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Professor Hollaar's Amicus Brief in Bilski
Tuesday, September 22 2009 @ 04:58 AM EDT

I've been reading some of the amicus briefs filed in the In Re Bilski case pending before the US Supreme Court. There is an amicus brief [PDF] filed with the Supreme Court in the Bilski case that I think will interest you. It discusses software and whether it is math, it misrepresents FOSS, and it pushes software patents. It was filed by Professor Lee Hollaar and IEEE-USA.

If that name sounds familiar, it should. Yes, this is the same Professor Hollaar that Alexander Terekhov and Daniel Wallace so often have quoted and linked to in their anti-GPL campaign here and elsewhere on the Internet. And digging a bit, I find a connection between Hollaar and Senator Orrin Hatch, whose son is one of the attorneys representing SCO, and between Hollaar and Caldera back in the days when it was suing Microsoft. Knock me over with a feather. It's a small, small SCO world. And I detect a Psystar shadow, too.

His brief says this is his interest in the Bilski case, while also giving some details about his background:

Interest of the Amici Curiae

Lee A. Hollaar, the author of this brief, is a professor of computer science in the School of Computing at the University of Utah. He teaches courses both in computer and intellectual property law and in computer systems and networking. He has been programming computers since 1964 and designing computer hardware since 1969. He received his B.S. degree in electrical engineering from the Illinois Institute of Technology in 1969 and his Ph.D. in computer science from the University of Illinois at Urbana-Champaign in 1975.

Professor Hollaar is an inventor and patentee of computer-related technology; a Registered Patent Agent involved with the prosecution of patent applications since 1989; an expert witness, consultant, and special master in patent litigation; the author of Legal Protection of Digital Information (BNA Books, 2002) and course material on computer-based patents; and a teacher of that material.

He is concerned that the decision in this case will continue the unclear lines of what is statutory subject matter by making distinctions not tied to real technological differences or may force inventors of computer-program-based inventions to claim them in ways that obscure the patentable advance over the prior art.

Dr. Hollaar is the former chair of IEEE-USA’s Intellectual Property Committee, where he supervised the filing of the amicus brief whose theory of foreseeability was adopted by this Court in Festo, and filed an amicus brief on his own behalf in Grokster whose theory of inducement liability was also adopted by this Court.

So there you are. He is a professor of computer science. He certainly has qualifications in the field of patents as a technical expert, but he didn't go to law school. That surprised me -- Hollaar isn't a lawyer. His bio says he's a patent agent, and while obviously he has many credentials, attorney isn't one of them. The way I have seen him quoted, I always imagined he was.

It says he authored the brief, but it's signed by a lawyer, David M. Bennion, of Parsons Behle & Latimer, "Counsel for Amici Curiae Professor Lee A. Hollaar and IEEE-USA". Here's the summary of the argument presented:

Summary Of The Argument

This Court’s trilogy of software patent cases, and the lower court decisions trying to reconcile them, have led to over three decades of uncertainty. This Court should use this case to repudiate those unfortunate cases (and thereby the opinions below based on them) and go back to the original clear and simple test for determining when a process is statutory subject matter:

  • A process is patentable subject matter when it involves making or using a machine, manufacture, or composition of matter.

Such a test is needed so examiner time can be spent more productively on the critical questions of novelty and nonobviousness and not trying to determine if a process is statutory.

The Federal Circuit’s opinion in this case just creates new confusion over what it means to be “tied to a particular machine.” Already, we are seeing collateral damage to software-based patents, with the Patent Office denying patents and district courts striking down granted patents.

Other proposed tests (“method of doing business,” “abstract/applied,” “practical application” or “useful, concrete and tangible,” or “technological”) portend more decades of uncertainty, as the Patent Office Board of Appeals and Interferences and the Federal Circuit try on a case-by-case basis to apply those terms to determine where the boundary really lies.

Judge Dyk’s concurrence in this case provides an excellent discussion of how this test was the understanding at the time of the Patent Act of 1793, on which the current statutory language is based, of when a process is statutory subject matter. Although this test is over two centuries old, because the concepts of “machine, manufacture, or composition of matter” have evolved with technology, so has this test. It provides a good and clear line for even the most cutting-edge technology.

At the same time, this Court should take this opportunity to restate three principles related to that test:

  • Claims drawn to the other categories (machine, manufacture, or composition of matter) are always statutory subject matter.
  • A claim that covers both statutory and nonstatutory embodiments (under the broadest reasonable interpretation of the claim when read in light of the specification and in view of one skilled in the art) embraces subject matter that is not eligible for patent protection and therefore is directed to non-statutory subject matter.
  • While using a machine may make a claim statutory, if the method itself is known in the prior art, simply adding a machine to perform the method does not necessarily make the claim nonobvious.
Because the claims at issue in this case are not limited to using or making a machine, manufacture, or composition of matter, they are not statutory subject matter, and the decision below should be affirmed, but on the modified grounds stated above.
As you can see, it isn't an irrational position, that anything that uses a machine is statutory subject matter, meaning conceivably patentable, but he later in the brief specifically says that *any* computer is a machine, so I think he's arguing that all software would be statutory subject matter, with the proviso that it would then have to prove it was nonobvious and actually innovative to get a software patent.

Like we can rely on the USPTO to check carefully for those two things. Not.

We'll look a bit deeper at his views in a minute. First, a bit more about him. His bio says he began teaching at the University of Utah beginning in 1984, teaching computer science, and inexplicably to me, computer law. By that I mean, I am puzzled about someone who is not an attorney being asked to teach any kind of law. Maybe patent law, since he is a patent agent and a technical expert in that area of law. Well, who am I to tell Utah what to do? But doesn't this comment of his from some years ago look like legal advice about US Copyright Law to you? I think it might lead a reader to at least think he was a lawyer. And there is no disclaimer or even a profile to let you know he's not a lawyer, not that I could find. I may not be the only person confused into thinking he was an attorney.

In the Preface to his book, "Legal Protection of Digital Information," he says he was set to be used as a technical expert by Caldera in its case against Microsoft, but then it settled, leaving him with lots of time and a lot of research, and so he wrote the book:

In January 2000, I was expecting to spend the next few months at the trial of Caldera's antitrust suit against Microsoft as Caldera's technical expert. About a week before the trial was to start, the parties settled and I found myself with unanticipated free time. Since I was scheduled to teach my computer law course in the fall, this was a perfect opportunity to expand the notes to cover the whole course. This book is the result.

But my efforts have gone well beyond this book. Rather than just publish the lecture notes, I decided that I would put all the backup material -- cases, legislative history, and everything else that I referenced -- on a Web site (www.digital-law-online.info) along with the lecture notes. This information would be available to everybody, at no charge. Summit Law Group, which was one of the legal counsels to Caldera, and Lineo, which is a spin-off of Caldera, provided grants to the University of Utah so that I could hire research assistants to help me put together the material for the class and the Web site.

Summit Law Group was one of the firms Caldera used in that lawsuit. Another was Snow Christensen, where Ryan Tibbitts worked prior to becoming general counsel to SCO Group. At the time, Caldera was under the Canopy Group umbrella, with Yarro still there. You can verify the law firms by looking at the certificate of service in this Caldera filing [PDF], or any of them. Hollaar also thanks Lineo and Summit for their money:
Finally, Summit Law Group and Lineo provided important support for the development of this book and its Web site. Matt Harris and Ralph Palumbo recognized the importance of having this material widely available and made it possible.
Lineo was, of course, an offshoot of Caldera, spun off in 1999 as a wholly owned subsidiary. Why would it want Hollaar's web site? For what business purpose would it fund it? According to a report in April of 2002, by Maureen O'Gara, Lineo had run out of money and was bouncing paychecks. If true, maybe paying professors to put up web sites isn't a viable business model? I am starting to wonder how long ago the idea of suing over the GPL first began to stir.

Harris replaced Bryan Sparks as CEO of Lineo in 2001, by the way. He started out as VP and General Counsel at Lineo when it began. Sparks founded Caldera, Inc. in 1994. Harris worked for Summit Law Group also, and in fact he was a founding member (more Lineo history at that link), and he was the lead technical lawyer for Caldera in its lawsuit against Microsoft. You'll find Palumbo in the Caldera v. Microsoft filing also. You can find Hollaar's other amicus brief submitted by him and IEEE-USA in the Bilski case, the one he filed earlier with the appeals court, on his page of papers.

Starting to feel like the Ozarks, where everyone is creepily related to everyone else you keep bumping into? The point is, there is a connection between Hollaar and Caldera/SCO that goes back years.

The Hollaar Amicus Brief in Bilski:

But let's look at his ideas on what he feels the Supreme Court should do about patents in a bit more detail. In his brief to the Supreme Court, he argues, or more accurately his lawyer argues for him, for software patents, and one argument relates to whether software is math:

One argument the opponents of patents for software-based inventions make is that software is mathematics, and mathematics is not patentable. 28 But that not only ignores how software-based inventions are generally claimed, but is bad computer science. Claims that include data structures in random-access memories, input devices such as keyboards or mice, screen display devices, or clocks and time-outs, common in software-based patents, are no longer equivalent to pure mathematics. ...

28 Benson, 409 U.S. 63, (1972) is generally cited for the latter proposition. But in most instances, the correspondence between computer programs and mathematics is merely cosmetic. For example, the equation E = MC 2 expresses a relationship between energy and matter first noted by Einstein, while the computer program statement E = M * C ** 2 represents the calculation of M time C raised to the second power and then assigning the result to a storage location named E. It is unfortunate for purposes here that the early developers of programming language made their calculation-and-assignment statements look like mathematical equations so that they would seem familiar to scientists and engineers. But the common programming statement I = I + 1, which increments the value stored in location I, is essentially nonsense as a mathematical equation. Similarly, a computer program is a series of calculation-and-assignment statements that are processed sequentially, not a set of simultaneous mathematical equations that are solved for their variables.

No doubt some of you will have responses to his view.

And he mentions in passing FOSS licenses and the community's opposition to patents in a way that I think will turn you purple:

31 Many programmers forego trade secret protection for their source code by making it available under a “free” or “open-source” license. These licenses, which are backed by copyrights of the source code, often require anybody improving the program to make their modifications available under the same license. But that does not keep someone from taking any new ideas in the program and incorporating them in a program while keeping their source code as a trade secret, because copyright does not protect ideas. Although most open-source programmers are opposed to software patents, this likely stems from a time when many of their programs were “clones” of existing proprietary programs (the original “free software” program was to be a reimplementation of the Unix operating system), and a patent could prevent such cloning. In this respect, they are like developing countries, which downplay intellectual property protection until they start producing their own innovations, at which time copyrights and patents become more interesting. The United States did not protect the works of foreign authors until 1891, when protection of American authors’ works in foreign countries became important.
How can a professor of computer science not know that software didn't start out as proprietary? That came second, not first. And talk about missing the point of the open source development model, where sharing knowledge is deliberate. You could call it the scientific method. It's like doctors sharing their knowledge from experiments and such, so other doctors don't have to repeat what they've already done. It's not about keeping that knowledge secret; the whole point is to share, so that the state of the field can quickly advance. The FOSS community shares on purpose, in order to share knowledge, also so the knowledge remains available to all. It has nothing to do with cloning anything. "GNU's not Unix" is a meaningful phrase. And the GPL in no way downplays copyright protection. It is based on copyright law, and the GPL is enforced using copyright law, so his footnote is grossly inaccurate, not to mention offensive and demeaning, to me anyway.

Here's what he thinks the Supreme Court should do in the Bilski case: make software patentable as a method, using a process claim instead of a machine claim:

Using a process claim rather than a machine claim, coupled with the Federal Circuit’s developing law on full-scope enablement, applicants will specify in the claim the particular steps of their claimed method that creates the special-purpose computer, but not use language overly broad lest their patent be invalid for lack of enablement. Unlike claiming the invention as a machine using functional elements, there will be no need for a person wanting to know the scope of the claims to guess at what structure in the specification defines each claim element, how broadly that structure should be read, and what are its equivalents.

This Court should support the use of process claims for software-based inventions because they represent a way of more clearly claiming what would otherwise be statutory: the special-purpose machine programmed to perform the method. ...

Updating the Statute of Monopolies’ formulation to use current terms from the patent statutes, we get a clear statement of when a process is patentable: A process is patentable subject matter when it involves making or using a machine, manufacture, or composition of matter.

Although this test is over two centuries old, because the understanding “machine, manufacture, or composition of matter” has evolved with technology, so has this test. It provides a good and clear line for even the most cutting-edge technology. With respect to “using,” that means that at least one step of the claimed process is performed by a specified machine or the person performing the method uses a specified machine, manufacture, or composition of matter in order to perform at least one step of the claimed process.

Software-based inventions would be statutory under this test as a method if they are claimed as running on a digital computer, which would clearly be “using a machine.” The method claims would not be for “making a machine,” since as noted previously, such a claim would have steps such as “loading the program implementing the method from a storage device into the instruction-storage memory of the computer, so that the instructions implementing the steps of the method can be executed,” and would most likely be obvious in light of past techniques for loading programs into a digital computer to be run.

As noted above, sometimes courts have applied the rule for whether a process is patentable to machines, manufactures, and compositions of matter. It is worth restating the rule that: Claims drawn to the other categories (machine, manufacture, or composition of matter) are always statutory subject matter. Machines, manufactures, and compositions of matter are all concrete things. They will never be “laws of nature, physical phenomena and abstract ideas,” the exceptions to statutory subject matter.

There is another rule that needs restating: A claim that covers both statutory and non-statutory embodiments (under the broadest reasonable interpretation of the claim when read in light of the specification and in view of one skilled in the art) embraces subject matter that is not eligible for patent protection and therefore is directed to non-statutory subject matter.

This means that in the broadest reading of the claim, it must involve making or using a machine, manufacture, or composition of matter....

This new test could be satisfied by an applicant by simply reciting in the claim’s preamble that the method operates on, or uses, a digital computer system. But another principle should be make clear: While using a machine may make a claim statutory, if the method itself is known in the prior art, simply adding a machine to perform the method does not necessarily make the claim nonobvious.

Even if the claim does not explicitly recite a machine, it may be statutory if it recites elements that require a machine. So, for example, limiting a claimed method to a “relational database management system” would also make it statutory, since such a method can only be performed on a machine with such software.

The claims in Diehr would be statutory subject matter, but whether they are patentable would depend on whether their method was nonobvious in light of its use of a well-known equation. Novelty, nonobviousness, and enablement should be the primary tests for patentability, not some long debate with the examiner and the courts over whether the claim recites a “particular” machine after which the examiner “throws in the towel” and grants the patent.

Conclusion

There is no indication that Congress intended that anything that can be described as a series of steps should be entitled to patent protection. Yet for software-based inventions, claiming by describing the particular steps of a method provides the clearest notice of what the inventor regards as his invention.

The question is where to draw the line. It is important that such a line be drawn to correspond with reality, or problems will result in applying the test. If the test for a statutory process is simply that it produces a “useful, concrete, and tangible result,” it would open the floodgates to patents on just about anything done by man. Tests like the Federal Circuit’s “transformation or machine,” or whether the process is “abstract” or “technological” or a “business method” would mean years and years of litigation to determine where those vague terms actually draw the line.

Instead, the test should be the one that has existed from the start of patent law, updated to use today’s statutory terms: A process is statutory subject matter when it involves making or using a machine, manufacture, or composition of matter.

I'm not a lawyer, not even a patent agent, but if "There is no indication that Congress intended that anything that can be described as a series of steps should be entitled to patent protection", then how can any court, even the highest court in the land, say it should be so by judicial fiat? Wouldn't it be up to Congress to make that determination?

Here's a Preface from his book, written by a judge, showing the Hatch connection:

I've known Lee Hollaar since I joined the Senate Judiciary Committee as its Chief Intellectual Property Counsel. Committee staff and its former chairman, Senator Orrin Hatch, have benefited from his advice for a number of years. During his sabbatical in 1996-97, he worked with me on Internet, copyright, and patent issues as a Committee Fellow.

It's unlikely that there is anybody else with his qualifications for writing this book. He has been programming digital computers since 1964, has a Ph.D. in computer science, and has designed and implemented computer software, computer hardware, and data communications networks. He understands the law both from his studies, as a patent agent, and as a key technical advisor in a number of important court cases. He has an insider's view from his work with Congress and the courts. And he is able to pull this diverse background together to bring about an understanding of the important issues in computer law today.

I've always enjoyed and learned from my discussions with Lee and now, with this book and his Web site, you can too.

Edward J. Damich
Chief Judge
United States Court of Federal Claims

His bio also gives Hollaar "credit" for the introduction of The INDUCE Act, the Inducing Infringement of Copyrights Act, introduced by Senator Hatch, a statute blasted from here to kingdom come and mocked as one of the worst statutes ever to be introduced. It appears to have been yet another RIAA brainstorm to try to kill off file sharing. Hollaar puts coming up with the INDUCE Act in his bio:
He played major roles in adding two words to the vocabulary of intellectual property law:

  • "Inducement" was recognized by the Supreme Court in its unanimous Grokster opinion. The concept of liability for inducement of copyright infringement was revitalized in his paper Sony Revisited: A new look at contributory copyright infringement, and refined in his amicus brief in the case. The paper also led to the introduction of the Induce Act in the 108th Congress.
  • "Foreseeability" as a limit on doctrine of equivalents in patent law is the heart of the Supreme Court's Festo opinion. It was proposed in the amicus brief whose filing he supervised as chair of IEEE-USA's intellectual property committee.
You can read Larry Lessig on Hollaar and the INDUCE Act here.

What my mind is trying to wrestle with now is this: did SCO think that they could use his ideas, at a minimum, to kill the GPL? Looking at his bio, would that be beyond conceivability?

Oh, and speaking of small worlds, Hollaar's bio says "Professor Hollaar is currently working on a new approach to patent reform and laws governing shrink-wrap and click-on licenses." Speaking of Psystar. And look at a comment submitted, according to Terekhov, by Hollaar to the FSF during the rewriting of the GPLv3:

This is not a correct statement of copyright law, at least in the United States. With respect to "propagate", it is likely a tautology because of the defintion of "propagate" covering only things "that require permission under applicable copyright law". But for "modify", 17 U.S.C. 117 permits the "owner of a copy of a computer program" to make an "adaptation" in particular circumstances, and makes it clear that making that adaptation does not "infringe copyright if you do not accept this License." It also does not seem to recognize the "first sale" doctrine codified in 17 U.S.C. 109, that permits the transfer of a lawfully-made copy "without the authority of the copyright owner". Perhaps the interplay between the definition of "propagate" and this section covers it, but it is certainly not made clear and, in fact, misleads one in thinking that the only way to redistribute a lawful copy is to accept the License.
Sounds familiar, doesn't it? A little like Psystar's position, isn't it? A lot like Psystar, huh? Coincidence? I don't know. But it's eerie, to me.

Here's another weird connection. This paper of his from years ago, Congress: Don't censor the internet, but help users avoid unwanted material seems to tie in with Ralph Yarro's filtering of the Internet ideas, found in his CP80 Foundation's agenda. I note in this 2006 press release that a couple of Brigham Young University professors of law are associated with CP80. The concept, as I understand it, is that the Internet be divided into two parts, one for smut, with its own port, and the other for the rest of us on the standard HTML port 80 -- or at least the organization seems to think that is the only port the rest of us use -- and there would be penalties for smut straying from its own, segregated port to the Internet that would be designated for the rest of us - setting up a kind of red light district on the Internet. A couple of years ago, CP80 wanted to regulate free wireless, because children could view smut, according to the Deseret News:

Beyond that, however, is that many teens know how to get around filters in the home computer — or know where they can get open-access wireless Internet "where they can watch porn all day long," said Yarro, who heads a group called CP80, which advocates congressional action to set up family-friendly Internet groupings that would filter out porn Internet addresses.
What kind of kids are they raising in Utah? Where are the parents that children there can watch anything all day long without the parents knowing and preventing it? This kind of parents, maybe, watching pornography all day long themselves, I gather? The Deseret News quotes a Harvard study that found Utah leading the nation in subscriptions to online porn.

CP80 wanted to regulate wireless, and they had a hearing in Utah where the legislators struggled to understand the tech, according to the Deseret News again:

Among the proposals were penalizing those who leave their wireless networks open and rewarding Internet providers that self-police access to pornography.

The discussion in the Public Utilities and Technology Interim Study Committee was often technical, with committee members having to be brought up to speed on various terms and applications.

"My brain is on the edge of frying, trying to understand" the technology involved, said committee co-chairman Sen. Scott Jenkins, R-Plain City.

This is the real problem, the foundational issue here, and while I dislike pornography as much as anyone could, the truth is, one would surely hope that no laws would be passed by those who don't even understand the tech. Libraries, for example, generally have open wireless. CP80's plan didn't take off, so Yarro took the fight to ICANN, where it was discussed at least up until April. You'll find a summary of the public comments here. And this is the outcome so far:
The current ICANN Bylaws provide that any group of individuals or entities may petition the Board for recognition as a new or separate constituency, in accordance with Section 5(4) of Article X. Such a petition must explain (1) why “the addition of such a Constituency will improve the ability of the GNSO to carry out its policy-development responsibilities” and (2) why “the proposed new Constituency would adequately represent, on a global basis, the stakeholders it seeks to represent.”

The ICANN Board has now received a total of four formal petitions from prospective constituencies, including the subject of this forum - the CyberSafety Constituency. At the direction of the Board, the ICANN Staff developed a two-step process for potential new constituencies to follow. The proponent of the CyberSafety Constituency completed the first step of the process on 20 October 2008 by filing a Notice of Intent to Form a New Constituency. The proponent of the CyberSafety Constituency completed the second step of the process - submission of a New Constituency Petition and Charter on 23 February 2009 - see CyberSafety Introduction Letter to Petition and Charter Document and CyberSafety Constituency Petition and Charter (23 Feb 2009-Redacted).

Community comment on new constituency petitions and charters is an important component of the Board's evaluation of these petitions and will be used to inform the Board's decisions to approve, reject, or, at its option, to recommend any alterations or amendments to the various submissions....

The ICANN Board is likely to consider all the relevant community input and move forward with guidance regarding all the new constituency submissions, including the CSC, as soon as practicably possible. Any decisions with respect to the approval of the new constituency charters will likely take place in the context of the GNSO Improvements implementation processes.

That's the last I've heard. Oh, one last thing. Guess who else works with CP80? Brent Christensen. He's an attorney also, one who once worked for Canopy Group as legal counsel and who, along with Yarro, was accused by Canopy Group of siphoning off millions by taking advantage of an impaired Ralph Noorda, if you remember all that, accusations they both denied. They were ejected from the building by Canopy lawyers, in one dramatic moment, and then litigation ensued, if you recall. Here's the settlement that resulted.

See what I mean about the Ozarks? And what is the take away? For me, it's the growing realization that SCO's quest was ideological, not just financial, and the dream was not confined to anything so constrained as just a lawsuit against IBM or even against Linux end users. I think they meant to destroy the GPL for ideological reasons. Daniel Wallace wrote to me, early in Groklaw's existence, and he warned me not to support the GPL, telling me it was going to be destroyed. I took it at the time as a friendly warning that I might get hurt. Later, he attacked me fairly regularly all over the place, as, for example, here, and I didn't find it so friendly after all. He quoted from Hollaar too, by the way, and he left antiGPL comments, like this one in 2004, we all believed, although he tried to deny it was him but which all the regulars immediately recognized as him, or at least an amazing clone who wrote exactly like him, in which he predicted the death of the GPL and of free software. You can read his views on why the GPL deserved to die in this letter to the editor published by Maureen O'Gara -- who else? He later filed a lawsuit against FSF, claiming -- my favorite allegation of the entire SCO saga -- that FSF was guilty of price fixing, of all amazing things to claim about them. His litigation efforts were doomed to fail, and they did.

When Terekhov posted to the gnu-misc-discuss list in November of 2006 a copy of the appellate ruling that brought Wallace's antitrust litigation to an end ("The GPL and open-source software have nothing to fear from the antitrust laws."), Lee Hollaar was there and he commented in the thread, subtly making fun of the judge for writing Williams at one point in the order instead of Wallace. Terekhov was less subtle. The goal, as mentioned here, was that the GPL be made somehow sort of public domain. Here's Terekhov in the same discussion on the GPL and first sale, quoting from Hollaar:

Under US Code Title 17, an owner of a copy "lawfully made" has a right to distribute it "WITHOUT THE AUTHORITY OF THE COPYRIGHT OWNER". 17 USC 109. The GPL requires to surrender that right as well when it talks about "offers" to provide source code, etc. To quote Lee Hollaar,

-------
As for the reproduction right (1) implying the distribution right (3), it's not an implication, but a special rule in United States copyright law spelled out in Section 109. (It is commonly called "first sale," but the actual parameters of the rule are specified in the statute and not some lay reading of "first," "sale," or even "first sale.")

The heart of the provision is its first sentence:
Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Blah, blah. There's plenty more where that came from. Sound like Psystar to you? At a minimum it sounds exactly like troll comments that get posted to every Psystar article I publish.

And in 2003, "alexander" posted this comment on Groklaw about how to work around the GPL, a la Psystar, as I read it, and included a link to the SCOX Yahoo! message board, to comments by Alexander Terekhov in support of SCO Group, making the circle complete.

I know what will interest you the most is the Hollaar brief, particularly the arguments on software and whether it is math, but at least you will understand from all this why, despite not knowing exactly how all these pieces fit together, I have come to suspect that the same folks behind SCO are somehow behind Psystar too, and that at its most fundamental, it was and still is an ideological attack on the GPL.

Update: I'm informed by a member of IEEE that IEEE-USA is not the same thing exactly. It's a unit within IEEE which concentrates on US intellectual property, and it may or may not reflect the IEEE's views. From the IEEE-USA's position paper on intellectual property in 2007, which he sent me, it explains the difference:

This statement was developed by the Intellectual Property Committee of the IEEE-United States of America (IEEE-USA) and represents the considered judgment of a group of U.S. IEEE members with expertise in the subject field. IEEE-USA is an organizational unit of the Institute of Electrical and Electronics Engineers, Inc., created in 1973 to advance the public good and promote the careers and public policy interests of the more than 220,000 technical professionals who are U.S. members of the IEEE. The positions taken by IEEE-USA do not necessarily reflect the views of the IEEE or its other organizational units.
The paper succinctly expresses this view on patents:
We specifically recommend the patenting of computer program-related inventions that meet the strict statutory criteria imposed for patents. Engineering work product in the computer arts that meets the statutory criteria should be eligible for patenting - without discrimination - just as inventions in any other technology.

However, we also believe that improperly granted patents in any technical area hinder industry and the advancement of technology. It is important to ensure that U.S. Patent and Trademark examiners provide high quality examination of computer technology claims. We specifically recommend:

1. That the U.S. Patent & Trademark Office take all necessary steps to improve the collection of prior art used by patent examiners in making patentability decisions in computer program-related inventions.

2. That the U.S. Patent & Trademark Office take all necessary steps to raise and maintain the level of accessibility and search methodology in computer program-related examining to help ensure that only quality patents are issued.

If the standards for patents were strict, we wouldn't be in the mess we're now in, nor would there be a Bilski case.

  


Professor Hollaar's Amicus Brief in Bilski | 430 comments | Create New Account
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Proprietary start ?
Authored by: Anonymous on Tuesday, September 22 2009 @ 05:26 AM EDT
>>How can a professor of computer science not know that software didn't
start out as proprietary? <<
It most certainly did. What it didn't start out as, is commercial ...

[ Reply to This | # ]

Corrections Thread
Authored by: bugstomper on Tuesday, September 22 2009 @ 05:45 AM EDT
Post corrections, if any, here. Put a one line summary of the correction in the
title, e.g. tyop->typo or s/teh/the/

[ Reply to This | # ]

News Picks Thread
Authored by: bugstomper on Tuesday, September 22 2009 @ 05:47 AM EDT
Indicate in the title which New Pick you are posting about. Use HTML clickies
for clicky goodness.

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Tuesday, September 22 2009 @ 05:48 AM EDT
Please stay off topic. Feel free to make your clickies clicky.

[ Reply to This | # ]

x = x + 1 is not a nonsense equation
Authored by: billyskank on Tuesday, September 22 2009 @ 05:53 AM EDT
I'm not a mathematician, but it seems to me that it could be one of the
definitions of infinity.

Anyway, I know this isn't what the professor meant. It seems that he is
confusing a theorem with an algorithm. A theorem is typically expressed in terms
of equations and its purpose is to prove something. An algorithm is a set of
instructions to accomplish a task. Their purposes are different.

The point is that in a theorem, although the variables are called
"variables", they are only thought of as having one value at a time.
So if you saw "x = x + 1" in a theorem then the solution is the set of
values for x that satisfy the equation. But in an algorithm the values of the
variables may and typically do vary with time, so "x = x + 1" is not
just an equation but also an instruction to modify the value of x.

I am not sure whether programming is nothing other than mathematics, after all
mathematics does not have if statements and loops and the control mechanisms
that make algorithms work. But that is only because a mathematician proving a
theorem and a programmer writing an algorithm are accomplishing different goals
and need different ways of expressing their idea.

---
It's not the software that's free; it's you.

[ Reply to This | # ]

Professor Hollaar's Amicus Brief in Bilski
Authored by: PolR on Tuesday, September 22 2009 @ 06:13 AM EDT
From the brief
But in most instances, the correspondence between computer programs and mathematics is merely cosmetic. For example, the equation E = MC 2 expresses a relationship between energy and matter first noted by Einstein, while the computer program statement E = M * C ** 2 represents the calculation of M time C raised to the second power and then assigning the result to a storage location named E. It is unfortunate for purposes here that the early developers of programming language made their calculation-and-assignment statements look like mathematical equations so that they would seem familiar to scientists and engineers. But the common programming statement I = I + 1, which increments the value stored in location I, is essentially nonsense as a mathematical equation. Similarly, a computer program is a series of calculation-and-assignment statements that are processed sequentially, not a set of simultaneous mathematical equations that are solved for their variables.
This is ignoring the research done in the field of denotational semantics. Or if this isn't enough you can look at Hoare's logic. The cosmetic similarity is a red herring. Software is math at a more fundamental level and the case for it is not based on cosmetic similarity in the syntax.

I wonder who tells the Supremes about the fundamentals of computer science and mathematics? If all opponents of software patents with academic credentials leave briefs that misrepresent science this way and nobody explains how things truly are, how can the Supremes forge a sensible opinion? I hope someone told the Supremes about the truth.

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Professor Hollaar's Amicus Brief in Bilski
Authored by: Anonymous on Tuesday, September 22 2009 @ 06:25 AM EDT
It would seem to me that if there are truly factual
inaccuracies in the brief, then there must be some
way to make those known to the court in an official
manner. Obviously the professor is entitled to his
own opinions, but I would hope opinion based arguments
would hold little sway with the court.

He has presented some good ideas, but somewhere along
the way some memory locations got trashed and his program
has gone awry.


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Professor Hollaar's Amicus Brief in Bilski
Authored by: Anonymous on Tuesday, September 22 2009 @ 06:35 AM EDT
All computer programs are executed inside the computer as mathematical functions
on binary numbers. This is called machine language. It is all math. So what if
someone wrote an interpreter or compiler that allows someone to write a program
in a higher level language than machine language so that it doesn't look like
pure math. It is all translated down to machine language when it is interpreted
or compiled, before it is executed, and anyone who purports to be a computer
software expert should know this.

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Logic/Reasoning
Authored by: pogson on Tuesday, September 22 2009 @ 06:41 AM EDT
"A process is patentable subject matter when it involves making or using a machine, manufacture, or composition of matter."

The assumption that a computer is a machine renders all software patents questionable as a computer essentially does not have any moving mechanical parts. It is about information, not physical work. Arguments based on this false assumption are false.

"While using a machine may make a claim statutory, if the method itself is known in the prior art, simply adding a machine to perform the method does not necessarily make the claim nonobvious."

Prior art for all software patents must include boolean logic, mathematics and cause-and-effect science, so software patents generally are invalid. The only exception must be a special-purpose computer of which the software is a part, in which case it is the whole machine/method which is the subject of the patent, not a piece of code, an algorithm, or structure of data. Software is essentially general-purpose in that code designed for one special-purpose machine can be lifted and placed in another computer for another purpose just by renaming the abstractions/inputs/outputs. Software is more or less re-usable and not special-purpose. Software patents are nonsensical

---
http://pogson.6k.ca, my blog, an eclectic survey of topics: berries, mushrooms, teaching in N. Canada, Linux, firearms and hunting...

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Internet, the saviour
Authored by: Anonymous on Tuesday, September 22 2009 @ 07:58 AM EDT
While there are many concepts of a evil genius mastermind professor's Alter Ego, like this, it may just be an extraordinary piece of mythology created in the 1880s. Perhaps like that myth created in the 1980 that PCs would take over for mainframes.

While myths come by far too easy, they are also very hard to forget.

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How does IEEE-USA figure in this?
Authored by: leopardi on Tuesday, September 22 2009 @ 08:21 AM EDT

As an IEEE member myself, I must ask, since nobody else seems to have so far, how does IEEE-USA figure in all this? To what extent are they involved in this amicus brief? Why did IEEE-USA decide to become involved? Does this brief represent IEEE official policy on software patents and the patenting of mathematical algorithms? What is that policy?

Is it the official position of the IEEE that mathematical algorithms such as the Fast Fourier Transform should be patentable subject matter? For example does IEEE contend that Unit ed States Patent 6,859,816 (Makino, et al. February 22, 2005, assignee: Sony Corporation) is legitimate?

If IEEE is advocating for the patenting of mathematical algorithms, I believe that this is not in my best interests as a mathematician, and I would best consider leaving IEEE, at least until there is a change of policy.

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"Inducement" vs invitation to treat
Authored by: Anonymous on Tuesday, September 22 2009 @ 08:54 AM EDT
How is inducement different from invitation to treat?

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Professor Hollaar's Amicus Brief in Bilski
Authored by: Anonymous on Tuesday, September 22 2009 @ 09:05 AM EDT
IANALOAEC (IANAL or anything even close)
It seems to me that software patents are unconstitutional.

I say this because as I understand it, written expression
is a protected from of speech under the US Constition.
Software is written by people and therefore protected by
the free speech part of the US Constitution. To allow
software patents to exist is to place serious restrictions
on free speech that is protected. In my mind, if the end
result of what ever you do, regardless of how you get
there, results in a violation of a right guarenteed by
the US Constitution, it cannot be allowed to stand.

And, yes there are actually restrictions placed on free
speech, but for what most consider as good reasons.
However, restricting what software I write and share
because someone else coded up some similar idea before
I did is not a good reason. Now way, no how.

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Professor Hollaar's Amicus Brief in Bilski
Authored by: ThrPilgrim on Tuesday, September 22 2009 @ 09:07 AM EDT
Similarly, a computer program is a series of calculation-and-assignment statements that are processed sequentially, not a set of simultaneous mathematical equations that are solved for their variables

The proff really must keep up to date. Has he not heard of

  • Math Co-processors
  • Transputers
  • 3D accelerated graphics cards
ad well as such languages as
  • Occam
  • Parallel C
  • Ada
  • Haskell

---
Beware of him who would deny you access to information for in his heart he considers himself your master.

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Mathematics, software, and sourcecode
Authored by: Prototrm on Tuesday, September 22 2009 @ 09:15 AM EDT
I think I see a potential problem here. While it is crystal clear in my mind
that computer software is pure mathematics, that only applies to the binary.
Binary code is composed of basic math, combined with logical operations (more
math). That much is simple and straightforward.

But what about sourcecode? That certainly isn't pure mathematics, but a
human-accessible expression of a process (in large part based on English, as the
United States and Great Britain are such an important economic influence in the
world) that is translated into binary code prior to being used. So, what does
this mean, legally? I hate to say it, but it appears to me (and IANAL, etc)
that, while you cannot patent binary code, you could conceivably patent source
code. This may or may not be splitting hairs, but I can't help but wonder if the
impact of such a ruling would mean that you could safely distribute proprietary
software, but not FLOSS, or anything else containing sourcecode.

I hope I'm wrong, but a good programmer doesn't hide from potential bugs -- he
documents them so they can be analyzed and fixed by the rest of the team.

What say you, team?

---
"Find out just what any people will quietly submit to and you have found out the
exact measure of injustice and wrong which will be imposed upon them."

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Patents Are Classical Concepts
Authored by: pogson on Tuesday, September 22 2009 @ 09:16 AM EDT
The writers of the legislation did not envisage electronics so there cannot be an electronic machine in the sense used in the legislation/regulations. Is there anywhere that a computer is defined to be a machine? The preamble to legislation usually contains definitions for the purposes. If they did not define machine, they must have meant things made of gears, wheels, axles, levers, inclined planes and screws. You can buy an ARM SOC with nothing moving but electrons. A machine is a device with a mechanical advantage. Computers are information processors, not material processors. They could be part of a material processor but the software on them could be moved to another computer to do an entirely different task, so a patent claim on the software doing some task is extremely difficult to nail down. If you move the computer away from the mechanical parts and take the software with it, is it suddenly not patentable? This is too bizarre.

---
http://pogson.6k.ca, my blog, an eclectic survey of topics: berries, mushrooms, teaching in N. Canada, Linux, firearms and hunting...

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IEEE-USA
Authored by: mossc on Tuesday, September 22 2009 @ 10:49 AM EDT
I am concerned that IEEE-USA is represented as coming out in support of Bilski.

I imagine one group within IEEE formed a committee and took it upon themselves to get involved.

I seem to recall a similar thing happening with DMCA or UCITA at one point. When membership objected the broader IEEE distanced themselves from the original position.

I am searching for the best contact point at IEEE to express my dissatisfaction with the filing and attaching IEEEs name to it.

IEEE contact page

Chuck

[ Reply to This | # ]

Professor Hollaar's lack of logic
Authored by: tyche on Tuesday, September 22 2009 @ 12:05 PM EDT
First, the disclaimers:
1. I am not a lawyer (patent or otherwise)
2. I am not a computer programmer (one whose training and profession is the creation of computer programs)
3. I am not a mathematician (one whose training and profession involves higher mathematical languages and the creation thereof)

I AM:
1. Retired
2. Previously a Computer Assisted Draftsman
3. Previously a professional driver (truck and bus), and a transportation coordinator.
4. A sometime musician (non-professional)
5. A holder of a Bachelor of Arts degree in Philosophy (an area of instruction that is also involved in both law and mathematics)

And so, on with my exposition (I don't know whether Wittgenstein would cheer or boo this. I also don't care.):
The expression x=x+1 is a statement in a particular language of computer science. It's meaning is, therefore, derived in part by the nature and structure of the language. As others have noted (above), there are other ways of expressing this statement depending on the computer language one is using.

Languages come in many forms. Most are spoken, such as English, French, Spanish, Italian, German, Russian, Chinese, etc. But some have no spoken form that is intelligible, such as music and mathematics (or the combination of the two). For example, I could tell you that the Tempered Scale, in music, is based on 2^(1/12), or the twelfth root of two, or 1.059463094 . . . . Each states the same thing, but in different formats. One is a mathematical expression, one is the English language version, and one is a number (non-repeating). All of them are the same - they are an attempt to explain a relationship of one number (or frequency) to another, to demonstrate the relationship of A-440 to A-880 (one octave above) by intervals used in western music. And that attempt to explain is given in 3 dissimilar languages. Somewhere along the line that explanation has to be translated into something that an ordinary person, such as a student, can understand and apply.

So it is with computer languages. The expressions used in algorithms are dependent on the language in which they are expressed. The purpose of the algorithms is to create a relationship of one piece of information to another. To someone not versed in that language, it is meaningless, and would need to be translated to another language.

(Now, it's time for me to duck, as Wittgenstein throws a half-brick at me) All language has an inherent logical structure. Without that logical structure it would merely be gibberish, not understandable. Whether that language is spoken, such as English, or mathematical, such as Calculus, or aural, such as musical notation, there is a logic to it. (Now, I throw the half-brick back at Wittgenstein) Some languages are less strict than others. Spoken language is famous for that: how many ways can you spell "to, too, two, 2". They all sound the same, but have very different meanings: a direction, an addition, a designation of quantity, and a numerical value.

Music, also, is somewhat loose: look at the various interpretations of Beethoven's Symphony #5, and how much of that interpretation is dependent on the conductor. A more strict musical language has been attempted many times, including various electronic forms. The closer those attempts have come to being a strict form the more they have lost the inherent emotional content that music carries.

The languages of mathematics are more strict, in that an expression is meant to mean only one thing in that particular language . An expression in one mathematical language may be meaningless in another. Language, then, might be termed the logical map from which one can derive meaning.

Computer languages are no less. An expression in one computer language has meaning only in that language (though those with knowledge of other languages may be able to deduce the actual meaning without necessarily being well versed in the language of the expression). The purpose of the expressions in a computer language is to create a relationship of one piece of information to another. The actual language of the computer is binary math. The language the expression is written in is a higher level language to make the expression easier for ordinary human beings to understand and use. Taken out of that context, the expression is not understandable.

It is necessary to use some form of translator between languages. Between English and German, the idea of a translator is somewhat understandable to ordinary humans. Professor Hollaar ignores this need for translation by saying that x=x+1 is a nonsense expression because he has not translated it from the computer language in which it is expressed into ordinary English . Even between computer languages and the computer, itself, there must be a translator. This may be achieved by "compiling" a program from the source code, or by a Run-Time Environment within the computer, itself.

To say that computer programs are other than mathematical expressions, based on an invalid argument of mixing apples and oranges to come up with bananas, is ludicrous, and an example of "fuzzy thinking", intentional or unintentional.

Craig
Tyche

This work is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License.

---
"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett

[ Reply to This | # ]

Re non-attorneys teaching Computer Law
Authored by: Anonymous on Tuesday, September 22 2009 @ 12:12 PM EDT
There's a good reason for this: there aren't enough attorneys on the faculty,
and virtually none in Computer Science departments.

I consider Florida Tech to be incredibly lucky to have a faculty member in the
Computer Sciences department who went to law school and was formerly a member of
the bar. (He became inactive sometime after he moved to Florida.) Dr. Kaner
teaches the Computer Law and Ethics course some semesters, but he has enough
other things he wants to teach that other people teach it some years. Also, the
course was offered - by non-attorneys - several years before he joined the
faculty.

Since one goal of the course is to give people just enough idea about the law
for them to make good decisions on when to call in an attorney, this doesn't
really need an attorney. Sure, it's much better if you do have one, but it works
OK without one.

Pat McGee

[ Reply to This | # ]

Here is my patented computer process.
Authored by: MrCharon on Tuesday, September 22 2009 @ 12:44 PM EDT
Using a computer machine, assign a number to value A, then take the value of A
and add the value of A to get a new value for value A that you add value A again
too until value A has been added to itself value of X number of times.

You all owe me Billzzzoooiioonns.

---
MrCharon
~~~~

[ Reply to This | # ]

"What is software?" argument thread
Authored by: msfisher on Tuesday, September 22 2009 @ 12:48 PM EDT
Every time software patents come up as a topic, there are reams of opinions
under multiple threads as to just what software is (language, mathematics, etc.)
So how about putting the argument under a single thread? Even though (or
perhaps because) I'm not a programmer, I'll start it.

Looking in from the "outside", software is instructions. Period.

Source code is those instructions written down in a human-interpretable form.
Compiled source code is those instructions converted to a machine-interpretable
form. In either case, a device is being instructed to perform certain functions
which said device has the capacity to perform.

On at least one level, mathematics is also instructions (e.g. "Take the
quantity 'one', add a second quantity 'one' to it and report the result",
or "Consider the variable 'x'; if it is unequal to variable 'y', report the
greater value"). The instructions which comprise "software" are
built upon mathematical, including logical, processes. They are implementations
of those processes, but create no new ones.

And they are still instructions. Functionally the same as a set of knitting
instructions. NOT patentable, but the printed version (source code, pattern
book) should be copyrightable.

[ Reply to This | # ]

Where did this statement come from?
Authored by: Ian Al on Tuesday, September 22 2009 @ 12:55 PM EDT
A process is patentable subject matter when it involves making or using a machine, manufacture, or composition of matter.
I thought that it was the form of the invention that was patentable. Why should the tools and/or method of construction be patentable? Are we really accepting that an innovative way of driving a Formula One race car around a track is patentable such that no one else could use that technique without a paid-for licence?

I accept that an innovative process for making a material like vulcanising rubber is a patentable process. Innovation in the use of machines should not be patentable. Neither should the use of natural machines like human beings or animals. Neither should the method or process of manufacture. If software is to be patentable, are we really going to accept patents on the process of making the software? Once Microsoft have patented the method of making software are we going to accept that no other software can be manufactured without a Microsoft licence?

---
Regards
Ian Al

Linux: Viri can't hear you in free space.

[ Reply to This | # ]

TK - would you care to comment?
Authored by: kattemann on Tuesday, September 22 2009 @ 01:15 PM EDT
On the software as mathematics - AFAIK you are eminently qualified to talk about
it :-)

[ Reply to This | # ]

ACM gets it better than IEEE-USA
Authored by: dwheeler on Tuesday, September 22 2009 @ 01:24 PM EDT
Meanwhile, and in contrast, the latest (September 2009) edition of the prestigious Communications of the ACM has the article "What Intellectual Property Law Should Learn from Software" by James Boyle, which points out some of the problems due to software patents.

[ Reply to This | # ]

Ozark Native offended by link to SCOundrels!
Authored by: Eeyore on Tuesday, September 22 2009 @ 01:59 PM EDT
As an Ozark native, I'm a bit offended that the beautiful Ozarks are being used
to describe people that I (and I imagine the vast majority of Ozark residents -
well, the ones that have shoes and can read anyway) wouldn't want to be
associated with. ;)

[ Reply to This | # ]

PJ, please stop feeding the troll
Authored by: AMackenzie on Tuesday, September 22 2009 @ 02:11 PM EDT
PJ,

Why do you keep quoting Alex Terekhov as though he were some sort of authority?
(That's both a straight and a rhetorical question).

That poster is a plain troll and a spammer; intelligent, devious, abusive,
foul-mouthed, patronising, and allround thoroughly objectionable. Together with
several anonymous posters, he has destroyed the gnu-misc-discuss mailing list.
The archive of the mailing list is at
http://lists.gnu.org/archive/html/gnu-misc-discuss/

Not so long ago, this list was vibrant and interesting, with discussions over a
broad range of subjects, and its loss is a loss indeed.

Whilst the validity and bounds of the GPL are certainly on topic for
gnu-misc-discuss, these posters started foghorning it on the list, perhaps two
or three years ago. The plain nastiness caused bona-fide posters to
unsubscribe, and the list is now dead. Perhaps that was the intention.
Arguments that they are fouling up somebody else's patch and trespassing on FSF
resources are ignored, as are other appeals to decency.

When the FSF created the mailing list it also created a usenet gateway to it,
but mistakenly decided not to make the corresponding newsgroup moderated. Those
were the early days of forums, and the people setting them up naively assumed
that other posters would be, in the main, convivial and decent. It is through
Usenet that these posters post.

PJ, every time you mention Terekhov as though he were in some way important,
you'll be sending him a gratifying tingle, encouraging him to carry on with his
spamming and trolling. This is most galling to those of us who have expended
countless hours neutralising his FUD and trying to save the gnu-misc-discuss
list.

Please, don't feed the trolls. Not even this one.

[ Reply to This | # ]

Professor Hollaar's Amicus Brief in Bilski
Authored by: Anonymous on Tuesday, September 22 2009 @ 02:25 PM EDT
I "discovered" x = x + 1 many years ago when I was playing
with my friends Radio Shack computer. I wanted x to
increment, and I had no knowledge of the BASIC language. I
tried it, and it worked!

For the professor:

y = x
x = y + 1

Thank You...

[ Reply to This | # ]

Invention!
Authored by: Ian Al on Tuesday, September 22 2009 @ 02:33 PM EDT
Patents are to protect inventions.
Clause 8. The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Please note that the patents are not there to protect what the invention achieves or the manufacturing process that makes the invention. What should be patentable is an innovative form of construction that can be exclusively defined compared to other designs to achieve similar effects and is not closely related to prior art.

Software uses a computing machine to produce its result. For software inventions to be patentable, it is not sufficient to define what the software achieves or even what manner of computing machine it relies upon. The argument that a general purpose computer becomes a specific design of machine when loaded with the patented software is specious. The professor has a point when he says that

tied to a particular machine.
as a generalised precondition of software patents creates confusion. However, in theory it becomes a key issue if the invention is a combination of innovative construction of software and computer. In practice, such a combination cannot be exclusively defined as a patented invention.

A patentable invention that makes motorised vehicles go faster remains patentable whether applied to a specialised Formula One race car or granny's cluncker. One has to define exclusively what it is about the form of construction of the software that achieves the outcome and meets the patentability criteria.

If the innovative part of the software is simply the implementation of an innovative algorithm then the construction of the software is not, of itself, innovative. It is the algorithm that is innovative. It does not need the software. It could be done using an analogue computer or analogue or digital hardware. The hardware would be no more patentable than the software because their form of construction is not the innovation in question for consideration of a patent.

So, for the software to be patentable, the form of construction of the software, itself, must be the patentable item. How do you find, in a block of software, that innovative, patentable construction that has no prior art? If there is prior art, how can it be found? How does the patent office determine that the software construction is innovative? Is it not true that the more one homes in on the innovative module of software, the more it disassembles into non-innovative, general purpose code? The deeper the analysis, the more one approaches the X = X+1 that the professor derides as not even bad math. I think that the exploration of these questions demonstrates that software is not patentable because the patentability tests cannot be rigorously applied. Questions of whether programs are mathematics and algorithms are irrelevant until something is found in the software that potentially passes the criteria of a patentable invention. Don't start with the question of whether an animal is a Pushmepullyou. Start with the question of whether the animal even exists.

If an inventor discovers a human gene then this is not an invention or an innovation. Neither is the discovery that the presence of a gene structure enables a cure for illness to be made. The sort of process that is an invention is the vulcanising of rubber or the production of long-chain polymer materials. Patenting discoveries does not promote the science (those constitutionalites should have used the term 'engineering' rather than science and should not have used the term 'discoveries' instead of 'inventions'. However, later, clarifying legislation has put that right.

Finally, I think the professor is using words out of context. When he cites

This means that in the broadest reading of the claim, it must involve making or using a machine, manufacture, or composition of matter
This is an inaccurate widening of the original definition of a protectable invention
machine, manufacture, or composition of matter.
A method of using a computer or a combine harvester or any other machine is not a protectable invention. It is not a construction in anything but an idea. Devising new ways of using machines should not be patentable. This is monitising an idea and not patenting an invention to prevent its unlicenced copying. In fact, forget machines. A process or way of doing something does not produce an invention of a definable form of material construction and does not meet the patentability criteria given in the Constitution.

---
Regards
Ian Al

Linux: Viri can't hear you in free space.

[ Reply to This | # ]

Curry-Howard correspondance
Authored by: Anonymous on Tuesday, September 22 2009 @ 04:38 PM EDT
From wikipedia:

"The Curry–Howard correspondence is the direct relationship between
computer programs and mathematical proofs."

http://en.wikipedia.org/wiki/Curry%E2%80%93Howard_correspondence

Is there anything more to add?

Oh, yes, there is,

(1) this has a long history, going back to Euclid. Euclid's construction of the
GCD can be viewed either as proof (that the GCD exists) or as an algorithm (to
compute the GCD). I'm not a historian, but I don't believe that Euclid
attempted make any distinction between the two.

(2) this isn't just a matter of theory, people implement it in practice. Lego,
Coq, Adga ...

(3) Hollar claims to be an expert in computer science. But he's not commenting
on computer science, he's commenting on the relationship between computation and
mathematics. Has he published on that relationship, e.g., specifically on
Curry-Howard, or in the general area.

[ Reply to This | # ]

Programs are just mathematics
Authored by: leopardi on Tuesday, September 22 2009 @ 07:39 PM EDT

An article in New Scientist, Universal kernel code to keep computers safe, quotes Gerwin Klein, "In the end, programs are just mathematics, and you can reason about them mathematically." The article describes the verification of sel4, a microkernel. I wonder what NICTA or OKL think about patenting the proof process or the microkernel itself?

[ Reply to This | # ]

Professor Hollaar's Amicus Brief in Bilski
Authored by: Jose on Tuesday, September 22 2009 @ 08:25 PM EDT
>> And he mentions in passing FOSS licenses and the community's opposition
to patents in a way that I think will turn you purple:

So this guy claims that those that created the GPL and other licenses and the
many that have chosen them haven't really meant it. He claims that our dislike
for software patents is a mistake.

Maybe he can just tell the court all the things we actually want and have the
court draw out a document that will serve as a roadmap for our affairs. The
court can sign on our behalf (under the guidance of this professor) all the
contracts that will be necessary into the forseeable future for us to
successfully fulfill the roadmap. What a guy. I wish I had discovered the
professor years ago. Life will just be so easy from this point forward.

This guy is speaking the views of the corps. They know FOSS is superior, but
they want to control it/neuter it. They fear that small distributed groups can
challenge them. Stockholders demand profits, not fairness, be maximized.

>> One argument the opponents of patents for software-based inventions
make is that software is mathematics, and mathematics is not patentable.

Don't frame the statement as "software is/isn't mathematics". Software
is an application of mathematics and numerous other disciplines to solve
problems.

I prefer we look at software for the totality of what it is. It is many things
and software patents hold back software development. We should focus on the
differences between traditional inventions and software.

If someone has a killer argument for why software *is* mathematics, then go
ahead, but I don't want to pin our hopes on this. There is potentially so much
more to being unpatentable than the test of "is it the same exact thing (in
totality) as mathematics?"

Let's look some key differences between software inventions and traditional
inventions.

Can I copy/paste a new machine or process (of the traditional kinds, eg, a
building) and reuse it, manufacture it, distribute it, all within seconds or
minutes and at essentially $0? Of course not. Not even close.

Are there millions of people that could effect this manufacture/distribution for
traditional inventions while adding their own twist/innovation on top? Of course
not. So we have a large number of software inventors and inventions. And we know
there is an opportunity cost to patents that is proportional to the number of
inventors because we are barring EVERYONE so that A SINGLE ONE could have
monopoly control. Aside from this, we end up with a greater number of inventors
whose Constitutionally protected liberties are being infringed with every patent
out there. [Noninventors effectively don't suffer the abridgment of liberties
they were never exercising.]

The low cost of software use, distribution, etc, means that we have a lot more
people willing to work on software without expecting or demanding patent
protections. Why? Because patents aren't needed to cover huge costs, for
example. Because the value that comes from sharing (from the individual's
perspective: magnifying his/her input many many fold) can be tapped when we
don't have a patent system to get in the way.

Look at all of these negatives with software patents, and we haven't even looked
at how awfully general they are. The Speedy Gonzales to the patent office writes
up general invention claims (that could have been derived by listening to the
grape vine) and then gets a 20 year monopoly control over the work of many
geniuses likely already working out the trickier details. That makes no sense
except if you have very few inventors. [With few inventors, you are unlikely to
have many able or wanting to leverage your invention to derive the trickier
points]. Note, that coming up with a broad patent claim tends to SIMPLICITY the
broader (more powerful) is the patent claim. This is backwards. We are currently
rewarding greater the easier the invention: broad claims cover the most ground
and give the fewest details -- all patent claims are horribly broad by nature,
btw. [Yes, anyone can still patent the trickier points, but they may not even be
able to use these value-add inventions because of the core general patent owned
by Speedy Gonzales.] We are penalizing the smart and hardworking (and who have
high standards) to the benefit of the potentially "cheating" and less
knowledgeable Speedy Gonzaleses.

The high costs of patents (in time and money) ensures many will not seek them,
even for defensive leverage purposes. For example, many developers in the FOSS
world and many otherwise ordinary individual users adding their little bits here
and there don't seek patents for the most part, in part, because of the high
costs in money and time and because of the lack of interest in
creating/leveraging such broad anti-social monopolies. Why should those that
don't try to hurt/block/take away from society and from individual inventors (by
taking out patents) be penalized? It makes sense to have patents be automatic so
that the most generous aren't penalized for their generosity [I'm assuming that
the professor isn't really in a position to know my mind as I earlier
sarcastically assumed he could.] Of course, granting patents automatically, as
happens for copyright, would quickly show the gargantuan folly of the system
when you have many inventors.

Overall, the brokenness of the patent system means many don't seek them. These
fair-minded people are being wrongly penalized every time their inventions are
leveraged by those who then go and exploit patent monopolies against the former
group.

The Internet was a game changer. We need to communicate this to the courts.
[Even invention types that can't tap into the Internet fully, eg, to clone and
distribute for $0, still benefit greatly from it (collaboration, etc). Perhaps
some traditional patents should not be awarded today because of the growing
opportunity costs of these monopolies.]

Costs and leveragability are key concepts of software. It makes software like
math, literature, and related copyrightable works.

My position is that software patents are essentially Unconstitutional, if to be
Constitutional requires that these monopolies "promote the progress of
science and useful arts."

There is more that can be said, but let's keep something in mind. We should not
get caught up in unimportant technical items (software "is" or
"isn't" math) while failing to clearly communicate to the courts what
really matters. The courts can and will set precedent as necessary. Focusing too
much on the existing guidance plays in to traditional arguments of limited scope
and ignores the new arguments and game changing differences.

Thanks PJ and friends for remaining on top of these important issues, relaying
important information and providing a forum for discussion and planning. I came
here through Linux Today, so thanks as well to whomever contributed this link.
Anyone who thinks writing source code is the only real way to make significant
contributions to FOSS needs to look around a little more frequently.

BTW, if software patents aren't fixed, I expect to start taking out extension
patents on products created by IBM and the many that are supporting software
patents (obviously, this includes Microsoft). And when trolls attack FOSS, these
patents can be used to attack the company's that helped make this environment
possible. These companies can't run away from the consequences of their deeds by
selling their patents to third parties or by working behind the scenes to
support the system. If push comes to shove, I expect to see numerous free howtos
on how to take out patents. FOSS should never be held back because of patents.
We are already providing very large social gains.

[ Reply to This | # ]

What is a movie file?
Authored by: Anonymous on Tuesday, September 22 2009 @ 08:30 PM EDT
I believe the question to be on topic because Google told me so.
I was searching for a method to fix broken quicktime mov files.
The nature of the breakage is common, well known, and there
are places that will do file repairs as a service. However Google
also showed me a number of links to patents for software that
manipulates the metadata in a movie file. Some of the softwares
seemed to manipulate metadata on the metadata collections
within the movie. Most seemed to work by mathematical operation
on the metadata, causing the actual movie data to presented differently.

Now I'm on the software is math side. But I see also that a tool
that fixes a broken movie file might be worthy of a patent, except,
the ones I looked at didn't actually "transform" the movie data,
they used mathematics to transform the metadata. The movie itself
just lies there, like the rubber and sulfur in the vat waiting for a
process. But the movie doesn't get heated or stirred, the description
on its wrapper gets changed, redefining the wrapper via a
mathematical transform.

Bilski could eventually invalidate these patents, and upset a lot
of people who are making money from them now.

[ Reply to This | # ]

Rocks...
Authored by: Grog6 on Tuesday, September 22 2009 @ 10:52 PM EDT
This says it better than I ever could.

http://xkcd.com/505/

I posted this above, under a comment by an anon poster; seems like those
disappear sometimes... :)

Any computer program could be performed by a person, or group of people; it's
not dependent on the computer itself, any function can be emulated.

It might take a bit longer to run, lol.

That's what 'general purpose computer' means; able to follow limited
directions.

I agree with copyright for software; no one should be able to use your code
unless you agree on terms. The GPL is a great set of terms, IMHO.

Writing code around anything is fairly straightforward; the hard part is doing
it faster or smaller, whatever the constraint is. Software patents try to
protect the Idea of doing something, which is unpatentable, IMHO.

At that point the market decides who wins, in a free society, at least.

Do we still live in one?








---
Is that You John Wayne? Is This Me?

[ Reply to This | # ]

If the standards for patents were strict
Authored by: The Mad Hatter r on Wednesday, September 23 2009 @ 12:12 AM EDT

no patents would be issued. Seriously. Go read the garbage that is filed as a
patent. None of the patents that you will find would pass a "strict
methodology".



---
Wayne

http://crankyoldnutcase.blogspot.com/

[ Reply to This | # ]

Professor Hollaar's Amicus Brief in Bilski
Authored by: Anonymous on Wednesday, September 23 2009 @ 01:19 AM EDT

It seems that there is something of a proxy argument here.

The question of whether software is mathematics or not seems to be at least in
part a way of describing the roles and circumstances of discovery and its
promulgation in our society.

Science & commerce seem to be in contest here - the collegial relations of
knowledge-seekers who share their knowledge, excitement, and sense of
advancement, are opposed in principle with those who seek to hide their
inventions in ways which will bring them personal and/or corporate gain.

It would seem that the notion of commonwealth is what needs to ultimately gain
sway if we are to succeed at all in making the world a better place, or at least
one which we can survive in, given the huge challenges we all face together.

Thus it is necessary that collective interests ultimately subsume those which
are proprietary, which bring only private gain. To make this happen, the
policies & methods we apply to our endeavors must also be consistent with
these larger principles in order that the social construct has inner strength so
that it persists in the face of sometimes great difficulties such as the
economic and environmental problems which beset our world.

[ Reply to This | # ]

Not all processes should be patentable
Authored by: Jose on Wednesday, September 23 2009 @ 02:09 AM EDT
Patents are potentially too powerful, as they are very broad claims on ideas.
They are too powerful in terms of the potential opportunity costs that come with
giving a single entity monopoly rights, in a single stroke, over a large set of
information content while simultaneously abridging the rights of everyone else
to the use and leveraging of that information in major ways for a long period of
time. Remember that (in science and in other disciplines) the ripe time to
develop certain ideas tends to happen within a window of a few years and happens
fastest when many individuals are incentivized to collaborate during those
years. Slowing this process down significantly (as would happen through these
monopoly grants when they negatively affect many inventors) slows down progress
as it also slows down the development of the future ideas that leverage these
earlier ones. Adding insult to injury is that no man is an island when you have
an actual large community of inventors. This implies that likely many others
were on the same path towards discovery, with possibly a few already having
drawn the connections privately or were only a short time away from so doing.

Patents might make sense to protect undertakings that are costly before yielding
any profit (think of certain investments needed to produce tangible goods) and
where few individuals' rights are in practice abridged (this being due perhaps
to the high costs to play the game), but they don't make sense (at least not in
the ordinary case) as applied towards monopolizing the use, distribution, etc,
of specific information as is a software program because, in today's
internetworked, computerized world, software (and many types of information) is
generally not costly to leverage, to create (the laboratory and other
requirements are readily accessible and wide collaboration is possible), nor to
distribute, meaning that the investments are low and the participating players
whose liberties are in play are many.

We already have copyrights, a more diluted form of monopoly power, for
protecting precise presentations of information. Copyright law covers software,
and those creating the software have always responded with their copyright
licenses. Some groups have very strict copyright licenses. Most of these tend
also to leverage trade secret laws in hiding many key aspects of the functioning
of the software. Other groups encourage the free (perhaps almost) completely
unrestricted use of the software. For both of these groups (and this covers many
many inventors and many many inventions, most of which were never patented),
copyright law has afforded sufficient incentives.

Process patent are patents on information, but these, if legitimate, presumably
involve the control of costly material/equipment or involve processes costly to
implement, so that few inventors have their rights abridged. To violate these
guidelines, ie, to issue patents that can impede innovation that can be carried
out readily and cheaply by many people, is to impede the "progress of
science and useful arts." Such violating patents should be declared
unconstitutional.

Before wrapping up, I want to stress that some groups are willing to leverage
software patents for greater profit and would become greater contributors in
some sense if software patents are valid, but we should look towards the full
costs born by society for granting these very powerful overlapping monopolies
that are in practice exploited only by a minority of software inventors. Patents
help clog the wheels of innovation because of how easy it is to write claims
that (through their broad scope) can significantly limit fundamental work
already being carried out or otherwise likely to be carried out by a great many
inventors within much less than 20 years of the submission of the patent
application. Many inventors consider software patents nonsense and very
disruptive so don't deal with the real costs necessary in applying for them
(this contrasts with copyrights which are automatic). The patent system also has
a serious flaw in allowing a model where broad coverage is the easiest to
achieve (and fastest) despite requiring the least amount of knowledge. There is
no fair way to test for the quality of these ideas relative to the industry at
that point in time, and today no attempt is even made to award protection for a
period of time (a) consistent with the value of such an invention to society at
that point in time and (b) reduced further based on the broadness of the
claims.

Essentially, in today's world at least, giving monopolies that broadly cover
wide categories of information based on a general description of them, as
software (process) patents do, rather than giving monopolies that narrowly cover
specific implementations of information, as copyrights do already, results in a
failure to "promote the progress of science and useful arts."

The following includes other arguments:
http://www.groklaw.net/comment.php?mode=display&sid=20090922030639824&ti
tle=%20Professor%20Hollaar%27s%20Amicus%20Brief%20in%20%20Bilski%20&type=art
icle&order=DESC&hideanonymous=0&pid=0#c788950 .

Also, I do not wish to imply that copyright law is perfectly acceptable in its
current form, but it is a milder form of a monopoly grant and has applied to and
suited software for all of these years. If software copyrights were overkill,
more so would be patents covering software.

[ Reply to This | # ]

Is using a machine subject matter?
Authored by: Anonymous on Wednesday, September 23 2009 @ 04:23 AM EDT
He is saying that a process can be either using or creating a machine, ... or
composition of matter.
Is he really saying that using a machine is patentable subject matter? It might
please Nintendo, for using a Wii remote to control the actions of a game console
would be patentable. That would mean you can build and sell Wii clones (if not
copyrighted or patented in their own right), but everyone who actually uses the
Wii as intended infringes the patent.
I can understand a machine to be patented and a method for curing rubber or even
a specific mixture of elements to form a specific material (like carbon fibre or
metal alloys).
I do not understand why using a machine or composition of matter would be
statutory subject matter. Is the sentence he qoutes actually correct and in
context?
I do not understand why using a machine or composition of matter would be
statutory subject matter.

[ Reply to This | # ]

Accountancy-is-maths is a good analogy for software-is-maths
Authored by: halfhuman on Wednesday, September 23 2009 @ 10:53 AM EDT
I developed this thesis deep in another thread, it seems worth summarising
here.

Consider company accounts: they implement double-entry bookkeeping, rely on
theorems about summation, subtraction and so on, and have to be correct.

That is, they *must* have certain mathematical properties to be a valid
statement of the company's financial position.

But of course they must also have other properties, like signatures, narrative,
true representation etc.

That is, they have a dual nature: they are mathematical objects and legal
documents. Their legal function depends on their mathematical nature.

Company accounts are maths *and* not maths.

Similarly, software *must* have certain mathematical properties in order to work
(ably described elsewhere, eg the Curry-Howard correspondance), but has other
properties as well, such as fitness for purpose, machine dependence, source
readable by humans, brand name, novelty. So software is maths *and* not maths.

I don't know if this makes the software-is-maths proposition easier or harder to
prove in court.

[ Reply to This | # ]

Accountancy-is-maths is a good analogy for software-is-maths
Authored by: halfhuman on Wednesday, September 23 2009 @ 11:03 AM EDT
I developed this thesis deep in another thread, it seems worth summarising
here.

Consider company accounts: they implement double-entry bookkeeping, rely on
theorems about summation, subtraction and so on, and have to be correct.

That is, they *must* have certain mathematical properties to be a valid
statement of the company's financial position.

But of course they must also have other properties, like signatures, narrative,
true representation etc.

That is, they have a dual nature: they are mathematical objects and legal
documents. Their legal function depends on their mathematical nature.

Company accounts are maths *and* not maths.

Similarly, software *must* have certain mathematical properties in order to work
(ably described elsewhere, eg the Curry-Howard correspondance), but has other
properties as well, such as fitness for purpose, machine dependence, source
readable by humans, brand name, novelty. So software is maths *and* not maths.

I don't know if this makes the software-is-maths proposition easier or harder to
prove in court.

[ Reply to This | # ]

IEEE Computer Society
Authored by: Anonymous on Wednesday, September 23 2009 @ 12:24 PM EDT

The IEEE has specialist groups which members can join, and one of them is IEEE Computer Society (I used to be a member before I retired). It seems to me that the IEEE Computer Society is the appropriate part of IEEE to formulate a policy on software patents.

Do any current members of IEEE Computer Society read Groklaw, and if so, could they find out whether IEEE Computer Society members were consulted before IEEE-USA formulated its policy on software patents?

[ Reply to This | # ]

in re Alappat
Authored by: PolR on Wednesday, September 23 2009 @ 07:57 PM EDT
I have just been reading in re Alappat. I think this case is worth some discussion.
Diehr also demands that the focus in any statutory subject matter analysis be on the claim as a whole. Indeed, the Supreme Court stated in Diehr:
[W]hen a claim containing a mathematical formula [, mathematical equation, mathematical algorithm, or the like,] implements or applies that formula [, equation, algorithm, or the like,] in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e.g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of Section 101.
Diehr, 450 U.S. at 192 (emphasis added). In re Iwahashi, 888 F.2d at 1375, 12 USPQ2d at 1911; In re Taner, 681 F.2d 787, 789, 214 USPQ 678, 680 (CCPA 1982). It is thus not necessary to determine whether a claim contains, as merely a part of the whole, any mathematical subject matter which standing alone would not be entitled to patent protection. Indeed, because the dispositive inquiry is whether the claim as a whole is directed to statutory subject matter, it is irrelevant that a claim may contain, as part of the whole, subject matter which would not be patentable by itself.21 “A claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, [mathematical equation, mathematical algorithm,] computer program or digital computer.” Diehr, 450 U.S. at 187.
Notice the clever distinction. They cite the Supreme court precedent Diehr to show that the mere use of mathematics doesn't doesn't preclude patentability of an invention that use maths. Then let's see what the court made out of that distinction:
Given the foregoing, the proper inquiry in dealing with the so called mathematical subject matter exception to Section 101 alleged herein is to see whether the claimed subject matter as a whole is a disembodied mathematical concept, whether categorized as a mathematical formula, mathematical equation, mathematical algorithm, or the like, which in essence represents nothing more than a “law of nature,” “natural phenomenon,” or “abstract idea.” If so, Diehr precludes the patenting of that subject matter. That is not the case here.

Although many, or arguably even all, of the means elements recited in claim 15 represent circuitry elements that perform mathematical calculations, which is essentially true of all digital electrical circuits, the claimed invention as a whole is directed to a combination of interrelated elements which combine to form a machine for converting discrete waveform data samples into anti-aliased pixel illumination intensity data to be displayed on a display means.23 This is not a disembodied mathematical concept which may be characterized as an “abstract idea,” but rather a specific machine to produce a useful, concrete, and tangible result.

Why mathematical concepts must be disembodied? Anyone can compute the decimals of Pi up to the 200th decimals without some physical aid? Anyone can remember these decimals without writing them down? Do they mean that computation done with pencil and paper is not math because it is not disembodied? The computer is the successor of the abacus and the sliding ruler. Computation is maths even when it is done with some physical device. If you patent the computation, you patent the maths.
The fact that the four claimed means elements function to transform one set of data to another through what may be viewed as a series of mathematical calculations does not alone justify a holding that the claim as a whole is directed to nonstatutory subject matter. See In re Iwahashi, 888 F.2d at 1375, 12 USPQ2d at 1911.24 Indeed, claim 15 as written is not “so abstract and sweeping” that it would “wholly pre-empt” the use of any apparatus employing the combination of mathematical calculations recited therein. See Benson, 409 U.S. at 68-72 (1972). Rather, claim 15 is limited to the use of a particularly claimed combination of elements performing the particularly claimed combination of calculations to transform, i.e., rasterize, digitized waveforms (data) into anti-aliased, pixel illumination data to produce a smooth waveform.
They say you can't patent the maths, but if you tack a purpose to the formula you may be able to can patent the use of the formula when used for this the purpose. This is how it reads to me.
Furthermore, the claim preamble’s recitation that the subject matter for which Alappat seeks patent protection is a rasterizer for creating a smooth waveform is not a mere field-of-use label having no significance. Indeed, the preamble specifically recites that the claimed rasterizer converts waveform data into output illumination data for a display, and the means elements recited in the body of the claim make reference not only to the inputted waveform data recited in the preamble but also to the output illumination data also recited in the preamble. Claim 15 thus defines a combination of elements constituting a machine for producing an anti-aliased waveform.
Tell me if I am wrong. Are they saying that providing input information to a mathematical formula in order to compute the output is making a machine? Are they saying that the fact there is actual input supplied to the algorithm and actual output is being produced means that performing the calculation stops being a mathematical operation? I may be misreading but this is how it sounds to me.
The reconsideration Board majority also erred in its reasoning that claim 15 is unpatentable merely because it “reads on a general purpose digital computer ‘means’ to perform the various steps under program control.”25 Alappat, 23 USPQ2d at 1345. The Board majority stated that it would “not presume that a stored program digital computer is not within the Section 112 Para. 6 range of equivalents of the structure disclosed in the specification.”26 Alappat, 23 USPQ2d at 1345. Alappat admits that claim 15 would read on a general purpose computer programmed to carry out the claimed invention, but argues that this alone also does not justify holding claim 15 unpatentable as directed to nonstatutory subject matter. We agree. We have held that such programming creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software. In re Freeman, 573 F.2d 1237, 1247 n.11, 197 USPQ 464, 472 n.11 (CCPA 1978); In re Noll, 545 F.2d 141, 148, 191 USPQ 721, 726 (CCPA 1976); In re Prater, 415 F.2d at 1403 n.29, 162 USPQ at 549 n.29.
The bold is mine. From a technology point of view this is nonsense. The general purpose computer never becomes a new machine just because it is programmed. The device doesn't change. Programming the computer is operating the computer exactly how it has been designed to be operated.

I wonder how this connects to Bilski. It is the same court that issued both Bilski and this ruling.

[ Reply to This | # ]

Professor Hollaar's Amicus Brief in Bilski
Authored by: Anonymous on Thursday, September 24 2009 @ 07:08 AM EDT
Mathematics is a science, a formal notation process that is universal. It's a
fundamental science it's quite clearly understood, allthough there is still alot
of progress in the field.

But, software is *NOT* mathematics.

As a physist what is mathematics, his answer will be EVERYTHING, that is the
description of physical, (or theoretical) can be broken down to pure
mathematics.

Mathematics is a science, programming is an engineering disipline (or should
be).

Trying to state that software is maths is like saying that R=V/I (the equation
for a electronic component called a resistor) is ONLY math. sure it can be
broken down into an equation but if you invent a system that uses resistors and
other components like transistors, wires, (software) and so on, all components
that can be resolved into mathematical equations. But you can still patent the
inventiveness of your device.

Really, to prove that software is math, you have to first establish that
everything is *NOT* math. (a tall order).

You can do math on a computer, with the appropriate software, but you can also
do math on a peice of paper or in your head.

Software requires a machine, to run on you cannot "do software" with a
pen and paper. Sure you can go through the steps of the code and write it down.
But executing software you are *NOT* doing.

Chemistry is the scientific study of (well) chemicals.
You can research, develop and patent drugs and other innovations in chemistry,
but you cannot patent the elements of the periodic table for example.

Chemistry is the scientific study of chemical interactions, Drug development in
the engineering and applied chemistry. Once can be patented, the other cannot.

This applies to all fields of engineering, you use math, science and the vast
body of scientific research that has occured throughout time, and you apply that
body of knowledge to the betterment of mankind.

Math's is everything, A skyscraper, or an electric moter, every invention is
math.

Saying that software is "not physical" and therefor not able to be
"stolen" is wrong. It *IS* physical, it has value (via virsality) and
really.

what the deal with patents anyway, if you are being held up by a patent, you
must them be able to see a better way to do it, innovate and create you're own
functionality with your own inventions.

And once you invent it, if you are smart you'll patent it, and you might even
make some money for your brains and effort.

And you might even advance mankind.

If I invented something, I mean something really REALLY good, that I knew was a
sure fire winner, do you think I or anyone else in their right mind would give
up their possibly one and only flash of genious and riches for some idealogy
about all things being free?

If there was no way to protect my idea, and it was very easy for anyone else to
use my idea, I would NOT make it public.

Patents protect you from that one flash of genius you have, allowing you to
profit from it until someone invents a better way, OR your patent expires.

If you really lucky a big company that can afford to finance and market (and
take the risk) for your product might want to license it or buy you're patent
outright.

If you think the price is fair you sell, if you dont like it you DONT, thats
your freedom.

Or you can give it to OIN, and help line the pockets of the big players in the
"Open" world.

Do you wonder why software patents are so important to a group of "software
developers" that appear to just want to take advantage of any invention and
innovation as if it's their God given right.

Sorry, got carried away, but you get my point, (I hope).

[ Reply to This | # ]

The Flook case vs the Diehr case
Authored by: PolR on Saturday, September 26 2009 @ 12:03 AM EDT
I was looking at the executive summary on bitlaw that explain the tension between the two cases Parker v. Flook and Diamond v . Diehr.
In this case, the Supreme Court examined whether a method for updating an alarm limit (used to signal abnormal conditions) in a catalytic conversion process was patentable. The only difference between the prior art and the invention was the algorithm that calculated the new alarm limit. The Court held that this was not patentable even though an additional step was included in the claim beyond merely the calculation step. The Court rejected the notion that "post-solution activity [alone]... can transform an unpatentable principle into a patentable process." The Court also stated the invention could not be patented "not because it contains a mathematical algorithm as one component, but because once that algorithm is assumed to be within the prior art, the application, considered as a whole, contains no patentable invention." This approach was later rejected by Chief Justice Rehnquist's decision for the majority in Diamond v. Diehr.

The dissent in this case was written by Justice Stewart and was joined by Chief Justice Rehnquist. This dissent argues that the patent application should be considered statutory subject matter for the simple reason that a patent on this invention "would not preempt the formula or algorithm contained therein, because solution of the algorithm, per se, would not infringe the claims."

The issue was further refined by the Supreme Court in Diamond v. Diehr, which found that algorithms can be patentable if they form part of a larger process (especially one that transforms something from one state into another).

IANAL. I am a computer professional. But this perspective the tension between the two cases reads like the dichotomy between patenting a computation and patenting something that is the meaning of the computation.

The software is maths arguments is saying that software is the description of a computation. Think of when you learned how to perform a division in school. This is a computation. This is an algorithm. This is mathematics. Software is rules on how to make computations like the division.

There is a lot of theory developed by mathematicians and computer scientists on what a computations is. You can look at text books on the foundations of mathematics and find out about recursion theory, Gödel numbers, lambda-calculus and Turing machines. Or you can read on theoretical computer science and find out about denotational semantics, operational semantics and Hoare's logic. Or you can read the technical manuals of CPUs and find out that all instructions available are mathematical operations defined according to the rules of boolean logic. Whichever way you go, it all boils down to the same thing. Software is data describing a computation and this is part of mathematics.

Flook proposes an interesting test. When reading a software patent, assume the computation is covered by prior art. What is left? Do you still have an invention that is new and non obvious? If the answer is no, then the patent is about the computation and it is non patentable maths. If the answer is yes, then the patent is about something else and it may turn out that that something else is patentable subject matter if it fit the requirements of the law.

Diehr adds a complication. If the computation is part of a larger process then the larger process may be patentable. The case determined that the use of software to compute how to cure rubber doesn't make the curing of rubber unpatentable.

When I compare the two cases I see a difference being made between the methods to compute maths and the meaning of the maths. If you patent a method to compute, it doesn't matter if other methods to make the same computation are left uncovered by the patent. You are still patenting a computation is this is maths. This is the point of Flook. But if you use the meaning of the computation to do something in the concrete world that is not maths like curing rubber, this may be patentable subject matter. This is the point of Diehr. But the judges don't articulate the difference between the two cases that way. It seems their thinking didn't reach the realization that the meaning of the computation vs computation per se is the line that needs to be crossed to separate abstract computation from patentable subject matter.

The often quoted parallel between software and the law of physics is addressed by this distinction. The law of nature is not patentable but their meaning in the real world can be used to build something patentable. The same idea is applicable to software. Just make the difference between the computation and the meaning of the computation.

Let's take the case of running software on a generic computer. If we apply the Flook test, what do we get? We must assume the computation described by the software is prior art. Then we are left with a generic computer. Unless you are patenting a new kind of generic computer, you don't get anything worthy of a patent. Even if you accept the science fiction view that the state changes made by installing software makes a new machine, these changes are obvious because they are entirely determined by the software. You run the compiler, load the binary and there you are. This mythical machine is still not worthy of a patent and the Flook test says you are patenting the computation and not new hardware.

The Flook test has been outmoded by Diehr because it doesn't handle situations like curing rubber. You need to introduce the concept of making use of the meaning somewhere. If you run software on a generic computer and provide the answer on the screen, the meaning is not not being used by the invention. A patent on a method to provide an answer is a patent on the computation that should not be allowed according to Flook. If you use the meaning to cure rubber, then the meaning is used by the invention and you are patenting something that is not the computation. This is where Diehr is relevant. This is what needs to be factored in the test somewhere.

The correct test when confronted to a hardware claim that covers an algorithm should be something along the line: is the claimed hardware a mean to perform the computation and provide the answer? Or is it making use of the meaning of the computation to do something else? In the first case the patent looks like Flook and no patent should be granted. In the other case the patent looks like Diehr and patentability depends on whether the something else is patentable subject matter according to law.

Here i discuss how I understand this case law. I am not making a statement on whether this is acceptable to FOSS. I am not sure I understand the practical consequences of what I have written. It depends very much on what kind of tap dance lawyers can make around phrases like "making use of the meaning of a computation" and I know lawyers have tap dancing skills that go well beyond my imagination. The most obvious loophole is that making use of the meaning of the computation must go beyond displaying, printing or otherwise providing the answer. The test must make sure sure the use is meaningful in term of the invention being claimed.

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Refutation.
Authored by: polymath on Thursday, October 01 2009 @ 09:04 PM EDT

Professor Hollaar's brief is very poorly argued. It takes a minimum of logic to refute.

His comparison of E=mc2 with E = m * c ** 2 suggests that mathematics stops with algebra. The equation E=mc2 also indicates how to calculate E if you know both m and c. Indeed it is more powerful because it also shows us how to find m or c if the other two variables are known. The Chinese Remainder Theorem, which dates to the third century, describes an algorithm and predates computers by over a millennium. Algorithms are a branch of mathematics, and programs are expressions of algorithms, hence programming is a form of mathematics. To say otherwise is obfuscation.

His argument defeats itself in saying :

Even if the claim does not explicitly recite a machine, it may be statutory if it recites elements that require a machine. So, for example, limiting a claimed method to a “relational database management system” would also make it statutory, since such a method can only be performed on a machine with such software.
As even an elementary knowledge of database management systems informs us that no machine is required - a machine is only more convenient than pen, paper, filing cabinets, and hours of labor.

Any computation that can be performed by a computer can be performed by a person given sufficient perseverance. A computer is a mathematical lever that allows us to calculate more rapidly. Claiming a method operates on or uses a computer gives it no more standing than a method which requires a pencil and paper.

QED

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Professor Hollaar's Amicus Brief in Bilski
Authored by: Anonymous on Friday, October 02 2009 @ 05:56 PM EDT
"His bio says he began teaching at the University of Utah beginning in
1984"

1984? I took a computer architecture class from him at the University of Utah
in 1981.

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