Thursday, August 11, 2005

IEEE ARTICLE PROPOSES BENSON APPROACH TO DEALING WITH SOFTWARE PATENTS: In this article published in IEEE Spectrum, Ben Klemens calls out for the abolition of software patents, due to the fact that software is inherently intermingled with abstract mathematics, and as such, should not be patentable. The arguments made by Mr. Klemens are particularly relevant to the debate currently going on in Europe, regarding the "technical effect" requirement for software, and the current inability to define it in the Europe.

According to the article, In 1936, Alan Turing described a theoretical computer that is effectively equivalent to every computer in existence today. His design included an infinitely long tape and read/write head, which did different things depending on the data on the tape and the machine's state. Because different states cause the machine to do different things, his contraption is often called a state machine.

Around the same time, Alonzo Church proved that that stuff is mathematics. Church created lambda calculus, a formal means of writing mathematical expressions and also a tool that can be used to program a state machine. That is, any program written in a language such as C is a trivial translation of a set of purely mathematical lambda-calculus expressions.

Taking the two together, the article concludes that state machines—physical objects such as computers—should be patentable, while the states to which they are set—information such as programs and data—should remain unpatentable. By using this distinction, the article posits that pure mathematics would be properly excluded from patent protection, while inventors who design faster and better computing devices receive patents on their inventions.

I disagree with this approach for a number of reasons. First of all, this was the approach taken by the Supreme Court in Benson back in 1972, where the court rejected the applicant's arguments that specific software loaded into a general purpose computer effectively made it a "new" machine, and thus should be patentable. An important basis for the court's decision was that mathematical processes embodied in software was “the basic tools of scientific and technological work,” and allowing such patents would destroy innovation.

While this is undoubtedly a correct statement in principle, there is a difference between the circumstance of baldly claiming a mathematical process as opposed to claiming a process that is partly based on a mathematical or physical process. In fact this distinction was repeatedly revisited by the courts since Benson (and yes, scientists and engineers were very intimately involved with the caselaw development), where it was ultimately determined that this approach would not work.

Devices that work by way of digital electronics are not excluded from the patent system simply because their mechanism of operation can be represented by mathematical formulae. The output of an electronic device or circuit may be approximated to any required degree as a mathematical function of its current state and its inputs; some devices, such as the transistor, embody remarkably elementary mathematical functions. As Judge Newman stated in her concurring opinion in Alappat:

Digital electronic devices implement mathematical manipulations of electronic signals, as chemical structures and reactions implement principles of molecular behavior. An apparatus that is configured to perform specific electronic procedures in accordance with instructions that require numerical measurements and mathematical calculations is no less statutory than any other combination of steps and components. A combination of mechanical or chemical components, structured to operate in accordance with the principles of mechanics or chemistry, does not become nonstatutory because those interactions and reactions follow basic scientific principles. Mathematics is not a monster to be struck down or out of the patent system, but simply another resource whereby technological advance is achieved.

[O]ne must have a powerful reason to exclude technology from the scope of Title 35. Indeed, the importance of the patent incentive in industrial innovation was the principal factor in the formation of the Federal Circuit. It is thus appropriate constructively to apply statute, precedent, and policy to the variety of inventions that the information age has generated, and to remove the cloud on whether these inventions may participate in the benefits and obligations of the patent system.

If there is a slippery slope, it would be one where Mr. Klemens' test for patentability would be applied to software patents. For, if software was to be entirely excluded from patent protection based on its' cozy relationship with mathematical priciples, there would be nothing to prevent the eventual abolition of virtually all method claims involving circuitry or other "physical" devices. Not a good result, if you ask me.

3 Comentários:

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BK said...

First, I feel that you're dodging the basic question that the article was intended to answer: if we have any respect for the mathematical exception, how do we prevent patents like the cosine calculation patent? You tell us that you can't draw the line between software and hardware, but give me something on the postive side: how do you propose to draw the line between software and math? Unlike the slippery slope you allude to at the end of your article, this is one which we actually have fallen down, and which need to be adressed here in the present day. Under the current regime, it's pretty darn likely that Benson's (and Flook's) patents would stand, and to me that says something is wrong with the current system.

You make fun of Benson, but it was the law of the land from 1972 until In re Alappat in 1991, and just about every computing concept in common use today was developed during that period, as were great advances in digital computing hardware. Somehow, the courts and USPTO were able during that period to work out some sort of line between the patentable and the unpatentable. I'm sure you can give me examples of friction on the borderline, where somebody was denied a patent which should have been granted, but the courts' and USPTO's intuition seemed to work pretty darn well. They had a few decades to start invalidating chemistry patents and never got around to it.

Further, the structure of the software industry is totally different from any other, as noted in part two of the IEEE Specrum series. Most of the world's legal systems today, and that of the USA until 1991, had some gut feeling that software is different from other fields, both in what it is and in how it is produced, and that patents weren't designed for such a beast. Peter, you have it easy because software patents are the status quo today where you live, so you can just throw up your hands and say `hey, the status quo sort of works and I can't imagine it any other way', but when so much of the rest of the world is doing just fine with an alternative status quo, and so many industry practitioners are expressing dissatisfaction with the USA's status quo, you need more of a defense than that.

Yes, drawing the line between what should or should not be patentable is difficult. Your average Supreme Court justice would probably have an easier time giving a precise definition of pornography. But to say that it's impossible is just sort of a cop-out, and to say that it will inevitably lead to the unpatentability of chemistry is clearly false, because most of the world and the USA of `72-`91 trundles/trundled along OK with some sort of distinction.


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