07.27.10

Microsoft Admits a Software Patent is Just Like Maths

Posted in America, Europe, Microsoft, Patents at 4:04 am by Dr. Roy Schestowitz

Summary: A bunch of news about patents, including an invaluable admission from one Microsoft attorney that mathematics ought not to be patentable

SOFTWARE patents are an abominable thing, unless one is a patent lawyer or a software monopoly in one area or another. In the industry, the argument over software patents is a class war, it’s not an argument between Free software and proprietary software. Ghabuntu wrote about New Zealand's situation when it comes to software patents over there. Separately, the site’s main editor said: “I am no legal expert nor an attorney, but what bugs my mind is how the future is going to be like given how governments keep doling out patents like biscuits to mega corporations.”

Africans have a lot of reasons to dislike patents and not a single one to like them (unless the speaker or false representative happens to be working for a multinational company). More patents were granted in 2009 than in prior years, according to Legal Times. This just means more monopolies, not increased innovation.

The number of utility patents granted by the U.S. Patent & Trademark Office increased in 2009 after a two-year decline.

[...]

IBM Corp. received the most utility patents last year, with 4,887, followed by Samsung Electronics Co. (3,592); Microsoft Corp. (2,929); Canon K.K. (2,241) and Hitachi Ltd. (2,146).

Groklaw has found this article from NewsWeek — an article that talks about American creativity and the impact artificial limitations have had on it:

For the first time, research shows that American creativity is declining. What went wrong—and how we can fix it.

[...]

In the 50 years since Schwarzrock and the others took their tests, scholars—first led by Torrance, now his colleague, Garnet Millar—have been tracking the children, recording every patent earned, every business founded, every research paper published, and every grant awarded. They tallied the books, dances, radio shows, art exhibitions, software programs, advertising campaigns, hardware innovations, music compositions, public policies (written or implemented), leadership positions, invited lectures, and buildings designed.

[...]

Enriched environments are making kids smarter. With creativity, a reverse trend has just been identified and is being reported for the first time here: American creativity scores are falling. Kyung Hee Kim at the College of William & Mary discovered this in May, after analyzing almost 300,000 Torrance scores of children and adults. Kim found creativity scores had been steadily rising, just like IQ scores, until 1990. Since then, creativity scores have consistently inched downward. “It’s very clear, and the decrease is very significant,” Kim says. It is the scores of younger children in America—from kindergarten through sixth grade—for whom the decline is “most serious.”

“Without discounting the theories about education in the article,” explained Pamela Jones from Groklaw, “I wonder if anyone is thinking about the effects of IP law on US students’ creativity? They can’t watch a movie, after all, without being warned that the FBI will find them and punish them if they do anything at all with the movie’s contents. A lot of truly creative YouTube mashed up videos were killed by Hollywood too. It sends a message to young people that they are not allowed to be creative; only a certain “priesthood”, so to speak in Hollywood are allowed to be. Creativity builds on what went before, but now there are high gates and locks to prevent it from happening.”

There are lessons to be learned here about the patent system too. How can a software developer find encouragement and peace of mind? The developer is surrounded by hundreds of thousands of software patents that he or she does not even know about.

There ought to be examples other than software where patents do more harm than good. Groklaw gave one example from Europe:

At the European Patent Office in Munich, there are some tasty patents on the table for debate. The office’s appeals board is debating whether patents on broccoli and tomatoes can be allowed.

There is also this example:

In the wake of the Supreme Court ruling in Bilski v. Kappos, Mayo has petitioned the Court of Appeals for the Federal Circuit to sit en banc to re-hear its statutory subject matter challenge to the Prometheus patents. (U.S. Patents 6,355,623 and 6,680,302).

The Prometheus Claims are directed toward an iterative approach of dosing an active drug ingredient (6-thioguanine). Most of the claims are centered around three ordered-steps of:

1. administering a dose of the drug to the subject;
2. determining the amount of the drug in the subject’s blood; and
3. re-calibrating the drug dosage.

Jones explains (in News Picks, thus no permanent link):

This is the case about administering a drug, taking a blood test, then recalibrating. Or as the petition puts it, the patents “attempt to exclude the medical community from using test results of naturally-occurring human metabolism, making physicians and medical researchers infringers simply for thinking about the correlations between patient health and levels of certain chemicals in a patient’s blood.” And you thought software patents were stupidly damaging. This patent, the petition tells us, can be infringed simply by thinking. And how, pray tell, do you enforce your patent? Believe it or not, they sued a researcher at the Mayo Clinic even though she “was not concerned about Prometheus’ claimed levels. Because she had seen those levels and not erased her mind, however, Prometheus accused her of infringement without her having to do anything with her natural and unavoidable mental recognition.”

But that’s silly, I hear you saying. That can’t be right, can it? The expert for the patent holder testified that merely seeing a document with test results infringes even if a doctor “crumples it up, throws it away, reads it, acts on it, doesn’t act on it, any assumptions you want to come up with.” The lower court had said the patents were not valid because they preempted all use of a natural phenomenon, but the court of appeals had reversed. When the US Supreme Court ruled on Bilski, immediately thereafter it vacated Prometheus and remanded.

Separately, Groklaw helps show that Microsoft too is dissatisfied with software patents, which it compares to maths. Here is the source of information:

While there are at least eight (8) cases before the Federal Circuit that could be the court’s first word on patentable subject matter after the Supreme Court’s Bilski v. Kappos opinion, my prediction is that the first decision to provide additional guidance for computer software will be Research Corp. Tech (RCT) v. Microsoft. Furthermore, I predict that the court will expand/clarify the scope of patentable subject matter to clearly include subject matter that has no realistic application outside of the computer art. There are several reasons for these predictions.

Jones is again offering a long interpretation where she says:

If you read the 2008 decision [PDF] by the court of appeals, which sent the case back to a new judge, which is how it ends up back before them, you’ll be puzzled, in that the description of the patent is that it’s algorithms, math. In fact in oral argument, which you can get from this page, choose oral argument, then oral argument recordings from the drop down list, then type in Microsoft in the case name block and 2010-06-09 as the date, you’ll get to the mp3 and can hear Microsoft’s attorney pointing out that the patent is just math. He makes a distinction between software and math, which I consider illusory, but when he tells the panel that the patent is math, one of them say, yes, but it doesn’t preempt it. Then Microsoft’s attorney says, but when you remove the math, there’s nothing left. Assuming that is so, how could this case possibly be used to broaden Bilski? Rather, it would seem to directly contradict it, should that happen.

The author seems to think that if it’s math, it’s not abstract. But if you read Bilski, beginning on p. 18, I don’t see how anyone can take the view that algorithms are patentable in and of themselves, so if this is nothing but, what in the world would it mean to allow it to be patentable? In short, I hope either the description or this prediction is wrong about the outcome, but if it’s correct, I hope Microsoft appeals, and oddly enough, if they do, I’ll be rooting for them.

This is not the first time that we see Microsoft playing down software patents either by comparing them to mathematics or by saying that there needs to be a physical device to make software actually patentable. █

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