What exactly is an abstract idea? Is it possible for an idea to be concrete?
From looking at examples, "abstract" seems to mean trivial. By trivial, I don't mean obvious or silly, I mean small; i.e. an idea that can be reduced to one or two sentences, like "e-commerce shopping cart."
Otherwise it's pretty hard to distinguish ideas about software from ideas about hardware and explain why one is more patentable than the other.
An abstract idea isn't physical. You can patent a machine, or a drug. You can't patent a method for dividing two numbers. However, a machine for dividing two numbers—assuming it's novel, not obvious, etc.—is fair game.
Ok, but what's actually protected is the idea behind the machine, right? A different machine that employed the patented idea would infringe the patent.
Maybe what is meant by "abstract idea" is really "an idea in the abstract," i.e. an idea that is not used to make a machine can't be patented; it's the employment of the idea that is patentable.
You're getting confused by the word "idea." You patent a machine, not an idea. If you insist on saying that you patent the "idea" for a machine, then what you can't patent is an "idea about an idea." Ideas about machines are good. Ideas about ideas are no good. Make sense?
I think I understand patents as well as any average non-lawyer. What I'm trying to do is make sense of the language used to describe patents. It's clear that people can't agree on what they are, because the Supreme Court keeps needing to step in and refine the definition. The language seems not to make sense, which would help to explain why people can't agree on what they are.
Ok, you patent a machine. But that statement is vague and ambiguous at best. If I patent a machine that I built, then how could the patent apply to a different machine that I didn't build? Yet, that's the whole point: they apply to classes of machines, including machines that haven't even been built at the time that the patent is granted. The class would seem to be inherently something abstract.
Correct, ideas are abstract. Mathematics (including computer science) is abstract. If you invent a new math, or a new piece of software, it is abstract and thus non patentable.
If you invent a new piece of hardware, it's concrete. The ideas embodied are abstract. If you came up with hardware that works differently in a concrete way (e.g. you figured out how to use carbon in place of silicon, opening the door to entirely new categories of manufacturing) then it would be potentially patentable. Your methods would be concrete methods involving substances which are not abstract.
I would argue (playing devil's advocate in favor of software patents) that a new /piece of/ software is decidedly not abstract, it is concrete and it has an abstract part that is (in the US today) patentable.
What's not patentable is "old idea, now on a computer for the first time" -- covering any implementation of "old idea" that nobody thought to put on a computer before, "but on a computer." That's clearly abstract. It's not an implementation. There are no implementation-specific details to put in the patent as claims (they would have to stand up to the obviousness test either individually or as a group). With nothing new except "on a computer" or "on a mobile device" it's not novel or specific and therefore not patentable.
I'm actually not going to argue the point "now if you HAD a specific implementation" because I'm not sure I actually believe in patents (or more specifically software patents) at all, but I do believe that even without a patent: if you have some source code that your competition doesn't, and you made it... and they acquire it somehow without getting a license, there are already copyright laws that protect you (so long as you can establish your own original ownership of that work) if they should decide to rip it off wholesale.
Comments
What exactly is an abstract idea? Is it possible for an idea to be concrete?
From looking at examples, "abstract" seems to mean trivial. By trivial, I don't mean obvious or silly, I mean small; i.e. an idea that can be reduced to one or two sentences, like "e-commerce shopping cart."
Otherwise it's pretty hard to distinguish ideas about software from ideas about hardware and explain why one is more patentable than the other.
An abstract idea isn't physical. You can patent a machine, or a drug. You can't patent a method for dividing two numbers. However, a machine for dividing two numbers—assuming it's novel, not obvious, etc.—is fair game.
Ok, but what's actually protected is the idea behind the machine, right? A different machine that employed the patented idea would infringe the patent.
Maybe what is meant by "abstract idea" is really "an idea in the abstract," i.e. an idea that is not used to make a machine can't be patented; it's the employment of the idea that is patentable.
You're getting confused by the word "idea." You patent a machine, not an idea. If you insist on saying that you patent the "idea" for a machine, then what you can't patent is an "idea about an idea." Ideas about machines are good. Ideas about ideas are no good. Make sense?
I think I understand patents as well as any average non-lawyer. What I'm trying to do is make sense of the language used to describe patents. It's clear that people can't agree on what they are, because the Supreme Court keeps needing to step in and refine the definition. The language seems not to make sense, which would help to explain why people can't agree on what they are.
Ok, you patent a machine. But that statement is vague and ambiguous at best. If I patent a machine that I built, then how could the patent apply to a different machine that I didn't build? Yet, that's the whole point: they apply to classes of machines, including machines that haven't even been built at the time that the patent is granted. The class would seem to be inherently something abstract.
Correct, ideas are abstract. Mathematics (including computer science) is abstract. If you invent a new math, or a new piece of software, it is abstract and thus non patentable.
If you invent a new piece of hardware, it's concrete. The ideas embodied are abstract. If you came up with hardware that works differently in a concrete way (e.g. you figured out how to use carbon in place of silicon, opening the door to entirely new categories of manufacturing) then it would be potentially patentable. Your methods would be concrete methods involving substances which are not abstract.
HTH
I would argue (playing devil's advocate in favor of software patents) that a new /piece of/ software is decidedly not abstract, it is concrete and it has an abstract part that is (in the US today) patentable.
What's not patentable is "old idea, now on a computer for the first time" -- covering any implementation of "old idea" that nobody thought to put on a computer before, "but on a computer." That's clearly abstract. It's not an implementation. There are no implementation-specific details to put in the patent as claims (they would have to stand up to the obviousness test either individually or as a group). With nothing new except "on a computer" or "on a mobile device" it's not novel or specific and therefore not patentable.
I'm actually not going to argue the point "now if you HAD a specific implementation" because I'm not sure I actually believe in patents (or more specifically software patents) at all, but I do believe that even without a patent: if you have some source code that your competition doesn't, and you made it... and they acquire it somehow without getting a license, there are already copyright laws that protect you (so long as you can establish your own original ownership of that work) if they should decide to rip it off wholesale.