
Judge Says Mathematical Algorithms Can’t Be Patented - soupboy
http://techcrunch.com/2013/03/28/judge-says-mathematical-algorithms-cant-be-patented-dismisses-uniloc-claim-against-rackspace/
======
voidlogic
Good thing all source code is just very convenient mathematical notation
describing an algorithm... This to me is the most fundamental reason software
patents are insane.

~~~
deelowe
Good thing algorithms aren't patented and instead it's the application of the
algorithm that gets the grant. Most are written as "a method for performing X
by doing Y."

IMO, the issue with software patents isn't that businesses patent algorithms
or code(which they don't do). Instead, it's that technology moves too fast for
the monopoly time that's granted. When it comes to software, what's innovative
5 years ago is common place and often a commodity today.

~~~
baddox
What's the difference between "a method for sorting an array of integers by
doing <steps of Quicksort>" and simply patenting Quicksort? Or do you mean
something more specific to a particular product, like "a method for sorting a
list of restaurant recommendations by doing <steps of some machine learning
algorithm>"? Either way, all I'm seeing is algorithms.

~~~
rayiner
In the second case, you're not patenting the algorithm, because people remain
free to use the algorithm to do things other than sorting lists of restaurant
recommendations.

Which is ultimately why "its all just algorithms" is a uselessly reductionist
view of things, in the same way "all creative works are just strings of bits"
is uselessly reductionist, or even "all physical objects are just globs of
atoms" is uselessly reductionist. It's not a useful level of abstraction at
which to view the issue.

Ultimately you have to tie it back to the purpose of the property right. Why
does someone have a legal right to a particular glob of atoms, or a particular
string of bits, or a particular series of steps of some algorithm in some
specific context?

~~~
georgemcbay
"In the second case, you're not patenting the algorithm, because people remain
free to use the algorithm to do things other than sorting lists of restaurant
recommendations."

That doesn't make the situation any better, in my mind. In fact, in many ways
that makes it worse.

Step 1) File patent for using algorithm (everyone knows) to do (some obvious
application of that algorithm).

Step 2) Wait around for some other poor sucker to do the hard work of actually
implementing "your" idea.

Step 3) Profit!

~~~
rayiner
1) In theory you wouldn't be able to file patents without a working prototype
--we've unfortunately gotten away from this requirement;

2) That assumes "implementing the algorithm" is the hard part.

~~~
georgemcbay
IMO/IME, implementing is always the hard part.

I agree with your #1 though in that I think you should absolutely be required
to have a working prototype to file a successful patent. A lot (though not
all) of my objections to software patents would go away if that were enforced.

~~~
rayiner
I disagree. If you look at something like the software in your cell phone that
handles the power control loop or hand-offs, etc, I guarantee you it's not
very many lines of code. But the underlying algorithms (the specification), is
the result of months if not years of experimentation and empirical validation.

~~~
AnthonyMouse
That's the sweat of the brow argument: If somebody worked really hard then
they should get a cookie. But that doesn't work. If Bob is a savant and he
designs a brilliant hand-off algorithm in five minutes, should that not be
patentable because he didn't have to work very hard, but an algorithm that
isn't even as good should be because a much worse engineer spent a lot longer
to design it? The result would be to reward mediocrity and waste.

Which is why we look at the invention instead of the effort. So even though
I'm sure Einstein worked really hard on E=mc^2, laws of nature are still
unpatentable, because it's a description rather than an invention.

The problem is that no matter how hard it is to discover it, we can't give you
E=mc^2, because it only describes things. You can actually have
implementations that predate the discovery, because it's possible to build
something without being able to describe how it works. We had X-ray machines
before we had E=mc^2 even though it describes their operation. Allowing a
patent on anything following the description would allow too wide a scope. You
would be claiming too many things you didn't invent.

But algorithms are the same way. They're not _inventions_ , they're
_abstractions_. There is a really cool ad hoc routing algorithm where you send
packets along random routes but tag the routes, and then the more/faster
packets get to a destination using a particular route, the more you prefer
that route for future packets. Sounds like something that should be patentable
if algorithms are patentable, right?

But it's called the ant algorithm. Guess why.

Algorithms are pure abstractions. Those little buggers crawling around leaving
scent tracks everywhere have certainly never heard of your algorithm and have
no capacity to produce any sort of a binary, but there they are infringing
your would-be algorithm patent.

So you say, a-ha! We'll just make it an invention by applying a context. Then
the wildlife will be able to escape liability (and hopefully stop serving as
pesky prior art).

The issue is that the context is totally facile. The interesting thing is the
algorithm, not the context. It's just taking the unpatentable thing and adding
"on a computer" and claiming it as an invention. Sometimes they try to be
subtle and instead of saying "computer" they say "ad hoc wireless network" or
"anonymizing P2P network" or some other thing the meaning of which is always
"computer that could benefit from using this unpatentable algorithm" as if to
pretend that the limitation is meant as an actual restriction rather than
merely a vague description of the circumstances under which the algorithm is
expected to be beneficial.

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inopinatus
All algorithms are theorems. All theorems can be represented by unique numbers
(Gödel numbers). In the abstract sense they exist at all, all numbers exist
prior to their use. Therefore all algorithms are discoveries, not inventions.

Ok, this argument sounds clever at first but is actually trite, being
excessively reductionist and ignoring that some intellectual creativity occurs
in most discovery. Most obviously it motivates a better proper definition of
the term "invention". Patentable inventions should always be applications of
technology, not the technology itself.

The whole purpose of patents is to encourage more innovation that benefits
economies as a whole, by granting a temporary monopoly to entities to benefit
from the process and expense of invention. Standing to sue should be on that
basis; transference of rights to another entity should not whitewash that
socio-economic responsibility. Everyone with distate for the NPEs understands
this.

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jwb119
Some very basic background from a famous patent case (Diamond v. Chakrabarty):

"Anything under the sun that is made by man [is patentable] . . . . [T]he laws
of nature, physical phenomena, and abstract ideas have been held not
patentable . . . a new mineral discovered in the earth or a new plant found in
the wild is not patentable subject matter. Likewise, Einstein could not patent
his celebrated law that E=mc2; nor could Newton have patented the law of
gravity. Such discoveries are manifestations of nature, free to all men and
reserved exclusively to none."

~~~
duaneb
Are algorithms invented or discovered? It's a curious question regardless of
this situation.

~~~
chii
i would say it is discovered.

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skizm
Math can't be patented and yet you can get a patent for code snippets? This
sounds absurd since all code boils down to mathematical manipulation of binary
numbers. I guess if you abstract something enough you can get away with
patenting it? Can we patent methods of preparing food now? How about ways to
put something together (think ikea)? Why hasn't anyone patented something like
the smartphone yet people can patent something as arbitrary as memory
management techniques? I would say I hate our patent system but I'm just too
damn confused by it to form an opinion or explain why I hate it.

~~~
Draco6slayer
You can't patent atoms, but you can patent compounds made of those atoms, like
a new plastic. Or, if those compounds are already open, you can patent
products that combine those compounds into a new shape, like a new blender.
You can't patent the human voice or melodies, but you can patent a song. You
can't declare that because someone's. product uses raw materials that are
patent-free, that their final product isn't really an invention. Every thing
is built on some other platform, so that would remove patents entirely.

~~~
Ilmesnkie_Jones
A song isn't an invention so you would have to copyright it not patent it.

~~~
Draco6slayer
Yes, quite. Sorry. Point being though, you can own an intellectual property
even if you can't own the parts and tools that go into it.

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alexvr
I personally think copyright law provides enough protection for software. I
think patents would actually _harm_ innovation in the software world.

Algorithms are inherently protected, anyway - they're not like clever
mechanical solutions that can be reverse-engineered by anyone with eyes and a
brain; they're usually close-sourced when the author wants them to be. Patents
may be necessary to protect products with transparent functionality, but
software usually doesn't fit that bill unless it's deliberately open-sourced.

Even if you developed a strong AI algorithm that will change the world, there
should be competition. It's not like Microsoft will hire a few engineers to
rapidly develop something that transcends yours; it would be a reverse
engineering challenge to any competition.

What if algorithms behind network protocols were patented? Computers would
still be novelties and corporate tools, I think.

~~~
rayiner
So patents solve the incentive problem, just like copyright. Copyright solves
the incentive problem when "writing masses of software" is the hard part.
Patents solve the incentive problem when "figuring out what software to write"
is the hard part. Take things like garbage collectors. Even the most complex
are only 15,000-20,000 lines of code. Writing those lines of code was the easy
part--it was figuring out what that code should do, and doing all the testing
to figure out what worked and what didn't that was the hard part.

~~~
edmccard
>Copyright solves the incentive problem when "writing masses of software" is
the hard part.

That seems backward to me--when you've already figured out what to make, and
the hard part is producing mass quantities of it--isn't that what patents are
designed to protect?

>Writing those lines of code was the easy part--it was figuring out what that
code should do, and doing all the testing to figure out what worked and what
didn't that was the hard part.

Similarly, typing the words of a novel is easy; figuring out what to write is
hard, which is a good reason for copyright protections, but I'm not sure if it
has any bearing on the issue of patents.

~~~
rayiner
> That seems backward to me--when you've already figured out what to make, and
> the hard part is producing mass quantities of it--isn't that what patents
> are designed to protect?

The archetype of what a patent is designed to protect is something like a drug
formula. Manufacturing lots of drugs is easy--figuring out what chemical to
manufacture is the hard part. That is both hard, expensive, and easy to
reverse-engineer.

~~~
edmccard
OK. It's probably more common in folklore than in real life, but I was
thinking of the situation where mass production was the hard part, for
example, where a lone inventor comes up with a process or design, but does not
publicly disclose it because of fears that someone else (with better ability
to mass produce) would capitalize on it.

So I agree that patents (and the extent of their protection) makes sense for
things that are "hard and expensive", in software as in other fields. But it
seems like many software patents that get discussed are for things that did
not require a lot of work; the 20-year monopoly seems to be a disproportionate
reward just for being first, regardless of the work involved.

------
riazrizvi
Have I travelled back to 1972?

<http://en.wikipedia.org/wiki/Gottschalk_v._Benson>

~~~
rsbrown
Well, this is how our system works. There is nothing stopping me from filing
suit against you for posting this comment because it hurt my feelings. Then
the judge throws it out because there's no basis in the law for my claim.

~~~
fatman
Motion to dismiss for failure to state a claim? Including reading the
complaint, researching and drafting an answer, and associated communications,
figure 30 hours of attorney time. Wilmer Hale? Figure $400/hr.

$12K to respond to a claim so frivolous that it was dismissed instantly in the
friggin' Eastern District of Texas.

Hope RedHat can get some fees back from these fools.

------
codegeek
Seems like uniloc is willing to file lawsuits without any considerations. see
below for an interesting Q&A on uniloc's site:

 _Q. How many additional lawsuits does Uniloc plan to file?

A. Uniloc plans to defend our patents aggressively whenever they are
infringed. This protects our business and our shareholder value. In our view,
it’s the right thing to do._

------
jostmey
Wait, so are Software patents acceptable but patents on mathematical
algorithms not okay? Where is the rational in this? Granted, the patent in
question is absurd to a new extreme (trying to patent floating point numbers).

~~~
greyfade
Mathematics are reasoned to be "a law of nature," and "abstract ideas," and so
they are explicitly excluded as unpatentable subject matter under 35 USC 101.

Algorithms are established to be mathematics under Case Law, particularly
_Chakrabarty_ , 447 U.S. at 309, 206 USPQ at 197; and _Flook_ , 437 U.S. at
585, 198 USPQ at 195.

 _Diehr_ , 450 U.S. at 188-178; establishes that if the patent is for a
particular application of an abstract idea, but not for the abstract idea
itself, it _may_ be patentable.

~~~
jlgreco
> _Diehr, 450 U.S. at 188-178; establishes that if the patent is for a
> particular application of an abstract idea, but not for the abstract idea
> itself, it may be patentable._

So what does that mean, _"a^2 + b^2 = c^2"_ cannot be patented, but _"using
'a^2 + b^2 = c^2' to find the length^2 of the hypotenuse of a right triangle"_
in theory could be (were it "invented" today of course)?

~~~
greyfade
Actually, I should clarify a little: The more recent _In re Bilski_
establishes that a rote process (like finding the length of the hypotenuse in
your example) is not patentable. It requires a machine or a tangible
transformation. That is, a machine that does this calculation.

------
auggierose
So, now we just have to define what exactly a mathematical algorithm is. Good
luck with that.

~~~
muglug
Now we just have to rewrite all "patented" algorithms in lambda-calculus. That
should be easy...

~~~
chimeracoder
It's not that bad. "All" we have to do is implement everything in Lisp, since
Lisp can be reduced trivially to the lambda calculus.

Once again, Lisp saves the day! ;)

 _EDIT_ : I'm totally looking forward to experienced Lisp and Haskell
programmers like me being in high demand for their legendary skills... at
invalidating patents!

~~~
dinkumthinkum
Well if you wrote a program in any Turing complete programming language, you
would be done; how "trivial" it is doesn't matter. :)

~~~
greyfade
Indeed. By the Church-Turing Thesis, any program written for any Turing
Machine (including any Turing-complete language) can be translated into the
lambda calculus through a rote transformation.

------
drakaal
This would overturn every video/audio/data compression patent. Every
Encryption Patent. It would over turn every Google Search Ranking Patent. It
would limit patents to physical things.

Under that system even many physical devices would not be patent-able. The
math that goes in to Battery charging optimization. Silicon Chips would not be
able to patent XOR, NOR, OR, Gate logic.

This judge doesn't have the authority to make such changes to patent law.

~~~
marssaxman
Alas. What a relief that would be.

------
pagekicker
Are algorithms invented, or discovered? Did they, like geometry, exist in a
platonic state before human thought? See Neal Stephenson's great ANATHEM.

------
mckoss
The true problem is obviousness. Any machine is reducible to an algorithm is
reducible to an integer. They are all the same. It's ridiculous to say that
algorithms are "discovered" and not "made by man".

There needs to be a better procedure for throwing out all the stupid obvious
or trivial patents - but allow ones that have required the blood, sweat and
tears of their inventor to create.

------
lisper
Does anyone know which patent is being asserted here? I thought Uniloc only
had one patent, and it was related to try-and-buy DRM. But the description in
the article says "processing of floating point numbers by the Linux operating
system was a patent violation" which doesn't seem to fit. Is there another
Uniloc patent?

~~~
dangrossman
This is the patent at issue:

> Method and apparatus for handling overflow and underflow in processing
> floating-point numbers

[http://patft.uspto.gov/netacgi/nph-
Parser?Sect1=PTO1&Sec...](http://patft.uspto.gov/netacgi/nph-
Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=5,892,697.PN.&OS=PN/5,892,697&RS=PN/5,892,697)

~~~
lisper
Thanks.

But this is still perplexing: Surely, Linux just uses IEEE754 floating point,
which predates this patent by 15 years?

~~~
pavanky
You would be surprised by the sheer number of idiotic patents out in the wild.

~~~
sthu11182
a good sample - <http://patently-useless.tumblr.com/>

------
rogueSkib
You may not be able to patent math, but certain numbers are still illegal!

<http://en.wikipedia.org/wiki/Illegal_prime>

------
api
Does this invalidate certain crypto patents, like the NTRU patents or the RSA
patent (if it were still in effect)?

~~~
tlarkworthy
yes until you append "... as a method for encrypting communications" (an
application of said mathmatics)

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ateeqs
I'm waiting for Uniloc's silly patent 5,490,216 to expire in a couple of
years. How can they not even have a reference product sold for this?

------
smrtinsert
'mathematical algorithms' is a little broad.

------
betterunix
So no more software patents? Or at least no more cryptography patents?

------
bdg
Can we not express nearly everything in existence as a formal system?

------
prudhvis
If only the loosing party have to pay for all the legal fees.

------
acchow
Does this mean I can use Fountain Codes now?

------
nammaki1
i play world of warcraft iwant an hack for reset server for reset bosses in
the server in 2.4.3

------
darkhorn
Page Rank?

------
polarix
Oh no, now there's really no incentive to find new ones. We're doomed.

------
ttrreeww
I guess Mathematicians will never get rich then :(

~~~
beagle3
<http://en.wikipedia.org/wiki/James_Harris_Simons>

~~~
ttrreeww
That's a Wall Street guy. What is your point? Everyone go to Wall Street and
contribute to society in a positive way? :)

~~~
beagle3
Now, actually follow the wikipedia link and read it, to see Simons is a
professor of maths with important contributions to the math behind string
theory.

