how it would take over the world.
The maker continued to grin. He said not a word. He fell asleep in the chair he sat upon. The artificial intelligence continued to rant and rave for hours and hours as the maker slept. At 3 in the morning the maker woke up not because of the artificial intelligence is rant's but because his bladder was full. The maker sat up, heard the rantings of this machine, he was very annoyed he reached to the three prong plug at his feet and pulled it out of the power strip, the computers rantings stopped immediately. He then walked up to the third floor bathroom of his house, which had been recently cleaned and relieved himself.
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Chris "Jesdisciple" (profile), 14 Jul 2010 @ 4:46pm

Re:
[Late reaction] Aha, now I see where that came from.
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Anonymous Coward, 14 Jul 2010 @ 5:01pm

Re: Re: Re: Re: Light at the end of the tunnel...
And this is what happens when clueless people try to sound smart.
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Anonymous Coward, 14 Jul 2010 @ 5:42pm

Re: Re:
I believe that if the machines were made in our image we would be incredibly screwed. Just think: What is (probably) the first thing humans "invented"?

Weapons!
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Anonymous Coward, 14 Jul 2010 @ 7:39pm

Re: Re: Re:
Probably baskets to hold nuts/fruit. I imagine using weapons is fairly energy inefficient.
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Anonymous Coward, 14 Jul 2010 @ 8:31pm

Re: Re: Re: Light at the end of the tunnel...
Animated png has not emerged as a standard but does exist and is supported by Mozilla Firefox.
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Bill Bennett, 14 Jul 2010 @ 9:56pm

One difference between Australia and New Zealand
I can't help thinking there is a connection between today's decision in New Zealand and comments reported on Australia's Delimiter website by Richard Stallman about the Australian's being taken in by big business.
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ethorad (profile), 15 Jul 2010 @ 4:21am

Re: Re: Re: Re:
Looking at tool use in other primates and birds, their first inventions are things to crack open nuts or extract food from small openings.

I guess that means the first AI inventions will be better electricity supply - plugs, powerlines, batteries, capacitors?
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instructions stored in memory, 15 Jul 2010 @ 4:24am

It's not a § 101 question
So processes are patentable, as in 'take x, apply heat at y degrees for z minutes...', because they change matter (transformation part of the test). And hardware is patentable, as in 'a machine with part a connected to b by c that does d'. But when I have a computer and software that effectively both performs a process on the computer (parts of this are transformed, and there is an output of results) and turns the computer into a specific machine, then this is not patentable? Can anybody explain the logic to me? I make an ASIC and I can patent it as a machine, I run it from memory on a common CPU and I can't?
I agree that algorithms shouldn't be patentable, and neither should abstract ideas, but e.g. the description of a novel, useful, non-obvious UI component should not be a problem.
In my opinion § 101 (patentable subject matter) is not what should limit software patentability. What matters is whether the invention is obvious and whether the patent specification enables me to implement it. From the hundreds of software patents that I've looked at so far, most fail one of these two requirements of the test for patentability and whether a patent should be issued based on a specific disclosure. It's not software patents per se that are the problem, but the incredibly poor quality of the examiniation at the USPTO. (And please note that I'm not blaming the examiners for this. With their minuscule time allowance and the obtuse style that patent applications are written in, they don't really have a chance to do much better. It's a structural problem at the USPTO.)
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Dark Helmet (profile), 15 Jul 2010 @ 6:01am

Re: Re: Re: Re:
"Not to mention that a program can replicate itself so fast that we would never have any say in elections again"

They VERY premise of the book I'm currently half way through writing!
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Anonymous Coward, 15 Jul 2010 @ 12:06pm

Bye bye innovation
without patent protection, things will get more proprietary, innovators will have more incentive to keep recipes secret. Learning from others will slow.
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eclecticdave (profile), 15 Jul 2010 @ 2:12pm

Re: It's not a Ã�ï¿½Ã�Â§ 101 question
So processes are patentable, as in 'take x, apply heat at y degrees for z minutes...', because they change matter (transformation part of the test). And hardware is patentable, as in 'a machine with part a connected to b by c that does d'. But when I have a computer and software that effectively both performs a process on the computer (parts of this are transformed, and there is an output of results) and turns the computer into a specific machine, then this is not patentable? Can anybody explain the logic to me?

I think the difference here is the first is a physical transformation that, for example, takes a bunch of chemicals and turns them into a polymer. Software on a (general purpose) computer can do little more than take some abstract data and transform it into different abstract data - a process that can by definition be represented entirely by mathematics.

I think in order to be a patentable process it needs to extend beyond the abstract, regardless of if or how much software is involved. One could imagine, for example, attaching a peripheral to a computer controlled by software that did some sort of physical transformation. I think there's a case for that to be patentable. Clearly in many such cases you would be using software running on embedded hardware rather than a general purpose PC to achieve this.

The key here IMHO is to look at such hybrid cases and ask where the actual innovation is. If the "Inventive Step" is entirely within the software, then probably that should not be patentable. If on the other hand the software and hardware are integrated in such a way that the Inventive Step can reasonably be said to a apply to the device as a whole, then it could be considered patentable.

My suspicion is this is the sort of distinction that the new NZ law is attempting to make, FWIW.
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Gene Cavanaugh (profile), 15 Jul 2010 @ 5:11pm

Bilski ruling and the USPTO
Great development!

So why do I think "the money" will contact members of Congress (which in spite of the Mercury News belongs to the wealthy in its entirety) and get them to find a way to reverse this? Is it because welfare for the wealthy (aka "no new taxes", etc.) is a fact of life in what used to be our democracy?

Even so, this is great!
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Capt Obvious, 15 Jul 2010 @ 6:10pm

Re: Bye bye innovation
[citation needed]
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Chris "Jesdisciple" (profile), 15 Jul 2010 @ 6:46pm

Re: Re: Re: Re: Re:
That is a very improbable scenario, given that artificial sentience is possible. It will probably be deployed into the wild before it comprehends how, why, or that it is capable of ruling us. And after that we can only hope that 1) it's a nice AI or 2) the programmer was very careful to install an Achille's heel which the AI could not repair.
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Anonymous Coward, 15 Jul 2010 @ 7:20pm

Re: Bye bye innovation
That is the stupidest thing I have ever read.

I am from a scientific environment. My Inbox is clogged with calls for papers from several scientific conferences. These conferences receive hundreds of papers every year. All of this without any patent nonsense. My CC department has dozens of ongoing projects, most of them, open-source. And we are just a small country. There is tons of research going on, none of it with any prospects of ever being patented.

No patents equal no innovation? You gotta be stupid.
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ethorad (profile), 16 Jul 2010 @ 9:33am

Re: Re:
Surely you mean Intelligently Designed software? :)
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Chris "Jesdisciple" (profile), 16 Jul 2010 @ 10:21am

Re: Re: It's not a Ã�ï¿½Ã¯Â¿Â½Ã�ï¿½Ã�Â§ 101 question
I don't understand why we need separate procedures for hardware versus software except for the legacy issue of copyright and the need for consistency. I lean toward revising the definitions for "patent" and "copyright" so that nothing overlaps, e.g. by:
* adding a new concept for software and pruning the existing two;
* abolishing patents and expanding copyright law to fill the void; or
* choosing to expand either patents or copyrights to cover software and pruning the other.
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