The author misses the gist of the Supreme Court's opinion in CLS Bank v. Alice:
In Thursday's ruling, the court rejected a patent that claimed the concept of using a computer to hedge against "counterparty risk" — the risk of making a bargain and then having the other guy not pay up. The Supreme Court complained that in the process described in the patent, "each step does no more than require a generic computer to perform generic computer functions." Such a generic patent, the court said, isn't eligible for patent protection. The problem is that this criticism can be leveled at literally any software patent. At root, software is nothing more than a sequence of mathematical operations.
The Supreme Court in Alice came to two conclusions:
1) The concept of intermediated settlement is a "fundamental economic practice" and is so ineligible for patent protection under the judicially-created exception Section 101 for "abstract ideas."
2) The "method" and "system" claims in Alice Corp.'s patent amounted to nothing more than describing how to implement intermediated settlement on a generic computer in a generic way, and did not render the otherwise unpatentable abstract idea patentable.
The purpose of (2) is to foreclose on clever drafting that tries to get around the "abstract idea" limitation by framing it in terms of a specific implementation on a computer. What Alice says is that implementing the idea in a generic computer doesn't turn an abstract idea into a concrete implementation. It does not say that an otherwise patentable idea is rendered unpatentable because the patent describes how to implement the idea in a generic computer.
I see that it's a vox.com article. I'm betting it's a Timothy B Lee article.
* checks *
Yep, Timothy B Lee. He's the Rush Limbaugh of Hacker News, telling us exactly what we want to hear, and the incredibly bad things that are possible, where "possible" means "doesn't defy the laws of physics."
"The change represents a fundamental shift in power in the Internet economy that threatens to undermine the competitive market structure that have served Internet users so well for the past two decades"
"But then, in the 1990s, a patent-friendly appeals court handed down a series of decisions that opened the door to patents on software. That triggered a wave of patenting that has drowned the technology industry in litigation."
"If Ortiz thought Swartz only deserved to spend 6 months in jail, why did she charge him with crimes carrying a maximum penalty of 50 years? It’s a common way of gaining leverage during plea bargaining. Had Swartz chosen to plead not guilty, the offer of six months in jail would have evaporated. Upon conviction, prosecutors likely would have sought the maximum penalty available under the law. And while the judge would have been unlikely to sentence him to the full 50 years, it’s not hard to imagine him being sentenced to 10 years."
I get that all these things resonate deeply with hackers. But Rush Limbaugh's broadcasts resonate deeply with his audience, too.
I get that all these things resonate deeply with hackers. But Rush Limbaugh's broadcasts resonate deeply with his audience, too.
I don't see how you should be casting stones considering the rhetorical device you're employing right here.
He's super libertarian, for sure, and he writes about technology policy, so what did you expect? There is still legitimate content here, these are not techcrunch articles, and dismissing it like this is just weak.
I don't know what you mean by "legitimate content," but saying things like "prosecutors would have sought the maximum penalty (of 50 years)" is just wholly inaccurate. If you said that on HN during the daylight hours, eventually an adult would come around and correct you.
It's not merely "unlikely" that Swartz was going to get 50 years. It was impossible. He could have plead not guilty, and then taken the stand, answered every question with "LAWRENCE LESSIG SAID I AM SPECIAL, SO I AM ALLOWED TO GO WHEREVER I WANT" and he still would not have gotten even half that penalty. "It's not hard to imagine Swartz getting 10 years" says more about the speaker's imagination than any real reading of sentencing guidelines.
It's like an average-quality HN commenter got a journalism job and didn't bother actually learning things that disagree with his worldview. Saying "Swartz was facing 50 years!" sure gets the blood flowing, doesn't it?
Apparently our industry is "drowning" in legislation. Given the tremendous rise in power and salary for all players, I bet other industries wish they were "drowning" the same way we are.
OK, but the same logic can invalidate almost any software patent. Apple's "data detectors" patent, for example, claims the concept of detecting data in a document (an abstract idea, it seems to me) plus a generic description of the steps someone would have to take to implement this on a computer. A data compression patent would cover some mathematical principle (replace frequently-repeated sequences with a shorter representation) with some details about what steps you need to do to implement the idea. I think the court's reasoning could be plausibly read as invalidating all software patents.
The key phrase in your comment is: "an abstract idea, it seems to me." The phrase "abstract idea" is, in this context, a legal term of art. It means what the Supreme Court wants it to mean.
If you look at CLS Bank v. Alice, the Court concludes that intermediated settlement is an abstract idea because it is "a fundamental economic principle." So to use your example, data compression (replacing frequently-repeated sequences with a shorter representation) might be a "fundamental computer science principle." But Lempel-Ziv-Welch, a specific compression algorithm, wouldn't be.
So now the court has to decided about how complex said algo is and weather or not it is simple enough to not deserve a patent.
Basic Lossless compression can function like this:
Imagine a string of 1's and 0's e.g. 10010000011000101111001
This string can be trivially compressed in a losses manor using this algo, every time the bit changes to a one or zeor, record the previous run of bits. So we would compress this string to look like:
[1,1][0,2][1,1][0,5][1,2][0,3][1,1][0,1][1,4][0,2][1,1]
I understand now this is a terrible example however it is good enough here.
So since most/all compression algos are just using a pre-defined set of choices on how to compress data in either a lossless or lossy manor. The only difference between two compression algos would be their rules for what data to keep and how to arrange it more efficiently into a different data structure.
I think the analogy of board games can be used here. While you are free to get a trade mark on many aspects of your game, you can not patent the actual rules or game play. http://www.copyright.gov/fls/fl108.html
The rules and game play is what makes Risk different from mouse-trap.
Replace rules with compression algo (or any software algo...) and we come to the conclusion of software is not patentable.
So at what point does a collection of fundamental computer science concepts become patentable?
The line is completely arbitrary using the compressions algo example. I honestly have not been able to reason through a real life example that hold up to this scrutiny.
Maybe I am misinterpreting your answer, so if I am, I apologize, just ignore me =D
EDIT
Thanks to person for the discussion free down vote. Why engage when you can suppress.
At what point do you go from fundamental electronic gates to a Snapdragon CPU? The line drawing involved isn't unique to software. But life is full of line drawing.
There's a good argument to be made that the cost of the line drawing exceeds the benefits. I don't think it does, generally, but maybe it does for software. That said, I think you should make some money if you invent LZW. I don't like the idea of an economy where you can't make money off R&D unless you package it into a product with lots of advertising and sales people. I don't think that creates the best incentives.
Snapdragon is a flawed example. No one person or organization goes from gates to a Snapdragon CPU. It took a large community many decades to do that. But that's a side point.
I think the second example provides a great illustration of the divide between software patent proponents and detractors. Some people think a thing like LZW should be patentable, because they imagine inventing something on that scale of ingenuity and want to be able to make money off of it. Other people, in the scope of a larger project, usually, come up with things on the scale of ingenuity of LZW compression and are exasperated to discover that someone else patented it a few years prior and wants prohibitively large licensing fees, rendering the technology unusable; they don't think such things should be patentable because from their perspective it reduces innovation.
Sorry but I think your premise is flawed here. You can patent rules for board games (http://www.ipwatchdog.com/2011/12/22/patenting-board-games-1...) afterall they're just processes. It's copyright (which you linked to) which precludes getting protection over game rules.
I think you've confused copyrights and patents; the document you linked to is from the U.S. Copyright Office and refers to the copyrightability of game rules (not their patentability).
I've often heard the claim that game rules are uncopyrightable but that they might possibly be patentable.
I think this description describes an actual "invention" of RLE (although personally I'd still shoot it down on grounds of obviousness). But the average software patent would be written the exact same way and then claim to own "lossless data compression" which is ridiculous. I'm not a lawyer but I'm optimistically reading this as the Supreme Court seeing exactly this distinction and doing the right thing.
It sounds like you're saying that Alice is really about invalidating what Mark Lemley calls functional claiming: attempting to claim components by their function rather than by their structure. I read parts of the Alice opinion, and it seemed like that might be what the justices were getting at, but I didn't see the point made as clearly as I would have liked.
Despite your assurances, I am uncomfortable with this decision. Indeed, I am uncomfortable with Gottschalk v. Benson. I don't think a bright line exists between patent-eligible software and ineligible algorithms -- in this I agree with the Vox article. I would much rather have seen a decision that invalidated this patent on the grounds that taking an existing manual process and computerizing it is, by itself, obvious.
Comments
The author misses the gist of the Supreme Court's opinion in CLS Bank v. Alice:
The Supreme Court in Alice came to two conclusions:
1) The concept of intermediated settlement is a "fundamental economic practice" and is so ineligible for patent protection under the judicially-created exception Section 101 for "abstract ideas."
2) The "method" and "system" claims in Alice Corp.'s patent amounted to nothing more than describing how to implement intermediated settlement on a generic computer in a generic way, and did not render the otherwise unpatentable abstract idea patentable.
The purpose of (2) is to foreclose on clever drafting that tries to get around the "abstract idea" limitation by framing it in terms of a specific implementation on a computer. What Alice says is that implementing the idea in a generic computer doesn't turn an abstract idea into a concrete implementation. It does not say that an otherwise patentable idea is rendered unpatentable because the patent describes how to implement the idea in a generic computer.
I see that it's a vox.com article. I'm betting it's a Timothy B Lee article.
* checks *
Yep, Timothy B Lee. He's the Rush Limbaugh of Hacker News, telling us exactly what we want to hear, and the incredibly bad things that are possible, where "possible" means "doesn't defy the laws of physics."
I hadn't thought about TBL that way before. Do you have other examples to help make that point? I'm curious...
Note that this Tim B Lee is NOT Tim Berners-Lee of invention of the web (HTTP) fame.
http://www.washingtonpost.com/blogs/the-switch/wp/2014/02/23...
"The change represents a fundamental shift in power in the Internet economy that threatens to undermine the competitive market structure that have served Internet users so well for the past two decades"
http://www.washingtonpost.com/blogs/the-switch/wp/2013/12/06...
"But then, in the 1990s, a patent-friendly appeals court handed down a series of decisions that opened the door to patents on software. That triggered a wave of patenting that has drowned the technology industry in litigation."
http://www.forbes.com/sites/timothylee/2013/01/17/aaron-swar...
"If Ortiz thought Swartz only deserved to spend 6 months in jail, why did she charge him with crimes carrying a maximum penalty of 50 years? It’s a common way of gaining leverage during plea bargaining. Had Swartz chosen to plead not guilty, the offer of six months in jail would have evaporated. Upon conviction, prosecutors likely would have sought the maximum penalty available under the law. And while the judge would have been unlikely to sentence him to the full 50 years, it’s not hard to imagine him being sentenced to 10 years."
I get that all these things resonate deeply with hackers. But Rush Limbaugh's broadcasts resonate deeply with his audience, too.
I don't see how you should be casting stones considering the rhetorical device you're employing right here.
He's super libertarian, for sure, and he writes about technology policy, so what did you expect? There is still legitimate content here, these are not techcrunch articles, and dismissing it like this is just weak.
I don't know what you mean by "legitimate content," but saying things like "prosecutors would have sought the maximum penalty (of 50 years)" is just wholly inaccurate. If you said that on HN during the daylight hours, eventually an adult would come around and correct you.
It's not merely "unlikely" that Swartz was going to get 50 years. It was impossible. He could have plead not guilty, and then taken the stand, answered every question with "LAWRENCE LESSIG SAID I AM SPECIAL, SO I AM ALLOWED TO GO WHEREVER I WANT" and he still would not have gotten even half that penalty. "It's not hard to imagine Swartz getting 10 years" says more about the speaker's imagination than any real reading of sentencing guidelines.
It's like an average-quality HN commenter got a journalism job and didn't bother actually learning things that disagree with his worldview. Saying "Swartz was facing 50 years!" sure gets the blood flowing, doesn't it?
Apparently our industry is "drowning" in legislation. Given the tremendous rise in power and salary for all players, I bet other industries wish they were "drowning" the same way we are.
Since he's already here, maybe I could solicit a comment from him to an older post of mine regarding another of his articles: https://news.ycombinator.com/item?id=7849386
OK, but the same logic can invalidate almost any software patent. Apple's "data detectors" patent, for example, claims the concept of detecting data in a document (an abstract idea, it seems to me) plus a generic description of the steps someone would have to take to implement this on a computer. A data compression patent would cover some mathematical principle (replace frequently-repeated sequences with a shorter representation) with some details about what steps you need to do to implement the idea. I think the court's reasoning could be plausibly read as invalidating all software patents.
The key phrase in your comment is: "an abstract idea, it seems to me." The phrase "abstract idea" is, in this context, a legal term of art. It means what the Supreme Court wants it to mean.
If you look at CLS Bank v. Alice, the Court concludes that intermediated settlement is an abstract idea because it is "a fundamental economic principle." So to use your example, data compression (replacing frequently-repeated sequences with a shorter representation) might be a "fundamental computer science principle." But Lempel-Ziv-Welch, a specific compression algorithm, wouldn't be.
So now the court has to decided about how complex said algo is and weather or not it is simple enough to not deserve a patent.
Basic Lossless compression can function like this:
Imagine a string of 1's and 0's e.g. 10010000011000101111001
This string can be trivially compressed in a losses manor using this algo, every time the bit changes to a one or zeor, record the previous run of bits. So we would compress this string to look like: [1,1][0,2][1,1][0,5][1,2][0,3][1,1][0,1][1,4][0,2][1,1]
I understand now this is a terrible example however it is good enough here.
So since most/all compression algos are just using a pre-defined set of choices on how to compress data in either a lossless or lossy manor. The only difference between two compression algos would be their rules for what data to keep and how to arrange it more efficiently into a different data structure.
I think the analogy of board games can be used here. While you are free to get a trade mark on many aspects of your game, you can not patent the actual rules or game play. http://www.copyright.gov/fls/fl108.html
The rules and game play is what makes Risk different from mouse-trap.
Replace rules with compression algo (or any software algo...) and we come to the conclusion of software is not patentable.
So at what point does a collection of fundamental computer science concepts become patentable?
The line is completely arbitrary using the compressions algo example. I honestly have not been able to reason through a real life example that hold up to this scrutiny.
Maybe I am misinterpreting your answer, so if I am, I apologize, just ignore me =D
EDIT
Thanks to person for the discussion free down vote. Why engage when you can suppress.
At what point do you go from fundamental electronic gates to a Snapdragon CPU? The line drawing involved isn't unique to software. But life is full of line drawing.
There's a good argument to be made that the cost of the line drawing exceeds the benefits. I don't think it does, generally, but maybe it does for software. That said, I think you should make some money if you invent LZW. I don't like the idea of an economy where you can't make money off R&D unless you package it into a product with lots of advertising and sales people. I don't think that creates the best incentives.
Snapdragon is a flawed example. No one person or organization goes from gates to a Snapdragon CPU. It took a large community many decades to do that. But that's a side point.
I think the second example provides a great illustration of the divide between software patent proponents and detractors. Some people think a thing like LZW should be patentable, because they imagine inventing something on that scale of ingenuity and want to be able to make money off of it. Other people, in the scope of a larger project, usually, come up with things on the scale of ingenuity of LZW compression and are exasperated to discover that someone else patented it a few years prior and wants prohibitively large licensing fees, rendering the technology unusable; they don't think such things should be patentable because from their perspective it reduces innovation.
Sorry but I think your premise is flawed here. You can patent rules for board games (http://www.ipwatchdog.com/2011/12/22/patenting-board-games-1...) afterall they're just processes. It's copyright (which you linked to) which precludes getting protection over game rules.
I think you've confused copyrights and patents; the document you linked to is from the U.S. Copyright Office and refers to the copyrightability of game rules (not their patentability).
I've often heard the claim that game rules are uncopyrightable but that they might possibly be patentable.
I think this description describes an actual "invention" of RLE (although personally I'd still shoot it down on grounds of obviousness). But the average software patent would be written the exact same way and then claim to own "lossless data compression" which is ridiculous. I'm not a lawyer but I'm optimistically reading this as the Supreme Court seeing exactly this distinction and doing the right thing.
It sounds like you're saying that Alice is really about invalidating what Mark Lemley calls functional claiming: attempting to claim components by their function rather than by their structure. I read parts of the Alice opinion, and it seemed like that might be what the justices were getting at, but I didn't see the point made as clearly as I would have liked.
Despite your assurances, I am uncomfortable with this decision. Indeed, I am uncomfortable with Gottschalk v. Benson. I don't think a bright line exists between patent-eligible software and ineligible algorithms -- in this I agree with the Vox article. I would much rather have seen a decision that invalidated this patent on the grounds that taking an existing manual process and computerizing it is, by itself, obvious.