"Software patents," starting out with the infamous XOR cursor patent and ending with "what is an algorithm." A discussion of software protection, infringement, and the LZW patent. Here we have patent lawyers and software geeks, and a classic failure to communicate.
Subject: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Sat, 01 Aug 1998 10:12:42 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35C2EA1A.4711E3ED@ix.netcom.com> References: <werdna-3007980805340001@tpafx1-31.gate.net> <35BC1CCE.C81EA3C8@ix.netcom.com> Newsgroups: misc.int-property Lines: 37 Andrew C. Greenberg wrote: > > In article <35BC1CCE.C81EA3C8@ix.netcom.com>, kmself@ix.netcom.com wrote: > > > - Are the patents cited good examples? I believe the XOR > > window-blanking algorithm may have been successfully challenged. > > Cite the patent number. 4,197,590 If you don't mind a anti-IP screed, the League for Programming Freedom page with some additional information/adgitprop is here: http://lpf.ai.mit.edu/Patents/ The IBM Patent Search page for this patent: http://www.patents.ibm.com/details?patent_number=4197590 > -- > just another view, > Andy Greenberg > (remove "nonspam-" to get my real mailing address) -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 3:01am up 49 days, 30 min, 1 user, load average: 1.65, 1.28, 1.18
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Mon, 03 Aug 1998 08:26:59 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0308980826590001@tpafx1-56.gate.net> References: <35C2EA1A.4711E3ED@ix.netcom.com> Newsgroups: misc.int-property Lines: 85 In article <35C2EA1A.4711E3ED@ix.netcom.com>, kmself@ix.netcom.com wrote: > > > - Are the patents cited good examples? I believe the XOR > > > window-blanking algorithm may have been successfully challenged. > > > > Cite the patent number. > > 4,197,590 Thanks, Karsten. Please remind me of the question that was asked: "good examples" of what? I'll take a look. > If you don't mind a anti-IP screed, the League for Programming Freedom > page with some additional information/adgitprop is here: > http://lpf.ai.mit.edu/Patents/ Thanks for reminding me of this. I haven't looked at the site in years. It is interesting to note that the LPF's Conclusion, stated in 1990: > If nothing is changed, what is now an efficient creative activity will > become prohibitively expensive. To picture the effects, > imagine if each square of pavement on the sidewalk had an owner, and > pedestrians required a license to step on it. Imagine > the negotiations necessary to walk an entire block under this system. That > is what writing a program will be like if software > patents continue. The sparks of creativity and individualism that have > driven the computer revolution will be snuffed out. It's been almost ten years since this "call to action" was written. Since that time, the law has been clarified (most recently with State Street Bank), and software invention patents are no longer a LEGAL controversy. The "floodgates" have been open all of that time. Has anyone considered that the LPF's parade of horribles never happened? That the most prominent example of software patent enforcement has been a "right-on" "as-it-should-be" result in the STAC case? That the patent searching system has been getting better and better? Also, has anone considered the extent to which LPF's assertion that "software is cheap" is true? Does anyone really believe that commercial software can be produced by one or two programmers with about $10K equipment for about $100,000? Is it possible that the fantasy of cheap and good software was just that, a fantasy? [In my experience in the computer game business, those figures would have been a fantasy in the mid-80's]. Once again, my experience with those who challenge the patent system as applied to software inventions come with arguments in three principal areas: (1) Patents are Bad (2) Software Patents are Bad; and (3) Bad Software Patents are Bad. Noone will ever get any argument from me on Class 3 issues. I have been beating down bad patents, including bad software patents for years (just as I have been helpting to enforce good ones). As to deficiencies in the Patent System as a whole, while I understand some folks have a religious or fundamental political opposition to it, it has worked very well for hundreds of years and as many or more believe it to be a fundamental benefit to society as those who oppose it. I am prepared to defend the Patent System as a whole, and have in other threads, but its simply not an interesting point when conflated with the issues of software patents. Thus, the fundamentally intersting question to me is this: why are software patents different from other patent issues? If I can be persuaded that software patents are deficient, it would need to be on one of two bases: (A) that the bad software patents are inherent in the system and cannot be rooted out; or (B) that there is something fundamentally different about software that makes the benefits of the patent system unachievable or exacerbates the harms somehow when patents are applied. I have found this to be a useful analytical framework for considering arguments made concerning software invention patents. I am not particularly interested in the Class 1 arguments, as they address policies that are well-settled in the United States and are unlikely to be a basis for change in any policies. Nor are Class 3 arguments typically interesting unless they point to failings of the patent system that are inherent because of the nature of software examination, so much as properties of then-existing databases of prior art. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Mon, 3 Aug 98 14:30:44 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1252542284I@news.erols.com> References: <werdna-0308980826590001@tpafx1-56.gate.net> Newsgroups: misc.int-property Lines: 50 In Article <werdna-0308980826590001@tpafx1-56.gate.net>, werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: > >Thus, the fundamentally intersting question to me is this: why are >software patents different from other patent issues? If I can be >persuaded that software patents are deficient, it would need to be on one >of two bases: (A) that the bad software patents are inherent in the system >and cannot be rooted out; or >(B) that there is something fundamentally different about software that >makes the benefits of the patent system unachievable or exacerbates the >harms somehow when patents are applied. Perhaps it has something to do with the fact that the law was not originally written with software patents in mind? I believe software patents can be analogized with biotech patents in this regard. When the technology was relatively new, the laws were not written to address these technologies directly, because we simply could not anticipate the technology and the legal issues it would bring with its development. It took time, the resolution of several landmark cases, and some tweaking of the laws over the years to resolve the novel legal issues raised by software patents. In the meantime, examiners and patent professionals alike struggled with the law, and some patents were issued that, in hindsight, probably should not have issued (some were also rejected that should not have been). One can expect a large number of controversies when the law is unsettled like this. By now, software is not really a new technology anymore, most of the major legal issues have been resolved, and the state of the law is pretty clear. Today, however, biotechnology is in the same situation software was, although the cases coming down from the CAFC are beginning to give form and consistency to the law. Some biotech patents have been issued that probably should not have issued, and some are rejected when they probably should not be. Occasionally, a major case shakes the field and highlights the law. However, while Congress, the PTO, and the courts resolve these issues, there remain some very interesting legal questions regarding biotech patents, and it will take some time to resolve them. This situation seems reminiscent of the situation with software patents. In summary, some are probably just poor quality work, but many, if not most of the 'bad' patents are probably the result of examiners and practitioners (and the courts) being somewhat uncertain about how the law applies to a particular technology, especially while the technology and the law are co-evolving. Tracy Thomas T. Aquilla, Ph.D. Genetic Engineering and Biotech Research and Consulting, Ltd. taquilla@erols.com
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Mon, 03 Aug 1998 09:09:20 -0700 From: Bruce Hayden <bhayden@uswest.net> Message-ID: <35C5E0AF.7709655B@uswest.net> References: <lpurpleEx4Dyq.3Ln@netcom.com> <werdna-0308980826590001@tpafx1-56.gate.net> Newsgroups: misc.int-property Lines: 42 Lance Purple wrote: > How much does Linux cost? The GNU tools? The countless other freeware > tools you can find on the 'Net (POV-Ray, Arachnophilia, GRASS, etc.) > You may argue about whether these are "commercial" quality, but they > do exist, and are quite popular in their little niche markets. > I think that that is just it. You can indeed write niche products of less than commercial quality without a large programming investment. But serious software development requires serious financial investment, and software patents provide a mechanism to protect this financial investment. > These tools were typically created by small groups of unpaid hobbyists, > who would be instantly bankrupted if a patent suit were filed, even if > it turned out to be groundless. So far, LPF's fears haven't come true; > but it is a genuine risk, should Bill Gates et al decide that freeware > was eating up too much market share and needed to be stamped out. Of course, the problem here is that MS has not really been that agressive, at least until the last year or so, with patents. The result is that that company probably does not have that strong of a software patent portfolio. So, I would doubt seriously whether they could shut down for example Linux through legitimate patent infringment suits. The flip side of this is that MS is in my mind especially vulnerable to software patent infringement suits due to their belated interest in patents and their huge market share. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Mon, 03 Aug 1998 18:35:19 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35C602E7.383E5AD7@ix.netcom.com> References: <werdna-0308980826590001@tpafx1-56.gate.net> Newsgroups: misc.int-property Lines: 227 Andrew C. Greenberg wrote: > > In article <35C2EA1A.4711E3ED@ix.netcom.com>, kmself@ix.netcom.com wrote: > > > > > - Are the patents cited good examples? I believe the XOR > > > > window-blanking algorithm may have been successfully challenged. > > > > > > Cite the patent number. > > > > 4,197,590 > > Thanks, Karsten. Please remind me of the question that was asked: "good > examples" of what? I'll take a look. Jeremy Allison's original statement which I quoted was: > Don't say there aren't already such patents. The USA patent office will > issue patents on such things as mathematical formulae (RSA for example) > and on logical bit operations (the XOR patent that was used to threaten > the X Windows System). ....indicating, I believe, that XOR is trivial, obvious, and possibly non-novel. > > If you don't mind a anti-IP screed, the League for Programming Freedom > > page with some additional information/adgitprop is here: > > http://lpf.ai.mit.edu/Patents/ > > Thanks for reminding me of this. I haven't looked at the site in years. > It is interesting to note that the LPF's Conclusion, stated in 1990: > > > If nothing is changed, what is now an efficient creative activity will > > become prohibitively expensive. To picture the effects, > > imagine if each square of pavement on the sidewalk had an owner, and > > pedestrians required a license to step on it. Imagine > > the negotiations necessary to walk an entire block under this system. That > > is what writing a program will be like if software > > patents continue. The sparks of creativity and individualism that have > > driven the computer revolution will be snuffed out. See my post below in this thread WRT cross-licensing -- based on Bruce's comments. If OSS is as significant as I'd like to believe, it may be able to get "payment" in the form of cross-licensing protection from major players who would wield their own patent base to defend OSS. IBM is one such major player which has taken a significant interest in OSS. The funny thing about owning a bit of money making property is that you have to allow others to use it. With sufficient cross licensing, SW patents become almost irrelevent -- I think of analogies to real-estate with private land yet free access on a reciprocating basis. Yes, it's legally possible to play hardball, and a few owners of highly desireable property may be able to command significant access fees, but for the most part, it washes out. > Also, has anone considered the extent to which LPF's assertion that > "software is cheap" is true? Does anyone really believe that commercial > software can be produced by one or two programmers with about $10K > equipment for about $100,000? Is it possible that the fantasy of cheap > and good software was just that, a fantasy? [In my experience in the > computer game business, those figures would have been a fantasy in the > mid-80's]. Sendmail, Apache, Linux, FreeBSD, the Hurd, the Gimp, BIND, mySQL, KDE, Lyx, emacs, ROOT, mh/xmh, Samba, Mozilla, Tripwire, COPS, Cisco's print-network SW,.... And that's just off the top of my head. You're wrong on this Andy, but I'll still be your friend. My current axe to grind is that OSS is a large part of SW's future. It may not address all types of SW, but I believe the exceptions will be the minority. The model may also not be the "two programmers with $10k of equipment" scenario -- IMO, much OSS will emerge from corporate and/or academic settings as well. The money and the changes on industry are the interesting parts. Hence my interest in patent. > Once again, my experience with those who challenge the patent system as > applied to software inventions come with arguments in three principal > areas: > > (1) Patents are Bad > (2) Software Patents are Bad; and > (3) Bad Software Patents are Bad. The following is a transcript (my tape, my typing) of a question and response at the 7/14/98 Future of Linux Forum. Again, this is a demonstration of the *perception* of patent in the OSS community, not necessarily the actual legal situation. Speakers are a Debian developer, Linus Torvalds, Larry Augustine (runs a HW company, VA Research), and the now familiar Jeremy Allison. Larry is the businessman of the group. Questioner (Debian developer) Hi there, I'm a developer for Debian Linux. I maintain a number of packages like the Red Hat folks for things like the Gimp [a graphics tool like Photoshop]. My question is: a lot of users want features for the Gimp like Pantone (r), which is a commercial patented algorithm and set of number for professional printing. I ran into some problems with things like GIF and TIFF algorithms are also patented. We can't distribute them. What does the Open Source world do about software patents, algorithm patents, things like that -- how can OS products like the Gimp compete with Photoshop because they can't make print-ready file submissions [? garbled] -- they're not allowed to be patented? Responses: Linus Torvalds: That's a real can of worms. Patents, especially software patents, are the worst thing that can happen to freely available software. It's just too dangerous to let people do patnets on something that is fundamental research, in many cases, or patent a series of numbers like you mentioned. It does not make sense, and it's sad (?) that it's allowed, and it's a real problem. The only real solution is to A). hope that the patent expires which takes a long time or B). that you create something that is obviously better and patent-free. And by being patent free you find others who are willing to support your sales (?) and just make sure that maybe Pantone(r) will be there in five years time, but there will be something else too. I'm sorry, there's not much you can do unless you want to spend a lot of money on trying to convince politicians to make certain things illegal. Larry Augustin (VA Research, Linux International) I'd just like to ask you to when you run across these issues make them known to people like Linux International (http://www.li.org) and let us know at Linux International if you run into something like that. We might not be able to help, but on the other hand with maybe ally the vendors like VA, Red Hat, the other people, maybe working together we can try to help you out. Jeremy Allison (Samba) Software patents really are a hidious blot on the software industry, there's no mincing words about it. But I believe that most insane software makers only actaully occur in the U.S. And what this means is that essentially insane software patents end up exporting U.S. jobs. You can make software using the trivial well-known algorithms, they just can't do it in the U.S. ....which may address: > Thus, the fundamentally intersting question to me is this: why are > software patents different from other patent issues? If I can be > persuaded that software patents are deficient, it would need to be on one > of two bases: (A) that the bad software patents are inherent in the system > and cannot be rooted out; or > (B) that there is something fundamentally different about software that > makes the benefits of the patent system unachievable or exacerbates the > harms somehow when patents are applied. My own interpretation: The problem from the developer's perspective of XOR is that this is a trivial and possibly non-novel concept now protected by patent -- which addresses a ubiquitous problem in GUI programming. With Pantone, both the maker and users of the GIMP are denied access to several storage/presentation formats which are extremely widespread, industry standard, and in many cases required for consideration of submitted works. I believe the underlying issue is anti-trust or unfair competition -- OSS and its users are placed at an unfair disadvantage by being unable to utilize patented methods -- OSS simply doesn't have the business organization to be able to do so. At least one OSS license, the GPL, makes pretty clear in its preamble that program creators should not apply the GPL to software using patented methods (http://www.fsf.org/). Pantone was also cited as being in part "a series of numbers". I'm unfamiliar with the specific patent. There is a Pantone website (http://www.pantone.com/) which doesn't reference any patent numbers. IBM patent search suggests: 4878977 http://www.patents.ibm.com/details?&patent_number=4878977 4812899 http://www.patents.ibm.com/details?&patent_number=4812899 ....interestingly, these are neither SW nor US patents (inventor is in Germany). The Pantone page suggest the original patent may be much older, possibly 1963, inventor Lawrence Herbert (http://www.pantone.com/aboutpantone/lh_bio.htm) In general, many OSS developers have neither the expertise nor financial resources to either ensure that their creations are free of infringing patents or can be defended legally should such a claim be made. Because independent discovery isn't a defense, there is significant concern. There is also the "offshore" argument made by Allison. SW patents are principally a US phenomenon (AFAIK). Will OSS SW innovation be moved offshore with significant IP barriers in the US? Will the fact that users can be infringers of patent dissuade "deep pockets" users -- major corporations -- from adopting OSS out of liability concerns? Thanks. > Andy Greenberg P.S.: Entsheidungsproblem? -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 10:41am up 51 days, 8:10, 3 users, load average: 0.96, 0.50, 0.41
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Tue, 04 Aug 1998 00:19:38 GMT From: "Victor A. Wagner, Jr." <vawjr@home.com> Message-ID: <35C6538A.1470215B@home.com> References: <35C602E7.383E5AD7@ix.netcom.com> Newsgroups: misc.int-property Lines: 42 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Karsten M. Self wrote: > > Andrew C. Greenberg wrote: > > [deleted] > Jeremy Allison's original statement which I quoted was: > > > Don't say there aren't already such patents. The USA patent office will > > issue patents on such things as mathematical formulae (RSA for example) > > and on logical bit operations (the XOR patent that was used to threaten > > the X Windows System). > > ....indicating, I believe, that XOR is trivial, obvious, and possibly > non-novel. Maybe if you'd been around in the 1960's when Raytheon originally filed for the XOR (to generate a 'blinking cursor' you would have done what everyone else I knew in the business did: smack their forhead and make a comment like "F**K, why didn't I think of that". Which makes it non-obvious just in case you missed the point. - -- Victor A. Wagner, Jr. Candidate for Congress; 47th District, California Secretary, Orange County Libertarian Party Central Committee PGP RSA fingerprint = 4D20 EBF6 0101 B069 3817 8DBF C846 E47A PGP D-H fingerprint = 98BC 65E3 1A19 43EC 3908 65B9 F755 E6F4 63BB 9D93 The five most dangerous words in the English language: "There oughta be a law" -----BEGIN PGP SIGNATURE----- Version: PGP for Personal Privacy 5.5.3 iQA/AwUBNcZTiPdV5vRju52TEQK36QCgyJIHb5C/xZuK3VHEbfSncmzt0OYAn1eH EjrpFFlfkvsyMjZD5Hzp9/R3 =EzxJ -----END PGP SIGNATURE-----
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Mon, 03 Aug 1998 21:58:38 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0308982158380001@tpafx1-56.gate.net> References: <35C602E7.383E5AD7@ix.netcom.com> Newsgroups: misc.int-property Lines: 142 In article <35C602E7.383E5AD7@ix.netcom.com>, kmself@ix.netcom.com wrote: > > Also, has anone considered the extent to which LPF's assertion that > > "software is cheap" is true? Does anyone really believe that commercial > > software can be produced by one or two programmers with about $10K > > equipment for about $100,000? Is it possible that the fantasy of cheap > > and good software was just that, a fantasy? [In my experience in the > > computer game business, those figures would have been a fantasy in the > > mid-80's]. > > Sendmail, Apache, Linux, FreeBSD, the Hurd, the Gimp, BIND, mySQL, KDE, > Lyx, emacs, ROOT, mh/xmh, Samba, Mozilla, Tripwire, COPS, Cisco's > print-network SW,.... And that's just off the top of my head. Why does everybody presume that I meant by "cheap" or "expensive," the cost to acquire the software once it has been built? I was responding to Allison's assertion that Software is cheap TO MAKE. It isn't, and hasn't been for years. Everyone of the preceding software packages required many an-years of efforts to create and perfect, and in many cases was made by or derived from substantial government-funded efforts -- often involving more than a few renegate programmers in their garage and in their spare time. > You're wrong on this Andy, but I'll still be your friend. Me too, but I don't think I'm wrong. Serious software requires a serious effort, whether the effort is volunteer or otherwise. Allison's "distinction" is no distinction at all, regardless of the price someone may demand for the results of that effort, or who paid to have it created. > Jeremy Allison (Samba) > > Software patents really are a hidious blot on the software industry, > there's no mincing words about it. But I believe that most insane > software makers only actaully occur in the U.S. And what this means > is that essentially insane software patents end up exporting U.S. > jobs. Name three jobs that were so exported. The U.S. is one of the most significant markets for software, and the creation of software abroad doesn't help avoid infringement. A patent is infringed whenever the claimed invention is made, used, sold, offered for sale or imported into the U.S. Sure, if the patent doesn't have a foreign counterpart, the patent can be practiced outside the U.S. for sale into foreign marketplaces; but that presumes there is no foreign counterparts, and that the U.S. market is insignificant to the enterprise or any of its customers. > You can make software using the trivial well-known > algorithms, > they just can't do it in the U.S. or sell it in the U.S., or offer it for sale in the U.S., or sell it to someone who will use it in the U.S., or try to import it ino the U.S. I'm not worried. And serious patents are as likely to have counterparts in most other serious software marketplaces. I suspect that far more jobs are ASSURED in the U.S. because the software patents can be protected here and abroad than are lost because of Allison's claims. > My own interpretation: > > The problem from the developer's perspective of XOR is that this is a > trivial and possibly non-novel concept now protected by patent -- which > addresses a ubiquitous problem in GUI programming. Have you noticed that GUI programming is ubiquitous and there haven't been massive lawsuits? What does this suggest about the so-called XOR patent? Perhaps its scope has been widely exaggerated or its enforceability seriously compromised. I haven't seen us fored back into the land of DOS, have you? > With Pantone, both the maker and users of the GIMP are denied access to > several storage/presentation formats which are extremely widespread, > industry standard, and in many cases required for consideration of > submitted works. I believe the underlying issue is anti-trust or unfair > competition -- OSS and its users are placed at an unfair disadvantage by > being unable to utilize patented methods -- OSS simply doesn't have the > business organization to be able to do so. From "The Princess Bride," re: use of "anti-trust or unfair competition." These words, I do not think they mean what you think they mean. > Pantone was also cited as being in part "a > series of numbers". > > I'm unfamiliar with the specific patent. There is a Pantone website > (http://www.pantone.com/) which doesn't reference any patent numbers. > IBM patent search suggests: > 4878977 http://www.patents.ibm.com/details?&patent_number=4878977 > 4812899 http://www.patents.ibm.com/details?&patent_number=4812899 My experience is that the great majority of criticisms of software patents involve an equally detailed analysis. I am likewise unfamiliar with the specific patent. Let's look at it before we jump to conclusions, OK? > The Pantone page suggest the original patent may be much older, possibly > 1963, inventor Lawrence Herbert > (http://www.pantone.com/aboutpantone/lh_bio.htm) That would not be a great threat in 1998. > In general, many OSS developers have neither the expertise nor financial > resources to either ensure that their creations are free of infringing > patents or can be defended legally should such a claim be made. Because > independent discovery isn't a defense, there is significant concern. Sure. So you do what all developers do. You get a lawyer and ask. If you are doing it for free, and what you are doing is truly a community service, you get pro bono lawyers to ask. Alterantively, get a sponsor. Have you noticed that ALL public television and radio programming is copyrighted, and requires licenses to broadcast? This has not prevented PBS from being able to provide its remarkable offerings free to the public. Don't forget, these things are PROPERTY of others. Tread carefully and do good, if that is what you are doing. > > There is also the "offshore" argument made by Allison. SW patents are > principally a US phenomenon (AFAIK). Think again. > Will OSS SW innovation be moved > offshore with significant IP barriers in the US? Will the market in the U.S. disappear or benefit from U.S.'s strong IP protection of software inventions? How has that happened in the past. This is a "Patents are Bad" argument, and history indicates otherwise. Weak IP nations have traditionally lagged way behind strong IP nations both in terms of the markets for the IP and the market's ability to create IP. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Mon, 03 Aug 1998 21:34:23 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0308982134230001@tpafx1-56.gate.net> References: <6q4s7p$hv5$1@samba.rahul.net> <werdna-0308980826590001@tpafx1-56.gate.net> Newsgroups: misc.int-property Lines: 28 In article <6q4s7p$hv5$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: > In <werdna-0308980826590001@tpafx1-56.gate.net> werdna@nonspam-gate.net > (Andrew C. Greenberg) writes: > > >Has anyone considered > >that the LPF's parade of horribles never happened? That the most > >prominent example of software patent enforcement has been a "right-on" > >"as-it-should-be" result in the STAC case? > > This is a matter of opinion. Why should anybody have a monopoly on a > concept as basic as "when compressing a device don't change its name"? Rahul likes to say things like "it is a matter of opinion." But it is not a matter of opinion that the Pollyana LPF claims never occurred: the software industry was not brought to its knees by rampant patent infringement actions; free software prospers and by all accounts, the market has grown enormously and become ever-increasing in importance to the GNP. LPF in 1991 said patents would bring the software industry to its knees. That didn't happen, and its NOT a matter of opinion. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: 4 Aug 1998 08:40:13 GMT From: c.c.eiftj@12.usenet.us.com (Rahul Dhesi) Message-ID: <6q6hdd$rk1$1@samba.rahul.net> References: <werdna-0308982134230001@tpafx1-56.gate.net> Newsgroups: misc.int-property Lines: 30 In <werdna-0308982134230001@tpafx1-56.gate.net> werdna@nonspam-gate.net (Andrew C. Greenberg) writes: >> This is a matter of opinion. Why should anybody have a monopoly on a >> concept as basic as "when compressing a device don't change its name"? >Rahul likes to say things like "it is a matter of opinion." But it is not >a matter of opinion that the Pollyana LPF claims never occurred: the >software industry was not brought to its knees by rampant patent >infringement actions; free software prospers and by all accounts, the >market has grown enormously and become ever-increasing in importance to >the GNP. The entire high-tech industry has exploded, probably in a geometric progression. This observation cannot be used to prove anything about whether or not software patents are good. >LPF in 1991 said patents would bring the software industry to its knees. >That didn't happen, and its NOT a matter of opinion. Most commercial software is distributed in binary-only form, so it's quite hard to know what is happening inside that might violate a patent. What we have here is a ticking time-bomb. I still want to know why should anybody have a monopoly on a concept as basic as "when compressing a device don't change its name." -- Rahul Dhesi <dhesi@spams.r.us.com> "Frankly, sir, nobody is that much of an expert on anything, at least not on usenet." -- Andy Greenberg <werdna@gate.net>
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Tue, 04 Aug 1998 01:54:50 -0700 From: Bruce Hayden <bhayden@uswest.net> Message-ID: <35C6CC5A.EA51905A@uswest.net> References: <6q6hdd$rk1$1@samba.rahul.net> Newsgroups: misc.int-property Lines: 34 Rahul Dhesi wrote: > Most commercial software is distributed in binary-only form, so it's > quite hard to know what is happening inside that might violate a patent. > What we have here is a ticking time-bomb. I seem to have missed the point here. You seem to be arguing that since it is hard to detect and determine software patent infringement, that software patents are inherantly bad. Your original proposition would seem to result in a contrary result: that software patents are not as valuable as some others due to these problems. In any case, software patents are not unique in this respect. Electronic circuit patents are in my mind probably worse. Ever try finding a certain configuration of say six transistors on an IC with six million transistors? It is nearly impossible. > I still want to know why should anybody have a monopoly on a concept as > basic as "when compressing a device don't change its name." Do you have a patent number and claim number that you are referring to here? -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Tue, 04 Aug 1998 23:02:09 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0408982302090001@tpafx1-102.gate.net> References: <6q6kl5$shm$1@samba.rahul.net> <35C6CC5A.EA51905A@uswest.net> Newsgroups: misc.int-property Lines: 50 In article <6q6kl5$shm$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: > In <35C6CC5A.EA51905A@uswest.net> Bruce Hayden <bhayden@uswest.net> writes: > > >> Most commercial software is distributed in binary-only form, so it's > >> quite hard to know what is happening inside that might violate a patent. > >> What we have here is a ticking time-bomb. > > >I seem to have missed the point here. You seem to be arguingthat since > >it is hard to detect and determine software patent infringement, that > >software patents are inherantly bad. > > My argument was perhaps not very clear. I was responding to a claim > from Andy. Here is a restatement of what I was saying: "Since most > commercial software is distributed in binary-only form, many existing > patents are probably being infringed by commercial software but nobody > knows it yet. This is a ticking time bomb that will eventually explode, > as people begin to suspect patent infringement and begin to take steps > to verify these suspicions." And Bruce asked you to distinguish this from other industries with similar circumstances -- indeed from virtually every method of manufacture patent. Many complex devices are distributed in completed form without a comprehensive schematic or buildout plan. Moreover, Dhesi's "time bomb" has been "ticking" for 10 years and not a single glitch. Not bad to disprove the proposition that this would soon bring the software industry to its knees. Indeed, the "time bomb" is merely an attempt to fabricate a non-falsifiable proposition so he could continue to argue in conspiracy theory fashion the already discredited LPF party line. > >> I still want to know why should anybody have a monopoly on a concept as > >> basic as "when compressing a device don't change its name." > > >Do you have a patent number and claim number that you > >are referring to here? > > The infamous STAC patent is numbered 5,414,850. Please see my posting > <6q5dpb$l84$1@samba.rahul.net> for more information. Claim 1 is > reproduced below. It clearly does not create a monopoly no the concept "when compressing a device don't change its name. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Wed, 05 Aug 1998 00:56:43 -0700 From: Bruce Hayden <bhayden@uswest.net> Message-ID: <35C8103B.3D544973@uswest.net> References: <werdna-0408982302090001@tpafx1-102.gate.net> Newsgroups: misc.int-property Lines: 39 Andrew C. Greenberg wrote: > Moreover, Dhesi's "time bomb" has been "ticking" for 10 years and not a > single glitch. Not bad to disprove the proposition that this would soon > bring the software industry to its knees. Indeed, the "time bomb" is > merely an attempt to fabricate a non-falsifiable proposition so he could > continue to argue in conspiracy theory fashion the already discredited LPF > party line. Indeed, if you accept that a number of basic concepts have been patented in the software arts due to the PTO's inability to adequately search the patent art (the later at least is a constant refrain from Greg Aharonian), then many of these basic concept software patents should be coming up on their half life, without having done any noticable damage. Note too that this is the point that many patent holders start to drop payment of maintenance fees on nonperforming patents. Of course, I don't really accept that premise. Partly this is a result of facing on more than one occasion basic CS art (such as Knuth) cited by an examiner as 102 art. Sure, sometimes they miss the basic CS references. But more and more, as the patent examination corp builds up software expertise, and CS people continue to be hired as examiners, the basic stuff is missed less and less. My statements here are of course limited to my own personal experiences prosecuting software patents, and the shared personal experiences of other patent professionals doing the same. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Fri, 07 Aug 1998 08:03:14 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0708980803140001@tstpa1-110.gate.net> References: <35CA3F79.48F65F4B@shore.net> <barmar-0608980856260001@barmar.ne.mediaone.net> Newsgroups: misc.int-property Lines: 51 In article <35CA3F79.48F65F4B@shore.net>, John W Gintell <gintell@shore.net> wrote: > I think that one thing that distinguishes the software industry from > most others is that the capital investment for inventing software > is nil and that there are vast numbers of very small enterprises > (1 person) who are creating software. And with the internet and electronic > commerce it is economically feasible to distribute this software and get paid > for it. This is becoming less and less true. The capital necessary to establish a competitive and effective start-up venture has grown from NIL (when we started Andrew Greenberg, Inc. and Sir-Tech from a closet) to millions. The cost of art alone for most computer games is larger than the annual revenues of many companies in the garage days. Manufacturing software is very cheap compared to, say, manufacture of cars -- and it is true that you don't need a factory to do it -- but design and implementation costs have gone well through the roof. > With the rapidly increasing number of software patents it is getting > more likely that these entrepreneurs are going to start inadvertently > infringing patents. The large enterprises that hold lots of patents > will have a pretty good arsenal to go after these people and they might just > do so. The standard way to fight patent infringement is to have your own arsenal > of patents and to file or threaten a countersuit. These small entrepreneurs > can't spend the money and time to file their own. Further, it is very > expensive and time consuming to deal with this situation. This isn't different from other industries. The costs of obtaining patent protection is small compared to say costs of advertising and costs of software development. A decent measure for this is that the "rapidly increasing number of software patents" has been going on for more than a decade, yet the parade of horribles simply hasn't happened. Perhaps State Street Bank may encourage patent owners to become more agressive. Perhaps. But we have had Federal Circuit opinions "open the floodgates" before and . . . nothing. In my relatively limited experience (which is substantialy greater than most), the software patent system has worked well, dealt with real inventions and led to reasonable commercial results. True, businesses have paid royalties for the use of inventions. True, lawsuits have been threatened and asserted. In some cases, they had merit and in others they did not. But I have not seen any shutdown of U.S. industry and in particular, I have not seen any *difference* between those transactions and any other transaction involving patents. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Fri, 07 Aug 1998 07:17:39 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35CB0C83.EA20EAF6@ieee.org> References: <35CA3F79.48F65F4B@shore.net> <barmar-0608980856260001@barmar.ne.mediaone.net> Newsgroups: misc.int-property Lines: 48 John W Gintell wrote: > > Barry Margolin wrote: > > I think that one thing that distinguishes the software industry from > most others is that the capital investment for inventing software > is nil and that there are vast numbers of very small enterprises > (1 person) who are creating software. And with the internet and electronic > commerce it is economically feasible to distribute this software and get paid > for it. As noted repeatedly before, this is really false. All you have to do is look at the software development budgets for IBM or Microsoft to see this. Rather, software is extremely labor intensive. Thus, you don't for example need a billion+ dollar fab to play. But being highly labor intensive does not translated into no capital investment. As to your one man operations creating software, yes I am sure that they do that all the time. However, this software is not that patentable for the most part, and is too small to get in the radar of those who do have patent portfolios. > With the rapidly increasing number of software patents it is getting > more likely that these entrepreneurs are going to start inadvertently > infringing patents. The large enterprises that hold lots of patents > will have a pretty good arsenal to go after these people and they might just > do so. The standard way to fight patent infringement is to have your own arsenal > of patents and to file or threaten a countersuit. These small entrepreneurs > can't spend the money and time to file their own. Further, it is very > expensive and time consuming to deal with this situation. The reality is that for the most part, patent holders are not going to go after the one man operations. This is purely financial. It is rare to recover attorneys' fees in patent litigation. Thus, to be economically viable, a patent holder should be able to expect to recover his litigation costs through damages in patent litigation. At a minimum, this really only starts happening when infringing sales get into the millions, probably more realistically the tens of millions of dollars. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Sat, 08 Aug 1998 08:32:46 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0808980832460001@tstpa1-18.gate.net> References: <barmar-0708982157530001@barmar.ne.mediaone.net> <6qe0fa$mif$1@samba.rahul.net> Newsgroups: misc.int-property Lines: 78 In article <barmar-0708982157530001@barmar.ne.mediaone.net>, barmar@bbnplanet.com (Barry Margolin) wrote: > In article <6qe0fa$mif$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com > (Rahul Dhesi) wrote: > > >If you have an algorithm for doing something that a court finds to be > >'equivalent' to a patented method, even if they are not identical, you > >will likely be found to infringe. > > I find that very difficult to believe. OK, here's how the system works: Patent infringement is a two-step process: (1) construe (interpret) the claims; and (2) determine whether the claims properly construed "read on" the accused device. Step 1 (called claim construction) is a very elaborate process, somewhat more complex for software patents because (1) a determination needs to be made whether functional langauge in the claim is subject to 112(6) and if so, what is the corresponding structure, and if not, whether what remains is valid under 112(1)-(2). Thus, the claim is the definition that Rahul has been so worried about "finding." Step 2 entailes checking to see if something reads on. This simply means to determine whether EACH AND EVERY element and limitation of the claim, as properly construed, is found in the accused device/method. The claim. The presence of additional elements will not avoid infringement, and the absence of a single element requires finding no literal infringement. However, if the claim is NOT found to read on the accused device, necessarily because one or more elements or limitations are mising, the accused device will be found infringing under something called the Doctrine of equivalents if for EACH AND EVERY missing limitation, the accused device has structure that is equivalent. This is NOT THE SAME AS SAYING THAT THE ALGORITHMS ARE EQUIVALENT -- TESTING FOR OVERALL EQUIVALENCY, SAY, AS TO FUNCTION IS ERROR AS A MATTER OF LAW. Equivalents for this test are determined LIMITATION BY LIMITATION. A general rule of thumb is that a limitation is equivalent to particular structure in an accused device if the structure performs substantial the same function in substantially the same way to obtain substantially the same result. Other tssts are sometimes used. There are strict legal limitations on how the DOE is applied: (1) DOE cannot be used to expand the scope of claims so as to read on prior art; (2) DOE cannot be used to expand the scope of claims to reach subject matter disclaimed by amendment or argument during prosecution of the patents; (3) DOE cannot be used to effectively "read out" a limitation of the patent -- EVERY LIMITATION MUST STILL BE PRESENT, LITERALLY OR EQUIVALENTLY, AND THE INVENTIONS CANNOT BE COMPARED "AS A WHOLE"; (4) DOE cannot be used to read a limitation to mean something the claim expressly disclaims ("above the slot" cannot mean below the slot); and (5) DOE cannot be used to read a claim on a variation different from claim language where the limiting aspects of the claim language would have been foreseeable to the applicant during prosecution. CAVEAT: These are super-casual accounts of very complicated doctrine, and these are not all of the legal limitations. The underlying purpose of DOE is to avoid "a fraud upon the patent," resulting from mere linguistic wordplay when the substance of a limitation is taken or used. A typical equivalent is the use of a substitute well-known in the art, for example, using a transistor in lieu of a relay in a circuit to avoid a claim directed to a relay, when none of the other limitations would preclude its application. [For example, this would prevail under DOE prior to the invention of the transistor, but might not afterwards, since the substitution is a foreseeable variation.] Clear as mud, right? Sorry, its a LOT of law necessarily summarized tersely here. The bottom line is that Judge Dhesi's use of the language here would get him reversed, perhaps with a giggle, by any court of competent jurisdiction. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Mon, 10 Aug 1998 07:59:53 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1008980759530001@tstpa1-63.gate.net> References: <6ql2n9$amf$1@samba.rahul.net> <werdna-0908981429360001@tstpa1-61.gate.net> Newsgroups: misc.int-property Lines: 99 In article <6ql2n9$amf$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: > In <werdna-0908981429360001@tstpa1-61.gate.net> werdna@nonspam-gate.net > (Andrew C. Greenberg) writes: > > >Rahul doesn't get it. Algorithms aren't protected, inventions are. > >Inventions are defined by the claims, not by a definition of an algorithm > >(however expressed) or a program (however expressed). > > 'Algorithm' and 'invention' are not mutually exclusive terms. Every new > algorithm is an invention. Almost every 'method' or 'process' patent > includes an algorithm somewhere. Rahul's wordplays still don't change the fact that his postings have nothing to do with an infringement analysis, and hence nothing to do with the patent system. > Many algorithms are protected by patents in the USA. Some of the > better-known ones often discussed on Usenet are RSA encryption, IDEA > encryption, and LZW data compression. No algorithms are protected by patents in the USA, even under State Street Bank. Certain applications of those algorithms most certainly are protected. Of course, these wordplays still don't change the fact that Rahul's original posting has nothing to do with an infringement analysis, and hence nothing to do with the patent system. > Andrew is incorrect in stating that 'Inventions are defined by the > claims'. (I'm assuming that he was referring to 'patented inventions'.) > The inventor filing for a patent is his own lexicographer, and the > meanings of the terms he uses in the claims must be derived by a reading > of the entire patent. It is true that ambiguities in patent claims are construed in view of the specification. Indeed, 35 USCA 112(6) requires that certain claims be construed in view of the particular structure or methods set forth in the specification. These aids in construing the claims do not change the fact that inventions are determined by the claims. Other information is likewise used in claim construction, such as the prosecution history and in some cases extrinsic evidence, although extrinsic evidence is not resorted to except to resolve ambiguities. None of this changes the fact that once the claims are construed, nothing else is used in an infringement analysis: ever. Accordingly, these wordplays still don't change the fact that Rahul's original posting has nothing to do with an infringement analysis, and hence nothing to do with the patent system. > It would be nice if the claims alone served to distinguish what is being > claimed as new from what is acknowledged to be prior art. It's nice. > But apart > from the question of terminlogy (above), there is also this: If > an element in a claim is expressed solely as a means for performing a > function, then the rest of the patent must be read to determine what > specific structure of the means is in the scope of the patent. You can > get the official wording for this from the last paragraph in: > > http://www.law.cornell.edu/uscode/35/112.shtml Which section 35 U.S.C. s. 112 has been cited above and several times by me and others in this thread. Indeed, in previous debates, Rahul willfully ignored this fact when making arguments that particular patents were broader than they seemed. Of course, Rahul reads these statutes with abandon, fantasizing what they would mean. Had he studied the case law, he would realize that Section 112, paragraph 6 does not redefine the meaning of the claim, but narrows its scope to read only upon those particular means for performing the function and their equivalents. It can only serve to narrow a claim, and never to broaden it. Likewise with any construction of a patent in view of the specification. Rahul still doesn't get it. Nothing but the claim as construed in part 1 of the infringement analysis is used in part 2 of the analysis (the actual comparison of the products with the patent). It is NEVER EVER EVER permissible to compare accused products with commercial products or products with specific embodiments of an invention. NEVER. NEVER. NEVER. Period. Only the claim as properly construed is compared against the accused device. Always. In this sense, the claims define the invention, as I described above. Only claims are compared to programs to determine infringement. Only claims are compared to prior art to determine validity. End of story. Nothing that Rahul posted here contradicts the preceding posting discussing infringement analyses. To the extent he didn't entirely butcher and misunderstand the law, his discussion of 35 USC 112 and the lexicographer rule apply only to step 1. Accordingly, none of Rahul's wordplay here addresses the fact that nothing in his original postings relate at all to an infringement analysis, and hence nothing to do with the patent system. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Mon, 10 Aug 1998 22:10:20 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1008982210200001@tstpa1-41.gate.net> References: <6qn7tm$frm$1@samba.rahul.net> <werdna-1008980759530001@tstpa1-63.gate.net> Newsgroups: misc.int-property Lines: 100 In article <6qn7tm$frm$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: > >No algorithms are protected by patents in the USA, even under State Street > >Bank. Certain applications of those algorithms most certainly are > >protected.... > > For example, if an 'algorithm for data compression' is protected by a > patent, then only its application to data compression is protected. I am unaware of any claim ever granted along the following lines: I claim: 1. An algorithm for data compression. If Rahul cites one, I'll change my tenor. But until then, it is clear he does not get it (which means he simply doesn't care shat is the truth -- since noone who has read this thread could responsibly pretend they do not get it). The claims define the invention. You cannot claim an algorithm, although the mentioning of an algorithm or formula as part of a claim does not render the claim invalid. > >It is true that ambiguities in patent claims are construed in view of the > >specification. Indeed, 35 USCA 112(6) requires that certain claims be > >construed in view of the particular structure or methods set forth in the > >specification. These aids in construing the claims do not change the fact > >that inventions are determined by the claims. Other information is > >likewise used in claim construction, such as the prosecution history and > >in some cases extrinsic evidence, although extrinsic evidence is not > >resorted to except to resolve ambiguities. > > So the claims must be understood in the context of the rest of the > patent. If the meaning of the claims is in dispute, one would of course > need to consult the rest of the patent, and keep doing so until it has > been agreed what meaning shall be assigned to the claims. Recent legal > precedence is that the judge is the final arbiter of what the claims > mean. But it is to be hoped that the judge will first listen to > arguments from both sides, during which arguments the entire patent, and > not just the claims alone, will be discussed. Andy is trying to > downplay the fact that a substantial portion of a patent dispute could > well be about how the claims are to be interepreted. No, not at all. Claim interpretation is the first part of the two-part analysis I mentioned earlier. Indeed, the two-part test was most recently recited in the leading case in this arena: Markman v. Westview Instruments. All this, of course, is wordplay intended to divert attention from the fact that Rahul's original posting was based on a confused and irrelevant view of what DOES, in fact, determine patent infringement. > (Once the meaning of the claims has been determined then a jury might be > asked decide whether an existing product infringes the claims.) No, they will be asked whether the claims, as the judge has explained them to the jury read upon the accused device. In other words, they make the decision PRECISELY as I described in my earlier posting. > Of course, none of this has much to do with the fact that the Patent > Office must, as part of its job, compare multiple algorithms to > determine whether one is 'equivalent' in some sense to another. Which > is why how fast such comparisons can be done is an interesting question. Rahul lies. The patent office, as part of its jobs, must compare the CLAIMS of each patent application against the prior art. Noone has forgotten that Rahul was told this at the beginning of the thread. > The Patent Office does not look for infringement, at least not during > the patent filing process; it looks for prior art, which is a slightly > different thing. No, they look for validity, which is a slightly different, but not substantially different process. The CLAIMS still define the invention, claim construction proceeds as before, although the PTO is supposed to take the broadest reasonable construction when deciding patentability. The issue then is whether the CLAIMS, which define the invention read on (same as with infringement), the prior art (instead of the accused device). > >None of this changes the fact that once the claims are construed, nothing > >else is used in an infringement analysis: ever. Accordingly, these > >wordplays still don't change the fact that Rahul's original posting has > >nothing to do with an infringement analysis, and hence nothing to do with > >the patent system. > > Does anybody know which of my 500 original postings Andy is referring > to? Was it the one where I said the it took exponential time to > compare two algorithms and determine if they were 'equivalent' in the > sense in which the Patent Office is interested? OK, I'll use this one instead. First, exponential time is insufficient to solve an undecidable problem (the equivalence of two algorithms). Second, a patent examiner doesn't compare algorithms in analyzing a patent application. They read the patent claims as applied for against the prior art. Duh again. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: 12 Aug 1998 00:39:14 GMT From: galibert@pobox.com (Olivier Galibert) Message-ID: <slrn6t1p1i.aei.galibert@renaissance.loria.fr> References: <werdna-1008982210200001@tstpa1-41.gate.net> Newsgroups: misc.int-property Lines: 30 In article <werdna-1008982210200001@tstpa1-41.gate.net>, Andrew C. Greenberg wrote: >In article <6qn7tm$frm$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com >(Rahul Dhesi) wrote: > >> >No algorithms are protected by patents in the USA, even under State Street >> >Bank. Certain applications of those algorithms most certainly are >> >protected.... >> >> For example, if an 'algorithm for data compression' is protected by a >> patent, then only its application to data compression is protected. > >I am unaware of any claim ever granted along the following lines: > > I claim: > > 1. An algorithm for data compression. I claim: 1. In a data compression and data decompression system, compression apparatus for compressing a stream of data character signals into a compressed stream of code signals, said compression apparatus comprising [...] Please explain me in which way this is different than "an algorithm for data compression", except that it avoids said "algorithm" word. This is the first claim of patent 4558302, the LZW one. OG.
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Wed, 12 Aug 1998 07:31:00 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1208980731000001@tstpa2-11.gate.net> References: <slrn6t1p1i.aei.galibert@renaissance.loria.fr> Newsgroups: misc.int-property Lines: 39 In article <slrn6t1p1i.aei.galibert@renaissance.loria.fr>, galibert@pobox.com (Olivier Galibert) wrote: > In article <werdna-1008982210200001@tstpa1-41.gate.net>, Andrew C. Greenberg wrote: > >In article <6qn7tm$frm$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com > >(Rahul Dhesi) wrote: > > > >> >No algorithms are protected by patents in the USA, even under State Street > >> >Bank. Certain applications of those algorithms most certainly are > >> >protected.... > >> > >> For example, if an 'algorithm for data compression' is protected by a > >> patent, then only its application to data compression is protected. > > > >I am unaware of any claim ever granted along the following lines: > > > > I claim: > > > > 1. An algorithm for data compression. > > I claim: > 1. In a data compression and data decompression system, > compression apparatus for compressing a stream of data character > signals into a compressed stream of code signals, said compression > apparatus comprising [...] > > Please explain me in which way this is different than "an algorithm > for data compression", except that it avoids said "algorithm" word. > > This is the first claim of patent 4558302, the LZW one. The devil is in the details. The elipsis in particular. Note that the claim is directed to an apparatus, and not an algorithm. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Wed, 12 Aug 1998 11:45:58 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1208981145580001@tstpa2-11.gate.net> References: <slrn6t3669.dsf.galibert@renaissance.loria.fr> <werdna-1208980731000001@tstpa2-11.gate.net> Newsgroups: misc.int-property Lines: 59 In article <slrn6t3669.dsf.galibert@renaissance.loria.fr>, galibert@pobox.com (Olivier Galibert) wrote: > In article <werdna-1208980731000001@tstpa2-11.gate.net>, Andrew C. Greenberg wrote: > >In article <slrn6t1p1i.aei.galibert@renaissance.loria.fr>, > >galibert@pobox.com (Olivier Galibert) wrote: > >> This is the first claim of patent 4558302, the LZW one. > > > >The devil is in the details. The elipsis in particular. Note that the > >claim is directed to an apparatus, and not an algorithm. > > Ok. Then imagine that I write a program incorporating the underlying > algorithm in order to, say, create image files. Do I infringe the > patent? If yes, in which way it is different than actually having the > algorithm itself protected? Just as it is important to understand the difference between a program and an algorithm, so too it is important to understand the difference between a program and a patent claim. A discussion of a computer program may support a patent claim and with means plus function claims additionally limit the scope of a patent to taht particular program structure, but a program is not a claim. The claim defines the invention, no more and no less. Each and every limitation in the claim must be satisfied in order to have an infringement. Accordingly, this discussion in the abstract will inevitably lead to the dissatisfying truth that algorithms, per se are unpatentable, yet broad coverage of a patent claim might reach the scope of algorithm-like inventions. The difficulty lies precisely in discussions in terms of generalities. No doubt methods are patentable, and algorithms, as understood in the technical sense, are very much like methods, understood in the legal sense. But not all algorithms are patentable as methods. This is where confusion seems to reign among lay audiences. I suggest reading state street bank, which I provided pointers to earlier on, and which should give a good sense as to what is and is not protectable. Patent protections for inventions that use algorithms is not even legally controversial if the invention is new, useful and unobviuos. Patent protection of claims that might reach any application of a law of nature or mathematical algorithm are far more controversial under Section 101, even in view of state street bank. No, you cannot get a patent on the law of gravity in the abstract. Yes, you can get a patent on a pendulum. No, you cannot get a patent on quicksort in the abstract. Yes, you can get an apparatus for managing the floor of a stock exchange which uses general purpose computers that employ quicksort to sort stock prices. (provided that such things were novel, useful and unobvious when applied for; unlikely in the given scenarios). The point is that novelty and infringement determinations are not determined by "comparing algorithms." -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Wed, 12 Aug 98 16:22:56 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253326616F@news.erols.com> References: <slrn6t3h1n.ekk.galibert@renaissance.loria.fr> <werdna-1208981145580001@tstpa2-11.gate.net> Newsgroups: misc.int-property Lines: 19 In Article <slrn6t3h1n.ekk.galibert@renaissance.loria.fr>, galibert@pobox.com (Olivier Galibert) wrote: >In article <werdna-1208981145580001@tstpa2-11.gate.net>, Andrew C. Greenberg wrote: >>The claim defines the invention, no more and no less. Each and every >>limitation in the claim must be satisfied in order to have an >>infringement. [...] > >IANAL, so please enlighten me. To infrige a patent, do you have to >infringe one claim, "enough" claims, or all of them? Infringement may be found only if the accused device or process meets each and every limitation of at least one claim. Tracy Thomas T. Aquilla, Ph.D. Genetic Engineering and Biotech Research and Consulting, Ltd. taquilla@erols.com
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Wed, 12 Aug 1998 23:45:12 -0400 From: barmar@bbnplanet.com (Barry Margolin) Message-ID: <barmar-1208982345130001@barmar.ne.mediaone.net> References: <werdna-1208981145580001@tstpa2-11.gate.net> Newsgroups: misc.int-property Lines: 20 In article <werdna-1208981145580001@tstpa2-11.gate.net>, werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: >No, you cannot get a patent on the law of gravity in the abstract. Yes, >you can get a patent on a pendulum. No, you cannot get a patent on >quicksort in the abstract. Yes, you can get an apparatus for managing the >floor of a stock exchange which uses general purpose computers that employ >quicksort to sort stock prices. (provided that such things were novel, >useful and unobvious when applied for; unlikely in the given scenarios). I suspect that someone could easily get a patent on "a method for reordering data in a computer memory" if the particular sorting algorithm it used were novel and unobvious. And had people been in the habit of patenting computer programs in the 60's, I suspect the inventor of quicksort might have gotten a patent on it. -- Barry Margolin, barmar@bbnplanet.com GTE Internetworking, Cambridge, MA Support the anti-spam movement; see <http://www.cauce.org/>
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Thu, 13 Aug 1998 08:01:57 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1308980801570001@tstpa2-80.gate.net> References: <barmar-1208982345130001@barmar.ne.mediaone.net> Newsgroups: misc.int-property Lines: 22 In article <barmar-1208982345130001@barmar.ne.mediaone.net>, barmar@bbnplanet.com (Barry Margolin) wrote: > I suspect that someone could easily get a patent on "a method for > reordering data in a computer memory" if the particular sorting algorithm > it used were novel and unobvious. And had people been in the habit of > patenting computer programs in the 60's, I suspect the inventor of > quicksort might have gotten a patent on it. Suspicions are a poor substitute for arguments. Check out the PTO's software patenting guidelines, and reread State Street Bank. An important observation is that while software inventions are clearly patentable, the scope of allowable inventions is still unclear, and may well be limited by 101. Although it is true that reciting an apparatus running a program may be patentable in certain cases, it is unclear how broad or narrow is the scope of that claim. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Fri, 14 Aug 1998 08:42:43 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1408980842430001@tstpa1-20.gate.net> References: <slrn6t3h1n.ekk.galibert@renaissance.loria.fr> <werdna-1208981145580001@tstpa2-11.gate.net> Newsgroups: misc.int-property Lines: 31 In article <slrn6t3h1n.ekk.galibert@renaissance.loria.fr>, galibert@pobox.com (Olivier Galibert) wrote: > In article <werdna-1208981145580001@tstpa2-11.gate.net>, Andrew C. Greenberg wrote: > >The claim defines the invention, no more and no less. Each and every > >limitation in the claim must be satisfied in order to have an > >infringement. [...] > > IANAL, so please enlighten me. To infrige a patent, do you have to > infringe one claim, "enough" claims, or all of them? If you infringe any one claim and the claim is valid, you are infringing. You infringe a claim if and only if the accused apparatus, manufacture or method embodies EACH AND EVERY ONE of the elements and limitatios of that claim. Generally, the presence of additioal elements will not affect infringement. So, if a patent stated: I claim: 1. an apparatus comprising an A, B and C. 2. an apparatus comprising an A, Z and D. No combintation of an A, B and Z will infringe unless the C or D are present. On the other hand, an A+B+C+anything else.will infringe (claim 1, and hence) the patent, whether or not a Z or D are present. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Wed, 12 Aug 98 15:41:14 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253324114C@news.erols.com> References: <slrn6t1p1i.aei.galibert@renaissance.loria.fr> Newsgroups: misc.int-property Lines: 39 In Article <slrn6t1p1i.aei.galibert@renaissance.loria.fr>, galibert@pobox.com (Olivier Galibert) wrote: >In article <werdna-1008982210200001@tstpa1-41.gate.net>, Andrew C. Greenberg wrote: >>In article <6qn7tm$frm$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com >>(Rahul Dhesi) wrote: >> >>> >No algorithms are protected by patents in the USA, even under State Street >>> >Bank. Certain applications of those algorithms most certainly are >>> >protected.... >>> >>> For example, if an 'algorithm for data compression' is protected by a >>> patent, then only its application to data compression is protected. >> >>I am unaware of any claim ever granted along the following lines: >> >> I claim: >> >> 1. An algorithm for data compression. > >I claim: > 1. In a data compression and data decompression system, >compression apparatus for compressing a stream of data character >signals into a compressed stream of code signals, said compression >apparatus comprising [...] > >Please explain me in which way this is different than "an algorithm >for data compression", except that it avoids said "algorithm" word. Not only does the claim avoid the word "algorithm", it is clearly directed to an apparatus, not an algorithm. Even if the algorithm is an element of the claim, the mere use of the algorithm itself cannot infringe the claim, rather the accused device must meet each and every imitation of the claim. Tracy Thomas T. Aquilla, Ph.D. Genetic Engineering and Biotech Research and Consulting, Ltd. taquilla@erols.com
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Wed, 12 Aug 1998 23:49:51 -0400 From: barmar@bbnplanet.com (Barry Margolin) Message-ID: <barmar-1208982349510001@barmar.ne.mediaone.net> References: <taquilla.1253324114C@news.erols.com> Newsgroups: misc.int-property Lines: 20 In article <taquilla.1253324114C@news.erols.com>, taquilla@erols.com (Tracy Aquilla) wrote: >Not only does the claim avoid the word "algorithm", it is clearly directed >to an apparatus, not an algorithm. But if the only practical way to use the algorithm is by embodying it in an apparatus (a computer), what's the difference? All the lawyers seem to be making a distinction that doesn't exist in the real world, just so that they can justify the claim that you can't patent an algorithm. If you can patent a computer running a program that implements an algorithm, haven't you effectively patented the algorithm? As I said in another post, the only way it seems that someone could use the algorithm without infringing the patent would be on pencil and paper (or in one's head), which is not likely to be practical for any algorithm worth patenting. -- Barry Margolin, barmar@bbnplanet.com GTE Internetworking, Cambridge, MA Support the anti-spam movement; see <http://www.cauce.org/>
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Thu, 13 Aug 1998 07:58:30 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1308980758300001@tstpa2-80.gate.net> References: <barmar-1208982349510001@barmar.ne.mediaone.net> Newsgroups: misc.int-property Lines: 52 In article <barmar-1208982349510001@barmar.ne.mediaone.net>, barmar@bbnplanet.com (Barry Margolin) wrote: > In article <taquilla.1253324114C@news.erols.com>, taquilla@erols.com > (Tracy Aquilla) wrote: > > >Not only does the claim avoid the word "algorithm", it is clearly directed > >to an apparatus, not an algorithm. > > But if the only practical way to use the algorithm is by embodying it in > an apparatus (a computer), what's the difference? All the lawyers seem to > be making a distinction that doesn't exist in the real world, just so that > they can justify the claim that you can't patent an algorithm. Well, let me put this another way. Many anti-software advocates have excoriated software patents as improperly reaching to ideas and laws of nature. It is apparent and well-settled that what is going on in one's mind, and the learning and teaching of it shouldn't be protected. It is true that nailing an algorithm to an apparatus may tie doesn all practical uses known at the time for some types of claims, but don't diminish the significance of those limitations. A number of recent internet commerce patents have just been neutered precisely by the court's narrow construction of those very limitations. The particular apparatus contemplated, even when the claim is recited as a "general purpose computer" may well be a significant limitation. Then, to be patentable, understand that it is not only the manifestation of the algorithm on a machine that limits the patent, but also the particular application or class of application of the algorithm. See State Street Bank and the recent Microsoft case involving the patent directed to multithreading. Limitations to a particular application of multithreading (in that case, application to a text editor) were held to be the principal basis for patentability of the inventions, and the claims not so limited were held to be invalid for lack of written description. So, its neither as good, nor as bad as you think it is. > If you can > patent a computer running a program that implements an algorithm, haven't > you effectively patented the algorithm? As I said in another post, the > only way it seems that someone could use the algorithm without infringing > the patent would be on pencil and paper (or in one's head), which is not > likely to be practical for any algorithm worth patenting. But first you need to get the patent with such scope. Check out the multithreading case. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Tue, 04 Aug 1998 07:11:02 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0408980711020001@tpafx1-56.gate.net> References: <6q5dpb$l84$1@samba.rahul.net> <taquilla.1252560724A@news.erols.com> Newsgroups: misc.int-property Lines: 19 In article <6q5dpb$l84$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: > So you might ask: If the concept is so trivial, why didn't anybody else > implement it before STAC? *snip* of the argument made by Microsoft concerning validity of the STAC patent, which argument lost in Federal Court, leading to a $110M verdict against Microsoft. > So the infamous STAC patent prevents others from doing what STAC did, > because of the patent monopoly. Which of the claims prevent people from reverse engineering MSDOS? -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: 4 Aug 1998 19:48:31 GMT From: c.c.eiftj@12.usenet.us.com (Rahul Dhesi) Message-ID: <6q7oif$5o8$1@samba.rahul.net> References: <taquilla.1252618475A@news.erols.com> <6q5dpb$l84$1@samba.rahul.net> Newsgroups: misc.int-property Lines: 27 In <taquilla.1252618475A@news.erols.com> taquilla@erols.com (Tracy Aquilla) writes: >>>>This is a matter of opinion. Why should anybody have a monopoly on a >>>>concept as basic as "when compressing a device don't change its name"? >> >>>Which claim in the patent is directed to the concept of "when compressing a >>>device don't change its name"? >> >>None of the claims is specifically directed to this concept. STAC could >>not have successfully patented the concept as I have stated it. >Then there is no monopoly on the concept. The claims define the monopoly. If that really were so, Microsoft would have had no trouble achieving the same goal (compress a device without changing its name) without infringing the patent. I wonder if you are reading solely the claims and ignoring the complete specification. If you read the whole thing, it will become clear to you that the purpose of the STAC patent was to achieve a monopoly on the basic concept of "when compressing a device, don't change its name." The claims were simply a means to that end. -- Rahul Dhesi <dhesi@spams.r.us.com> "Frankly, sir, nobody is that much of an expert on anything, at least not on usenet." -- Andy Greenberg <werdna@gate.net>
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Tue, 11 Aug 98 10:30:37 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253219077A@news.erols.com> References: <6qok5r$jhd$1@samba.rahul.net> <6q4s7p$hv5$1@samba.rahul.net> <werdna-0308980826590001@tpafx1-56.gate.net> Newsgroups: misc.int-property Lines: 59 In Article <6qok5r$jhd$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: >In <werdna-1008982210200001@tstpa1-41.gate.net> werdna@nonspam-gate.net >(Andrew C. Greenberg) writes: > >>The claims define the invention. You cannot claim an algorithm, >>although the mentioning of an algorithm or formula as part of a claim does >>not render the claim invalid. > >The argument has gone something like this: > > Rahul: <talks about algorithms protected by patents> > Andy: Can't protect an algorithm with a patent. > Rahul: Can. <gives examples> No Rahul, you certainly have not given any examples. You mentioned a few concepts, while claiming that they are protected by patents, but when asked to identify a specific patent having a claim directed to a mere concept (i.e. algorithm), you have been unable to identify either a specific patent or a specific claim. (If are you referring to patent 4,197,590 as your 'example', which claim?) > Andy: <oops, better change my wording> You cannot claim an > algorithm, although the mentioning of an algorithm or > formula as part of a claim does not render the claim > invalid. > >Hmmm...so an algorithm can be incorporated in your claims...hmmm..... Yes, but one cannot claim an algorithm. An algorithm is non-statutory subject matter (see the MPEP). >The fact is that algorithms do get patent protection in the USA. Very loose use of the term 'fact' here (Rahul-speak perhaps?). Where is the evidence? You say this nearly every week, but when challenged, you cannot point to any patents that claim an algorithm. >If you >have a new algorithm on which you want a monopoly in the USA, you can >get patent protection, provided it meets the usual criteria of novelty >and nonobviousness. One might be able to "get patent protection", but the claims cannot be directed to an algorithm. >You must word the claims in a certain way, and this Yes, such that one does not claim the algorithm. >I am not sure what to do. Just cite a patent, and state which claim is directed to an algorithm. Tracy Thomas T. Aquilla, Ph.D. Genetic Engineering and Biotech Research and Consulting, Ltd. taquilla@erols.com
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Tue, 11 Aug 1998 23:57:03 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D13CBF.5DFEF1B6@ieee.org> References: <barmar-1108982219050001@barmar.ne.mediaone.net> <taquilla.1253219077A@news.erols.com> Newsgroups: misc.int-property Lines: 41 Barry Margolin wrote: > > In article <taquilla.1253219077A@news.erols.com>, taquilla@erols.com > (Tracy Aquilla) wrote: > > >Yes, but one cannot claim an algorithm. An algorithm is non-statutory > >subject matter (see the MPEP). Well, that is not really true. After all, ALL method claims are algorithms. What is prohibited are "mathematical" algorithms. > It's true, you have to claim a computer running a program that implements > an algorithm. But this is effectively equivalent to patenting the > algorithm itself. The only other thing you might do with one of these > algorithms is run them with pencil and paper, but they're generally > useless when used that way, so the fact that the patent doesn't cover this > use is not very interesting. So while you can't officially patent an > algorithm, you can effectively do so. Well, you have made the critical distinction here. What you have to start with is the realization that a general purpose computer running a particular program is a special purpose computer, which is considered an apparatus, and thus statutory. Algorithms are, as pointed out above, methods or procedures, again one of the statutory classes. Of course, you have to get around the archaic Benson mathematical algorithm limitation. But that is easily done by including sufficient hardware in the method claims. Thus, if a method claim claims interaction between and/or among hardware elements, then the claim is probably statutory. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Wed, 12 Aug 98 16:11:37 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253325937D@news.erols.com> References: <35D13CBF.5DFEF1B6@ieee.org> Newsgroups: misc.int-property Lines: 80 In Article <35D13CBF.5DFEF1B6@ieee.org>, Bruce Hayden <bhayden@ieee.org> wrote: >Barry Margolin wrote: >> In article <taquilla.1253219077A@news.erols.com>, taquilla@erols.com >> (Tracy Aquilla) wrote: >> >> >Yes, but one cannot claim an algorithm. An algorithm is non-statutory >> >subject matter (see the MPEP). > >Well, that is not really true. After all, ALL method claims >are algorithms. What is prohibited are "mathematical" algorithms. Sorry, I thought the discussion was regarding mathematical algorithms (or abstract mathematical concepts). Of course, methods are statutory, but an algorithm per se is not necessarily a statutory method. >> It's true, you have to claim a computer running a program that implements >> an algorithm. Not necessarily. >> But this is effectively equivalent to patenting the algorithm itself. Not necessarily (see below). >> The only other thing you might do with one of these >> algorithms is run them with pencil and paper, Or one could also possibly use a 'patented algorithm' in an improved or an entirely different method or apparatus. One cannot infringe an apparatus claim or a method claim by merely using an algorithm that is but a single element of the claim. Unless each and every limitation is met by the accused device or process, there can be no infringement, even if the algorithm is an element of the claim. Thus, the mere use of the algorithm itself is not enough to find infringement. Unfortunately, until someone points to a real example (i.e. an issued patent with a claim directed to an algorithm), this discussion will remain abstract and unfocused. >> but they're generally >> useless when used that way, so the fact that the patent doesn't cover this >> use is not very interesting. It is quite interesting to me. There are probably many different ways to implement an algorithm, no? >> So while you can't officially patent an algorithm, you can effectively do so. Well we agree that one cannot "officially" patent an algorithm. Now, can you point to a claim in an issued patent which "effectively" does so? >What you have to start with is the realization that a >general purpose computer running a particular program >is a special purpose computer, which is considered an >apparatus, and thus statutory. Of course, but an apparatus is not an algorithm. One cannot properly read the other limitations from the claim. >Algorithms are, as pointed out above, methods or procedures, again >one of the statutory classes. Of course, you have to get around the >archaic Benson mathematical algorithm limitation. But that is easily >done by including sufficient hardware in the method claims. Thus, such additional limitations "effectively" prevent one from claiming the algorithm itself, because one cannot infringe a claimed apparatus without meeting each and every limitation of the claim (e.g. by employing an algorithm which is but a single limitation of the claim). >if a method claim claims interaction between and/or among hardware >elements, then the claim is probably statutory. The question remains: does this prevent others from using the algorithm itself in other methods or apparatus? I do not believe that it does. Tracy Thomas T. Aquilla, Ph.D. Genetic Engineering and Biotech Research and Consulting, Ltd. taquilla@erols.com
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: 12 Aug 1998 17:36:36 GMT From: c.c.eiftj@12.usenet.us.com (Rahul Dhesi) Message-ID: <6qsjr4$kv5$1@samba.rahul.net> References: <taquilla.1253325937D@news.erols.com> Newsgroups: misc.int-property Lines: 18 In <taquilla.1253325937D@news.erols.com> taquilla@erols.com (Tracy Aquilla) writes: >Well we agree that one cannot "officially" patent an algorithm. Now, >can you point to a claim in an issued patent which "effectively" does >so? The broader claims of patent 4,558,302 claim the LZW algorithm for data comression, with some mathematical terms replaced with longer phrases, e.g., 'variable' changed to 'storage means', 'input string' changed to 'input signal stream', 'algorithm' changed to 'apparatus', etc. LZW isn't just a proper subset of what is being claimed, LZW *is* what is being claimed, at least in the broadest claims. -- Rahul Dhesi <dhesi@spams.r.us.com> "Frankly, sir, nobody is that much of an expert on anything, at least not on usenet." -- Andy Greenberg <werdna@gate.net>
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Wed, 12 Aug 98 18:26:30 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253334030A@news.erols.com> References: <6qsjr4$kv5$1@samba.rahul.net> Newsgroups: misc.int-property Lines: 29 In Article <6qsjr4$kv5$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: >In <taquilla.1253325937D@news.erols.com> taquilla@erols.com (Tracy >Aquilla) writes: > >>Well we agree that one cannot "officially" patent an algorithm. Now, >>can you point to a claim in an issued patent which "effectively" does >>so? > >The broader claims of patent 4,558,302 claim the LZW algorithm for data >comression, with some mathematical terms replaced with longer phrases, >e.g., 'variable' changed to 'storage means', 'input string' changed to >'input signal stream', 'algorithm' changed to 'apparatus', etc. Where is "apparatus" defined as an algorithm? Nowhere I know of (including the specification of the patent). An apparatus is not an algorithm. >LZW isn't just a proper subset of what is being claimed, LZW *is* what >is being claimed, at least in the broadest claims. Well claim 1 is the broadest claim, and it is directed to an apparatus. Perhaps you can explain the basis for your conclusion that the 'broader claims' effectively claim the algorithm itself? Tracy Thomas T. Aquilla, Ph.D. Genetic Engineering and Biotech Research and Consulting, Ltd. taquilla@erols.com
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: 12 Aug 1998 20:05:27 GMT From: c.c.eiftj@12.usenet.us.com (Rahul Dhesi) Message-ID: <6qssi7$mji$1@samba.rahul.net> References: <taquilla.1253334030A@news.erols.com> Newsgroups: misc.int-property Lines: 20 In <taquilla.1253334030A@news.erols.com> taquilla@erols.com (Tracy Aquilla) writes: >>The broader claims of patent 4,558,302 claim the LZW algorithm for data >>comression, with some mathematical terms replaced with longer phrases, >>e.g., 'variable' changed to 'storage means', 'input string' changed to >>'input signal stream', 'algorithm' changed to 'apparatus', etc. >Where is "apparatus" defined as an algorithm? Nowhere I know of (including >the specification of the patent). An apparatus is not an algorithm. I don't care whether an apparatus is an algorithm or not. The attorneys for Unisys, which inherited the patent from Univac, have been quoted as saying that all implementations of LZW, whether in hardware or software, are protected by the patent. -- Rahul Dhesi <dhesi@spams.r.us.com> "Frankly, sir, nobody is that much of an expert on anything, at least not on usenet." -- Andy Greenberg <werdna@gate.net>
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Thu, 13 Aug 1998 03:18:06 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D2BD5E.C007B14B@ieee.org> References: <6qssi7$mji$1@samba.rahul.net> Newsgroups: misc.int-property Lines: 19 Rahul Dhesi wrote: > I don't care whether an apparatus is an algorithm or not. > > The attorneys for Unisys, which inherited the patent from Univac, have > been quoted as saying that all implementations of LZW, whether in > hardware or software, are protected by the patent. And what is wrong with that? -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: 18 Aug 1998 17:22:21 GMT From: c.c.eiftj@12.usenet.us.com (Rahul Dhesi) Message-ID: <6rcd8d$sbo$1@samba.rahul.net> References: <35D987ED.3665B796@ieee.org> <6rabvp$g5a$1@samba.rahul.net> Newsgroups: misc.int-property Lines: 49 In <35D987ED.3665B796@ieee.org> Bruce Hayden <bhayden@ieee.org> writes: >Finally, when I indicate that software itself is not patentable, what >is meant is that software in the abstract is not patentable. Thus, >for example, in most cases, putting software in a book and publishing >it will usually not result in infringement.... I have been in supermarkets where they had an aisle labelled 'software'. What I found there was paper plates and napkins. Obviously, I was not referring to such software in this discussion. Almost equally obviously, I was not referring to 'program listings', which is the meaning with which you are using the word 'software' above. In fact I have never observed anybody use 'software' to refer merely to a printed listing. Usually people call it 'program listing' or 'source code' or 'source printout' or something similar. 'Software' here is an abbreviation for 'computer software', which refers in this particular context to programs that are in a form that may be loaded into a computer system and then executed. If you have a computer system with an optical scanner into which you can feed a program listing and have it immediately run, then perhaps a printed program listing should be considered software. This is not the case today but it could be so in the future. Today, the average software buyer expects his software on a machine-readable medium that can be loaded and run. Patent law allows any patent to be described on paper. In fact that is one of the purposes of patent law -- to encourage dissemination of ideas, and it's REQUIRED that a description of the patent on paper be made available. So far as I can tell, copies of patents (as published by the Patent Office) may be freely made and the making of such copies does not violate the patent. It's only a small step to say that paper copies of patented software will not violate the patent, unless such paper copies are functional in such a way that their existence could be considered an infringing 'use' of the patent. *Of course* software in the abstract cannot be patented. Coat hangers in the abstract cannot be patented either. Machines in the abstract cannot be patented. NOTHING in the abstract can be patented. You are perfectly free to make as many drawings as you wish, and create as many images in your mind as you wish, of any patented invention. Software is not special in this respect. -- Rahul Dhesi <dhesi@spams.r.us.com> "And you say you're interested in the truth? What a joke....when noted authorities...contradict your view, you end up resorting to ad hominems....What a dodo." -- Ram Samudrala addressing Andrew C. Greenberg.
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Wed, 19 Aug 1998 00:33:22 -0400 From: barmar@bbnplanet.com (Barry Margolin) Message-ID: <barmar-1908980033220001@barmar.ne.mediaone.net> References: <35D987ED.3665B796@ieee.org> <6rabvp$g5a$1@samba.rahul.net> Newsgroups: misc.int-property Lines: 22 In article <35D987ED.3665B796@ieee.org>, Bruce Hayden <bhayden@ieee.org> wrote: >While it is possible that all versions coded into a particular language >that are loaded into RAM are patentable, what you have in your head >is not, and is not contributorily infringing either. It also doesn't do anything when it's in your head, so who cares? Does it infringe when put on a floppy disk and mailed out to customers? That's certainly not an apparatus that actually performs the invention, but as soon as you stick it in a computer and tell it to run the program you have such an apparatus. When that happens, who is infringing -- the customer or the vendor? As a customer, should I have to verify that I don't turn my computer into an infringing device? And how am I supposed to do so, since I am not privy to the mechanisms embodied in most of the software I run? This is presumably where contributory infringement comes into play. -- Barry Margolin, barmar@bbnplanet.com GTE Internetworking, Cambridge, MA Support the anti-spam movement; see <http://www.cauce.org/>
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Fri, 21 Aug 1998 07:38:26 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-2108980738260001@tstpa1-71.gate.net> References: <35DBFCEA.E85A87CB@ieee.org> <barmar-1908980033220001@barmar.ne.mediaone.net> Newsgroups: misc.int-property Lines: 19 In article <35DBFCEA.E85A87CB@ieee.org>, Bruce Hayden <bhayden@ieee.org> wrote: > If you purchase software, load it into your computer, and that infringes > a patent claim for a machine, then yes, you probably are the direct > infringer. However, the company that provided the software to you > is possibly a contributory infringer. Unfortunately, this means that > you, or someone else in a similar situation, is probably going to be > named as a defendant, along with the vendor, since you have to have > a direct infringer in order to have a contributory infringer. Since contributory infringement is an independently actionable tort, I doubt that a direct infringer needs to be named. I have seen pure contributory and inducement actions where only the derivatively liable parties are named. (This is also a great way to get good witnesses.) -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Wed, 12 Aug 1998 22:26:25 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1208982226250001@tstpa2-80.gate.net> References: <6qsjr4$kv5$1@samba.rahul.net> Newsgroups: misc.int-property Lines: 33 In article <6qsjr4$kv5$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: > The broader claims of patent 4,558,302 claim the LZW algorithm for data > comression, with some mathematical terms replaced with longer phrases, > e.g., 'variable' changed to 'storage means', 'input string' changed to > 'input signal stream', 'algorithm' changed to 'apparatus', etc. Which claim is Dhesi referring to? The broad claims of '302 are directed an apparatus. > LZW isn't just a proper subset of what is being claimed, LZW *is* what > is being claimed, at least in the broadest claims. Dhesi cites no authority (or even a claim) in support of his proposition. Perhaps LZW is what the authors would have liked to have claimed, but it is far from clear what is the scope of the patent. Many software patents construed in recent Markman hearings have been narrowly limited to particular applications, despite the broad "algorithm-like" nature of their claim language. The E-Data patent is a nice example. Yet another example is a recent patent asserted against Microsoft, alleged by anti-patent folks to be directed to all multithreading techniques. It was recently held invalid, not on the grounds of prior art, but on the ground that the specification narrowly required limitations not written into the patents, under the recent Gentry case. These words, I do not think they mean what Rahul thinks they mean. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: 13 Aug 1998 05:59:31 GMT From: c.c.eiftj@12.usenet.us.com (Rahul Dhesi) Message-ID: <6qtvc3$spv$1@samba.rahul.net> References: <werdna-1208982226250001@tstpa2-80.gate.net> Newsgroups: misc.int-property Lines: 18 In <werdna-1208982226250001@tstpa2-80.gate.net> werdna@nonspam-gate.net (Andrew C. Greenberg) writes: >> LZW isn't just a proper subset of what is being claimed, LZW *is* what >> is being claimed, at least in the broadest claims. >Dhesi cites no authority (or even a claim) in support of his proposition. >Perhaps LZW is what the authors would have liked to have claimed, but it >is far from clear what is the scope of the patent.... Do you believe that there are certain implementations of LZW that are not protected by the patent? If so, which implementations are these? Do you know of any that exist, or are you simply guessing that some will eventually be found? -- Rahul Dhesi <dhesi@spams.r.us.com> "Frankly, sir, nobody is that much of an expert on anything, at least not on usenet." -- Andy Greenberg <werdna@gate.net>
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Thu, 13 Aug 1998 07:51:48 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1308980751480001@tstpa2-80.gate.net> References: <6qtvc3$spv$1@samba.rahul.net> Newsgroups: misc.int-property Lines: 57 In article <6qtvc3$spv$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: > In <werdna-1208982226250001@tstpa2-80.gate.net> werdna@nonspam-gate.net > (Andrew C. Greenberg) writes: > > >> LZW isn't just a proper subset of what is being claimed, LZW *is* what > >> is being claimed, at least in the broadest claims. > > >Dhesi cites no authority (or even a claim) in support of his proposition. > >Perhaps LZW is what the authors would have liked to have claimed, but it > >is far from clear what is the scope of the patent.... > > Do you believe that there are certain implementations of LZW that are > not protected by the patent? If so, which implementations are these? > Do you know of any that exist, or are you simply guessing that some > will eventually be found? I'm not guessing at all. I'm stating that Mr. Dhesi hasn't made his case, hasn't answered Tracy's questions and that his arguments so far manifest a lack of understanding necessary to make that case. The mere statement that "the broad claims cover everything" when the broad claim is associated with an apparatus does not prove the "algorithm" is patented, even if it weren't true. The fact that his sole response is to ask others to prove negatives indicates his inability to make his proof. Mr. Dhesi likes to gainsay well-established truths. It's what he does. But on patent matters, Rahul is clueless. Please note that he has yet to exemplify anything, despite his claims to the contrary and mere gainsay, as Tracy noted, and Rahul was unable to refute. The Supreme Court stated many times unequivocally that, "it is the claim that defines the invention and gives notice to the public of the limits of the patent monopoly," that quote coming from the recent Warner-Jenkinson v. Hilton Davis case. It is likewise well-established that claims wholly preempting the use of an algorithm are unpatentable. The Court wrote that, "In Benson, we held unpatentable claims for an algorithm used to convert binary code decimal numbers to equivalent pure binary numbers. The sole practical application of the algorithm was in connection with the programming of a general purpose digital computer. We defined "algorithm" as a "procedure for solving a given type of mathematical problem," and we concluded that such an algorithm, or mathematical formula, is like a law of nature, which cannot be the subject of a patent." That would be Diamond v. Diehr. Here in the United States, which falls under the jurisdiction of the Supreme Court, Rahul's ravings are legal lunacy, however rational they may appear before the Court of Rahul. Until the Constitution is amended to give legal credence to Rahul's lunacy, the gentle reader is invited to consider for him or herself which view, the Supreme Court or Rahul's, more accurately reflects what is the law. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: 13 Aug 1998 19:09:09 GMT From: c.c.eiftj@12.usenet.us.com (Rahul Dhesi) Message-ID: <6qvdkl$85m$1@samba.rahul.net> References: <werdna-1308980751480001@tstpa2-80.gate.net> Newsgroups: misc.int-property Lines: 75 The question is whether LZW is a proper subset of what is protected by the LZW patent, or whether LZW itself is what is protected by the LZW patent. I believe LZW itself is protected, and Andy has been incessantly disagreeing. So I asked Andy: Do you believe that there are certain implementations of LZW that are not protected by the patent? If so, which implementations are these? Do you know of any that exist, or are you simply guessing that some will eventually be found? This is a pretty reasonable question, I think. If LZW is not itself protected, then it should be possible to find implementations of LZW that do not infringe the patent. In <werdna-1308980751480001@tstpa2-80.gate.net> werdna@nonspam-gate.net (Andrew C. Greenberg) writes: >I'm not guessing at all. I'm stating that Mr. Dhesi hasn't made his case, >hasn't answered Tracy's questions and that his arguments so far manifest a >lack of understanding necessary to make that case. The mere statement >that "the broad claims cover everything" when the broad claim is >associated with an apparatus does not prove the "algorithm" is patented, >even if it weren't true. The fact that his sole response is to ask others >to prove negatives indicates his inability to make his proof. Ok, quite a bit of name-calling here, but no example so far of any non-infringing implementation of LZW. >Mr. Dhesi likes to gainsay well-established truths. It's what he does. >But on patent matters, Rahul is clueless. Please note that he has yet to >exemplify anything, despite his claims to the contrary and mere gainsay, >as Tracy noted, and Rahul was unable to refute. Still loking for that counterexample. None found. >The Supreme Court stated many times unequivocally that, "it is the claim >that defines the invention and gives notice to the public of the >limits of the patent monopoly," that quote coming from the recent >Warner-Jenkinson v. Hilton Davis case. Argument by appeal to authority, but irrelevant authority in this case. No evidence that the Supreme Court actually determined that LZW is not protected. >It is likewise well-established that claims wholly preempting the use of >an algorithm are unpatentable. The Court wrote that, "In Benson, we held >unpatentable claims for an algorithm used to convert binary code decimal >numbers to equivalent pure binary numbers. The sole practical application >of the algorithm was in connection with the programming of a general >purpose digital computer. We defined "algorithm" as a "procedure for >solving a given type of mathematical problem," and we concluded that such >an algorithm, or mathematical formula, is like a law of nature, which >cannot be the subject of a patent." That would be Diamond v. Diehr. Apparently there is some other algorithm, which the Supreme Court determined to be not protected. But no sign that such a determination was made for LZW. >Here in the United States, which falls under the jurisdiction of the >Supreme Court, Rahul's ravings are legal lunacy, however rational they may >appear before the Court of Rahul. Until the Constitution is amended to >give legal credence to Rahul's lunacy, the gentle reader is invited to >consider for him or herself which view, the Supreme Court or Rahul's, more >accurately reflects what is the law. Oh my! If words could kill, I would be dead a hundred times over by now. Andy truly waxes eloquent here. I can only dream of using the English language as as fluently and colorfully as he does. Now wouldn't it be nice if repeated name-calling could invalidate the LZW patent? -- Rahul Dhesi <dhesi@spams.r.us.com> "Frankly, sir, nobody is that much of an expert on anything, at least not on usenet." -- Andy Greenberg <werdna@gate.net>
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Thu, 13 Aug 98 20:39:28 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253428408A@news.erols.com> References: <6qvdkl$85m$1@samba.rahul.net> Newsgroups: misc.int-property Lines: 80 In Article <6qvdkl$85m$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: > > Do you believe that there are certain implementations of LZW that are > not protected by the patent? If so, which implementations are these? To be precise, nothing is actually "protected" by the patent. Patents do not "protect" an invention, they merely provide the patentee a legal right that others do not have - the right to file lawsuits for infringement of the patent. This is not protection, it is a remedy (or 'cause of action' in legalese). If a patent actually "protected" an invention, there would be no need to sue, would there? (Unless of course, one gives an unusual meaning to the word "protection".) More accurately, the question is whether any implementations of LZW that do not fall within the scope of the patent claims are known. > Do you know of any that exist, or are you simply guessing that some > will eventually be found? This is a pretty reasonable question, I think. Yes, it is a reasonable question; a reasonable answer might be appropriately addressed by one of ordinary skill in the art (not me). Of course, another possibility is that 'unprotected implementations' are known, but not _publicly known_. However, a lack of such an example proves essentially nothing. >If LZW is not itself protected, then it should be possible to find >implementations of LZW that do not infringe the patent. Simple logic dictates that this is not necessarily so; however, if it is possible to find implementations of LZW that do not infringe the patent, then clearly LZW is not itself protected (you just had it backwards). >>The mere statement >>that "the broad claims cover everything" when the broad claim is >>associated with an apparatus does not prove the "algorithm" is patented, >>even if it weren't true. The fact that his sole response is to ask others >>to prove negatives indicates his inability to make his proof. > >Ok, quite a bit of name-calling here, but no example so far of any >non-infringing implementation of LZW. The lack of such examples is insufficient to prove your point. (BTW, where's the "name-calling"? Thankfully, I did not see any.) >>It is likewise well-established that claims wholly preempting the use of >>an algorithm are unpatentable. The Court wrote that, "In Benson, we held >>unpatentable claims for an algorithm used to convert binary code decimal >>numbers to equivalent pure binary numbers. The sole practical application >>of the algorithm was in connection with the programming of a general >>purpose digital computer. We defined "algorithm" as a "procedure for >>solving a given type of mathematical problem," and we concluded that such >>an algorithm, or mathematical formula, is like a law of nature, which >>cannot be the subject of a patent." That would be Diamond v. Diehr. > >Apparently there is some other algorithm, which the Supreme Court >determined to be not protected. But no sign that such a determination >was made for LZW. The law handed down in these cases applies to all algorithms. Which part of 'an algorithm cannot be the subject of a patent' do you not understand? >Andy truly waxes eloquent here. I can only dream of using the >English language as as fluently and colorfully as he does. Agreed. Not only does he have a way with words, he makes logical arguments that are well supported - a noble adversary indeed. >Now wouldn't it be nice if repeated name-calling could invalidate the >LZW patent? There was none, and anyway, who wants to invalidate the patent? The question was merely whether your assertion that "algorithms are protected by patents in the USA" is true or not. The validity of the patent is a different issue altogether. Tracy Thomas T. Aquilla, Ph.D. Genetic Engineering and Biotech Research and Consulting, Ltd. taquilla@erols.com
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Wed, 12 Aug 1998 12:02:24 -0400 From: Chris Pastel <crpastel@bpmlegal.com> Message-ID: <35D1BC90.BEF3D35@bpmlegal.com> References: <taquilla.1253219077A@news.erols.com> Newsgroups: misc.int-property Lines: 81 For once Rahul is using a word within its precise meaning. *Mathematical* algorithms cannot be patented, but *algorithms* are nothing more than a series of steps. In short, every method patent patents an algorithm, but not a mathematical algorithm. The standard court cases in this area (In re Allapat, etc.) make this distinction clear. Tracy Aquilla wrote: > In Article <6qok5r$jhd$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul > Dhesi) wrote: > >In <werdna-1008982210200001@tstpa1-41.gate.net> werdna@nonspam-gate.net > >(Andrew C. Greenberg) writes: > > > >>The claims define the invention. You cannot claim an algorithm, > >>although the mentioning of an algorithm or formula as part of a claim does > >>not render the claim invalid. > > > >The argument has gone something like this: > > > > Rahul: <talks about algorithms protected by patents> > > Andy: Can't protect an algorithm with a patent. > > Rahul: Can. <gives examples> > > No Rahul, you certainly have not given any examples. You mentioned a few > concepts, while claiming that they are protected by patents, but when asked > to identify a specific patent having a claim directed to a mere concept > (i.e. algorithm), you have been unable to identify either a specific patent > or a specific claim. (If are you referring to patent 4,197,590 as your > 'example', which claim?) > > > Andy: <oops, better change my wording> You cannot claim an > > algorithm, although the mentioning of an algorithm or > > formula as part of a claim does not render the claim > > invalid. > > > >Hmmm...so an algorithm can be incorporated in your claims...hmmm..... > > Yes, but one cannot claim an algorithm. An algorithm is non-statutory > subject matter (see the MPEP). > > >The fact is that algorithms do get patent protection in the USA. > > Very loose use of the term 'fact' here (Rahul-speak perhaps?). Where is the > evidence? You say this nearly every week, but when challenged, you cannot > point to any patents that claim an algorithm. > > >If you > >have a new algorithm on which you want a monopoly in the USA, you can > >get patent protection, provided it meets the usual criteria of novelty > >and nonobviousness. > > One might be able to "get patent protection", but the claims cannot be > directed to an algorithm. > > >You must word the claims in a certain way, and this > > Yes, such that one does not claim the algorithm. > > >I am not sure what to do. > > Just cite a patent, and state which claim is directed to an algorithm. > Tracy > > Thomas T. Aquilla, Ph.D. > Genetic Engineering and Biotech > Research and Consulting, Ltd. > taquilla@erols.com -- Christopher R. Pastel Registered Patent Attorney BROWN, PINNISI & MICHAELS, PC 118 North Tioga Street, Ste. 400 Ithaca, New York 14850 (607) 256-2000 Web Site: http://www.bpmlegal.com/ or mirror site: http://www.lightlink.com/bbm
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Wed, 12 Aug 1998 22:16:21 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1208982216210001@tstpa2-80.gate.net> References: <35D1BC90.BEF3D35@bpmlegal.com> Newsgroups: misc.int-property Lines: 26 In article <35D1BC90.BEF3D35@bpmlegal.com>, Chris Pastel <crpastel@bpmlegal.com> wrote: > For once Rahul is using a word within its precise meaning. *Mathematical* > algorithms cannot be patented, but *algorithms* are nothing more than a series > of steps. In short, every method patent patents an algorithm, but not a > mathematical algorithm. The standard court cases in this area (In re Allapat, > etc.) make this distinction clear. It will be noted that I have used the term "legal algorithm" or similar contexts to clarify that the notion of algorithm, as defined by the Supreme Court *IS* narrower than the notion of an algorithm as Chris is using it here. (They admitted as much in a footnote in Diamond v. Diehr, noting that they did not pass upon the patentability or unpatentability of subject matter falling in the broader notion of an algorithm.) The definition they chose: "We defined "algorithm" as a "procedure for solving a given type of mathematical problem," and we concluded that such an algorithm, or mathematical formula, is like a law of nature, which cannot be the subject of a patent." -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Thu, 13 Aug 98 10:29:51 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253391831B@news.erols.com> References: <werdna-1208982216210001@tstpa2-80.gate.net> Newsgroups: misc.int-property Lines: 25 In Article <werdna-1208982216210001@tstpa2-80.gate.net>, werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: > >It will be noted that I have used the term "legal algorithm" or similar >contexts to clarify that the notion of algorithm, as defined by the >Supreme Court *IS* narrower than the notion of an algorithm as Chris is >using it here. (They admitted as much in a footnote in Diamond v. Diehr, >noting that they did not pass upon the patentability or unpatentability of >subject matter falling in the broader notion of an algorithm.) The >definition they chose: > > "We defined "algorithm" as a "procedure for solving a given type of >mathematical problem," and we concluded that such an algorithm, or >mathematical formula, is like a law of nature, which cannot be the >subject of a patent." This is almost identical to the dictionary definition I found in Webster's II. Apparently the word "algorithm" is derived from the Greek word for "number". Does anyone here know of an alternative definition found anywhere? Tracy Thomas T. Aquilla, Ph.D. Genetic Engineering and Biotech Research and Consulting, Ltd. taquilla@erols.com
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: 13 Aug 1998 21:07:17 GMT From: Dr. Ram Samudrala <ram.samudrala@stanford.nojunkemail> Message-ID: <6qvki5$er9$1@nntp.Stanford.EDU> References: <taquilla.1253391831B@news.erols.com> Newsgroups: misc.int-property Lines: 52 Tracy Aquilla <taquilla@erols.com> wrote: >This is almost identical to the dictionary definition I found in >Webster's II. Apparently the word "algorithm" is derived from the >Greek word for "number". Does anyone here know of an alternative >definition found anywhere? From Algorithmics by David Harel (p x): "An algorithm is an abstract recipe, prescribing a process that might be carried out by a human, by a computer or by other means. It thus represents a very general concept, with numerous applications." Also Harel writes in p7: "The word algorithm is derived from the name of the Persian mathematician Mohammed al-Kowarizmi, who lived during the ninth century, and who who is credited with providing the step-by-step rules for adding, subtracting, multiplying and dividing ordinary decimal numbers. When written in Latin, the name became Algorismus, from which algorithm is a small step." I recommend anyone seriously interested in algorithms to read Harel for a light introduction... it's one of the most clearly written books on the topic. I hope your dictionary doesn't say it was derived from the Greek word for number. This illustrates why a Merriam-Webster dictionary should be used generally: Main Entry: al7go7rithm Pronunciation: 'al-g&-"ri-[th]&m Function: noun Etymology: alteration of Middle English algorisme, from Old French & Medieval Latin; Old French, from Medieval Latin algorismus, from Arabic al-khuwArizmi, from al-KhuwArizmi fl A.D. 825 Arabian mathematician : a procedure for solving a mathematical problem (as of finding the greatest common divisor) in a finite number of steps that frequently involves repetition of an operation; broadly : a step-by-step procedure for solving a problem or accomplishing some end especially by a computer - al7go7rith7mic /"al-g&-'ri[th]-mik/ adjective - al7go7rith7mi7cal7ly /-mi-k(&-)lE/ adverb --Ram email@urls || http://www.ram.org || http://www.twisted-helices.com/th Based on the principle that if we were all crooks, we could at last be uniform to some degree in the eyes of THE LAW... Once we had all broken some kind of law, we'd all be in the same big happy club. ---Frank Zappa
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Thu, 13 Aug 98 21:37:50 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253431910B@news.erols.com> References: <6qvki5$er9$1@nntp.Stanford.EDU> Newsgroups: misc.int-property Lines: 69 In Article <6qvki5$er9$1@nntp.Stanford.EDU>, Dr. Ram Samudrala <ram.samudrala@stanford.nojunkemail> wrote: >Tracy Aquilla <taquilla@erols.com> wrote: >>In Article <werdna-1208982216210001@tstpa2-80.gate.net>, >>werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: >> >> Quoting the US Supreme Court: >>> "We defined "algorithm" as a "procedure for solving a given type of >>>mathematical problem," and we concluded that such an algorithm, or >>>mathematical formula, is like a law of nature, which cannot be the >>>subject of a patent." > >>This is almost identical to the dictionary definition I found in >>Webster's II. Apparently the word "algorithm" is derived from the >>Greek word for "number". Does anyone here know of an alternative >>definition found anywhere? > >From Algorithmics by David Harel (p x): > >"An algorithm is an abstract recipe, prescribing a process that might >be carried out by a human, by a computer or by other means. It thus >represents a very general concept, with numerous applications." >[snip] >Merriam-Webster: >a procedure for solving a mathematical problem (as of finding the greatest >common divisor) in a finite number of steps that frequently >involves repetition of an operation; This is virtually identical to the definition in Webster's II, and the Supremes' definition. >broadly : a step-by-step procedure for solving a problem or accomplishing some >end especially by a computer The only difference is that Harel's definition appears to have eliminated "mathematical", so it is a bit more broad, and Merriam-Webster specifically notes the more broad, although qualified, use of the term. Note however that Harel's definition of an algorithm as a "very general concept" and "abstract" necessarily excludes patentable methods by definition. >I hope your dictionary doesn't say it was derived from the Greek word >for number. Your chosen dictionary did not list the Greek source of the spelling of algorithm? Webster's II says: Greek source _arithm_, "number". >This illustrates why a Merriam-Webster dictionary should >be used generally: No, it simply illustrates that your chosen dictionary is incomplete (and mine). The consensus is thus: an algorithm is a procedure for solving a mathematical problem; an alternative, more broad definition includes non-mathematical procedures or processes, especially as performed by a computer. Apparently, the US law and the PTO use the more narrow definition of algorithm to distinguish "algorithms" from "methods", because some methods are patentable, while algorithms are expressly not patentable. Most importantly, in context, a patentable "method" is not an "algorithm" under US law, because at the PTO, algorithms are not patentable, while methods are. Did we really need the Supreme Court, two dictionaries, and another book to reach this conclusion? Tracy Thomas T. Aquilla, Ph.D. Genetic Engineering and Biotech Research and Consulting, Ltd. taquilla@erols.com
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: 14 Aug 1998 02:09:49 GMT From: Dr. Ram Samudrala <ram.samudrala@stanford.nojunkemail> Message-ID: <6r069d$kl5$1@nntp.Stanford.EDU> References: <taquilla.1253431910B@news.erols.com> Newsgroups: misc.int-property Lines: 24 Tracy Aquilla <taquilla@erols.com> wrote: >Your chosen dictionary did not list the Greek source of the spelling >of algorithm? Webster's II says: Greek source _arithm_, "number". That's not what you wrote. You said: 'Apparently the word "algorithm" is derived from the Greek word for "number".' The etymology appears to be to the contrary. I gave Harel's definition as an "alternative" to the one you posited. I recommended using Merriam-Webster's because Webster's dictionaries themselves may not be reliable (and this is the opinion of almost any librarian I've spoken to on this matter). I don't care whether algorithms are patentable or not; I ignore the entire body of patent law when it comes to my actions. --Ram email@urls || http://www.ram.org || http://www.twisted-helices.com/th "So it's going to cut down on technological innovations, efficiency and so on, but it will happen to increase profits by accident. Well, that's intellectual property rights." ---Noam Chomsky on GATT.
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: 14 Aug 1998 03:03:37 GMT From: Dr. Ram Samudrala <ram.samudrala@stanford.nojunkemail> Message-ID: <6r09e9$lac$1@nntp.Stanford.EDU> References: <taquilla.1253447241F@news.erols.com> <6r069d$kl5$1@nntp.Stanford.EDU> Newsgroups: misc.int-property Lines: 35 Tracy Aquilla <taquilla@erols.com> wrote: >And apparently it is, at least in part. Sorry, the only "authority" you've cited is a dictionary (and not a Merriam-Webster one at that). I would appreciate a source to a text on algorithms citing the etymology as you view it. >Actually, it just appears to be more complex than you and I first >thought. I'm going by Harel's explanation on how the word came about. There's nothing complex about that. And given that Harel's one of the authorities on the subject, I'd like to a similar authority talk about an etymology like the one you posited. >Thank you. [...] >Thanks for the advice. You're welcome. >I already knew that - you so frequently mention it. :-) That's just for the benefit of someone who may not be up to speed on this group's dichotomy. I just didn't want anyone to think I had an opinion about the patentability of algorithms in this thread. --Ram email@urls || http://www.ram.org || http://www.twisted-helices.com/th There lived a certain man in Russia long ago, He was big and strong in his eyes a flaming glow. Most people looked at him with terror and with fear, but to Moscow chicks he was such a lovely dear. ---Boney M, Rasputin
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Fri, 14 Aug 1998 08:38:28 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1408980838280001@tstpa1-20.gate.net> References: <6r09e9$lac$1@nntp.Stanford.EDU> Newsgroups: misc.int-property Lines: 29 In article <6r09e9$lac$1@nntp.Stanford.EDU>, expt@alanine.ram.org wrote: > Tracy Aquilla <taquilla@erols.com> wrote: > > >And apparently it is, at least in part. > > Sorry, the only "authority" you've cited is a dictionary (and not a > Merriam-Webster one at that). Ram is in serious credibility trouble here. My Webster's Third New International (which *IS* a Mirriam-Webster publication, by the way) likewise defines algorithm in terms of calculation and arithmetic. Indeed, solely so. Algorithm is defined in terms of the word algorism, which in turn is defined as the art of calculating with the symbols 0-9. A second definition of algorism is broader, "the art of calculating with any species of notation (the ~ of fractions)." Algorithm in this sense means the art of using a calculus or an algebra. [The last sentence was offered solely to complicate the matter :-)] While I also prefer the M-W dictionaries, for completeness (they're just bigger) and sturdiness of binding, that has NOTHING to do with the matter at hand. The only relevant definition for purporses of patentability is the one given by the Supreme Court which, regardless of the views of librarians polled, is dispositive. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: 15 Aug 1998 09:55:20 GMT From: Dr. Ram Samudrala <ram.samudrala@stanford.nojunkemail> Message-ID: <6r3lu8$ibt$1@nntp.Stanford.EDU> References: <werdna-1508980021560001@tstpa1-34.gate.net> <6r1srj$3dp$2@nntp.Stanford.EDU> <werdna-1408980838280001@tstpa1-20.gate.net> Newsgroups: misc.int-property Lines: 27 Andrew C. Greenberg <werdna@nonspam-gate.net> wrote: >OK, then I declare Tracy the winner. My fully Ram-compliant M-W Webster's >Third New International reads as follows: >al*go*rithm ..... n -s [alter. (influenced by artihmetic) of algorism] >ALGORISM >No other definitions are given. The etymological analysis in algorism, as >noted beforehand, deals with arithmetic and numerals. I trust David Harel more than your dictionary (if you do indeed have a Merriam-Webster's then the Merriam-Webster's dictionaries are contradicing each other, as the online one doesn't say anything about arithmetic and numerals in its etymological analysis). You really honestly believe that the word algorithm didn't originate from the name of Mohammed al-Kowarizmi and instead believe it originates from the greek word for number (which is what Tracy is claiming)? Please reply clearly for posterity's sake here. --Ram email@urls || http://www.ram.org || http://www.twisted-helices.com/th Based on the principle that if we were all crooks, we could at last be uniform to some degree in the eyes of THE LAW... Once we had all broken some kind of law, we'd all be in the same big happy club. ---Frank Zappa
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Sat, 15 Aug 98 13:25:23 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253575163B@news.erols.com> References: <6r3lu8$ibt$1@nntp.Stanford.EDU> Newsgroups: misc.int-property Lines: 34 In Article <6r3lu8$ibt$1@nntp.Stanford.EDU>, Dr. Ram Samudrala <ram.samudrala@stanford.nojunkemail> wrote: >Andrew C. Greenberg <werdna@nonspam-gate.net> wrote: > >>OK, then I declare Tracy the winner. My fully Ram-compliant M-W Webster's >>Third New International reads as follows: > >>al*go*rithm ..... n -s [alter. (influenced by artihmetic) of algorism] >>ALGORISM > >>No other definitions are given. The etymological analysis in algorism, as >>noted beforehand, deals with arithmetic and numerals. > >I trust David Harel more than your dictionary (if you do indeed have a >Merriam-Webster's then the Merriam-Webster's dictionaries are >contradicing each other, Not uncommon - so goes your penulitmate source. >You really honestly believe that the word algorithm didn't originate >from the name of Mohammed al-Kowarizmi and instead believe it >originates from the greek word for number. (which is what Tracy is >claiming)? Maybe the 'al' part did? The Greek word _arithm_ is simply the one with the closest spelling to "algorithm". Of course, every language probably has a word for number (doesn't your dictionary list several?), and many are similar. >Please reply clearly for posterity's sake here. It is both. Apparently the word "algorithm" was derived by combining part of a person's name with the concept of manipulating 'numbers'. Just this lay person's opinion though. Tracy
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Sat, 15 Aug 1998 11:21:59 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1508981121590001@tstpa1-28.gate.net> References: <6r3o1t$iii$1@nntp.Stanford.EDU> <werdna-1508980021560001@tstpa1-34.gate.net> Newsgroups: misc.int-property Lines: 73 In article <6r3o1t$iii$1@nntp.Stanford.EDU>, expt@alanine.ram.org wrote: > And just in case it's not completely clear (by my words in the > previous posts in this thread, which it should be unless people aren't > reading the previous posts), I consider David Harel (or any or > algorithmican of his calibre) to be the authorative source.' I wonder if Ram's prior interrogation of librarians were also polled on their views of David Harel? As I recall, Rahul thought the world of M-W dictionaries until one contradicted him. With all due respect, does Ram truly believe that someone who writes a book about algorithms from a computer science perspective has any deeper comprehension or understanding of the etymology of that word than a lexicographer? I am unaware that David's C.V. shows any expertise as a historian, and references in his bibliography to chapter 1 are solely C.S. references, so far as I can tell. [I confess not spending a whole lot of time on this silliness -- and it is silly.] My beef is simply this. Ram didn't argue the issue, or provide further authority. He simply MADE UP a poll of librarians to gainsay one reference while lording yet another reference above it. I didn't lionize M-W dictionaries as the final word on matters. He did. When faced with a contrdiction between the publisher's flagship publication and his desired result, he decided to argue beased on David Harel's authority AS A HISTORIAN AND ETYMOLOGIST!!! I have no doubt that the word algorithm derives from the word "algorism," which refers to arabic numbers, and which in turn did derive from the persian with the name I do not dare attempting to spell without opening another book (which I simply will not do at this point). [By the way, the fact that the word was named after a persion, does not mean the word was coined in the persian langauge. I am no expert in the etymology of the word, not do I pretend any insight into various references -- I certainly don't conduct (or concoct) librarian polls to settle disputes -- I'm just amazed that Ram would hold himself out as an authority to mediate between authorities] I just wanted the audience to see how deeply Ram thought this out before he began spouting off at the mouth about references. Since this is aprapos of nothing -- I shall continue to use my Webster's Third New International as an exceptional lexicon, occasionally refer to my New Lexicon Webster's, notwithstanding Ram's survey evidence as a backup reference and look to historians for my historical references. As to the legal meaning of "mathematical algorithm," I shall defer to the Supreme Court of the United States rather than the Court of Ram, and shall not quibble with the Supreme Court's reference to the term algorithm in its mathematical context, particularly given the etymology and dictionary definitions of the term. I suggest that those seriously concerned about the Supreme Court's ability to comprehend the oridinary and technical meaning of words consider the footnote in Diamond v. Diehr, which acknowledges broader uses of the term and discusses those meanings in conext of the opinion as a whole. And as to argumentum poll-the-librarians, followed by computer-scientist-ergo-historian: phooey! I don't care whether Ram arrived thereby at the right result or not -- his reasoning is the worst form of ad hoc demagoguery, chosing references to suit the result he desires and then bad-mouting one over another; and, indeed, the furtherst from intellectually honest truth-seeking we have seen for quite a while. For my part, I'd like to know the truth of things -- I know upon whom I shall rely in the future -- and whose assertions of carefully considered views I shall discount. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Thu, 13 Aug 1998 23:45:10 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D3DCF6.25838445@ieee.org> References: <taquilla.1253431910B@news.erols.com> Newsgroups: misc.int-property Lines: 33 Tracy Aquilla wrote: > > The consensus is thus: an algorithm is a procedure for solving a > mathematical problem; an alternative, more broad definition includes > non-mathematical procedures or processes, especially as performed by a computer. Actually, I would suggest that that is not the consensus, esp. as to patent law. There is a distinction between "mathematical" algorithms, and all others. The former are not patentable, the later often are. > Apparently, the US law and the PTO use the more narrow definition of > algorithm to distinguish "algorithms" from "methods", because some methods > are patentable, while algorithms are expressly not patentable. Most > importantly, in context, a patentable "method" is not an "algorithm" under > US law, because at the PTO, algorithms are not patentable, while methods are. Again, it is "mathematical" algorithms that are not patentable. > Did we really need the Supreme Court, two dictionaries, and another book to > reach this conclusion? > Tracy Given that you weren't quite correct, then yes. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Fri, 14 Aug 98 13:11:17 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253487917A@news.erols.com> References: <35D3DCF6.25838445@ieee.org> Newsgroups: misc.int-property Lines: 43 In Article <35D3DCF6.25838445@ieee.org>, Bruce Hayden <bhayden@ieee.org> wrote: >Tracy Aquilla wrote: >> >> The consensus is thus: an algorithm is a procedure for solving a >> mathematical problem; an alternative, more broad definition includes >> non-mathematical procedures or processes, especially as performed by a computer. > >Actually, I would suggest that that is not the consensus, esp. as to >patent law. Sorry for the confusion, I should have been more precise - it is the consensus of the authorities that were cited in this thread. >There is a distinction between "mathematical" algorithms, >and all others. The former are not patentable, the later often are. Yes, I already stated that patentable "methods" are distinguished from (mathematical) "algorithms". If algorithms are often patentable, perhaps you can point to an issued patent wherein the claimed invention is an algorithm (non-mathematical, of course)? >> Apparently, the US law and the PTO use the more narrow definition of >> algorithm to distinguish "algorithms" from "methods", because some methods >> are patentable, while algorithms are expressly not patentable. Most >> importantly, in context, a patentable "method" is not an "algorithm" under >> US law, because at the PTO, algorithms are not patentable, while methods are. > >Again, it is "mathematical" algorithms that are not patentable. I agree - "mathematical" algorithms are not patentable. >> Did we really need the Supreme Court, two dictionaries, and another book to >> reach this conclusion? >> Tracy > >Given that you weren't quite correct, then yes. Weren't quite correct about what? Do you know of an issued patent wherein the claimed invention is a non-mathematical "algorithm" (i.e. not a device or method under 101)? I am unfamiliar with the art in this area, but I am interested in learning. Tracy
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Thu, 13 Aug 1998 23:56:51 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D3DFB3.B910944B@ieee.org> References: <6qvmo2$9rk$1@samba.rahul.net> <6qvki5$er9$1@nntp.Stanford.EDU> Newsgroups: misc.int-property Lines: 48 Rahul Dhesi wrote: > The second meaning makes every precisely-stated algorithm a mathematical > algorithm. The first meaning makes every algorithm involving > mathematics a mathematical algorithm. Since all computer processing > involves mathematical techniques, at the very least involving > comparisons and logical operations, again all algorithms implemented on > computer systems must be mathematical algorithms. Thus it is clearly > incorrect to say that 'mathematical algorithms' do not get patent > protection. You are entitled to define the term any way that you want. However, that has nothing to do with what is or is not patentable. The term "mathematical" algorithm in patent law has been signficantly limited to an algorithm where you have a handful of numbers input, and one or a small number of numbers output. Under this definition treating a computer program as if it were a mathematical algorithm is insufficient to take it out of the statutory realm. > Anybody arguing that 'mathematical algorithms' don't get patent > protection needs to properly describe what he means by 'mathematical > algorithm' in such a way that known patented algorithms that take an > abstract data stream as input (such as IDEA and RSA encrytion and LZW > compression) are not included in this meaning. I like Andy's distinction of patentable algorithms and nonpatentable algorithms. In any case, the big thing that these algorithms (in whatever guise) have is that they relate very strongly to hardware. There must be hardware involved. Software without hardware is still pretty much unpatentable. However, loading it in RAM usually creates a statutory machine. Writing it to a floppy or a CD-ROM usually creates a statutory article of manufacture. Specifying a structural relationship between hardware elements in method claims usually results in a statutory process. But my point here is that getting tied up in exactly what is a "mathematical" algorithm in the common vernacular, and what is not is totally irrelevant in determining what is patentable subject matter. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Fri, 14 Aug 1998 07:57:56 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1408980757560001@tstpa1-20.gate.net> References: <6qvmo2$9rk$1@samba.rahul.net> <6qvki5$er9$1@nntp.Stanford.EDU> Newsgroups: misc.int-property Lines: 16 In article <6qvmo2$9rk$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: > Anybody arguing that 'mathematical algorithms' don't get patent > protection needs to properly describe what he means by 'mathematical > algorithm' in such a way that known patented algorithms that take an > abstract data stream as input (such as IDEA and RSA encrytion and LZW > compression) are not included in this meaning. Asked, and answered, several times with direct quotes from pertinent Supreme Court authority. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Fri, 14 Aug 1998 10:42:41 -0400 From: Chris Pastel <crpastel@bpmlegal.com> Message-ID: <35D44CE1.4A853770@bpmlegal.com> References: <6qvmo2$9rk$1@samba.rahul.net> <6qvki5$er9$1@nntp.Stanford.EDU> Newsgroups: misc.int-property Lines: 69 Rahul Dhesi wrote: > <snip> > The second meaning makes every precisely-stated algorithm a mathematical > algorithm. The first meaning makes every algorithm involving > mathematics a mathematical algorithm. Since all computer processing > involves mathematical techniques, at the very least involving > comparisons and logical operations, again all algorithms implemented on > computer systems must be mathematical algorithms. Thus it is clearly > incorrect to say that 'mathematical algorithms' do not get patent > protection. > Why do you persist in saying that 'mathematical algorithims' get patent protection? Perhaps you believe that the phrase 'mathematical algorithm' as used by the courts covers more than the courts say? Or perhaps you believe that 'patent protection' is something it is not? Andy has correctly stated the rules for determining infringement of a patent. Educate yourself about infringement and about the current law on patenting mathematical algorithms and you won't be persisting in such absurd statements. Perhaps an example will help: I claim: Apparatus for measuring power consumption of a logic device, comprising: means for determining an input slew rate of an input signal to said logic device; means, responsive to said slew rate, for calculating a first power consumption resulting from a through-current of said logic device and including means for applying a formula Wp=b+mt, where Wp is said power consumption, t is said slew rate, and b and m are constants; means for calculating a second power consumption resulting from a charging current of said logic device; and means for summing said first power consumption and said second power consumption to provide a total power consumption of said logic device. This is patentable (5,473,548). According to your logic, the mathematical algorithm of Wp=b+mt is protected, whereas the equation itself is most assuredly NOT protected. Anyone is free to use the equation, they just can't use this particular apparatus. This is not a trivial distinction. As Andy nicely puts it, you can't patent the law of gravity, but you can patent the pendulum that uses it. Side note: a lot of the discussion boils down to definitions. If you are going to use a word in a legal discussion or argument, then you should abide by the 'legal' meaning of the word and not get wound around the axle by insisting on the 'plain' or 'everyday' meaning. -- Christopher R. Pastel Registered Patent Attorney BROWN, PINNISI & MICHAELS, PC 118 North Tioga Street, Ste. 400 Ithaca, New York 14850 (607) 256-2000 Web Site: http://www.bpmlegal.com/ or mirror site: http://www.lightlink.com/bbm
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Sun, 16 Aug 1998 11:54:21 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D72ADD.22613BBD@ieee.org> References: <6r1q18$nh8$1@samba.rahul.net> <35D44CE1.4A853770@bpmlegal.com> Newsgroups: misc.int-property Lines: 105 Rahul Dhesi wrote: > >Why do you persist in saying that 'mathematical algorithims' get patent > >protection? Perhaps you believe that the phrase 'mathematical > >algorithm' as used by the courts covers more than the courts say? > > I asked for a good definition of 'mathematical algorithm' and all I got > was supercilious responses telling me to look at some court case. That > doesn't cut it. If you are going to use a term in a manner not > consistent with its plain English meaning, you need to be able to > present a useful definition. Sorry, that is not the way that the law works. Rather, the term has developed what we might call judicial gloss. And that is precisely what happens - you have to look at the supporting caselaw to determine exactly what a legal term means, and thanks to Benson, et al., the term "mathematical algorithm" has developed a judicial meaning. > > Talking about 'mathematical algorithm' "as used by the courts" boils > down to defining 'mathematical algorithm' in terms of whether or not it > gets patent protection. This is a useless and tautological definition > of the term. No, you just approach it too simplistically. First, you are correct that we define it almost tautologically - if something is patentable, then it isn't a mathematical algorithm. But we are forced into it because of the Supreme Court cases. Thus, we are forced to define anything that is patentable as not a mathematical algorithm. You ask, What is going on here? The answer is that you are seeing how the law grows over time. The Supreme Court is the final court determining the law of the United States. Thus, everything they do at some level is cast into stone. But circumstances change over time. The way that the law adapts to this in many cases is that the old law is "distinguished". What this really means in many cases is that some term or another is interpreted more narrowly, allowing the old case to mean something else. The Supreme Court can of course just overrule itself in order to change direction. The lower courts cannot. However note that even this is in serious dispute in the Supreme Court, with J. Souter leading the one it is law, it is cast into stone forever crowd, and J. Scalia leading the crowd willing to overrule itself. This difference of judicial opinion is one reason that these two justices seem to fight more in their opinions than others. So, you have what I consider to have been a stupid decision, written by one of the most anti-patent justices of modern times (J. Douglas), that is totally out of touch with reality. So, what do you do? The Supreme Court started the ball rolling in Diamond v. Diehr, where they pointed at the term "mathematical algorithm" and pointed out that they obviously didn't have such in their case, rather, they had a machine, which was just as obviously patentable (using the English definition for the word "obvious" rather than the patent law definition). So, ever since (and probably actually before) Diehr, the lower courts, most particularly the Federal Circuit that has exclusive jurisdiction over patent appeals, have been using this technique to provide patentability of ever more software. Thus, you really do have a situation where the term "mathematical algorithm" is being driven by what is patentable, since if it is patentable, it cannot legally be a "mathematical algorithm". And of course what is patentable is to some extent driven by the lower court cases. Andy would like the Supreme Court to reopen this area of the law, and thinks that maybe State Street Bank may be a good test case. But until they do, the Federal Circuit in concert with the PTO determines what is patentable, and thus what is not a "mathematical algorithm". That said, the question then is "what is patenable"? To some extent, the PTO's "Examination Guidelines for Computer-Related Inventions" that can be downloaded from: http://www.uspto.gov/web/offices/com/hearings/software/analysis/computer.html is fairly helpful. It includes a flowchart that does a decent job of following the Federal Circuit caselaw as of about 1/1/96. However, I have always felt the Exmaination Guidelines to be somewhat conservative compared to what you can actually get through the PTO. > This sort of talking down seems to be typical of most of the attorneys > posting here. > > I'm still waiting for somebody to provide an example of an > implementation of LZW that is not protected by the LZW patent. The best > disproof to an assertion of 'all A is B' is to find a B that is not A, > and this Andy et al have consistently failed to do in the case of LZW. > I see repeated claims that LZW is not protected by patent, but > absolutely no evidence that any implementation of LZW exists, that is > not covered by the patent. Well, you won't get that from me, since I find it irrelevant whether all implementations of LZW are covered by the patent or not. That has absolutely nothing to do with whether the patent is valid or not. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Mon, 17 Aug 1998 21:06:51 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D8FDDB.54362F6A@ieee.org> References: <6raabd$fqo$1@samba.rahul.net> <35D72ADD.22613BBD@ieee.org> Newsgroups: misc.int-property Lines: 56 Rahul Dhesi wrote: > > Which again says that J-mathematical-algorithm has no intended plain > English meaning, and in fact does not even have a clear judicial > meaning; it's simply a label we use to refer to those algorithms that > have been determined to be not patentable. > What's the point of telling me that 'mathematical algorithm' has indeed > been defined and I should look at such-and-such court case? I think > it's very clear that this term has no definition. It's just a label > used to refer to certain things, much as 'Bruce' and 'Andy' are labels > used to refer to certain people. The term itself has no inherent > meaning. Rather its definition is determined by the software patent cases. What you seem to want is a one or two line definition. You aren't going to get one. That is because the term is now a legal term of art. And legal terms of art invariably cannot be defined that cleanly. What you have to keep in mind is that the term does have a meaning. It is just that the term stands for the string of court cases. > Let me propose that any time a term is used on Usenet for which a > judicial meaning is intended which is substantially different from its > plain English meaning, a J- prefix be used to signify this. This would > make arguments a bit more clear: > > A: Algorithms can be patented! > B: You're wrong, J-algorithms can't be patented! > A: You could be right, perhaps J-algorithms can't be patented. But > algorithms can be patented. > B: Ok, we are both right. Let's shake hands. > A: What on earth is a J-algorithm, by the way? > B: Gee, I'm not sure. The Supreme Court isn't very clear about > this. > A: Ah, my condolences! At this point, I would suggest talking to a patent attorney or agent. > My assertion was that all implementations of LZW are protected by the > patent. Anybody disagreeing with me really ought to find an > implementation that is not protected by patent. I might be willing to agree to a statement that all practical impelementations of LZW with today's technology are protected by the patent. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Wed, 12 Aug 1998 22:21:05 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1208982221050001@tstpa2-80.gate.net> References: <6qsh13$kej$1@samba.rahul.net> <35D1BC90.BEF3D35@bpmlegal.com> Newsgroups: misc.int-property Lines: 30 In article <6qsh13$kej$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: > Can the alleged distinction between 'algorithm' and 'mathematical > algorithm' be summarized here in plain English? This is not a > distinction made by either computer scientists or mathematicians. I agree, there isn't a meaningful distinction for computer scientists or mathematicians. The Supreme Court articulated THEIR definition of the specialized legal term of art "algorithm" as follows: "We defined "algorithm" as a "procedure for solving a given type of mathematical problem," and we concluded that such an algorithm, or mathematical formula, is like a law of nature, which cannot be the subject of a patent." They acknowledged this is narrower than more general and traditional notions of "algorithm," which is why they chose the "mathematical" qualifier. It is THEIR nomenclature, which has regrettably led to great confusion later on. (You should see what they did with the word "malice" in Times v. Sullivan!) > BTW, for obvious reasons, I object to your use of the phrase 'for once'. Me, too. I didn't think Dhesi was precise that time either. :-) -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Thu, 13 Aug 1998 00:18:21 -0400 From: barmar@bbnplanet.com (Barry Margolin) Message-ID: <barmar-1308980018210001@barmar.ne.mediaone.net> References: <werdna-1208982221050001@tstpa2-80.gate.net> Newsgroups: misc.int-property Lines: 15 In article <werdna-1208982221050001@tstpa2-80.gate.net>, werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: >I agree, there isn't a meaningful distinction for computer scientists or >mathematicians. The Supreme Court articulated THEIR definition of the >specialized legal term of art "algorithm" as follows: So the whole reason for the argument in this thread is a stupid terminology distinction? Can we lay it to rest and agree that it *is* possible to patent a computer algorithm? -- Barry Margolin, barmar@bbnplanet.com GTE Internetworking, Cambridge, MA Support the anti-spam movement; see <http://www.cauce.org/>
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Thu, 13 Aug 98 10:32:30 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253391990E@news.erols.com> References: <barmar-1308980018210001@barmar.ne.mediaone.net> Newsgroups: misc.int-property Lines: 26 In Article <barmar-1308980018210001@barmar.ne.mediaone.net>, barmar@bbnplanet.com (Barry Margolin) wrote: >In article <werdna-1208982221050001@tstpa2-80.gate.net>, >werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: > >>I agree, there isn't a meaningful distinction for computer scientists or >>mathematicians. The Supreme Court articulated THEIR definition of the >>specialized legal term of art "algorithm" as follows: > >So the whole reason for the argument in this thread is a stupid >terminology distinction? So far, I have seen only two definitions cited that are supported by any authority, and they are both the same. Where can one find the alternative definition of "algorithm" to which you refer? >Can we lay it to rest and agree that it *is* >possible to patent a computer algorithm? Without any convincing evidence? Certainly not. ;-) Tracy Thomas T. Aquilla, Ph.D. Genetic Engineering and Biotech Research and Consulting, Ltd. taquilla@erols.com
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Thu, 13 Aug 1998 08:02:40 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1308980802400001@tstpa2-80.gate.net> References: <barmar-1308980018210001@barmar.ne.mediaone.net> Newsgroups: misc.int-property Lines: 13 In article <barmar-1308980018210001@barmar.ne.mediaone.net>, barmar@bbnplanet.com (Barry Margolin) wrote: > So the whole reason for the argument in this thread is a stupid > terminology distinction? Can we lay it to rest and agree that it *is* > possible to patent a computer algorithm? No. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Thu, 13 Aug 98 10:31:24 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253391924D@news.erols.com> References: <barmar-1208982352200001@barmar.ne.mediaone.net> <6q4s7p$hv5$1@samba.rahul.net> <werdna-0308980826590001@tpafx1-56.gate.net> Newsgroups: misc.int-property Lines: 22 In Article <barmar-1208982352200001@barmar.ne.mediaone.net>, barmar@bbnplanet.com (Barry Margolin) wrote: >In article <taquilla.1253334030A@news.erols.com>, taquilla@erols.com >(Tracy Aquilla) wrote: > >>>LZW isn't just a proper subset of what is being claimed, LZW *is* what >>>is being claimed, at least in the broadest claims. >> >>Well claim 1 is the broadest claim, and it is directed to an apparatus. >>Perhaps you can explain the basis for your conclusion that the 'broader >>claims' effectively claim the algorithm itself? > >Perhaps you can explain how someone could usefully perform the LZW >algorithm without using such an apparatus? By using an apparatus that does not meet all of the limitations of the claim. Tracy Thomas T. Aquilla, Ph.D. Genetic Engineering and Biotech Research and Consulting, Ltd. taquilla@erols.com
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Thu, 13 Aug 98 22:29:25 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253435005D@news.erols.com> References: <6qvmo2$9rk$1@samba.rahul.net> <6q4s7p$hv5$1@samba.rahul.net> <werdna-0308980826590001@tpafx1-56.gate.net> Newsgroups: misc.int-property Lines: 62 In Article <6qvmo2$9rk$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: > >The word algorithm has been used quite correctly here to refer to any >step-by-step recipe. It's also true that the patent system in the USA >recognizes algorithms as statutory subject matter, referring to them as >'methods' or 'processes'. The "the patent system in the USA" distinguishes between "methods", which are patentable, and "algorithms", which are not patentable. See MPEP 2106 and 35 USC section 101. "If the steps of gathering and substituting values were alone sufficient, every mathematical equation, formula, or algorithm having any practical use would be per se subject to patenting as a "process" under 101." MPEP 2106. Certainly some "methods" are patentable, but if that is the only evidence you have to offer showing that "algorithms" are patentable, your argument is absolutely unconvincing. > 1 : of, relating to, or according with mathematics > 2 a : rigorously exact : PRECISE b : CERTAIN > 3 : possible but highly improbable <only a mathematical chance> > >The second meaning makes every precisely-stated algorithm a mathematical >algorithm. Well, according to Ram's source, algorithms are "abstract", and a "very general concept", which is the opposite of "precise" or "exact", no? >Thus it is clearly incorrect to say that 'mathematical algorithms' do not get >patent protection. "A process that merely manipulates an abstract idea or performs a purely mathematical algorithm is nonstatutory. In Sarkar, 588 F.2d at 1335, 200 USPQ at 139." MPEP 2106. "For such subject matter to be statutory, the claimed process must be limited to a practical application of the abstract idea or mathematical algorithm in the technological arts. See Alappat, 33 F.3d at 1543, 31 USPQ2d at 1556-57 (quoting Diamond v. Diehr, 450 U.S. at 192, 209 USPQ at 10)." MPEP 2106. >Anybody arguing that 'mathematical algorithms' don't get patent >protection needs to properly describe what he means by 'mathematical >algorithm' in such a way that known patented algorithms that take an >abstract data stream as input (such as IDEA and RSA encrytion and LZW >compression) are not included in this meaning. "In practical terms, claims define nonstatutory processes if they: - consist solely of mathematical operations without some claimed practical application (i.e., executing a "mathematical algorithm"); or - simply manipulate abstract ideas, e.g., a bid (Schrader, 22 F.3d at 293-94, 30 USPQ2d at 1458-59) or a bubble hierarchy (Warmerdam, 33 F.3d at 1360, 31 USPQ2d at 1759), without some claimed practical application." MPEP 2106. Thomas T. Aquilla, Ph.D. Genetic Engineering and Biotech Research and Consulting, Ltd. taquilla@erols.com
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: 14 Aug 1998 01:00:09 GMT From: c.c.eiftj@12.usenet.us.com (Rahul Dhesi) Message-ID: <6r026p$css$1@samba.rahul.net> References: <taquilla.1253435005D@news.erols.com> Newsgroups: misc.int-property Lines: 36 In <taquilla.1253435005D@news.erols.com> taquilla@erols.com (Tracy Aquilla) writes: [ numerous quotes from MPEP ] [ numerous other quotes ] The quotes you present cerainly sound impressive. However, none of them says that algorithms cannot get patent protection. They do make some assertions using vague terms that you do not define. For example: >"For such subject matter to be statutory, the claimed process must be >limited to a practical application of the abstract idea or mathematical >algorithm in the technological arts. What's a 'practical application' and what's a 'technological art'? Suppose I discovered two new and nonobvious functions Fa and Fb, such that Fa(Sa) = Sb Fb(Sb) = Sa where Sa is an arbitrary string and Sb is a significantly shorter string. Would you consider this a practical application that could get patent protection? If not, why not? It seems to me that any algorithm that fulfills a need must be considered to be of practical use and hence eligible for patent protection, if it fulfils other requirements such as being new and nonobvious. -- Rahul Dhesi <dhesi@spams.r.us.com> "Frankly, sir, nobody is that much of an expert on anything, at least not on usenet." -- Andy Greenberg <werdna@gate.net>
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Fri, 14 Aug 98 01:41:44 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253446544E@news.erols.com> References: <6r026p$css$1@samba.rahul.net> Newsgroups: misc.int-property Lines: 28 In Article <6r026p$css$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: >In <taquilla.1253435005D@news.erols.com> taquilla@erols.com (Tracy >Aquilla) writes: > >[ numerous quotes from MPEP ] > >[ numerous other quotes ] > >The quotes you present cerainly sound impressive. However, none of them >says that algorithms cannot get patent protection. They do make some >assertions using vague terms that you do not define. For example: > >>"For such subject matter to be statutory, the claimed process must be >>limited to a practical application of the abstract idea or mathematical >>algorithm in the technological arts. > >What's a 'practical application' and what's a 'technological art'? The MPEP is replete with specific examples, and I already cited the appropriate sections for you. If you read it, you might even find some rational arguments to support your position. ;-) Tracy Thomas T. Aquilla, Ph.D. Genetic Engineering and Biotech Research and Consulting, Ltd. taquilla@erols.com
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Fri, 14 Aug 1998 08:21:12 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1408980821120001@tstpa1-20.gate.net> References: <6r026p$css$1@samba.rahul.net> Newsgroups: misc.int-property Lines: 66 In article <6r026p$css$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: > In <taquilla.1253435005D@news.erols.com> taquilla@erols.com (Tracy > Aquilla) writes: > > [ numerous quotes from MPEP ] > > [ numerous other quotes ] > > The quotes you present cerainly sound impressive. However, none of them > says that algorithms cannot get patent protection. Dhesi in denial. He needs to read them again. > They do make some > assertions using vague terms that you do not define. For example: > > >"For such subject matter to be statutory, the claimed process must be > >limited to a practical application of the abstract idea or mathematical > >algorithm in the technological arts. > > What's a 'practical application' and what's a 'technological art'? He needs to read them again. These terms are very well-understood and defined in the references. > Suppose I discovered two new and nonobvious functions Fa and Fb, such > that > > Fa(Sa) = Sb > > Fb(Sb) = Sa > > where Sa is an arbitrary string and Sb is a significantly shorter > string. Would you consider this a practical application that could get > patent protection? If not, why not? The abstract function descibed in this manner is expressly unpatentable. Something quite like it is patentable, but only in precisely the same sense you can get a patent on the law of gravity (which you can't). The pendulum, exploiting the law of gravity in a particular way, is patentable. A device that exploits the law of gravity in a different way is noninfringing. A device for shortening disk files, exploiting the functions Fa and Fb in a particular way, is patentable. A device for shortening disk files exploiting the functions in a different way is noninfringing. > It seems to me that any algorithm that fulfills a need must be > considered to be of practical use and hence eligible for patent > protection, if it fulfils other requirements such as being new and > nonobvious. Dhesi reverts to wordplay. The Supreme Court said he is wrong, as recited in previous postings, so Dhesi is now trying to use the same words to mean different things, hopefully evolving his previously unsupported assertions of fact to a more supportable position. Happily, he is finally coming around to the points that tracy, Bruce and I made at the beginning of this thread: abstract algorithms are not patentable per se, but particular implementations can be so patented, and the scope of those inventions are determined, indeed DEFINED by, the claims of the patent. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: 14 Aug 1998 14:26:27 GMT From: galibert@pobox.com (Olivier Galibert) Message-ID: <slrn6t8i8f.3o7.galibert@renaissance.loria.fr> References: <werdna-1408980821120001@tstpa1-20.gate.net> Newsgroups: misc.int-property Lines: 24 In article <werdna-1408980821120001@tstpa1-20.gate.net>, Andrew C. Greenberg wrote: >> It seems to me that any algorithm that fulfills a need must be >> considered to be of practical use and hence eligible for patent >> protection, if it fulfils other requirements such as being new and >> nonobvious. > >Dhesi reverts to wordplay. The Supreme Court said he is wrong, as recited >in previous postings, so Dhesi is now trying to use the same words to mean >different things, hopefully evolving his previously unsupported assertions >of fact to a more supportable position. Happily, he is finally coming >around to the points that tracy, Bruce and I made at the beginning of this >thread: abstract algorithms are not patentable per se, but particular >implementations can be so patented, and the scope of those inventions are >determined, indeed DEFINED by, the claims of the patent. Please explain me that, since for the so-called LZW patent nobody in the whole OSS community has been able to come up with a program implementing an algorithm giving the same output for the same set of inputs which wouldn't infringe at least the first claim, pretending that the LZW algorithm itself isn't in fact protected is anything but wordplay? OG.
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Sat, 15 Aug 98 13:18:19 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253574739A@news.erols.com> References: <6r2ojf$do$1@samba.rahul.net> <6qok5r$jhd$1@samba.rahul.net> Newsgroups: misc.int-property Lines: 44 In Article <6r2ojf$do$1@samba.rahul.net>, c.c.eiftj@12.usenet.us.com (Rahul Dhesi) wrote: >In <barmar-1308982057360001@barmar.ne.mediaone.net> barmar@bbnplanet.com >(Barry Margolin) writes: >>In article <taquilla.1253428408A@news.erols.com>, taquilla@erols.com >>(Tracy Aquilla) wrote: > >>>To be precise, nothing is actually "protected" by the patent. Patents >>>do not "protect" an invention, they merely provide the patentee a >>>legal right that others do not have - the right to file lawsuits for >>>infringement of the patent. > >>A patent protects the inventor's (actually, the patent holder's) right >>to control use of the invention. Patents do not necessarily give the patentee the 'right to control' either (the right to exclude is not an exclusive right). Often a patentee must obtain a license to practice his own invention. >>But I think you understand what we >>lay people mean when we abbreviate this as "protects the invention". Yes, I believe I do. I simply re-stated the issue more precisely. "Protection" is rather vague. I was trying to focus on how 'protected by a patent' is actually defined under the law, because the scope of "protection" is rather narrow. The precise question is: is there an embodiment of the algorithm that does not fall _within the scope of the claims_? >Nope, there is no misunderstanding. > >This is simply another example of when we use the plain and obvious >meaning of some word, What do you think is the plain and ordinary meaning of "protect"? If a patent really protects an invention, then why are there lawsuits for infringement? >Patents do 'protect' inventions, and federal law says so. > >From 35 USC 41(2): Yes, Congress too sometimes uses words somewhat imprecisely. You may consult your Merriam-Webster dictionary for the plain, ordinary meaning. :-) Tracy
Subject: Re: XOR: 4,197,590 (was: Re: Patents and OSS) Date: Sat, 15 Aug 98 13:27:37 GMT From: taquilla@erols.com (Tracy Aquilla) Message-ID: <taquilla.1253575297C@news.erols.com> References: <6r3o1t$iii$1@nntp.Stanford.EDU> <6q4s7p$hv5$1@samba.rahul.net> <werdna-0308980826590001@tpafx1-56.gate.net> Newsgroups: misc.int-property Lines: 20 In Article <6r3o1t$iii$1@nntp.Stanford.EDU>, Dr. Ram Samudrala <ram.samudrala@stanford.nojunkemail> wrote: > >I consider David Harel (or any or >algorithmican of his calibre) to be the authorative source. I disagree. He might be the most authoritative source for the common definition as used in the technical arts, but I believe a standard dictionary of the English language is the more appropriate source for the plain, ordinary meaning, as used by the public in general. Anyway, now we have consulted several dictionaries, the US Supreme Court, and David Harel. >Harel's the expert here. Is he a renowned professor of the English language? >Please reply clearly for posterity's sake here. See my previous post. Tracy
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Last updated: 1999-02-20