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Mathematical algorithm exception? | 179 comments | Create New Account
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Mathematical algorithm exception?
Authored by: PolR on Sunday, March 17 2013 @ 08:48 PM EDT
Now that you have thought of the issue this far, I suggest you read what the Federal Circuit has said on the topic in in re Alappat, State Street vs Signature and AT&T vs Excel Communications. You will find that in some cases the Federal Circuit upheld patents on mathematical calculations based on algorithms.

Please note that the useful, concrete and tangible result test which is used in these cases is dead since Bilki. But you will get a sense of how they think when they encounter a claim involving software. Alappat will tell you about the "make a new machine" doctrine, see also what we wrote here.

The upshot is a claim on the algorithm standing alone, like in Benson, is going to be dead. But patent attorneys don't write claims like this. They place the algorithm in a context where they can truthfully sat the software is part of a larger structure, like a process or a machine. And then they argue the invention is not the algorithm, it is the larger structure. When that happens an analysis is required to determine whether the claim is abstract. How this analysis would work is an unsettled matter of law. It is currently before the Federal Circuit in CLS Bank v. Alice. We have received a report on the hearing and we await the decision.

Once you have checked this material, I suggest you read again what was sent to the USPTO and the supplement. You will then see nuances and perspectives you didn't notice on a first reading. The argument is not a simple "software is algorithm so it isn't patentable". We take a much more nuanced position which is intended to navigate these issues.

[ Reply to This | Parent | # ]

Mathematical algorithm exception?
Authored by: macliam on Monday, March 18 2013 @ 06:51 AM EDT

I am not a lawyer. Nevertheless, in forming a judgement as to the scope of any precedent established in Benson, I would expect that, with regard to any disputed terms, such as algorithm, a court will look to the specific text of the opinion to determine how the Benson court construed the term, and may opt to construe the term themselves narrowly or broadly in accordance with their understanding of the purposes of the law. Now the Benson court gave an explanation of the sense in which it interpreted the term algorithm:

The patent sought is on a method of programming a general-purpose digital computer to convert signals from binary-coded decimal form into pure binary form. A procedure for solving a given type of mathematical problem is known as an “algorithm.” The procedures set forth in the present claims are of that kind; that is to say, they are a generalized formulation for programs to solve mathematical problems of converting one form of numerical representation to another. From the generic formulation, programs may be developed as specific applications.

Therefore the CCPA, or the Federal Circuit, in seeking to distinguish their cases from Benson to the utmost extent possible, will note that Benson defined the term algorithm, in the context of their specific holding, as “a procedure for solving a given type of mathematical problem”, will construe the phrase “given type of mathematical problem” narrowly, and distinguish their cases accordingly.

Were mathematicians and computer scientists to come along and say “we regard an algorithm as being something else”, such an argument would be given short shrift by judges whose ears are closed to such arguments.

And it seems abundantly clear that the judges on the CCPA and their successors on the Federal Circuit who are inspired by them had and have nothing but contempt for the “confused” opinions of the Supreme Court in Benson and Flook. There is no way that they would have considered adopting the underlying principles of these cases, and accordingly construing broadly the language of precedents for which they feel nothing but contempt. And it is clear that Judge Rich and his associates put every effort into cabining and effectively negating the precedents in those despised opinions.

[ Reply to This | Parent | # ]

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