
Supreme Court rules on software patent case Alice Corp v. CLS Bank [pdf] - sthu11182
http://www.supremecourt.gov/opinions/13pdf/13-298_7lh8.pdf
======
grellas
One of the horrid things about law is how it can be dissembled by those whose
job is to practice it. This drives people crazy. They know something is
_real_. Yet, especially if they are caught in its hooks, they watch how law
can be applied such that results are absurdly divorced from the reality they
know. Our advocacy process has many fine elements and yet this is one of its
tragic by-products: having the best and the brightest in the field become
instruments in trying to obtain cynically-motivated decisions that further
some narrow (usually economic) interest at the expense of truth and justice.

That has been happening for a long time now in the patent field as armies of
very bright lawyers have found clever ways to concoct patents out of what
really should be unpatentable ideas through the art of clever drafting.

Well, this decision gives top-down guidance to judges to cut through such
dissimulation in the area of patents and to look at the reality by asking, in
effect, "is this _really_ inventive or is it simply a product of the
draftsman's craft parading as being somehow inventive." That is the right
question to ask in such cases and it should go a long way towards reining in
some of the more absurd abuses of recent times.

The case in nonetheless only an incremental step building on solid precedent
(as well-assessed by rayiner) and not a radical shift by the Court.

Many had hoped, for example, that this case could be used as a means of
delivering a death-blow to _all_ software patents on the grounds that they
could all be labeled nothing more than basic mathematical algorithms that
happen to apply to a computer. Yet, in its decision, the Court not only did
not address this sort of argument but it also carefully emphasized the idea
that it was to "tread carefully" in how it might choose to exclude even
fundamental "building blocks of human ingenuity" (i.e., laws of nature,
natural phenomena, abstract ideas) from patent eligibility "lest this
exclusionary principle . . . swallow up all of patent law." To me, this
signifies that the cautious approach signaled in _Bilski_ \- that is, that of
gradually cutting back on the excesses spawned in the past two decades in the
area of patent-eligible subject matter - will continue. So don't hold your
breath awaiting any court-driven abolition of software patents generally. That
will have to await a legislative solution, if it is to come about at all.

~~~
DannyBee
Well, actually, it does help a lot. In particular, they said ""claims, which
merely require generic computer implementation, fail to transform that
abstract idea into a patent-eligible invention""

Historically, federal circuit precedent said exactly the opposite - that when
a generic computer was programmed for a specific purpose, it was now a special
purpose machine and patentable.

"For computer implemented processes, the “machine” is often disclosed as a
general purpose computer. In these cases, the general purpose computer may be
sufficiently “particular” when programmed to perform the process steps. Such
programming creates a new machine because a general purpose computer, in
effect, becomes a special purpose computer once it is programmed to perform
particular functions pursuant to instructions from program software."

This decision should, if the federal circuit actually follows it, knock out a
large set of software patents.

~~~
throwawaykf05
_> Well, actually, it does help a lot. In particular, they said ""claims,
which merely require generic computer implementation, fail to transform that
abstract idea into a patent-eligible invention""

Historically, federal circuit precedent said exactly the opposite - that when
a generic computer was programmed for a specific purpose, it was now a special
purpose machine and patentable._

1) Your argument does not refute the GP's statement. A "specific purpose" is
not necessarily an "abstract idea", depending on how the claims are
structured. A claim saying "presenting ads in such a way that it is
unobtrusive on a computer" is an abstract idea[1]. A claim that specifies how
a computer can, say, examine visual or DOM elements on a page to determine
where to place ads such as not to be obtrusive, is much more concrete.

2) A generic computer running a program _is_ a special purpose machine: it's
now doing things it could not do before it was programmed to do so, and as
such, it is performing potentially novel functionality. Otherwise, in my mind,
you might as well argue "a kitchen knife could not be a murder weapon because
it's a _kitchen_ knife."

 _> This decision should, if the federal circuit actually follows it, knock
out a large set of software patents._

I've looked only at a few particular areas, but all the "old idea, only on a
computer / on the Internet" patents I've seen so far (like [1]) the one should
have expired by now. However this is purely anecdotal, of course.

1\. Such a claim (I only paraphrased it a bit) exists, and was referenced in
one of Lemley's papers. On mobile so can't find it right away.

~~~
DannyBee
"2)a generic computer running a program is a special purpose machine: it's now
doing things it could not do before it was programmed to do so"

This is of course false. It always could do them, it just wasn't told to. To
view it otherwise is nuts.

Otherwise, I could argue that when you think about things, you are activating
new pathways in your brain, forming neural connections that didn't exist, and
otherwise changing and programming the state of your brain to know and do
things it could not before.

~~~
throwawaykf05
_> It always could do them, it just wasn't told to._

"A board, spring and wires could always trap a mouse, they just weren't
configured to do so."

How is programming a computer different from assembling existing components in
a new arrangement to make a new machine?

 _> otherwise changing and programming the state of your brain to know and do
things it could not before._

Not a neuroscientist, and this risks derailing the thread, but isn't that
exactly how brains and learning work? This has also been observed at the macro
level, e.g. that study where London cabbies' brains were found to have
enlarged portions that dealt with spatial processing.

~~~
DannyBee
""A board, spring and wires could always trap a mouse, they just weren't
configured to do so."

How is programming a computer different from assembling existing components in
a new arrangement to make a new machine?"

You are not "assembling existing components in a new arrangement with a
computer". Also, if I gave you a board, a spring, and wires, you could not
trap a mouse with them.

You actually have to physically change them to accomplish anything. The spring
won't stick to the board by itself, etc.

You are also taking things that were previously limited in some way (a board
is not elastic, etc), and assembling them into a new thing that is not so
limited.

When you program a computer, you are not changing the computer in _any way,
shape, or form_.

It was never limited. By programming it, you are doing exactly what it was
built to do: Be programmable.

You are simply picking a subset of the things it could already do, and saying
"do this subset". The computer, no matter how hard you program it, will never
trap a mouse. It is the building of the computer that was the hard part. You,
on the other hand, are always operating entirely within the existing limits of
the computer.

"Not a neuroscientist, and this risks derailing the thread, but isn't that
exactly how brains and learning work? This has also been observed at the macro
level, e.g. that study where London cabbies' brains were found to have
enlarged portions that dealt with spatial processing. "

Yes, this is exactly how they work. That's my point. By your argument, you can
replace "computer implemented" with brain implemented, and end up with the
same patentable result. Given that, i'm arguing there is nothing special, at
all, about computers, or implementing things using them, any more than
thinking about things or learning to play guitar. Enlarging the center for
spatial processing in cabbies is something _the brain was meant to do_. The
cabbies did not create it out of whole cloth. They did nothing but exercise
their normal skill in spatial reasoning, and their brain did all the actual
work.

Programming a brain does not make them do new things they could not do. It
simply tells them what task to perform.

IE There are a set of tasks they can both perform. That set of tasks is fixed
at creation, both of brains, and computers. You cannot make lasers shoot of
your eyes no matter how hard you try.

Much like a brain implemented invention, a computer one is just picking a
certain task the _computer already could do_.

~~~
throwawaykf05
_> When you program a computer, you are not changing the computer in any way,
shape, or form. It was never limited._

But that is untrue, on two levels! Firstly, at the physical level: by
programming the computer you are _physically_ changing it. You are changing
the electronic charges on a multitude of molecules arranged at very specific
locations in a very specific manner. This, in turn, when activated by other
specifically applied charges, controls changes to yet other charges on other
molecules at other very specific locations as these charges are evaluated by
the laws of physics and the arrangements of various conducting materials
connecting these molecules.

Secondly, at the functional level: these patterns of charges can be evaluated,
by humans or other machines, to represent useful information, and hence the
exact same circuit with different patterns of charges can be used as a word
processor, a gaming machine, a media player, a database...

Consider the converse: without any such charges lighting up any of its
circuits, the computer can do literally nothing. It is wholly limited.

I completely agree that the computer's _potential_ utility is never limited --
except maybe by our imaginations. However, that could be said for a hunk of
metal or a slab of wood too.

 _> By programming it, you are doing exactly what it was built to do: Be
programmable._

By fashioning steel into various shapes, I'm doing exactly what steel was
created to do: be malleable when very hot but very rigid at room temperatures.
Yet every new shape given to steel, from rods to blades to ball bearings to
I-beams to frying pans, has enabled a new use.

By combining various atoms of elements in different configurations, I'm doing
exactly what they were meant to do: bond with each other. Yet every new
combination could result in a brand new compound.

What something _could_ do has no bearing on what is inventive. Inanimate
things do precisely nothing until we invent a use for them. All technological
development is the creative use of things doing what they are meant to do,
arranged to achieve things that we want them to do.

 _> Enlarging the center for spatial processing in cabbies is something the
brain was meant to do. ... They did nothing but exercise their normal skill in
spatial reasoning, and their brain did all the actual work._

True, but their brains have become physically different from ours, optimized
for spatial reasoning. You could in fact say that, with the right programming,
they became special-purpose brains.

~~~
fpgeek
Hold on. You can't just say: Computers are implemented physically, so
grounding a patent in a computer-based implementation makes it a physically-
grounded patent.

If you want something physically-grounded you'd have to say: I want to
implement this idea on that specific computer with these specific physical
manifestations. And even if you got that patent, it would be effectively
worthless. Changing what we view as trivial details of the implementation
(e.g. swapping a Pentium for a Pentium Pro) would totally change the physical
manifestations at the level of electrons and molecules. In other words, that
would completely avoid any claims in the patent that are described at the
physical level.

And the minute you retreat to considering claims at the functional level (i.e.
what our collections of electrons and molecules mean) you're no longer talking
about doing something physical to achieve a useful result: you're talking
about combining abstract ideas with a wide range of possible physical
implementations to achieve a useful result, which is something entirely
different.

~~~
throwawaykf05
This is true for most physical inventions. Machines, for instance, may be
claimed as a particular configuration of physical components, but the
invention is not restricted to any precise composition materials used in those
components _unless the claims require it_. Indeed, claims often don't even
mention the materials being used.

For instance, you can use any comparable material or fluid to provide the
necessary mechanical support or hydraulic force. Replacing, say, steel (or
oil) with any other alloy (or incompressible fluid) with comparable properties
will not allow you to sidestep the essence of the invention. This is analogous
to switching one processor to another: it makes no difference because they are
equivalent. As such, pretty much all patents (except maybe those on compounds)
are abstract to some degree: they all claim a useful application with a wide
range of possible physical implementations.

This is covered by the Doctrine of Equivalents, which specifically exists to
prevent non-infringement through trivial workarounds. The counterbalance to
this is that in examination, claims are given their broadest reasonable
interpretation to find as much prior art as possible. For instance, examiners
are free to use equivalent elements in the prior art to read on those in the
claims.

~~~
AnthonyMouse
You're trying to simultaneously claim that the machine is what makes it
patentable as a result of its physical operation and that the machine is an
abstraction completely divorced from its physical operation. Those two things
don't go together.

~~~
throwawaykf05
No, let me do a diff on your statement to highlight my meaning (diff'd words
in italics) I'm claiming that:

1) ... the machine is what makes it patentable as a result of its physical
operation and

2) The _patent on that the machine_ is an abstraction _largely (to the extent
it concerns irrelevant specifics)_ divorced from its physical operation.

You see the difference now? Those two arguments reconcile because they address
different things. To see what I mean, do a search on google patents for, say,
"hydraulic modulator", and count how many have claims that specify the precise
materials they use. Without such details, these claims are about as abstract
as software claims.

~~~
AnthonyMouse
The difference is that in the software case the patent claims are _completely_
divorced from the computer's physical operation. You could be using a gravity-
based computer built out of planets and stars and it would infringe all the
same. Because the computer isn't required to _do_ something, it is only
required to _calculate_ something.

Let's try this another way. You understand that it is possible to build a
computer out of anything. Let's build a computer out of nothing. We want to
perform a calculation without building anything whatsoever, so all we are
going do is observe nature. There are any number of ways to represent a
calculation. If there are three pigeons and five more arrive then you have
only to observe the resulting number of pigeons to learn the sum of three and
five, etc. Nature is going to do lots of calculations we don't care about the
answers to, so we ignore those and only pay attention to the ones necessary
according to the algorithm to be executed.

By doing this you can execute any algorithm. Doing strictly nothing but
observing natural phenomena. There is no machine. Because the result you are
trying to obtain is not a thing, it is a _representation of information_. And
information can be encoded into anything and the representation is defined by
the context. By changing the context -- an entirely intellectual undertaking
-- you determine what information is represented by the physical state. What
the machine (or the birds or the stars) do is comprehensively irrelevant, as
long as things are happening you can use them to represent the execution of
computer software.

~~~
throwawaykf05
_> The difference is that in the software case the patent claims are
completely divorced from the computer's physical operation._

I'd like you to show me a granted software patent that cannot be implemented
on any computer. If you can find one, I'll show you one that should be chucked
in with perpetual motion machines.

 _> You understand that it is possible to build a computer out of anything.
Let's build a computer out of nothing. We want to perform a calculation
without building anything whatsoever, so all we are going do is observe
nature._

It's amazing that each of these three consecutive statements are inter-
contradictory. ("build a computer out of anything" != "build a computer out of
nothing"; "nothing" != "observing nature"; "build a computer out of anything"
!= "without building anything whatsoever".) I have no idea how to proceed.

~~~
AnthonyMouse
> It's amazing that each of these three consecutive statements are inter-
> contradictory. ("build a computer out of anything" != "build a computer out
> of nothing"; "nothing" != "observing nature"; "build a computer out of
> anything" != "without building anything whatsoever".) I have no idea how to
> proceed.

Oh sorry, let me clarify. I'm taking it as a given that you accept a computer
can be built out of anything, i.e. that you can have electrical computers,
mechanical computers, biological computers, etc. and they're all
computationally equivalent and can execute all the same algorithms. The whole
Church-Turing thing. My point was that you don't even have to _build_
anything. So you can completely ignore the "build a computer out of anything"
statement if you think it's contradicting anything.

And observing is not building. It seems exceedingly obvious that you can't
patent squirrels gathering nuts, or leaves growing on trees, or raindrops
falling from the sky, etc. But you can map desired calculations onto the
occurrence of things in nature in much the same way as you map them onto
electrical signals in a PC, wait until they enter the state required by a
given algorithm, observe the result, and thereby execute any algorithm you can
execute on a computer. The machine is a completely abstract concept. Trying to
patent an algorithm because you can execute it on a computer is exactly the
same thing as trying to patent a formula because you can compute it with a
calculator. The calculator doesn't become a new type of machine based on which
buttons you press.

> > I'd like you to show me a granted software patent that cannot be
> implemented on any computer. If you can find one, I'll show you one that
> should be chucked in with perpetual motion machines.

Obviously a patent on a solution to the halting problem is fraudulent, but you
have the issue reversed. It isn't that you can't use a machine to execute an
algorithm, it's that you can execute an algorithm without a machine. The
machine isn't a necessary component, it's just a convenient and efficient way
to do it.

------
rayiner
This is a very good opinion, tightly argued based on the precedent. And
frankly, unsurprising given the relevant precedent (Diehr, Benson, Mayo).

The opinion has three parts:

1) The Court identifies the abstract idea contained in the patent as the
general concept of intermediated settlement. (Slip. Op. at 9) The key takeaway
here is the discussion about whether an "abstract idea" has to be on the level
of a "law of nature" in order to be excluded. The Court says that an abstract
idea need not reduce to some fundamental truth that has always existed. It is
sufficient for it to be a "fundamental economic practice" or "longstanding
commercial practice," like the concept of "risk hedging" in Bilski. (Slip. Op.
at 10)

2) The Court looks to see if the patent adds anything more to the abstract
idea, and concludes that all it does is describe how to implement the idea in
a general computer, in the generic and conventional way. (Slip. Op. at 12, 15)
The Court analogizes to Mayo, in which it decided that the claimed method
amounted to no more than instructing doctors as to how to use a well-known
process for measuring metabolite levels to diagnose their patients. (Slip. Op.
at 11) The Court states that the claimed method simply describes how to
instruct a computer to perform the abstract idea of intermediating settlement.
The Court makes a point of noting that the computer implementation described
here is "wholly generic" and that "[i]n short, each step does no more than
require a generic computer to perform generic computer functions." (Slip. Op.
at 13, 15)

3) The Court concludes that the "system" claims are no different in substance
from the method claims: "But what petitioner characterizes as specific
hardware—a 'data processing system' with a 'communications controller' and
'data storage unit,' for example, see App. 954, 958, 1257—is purely functional
and generic. Nearly every computer will include a 'communications controller'
and 'data storage unit' capable of performing the basic calculation, storage,
and transmission functions required by the method claims." (Slip. Op. at 16)

~~~
throwawaykf05
Haven't finished reading it, but...

 _> The Court says that an abstract idea need not reduce to some fundamental
truth that has always existed. It is sufficient for it to be a "fundamental
economic practice" or "longstanding commercial practice," like the concept of
"risk hedging" in Bilski. (Slip. Op. at 10)_

If your quote is accurate, and they applied the same logic as Bilski, this
sounds like they're conflating _patent eligibility_ (101) and _patentability_
(102, 103 etc.) again. To understand the difference between "patent-eligible"
and "patentable", if you invent a car colored red [1], it's _patent-eligible_
because a car is an articles of manufacture i.e. it satisfies 101. But it's
not _patentable_ because red cars have been around forever, i.e. it fails 102.

For those of you following along at home, 101, 102 and 103, etc. are bars that
patent claims must clear to be valid. 101 is "patent eligibility", i.e. it
excludes things like laws of nature and "abstract" ideas. 102 is novelty, i.e.
it excludes things found in the prior art. 103 is non-obviousness, i.e. it
excludes things that are _obvious_ (note: not "trivial") combinations of
existing prior art. These are long-standing principles for judging patents,
each providing a distinct criteria for judging and invalidating a patent, and
this arrangement has a long, well-known and mostly consistent history behind
it.

Now essentially, the SC is saying "prior art" can sometimes make something an
"abstract idea". You don't have to be a patent lawyer to see that this does
not really make sense.

This patent is obviously invalid, but we already have the tool for
invalidating it, and that's section 102: a "longstanding commercial practice"
or "fundamental economic practice" clearly falls under the umbrella of prior
art -- things we already knew.

By mixing 102 analysis with 101 analysis, they're just "muddying the water"
even more. I'm guessing this is going to make the PTO's and Federal Circuit's
job even harder and more inconsistent.

1\. Whether a "car" is an abstract concept is not relevant to the analogy.

~~~
rayiner
Your point is, at a purely statutory level, fairly compelling. And it's
essentially the point the plaintiffs made in this case: the "abstract
principle" exception to subject matter eligibility should be construed
narrowly, given the broad wording of 101 and the fact that it's a judicially-
created exception.

But, invalidating this patent on 101 grounds versus 103 grounds is not the
same. Subject matter eligibility is something that can be ruled on in a motion
to dismiss, In re Bilski, 545 F.3d 943, 951 (Fed. Cir. 2008), while
obviousness will generally need to wait after claim construction. It should be
possible to knock out patents that claim a fundamental practice in any field
as early as possible.

You can make other distinctions between "a fundamental practice" and "prior
art," too. In the field of cooking, do we have to point out prior art for
making a roux, or do we just accept that someone, perhaps many someones
independently, did it sometime long ago, but it's so established now that it
might as well be a fundamental law of the field?

Over time, the Supreme Court has been beefing up 101 as a bar to patent
eligibility. Is the interpretation in CLS v. Alice the one that's most
faithful to the text of the statute? Probably not. But interpretation in the
name of controlling the flow of litigation in lower federal courts is one of
the key roles of the Supreme Court.

~~~
gbhn
I have a tangentially related question: has there been any thought given to
raising patent validity standards around teachability? A big constitutional
point of a patent is to teach someone "skilled in the art" how to replicated
the subject matter of the patent. That's typically intepreted as "can you pay
an expert witness to claim the patent teaches them to construct the claimed
infringement," which is, of course, always true. But to me, this seems like
fertile ground for the defense, and ought to be a negative test: can the
defense find an expert witness to say that the patent is too vague,
unspecific, or abstract to teach them to construct the claimed infringement.

Is this approach ever tried in these cases? It seems to me that the more
convoluted and abstract the patent (which seems to be the point of many of
these patents explicitly written to try and reach as broad as possible), the
more juries will tend to identify with the expert saying "I can't make heads
or tails of this thing" and invalidate bad patents as simply failing to
adequately teach the construction of the infringement claim.

~~~
rayiner
This would be a challenge to the validity of a patent on Section 112 grounds.
However, there would not be an expert witness involved, as it's a question of
law to be determined by a judge. See:
[http://scholar.google.com/scholar_case?case=1212705333151944...](http://scholar.google.com/scholar_case?case=12127053331519441965&q=947+F.2d+488&hl=en&as_sdt=6,39)
(Section B, starting on page 495). This does get used in practice,
successfully.

------
jackgavigan
This is fantastic news. Those patents were ridiculous.

Part of my day job is figuring out how to go about automating or
"electronifying" processes relating to financial trading and risk management.
In other words, I look at things that people currently do manually (or decide
in their heads) and I figure out how it can be codified into language or an
algorithm that a developer can turn into code.

Patents like this (and plenty of similar patents that have been granted[1])
effectively try to claim ownership over the concept of automating what is
usually (but not always) a pre-existing business process, using a computer.
That's not invention. It's problem-solving. And it's not like the person
filing the patent is even solving the problem - they're just patenting the
_concept_ of a solution to that problem.

In effect, they're trying to patent my work output. It's like someone filed a
patent ten years ago on "Methods and apparatus relating to the matching of
people seeking temporary accomodation and householders who are willing to rent
out their spare rooms", without ever actually having built implemented it,
then popped up when Airbnb came along, saying "Hey, we have a patent on that!
Pay up!"

Good fucking riddance.

[1] For examples, see [http://www.faqs.org/patents/assignee/goldman-sachs-
co/](http://www.faqs.org/patents/assignee/goldman-sachs-co/)

~~~
makomk
Yeah, it's absurd. Somehow, patent applicants have been able to have their
cake and eat it - they've been able to get away without having to describe how
to actually solve the problem because it's obvious to someone skilled in the
art, but yet still get a patent for it because at the same time it's
supposedly not obvious to those skilled in the art.

------
spacemanmatt
Today I mourn the end of Groklaw, where I would have gone to get the very
finest in public discourse and debate about the ruling.

~~~
angersock
Yep. Damn shame. :(

~~~
ascotan
I didn't know they went down. Terrible.

~~~
SAI_Peregrinus
With the Snowden releases PJ realized she couldn't protect the anonymity of
her sources, so she shut down to keep them safe.

------
notacoward
I think the key sentence is this.

"claims, which merely require generic computer implementation, fail to
transform that abstract idea into a patent-eligible invention"

In other words, start with an idea that's not patentable because it's
abstract. Merely specifying its implementation on a computer doesn't make the
original idea more concrete or more patentable. Therefore the claim on the
idea is invalid, therefore other claims based on that one are too. So what's
left?

If the _application to a computer_ is itself both novel enough and concrete
enough, then that might still be considered patentable. Is that possible?
Isn't the application to a generic computer still basically an abstract idea?
Must it be an application to a _specific_ type of computer to qualify? I think
questions of this sort are going to be the new battleground. The war
continues, but the front has moved in what seems to be a good direction.

Disclaimers: (1) IANAL, (2) I have a bunch of patents both granted and pending
through my employer, so this decision might actually hurt me financially.

~~~
dragonwriter
> In other words, start with an idea that's not patentable because it's
> abstract. Merely specifying its implementation on a computer doesn't make
> the original idea more concrete or more patentable. Therefore the claim on
> the idea is invalid, therefore other claims based on that one are too. So
> what's left?

Computer implementations that are not "generic". A _specific_ computer
implementation of an abstract idea might be patentable. But a _generic_ one
(i.e., one that amounts to _< abstract idea>_ \+ "on a computer") is not.

> If the application to a computer is itself both novel enough and concrete
> enough, then that might still be considered patentable. Is that possible?

Exactly, though, really, the nature of general purpose digital computers is
such that, if its not calling for novel hardware, that is probably
indistinguishable from a generic computer implementation of a more concrete
version of the abstract idea, which concrete version would probably itself be
patentable independent of the computer implementation.

~~~
rayiner
Take, for example, IBM's patents on alias analysis. You can't patent the
abstract concept of alias analysis, even if you describe how to do it in very
generic terms on a computer. However, you can probably patent Steensgard's
specific, near-linear-time algorithm for doing so:
[http://www.cs.utexas.edu/users/pingali/CS380C/2007fa/papers/...](http://www.cs.utexas.edu/users/pingali/CS380C/2007fa/papers/steensgard.pdf).

~~~
sanxiyn
Why wouldn't Steensgaard's algorithm be an abstract idea?

There is a difference, since unlike hedging (Bilski) and clearing house (Alice
Corp) it is a _novel_ abstract idea. But it is still an abstract idea, and
logically, should not be patentable.

Stålmarck's algorithm is a similar case. Can't argue it is not novel, but 100%
abstract. Parabix is another.

~~~
rayiner
I tend to think of these things as an engineer, rather than a mathematician. A
mathematician will say that all algorithms are abstract ideas. I tend to think
that "alias analysis" is the abstract idea, while Steensgaard's algorithm is a
specific, concrete way of implementing the idea with desirable properties and
trade-offs.

~~~
Tyr42
Then, are mergesort and quicksort both patentable as specific, concrete ways
of implementing the idea of sorting with desirable properties and trade-offs?

------
revscat
From p. 15 of the decision:

"The method claims do not, for example, purport to improve the functioning of
the computer itself. See ibid. ('There is no specific or limiting recitation
of... improved computer technology...'); Brief for United States as Amicus
Curiae 28–30. Nor do they effect an improvement in any other technology or
technical field. See, e.g., Diehr, 450 U. S., at 177–178. Instead, the claims
at issue amount to 'nothing significantly more' than an instruction to apply
the abstract idea of intermediated settlement using some unspecified, generic
computer."

I don't see this decision as being too far removed from previous decisions.
Regardless, this is a step in the right direction, and is a(nother) blow
against the patentability of abstract ideas, and a blow against the patent
trolls.

Separately, no decision on ABC vs. Aereo issued today. Aereo lives to see
another day, then. Good.

------
mbell
I think the section throwing out the BS 'computer system assembly' bit may
have the largest impact. I've read a number of patents that use that as their
only real mechanism to be granted (see page 16 section C).

~~~
cratermoon
Yes, but it's about 2 decades too late. All the "...on a computer" patents
that cover the big things -- selling books, taking a picture on a white
background, measuring distances -- have been done and extracted their costs
from the industry and consumers.

~~~
mbell
I think there is value in this ruling beyond 'what is a computer'. For example
I founded a startup a number of years ago to do traffic monitoring with an
FMCW radar based sensor. In the process of researching patents in the area I
found a bunch of patents that were in effect 'radar applied to traffic
monitoring'. IANAL but my interpretation of a large number of them was that
they were granted based heavily on block diagrams that 'looked novel' but
where really just a matter of taking the block diagram of any old off the
shelf DSP SoC and dumping it in the patent (in uglier form of course). It is
the same as how ridiculous patents are written for software, 'A system
comprising of an analog to digital conversion module, a filtering module, a
mixing module, a processing modules....blah, blah, blah'. Depending on the
interpretation of this ruling (which I don't know enough to comment on), it
could impact a lot of patents, both in and out of the software space.

------
sanxiyn
Favorite quote:

"This Court has long warned against interpreting 101 in ways that make patent
eligibility depend simply on the draftman's art."

------
cbr
"Held: Because the claims are drawn to a patent-ineligible abstract idea, they
are not patent eligible"

~~~
wging
(Decided unanimously.)

~~~
mcdan
a concurrent not dissenting opinion was filed so it wasn't a 5-4 split or
something, the other justices came to the same conclusion just via a different
route.

~~~
sanxiyn
(Very short) concurring opinion is there because those judges believe all
business method patents should be abolished, just as they believed so in
Bilski v. Kappos.

------
ajb
Is Gene Quinn pissed at this: [http://www.ipwatchdog.com/2014/06/19/scotus-
rules-alice-soft...](http://www.ipwatchdog.com/2014/06/19/scotus-rules-alice-
software-claims-patent-ineligible/id=50120/)

"In what can only be described as an intellectually bankrupt opinion..."

Wow.

He thinks it will invalidate lots of software patents - not by invalidating
software patents per se, but the way they have been written to date. I'm not
qualified to give an opinion, but I would be interested to know if that is a
mainstream view.

~~~
fpgeek
Oh my god. I can only hope his views aren't mainstream. Quoting from the link:

"This doesn’t mean that moving forward software won’t be patentable, it just
means that getting a software patent will be much more difficult than it ever
has been. Software can be described by reference to a series of physical
actions operating through gates. This type of micro level description of what
happens is going to be required, which means getting a patent for software has
just become much more expensive and time consuming."

The disconnect between how he (apparently) thinks software works and what
really happens is mind-boggling. He seems to have absolutely no idea that the
same program (even down to the same machine code) will create radically
different "physical actions operating through gates" on processors with
different micro-architectures (or with an emulator or ...). Even if you could
get a patent based on a description of these "physical actions" in a specific
execution context, such a patent would be practically worthless. It would be
like having a patent on implementing your idea on a Pentium. Anyone could
trivially get around that by choosing a Pentium Pro (or an Athlon or some
random ARM core or whatever).

~~~
jacquesm
I'd really like to see him try. Even the most trivial operation will run to a
few thousand pages of very fine print. Patent examiners will have a new use
for applications: fuel.

------
helper
The Court has begun to limit the scope of software patents, but has not
eliminated them. This ruling is a step in the right direction and the
unanimity of the Court should be taken as a positive sign for future cases.

------
higherpurpose
Some thoughts on the ruling:

[http://www.vox.com/2014/6/19/5824130/7-thoughts-on-the-
supre...](http://www.vox.com/2014/6/19/5824130/7-thoughts-on-the-supreme-
courts-software-patent-ruling)

Shame they didn't abolish the business method patents at the very least, if
not all software patents.

------
not_that_noob
Great decision. Once in a while they do get it right :)

The hard part was balancing genuine innovation (from small inventors, pharma,
etc.) vs. squashing trolls. This goes a long way toward whacking trolls while
leaving in place what the patent system was meant for - the fostering of
innovation for the benefit of society. Well played.

------
sanxiyn
This basically seems to be a verbatim repeat of Bilski v. Kappos.

~~~
phkahler
And we shall continue to get repeats until someone actually forces the lower
courts to get their shit together or go home.

~~~
dragonwriter
Both the District Court and the _en banc_ panel of the CAFC came to the same
conclusion as the Supreme Court, it was only the initial appeal to a smaller
CAFC panel that came to a different conclusion.

So its really hard to paint this Supreme Court decision as essential because
the "lower courts" are not getting things right, since both the trial court
and the last panel before the Supreme Court to hear the case got it right
(insofar as the Supreme Court decision defines "right".)

------
wes-exp
Summary: [http://patentlyo.com/patent/2014/06/claims-invalid-
section.h...](http://patentlyo.com/patent/2014/06/claims-invalid-section.html)

------
PolemicThoughts
“Simply appending conventional steps, specified at a high level of
generality,” to a method already “well known in the art” is not “enough” to
supply the “ ‘inventive concept’ ” needed to make this transformation [into a
patent-eligible invention].

How does this differ from/alter existing law? Is this ruling just a
clarification?

~~~
smackfu
In the federal court decision, there were dissents about how to decide that
the patent was invalid, although everyone agreed it was invalid. The details
are over my head.

------
eqnoob123
When I saw the headline I wished it was Alice Corp v. Bob Bank

------
sthu11182
A little more clarity on abstract ideas, but not much more

------
zenciadam
rip amazon one click patent.

------
spacemanmatt
Let the motions for summary judgement commence!

