Microsoft, HP, Adobe try to justify software patents

Microsoft, HP, Adobe try to justify software patents

Summary: In the current Supreme Court case of Alice Corporation v CLS Bank International a friend of the court brief by Microsoft, HP and Adobe attempts to define patentable software. Here's why they fail.


Software is valuable. It can take years to write and helps perform valuable tasks. But why shouldn't software be patentable?

The basic reason is that ideas, such as mathematical formulas, can't be patented. But courts misunderstood what software is decades ago and now we have a mess - and this case.

Alice in wonderland
The absurdity of software patents is the point of the Alice case. Essentially Alice Corp. listed the steps of an escrow transaction and added the words "on a computer" and got it patented as a business process (which are also bogus).

The brief from Microsoft and friends seeks to draw a reasonable line between what Alice did and "real" software inventions. As an example they describe the evolution of the mechanical typewriter - and its many patents - to the electric typewriter and finally the word processor.

Functionality previously achieved through gears and levers—like proportional font spacing — was re-developed using software that provided instructions to computing hardware. Those digital improvements served the same function as, and were no less technologically innovative than, their mechanical forebears. Accordingly, the inventions were patentable.

This is the key mistake of the software patent problem: taking earlier mechanical inventions and re-implementing them in software is patentable. Where is the novelty that inventions are supposed to have? The non-obviousness? Those patents should never have been granted.

Here is their best effort to justify the imaginary line between software and abstract ideas:

When it comes to true computer-implemented inventions, however, a blunt or simplistic application of the “abstract ideas” exception poses grave risks. Software is heavily dependent upon the use of algorithms. And it is “clear that a process is not unpatentable simply because it contains a * * * mathematical algorithm.” . . . Where a software patent describes a practical application of an algorithm as part of a process that produces a technological effect or useful result on a computer — e.g., encryption, data compression, higher- speed processing — that should be patent eligible under this Court’s precedent.

But here's the kicker:

Regrettably, it may be very difficult for a lay judge, with little technical understanding of how computers actually operate, to discern the difference between the two. In such cases, expert testimony may be necessary to illuminate the technological principles at issue, and claim construction required to determine the precise boundaries (and actual preemptive scope) of the patent. Even then, it still may be difficult to determine whether the patent covers an “abstract idea” or not.

Translation: our expert witnesses will help the court validate our software patents doing things you can't understand. Trust us. 

But there's a bigger problem: software is inherently an "abstract idea." That's the nature of computing.

The Turing machine
The basic nature of computers was described by Alan Turing in 1936. His "universal computing machine" is known today as a Turing machine in his honor and is "how computers actually operate." According to Wikipedia:

A Turing machine is a hypothetical device that manipulates symbols on a strip of tape according to a table of rules. Despite its simplicity, a Turing machine can be adapted to simulate the logic of any computer algorithm, and is particularly useful in explaining the functions of a CPU inside a computer.

Turing machines can execute any operation that a real program can because they model not any specific CPU, but computation itself. Our computers are all limited variations on  a Turing machine.

All software is reading, writing and executing instructions to perform algorithms. Therefore ALL software is "some process" - like Alice's escrow - "on a computer."

All computer programs are lists of symbols that embody ideas, algorithms and concepts in a way that may provide value "on a computer."

What other common object is a list of symbols? How about a book? Or this post?

A book is useless - has no "technological effect or useful result" - until it is opened and read by someone who can interpret the symbols. I don't read Korean, so a Korean book is useless to me, except as a doorstop.

Nonetheless I can't simply reprint the Korean book and sell it because of copyright. Which is the protection every computer program should have. And, in fact, is the key issue in the current fight between Google and Oracle over the Java API.

The Storage Bits take
Software implements abstractions "on a computer." But US courts have mistakenly decided otherwise, so software companies spend big bucks on lawsuits when what we need is better software.

Computers enable wonderful things. But in their underlying architecture they are symbol-manipulating machines implementing logic that could be performed - albeit much more slowly - without them.

Therefore, nothing "performed on a computer" is an invention. Sure, give software copyright protection. Punish plagiarism.

But let's stop pretending that something "performed on a computer" is an invention. Congress should make that clear so we can get back to the real work of software innovation.

Comments welcome, as always. If you think software can be a patentable invention, give an example and say why.

Topics: Storage, Hardware, Software

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  • I definitely think there are times it can

    Everyone remembers the Amazon one click thing, and that's generally how software patents got their bad name.

    But take some of Adobe's inventions, such as PostScript. The idea that you can put a software interpreter on a printer, and then use a universal programming language to send graphics commands to that software interpreter - that was pretty damn revolutionary (Warnock got the idea at the same PARC facility that invented the computer GUI.)

    It was so damn revolutionary that it is pretty hard to even imagine what the publishing industry today would look like if it hadn't happened.

    And it was as much a process as any pharmaceutical manufacture.
    • But yet

      its only a logical advance based on new technologies. Its not a startling new invention, its technologically pushed incremental advancement of existing ideas. People hand placed text, then machines did, now software does.
      • You mis-interpret what Invention is


        Nearly all patents, including those for mechanical and pharmaceutical are based on incremental advancement. In fact if you read a patent, you will find a list of other patented ideas that help to define the scope of the new patented invention. So your idea that "first by hand" would invalidate patents would end nearly all mechanical patents. Put more clearly - essentially every mechanical device is a way to automate something that was done by hand the first time.
      • Increments count

        That's all of progress. Very little innovation is invention. Nearly all of it is improvement. And improvement is unequivocally patentable.
        x I'm tc
      • The printing press was patentable as well....

        "Its not a startling new invention, its technologically pushed incremental advancement of existing ideas. People hand placed text, then machines did, now software does."
        • You left out a big step,

          one that proves the conclusion of the article.

          Screen printing (serigraphy) is a form of stencilling that first appeared in a recognizable form in China during the Song Dynasty (960–1279 AD).

          It made its way to Erope in the late 18th century, but did not gain large acceptance or use in Europe until silk mesh was more available for trade from the east and a profitable outlet for the medium discovered.

          Early in the 1910s, several printers experimenting with photo-reactive chemicals used the well-known actinic light–activated cross linking or hardening traits of potassium, sodium or ammonium chromate and dichromate chemicals with glues and gelatin compounds. Roy Beck, Charles Peter and Edward Owens studied and experimented with chromic acid salt sensitized emulsions for photo-reactive stencils. This trio of developers would prove to revolutionize the commercial screen printing industry by introducing photo-imaged stencils to the industry, though the acceptance of this method would take many years.

          Commercial screen printing now uses sensitizers far safer and less toxic than bichromates. Currently there are large selections of pre-sensitized and "user mixed" sensitized emulsion chemicals for creating photo-reactive stencils.



          OK, history aside, screen printing like computing is a process for manipulating symbols in mass production. A process none the less and one with prior art, as the ancient Chineese were doing it a long time ago.

          While Mr. Owens invented a chemicals to aid in the screen printing, he did not invent screen printing, just a chemical mixture to aid that process. His chemical formula may be patent-able and there may be many other chemical formulas to do the same, each in its unique may, each could have a patent.

          Since the process of manipulating symbols with the screen printing process is not new or an invention anyone could patent. The design screens I use to print a screen print are mine and I can copyright them, with each new design I make with the screen printing process.

          I may make small innovations in my designs that are contained on a series of screens used in the screen printing process, much like a software programmer may do with software. Software like the results of screen printing is better protected under copyright than patent.

          If I am the first to screen print a portrait of an object, let's say the moon and I am granted a patent for the process to print that portrait no one else could make a print of the moon using silk screen printing. That would leave us with one portrait of the moon done with the screen printing process and violate the intent of the screen printing process, which is to be able to mass-produce printed art.

          A computer does no more than the screen printing process. It replicates symbols placed on a series of screens. I can configure it to do this in many different outcomes by the way I arrange the screens.

          If a patent is for a computer process that does X, well Alan Turing has prior art on that one just as the ancient Chinese have on screen printing.
      • Patent Law

        So not sure why combining 2 things is a patent?!? Thats ridiculous, I agree with this article. Patents actually destroy innovation and creativity! The hell with patents, they are public domain after 5 years and then someone could "improve" on your patent and use it! Too much bureaucracy, if you have a great idea don't let the world know the inner "magic" and market it properly and make a profit on it while you still can. Time is of the essence!
        Radomir Wojcik
    • Postscript wasn't exactly Adobe

      Xerox was working on a similar language. Adobe took it and "improved" it. I believe the Adobe folks were actually working on the print description language at Xerox and quit.

      So - if at the time Postscript was created - software was patentable - they would be answering to Xerox.

      Kinda funny - I worked at Xerox about 15 years ago and they had a mini museum which can only be described as "Amazing things Xerox didn't capitalize on" - Inventions: Laser printing, ethernet , mouse, windows GUI, and that crazy language (sorry I forgot the name) first Internet routing system as well.
      • Xerox Language

        The "crazy language" you are thinking of is probably Smalltalk, which is an object-oriented language that works by passing messages.

        Other languages that Xerox used included BCPL for systems programming, and Mesa for modular programming.
    • Software patents must be presumed invalid excepting extraordinary novelty

      An example is Postscript and typical lightweight analyses of why it should be patented. There were printing devices with programmable fonts and programmable graphics prior to postscript. describes 1977 developments in HP programmable plotters. I myself programmed TI programmer plotters back in high school in the late 1960's.

      These programmable polluters used terse and somewhat cryptic manufacturer proprietary languages similar in being fiercely difficult to use and highly proprietary to those programming languages in cash registers, business phone systems and other early intelligent devices. Postscript, like the language Forth which some claim inspired Postscript, is not exactly an easy language to use either.

      The old and established trade secret and copyright protections provide barriers as strong and perhaps stronger than patents to such implementations of obvious combinations of available technology. Patents must be viewed as dangerous, as they BLOCK the channels of contemporary development in fellow humans working in the same arena -- the patent creates a black hole in the expanding fabric of the development and innovation edge. That is NOT the same effect as trade secret and copyright protections.
      • The marvels of intelligent automatic word substitution cut both ways.

        "Polutters" in above should read "plotters".
    • Nope, not a good example

      Postscript is an algorithm, a set of logical instructions describing patterns of ink placed on paper. As such it is not patentable (or it should not be--and given the age of postscript if it was patented the patent would be expired now so I suppose the point is moot).

      A software interpreter of any kind is a set of algorithms, whether it is Perl, Javascript, Applesoft BASIC or PostScript. Whether the interpretation is done by hand, with a slide rule, on a computer or in a printer (which is just a computer embedded in an imaging mechanism in this example anyways) is irrelevant.

      The laser printer itself is an invention, as is the integration of an embedded microprocessor system into a printer. The language it speaks is NOT a patentable invention, in the original spirit of patent law. The printer is the "player piano", Postscript is the hold in the paper music roll that goes in the player piano. Patents covered the player piano, COPYRIGHT covered the music rolls that went in it. Patents covered the CD, copyright covers the pattern of bits representing the music on the CD.

      And so it is with Postscript. Patents covered the laser printing mechanism, and copyright is there to protect postscript. Trying to protect software with patents is like using a butterknife to tighten screws. It might achieve your end goal in some sense but the results are sub-optimal and you could cause damage. Patents are harmful to software innovation and all software patents should be invalidated and permanently banned without any exceptions whatsoever. Software deserves IP protection but patents are so ill suited to the needs of the industry that they are more harm than good in all cases when it comes to software.
      Mark Hayden
  • Talking sense...

    you come to the same conclusion as the European Patent Office, software isn't patentable and is already covered under copyright.
    • You can patent software in the EU, you just can't call it a software patent


      That's only just barely technically correct. the EU requires an inventive step, and therefore calls software patents by another name "Computer Implemented Invention".

      There are differences is how you write up a patent in the EU, and there are things that end up not being granted, but overall the EU also sees value in granting patents for inventions that are ... implemented in a computer.
  • Patents necesary

    If it is not protected the patents in software, the innovation will stop, since without patents all waited to that somebody is happened the innovavion to copy it, instead of investing in R&D
    luis river
    • but they are not necessary..

      .. are they? Demonstrably they are not. Has software development in Europe ceased? No? QED. The only losers in this are the law-firms, since a patent is, ultimately, nothing but a licence to sue.
      • but they are.

        Pretty much. There are, of course, software companies. But show me the European Microsoft, Oracle, Facebook, Twitter, the list goes on. The problem is finance. Go try to raise finance for software development in Europe. You can't because there is no security for the investor. Instead young bright things are encouraged to do interesting things in offices funded by, say, Google the best of which are snapped up for peanuts and put into the US software machine.

        There are EU companies but one that are long in the tooth such as SAP and Sage. But these are companies which grew when software was the new big thing and created a whole infrastructure that it is not possible for a newcomer to compete with.

        I'm a European and I look across the Altantic with envy. For sure I'd like the US to eliminate patents on software because it will level the playing field though I suspect there will be no more money - just less in the USA.

        There was a programme on BBC 4 (TV) by a guy who is now a professor at a UK uni. I which I could remember his name. In his youth he created the software used by bank computers to choose the trades to make. It couldn't be patented and he gave it away. Now no more wealthy than anyone else while the users of his work reap huge rewards.
        • Siemens... SAP...

          ..just to name two...

          "show me the European Microsoft, Oracle, Facebook, Twitter, the list goes on."
          • As for the other part of your comment...

            "There are EU companies but one that are long in the tooth such as SAP and Sage. "

            If by "long in the tooth" you mean "have been around forever and are still making buckets of money selling software", I guess you would be correct.

            Meanwhile, Google, Facebook, and Twitter are still having to scramble to find new ways to monetize their "free" products.
          • SAP only partially a software company

            First, this bushwah that software is not patentable in the EU is tiresome. It's not called a software patent, it's called Computer Implemented Invention, and it's akin to a software patent than not.

            Second, SAP's primary income is not tied directly to the sale of software - instead, they make money on the sale of software-related services.

            It's also worth noting that a review of patents considered "most innovative" shows that 51% come from small businesses. So it may be true that large companies do lots of patents, but the ones that are often foundational come from risk-taking smaller companies.