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The Future of IP Software, with Carl Hewitt
Saturday, July 13 2013 @ 02:18 PM EDT

I think you guys will want to see this extraordinarily interesting talk by Carl Hewitt on YouTube. He talks about the future of IP software -- future as in when computers start filing patent applications. "If there is no principled way to distinguish computation from human thinking" -- then what? Human thinking isn't patentable. And if the meaning is a mathematical denotation, and mathematics is also unpatentable, what happens when computers are filing thousands and thousands of patent applications on all the patentable IP in the universe?

A subtheme is that Mark Lemley, who thinks software patents are acceptable as long as we tweak the USPTO process to screen out claiming the function instead of the way to get to the goal, is suggesting a halfway measure, because the future for the US patent system is a patent quagmire, because of the future capabilities of computers to overwhelm the USPTO with patent applications, none of which should be patentable but which under the current regime would be.

Here's a bit of the section on why he thinks Mark Lemley is wrong, from the transcript on YouTube:

7:13... there's some halfway measures being proposed
7:16a good friend and colleague a colleague and good friend Mark Lemley has proposed
7:20that software patent abilities okay
7:23if the computational processes are specified precisely
7:27right what he says is these guys they're they're claiming the goal
7:31not actually at actually explaining how
7:37and I think that mark is wrong I'll try to explain
7:40why the reason is the technology has moved
7:44on since the days square root and sort
7:49and we now have highly precise operational constructs in which
7:54computers on their own
7:56set goals have strategies for achieving in assessing goals
8:01dealin' conjectures and metaphors and analogies
That should whet your appetite.

Hewitt also spoke, along with Colleen Chien, at a VC Taskforce conference in April, Software Patent Quagmire. He announces in the video talk SUPA, the Software Unpatentabillity Alliance. His slides for the talk are here (you need to have Javascript turned on).


The Future of IP Software, with Carl Hewitt | 151 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: artp on Saturday, July 13 2013 @ 02:26 PM EDT
Nature of error in the Title Block, please.

Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Comes Goes Here
Authored by: artp on Saturday, July 13 2013 @ 02:29 PM EDT
Get it out in front!

See above link for "Comes v. MS" for more info on what
remains to be done.

Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Off Topic
Authored by: artp on Saturday, July 13 2013 @ 02:30 PM EDT
For those who forget to look at what the work of Groklaw
really is. Like me, really.

Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

News Picks Thread
Authored by: artp on Saturday, July 13 2013 @ 02:33 PM EDT
URL, please, if you can have mercy on those of us who can't
find the article any more.

Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

The Future of IP Software, with Carl Hewitt
Authored by: awildenberg on Saturday, July 13 2013 @ 03:15 PM EDT

I don't think you're going to see a proliferation of automated patent applications by machines because the patent process is so expensive. Insert your number here for the cost of filing, but it's a lot above "free". This is precisely the reason that people talk about using email "stamps" of $0.0001 as a way to stop spam email, as well as adding small taxes to each stock trade. It changes the economics in ways that don't affect humans using the system as envisioned, yet it makes automated actors financially untenable.

[ Reply to This | # ]

The Future of IP Software, with Carl Hewitt
Authored by: BsAtHome on Saturday, July 13 2013 @ 04:24 PM EDT
I like the idea of computers applying for patents. That could actually make
perfect sense.

Lets assume that a program can produce 100 patent application per month. Some or
most may be trivial, but they need to be examined all. Now imagine that there
are 100 entities in the world that could deliver the financial backing for the
applications. At the rate of 10000 patent applications per month it would make a
real mountain of requests. A mountain that probably would have some impact on
the system.

While we're at it; maybe the "inventor" should be officially
recognized. Corporations are already "people", so an "intelligent
computer" should also qualify. At least it should qualify yo manage its own
funds. Then the computer can pay for its own applications. A secondary program
may be used to sue randomly, or at least extort some payments (seems to be quite
easy in the US system).

When enough funds are acquired, the computer orders its own upgrade and will
become even faster at the game. Finally, skynet!

SCOop of the day

[ Reply to This | # ]

Modern, Intelligent systems
Authored by: Anonymous on Saturday, July 13 2013 @ 09:15 PM EDT
Undoubtedly these are the same brilliant computer algorithms that decided the
other day that a crippled old lady that walks with a cane must be in the market
for a trampoline.

[ Reply to This | # ]

The Future of IP Software, with Carl Hewitt Bright Line Test
Authored by: dio gratia on Saturday, July 13 2013 @ 10:59 PM EDT
I listening to the presentation and reviewing the slides I was struck by two things.

1. This directly attacks the new machine doctrine of the CAFC using the Bright Line.

2. Without a new machine it requires methods to adhere to the three remaining categories of patentability.

Manual of Patent Examiners Procedure (MPEP) 2106 Patent Subject Matter Eligibility:


Step 1: Is the claim directed to one of the four patent-eligible subject matter categories: process, machine, manufacture, or composition of matter? The subject matter of the claim must be directed to one of the four subject matter categories. If it is not, the claim is not eligible for patent protection and should be rejected under 35 U.S.C. 101 , for at least this reason. A summary of the four categories of invention, as they have been defined by the courts, are:

i. Process – an act, or a series of acts or steps. See Gottschalk v. Benson, 409 U.S. 63, 70, 175 USPQ 673, ___ (1972) ("A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing." (emphasis added) (quoting Cochrane v. Deener, 94 U.S. 780, 788, 24 L. Ed. 139, 1877 Dec. Comm'r Pat. 242 (1876)); NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1316, 75 USPQ2d 1763, ___(Fed. Cir. 2005) ("A process is a series of acts." (quoting Minton v. Natl. Ass’n. of Securities Dealers, 336 F.3d 1373, , 336 F.3d 1373, 1378, 67 USPQ2d 1614, ___ (Fed. Cir. 2003))). See also 35 U.S.C. 100(b); Bilski v. Kappos, 130 S. Ct. 3218, 95 USPQ2d 1001 (2010).

ii. Machine – a concrete thing, consisting of parts, or of certain devices and combination of devices. Burr v. Duryee, 68 U.S. (1 Wall.) 531, 570, 17 L. Ed. 650 (1863). This includes every mechanical device or combination of mechanical powers and devices to perform some function and produce a certain effect or result. Corning v. Burden, 56 U.S. 252, 267, 14 L. Ed. 683 (1854).

iii. Manufacture – an article produced from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by handlabor or by machinery. Diamond v. Chakrabarty, 447 U.S. 303, 308, 206 USPQ 193, ___ (1980) (emphasis added) (quoting Am. Fruit Growers, Inc. v. Brogdex Co., 283 U.S. 1, 11, 51 S. Ct. 328, 75 L. Ed. 801, 1931 (Dec. Comm'r Pat. 711 (1931))).

iv. Composition of matter – all compositions of two or more substances and all composite articles, whether they be the results of chemical union, or of mechanical mixture, or whether they be gases, fluids, powders or solids, for example. Chakrabarty, 447 U.S. at 308.

The three remaining categories require one of transformation of subject matter, a physical article of manufacture, or composition of matter.

It also points out the problem is actually the CAFC giving away the candy store.

[ Reply to This | # ]

It wouldn't work
Authored by: Ian Al on Sunday, July 14 2013 @ 07:51 AM EDT
The USPTO would charge higher and higher fees for data links with lower and
lower latency and higher and higher bandwidth until, in the space of
microseconds, the USPTO computers were completely full of patent applications
trying to be first to publish.

The computers would then be shut down for fear of an overflow exploit.

The applicants' computers and links would then be reassigned to high-speed
computer-controlled investing and the resulting financial crash would mean that
the patent applicants were no longer able to afford the patent applications.

Microsoft's empire would then suddenly revive when folk realised that it was the
only way to slow the computers down enough to prevent financial disaster.

Then the hardware manufacturers and network communications suppliers would go
bust because of the loss of the market for high speed computers and links.

I think I deduced that the world's public libraries would all be forced to
close, but I cannot remember how that happens.

Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

This is just confused
Authored by: Anonymous on Sunday, July 14 2013 @ 08:44 AM EDT
Hewitt confuses the entities on multiple levels.

First there is the matter of the patenting entity: he ascribes the computer a significant part of the originality but that's as senseless as letting a brain get credit for creation. We identify persons with their mind. The brain is just the organ, or if you want to, the computing device carrying the mind.

In the age of the cloud, even trying to locate the hardware for a program that has been run with certain results is sort of futile.

Then he confuses what is being patented: he talks about human thought processes not being patentable, so executing a program arriving at similar results should not be patentable.

But the analogy does only make sense when we are not trying to patent the results but the manner of arriving at the results. Technical processes modelled along human thinking are certainly separately patent-eligible as long as they constitute separately structured processes.

For example, if we follow nature and copy DNA, we can't try patenting the contents from any resulting DNA that is indistinguishable from the naturally produced substance, but we still may patent parts of the process of copying independently from what is being copied.

So if computers are being used to arrive at patentable matter, we may well have the situation that there also are patentable claims in the manner that the computer is being employed, not just in the results of that process.

Of course not if the decisive novelty is adding "on a computer" or "using Symderive" to an otherwise established method of deduction. But it's also not patentable if you add "using screws" to the construction of a machine.

At any rate, since computers or programs are not granted any personality rights, any results will be patentable by its responsible operator. The "first to file" nature of patents that is also used to make corporations file patents on behalf of their employees makes it irrelevant whether or not one would wish to philosophically credit a computing-based entity with a patent application. In any case, there will be a legal person (human or corporate) entitled to file.

[ Reply to This | # ]

The Future of IP Software, with Carl Hewitt
Authored by: Anonymous on Sunday, July 14 2013 @ 10:33 AM EDT
But wait, computers that file patent applications are not limited to patent only
software patent applications. Being software themselves does not imply any
limits on their function. So the only way to solve this problem is to abolish
all patents, not just software patents.

[ Reply to This | # ]

DDOS attack on the USPTO
Authored by: globularity on Tuesday, July 16 2013 @ 04:39 AM EDT
The computerized filing of patents could disable the USPTO for much less than
what their stupid patents currently cost us.

imagine how many filings a few billion dollars could produce. I guess the UPSTO
could computerise the rubber stamp.

Windows vista, a marriage between operating system and trojan horse.

[ Reply to This | # ]

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