
The Supreme Court doesn't understand software - binarybits
http://www.vox.com/2014/6/20/5824426/the-supreme-court-doesnt-understand-software-and-thats-a-problem
======
rayiner
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.

~~~
danielweber
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."

~~~
interg12
I hadn't thought about TBL that way before. Do you have other examples to help
make that point? I'm curious...

~~~
danielweber
[http://www.washingtonpost.com/blogs/the-
switch/wp/2014/02/23...](http://www.washingtonpost.com/blogs/the-
switch/wp/2014/02/23/comcasts-deal-with-netflix-makes-network-neutrality-
obsolete/)

"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...](http://www.washingtonpost.com/blogs/the-
switch/wp/2013/12/06/the-supreme-court-could-abolish-software-patents-next-
year-heres-why-it-should/)

"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...](http://www.forbes.com/sites/timothylee/2013/01/17/aaron-swartz-and-
the-corrupt-practice-of-plea-bargaining/)

"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.

~~~
magicalist
> _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.

~~~
danielweber
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.

------
phkahler
I was with him until: "The idea behind patents is to create a financial
incentive to promote innovation: patents ensure that the inventor of a new
idea can get compensated for it, rather than seeing her idea immediately
ripped off by copycats."

The purpose of patents had nothing to do with compensation. It was already
presumed that an inventor could sell an invention. The real purpose was to
promote disclosure of how to make things. In other words to reveal what would
otherwise be kept a trade secret. This fits well with the notion of "non-
obvious to a person practiced in the art", which would preclude Amazons one-
click. The idea was: Tell us how it's made in exchange for a monopoly for some
number of years. Spreading knowledge is how you promote innovation.

~~~
magicalist
No, the constitution is quite clear on this point:

 _To promote the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries._

It's clear from the historical record that this was about ensuring monetary
compensation for invention, as knock-off devices were just as common then as
they are now.

In fact, public access to patents was basically non-existent until the Patent
Act of 1836. The "non-obvious" test came even later.

~~~
Yen
That exact quote disagrees with you and agrees with the parent comment,
though.

The purpose is _" To promote the Progress of Science and useful Arts"_. This
is __achieved __by _" securing for limited Times..the exclusive Right"_.

Monopoly and financial compensation are not the aim of constitutional patent
law, merely the means to an end.

Knock-off devices were common then as they are now, and in the absence of
patent law, the best protection for so-called intellectual property is to just
keep it secret. This, of course, has a negative impact on society, as research
effort gets duplicated, and the state of the art advances more slowly than it
otherwise could.

So, the balance is - share with the world the details of making your invention
(i.e., progress the science or useful art), and in exchange, we'll guarantee
that your openness doesn't bite you by aiding your competitors (we'll give you
a time-limited exclusive right).

~~~
magicalist
They are a means to an end, absolutely. I wasn't try to imply that the
constitution recognized Intellectual Property as a kind of property that
people have some kind of inherent right to. In fact, I believe the opposite,
but realize I may have implied that's what I believe, and that's what these
responses are reacting to.

However, it's that _end_ that's being examined here, not the means. My point
was that by granting a limited-time monopoly on an invention, Congress can
advance the state of "Science and useful Arts". It can be argued what is meant
by "promote". As I noted, the historical context makes it pretty clear that
it's meant as an incentive to invent, not necessarily public documentation of
inventions, which really came later. This is exactly what is said in the
article: _" The idea behind patents is to create a financial incentive to
promote innovation: patents ensure that the inventor of a new idea can get
compensated for it, rather than seeing her idea immediately ripped off by
copycats"_.

Regardless, what absolutely is missing from that clause in the constitution is
any requirement at all that there be a public disclosure of the invention.
_That 's_ what I was saying the constitution was clear on. Any assertion of
public disclosure being the purpose is an interpolation, because the
constitution has absolutely no requirement that that take place. All patents
could be secretly filed away, for all it cares.

------
heydenberk
>> If a sequence of conventional mathematical operations isn't patentable,
then no software should enjoy patent protection.

I agree with the general idea of this piece, and I don't believe that software
be patentable (or at least, software should be protected in a very narrow
range of cases), but this argument doesn't hold up for me. For a person
implementing a complex payroll system or a complicated user interface, the
universal underlying mathematics are meaningless. Of all the time spent
developing software, algorithm development is a tiny portion, much of which
occurs in non-commercial environments anyway. It's comparable to the
difference between the laws of physics and mechanical devices that operate as
a consequence of those laws.

~~~
_delirium
Yes, the decision in question even mentioned this. The Court acknowledges that
in some fundamental sense all machines are just mathematics + physics. But for
the purposes of patent law, the fact that all inventions are nothing more than
discoveries of special cases of physics and mathematics, is not the relevant
level of analysis. Rather, patent law presupposes that some novel combinations
of such principles are "inventions", and the question is which ones.

------
scrumper
> The problem is that "software" and "mathematical algorithm" are two terms
> for the same thing.

The Knuth quotation in the article, used in support of this position, actually
seems to invalidate it in my view. "Algorithms are exactly as basic to
programmers as words are to writers." The key being _words_. The value in a
piece of literature has little to do with the individual words it's made from,
just as a piece of software is clearly vastly more than the sum of its
algorithmic parts.

Footnote: I mean this for multiple dimensions of 'value', not simply some
measure of economic worth. Information processing and transformation ability,
for one.

~~~
Crito
Here's a question (not sure if it is really relevant to software patents or
not): Could a writer patent a novel grammatical form? If you were to invent
something like this
([http://www.theatlantic.com/technology/archive/2013/11/englis...](http://www.theatlantic.com/technology/archive/2013/11/english-
has-a-new-preposition-because-internet/281601/)), or perhaps more complex,
could that be patented?

------
qq66
Of course the Supreme Court doesn't understand software. Or real estate. Or
coal mining. Or any of the things they are asked to make rulings on. How would
they? They're lawyers who have spent their whole lives studying the law, and
they can only get a cursory understanding of any of the infinite issues they
might issue a ruling regarding.

It's unreasonable to ask them to understand software as well as a software
engineer.

------
tempestn
While I'm not a fan of most software patents, I don't agree with this
statement, except in the most pedantic sense: 'The problem is that "software"
and "mathematical algorithm" are two terms for the same thing.'

You could say that _anything_ at its root is simply a mathematical algorithm.
These days it is possible to do a great many specialized tasks with either
dedicated hardware, _or_ software running on general purpose hardware. Should
you be able to patent an asic design, but not a piece of software that does
exactly the same job? Should incredibly complex and novel pieces of software
not be eligible for patents simply because they're made out of 1s and 0s
instead of nuts and bolts? Doesn't make sense to me.

What does make sense to me is to reform the _entire_ patent system, in many
cases drastically increasing the threshold for what is considered novel and
non-obvious, and decreasing - again sometimes drastically - the time periods
of monopolies offered. I don't, however, believe that this is solely an issue
of software vs. not-software.

~~~
AnthonyMouse
> You could say that _anything_ at its root is simply a mathematical
> algorithm.

Nonsense. A brick is not a mathematical algorithm. You can use mathematical
algorithms to calculate things about bricks but that's not the same thing at
all.

~~~
tempestn
Hyperbole perhaps, but not nonsense. A photograph can be saved as a file on a
computer. The file essentially just consists of instructions for displaying
the photo. Does that mean photography === mathematical algorithms?

Or yesterday there was a frontpage story about a guy who spent 13 years of his
life building a (pretty cool) freeware game. I'm not arguing that he should be
able to patent the mechanisms of the game, but not because it's just one big
"mathematical algorithm". That's ridiculous; it's a work of art.

To use the example from the article, any design must be described with a
sequence of words. You can't patent a sequence of words, so all patents should
be invalid. To me, that's not much more of a stretch than saying that all
software is simply a collection of mathematical algorithms. Perhaps literally
true in a sense, but essentially meaningless.

Edit: By the way, since the perfect patent system is probably a pipe dream, I
expect the world would be better off if software patents _were_ abolished. I
just don't believe this particular argument holds much water.

~~~
AnthonyMouse
> Hyperbole perhaps, but not nonsense.

It's definitely nonsense. Things with corporeal existence are clearly
distinguishable from algorithms. It is unambiguously true that a brick is not
an algorithm.

> A photograph can be saved as a file on a computer. The file essentially just
> consists of instructions for displaying the photo. Does that mean
> photography === mathematical algorithms?

Traditional photography is a chemical process. The shutter opens and the light
causes a chemical reaction on the film. Digital photography is an electrical
process. Light strikes the sensor causing electrical charges that can be
measured and recorded. Both of those are physical processes. Neither of them
is an algorithm, although the data either of them produce could be processed
by algorithms (e.g. JPEG compression). Moreover, a camera as a product is the
sort of thing you could patent. You can tell it isn't an algorithm because you
can't load software into a general purpose computer and have the software
cause the computer to be able to take photographs without a camera.

> I'm not arguing that he should be able to patent the mechanisms of the game,
> but not because it's just one big "mathematical algorithm". That's
> ridiculous; it's a work of art.

That's exactly why it's _not_ patentable. For art you get a copyright, not a
patent.

> To use the example from the article, any design must be described with a
> sequence of words. You can't patent a sequence of words, so all patents
> should be invalid.

This appears to be the source of the nonsense. You aren't distinguishing
between the words (or algorithms) that describe a thing and the thing itself.

> To me, that's not much more of a stretch than saying that all software is
> simply a collection of mathematical algorithms. Perhaps literally true in a
> sense, but essentially meaningless.

All software _is_ simply a collection of mathematical algorithms. That isn't
meaningless, it's the reason it's impossible for any software to exist that
you could load into a computer and cause it to be able to take photographs
without a camera.

~~~
tempestn
> > To use the example from the article, any design must be described with a
> sequence of words. You can't patent a sequence of words, so all patents
> should be invalid.

> This appears to be the source of the nonsense. You aren't distinguishing
> between the words (or algorithms) that describe a thing and the thing
> itself.

That's exactly my point. By saying that software isn't patentable because it
is simply a collection of mathematical algorithms, you aren't distinguishing
between the algorithms that describe the thing and the thing itself. Software
is literally a collection of data and algorithms, yes, just like a digital
photograph. (Although you could stretch further and define data as simply a
single-purpose algorithm.) And legally a "collection of algorithms" cannot be
patented. But in reality, much like the photograph, there is a great deal more
to software than that; there is thought and creativity involved in
"collecting" those algorithms. Saying software is a collection of algorithms
is akin to saying a book is a collection of words. Literally true, but missing
the bigger picture.

And yes, I understand the difference between patent and copyright. I was
simply giving an example of something else - a digital photo - that is exactly
like software: a collection of data and algorithms. Does that mean that
exactly the same laws should apply to software as to digital photographs (and
everything else that is simply a collection of data and math)? Of course not,
because these things are fundamentally _different_ , and are each more than
the sum of their parts.

~~~
AnthonyMouse
> By saying that software isn't patentable because it is simply a collection
> of mathematical algorithms, you aren't distinguishing between the algorithms
> that describe the thing and the thing itself.

With software there _is_ no separate thing. The software is the only thing. If
there was a separate thing you could identify it.

You can clearly distinguish between, for example, a physics text describing
how bricks are affected by gravity, and an actual brick that you can pick up
in your hand. The physics text is not patentable completely regardless of how
creative it is or how much work went into producing it. The brick may be
patentable, e.g. if you make it out of some novel weather-resistant material.

The problem with software patents is that people making texts and not bricks
are being accused of infringing patents.

> But in reality, much like the photograph, there is a great deal more to
> software than that; there is thought and creativity involved in "collecting"
> those algorithms.

Now you're talking about how the software is produced. The end product is
still an algorithm. Are you suggesting that if I write a computer program that
can produce other computer programs, the programs produced that way should not
be able to infringe any patents because they were created deterministically
without any human thought or creativity? Patents have no requirement of
creativity. Again, the protection for creative works is copyright, and it
applies to software as well as it does to photographs and books.

More to the point, analogizing software to several other things that are all
indisputably _not_ patentable is a very poor way of arguing that software
should be patentable.

------
ars
The problem with saying the software is math is that _EVERYTHING_ is math.

Every single bit of physics is math at it's core. If you come up with a new
physical theory you will be ignored unless you also include the math for it.

~~~
btreecat
Are there any patents on physics or laws of physics, the same way there are
patents on things like "swipe to unlock?"

Eg, has anyone filed a patent on something like "swing hammer to drive nail."
Or "Spin wheel to turn car?"

I personally have not heard of such ridiculous claims however it wouldn't
surprise me to learn some have slipped through the "filters" that are supposed
to catch this stuff.

~~~
c0ur7n3y
Method for Swinging on a Swing

[http://www.google.com/patents/US6368227](http://www.google.com/patents/US6368227)

------
anigbrowl
_The problem is that "software" and "mathematical algorithm" are two terms for
the same thing._

No they're not, at all. Software, as the name implies, is a commodity, which
typically includes textual and graphical elements for human interaction and
which interacts with multiple different mechanical and electronic subsystems.
You might as well argue that mechanisms involving gears are not patentable
because their behavior is expressible as a set of mathematical ratios. I'm
certainly not in favor of all software patents or even software patents in
general, but this notion that program = mathematical algorithm needs to die
off.

Some hackers are always going on about how the judiciary fails to understand
software, while assuming erroneously that they themselves have a perfect
understanding of law.

~~~
shizzy0
I fail to see how a program is not a mathematical algorithm.

~~~
throwawaykf05
Lets flip this around: The court considers mathematical algorithms abstract.
Noting that it enables you to achieve the very practical utility of posting on
this forum, is the software running your computer abstract?

The obvious answer is that our definition of what is an algorithm and what is
abstract differs from the court's.

~~~
AnthonyMouse
The thing that allows you to post on this forum is the prior art computer
hardware. The software only tells the hardware what you want it to do.

Moreover, your formulation is erroneous. Concrete things can do abstract
things. The fact that a particular braking system can slow down a car does
nothing to establish that "slow down a car" is not an abstract idea. It
clearly is an abstract idea.

~~~
throwawaykf05
_> The thing that allows you to post on this forum is the prior art computer
hardware. The software only tells the hardware what you want it to do._

The software "only" tells the hardware what you want it do? That is the most
important thing! Without software the hardware does absolutely squat.

Here's another way to think about this: imagine you invented the lever. The
thing that allows you to move heavy objects you could not before, is the prior
art of a log and a rock. The beam-and-fulcrum arrangement "only" tells the
rock and log what to do.

 _> Moreover, your formulation is erroneous. Concrete things can do abstract
things._

Non sequitur. _Anything_ can be abstracted to an arbitrary degree. A very
specific type of a screw with a very exact shape made of a very specific alloy
can be abstractly defined as a "fastening component." That does not mean
nothing is patentable.

 _> The fact that a particular braking system can slow down a car does nothing
to establish that "slow down a car" is not an abstract idea. It clearly is an
abstract idea._

Yes, but it's clearly not an abstract _mathematical algorithm_ , which is what
my parent post was questioning. Parent was wondering how software consisting
of algorithms that are "abstract" can be patented. My point was precisely that
the "abstract" that the court has in mind is very different from the
"abstract" that we have in mind when talking about algorithms. "Slow down a
car" is a different type of abstract from "E = MC^2", even though they are
both abstract.

~~~
AnthonyMouse
> Here's another way to think about this: imagine you invented the lever. The
> thing that allows you to move heavy objects you could not before, is the
> prior art of a log and a rock. The beam-and-fulcrum arrangement "only" tells
> the rock and log what to do.

I found a small rock and a stick and I told them to move a big rock but
nothing happened. I think you need to do something more than communicate
information to them to get them to produce leverage.

That's the fundamental difference with software. A computer takes an algorithm
and an input and produces an output. For example, you might take an image
decompression algorithm and a compressed image and produce raw pixel values.
The important fact is that the algorithm _and_ the compressed image _and_ the
uncompressed image are all purely information. It's the difference between
knowing something and doing something. Computers cause information to be
created, but information is not supposed to be patentable, and there is
nothing else there to patent other than information.

> Non sequitur. Anything can be abstracted to an arbitrary degree. A very
> specific type of a screw with a very exact shape made of a very specific
> alloy can be abstractly defined as a "fastening component." That does not
> mean nothing is patentable.

No, but what it means is that if you're going to say "fastening component"
instead of providing anything more specific, that should not be the only part
of your claim directed to patentable subject matter.

> My point was precisely that the "abstract" that the court has in mind is
> very different from the "abstract" that we have in mind when talking about
> algorithms.

Even if that were true I'm not sure what it's supposed to prove. Algorithms
are all different kinds of abstract. And as soon as you make them specific
you're straight into mathematical formulas and laws of nature.

~~~
throwawaykf05
Apologies for the late reply, I check in infrequently.

 _> I found a small rock and a stick and I told them to move a big rock but
nothing happened. I think you need to do something more than communicate
information to them to get them to produce leverage._

Yes, you _configure_ the log and rock to produce leverage. Just as you do a
computer for it to do anything useful. You may think of it as "just
information", but this configuration undoubtedly produces practical results
via physical processes.

------
EGreg
_" The problem is that "software" and "mathematical algorithm" are two terms
for the same thing."_

This ain't necessarily true. Unless you extend math to encompass reasoning
about hardware, operating systems, browsers, other apps, networks etc. Math
deals with more basic things.

The real reason software patents are harmful is because the industry moves so
quickly, fueled by openness, that the patent examiners don't always know the
current state of the art, let alone obviousness. This basically kicks the can
down the road and creates waste.

------
j2kun
Better title: I don't understand the difference between software and
algorithms.

------
fleitz
There are programs though that aren't expressible as math, namely
multithreaded programs that have non-deterministc behavior such as programs
where two threads increment the same counter in a non-thread safe way.

------
throwawaykf05
TFA boils down to the following points, and a lot of people are (rightfully)
questioning it:

 _> The courts have repeatedly said that mathematical algorithms can't be
patented. But many judges also seem to believe that some software is worthy of
patent protection. The problem is that "software" and "mathematical algorithm"
are two terms for the same thing._

This is false on multiple levels:

1) Laws of physics and laws of nature and cannot be patented. Elements of the
periodic table are naturally occurring materials and cannot be patented. Yet
machines applying these very same laws of physics and made out of these very
same materials _can_ be patented. As can compounds that are new arrangements
of atoms of various elements.

This is because machines and compounds are specific applications of patent-
ineligible physical laws using configurations of patent-ineligible individual
materials. Similarly, software is an application of patent-ineligible
mathematical algorithms (along with a healthy dose of I/O that translates
wholly non-mathematical things into mathematical representations). Just as
machines are patent-eligible, software is too.

Laws of Physics : Machines :: Elements : Compounds :: Algorithms : Software

2) As evidence of the above, note that most claims for software don't even
claim specific algorithms, but rather just high-level descriptions that could
be implemented in a thousand ways using a thousand different algorithms. A
claim will almost never say, as one of its steps, "looking up a value using a
key in a hashtable" \-- it will almost always say something like "determining
a value corresponding to a key", which covers all O(1), O(logN) or O(N)
algorithms. (If they even get to that level of detail at all... most claims
are at an even higher level, e.g. "receiving a compressed image and detecting
faces in it", where each element would involve a multitude of disparate
algorithms) Such language could cover any number of ways of doing something.

Some take this as a sign of abstractness. But when you look at patents on
physical machines, their claims also rarely ever mention the precise
measurements of the various components and the actual materials used. The
number of materials and relative sizes that could be used in making a
mechanical invention is as numerous as the number of languages, data
representations and storage technologies that could be used in making a
software invention. As such, machine patents also cover _all_ ways in which to
implement it. This is not abstractness, but rather the eliding of details that
are irrelevant to the essence of the invention.

3) When the court says algorithms are un-patentable, they mean abstract
formulae like E = MC^2. By itself, that formula does nothing, and hence is not
useful. On the other hand, software for a web browser can cause your computer
to fetch data from another machine a thousand miles away and display it on
your screen. Regardless of level of technical competence, everyone can agree
that this is non-abstract and _useful_. That's the primary reason that
software is worthy of patent protection: it meets the statutory requirements,
i.e. "any thing under the sun that is made by man".

------
cscurmudgeon
I don't think you understand Math. I also don't think you understand legalese.
I won't comment on the latter.

Software is fundamentally no different from a physical mechanism. (Math is
everything.) Software is just more tunable.

The focus should be on eliminating bad patents or patents fully. Please don't
muddy the issue.

