Pencil and Paper, No Deal…

To patent or Not, its a trolls world out there...

So did you know that you can’t patent calculations that can be done with a simple number two  pencil and paper? Therefore under this rule all such calculations remain unpatentable even if the steps are programmatically encoded into a machine-readable format otherwise known as computer code. With this said, the next obvious question: why is software patentable at all? As doesn’t all software consists of nothing more than just sequences of calculations that could, in theory, be done with a pencil and paper?

Well before we go there, how did we get here?  The short answer is just recently, the United States Court of Appeals for the Federal Circuit rejected a patent submitted as a method for detecting credit card fraud. While this in itself might have been unsurprising, the interesting piece is the court broke new ground in its reasoning.  As it cited a famed Supreme Court ruling against software patents stemming from the 1970s, as the court said that you can’t patent a “mental process”.  However they added the kicker of “even if they are carried out by a computer program” which makes sense as this is where the concept of copyright comes in as your “expressing” your “mental process” as a written methodology much like an author strings words together to form a novel.

So with this one can say, all computer programs implement mathematical algorithms that could, in principle, be implemented with a pencil and paper.  Thus as mentioned above one would think and maybe even throw a party that the end of the patent troll where near.  However, unfortunately not, as the court also ruled in their statement that the no-patenting-math rule doesn’t apply if the math in question is complicated enough that “as a practical matter, the use of a computer is required” to perform the calculations.  To many this is now a kin to the pornography debate where the chief justice stated he “knew it when he saw it” as it lacks definition.

In an attempt to explain this away the court shared that it felt it made no significant change in the ruling as the declined credit card fraud patent failed a key requirement which is the “manipulation of computer data structures”.  So what exactly is a “computer data structure”,  as isn’t just a way of organizing various numbers and symbols? So lets ask the question, if one works in the computer field (as I do) wouldn’t they regularly draw diagrams of data structures on the whiteboards and perform sample calculations on them?

Likewise, there are many branches of math which involve manipulating “data structures” like ordered pairs and especially matrices.  Here one is left to view the Federal Circuit decision one where you can’t patent new results in linear algebra because “data structures” are involved yet should you plug them into Excel you somehow can.  In short the court is exhibiting dyslexic behavior with regards to software patenting as this response is more in line with that of Schrödinger’s cat rather than   the practical application of law…

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About Joseph Campbell

As a strong believer in the fact that "people work for people", it has been a life driver to better to understand the complexities of the various aspects which drive efficiency within this axiom, especially the concepts of leadership. Supporting this, I have been fortunate enough to having experienced this as leader on a global basis over the last decade and half. During this time it has been clear there are three core drivers being Life, Leadership and Economics.
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