About This Blog
Automating Invention is Robert Plotkin's blog on the impact of computer-automated inventing on the future of invention and patent law.
- Artificial Invention
- Design & Engineering
- Evolutionary Computation
- Genie in the Machine
- History of Computing
- Human Creativity
- Intellectual Property Law
- Philosophy of Computing
- Software Patents
- Technology Industry
- The Potential of Wolfram Alpha
- Reports of the Death of Peer-to-Patent Are Greatly Exaggerated
- The End of the Peer-to-Patent Program
- In re Bilski: Ten Reasons Why
- Easing the Patent Processing Bottleneck
- Patent System at a Crossroad
- In re Bilski
- Open-Source Software Speeds up Molecular Simulations
- Patents vs. Prizes
- Has Microsoft Really Patented Page Up and Page Down?
- World Day Against Software Patents
- U.S. Patent Office to Expand and Extend "Peer to Patent"
- October 2009
- September 2009
- August 2009
- July 2009
- June 2009
- May 2009
- April 2009
- March 2009
- February 2009
- January 2009
- December 2008
- November 2008
- October 2008
- September 2008
- August 2008
- July 2008
- February 2008
- June 2006
- May 2006
- February 2006
- January 2006
- December 2005
- November 2005
- October 2005
- September 2005
- August 2005
- July 2005
- June 2005
October 29, 2009
The Potential of Wolfram Alpha
On May 15, the website for a new "computational knowledge engine" called Wolfram Alpha was launched. With a user interface that resembles search engines like Google, Wolfram Alpha answers factual questions by computing answers using a knowledge database of structured data. This type of answer engine is different from a search engine in several of key ways. One of the biggest differences is that you can't cut and paste from the results page of Wolfram Alpha. This is because Wolfram Research claims that some of the data displayed "never existed before" and is subject to copyright.
This Infoworld article suggests that Wolfram Research is initiating a fundamental shift in the area of software copyrighting by claiming that not just software, but also output generated automatically by software, can be owned and copyrighted.
September 3, 2009
Reports of the Death of Peer-to-Patent Are Greatly Exaggerated
I recently reported that the U.S. Patent Office had shut down the Peer-to-Patent pilot project. Now I have been informed by Bob Ambrogi that the project has only been suspended, not ended, while the Patent Office makes a final decision about its future. For more information, check out the interview that Attorney Ambrogi recently held with Professor Mark Webbink about Peer-to-Patent.
August 18, 2009
The End of the Peer-to-Patent Program
In June, the U.S. Patent Office shut down its Peer-to-Patent program after a test run which lasted for two years. The purpose the program was to obtain peer reviews early in the patent approval process. While the program was in effect, patent applicants could indicate their agreement to receive early peer reviews from volunteers. The program was processed through New York Law School's Center for Patent Innovation.
Critics of the program faulted the program for providing little incentive for participation. Ironically, the program was cancelled shortly after receiving recognition from White House Open Government Initiative.
Although I never made use of the program with any of my clients, the general concept of drawing on expertise from outside the Patent Office for uncovering relevant prior art seemed like a good idea to me. I hope that whatever flaws may have existed in the Peer to Patent program do not discourage future efforts directed at drawing on such expertise to improve the quality and efficiency of patent examination.
June 7, 2009
In re Bilski: Ten Reasons Why
In re Bilski is an en banc decision of the United States Court of Appeals for the Federal Circuit (CAFC) on the patenting of method claims, particularly business methods. The Bilski petition for certiorari has been discussed here in an earlier post. Erick Arner, co-author of the petition, has written an interesting guest post on the Patently-O blog which lists ten reasons why the Supreme Court should hear the Bilski case.
May 21, 2009
Easing the Patent Processing Bottleneck
Patents are recognized as a key protection for the intellectual property rights of inventors and innovators. Unfortunately, processing patents has become increasingly time-consuming and complex. In most nations, the patent process requires an inventor or innovator to submit a patent application which includes a detailed technical specification. The patent office then puts the patent into a 'pending' state while it investigates whether the invention is worthy of a patent.
Due to the growth in patent applications around the world, most patent offices are suffering under the strain of a huge backlog of applications to be processed. In 2005, the Japanese office had a backlog of 750,000 applications, the U.S. had 600,000, and European Patent Office (EPO) had 285,000.
EPO's president, Alison Brimelow, has been quoted as saying: "Huge backlogs change the nature of the patenting system and create ambiguities which can be exploited in ways unforeseen by those who established the patent system."
In response, the European Union has funded a project called PATExpert which uses semantic web technology. PATExpert is a multimedia content representation system for the retrieval, classification and generation of concise parent information. The system supports multiple languages and provides tools to assess patent material. The system has been demonstrated and the probable next step is commercialization for general use.
April 25, 2009
Patent System at a Crossroad
At the 11th annual Sughrue Symposium on Intellectual Property Law and Policy, Judge Michel called for net improvement to the patent system. In his keynote address, Judge Michel describes the current situation as unstable and at a crossroad. Citing problems with the Intellectual Property Act of 2009 and problems at the Patent and Trademark Office, Judge Michel asked Symposium participants to get involved in the effort to improve the situation. Read more about the Intellectual Property Act on the Promote the Progress website.
For my own thoughts on how to improve the patent system, see The Genie in the Machine when it is published in a few days. . .
April 8, 2009
In re Bilski
Last fall, the Court of Appeals for the Federal Circuit ruled in Bilski that the "machine-or-transformation test" is the only test to be used in determining whether a process is eligible for patenting. This means that the process must either (1) be tied to a particular machine or apparatus or (2) transform a particular article into a different state or thing.
The process in question was Bilski's method of hedging the risk of bad weather through commodities trading, which had previously been rejected by the USPTO as lacking patentable subject matter. The Federal Circuit affirmed this finding on appeal, based on failure to pass the machine-or-transformation test.
Bilski has now petitioned the Supreme Court for a writ of certiorari -- asking the high court to determine whether the new test of patentable subject matter is the correct test. Read more about the case here.
March 25, 2009
Open-Source Software Speeds up Molecular Simulations
The simulation of molecular motion is a critical element in the study of diseases such as Alzheimer's and Parkinson's and in the development of vaccines. In the past, this simulation required large amounts of computing power, restricting researchers to using supercomputers or to breaking up the computations for processing on less powerful desktop computers. Now, thanks to an open-source software package developed at Stanford, molecular motion simulation can be done on desktop computers at higher speeds than ever thought possible.
"Simulations that used to take three years can now be completed in a few days", said Vijay Pande, an associate professor of chemistry at Stanford and principal investigator of the Open Molecular Mechanics (OpenMM) project. OpenMM is able to perform accelerated simulations by taking advantage of inexpensive graphics processors (GPUs). An added bonus is that the software works with any brand of GPU, meaning that the simulations can be done on most laptop and desktop computers.
November 30, 2008
Patents vs. Prizes
The patent system, when it works properly, can provide incentives to inventors to create new inventions and make them available to the public. Patents, however, are not the only tool we have for encouraging innovation. Prizes, as Anya Kamenetz reports in Fast Company, are another such tool. Innovation prizes "gave the world guns and butter--specifically, the AK-47 and margarine. They sent Charles Lindbergh's The Spirit of St. Louis from New York to Paris and Burt Rutan's SpaceShipOne almost 70 miles above the earth--twice."
As the article rightly points out, prizes can be a great way to spur innovations in certain circumstances, such as when the the prize-granter can clearly define the problem to be solved and the criteria that a winning solution must meet. Patents, and markets in general, tend to do a better job at spurring innovation when the problem to be solved, or the kind of invention that will solve it, are not yet known.
October 9, 2008
Has Microsoft Really Patented Page Up and Page Down?
A ZDNet UK article claims that Microsoft has obtained a U.S. patent on the use of "page up" and "page down" keystrokes. The article points to the fact that computer keyboards have had "page up" and "page down" keys for over two decades to imply that the patent was wrongly granted to Microsoft.
Even a cursory glance at the claims of the patent itself, however, reveals that those claims do not appear to cover the mere use of "page up" and "page down" keys, but rather some particular technique for using those keys to scroll through content. (The claims are a numbered list beginning right after the text which reads, "What is claimed is:"). My point is not that this particular technique is entitled to a patent; maybe it is, maybe it isn't. Rather, my point is that press coverage of software patents often implies that individual software patents grant their owners much more sweeping rights than they actually grant. Such coverage isn't a helpful way to promote an informed public debate over the merits and demerits of software patents generally.
September 28, 2008
World Day Against Software Patents
"A global coalition of more than 80 software companies, associations, and developers has declared the 24th of September to be the 'World Day Against Software Patents.'" What members of the coalition don't seem to recognize is that software patents can't be prohibited per se, without as a side-effect also prohibiting a wide range of non-software patents that most people would agree should be allowed.
One way to understand this is to recognize that, in the real world, software is always implemented in hardware, such as by changing the states of switches in a computer's memory. This makes it impossible to draw the distinction between patentable hardware and non-patentable software based on a distinction between the physical and the non-physical. Attempts to render devices which "merely process information" as non-patentable would rule out devices such as mechanical calculators which have long been considered to be patentable.
This is not to say that all software should be patentable, or that patent law does not need to adapt to software in any way, only that a per se ban on software patents has no principled basis and that efforts to enact such a ban only serve to deflect attention from more nuanced and productive solutions.
August 27, 2008
U.S. Patent Office to Expand and Extend "Peer to Patent"
The U.S. Patent and Trademark Office (USPTO) plans to extend the duration and expand the scope of the "Peer to Patent" pilot program, which provides a kind of peer review for pending patent applications. So far, 31 patent applications have been examined under the relatively new program, which has been extended by another twelve months and will now include business method patent applications in addition to computer-related patent applications.
October 16, 2005
Symposium on the Future of Intellectual Property Rights in Software
I will be speaking later this week at a Symposium on the Future of Intellectual Property Rights in software at the Centrum voor Wiskunde en Informatica (CWI), the national research institute for Mathematics and Computer Science in the Netherlands.
The goal of the Symposium is to explore ways to fix intellectual property law, particularly patent law, as it applies to software. My talk is entitled "Reinventing intellectual property protection for software" and will provide a vision for the future of intellectual property protection for software.
I plan to blog from Amsterdam (if technology cooperates) to provide more details on the symposium and related topics.
August 10, 2005
IPcentral ponders the difficult question of who should own the technical know-how that is inside the heads of workers at high-tech companies. The posting was motivated by a recent court ruling that temporarily bars a former Microsoft employee from performing search-related work for his new employer, Google, because doing so would violate his non-compete agreement with Microsoft.
Trade secret law and non-compete agreements have long been used to control the movement of know-how and other information stored in the heads of human scientists, engineers, and programmers. But what happens when we "bottle" such know-how, or its equivalent, in the form of software that can design machines and write software? You might think that a company that develops an improved genetic algorithm that assists it in designing new machines should maintain that algorithm as a closely-guarded trade secret. After all, isn't the algorithm the functional equivalent of an engineer's know-how within the framework of the company's business model?
But I don't think the answer is entirely obvious. Perhaps the company should seek a patent on the algorithm, thereby obtaining a period of time in which it can block competitors from using the same algorithm even if they develop it themselves independently. Or maybe they should use some combination of intellectual property protection and licensing mechanisms to secure the maximum value to the company.
The point is that transferring know-how from a human mind to software raises some tricky legal and business considerations that will need to be addressed as the automation of invention continues.
July 22, 2005
Artificial inventions in simulated worlds
And what if the simulated humans discover fire, invent the wheel, or invent something completely new? Who would own the patent rights?
I suppose the next step would be for the simulated humans to write a (simulated) simulation of (simulated) humans, and so on, and so on . . .
July 15, 2005
Does open source development produce innovations?
Anything Under the Sun Made by Man has an interesting posting questioning whether open source software development produces innovations. The author, a patent agent, relates that a software developer client of his "was of the feeling that nothing innovative has come from Open Source Software, nor will it ever. He cited several examples, including Linux, where a viable and useful piece of commercial software had been rewritten by OSS developers and released for free."
It is true that most of the effort in open source development to date has been directed to reproducing the functionality of existing software, such as operating systems, compilers, web servers, and graphical user interfaces. But although such projects may not produce innovations per se, they have other benefits. The original motivation for developing GNU/Linux was not to produce a new operating system, but to produce one that could be used and modified by its users without engaging in copyright infringement. Proponents of open source also claim that open source development produces software with fewer bugs and security holes than software produced using closed development models.
Also worth noting is that most open source projects produce platforms, protocols, and interfaces, rather than applications. These kinds of end products are valuable because they facilitate standardization and the development of specific applications and data formats consistent with the adopted standards. From a commercial perspective, it can be beneficial for such standards to be "open" -- not owned by any private entity -- because they increase the pie for everyone who is in the business of providing products and services consistent with the standards.
There is a connection between all of this and automated inventing. Should John Holland have attempted to patent the basic features of the genetic algorithm? In one sense, genetic algorithms are a platform for inventing and for problem-solving more generally. The arguments above would therefore imply that keeping genetic algorithms generally "open," as Holland did, was the right strategy for maximizing innovation. On the other hand, many patents have issued on specific applications of genetic algorithms. Such applications may have been kept as trade secrets, thereby depriving the public of knowledge about them, if patent protection had not been available.
This is all to say that developing legal rules to encourage optimal innovation is tricky business.
July 12, 2005
A call for legal polymorphism
"Polymorphism" is a term that is familiar to computer scientists but not to most lawyers. According to its Wikipedia definition, "polymorphism is the idea of allowing the same code to be used with different classes of data." One of the benefits of polymorphism is that it allows code to be written abstractly once, and to be applied to new and different classes of data without rewriting the code. In other words, polymorphic code is flexible enough to adapt to changing circumstances.
Lawyers are familiar with the same concept, although not under the same name. It is often said, for example, that the U.S. Constitution is a "living document" that was written abstractly in an attempt to make it flexible enough to deal with evolving circumstances without the need to rewrite the Constitution itself. Legislators, judges, and lawyers strive (or at least should strive) to write legal documents with the same forward-looking generality. In his book Code, Professor Lawrence Lessig used the term "translation" to refer to "finding a current reading of the original Constitution that preserves its original meaning in the present context." Those who know more about legal theory than I do could certainly give examples of other terms that capture the same concept.
One of the areas in which it is most difficult to achieve legal polymorphism is intellectual property law, because of the need for the law to adapt to rapidly changing, and sometimes revolutionary, technology. For example, the U.S. patent statute (written in 1952) defines the subject matter of patent law as "any new and useful process, machine, manufacture, or composition of matter." Although the drafters of the statute intended for this definition to be extremely general and hence flexible, they did not anticipate that computer programs would not fit easily into any of these four categories and hence cause (seemingly endless) controversy.
Fashioning intellectual property law to strike the right balance between clarity and predictability on one hand and flexibility on the other in light of changing technology is the challenge of legal polymorphism. Computer professionals and legal professionals have much to learn from each other about this enterprise and could promote legal polymorphism better in cooperation than either could hope to do separately.
June 27, 2005
First File Sharing, Then People Sharing
"Teleport" is in quotes because the technology, even if it existed, wouldn't really allow you to teleport yourself, but instead would create the illusion of doing so. To "teleport" yourself to your friend's house, you would need a camera connected to the Internet, and your friend would need a special machine with a stash of special synthetic atoms. The camera would take a picture of you and transmit the picture to your friend's machine, which would assemble the synthetic atoms into your shape. Capturing and transmitting images over time would produce a moving replica of you at your friend's house.
It seems that the same technology could be used to perform remote manufacturing. The manufacturer of a machine could transmit a 3D design for a machine anywhere in the world, and have the machine manufactured on location, thereby saving the cost of transportation. Unlike in the case of you and your friend, there wouldn't even need to be a physical "original" from which to make copies, just a CAD file generated using software. And any number of copies could be made, assuming a sufficient supply of raw materials.
This would bring the basic feature that has been causing so many problems for the "copyright industry" -- namely worldwide, instant, perfect, and (essentially) costless copying of audio and video -- to the manufacture of physical machines. Although automated manufacturing based on CAD-generated designs is old news in certain fields, it is unclear what its implications would be if it were to become ubiquitous.