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
- Biological Models for Robot Design
- Using Genetic Programming to Repair Software
- Encouraging Innovation with Cash Prizes
- Bio-Computing Focus at 2009 Supercomputing Conference
- A Theory of Evolution for Technology
- Bilski, Business Methods, Software Patents, and the Supreme Court
- The Need for Regulating Autonomous Machines
- Alberto Sangiovanni-Vincentelli Discusses Future Isssues in EDA
- First Standard Graphical Language for Biology
- AI-Controlled Super Mario Brothers
- Using Genetic Algorithms to Blend a Diesel-Gasoline Cocktail
- Programmable DNA Computers
- December 2009
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December 1, 2009
Biological Models for Robot Design
MIT professor Sanbae Kim is studying the animal kingdom to find biological models for robot designs. Working with Stanford professor Mark Cutosky, Kim has designed robots like the Stickybot, named by Time Magazine as one of the best inventions of 2006. Inspired by a gecko, the Stickybot uses directional adhesive foot pads to climb smooth vertical surfaces like glass. Another robot name iSprawl uses motion inspired by cockroaches. Kim's latest project uses the running style of the cheetah as the model for its locomotion. Kim and a team of four MIT graduate students are creating a prototype robot using a lightweight carbon-fiber-foam composite. In contrast to most robots that use wheels for motion and are relatively slow, with top speeds of about 5 mph, the cheetah-inspired robot will be designed to run at 35 mph. According to Kim, the challenges of the project include replicating the structure of the cheetah and designing a motor that can quickly provide enough power for the robot to sprint.
November 29, 2009
Using Genetic Programming to Repair Software
Automatic program repair has long been a goal in the software industry. Finding and fixing bugs is currently a manual operation that represents a major portion of the software development life cycle. Now a team of researchers from the University of New Mexico and the University of Virginia have developed an automated method for fixing software bugs. Using off-the-shelf legacy C programs for demonstration purposes, genetic algorithms are used to evolve code variants until a solution is found that both retains the intended functionality and avoids the previously detected error. According to team member Westley Weimer, the methodology has been demonstrated as capable of repairing 20 programs consisting of over 200,000 lines of code in less than 200 seconds on average.
November 16, 2009
Encouraging Innovation with Cash Prizes
The Computing Community Consortium (CCC) blog recently examined the role of monetary prize awards as an incentive for encouraging research in technical fields. In September, Netflix awarded a $1 million prize in a contest for the best algorithm for improving collaborative film ratings. The Clay Mathematics Institute and Wolfram Research are other organizations that have offered prizes for technical innovation. See the CCC blog for a discussion of the benefits and drawbacks of these awards.
November 14, 2009
Bio-Computing Focus at 2009 Supercomputing Conference
In November, the 22nd annual supercomputing conference will be held in Portland Oregon. This year, SC09 will feature a Bio-Computing Thrust Area that will focus on new developments in bio-centric computing, storage, and networking. Events scheduled for this portion of SC09 will touch on cloud computing, storage of vast amounts of biological data, DNA sequencing technology, and integration of national biomedical information. For more information, see this press release on Business Wire.
November 12, 2009
A Theory of Evolution for Technology
In New Scientist, complexity theorist W. Brian Arthur proposes a theory of evolution for technology. The theory was first called for by Victorian novelist Samuel Butler just four years after Darwin wrote On the Origin of Species. Arthur believes that a new theory must be developed, rather than borrowing from Darwin's theories about biology. He suggests that a mechanism that he calls combinatorial evolution is what causes new technologies to arise from combinations of existing technologies. Read more about Arthur's theory on the New Scientist website.
November 11, 2009
Bilski, Business Methods, Software Patents, and the Supreme Court
In late 2008 the U.S. Court of Appeals for the Federal Circuit (CAFC) issued an opinion in the Bilski case holding that inventor Bilski's patent claims, which covered a business method for hedging risk in commodities trading, was not patentable subject matter. Ever since the CAFC's decision in Bilski, I have been asked by clients, other attorneys, and reporters about whether the CAFC's Bilski decision means that software is no longer patentable in the U.S. (For a few articles quoting me on the Bilski case, see these in National Magazine, CBS MarketWatch, and Software Development Times.)
In fact, many people have told me that other attorneys have informed them that software is no longer patentable in the U.S. as a result of the CAFC's Bilski decision. This is not true. I have continued to routinely obtain software patents for my clients since the Bilski decision was rendered. As I explain in more detail below, the CAFC did not hold in Bilski that software is not patentable. The CAFC did not even hold that all business methods are not patentable. Unfortunately, much of the misinformation that has been spreading about the Bilski case seems to stem from second- and third-hand reporting about the case by people who have not read the CAFC's opinion or who are not familiar enough with patent law to understand how to interpret the opinion.
Understanding the CAFC's Bilski decision requires first understanding the claims in Bilski's patent application. Although it is long, it is worthwhile considering claim 1 in Bilski's patent application:
1. A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of:
(a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumer;
(b) identifying market participants for said commodity having a counter-risk position to said consumers; and
(c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions.
The first, and arguably most important, feature of this claim is that it merely claims a "method," and does not state that the method is performed using a computer or any other machine. As a result, if this claim had been granted in a patent, such a patent could conceivably be enforced against people who performed Bilski's method, in whole or in part, using their minds, pencil and paper, oral conversations, or otherwise without the use of machine.
The CAFC could have issued a narrow ruling that such "pure" business method claims are not patentable subject matter. Such a decision, whether correct or not, would have had limited impact on the patent system as a whole. It would even have had a limited impact on business method patents whose claims require the use of computer software, hardware, or other machinery to carry out the claimed methods. A narrow ruling that pure business methods are not patentable would almost certainly have had little impact on software patents in general, and the press would not have been riddled with reports that software had been deemed unpatentable in the U.S.
It seems that the CAFC tried to achieve this result by announcing, in its Bilski opinion, that:
• "we decline to adopt a broad exclusion over software or any other such category of subject matter beyond the exclusion of claims drawn to fundamental principles set forth by the Supreme Court"; and
• "the process claim at issue in this appeal is not, in any event, a software claim. Thus, the facts here would be largely unhelpful in illuminating the distinctions between those software claims that are patent-eligible and those that are not."
Such statements should make clear that the CAFC's Bilski opinion should not be interpreted to mean that software cannot be patented. Instead, it seems that the CAFC intended to leave the state of the law with respect to software patents unchanged.
So why all the fuss about Bilski and software patents? The reason is that the CAFC, instead of issuing a narrow opinion about the patentability of pure business methods, decided to use the case as an opportunity to announce a new legal test for determining whether processes are patentable. In particular, the CAFC held that a process only qualifies as patentable subject matter if it: (1) is tied to a particular machine or apparatus; or (2) transforms a particular article into a different state or thing.
Unfortunately, this "machine or transformation" test has raised questions about software patents which the CAFC could have avoided by writing a more carefully-worded opinion. For example, under the "machine or transformation" test, does a patent claim which merely states that a method is "computer-implemented" or "performed by a computer" mean that the method is tied to a "particular machine"? If not, then can adding additional details about the computer's hardware into the claim cause it to satisfy the "tied to a particular machine" test?
As I mentioned above, I have continued to obtain software patents for my clients even in the face of these questions. I have been finding that when a software patent application is well-written, patent examiners either do not raise objections to it under Bilski, or the objections they raise can be overcome using arguments about the meaning of the Bilski decision and possibly some amendments to the wording of the claims, if appropriate.
I have found, however, much variation in how patent examiners interpret the Bilski decision. As a result, I have found it to be more important than ever to talk to examiners in individual cases to understand the precise nature of their concerns so that I can address them, rather than applying a cookie-cutter approach every time I receive a rejection under Bilski.
My experience is consistent with the examples described by the AIPPI in its excellent amicus brief, which documents inconsistencies in decisions issued by the USPTO's Board of Patent Appeals and Interferences (BPAI) over the last year as it has attempted to apply the "machine or transformation" test. For example, the BPAI has not been able to reach internal agreement about whether reciting a "computer system" or "processor" in a patent claim is sufficient to satisfy the "machine" prong of the Bilski test.
Now the case is before the U.S. Supreme Court, which one can only hope will resolve such inconsistencies and issue an opinion which is clearer than the one issued last year by the CAFC. In particular, the Supreme Court should issue a decision which relates to the "pure business method" type of claim for which Bilski sought a patent, and leave the law with respect to claims for software and other computer-related technology unchanged. Although it is impossible to predict how the Supreme Court will rule, the significant interest in the case, including the the large number of amicus briefs which have been filed, leads me to believe that it is unlikely that the Supreme Court's opinion will have any significantly negative direct impact on software patents, particularly in light of the long line of cases from both the Supreme Court and the CAFC which support the patentability of software. The outcome that I consider more likely is one in which the Supreme Court's opinion does not explicitly affect software patents, but instead inadvertently contains language which is subject to interpretation. In such a case, it will be up to the lower courts and the USPTO to hash out the meaning of the decision over time.
The Supreme Court will likely issue its decision in the spring of 2010. In the meantime, I plan to continue filing and obtaining software patents and other computer-related patents for my clients. Neither the spirit nor the letter of the CAFC's Bilski opinion, which is currently the law of the land, rule out patents on software, provided that such patents are written correctly, based on a solid understanding of patent law as it applies to software. Although the confusion within the USPTO about the CAFC's Bilski opinion now sometimes causes some extra care and effort to be required to obtain software patents, including more frequent and detailed conversations with patent examiners to explain the state of the law to them, the death of software patents that has been reported by some in the press is greatly exaggerated. Stay tuned for further developments later this year and once the Supreme Court issues its much-awaited decision.
November 10, 2009
The Need for Regulating Autonomous Machines
The Royal Academy of Engineering has issued a report that calls on legislators and policy-makers to begin thinking about how to regulate autonomous machines that are now in the development stages. The report mentions two specific new systems: autonomous transport and smart homes. The benefits of these systems will be great, but they will also have associated issues of ethics and management. At this point, there is no legal framework set up to deal with these issues. Read the complete discussion on this report at The Engineer Online.