They oversimplified the patent, but surely you don't believe that the functionality to skip episodes of Internet audio content with a user command should be patentable.
1) Hindsight is a powerful effect. Once you've been shown something new, a person of skill may instantly deduce how it works. This does not necessarily mean it was obvious in retrospect.
2) This presents a significant problem for any system that purports to reward innovation. How do you objectively tell if anything was truly novel and non-obvious at the time it was invented? Any opinion on the quality of an invention is inherently subjective. [1]
3) As such, the way patent offices have historically decided this, is that novelty or non-obviousness is completely based on the delta with the prior art that came before it, where prior art := any published material with an identifiable date prior to your invention. [2] This is because, in true CYA style, when contended, you have an established historical record of documents proving your stance.
Novelty is easy: Anything that a single prior art reference doesn't cover is novel. Obviousness is the tricky part: all inventions are combinations of existing elements. But was that combination obvious? How's that for subjective!
The USPTO seems to have a rule of thumb that any claim that requires combining more than three+ references of prior art is probably non-obvious. That seems like a pretty low bar to clear (and you'd not be far off) but the catch is, those references could be anything that mentions anything resembling any element of the invention. Under this standard, it is my belief that truly innovative inventions like Diffie-Helman or RSA would not have been patentable [3].
4) And herein lies the rub: To be fair, you must be objective. But to be objective, you must abandon all measure of quality to the power of raw data. And as data scientists tell me, data often lies. All the data in the world (at that time) may not be enough to prove non-obvious the specific combination of elements that a patent claims.
Such as this patent. Really, who's going to document and publish at a venue with a proper date the fact that they developed something to skip audio files? Yes, to be fair, you must judge all patents by the same standards, so the patents in areas that have been most published about (because, you know, they are interesting research problems) are less likely to get through than those that cover some obscure, unimportant aspect hat nobody thought to document.
And that, ladies and gentlemen, is why we have this situation
1. Imagine if Einstein was your patent clerk as opposed to the guy you interviewed week before last who failed Fizzbuzz.
2. This, of course, relies on good search, and IMO Google has been the biggest boon (or bane, depending on your perspective) to the patent system than most imagine.
3. Choosing primes and taking mods? Is that all?!
Same with this patent. It's a patent on a process, only given form through software (which is itself math). The patent references communications ports, digital memory, output units, media players. (Claim 1). The idea is that by combining physical parts with programming, they've developed a claim on a machine in the classical sense that is patentable.
There's simply a divide between people who think this sort of reasoning and patent is perfectly reasonable, and people who don't (most of HN).
It doesn't matter how clever any of the other individual claims are. They're specifying an abstract procedure and not a thing. And the software implementation of such procedures is math. That's not supposed to be patentable.
1) It is reductio ad absurdum, like saying "machines are metals". It is not the naturally occurring metals that are patentable in physical inventions, it is how you configure and use them. Similarly it's not the mathematics that is patentable, it is the application thereof to a practical problem.
2) More importantly, it misunderstands what abstract math is from a legal perspective. People will invoke the Church-Turing thesis and several related theorems to prove that software being executed is math, but they miss the point.
An abstraction, by definition, cannot affect or effect anything in the real world. An idea in your head is abstract. The moment you act on it in the physical world, it is real. Similarly, if you can run some piece of software and get useful, practical, real world results, it is not abstract.
The legal profession has at best an inaccurate and non-uniform concept of what math is. Relying on what the legal profession views as math therefore is not a valid argument and depends on which part of the legal profession you survey.
If software by itself can be a patentable device/machine for the purposes of patent law, that needs to be made explicit, and I happen to think it will cause serious problems; it already is causing major problems, even without explicit supporting precedent.
Almost every software patent you can find mentions network communications, memory storage, disk storage, display, or other artifacts of general purpose computing. If software by itself is, or should be, patentable, why is everyone trying so hard to patent complete machines rather than only software algorithms? Maybe it's that they don't agree with you that pure software implementations of solutions to real world problems are patentable?
According to your paradigm of allowing patents for application of math to a practical problem, you're fine with someone patenting a moon slingshot maneuver to get back to Earth? That's an application of pure math.
We agree you can't patent using equations to predict motion, right?
Can you patent using equations to predict motion and reversing that to generate a solution to a specific orbital problem?
Can you patent running that algorithm on a general purpose computing machine?
Can you patent an embedded platform that is built out of a general purpose computing machine, but is sold as a black box running only that algorithm with suitable inputs and outputs?
A moonshot is certainly patent-eligible. You said it yourself: it is an application of pure math, and it achieves tangible results, namely, transporting an object through space. The pure mathematical equations are not patented. You can use those equations for other uses, say calculating asteroid trajectories.
As you said, equations on predicting motion are not patentable by themselves because they don't do anything by themselves. They simply describe aspects of the physical world. Any patent hoping to claim anything as such is supposed to be, and usually is, rejected out of hand.
But, a computer running those equations for a practical purpose, such as say, predicting impact with a car on the road and warning you, is patent eligible. Or maybe a method of calculating those equations more efficiently or faster using e.g. a GPU.
Do you see the difference? Neither of those examples is a patent on the equation itself, but rather an application thereof or a particular way of implementing it. None of those preempt you from using the equation somewhere else, e.g. to control a robot that can catch a ball you throw at it.
That leads to why most software patents include language for hardware. The reasons are manifold:
1. To be properly enabled, they must describe the invention in as much detail as possible. Ironically, after adding all that boilerplate about the hardware, they then skimp on the description of the invention itself.
2. The software is useless without the hardware. No machine will infringe without executing that software on hardware.
3. The term software itself is not well defined in the context of patent law. The constitution certainly seems to allow it, because it is undeniably a "science and useful art". But when the laws were drafted there was no such thing, and so there is no statute allowing it or denying it. So it is claimed as both a method or process (a way of doing things) or a system (a machine that does things) or both. And really, software is both: when executed it does things, and the machine that executes it is a machine that does those things.
We need to ENCOURAGE investment into innovations. Without patents, investors hesitate investing into costly R&D which can be easily copied once seen.
Innovations of the 70's like asymmetric cryptography led us to Internet ecommerce which have led to the flourishing world of online startups which we today take for granted. It's all connected.
You think RSA (the inventors) would have kept RSA (the algorithm) secret, had they not been able to patent it? I think you're mistaken.
The history of software/algorithm patents is a history of technologies with limited adoption and/or interop problems until the patents expired. Patents are more likely to kill the future of a technology than to promote the technology.
Assuming I ever even saw the patented implementation. Chances are almost nonexistent that the patented work was what inspired me as a (hypothetical) implementer of podcast skipping functionality.
This presents a significant problem for any system that purports to reward innovation.
If an idea is so obvious that nearly everyone faced with a similar problem stumbles on a similar solution, it's not worthy of a "reward," much less a 20-year monopoly. It can only be economically destructive to award such monopolies.
And there in lie more issues with obviousness: it may be obvious if presented a similar problem. Many scientists, mathematicians and engineers will tell you that the biggest step to solving a problem is to state it the "right" way. But once you do that, the solution becomes obvious! In that case, the issue is, was the problem obvious in the first place?
Fortunately, patent systems have a provision for this. In the US it's called the Teaching/Suggestion/Motivation (TSM) test: roughly, if any reference identifies a problem that would motivate someone to solve it in a particular way, it counts towards obviousness. Note that TSM is not the only criteria these days.
As a well known example, think about the iPhone. In hindsight everything it does seems obvious. But the problem, as. But the problem, as Jobs restated it, was "current phone interfaces suck, touchscreens are better, how do we make it awesome?" I don't think anybody was looking at that smartphones in that light. Yes, there were tons of touchscreen phones but they all sucked. If you look at Apple's patents, each one looks trivial now, but taken together, there's no denying that the iPhone when it came out blew everyone's minds.
> It can only be economically destructive to award such monopolies.
There is insufficient empirical evidence for this thesis. Interestingly, the same goes for the opposite thesis, that our patent systems are economically beneficial.
Everyone agrees that the bar should be higher, though. Nobody knows how to set it higher, unfortunately
Even if that may be true, I honestly believe that we should not reward any invention that's so trivial that someone could figure out how to do it merely by being told what it was without experimentation.
After all, the original rationale for patents was to promote the advance of Science and Useful Arts and I don't believe that rewarding trivial ideas (i.e. anything someone skilled in the art could make simply by being asked for something that does X) is something that society has any good reason for doing.
To the extent that current IP laws are in conflict with this idea (and you would be correct to point out that they are quite hostile to this very notion), I believe we need to fix them.
Yes, that would mean fewer patents. It would mean that many low quality patents were, legally, rubbish. I consider that a feature, not a bug.
We certainly need to fix things, but these are complex issues.
We have better things to do than tie up our justice system with slide to unlock patents and similar nonsense.
You site a post saying "Everyone agrees that the bar should be higher, though. Nobody knows how to set it higher, unfortunately."
I'm saying that something that can be trivially implemented by someone skilled in the art who is told what the invention does, but not how, should be below the bar.
Right, but what I'm saying is, that is not a good measure of the value of an invention, which is also why patent law is structured the way it is. Think about physical inventions like mechanical linkages or arrangements or other structures. Let alone someone skilled in the art, even we, knowing nothing more than how objects interact in the physical world, could look at it and figure out how it works, but that does not necessarily mean the mechanism was obvious before the fact.
The problem is that you're merely asserting that, rather than arguing it and going back to point out the legal standard of obviousness and it's control against hindsight bias, which I have already acknowledged. Patent publication was supposed to expand the prior art. If the invention is so trivial it can be figured out by knowing what it does (and not by what mechanism), then merely using/selling it is enough to inform society and I don't see why it's useful to society to grant protection to that nonsense. It's very useful to patent holders and patent lawyers mind, but it has been made very clear of late that their interests are adverse to the rest of ours and the whole thing is in need of fundamental rebalancing, rather than minor tweaks.
The thing is, I simply don't care about the legal standard of obviousness. I understand how it works and disagree that the outcomes it produces are useful to society. So I'm advocating a new standard of triviality. No, I doubt that patent lawyers would like that, as it overturns quite a lot of apple carts.
For instance, until the Wright brothers built their flier, controlled flight was deemed impossible after decades of failed and fatal attempts. But anyone who simply saw the mechanism they rigged could re-implement it for themselves! The decades of work before it make it amply clear it was not obvious [1].
Also it's not just the obviousness of the invention that's at play, it's the obviousness of the problem. The solution may be trivial, but the problem may not even be encountered without exploring new boundaries (think Apple and touchscreens). Sometimes the problem is right there in front of everybody's eyes and yet nobody notices it (think Flash of Insight).
In addition, you would be surprised by how many incredibly complex problems are solved by "trivial" solutions which nonetheless take years of effort to arrive at. One example I am aware of is digital and wireless communications methods: most of those patents appear trivial. But the mathematics that goes into proving that they actually work and work well span pages.
However, if you change the standard to that of non-triviality, it will reduce the incentives for improvement, and proportionally, the rate of innovation, in areas where copying would be trivial. This is not hypothetical [3].
If you think we don't need incentives for innovation in the "trivial" areas of technology, why did we need Apple to show us how to do touchscreen UIs right when companies like Nokia had developed touchscreen smartphones decades before?
Changing to a standard of triviality will instead focus efforts on areas where inventions cannot be reverse-engineered easily, and those already don't need patent protection because trade secret is enough for those (again, see [3]). Think of Google's search algorithms and distributed systems infrastructure. How is hoarding of valuable technology behind the walls of data centers conducive to diffusion of knowledge and the progress of "useful arts"?
1. Before you say "and look how it held up the aviation industry!", I encourage you to read this paper [2] that busts that myth.
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2355673
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=930243 - paper studying historical rates of innovation in countries with and without patents. It showed that while the total rate of innovation didn't change much across countries, in countries with patents, significant innovation was diversified into areas that were elsewhere under-developed because they were easy to copy.
I do appreciate that you've come back with more now.
> But anyone who simply saw the mechanism they rigged could re-implement it for themselves! The decades of work before it make it amply clear it was not obvious [1].
Oddly enough, your own paper describes quite a few features of that Wright patent not immediately apparent, but it doesn't matter, as you've missed one point about the standard I articulated. If you recall, my standard was for people who had not seen it to be able to make it simply by being told what it does. If anything, the history of flying would support the notion that "make a thing that flies" was non-trivial at the time.
> But the mathematics that goes into proving that they actually work and work well span pages.
Math is not patentable subject matter... unless you disguise it as software :) And standard that excluded silly UI patents that lead to billion dollar lawsuits (modulo various jury errors, like charging them for things not found infringing and other court adjustments)? Let's just say that I'm thinking "feature" when you're thinking "bug".
> It showed that while the total rate of innovation didn't change much across countries, in countries with patents, significant innovation was diversified into areas that were elsewhere under-developed because they were easy to copy.
"Innovation" is an inherently nebulous thing to measure. Also, if the only patents are the things the public can't easily figure out, then they would actually do the job they're supposed to--advancing science and the useful arts. I don't like software patents at all, though, and if we did have them they should require source code. It's frankly insulting that they can get away with that and I honestly question whether some of the "inventors" of software patents I've seen actually made anything.