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35 USC §101: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereo

35 USC §101: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Yes, rayiner, that's pretty broad but I don't see software in the list. Maybe I copied it out wrong?

res0nat0r 13y ago
That statement includes software, not explicitly excludes it, unless I'm missing something.
- Glyptodon 13y ago
  Software is math. Math is not eligible. Should be pretty clear.
  - alaaibrahim 13y ago
    Or software could be a process, which is eligible.
    - nitrogen 13y ago
      AIUI (as a layman), a "process" should refer to a physical process for transforming a physical product. Thus, an algorithm is not a process. I've read arguments that software is a "process" because it changes the physical state of transistors and magnetic particles within a physical computer, but I don't find that argument even slightly convincing.
      - hackinthebochs 13y ago
        But software does change a physical product, irrespective of transistor states. If I create an algorithm that allows a robot to balance on two legs, that algorithm is directly affecting the real world. This is no different than if I constructed a difference engine that through purely mechanical means had the same result. The math is the algorithms effect on purely mathematical objects. The patent is the algorithm plus a mapping between the mathematical objects and real-world entities. This is how it should be. The problem we currently get wrong is the "non-obvious" term.
        nitrogen 13y ago
        Software is different because it is a direct representation of the math, while the mechanical computer would have considerable amounts of engineering involved to create mechanical analogs for the desired computations. In software, an implementation of an algorithm, a description of an algorithm, and the algorithm itself can all be the same thing.
        hackinthebochs 13y ago
        But software also has an interface to the physical units in question, which ultimately makes it useful in the real world. Mathematical truths are not useful in the real world until there is an application of a truth to a particular scenario. It is this "application + scenario" that is patented, not the mathematical truth. People are way too stuck on the "software is math" bit, it is not nearly as meaningful as people think. In fact, I think it is decidedly lacking in any meaning as everything in the universe can be abstracted to "math".
        nitrogen 13y ago
        In fact, I think it is decidedly lacking in any meaning as everything in the universe can be abstracted to "math". I think some would use that as justification to abolish all patents. I would love for that to happen, but pragmatically accept that such an outcome is unlikely, and in a world partially populated by devious thieves, trolls, and free-riders, potentially undesirable. I still think software is meaningfully different from any other embodiment of an algorithm, due to its self-descriptive nature. Most of the time when I write software, I feel much more that I am "creating" (copyright) rather than "inventing" (patent). I can just "tell" the computer to do something, and it does it. That doesn't work for wheels and gears. Inasmuch as there are better arguments against software patents, let's raise them as well, but I see no reason to abandon the mathematical argument entirely.
        hackinthebochs 13y ago
        > Most of the time when I write software, I feel much more that I am "creating" (copyright) rather than "inventing" (patent). I can just "tell" the computer to do something, and it does it. That doesn't work for wheels and gears. I think this is true for the vast majority of software, and likely for the vast majority of software people try to patent. I think you raise an interesting point regarding "telling a computer what to do" vs "inventing", and this seems like it would be a good distinction between non-patentable software and that which is patentable. There is a subset of processes that essentially involve "telling a computer what to do", and then refining those instructions until the point where the computer knows how to execute each step. Obviously, this is just a description of writing software. But this process doesn't work for all problems. There is no telling a computer to "write a symphony"--there are no standard/obvious set of refinements to that statement that will result in a working program to write a symphony. To accomplish this would require "inventing" a new algorithm (lets not go "ergo math" just yet). One would have to create a non-obvious process to govern the interactions between input sounds to create the output symphony. I don't think anyone would have a problem with saying someone "invented" a symphony writing computer program. On the other hand, the process of "one click ordering" has an obvious set of refinements from problem statement to execution such that you cannot reasonably be said to be inventing one click ordering. Of course, these are probably the two most obvious examples on either side of the debate, but I think it illustrates the fact that these decisions can be made rationally and fairly with some common sense guidelines.
    - Natsu 13y ago
      The only process performed by my CPU is the instruction loop wherein it grabs the next instruction on the list and executes it. Every other process is emulated via that single process.
  - Crito 13y ago
    To head off the inevitable responses, you can describe a Wankel engine with mathematical expressions, but a Wankel engine is not itself a mathematical expression. Blueprints are mere descriptions of Wankel engines. However a "description" of an algorithm is the algorithm. An algorithm is a mathematical expression, not merely something that can be described with mathematical expressions. Consider my "method/process patent" for finding the length of a hypotenuse. It is easy to see why that is straight up math, and therefore should not be patentable. However just because they don't teach the notation used for expressing algorithms in primary school does not mean that it is not math. The Pythagorean Theorem is ancient so it was never in any danger, but consider FFTs. FFT algorithms were not patented, but imagine what a shame it would be if they were. These type of patents have no business existing.
    - hackinthebochs 13y ago
      > FFT algorithms were not patented, but imagine what a shame it would be if they were. The only way this conclusion follows is if you're judging patentability of an idea by the impact the idea has had. This is plainly absurd. Lets consider the opposite, what if it were invented but the algorithm kept secret because patent protection didn't exist. Would humanity have been better off in that scenario? Processes like the FFT are exactly the types of software that are reasonable to patent, and yet you want to claim the opposite precisely because it was non-obvious and so important?
      - Crito 13y ago
        FFT algorithms were not patented and were not kept secret for lack of a patent. Supposing that FFTs may have been kept secret for lack of patents is absurd because we already know what happened with FFTs without patents. Even if they had been kept secret, FFTs would have been reinvented at minimal cost to society. Had IBM patented them, society would have been fucked out of them for two decades. FFT, and things like it, are exactly the sort of software that should not be patented. Patent your minimal-clicking checkout process or bouncy kinetic scrolling all you want, I don't like those patents but they are reasonable. Those ideas aren't algorithms, they only use them; if I hold the patent for kinetic scrolling in my hand, I am not holding kinetic scrolling itself in my hand. If I hold an FFT algorithm patent in my hand, I am holding an FFT algorithm itself in my hand. Patenting algorithms themselves is patently absurd. Would you be okay with the Pythagorean Theorem being patented as well? Mathematics does not currently suffer a trade-secret problem. Introducing patents would do nothing but harm to society, while enriching corporations. What else do you believe to be patentable? Should Newton and Leibniz have escalated their conflict to an all-out patent war? Calculus is non-obvious and wildly important; would society be better off if it were patented? Or hell, maybe Feynman should have patented Feynman Diagrams! If we are patenting mathematical expressions, why not throw in novel and useful notations for mathematical expressions as well! Any mathematician, physicist, or engineer will have to join the Mathematics Patents Experts Group in order to get any useful work done without being sued into homelessness, but at least all of those people won't be keeping their creations and discoveries secret, right? Edit: Response: Patents are for the benefit of society, not for the benefit of the creators. You cannot evaluate the merit of patentablity without considering the benefit to society. We are sure as shit better off in a society where anyone doing ML research doesn't have to license ideas from IBM.
lotsofmangos 13y ago
I'd have thought it is probably covered by 'process', now what I see as the problem in many software patents is that they sometimes treat software as a component in a process, leading to overly broad claims that effectively cover any attempt to solve something in software rather than drilling down into the mechanics of a particular solution. Of course, if you did force specifics, then software patents would be pretty toothless as you can always find another process that ends up with the same result. However, if the patent office and courts had decided to take that approach, they wouldn't have had such a valuable income stream to play with, and I suspect they value that over consistency of approach.
Guvante 13y ago
Algorithms are not patentable but yet software is. Since any software package describes an algorithm (albeit an incredibly complex on potentially) that puts software at an odd spot. An example of a solution would be to say that you can't go after someone for implementing an algorithm (so by extension any software). Rather than eliminating the patent eliminate that ability to enforce it. They likely wouldn't go for something so simple, but it is an example of the potential train of thought.
dctoedt 13y ago
> I don't see software in the list. Software is usually claimed as a method, commonly accepted as a synonym for the statutory term process. Some patents include claims directed to machines programmed to perform a stated method. The Federal Circuit held 20 years ago that a general-purpose that is programmed to perform a new method programming becomes a new, special-purpose computer that as such can be patented if otherwise eligible [1]. Another type of claim in a software patent is the so-called Beauregard claim. [2] That type of claim is directed to an "article of manufacture," one of the statutory categories, along the lines of the following: "15. A program storage device tangibly embodying a program of instructions for performing the method of a specified one of claims 1 through 14." That type of claim allows the patent owner to sue not just the end user for using the patented method, but also to sue the software vendor for having sold the patented article of manufacture. (For clarity, Beauregard claims to program storage devices, etc., are unpatentable if the underlying software methods are themselves unpatentable. [3].) [1] In re Alappat, http://digital-law-online.info/cases/31PQ2D1545.htm http://digital-law-online.info/cases/31PQ2D1545.htm [2] http://en.wikipedia.org/wiki/List_of_patent_claim_types#Beauregard http://en.wikipedia.org/wiki/List_of_patent_claim_types#Beau... [3] http://inventivestep.net/2011/08/22/federal-circuit-rules-beauregard-claims-are-unpatentable/ http://inventivestep.net/2011/08/22/federal-circuit-rules-be...

res0nat0r 13y ago

That statement includes software, not explicitly excludes it, unless I'm missing something.

Glyptodon 13y ago
Software is math. Math is not eligible. Should be pretty clear.
- alaaibrahim 13y ago
  Or software could be a process, which is eligible.
  - nitrogen 13y ago
    AIUI (as a layman), a "process" should refer to a physical process for transforming a physical product. Thus, an algorithm is not a process. I've read arguments that software is a "process" because it changes the physical state of transistors and magnetic particles within a physical computer, but I don't find that argument even slightly convincing.
    - hackinthebochs 13y ago
      But software does change a physical product, irrespective of transistor states. If I create an algorithm that allows a robot to balance on two legs, that algorithm is directly affecting the real world. This is no different than if I constructed a difference engine that through purely mechanical means had the same result. The math is the algorithms effect on purely mathematical objects. The patent is the algorithm plus a mapping between the mathematical objects and real-world entities. This is how it should be. The problem we currently get wrong is the "non-obvious" term.
      - nitrogen 13y ago
        Software is different because it is a direct representation of the math, while the mechanical computer would have considerable amounts of engineering involved to create mechanical analogs for the desired computations. In software, an implementation of an algorithm, a description of an algorithm, and the algorithm itself can all be the same thing.
        hackinthebochs 13y ago
        But software also has an interface to the physical units in question, which ultimately makes it useful in the real world. Mathematical truths are not useful in the real world until there is an application of a truth to a particular scenario. It is this "application + scenario" that is patented, not the mathematical truth. People are way too stuck on the "software is math" bit, it is not nearly as meaningful as people think. In fact, I think it is decidedly lacking in any meaning as everything in the universe can be abstracted to "math".
        nitrogen 13y ago
        In fact, I think it is decidedly lacking in any meaning as everything in the universe can be abstracted to "math". I think some would use that as justification to abolish all patents. I would love for that to happen, but pragmatically accept that such an outcome is unlikely, and in a world partially populated by devious thieves, trolls, and free-riders, potentially undesirable. I still think software is meaningfully different from any other embodiment of an algorithm, due to its self-descriptive nature. Most of the time when I write software, I feel much more that I am "creating" (copyright) rather than "inventing" (patent). I can just "tell" the computer to do something, and it does it. That doesn't work for wheels and gears. Inasmuch as there are better arguments against software patents, let's raise them as well, but I see no reason to abandon the mathematical argument entirely.
        hackinthebochs 13y ago
        > Most of the time when I write software, I feel much more that I am "creating" (copyright) rather than "inventing" (patent). I can just "tell" the computer to do something, and it does it. That doesn't work for wheels and gears. I think this is true for the vast majority of software, and likely for the vast majority of software people try to patent. I think you raise an interesting point regarding "telling a computer what to do" vs "inventing", and this seems like it would be a good distinction between non-patentable software and that which is patentable. There is a subset of processes that essentially involve "telling a computer what to do", and then refining those instructions until the point where the computer knows how to execute each step. Obviously, this is just a description of writing software. But this process doesn't work for all problems. There is no telling a computer to "write a symphony"--there are no standard/obvious set of refinements to that statement that will result in a working program to write a symphony. To accomplish this would require "inventing" a new algorithm (lets not go "ergo math" just yet). One would have to create a non-obvious process to govern the interactions between input sounds to create the output symphony. I don't think anyone would have a problem with saying someone "invented" a symphony writing computer program. On the other hand, the process of "one click ordering" has an obvious set of refinements from problem statement to execution such that you cannot reasonably be said to be inventing one click ordering. Of course, these are probably the two most obvious examples on either side of the debate, but I think it illustrates the fact that these decisions can be made rationally and fairly with some common sense guidelines.
  - Natsu 13y ago
    The only process performed by my CPU is the instruction loop wherein it grabs the next instruction on the list and executes it. Every other process is emulated via that single process.
- Crito 13y ago
  To head off the inevitable responses, you can describe a Wankel engine with mathematical expressions, but a Wankel engine is not itself a mathematical expression. Blueprints are mere descriptions of Wankel engines. However a "description" of an algorithm is the algorithm. An algorithm is a mathematical expression, not merely something that can be described with mathematical expressions. Consider my "method/process patent" for finding the length of a hypotenuse. It is easy to see why that is straight up math, and therefore should not be patentable. However just because they don't teach the notation used for expressing algorithms in primary school does not mean that it is not math. The Pythagorean Theorem is ancient so it was never in any danger, but consider FFTs. FFT algorithms were not patented, but imagine what a shame it would be if they were. These type of patents have no business existing.
  - hackinthebochs 13y ago
    > FFT algorithms were not patented, but imagine what a shame it would be if they were. The only way this conclusion follows is if you're judging patentability of an idea by the impact the idea has had. This is plainly absurd. Lets consider the opposite, what if it were invented but the algorithm kept secret because patent protection didn't exist. Would humanity have been better off in that scenario? Processes like the FFT are exactly the types of software that are reasonable to patent, and yet you want to claim the opposite precisely because it was non-obvious and so important?
    - Crito 13y ago
      FFT algorithms were not patented and were not kept secret for lack of a patent. Supposing that FFTs may have been kept secret for lack of patents is absurd because we already know what happened with FFTs without patents. Even if they had been kept secret, FFTs would have been reinvented at minimal cost to society. Had IBM patented them, society would have been fucked out of them for two decades. FFT, and things like it, are exactly the sort of software that should not be patented. Patent your minimal-clicking checkout process or bouncy kinetic scrolling all you want, I don't like those patents but they are reasonable. Those ideas aren't algorithms, they only use them; if I hold the patent for kinetic scrolling in my hand, I am not holding kinetic scrolling itself in my hand. If I hold an FFT algorithm patent in my hand, I am holding an FFT algorithm itself in my hand. Patenting algorithms themselves is patently absurd. Would you be okay with the Pythagorean Theorem being patented as well? Mathematics does not currently suffer a trade-secret problem. Introducing patents would do nothing but harm to society, while enriching corporations. What else do you believe to be patentable? Should Newton and Leibniz have escalated their conflict to an all-out patent war? Calculus is non-obvious and wildly important; would society be better off if it were patented? Or hell, maybe Feynman should have patented Feynman Diagrams! If we are patenting mathematical expressions, why not throw in novel and useful notations for mathematical expressions as well! Any mathematician, physicist, or engineer will have to join the Mathematics Patents Experts Group in order to get any useful work done without being sued into homelessness, but at least all of those people won't be keeping their creations and discoveries secret, right? Edit: Response: Patents are for the benefit of society, not for the benefit of the creators. You cannot evaluate the merit of patentablity without considering the benefit to society. We are sure as shit better off in a society where anyone doing ML research doesn't have to license ideas from IBM.

lotsofmangos 13y ago

I'd have thought it is probably covered by 'process', now what I see as the problem in many software patents is that they sometimes treat software as a component in a process, leading to overly broad claims that effectively cover any attempt to solve something in software rather than drilling down into the mechanics of a particular solution. Of course, if you did force specifics, then software patents would be pretty toothless as you can always find another process that ends up with the same result. However, if the patent office and courts had decided to take that approach, they wouldn't have had such a valuable income stream to play with, and I suspect they value that over consistency of approach.

Guvante 13y ago

Algorithms are not patentable but yet software is. Since any software package describes an algorithm (albeit an incredibly complex on potentially) that puts software at an odd spot. An example of a solution would be to say that you can't go after someone for implementing an algorithm (so by extension any software). Rather than eliminating the patent eliminate that ability to enforce it. They likely wouldn't go for something so simple, but it is an example of the potential train of thought.

dctoedt 13y ago

> I don't see software in the list. Software is usually claimed as a method, commonly accepted as a synonym for the statutory term process. Some patents include claims directed to machines programmed to perform a stated method. The Federal Circuit held 20 years ago that a general-purpose that is programmed to perform a new method programming becomes a new, special-purpose computer that as such can be patented if otherwise eligible [1]. Another type of claim in a software patent is the so-called Beauregard claim. [2] That type of claim is directed to an "article of manufacture," one of the statutory categories, along the lines of the following: "15. A program storage device tangibly embodying a program of instructions for performing the method of a specified one of claims 1 through 14." That type of claim allows the patent owner to sue not just the end user for using the patented method, but also to sue the software vendor for having sold the patented article of manufacture. (For clarity, Beauregard claims to program storage devices, etc., are unpatentable if the underlying software methods are themselves unpatentable. [3].) [1] In re Alappat, http://digital-law-online.info/cases/31PQ2D1545.htm http://digital-law-online.info/cases/31PQ2D1545.htm [2] http://en.wikipedia.org/wiki/List_of_patent_claim_types#Beauregard http://en.wikipedia.org/wiki/List_of_patent_claim_types#Beau... [3] http://inventivestep.net/2011/08/22/federal-circuit-rules-beauregard-claims-are-unpatentable/ http://inventivestep.net/2011/08/22/federal-circuit-rules-be...