8 ms·
The court's opinion in this case (the CyberSource case) is at http://www.cafc.uscourts.gov/images/stories/opinions-orders/09-1358.pdf http://www.cafc.uscourts.g
by dctoedt 15y ago
The court's opinion in this case (the CyberSource case) is at http://www.cafc.uscourts.gov/images/stories/opinions-orders/09-1358.pdf http://www.cafc.uscourts.gov/images/stories/opinions-orders/....
Tl;dr: The three-judge appeals court panel affirmed a summary judgment of invalidity. The panel announced a pretty straightforward test as one "filter" that can rule out patentability for certain claims:
1. If a method can be performed by the human mind alone, or with paper and pencil, then it's an "abstract idea," and therefore unpatentable under Supreme Court precedent.
2. If as a practical matter [a] the method cannot be performed with paper and pencil [b], then it passes the filter described in 1 above [c].
3. If a method would be unpatentable under 1 above, then a claim to a storage device encoding computer instructions for performing the method is likewise unpatentable.
NOTES:
[a] In its discussion, the court distinguished a couple of prior cases where such non-paper-and-pencil methods had been held patentable. See pages 20-21 of the PDF. EDIT to respond to petegrif's comment below: One of the earlier methods that had been ruled patentable was "for rendering a halftone image of a digital image by comparing, pixel by pixel, the digital image against a blue noise mask ...." The CyberSource panel distinguished this precedent by saying that, as a practical matter, that earlier method could not be performed by the human mind or with paper and pencil; see page 21 of the PDF.
[b] An unanswered question: How exactly are ordinary people supposed to determine whether a method can or can't be performed with paper and pencil "as a practical matter"?
[c] Even if a method gets past the "paper and pencil" filter, there are still other filters to pass before it will be patentable---but once the Patent and Trademark Office has issued the patent, then a presumption of patentability applies.
COMMENT: This is an area where the net effect of the precedents is not entirely clear. It wouldn't surprise me if the court were to take this case en banc, namely to have all of the court's 12 judges rehear and redecide the case in an attempt to clarify the law. (An en banc opinion is generally regarded as carrying more precedential weight than an opinion by a three-judge panel.)
- petegrif 15y agoThe problem I have with this is the following. a) There is no software that we cannot put into hardware - literally! Software and hardware are interchangeable. So the oft cited distinction between s/w and h/w is, to say the least, somewhat arbitrary. b) "If a method can be performed by the human mind alone, or with paper and pencil..." This test sounds as if it might make sense but runs into real problems once you bear in mind issues of computability. E.g. is it therefore patentable if although it could in principle be performed by the human mind with a paper and pencil the degree of computation required is so enormous that such a method is completely impractical. e.g. real time graphics processing. I suspect that the class of such methods is extremely large.
- lmkg 15y agoI don't see the problem with A. If you take the software, which can't be patented, and put it into hardware, you can patent the hardware. This seems perfectly reasonable to me, and it holds pretty closely to the original idea of patents: A specialized device that performs an action is an invention, but the act being performed is not an invention. I also don't think that software that emulates the hardware is not in violation of the hardware patent. I think B is a much bigger problem. Any computer program could be performed with pencil and paper, by getting a big file folder to simulate RAM, indexing it by numbers, and performing assembly instructions by hand with post-it notes as registers. I think the major exceptions are interfacing with other components, including UI systems and networking, and anything with a real-time component.
- pcc 15y ago> Any computer program could be performed with pencil and paper, by getting a big file folder to simulate RAM, indexing it by numbers, and performing assembly instructions by hand with post-it notes as registers Indeed. But surely if the purpose of the algorithm is something like "find whether this combination exists in a set of millions / billions of records within a tractable time" then it cannot possibly be done by hand in a tractable/practical way -- and it will fail this test?
- jimktrains2 15y agoIt's still just an algo. It's still just math.
- TheCapn 15y agoYes but when time-sensative information relies on speedy calculations or approach then there is inherent usefulness to the invention. A competing firm may choose to solve the issue by paper in order to avoid lawsuits for stealing the patentable invention but its impractical.
- 15y ago
- ChuckMcM 15y agoI think it is a positive step forward and may be useful for the folks who are litigating against some of the more egregious software patents. That said, I don't believe '1-click ordering' would survive this test, and if not that would be a good thing in my opinion.
- Natsu 15y agoIt's very weird to see human capability factor into it. I mean, a person very well COULD compare two images pixel by pixel, it just takes a rather long time. I'm pretty sure I have done things like that on occasion for very small images, in fact.
- skorgu 15y agoYeah, this is patently (ha) absurd. I can't think of an algorithm off the top of my head that isn't feasible to do manually for small values of n.
- wisty 15y agoThe question is, will doing them for small values of n solve the problem? Page rank may be more or less useless with a small data set.
- skorgu 15y agoIt would provide the correct result of the algorithm which should be enough. Useful is outside the scope of patents (AIUI, IANAL).
- wisty 15y agoI think whole point of patents is they are a registered solution to a problem. So I think usefulness is within their scope. But IANAL either.
- skorgu 15y agoIt's not usefulness as we know it: http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=6293874.PN.&OS=PN/6293874&RS=PN/6293874 http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sec...
- bartonfink 15y ago
- russell 15y agoIf this is upheld, I see all software patents being eventually voided. "as a practical matter" can be attacked by using induction. Do an image transformation on a 10x10 image. Do it again on 11x11. Argue that the patent is invalid by induction. Perhaps someone actually has to spend a week the first time on a large image to "prove" induction. Real time doesnt exist. It means accomplishing a task within a specified interval. If you can do a task in 1 hour and someone else can do it in 30 minutes. It seems to me that it is then possible to argue that doing the same thing in a microsecond on a computer is not patentable. Perhaps the judges will need a little focused high school math and a lesson on Turing machines.
- nitrogen 15y agoIs there any precedent for courts recognizing mathematical or logical proofs? I was under the impression that courts, by their design, rely entirely on appeals to authority in the form of expert testimony. For that matter, would it be possible to design a court system based on a fully modern understanding of logic, proof, induction, etc., rather than the seemingly ad hoc system we have now?
- gbhn 15y agoFor better or worse, courts are pretty immune to this particular form of induction. That's why you can copyright the sequential bits of a movie, but not the number "0110".