[00:00.000 --> 00:05.560]  With the second in our patent-themed part of the afternoon, a couple of quick announcements.
[00:06.060 --> 00:19.340]  If you go to any of our talks which are field to capacity, keynotes and that sort of thing, especially things of Manning and Olsen, please note that if you leave before the end of the talk, you won't be able to get back in, most likely, as somebody will have taken your place.
[00:20.420 --> 00:24.160]  So look out for that if you don't want to miss the end of a high-capacity talk.
[00:24.500 --> 00:25.900]  Don't leave before the end of it.
[00:26.800 --> 00:28.300]  A couple other things to touch on.
[00:28.300 --> 00:32.720]  If you want to hang up anything on the walls of the conference, that's cool.
[00:32.920 --> 00:33.440]  We're all for that.
[00:33.580 --> 00:35.240]  But get some blue tape from us.
[00:35.700 --> 00:38.080]  You can use the blue painter's tape to attach things to the walls.
[00:38.400 --> 00:39.060]  Nothing else.
[00:39.200 --> 00:42.480]  No sCotch tape, no masking tape, no audio tape, anything else.
[00:43.540 --> 00:45.960]  Just get the tape from us and we'll give it to you.
[00:46.960 --> 00:48.960]  Beyond that, we're about ready to get going.
[00:49.180 --> 00:54.000]  So I'm happy to present Ed Ryan with Can You Patent Software?
[00:59.110 --> 00:59.830]  Hello, everyone.
[01:00.070 --> 01:01.170]  Thank you for sticking around.
[01:01.170 --> 01:04.010]  If you're here for the second part of the patent double feature.
[01:04.550 --> 01:06.390]  And if you are new, that's great.
[01:06.490 --> 01:10.410]  Because I'm going to talk about some of the same stuff that Charles talked about.
[01:10.610 --> 01:11.890]  And it'll be fresh for you.
[01:13.630 --> 01:27.690]  So the basic thrust of this talk is kind of to analyze what happened last month when the Supreme Court came down with the Alice versus CLS Bank decision.
[01:28.970 --> 01:35.070]  Because it kind of, it unsettled the practice of patent law and especially how software patents are approached.
[01:35.530 --> 01:41.390]  So the quick question, or the quick answer to the question of can you patent software is yeah.
[01:41.390 --> 01:42.830]  You still can.
[01:43.170 --> 01:51.890]  There are very vague rules currently about what you can and can't do when you're patenting software.
[01:52.930 --> 01:55.890]  And they got vaguer last month.
[01:56.090 --> 01:59.070]  But just to give you a quick idea of what I'm going to be talking about.
[01:59.170 --> 02:04.890]  I'm going to start off to talk about the basics of patent law, the foundations of it, where it comes from.
[02:06.090 --> 02:09.590]  And then we're going to talk specifically about software patents.
[02:09.870 --> 02:15.150]  I'm going to give, give you one specific example of a patent that we can all kick for a little while.
[02:16.510 --> 02:22.930]  And then we'll get into exactly what the legal requirements for a software patent are these days.
[02:26.590 --> 02:35.950]  So, the basic idea behind software patents, these are the, the existence of them comes out directly from the Constitution.
[02:37.510 --> 02:43.790]  Giving Congress the power to regulate intellectual property, not just for software, but for copyrights as well.
[02:44.610 --> 02:57.090]  Basically, the concept being in order to incentivize people into creating awesome new things, we give them certain rights over them.
[02:57.290 --> 03:08.530]  And the idea here, it comes out of sort of a philosophical background of if you put your labor into something, if you create something, you should have some kind of right to that thing.
[03:08.790 --> 03:15.610]  And that, that is very easy to see when it comes to, like, developing land, or making a widget.
[03:15.890 --> 03:21.430]  But it's a little bit harder to see, and it's a little bit less of a natural fit when it comes to intellectual property.
[03:21.870 --> 03:28.530]  So, the Congress, Congress has created a whole set of statutes that, that provide a framework for this.
[03:32.000 --> 03:35.820]  And, as Charles discussed earlier, a patent is ultimately an exchange.
[03:36.920 --> 03:43.400]  The goal is, if we're going to get some, if we're going to get the benefit of the, this creative effort.
[03:45.260 --> 03:48.360]  Society wants the actual meat of that.
[03:48.560 --> 03:55.240]  They don't just want you to work in secret, and create your fantastic widget, and then never know how it was made themselves.
[03:55.240 --> 04:04.220]  So, the trade that happens is, the inventor gets this right, this monopoly right, for a period of years.
[04:04.720 --> 04:08.100]  And, in exchange, they explain how they did it.
[04:09.660 --> 04:13.180]  Currently, the patent term is 20 years from the date of filing.
[04:13.780 --> 04:17.200]  So, it's a pretty long term, if you keep up your maintenance fee payments.
[04:17.640 --> 04:20.360]  And, you get an awful lot out of it.
[04:24.790 --> 04:28.290]  But, the question arises of whether this actually promotes progress.
[04:28.490 --> 04:34.850]  And, it's only until, say, the past couple of decades, where that was even a question.
[04:35.090 --> 04:36.690]  It was, it was kind of a given.
[04:36.870 --> 04:40.350]  Everybody just accepted that patents were amazing.
[04:40.910 --> 04:45.990]  To use a quote from the, I believe, the Secretary of State from Japan in the 1920s.
[04:46.830 --> 04:49.710]  What is it that makes the United States such a great nation?
[04:50.070 --> 04:52.590]  We investigated, and we found it was patents.
[04:53.030 --> 04:54.110]  And, we will have patents.
[04:54.510 --> 04:58.170]  So, until very recently, it was, it was common, common wisdom.
[04:58.330 --> 05:05.810]  The patents were the be-all and end-all of how you drive, like, from a policy perspective, how you drive innovation in a country.
[05:07.750 --> 05:13.730]  But, there's a very legitimate point, which is that people would still make stuff, even if they didn't have patents.
[05:13.730 --> 05:18.470]  There are a variety of other motivations, beyond, you know, the pure profit interest.
[05:18.710 --> 05:26.750]  And, even then, invention has pecuniary rewards, even if you don't have an exclusive monopoly to it.
[05:27.990 --> 05:37.830]  The open source movement, and hackers, or makers, are a great example, because they're motivated by something other than the almighty dollar.
[05:38.530 --> 05:42.510]  They're in it for passion, for curiosity, or whatever.
[05:44.370 --> 05:50.970]  But, there are fields in which it's not so easy to get in, right?
[05:51.190 --> 05:55.930]  Part of the charm of our culture is that it's very accessible.
[05:56.170 --> 05:58.730]  Anybody can pick up a book and learn how to program.
[05:59.210 --> 06:05.410]  Anybody can pick up a $30 soldering iron and learn how to make, you know, something out of electronics.
[06:06.670 --> 06:25.870]  When you get into more abstract things, and harder to develop things, pharmaceuticals are a great example, it's harder to make the case that people would put as much effort into innovation and developing new technologies in these fields, because they are very hard to produce and very easy to copy.
[06:26.670 --> 06:32.030]  You know, once you've got this, and, you know, you have to let people know what chemical they're putting in their bodies.
[06:33.190 --> 06:44.990]  Once you've got that chemical, other people can step in and make it, even though it may have cost you tens of millions of dollars to get to the point to figure out, okay, this is the chemical that cures headaches or whatever.
[06:46.190 --> 06:53.830]  So it's harder to accept that, that people would, out of a sense of passion, produce new pharmaceuticals.
[06:53.930 --> 06:59.650]  But, you know, every single field has its own, has its own set point.
[06:59.850 --> 07:04.670]  And so specifically, when we talk about software patents, we have to look a little bit harder.
[07:05.750 --> 07:12.970]  Because we all know for a fact that software develops at a very rapid pace, even outside the context of patents.
[07:12.970 --> 07:17.390]  People, people will get, do everything they can to get away from patents in the world of software.
[07:18.010 --> 07:26.550]  So, what I have personally found is that the biggest effect the patents seem to have is they reduce transaction costs.
[07:27.070 --> 07:34.890]  Transaction costs being a term from economics, which means, once you've got, what does it cost in order to do business?
[07:35.350 --> 07:35.830]  Right?
[07:36.110 --> 07:37.330]  I'm a patent attorney.
[07:37.650 --> 07:39.110]  I talk to inventors.
[07:39.210 --> 07:42.170]  I talk to people who are, you know, in it for the first time.
[07:42.170 --> 07:45.530]  They've got this great idea and they don't want to talk to anyone about it.
[07:45.770 --> 07:54.510]  And when you've got a great idea and you want to make it and you want to see something happen, not talking to anyone about it is the worst possible thing you can do to actually make it happen.
[07:54.890 --> 07:58.250]  But they don't want to talk about it because they're afraid of somebody taking it.
[07:58.810 --> 08:05.090]  And, you know, writ large, that affects absolutely every single part of, of our economy.
[08:05.810 --> 08:18.070]  When people are no longer willing to talk about their things and, and, and come out and, and openly develop them, you end up with a much, a lot of, a lot of effort gets wasted on secrecy.
[08:18.310 --> 08:24.790]  And a lot, there's a large opportunity cost in that you don't get the feedback that you might need in order to complete your development.
[08:30.930 --> 08:33.690]  So the question then becomes, what can we patent?
[08:34.010 --> 08:44.850]  And this is set out in the, in the statute as being whoever invents or discovers any new or useful process, machine, manufacture, or composition of matter.
[08:45.550 --> 08:53.610]  And software is usually claimed as either a process or as a machine that's, that's sort of designed to accomplish something.
[08:53.610 --> 08:56.430]  So if it's not one of these, what, four things?
[08:57.050 --> 08:59.470]  If it's not one of these four things, it's write out.
[09:00.110 --> 09:07.710]  But software, from the cleverness of the draftsmen, they, they write it in terms of something that looks right.
[09:10.430 --> 09:17.610]  However, there are exceptions to those four statutory categories of patentable subject matter.
[09:17.610 --> 09:25.290]  Um, and the courts, and starting in, uh, 1854, the courts have recognized certain categories of exception.
[09:25.570 --> 09:31.610]  You have, uh, laws of nature, natural phenomena, and abstract ideas.
[09:31.790 --> 09:41.070]  So laws of nature comes out of things like, uh, you can't, um, you can't patent the propagation of, of electromagnetic waves, right?
[09:41.150 --> 09:47.110]  You can't, you can't patent radio, or, or at least you can't patent the concept of radio.
[09:47.110 --> 09:50.370]  The concept of radio waves propagating through space.
[09:50.590 --> 10:03.450]  That said, if you had a device that, in a specific way, manipulated electrons to create radio waves propagating through space, and you patent that device, you're not patenting that law of nature.
[10:03.450 --> 10:05.850]  You're patenting a specific object.
[10:06.330 --> 10:10.970]  Um, natural phenomenon, um, kind of a similar thing.
[10:11.310 --> 10:16.910]  You can also, um, for example, you can't patent, uh, a cat, right?
[10:16.910 --> 10:18.610]  Cats have been around a long time.
[10:18.750 --> 10:19.710]  Nature made cats.
[10:19.950 --> 10:25.530]  Uh, if you genetically engineer your own awesome super cat, you might be able to get a patent on that.
[10:26.310 --> 10:32.830]  Um, but when we talk about software patents, the key is abstract ideas.
[10:33.750 --> 10:38.250]  Software patents often get couched as abstract ideas when the courts talk about them.
[10:38.250 --> 10:43.310]  Because software isn't really anything, right?
[10:43.430 --> 10:45.170]  You can't put your hands in some software.
[10:45.530 --> 10:47.210]  You can't hit somebody with software.
[10:48.090 --> 10:48.210]  Right?
[10:48.890 --> 10:54.330]  So, ultimately, we have to find some way of, of phrasing software.
[10:55.150 --> 10:59.970]  So, if we want to avoid this, it has to not seem like an abstract idea.
[10:59.970 --> 11:08.260]  Now, keep in mind, that said, processes are patentable.
[11:09.640 --> 11:16.540]  So, the question now is, how do we tell which one's which?
[11:16.800 --> 11:20.600]  And, and, it's, it's worth asking why software is different.
[11:20.940 --> 11:34.080]  Because, of all, you know, when, when you talk about an invention, you're talking about somebody who's expending effort and creativity, and trying to make something new and awesome happen.
[11:34.840 --> 11:34.980]  Okay?
[11:35.260 --> 11:42.520]  So, why should it be so different when you're talking about, I made this radio, versus, uh, I pro, I made the software for the radio.
[11:43.320 --> 11:57.760]  Um, my personal belief as to why software is such a big, uh, is such a big deal for us, and why software patents are such a big deal for us, is because software is kind of unique in that, well, it's not, it, let me take a step back.
[11:57.980 --> 11:59.920]  Um, it's not unique.
[11:59.920 --> 12:02.780]  But, but software is a new field.
[12:03.420 --> 12:10.820]  You know, uh, the past four decades, software, questions of software have really been, um, popping up in the legal world.
[12:11.560 --> 12:24.560]  Um, and because it changes so rapidly, you end up with situations where things that didn't, you didn't really expect to have an application, now suddenly do.
[12:24.560 --> 12:34.720]  And so you can patent something for, for what you intended, and then a little bit later, find that it's useful for something completely different that you had no conception of when you made it.
[12:35.500 --> 12:47.440]  Um, in addition, because software as an industry is so new, when you patent the basic, you know, the basic building blocks of an industry, you essentially own that industry.
[12:48.060 --> 12:52.160]  And you can't, you know, other people have a lot of difficulty getting in after that point.
[12:53.000 --> 13:03.520]  Um, and on a, on a more direct, uh, on a direct, uh, scale, it kind of offends core beliefs in our community.
[13:03.520 --> 13:12.860]  Um, open source is all about sharing, uh, hacking in secret is no fun.
[13:13.540 --> 13:18.020]  Um, we like to talk about what we do.
[13:18.340 --> 13:24.080]  We like to share what we do, and we like it when other people do awesome new things with what we've done.
[13:24.300 --> 13:31.400]  And so the concept of patenting something on that scale, it, it really sours the whole mix.
[13:32.580 --> 13:44.240]  Um, I should, I should note at this point that we are talking in addition about, when we talk about software patents, we ultimately talk about a lot of different things all at once.
[13:44.440 --> 13:49.960]  We talk about novelty, we talk about obviousness, and we talk about the bare concept of software patents.
[13:50.080 --> 13:53.960]  And different people have different problems with this at each different step of the way.
[13:54.440 --> 13:59.740]  Most of the time when you hear about software patents, people are really talking about obviousness.
[13:59.740 --> 14:02.400]  Because that's what really gets to us.
[14:02.660 --> 14:05.700]  When we look at something and say, I could have done that.
[14:06.000 --> 14:08.020]  That's nothing interesting or new.
[14:08.340 --> 14:12.320]  That's just, you know, a kind of workmanlike addition of one thing to another thing.
[14:12.660 --> 14:13.700]  There's nothing there.
[14:14.840 --> 14:21.680]  But what I'm talking about here is, on a very basic level, is software itself patentable?
[14:25.740 --> 14:33.680]  So, software patents and the attempts to patent them, or software and the attempts to patent them, have been around for a very long time at this point.
[14:35.800 --> 14:37.240]  In my scale.
[14:37.400 --> 14:38.660]  They've been along longer than I have.
[14:39.360 --> 14:48.000]  The Supreme Court found in 1972 that numerical algorithms and mathematical formulae are unpatentable abstract ideas.
[14:48.960 --> 14:52.640]  And that sort of sets the tone, right?
[14:52.640 --> 14:56.800]  They came right out and said, algorithms are abstract ideas.
[14:58.720 --> 15:05.660]  So now we have to find something about software, because if you just take it like that, well, kind of every software boils...
[15:06.200 --> 15:08.060]  Every piece of software boils down to algorithms.
[15:08.660 --> 15:15.660]  So, in 1982, the Supreme Court took it in the other direction, which is that somebody patented...
[15:15.660 --> 15:17.520]  This is the case Diamond versus Deere.
[15:17.660 --> 15:30.200]  Somebody patented a process for curing rubber, which involved a computer that calculated the exact right temperature and time at which you pull that rubber out.
[15:30.360 --> 15:33.020]  At which point it's no longer goo, now it's a rubber doodad.
[15:33.020 --> 15:47.140]  And because that software was implemented on a computer, and it was implemented in this useful technological process, that software was patentable.
[15:52.340 --> 16:03.860]  So, I want to emphasize, though, the point that eligibility, that what I'm talking about here, abstract ideas, whether those are patentable, whether software is patentable, is different from the question of novelty.
[16:05.220 --> 16:10.080]  Because there are many, many bad patents out there, for a variety of different reasons.
[16:10.900 --> 16:19.940]  And just because something is obvious, doesn't mean it's not eligible in the statutory sense, right?
[16:21.780 --> 16:23.320]  So, here's an example.
[16:24.180 --> 16:26.700]  This is a patent for a doubly linked list.
[16:27.340 --> 16:30.000]  It was filed, I believe, in 2004.
[16:30.020 --> 16:32.100]  It issued in 2006.
[16:33.140 --> 16:36.040]  So, I would like to get a little bit of feedback here.
[16:36.540 --> 16:40.000]  Were doubly linked lists invented in 2004?
[16:41.540 --> 16:42.940]  I invented them in 2003.
[16:44.500 --> 16:47.920]  Well, somebody here up front invented them in 2003, and he should sue.
[16:49.620 --> 16:50.460]  Wait a second.
[16:50.820 --> 16:51.460]  Okay, I'm waiting.
[16:52.140 --> 16:52.280]  Okay.
[16:54.100 --> 16:54.480]  All right, great.
[16:55.400 --> 16:59.160]  So, I'm just going to give you an idea of what this patent talks about.
[17:00.240 --> 17:01.580]  Can you read it on there?
[17:01.660 --> 17:02.020]  Probably not.
[17:02.020 --> 17:02.900]  No.
[17:04.000 --> 17:13.140]  A computerized list that may be traversed in at least two sequences, comprising a plurality of items that are contained in a computerized list.
[17:13.200 --> 17:14.680]  That's one, two, and three there.
[17:15.620 --> 17:19.920]  And then a primary pointer and an auxiliary pointer for each of the items.
[17:20.760 --> 17:23.140]  Where, and then there's a bunch of verbiage.
[17:23.500 --> 17:27.000]  Basically, the primary pointer takes you on a first sequence through the list.
[17:27.200 --> 17:31.380]  The auxiliary pointer takes you through a second sequence of the list.
[17:32.000 --> 17:35.420]  And the idea, the way it's phrased is it's very general.
[17:35.420 --> 17:43.480]  So, you can go basically any path through this collection of items, including just backwards.
[17:43.840 --> 17:53.380]  And so, if you have a textbook from before 2004 that shows linked lists, you will see a doubly linked list that reads on this patent.
[17:56.780 --> 18:02.820]  So, I think we've determined now whether this is new and non-obvious.
[18:03.000 --> 18:06.620]  I think we all know pretty clearly that it was done before.
[18:06.780 --> 18:07.900]  And so, it's a bad patent.
[18:08.620 --> 18:10.300]  We can say that with some confidence.
[18:10.460 --> 18:16.580]  The question of the day though, is it eligible subject matter for a patent?
[18:17.500 --> 18:19.620]  And I want to get your opinion on that.
[18:20.380 --> 18:25.360]  Based on, based on your layman's knowledge of, of what a, what a software patent is.
[18:25.600 --> 18:28.420]  Is this eligible subject matter for a patent?
[18:31.580 --> 18:33.770]  The primary pointer is not defined.
[18:35.080 --> 18:36.530]  It's probably defined in the spec.
[18:38.000 --> 18:39.510]  Yeah, I expect so.
[18:39.540 --> 18:43.540]  Didn't somebody once try to invent if statements?
[18:43.990 --> 18:46.860]  I don't know if somebody once tried to invent if statements.
[18:47.060 --> 18:49.200]  I think probably we have them.
[18:51.200 --> 18:52.160]  It's no problem.
[18:52.250 --> 18:55.120]  But if we can keep most of the questions towards the end, that would be great.
[18:58.820 --> 18:59.660]  So, we agree.
[18:59.840 --> 19:00.400]  It's not new.
[19:00.620 --> 19:02.300]  And the question is, is it eligible?
[19:03.990 --> 19:05.320]  And so, we have to look.
[19:05.320 --> 19:09.100]  Is software, does software fall into one of those exceptions?
[19:09.320 --> 19:12.990]  Because we can characterize software as being a process or as a machine.
[19:13.380 --> 19:15.160]  So, it meets the first test.
[19:17.080 --> 19:22.250]  The exceptions, as I said before, are laws of nature, natural phenomena, and abstract ideas.
[19:22.840 --> 19:27.420]  And software hinges on that concept of an abstract idea.
[19:27.420 --> 19:32.770]  You know, intuition tells us that this is a very abstract idea.
[19:33.010 --> 19:34.060]  It's just a data structure.
[19:34.970 --> 19:37.620]  Intuition doesn't always get us where we need to go in the law.
[19:41.290 --> 19:48.910]  Unfortunately, the courts have not given us a clear idea of what an abstract idea is.
[19:50.550 --> 19:52.930]  There are two courts in play here.
[19:53.050 --> 19:55.530]  There's the Court of Appeals for the Federal Circuit.
[19:55.710 --> 19:57.130]  And there's the Supreme Court.
[19:57.750 --> 20:01.490]  And the Court of Appeals for the Federal Circuit is a very specialized court.
[20:01.710 --> 20:04.250]  They deal with specific questions.
[20:05.530 --> 20:06.630]  Not just patents.
[20:06.750 --> 20:08.590]  They deal with, like, a couple of other things.
[20:08.590 --> 20:11.030]  But they're all, like, federally...
[20:11.400 --> 20:11.910]  Excuse me.
[20:12.250 --> 20:13.850]  Federally created questions.
[20:15.340 --> 20:18.410]  So, the Federal Circuit is kind of in the trenches.
[20:19.330 --> 20:23.010]  Their goal is to make the patent system work.
[20:25.090 --> 20:27.530]  And I've detected a laugh.
[20:28.930 --> 20:30.190]  It is their goal.
[20:30.350 --> 20:31.830]  And they do...
[20:31.830 --> 20:33.770]  They take it very seriously.
[20:34.430 --> 20:34.870]  Right?
[20:34.950 --> 20:36.710]  They are not trying to mess things up.
[20:36.710 --> 20:47.650]  The problem is that every time they come up with a workable, reasonable rule that anybody can pick up and apply, the Supreme Court shoots it down.
[20:48.750 --> 20:52.830]  Because the Supreme Court tries to be pretty minimalist.
[20:53.470 --> 20:55.890]  They don't want to say very much.
[20:56.370 --> 21:00.510]  They want to keep it as open-ended as possible and make people think.
[21:00.870 --> 21:02.750]  Is this an abstract idea?
[21:02.750 --> 21:02.850]  Yeah.
[21:04.970 --> 21:07.780]  For a long time, actually, the Federal Circuit kind of ran unchecked.
[21:08.730 --> 21:16.910]  It's only recently, in the past five or ten years, that the Supreme Court has started coming in and saying no.
[21:19.950 --> 21:23.210]  So, in the past couple of years, here are a couple of examples.
[21:23.590 --> 21:26.030]  The Bilsky case came down in 2012.
[21:28.570 --> 21:30.610]  Bilsky dealt with...
[21:32.110 --> 21:37.450]  It was kind of an escrow thing, basically using a third party to guarantee an exchange, something like that.
[21:38.810 --> 21:43.010]  And the Supreme Court found it to be an abstract idea.
[21:43.150 --> 21:49.430]  But in doing so, they shot down the Federal Circuit's machine or transformation rule.
[21:50.270 --> 21:53.690]  The machine or transformation rule was a very easy to apply test.
[21:53.950 --> 21:57.190]  We have a process, or a system, or whatever.
[21:57.530 --> 22:01.110]  Is there some actual device involved here?
[22:01.110 --> 22:05.830]  Or does it create some transformation in the world around it?
[22:05.950 --> 22:09.170]  So, for example, the rubber case, where they were curing rubber.
[22:09.430 --> 22:14.470]  That software made a transformation take place in the real world.
[22:15.730 --> 22:20.690]  In the machine or transformation rubric, it made my job very easy as a patent attorney.
[22:20.690 --> 22:26.590]  All I had to do was add using a processor to one of the steps.
[22:27.890 --> 22:29.590]  Calculating using a processor.
[22:29.830 --> 22:30.650]  And I was done.
[22:31.210 --> 22:34.090]  So I was a little disappointed in Bilsky, personally.
[22:36.090 --> 22:38.130]  And it kind of unhinged everything.
[22:38.570 --> 22:42.530]  Because the Supreme Court just came in and said, No, it's an abstract idea.
[22:42.670 --> 22:45.430]  The question should be, is it an abstract idea?
[22:45.730 --> 22:48.690]  Not machine or transformation, though that's instructive.
[22:49.490 --> 22:54.030]  And so, as a result, nobody really knew what the rule was.
[22:54.730 --> 22:57.090]  And, inevitably, we came up with another case.
[22:57.090 --> 22:59.630]  The Alice case, which was just decided last month.
[23:01.250 --> 23:04.910]  The Alice case was another kind of financial transactions case.
[23:05.090 --> 23:08.750]  If you were here earlier, Charles talked in some detail about those claims.
[23:09.590 --> 23:13.950]  And the Supreme Court, this time, came out with a test.
[23:14.190 --> 23:17.690]  They came up with something that at least sets up a framework.
[23:17.690 --> 23:19.590]  But it doesn't...
[23:19.590 --> 23:21.970]  It still doesn't really define its terms.
[23:22.350 --> 23:23.710]  And so you go through...
[23:23.710 --> 23:25.990]  And we'll get into the test in detail in a few minutes.
[23:26.210 --> 23:29.570]  But you go through and it still doesn't get you where you need to be.
[23:32.530 --> 23:33.730]  And here's the test.
[23:33.990 --> 23:37.750]  Number one, you have to ask, is the claim directed to an abstract idea?
[23:37.750 --> 23:44.090]  And if it is, number two, is there something that makes the claim significantly more?
[23:45.510 --> 23:46.270]  Significantly more.
[23:46.450 --> 23:47.290]  I don't really know.
[23:48.030 --> 23:49.450]  Than that abstract idea.
[23:49.690 --> 23:55.610]  And what's important to note here, which is, you know, and I apologize for reading off the slide, but this is important.
[23:56.970 --> 24:00.450]  Even if you have an abstract idea, you can still get a patent.
[24:02.350 --> 24:10.030]  That means if you can find something to tie your claim down to, that gives it that little something extra, you still get to walk away with a patent.
[24:12.470 --> 24:19.530]  And the Supreme Court gave some examples of what an abstract idea could be, based on their own case law from the past.
[24:19.650 --> 24:21.010]  Number one, idea of itself.
[24:21.190 --> 24:24.130]  Number two, fundamental economic practices.
[24:24.510 --> 24:27.950]  Both Bilski and Alice came under those, that one.
[24:28.210 --> 24:31.450]  And number three is mathematical relationships and formulas.
[24:33.730 --> 24:36.230]  So talking about an idea of itself.
[24:38.230 --> 25:01.790]  This is kind of poorly defined, but the gist of it is, if you have this idea, and if your patent's claim for this idea covers every single possible embodiment that could be made out of this idea, then that counts as an abstract idea.
[25:03.410 --> 25:10.190]  In my personal belief, I think that that doubly linked list would count as an idea of itself.
[25:10.350 --> 25:21.230]  Even though it has the word a computerized list, I think it's pretty clear that you cannot implement this kind of data structure in any way now, because of this patent.
[25:26.050 --> 25:39.190]  For fundamental economic processes, you know, the impression I got, for this type of abstract idea, is that it's an abstract idea if you can reduce it to a pithy one-liner.
[25:40.570 --> 25:42.850]  So, you know, Bilski was about hedging.
[25:44.250 --> 25:44.710]  So, you know, Bilski was about hedging.
[25:44.710 --> 25:47.330]  Alice was about a third-party transaction.
[25:49.390 --> 25:56.030]  You know, it's sort of like, if you can boil it down to, to second-grader language, hedging, transaction, I'm not, okay.
[25:56.310 --> 25:59.410]  If you, if you can make it short, then it doesn't count.
[25:59.610 --> 26:08.970]  Even if all, you know, you, you might have seen the Alice claim in, you know, Charles' talk, if you've got pages and pages of claims and it boils down to, well, you do a thing to some stuff.
[26:09.530 --> 26:11.370]  It's, it's not going to be enough.
[26:12.310 --> 26:19.090]  And, and just as a little side note, these two big software cases were both specifically financial cases.
[26:19.090 --> 26:23.270]  So, we don't have a lot of data for other kinds of software.
[26:25.950 --> 26:28.130]  And then, finally, mathematical formulas.
[26:28.330 --> 26:29.490]  This is pretty simple.
[26:29.850 --> 26:37.310]  There was a case where the, the, the only new thing in the case was they came up with a new formula.
[26:37.310 --> 26:38.750]  Everything else was the same.
[26:39.070 --> 26:42.110]  It was basically a, finding a trigger for some alarm.
[26:43.150 --> 26:44.870]  And, and they had new formula for it.
[26:44.930 --> 26:58.190]  But because it was just a formula and that was the only new piece, the rest of the stuff that, you know, that was kind of material, maybe, maybe substantially limiting stuff, didn't really count because that was all old stuff.
[27:01.800 --> 27:06.060]  So, as I said earlier, even if you have an abstract idea, there's a way out.
[27:06.580 --> 27:09.520]  And your claim needs to have that something more.
[27:09.820 --> 27:11.960]  The court gave specific examples again.
[27:13.280 --> 27:20.120]  Without, without setting some general rule, they gave these examples and hoped you could sort of color in the rest for yourself.
[27:20.120 --> 27:29.460]  An improvement in any other technology or technological field, that was the, for example, the rubber curing.
[27:29.920 --> 27:42.300]  That, that was such a substantial improvement in the field of curing rubber, that even though you may be able to couch that, that claim as an abstract idea, it had enough other stuff going for it.
[27:43.420 --> 27:52.540]  An improvement in the functioning of the computer itself, which is something we're going to talk about in a minute.
[27:53.020 --> 27:58.660]  And then claims with meaningful limitations, with no idea what a meaningful limitation is.
[27:59.240 --> 28:05.700]  So improvements to other technology, like I said, curing rubber, that's pretty good.
[28:07.340 --> 28:19.140]  It's worth noting that, that Deere's like claim was very clearly directed to a, a, a mathematical formula.
[28:19.500 --> 28:26.740]  It actually included, it's called the Arrhenius equation that, that sets the ideal time for curing rubber.
[28:27.040 --> 28:29.860]  But you know, the, the equation was old.
[28:30.040 --> 28:33.540]  It was the software and the implementation and the effect that was new.
[28:37.180 --> 28:39.580]  Improvements to the functioning of the computer itself.
[28:39.900 --> 28:44.820]  That, this did, is one thing that did not come out of the court's case law.
[28:45.500 --> 28:49.220]  Um, and to me, it's really, really astounding.
[28:49.420 --> 28:53.040]  Because that's ultimately what every piece of software is for.
[28:53.280 --> 28:56.100]  Is to improve the functioning of the computer in some fashion.
[28:56.820 --> 29:01.460]  Um, there, I have no idea how that's going to play out in the law.
[29:01.460 --> 29:06.500]  And, you know, again, as a patent lawyer, I find this one particularly gratifying.
[29:06.720 --> 29:08.160]  I'm looking forward to that.
[29:08.840 --> 29:18.880]  Um, but when you get right down to it, you'll notice that every time I listed something, or almost every time I listed something, I followed it up with, and I don't really know what that means.
[29:19.100 --> 29:21.100]  Because nobody really knows what it means.
[29:21.100 --> 29:25.800]  Um, it's, it's a hard thing for, for serious legal scholars.
[29:26.040 --> 29:28.200]  Not that I am claiming to be a serious legal scholar.
[29:28.540 --> 29:32.860]  Um, but it's going to be impossible for patent examiners.
[29:33.240 --> 29:37.560]  Um, out of curiosity, do we have any patent examiners in the audience?
[29:39.360 --> 29:39.840]  Great.
[29:40.920 --> 29:41.400]  Um...
[29:43.060 --> 29:48.060]  Patent examiners, all credit to them, my job is to make their job as hard as possible.
[29:48.060 --> 29:54.780]  Um, patent examiners are generally hired straight out of college with no legal training whatsoever.
[29:55.180 --> 30:04.540]  You know, they go through kind of a patent boot camp, and they're given sort of a basic rubric for examining patents.
[30:04.760 --> 30:07.440]  And there's this giant manual that they get to flip through.
[30:07.880 --> 30:10.060]  But there's no...
[30:11.380 --> 30:16.300]  You know, they don't, they're not hired for their ability to determine what an abstract idea is.
[30:16.940 --> 30:17.420]  Right?
[30:17.520 --> 30:20.280]  They're not hired for their ability to, to figure this out.
[30:20.420 --> 30:21.720]  Nobody on the planet is.
[30:23.840 --> 30:24.320]  Um...
[30:24.320 --> 30:29.580]  So, ultimately, the patent office is going to have to figure out some way of systematizing this.
[30:29.680 --> 30:37.960]  Some way of breaking the concept of an abstract idea down into at least, you know, certain red flags that people can look for.
[30:37.960 --> 30:43.180]  Um, but the court was clear at least about one thing.
[30:44.240 --> 30:47.060]  Saying that it's on a computer is not enough.
[30:47.680 --> 30:49.700]  This, they said this very explicitly.
[30:49.880 --> 30:54.260]  You can't just have an abstract idea and hang a computer on it.
[30:54.360 --> 30:58.320]  And you can't just take an abstract process and then say, go do it.
[30:59.120 --> 30:59.620]  Right?
[30:59.620 --> 31:02.620]  There has to be something more there to it.
[31:02.740 --> 31:09.080]  And, and the reason the court wanted to do this is to avoid, uh, what it called the draftsman's art.
[31:09.380 --> 31:15.100]  They don't want particularly skilled patent attorneys to be able to walk in and just use...
[31:15.100 --> 31:16.320]  Not even particularly skilled.
[31:16.580 --> 31:17.460]  Just patent attorneys.
[31:17.660 --> 31:22.020]  Who, who have been around long enough to know there are some magic words.
[31:22.020 --> 31:31.080]  Under the, the Federal Circuit's test before Bilski, the machine or transformation test, there were just magic words that I could use.
[31:31.700 --> 31:32.180]  Right?
[31:32.360 --> 31:36.060]  And suddenly this abstract idea is no longer abstract.
[31:36.400 --> 31:37.620]  Now it's got a machine.
[31:43.460 --> 31:51.800]  Um, I think, well, the Patent Office is currently struggling to figure out what's going on.
[31:51.800 --> 31:54.940]  They released guidelines on June 25th.
[31:55.100 --> 31:57.940]  Uh, if you're especially curious, I've got a website up.
[31:58.140 --> 32:00.900]  You can, it's got a link to their, their guidelines.
[32:01.600 --> 32:07.560]  Um, the guidelines basically just repeated the, uh, decision in Alice.
[32:07.760 --> 32:08.500]  And that's fine.
[32:08.720 --> 32:09.120]  Right?
[32:09.220 --> 32:13.100]  It's not their fault because legally that's what they are bound to.
[32:13.420 --> 32:15.560]  They don't really get to make their own law.
[32:16.080 --> 32:20.940]  Um, so they have to wait for somebody else to figure out what the, what the answer is.
[32:21.560 --> 32:31.620]  But taking all of this and taking it back to our, our example of the linked list patent, again, I think it's pretty clear that this is an abstract idea.
[32:31.800 --> 32:33.620]  There's nothing here.
[32:34.000 --> 32:39.060]  And the court was clear that just being a computerized list is not going to cut it.
[32:39.560 --> 32:57.320]  Um, but as an academic question, if we wanted to save that doubly linked list patent, if we had, if we had come up with our own brand new doubly linked list, since apparently, those having happened before doesn't bar patenting them.
[32:58.040 --> 33:00.300]  Um, how would you do that?
[33:00.800 --> 33:03.640]  Uh, putting yourselves in my shoes for a moment.
[33:03.800 --> 33:10.400]  The court gave us a couple of different ways of, of getting around the fact that you've just got an abstract idea.
[33:10.400 --> 33:20.060]  If we were to tie it to a specific industry, so if this was suddenly the, the, the rubber curing doubly linked list, that would get us there.
[33:20.400 --> 33:26.920]  Um, and if we were to give it some meaningful limitations, that would, that would do it.
[33:26.920 --> 33:29.280]  I'm not really sure what a meaningful limitation is still.
[33:30.340 --> 33:34.000]  Um, and of course, doubly linked lists improve computers functioning.
[33:35.220 --> 33:38.940]  And I hit the wrong key, and there we go.
[33:39.500 --> 33:40.120]  Hey, great.
[33:40.880 --> 33:47.340]  Um, so ultimately we're kind of, we don't really know what's happening.
[33:47.600 --> 33:53.980]  Um, in terms of actual practice, the patent office hasn't changed much yet.
[33:53.980 --> 33:57.440]  Um, and I don't think they're going to change much yet.
[33:58.020 --> 34:05.340]  Um, but even so, in, in a certain way, the patent office no longer has this easy test to apply.
[34:05.660 --> 34:11.380]  Um, they can no longer say, well, it doesn't have a machine, it doesn't have a transformation, so you don't get a patent.
[34:11.600 --> 34:16.080]  Now they have to actually show to me in some way that it's an abstract idea.
[34:17.040 --> 34:20.740]  And I have ways of getting around it, that the court gave me.
[34:20.740 --> 34:20.740]  Um,
[34:24.310 --> 34:30.710]  so, as of the past few weeks, nothing's really has changed.
[34:30.850 --> 34:32.270]  In fact, nothing at all has changed.
[34:32.830 --> 34:38.750]  Um, the patent office is still applying the machine or transformation test that the Supreme Court shot down years ago.
[34:39.110 --> 34:48.810]  Um, there was kind of a weird quirk, and I don't know if this was an individual examiner or office policy, but I can't use the word processor anymore, because that might be a human being.
[34:49.550 --> 34:52.570]  Um, and that's where we stand.
[34:52.910 --> 34:54.370]  We're still figuring things out.
[34:55.470 --> 34:58.670]  But ultimately, software patents are not going to go away.
[34:58.990 --> 35:06.090]  I don't believe that any amount of reform effort is going to change that, uh, for a couple of reasons.
[35:06.090 --> 35:12.990]  The Supreme Court has already clearly stated that at least some kinds of software patents are eligible.
[35:13.830 --> 35:22.770]  Um, it's a very vague test, but there are ways that are officially sanctioned to do this.
[35:22.770 --> 35:36.230]  And on a, on a legislative level, although there are always efforts to reform the patent law, I don't think you're ever going to see a, a new statute that excludes software patents.
[35:36.450 --> 35:42.970]  The, the software industry is just too huge, there's too much money invested in it, and the patents themselves are too valuable.
[35:43.670 --> 36:04.130]  Um, there's, there's this concept in constitutional law called a taking, which is what is, what happens when the, the, the United States or some government, you know, maybe a state or a town or whatever, um, takes over a piece of your land and then has to compensate you for it.
[36:04.790 --> 36:20.070]  If the government were to completely invalidate software patents as a class of thing, I think there would be a strong constitutional argument that the government would then have to pay the fair market value for every single one of those patents.
[36:21.130 --> 36:22.510]  I, I don't see it.
[36:24.670 --> 36:26.810]  And, uh, that is where we stand.
[36:27.210 --> 36:29.310]  So I've got, I've got plenty of time for questions.
[36:29.490 --> 36:44.150]  And if you want to see links to, uh, various things that I mentioned, like the, uh, Alice case, the decision from the Supreme Court, the current patent, uh, office guidelines, uh, a link to that patent, if you want to learn how to, you know, do a doubly linked list.
[36:46.970 --> 36:49.430]  And eventually, you know, a link to this talk itself.
[36:49.830 --> 36:51.850]  Um, that is where you can find it.
[36:52.330 --> 36:56.390]  Uh, if you want to ask a question, there is a microphone over there.
[36:57.150 --> 36:58.230]  I don't want my voice.
[36:58.450 --> 37:01.190]  Well, your, your voice is going to be on video.
[37:01.670 --> 37:05.550]  Um, so if there are any questions, I'm happy to answer, uh, answer them.
[37:06.330 --> 37:08.870]  Uh, okay guy, if you want to, if you want to yell it from there, go for it.
[37:09.850 --> 37:10.370]  Sure.
[37:10.370 --> 37:11.850]  Um, question.
[37:12.150 --> 37:12.370]  Sure.
[37:12.630 --> 37:14.530]  Are people not allowed to implement?
[37:16.130 --> 37:21.310]  And if they did, are they now eligible to be sued under that patent?
[37:21.510 --> 37:26.510]  So the question is, are people allow, uh, not allowed to implement a doubly linked list?
[37:26.730 --> 37:29.190]  And if they were to, would they get sued?
[37:29.810 --> 37:32.310]  Um, the answer is no and no.
[37:33.110 --> 37:39.490]  Uh, you know, on the face of this patent, which is a valid patent that currently exists, and somebody owns it.
[37:40.410 --> 37:40.930]  No.
[37:41.130 --> 37:45.910]  They own doubly linked lists and every other kind of wiggly linked lists out there.
[37:45.910 --> 37:47.690]  So you can't implement a linked list ever?
[37:47.910 --> 37:49.570]  Well, that depends.
[37:49.630 --> 37:50.290]  Why is it square?
[37:50.710 --> 37:55.330]  Whether, whether you can implement a linked list depends on how much you respect that patent.
[37:56.370 --> 37:59.690]  The sec, your second question was, will you get sued?
[38:00.070 --> 38:01.890]  The answer is almost certainly no.
[38:03.030 --> 38:09.830]  Because this is such a clearly bad patent that they would be wasting their money.
[38:10.190 --> 38:13.490]  It would be, it would be nuts for somebody to try and enforce this patent.
[38:13.670 --> 38:15.750]  And I should say, that is not legal advice.
[38:16.010 --> 38:18.910]  I am not recommending that you go implement a doubly linked list.
[38:19.510 --> 38:21.790]  And if you do, it's not my fault.
[38:21.970 --> 38:23.450]  If you get sued.
[38:23.750 --> 38:31.790]  Um, as, as a reasonable human being, however, I really don't think that it would be a problem.
[38:31.790 --> 38:42.530]  And I think that every single person who's taken an introductory level programming class has, or has done it on their own, or independently invented the doubly linked lists.
[38:42.630 --> 38:46.070]  There are plenty of people out there who would be in line for getting sued.
[38:46.070 --> 38:47.390]  Um, yes, sir.
[38:47.770 --> 38:53.290]  So, uh, two common examples of software patents, I think, are Amazon's one-click patent.
[38:53.590 --> 38:53.850]  Mm-hmm.
[38:54.130 --> 38:57.050]  Um, and maybe Google's, uh, PageRank algorithm.
[38:57.330 --> 38:57.590]  Mm-hmm.
[38:58.090 --> 38:59.610]  Um, these are discussed commonly.
[38:59.890 --> 39:08.030]  So, with the new tests handed down by, uh, the Supreme Court, um, does it open up patents like these to new attacks?
[39:08.670 --> 39:14.310]  Or, since these have been around for a while, um, are they, are they kind of grandfathered?
[39:15.050 --> 39:15.510]  Right.
[39:15.510 --> 39:18.170]  Um, they are not grandfathered in.
[39:18.970 --> 39:25.710]  You know, the, uh, the, the Alice versus CLS Bank patent was an existing patent.
[39:26.110 --> 39:26.530]  Right?
[39:26.670 --> 39:29.530]  And they, they invalidated it because it was an abstract idea.
[39:29.850 --> 39:34.830]  Now, I don't have the Amazon one-click, uh, one-click purchasing patent.
[39:34.970 --> 39:37.210]  And I don't have the PageRank patent in front of me.
[39:37.410 --> 39:39.190]  Um, so I don't know what they actually say.
[39:39.590 --> 39:44.530]  And I don't know whether they have the more meaningful limitations involved.
[39:44.530 --> 39:50.930]  My hunch is that it's going to depend on the patent.
[39:51.590 --> 39:58.730]  Um, not, and, and again, not, not because of the particular language in it, but kind of what it's doing.
[39:58.870 --> 40:09.310]  I think it, it's going to come down to whether they're making some appreciable difference, um, and, and doing something that's really genuinely new.
[40:09.310 --> 40:15.610]  Well, I, I guess, I guess then my question is, uh, procedurally, you know, these patents have been around, let's say five, eight years or so.
[40:15.870 --> 40:15.990]  Yeah.
[40:16.470 --> 40:19.690]  Um, uh, Amazon goes to sue somebody or infringement.
[40:20.270 --> 40:22.470]  Um, there, there's a new test.
[40:22.710 --> 40:26.050]  Uh, might these patents be open to, to more attacks now?
[40:26.350 --> 40:26.730]  Yeah.
[40:27.050 --> 40:27.610]  Yeah, certainly.
[40:27.930 --> 40:31.750]  You, you, you can always attack the validity of a patent when you get sued.
[40:31.750 --> 40:39.450]  Um, and subject matter eligibility is one of the attacks that you can levy against it.
[40:39.650 --> 40:42.070]  And so, yeah, you, you would have to look at it.
[40:42.270 --> 40:48.790]  Um, whether it's, uh, an additional attack, whether there's more stuff available than there was before, I can't really say.
[40:48.930 --> 40:52.710]  You know, it was always a possibility to attack it as an abstract idea.
[40:52.710 --> 40:57.350]  Um, if, if it seemed too abstract.
[40:57.930 --> 40:58.290]  Right?
[40:58.810 --> 40:59.170]  Again.
[41:01.270 --> 41:02.030]  Hey, Ed.
[41:02.650 --> 41:03.030]  Hi, Alice.
[41:03.770 --> 41:12.030]  Um, so, is there any precedent for patenting or not patenting a novel use of a previous technology or even earlier in history?
[41:12.350 --> 41:14.050]  Um, you know, just like any device?
[41:14.490 --> 41:15.090]  Well, okay.
[41:15.270 --> 41:21.230]  So, when you're talking about a device, and, and you're talking about, you know, like a microphone.
[41:21.230 --> 41:22.990]  Since I have microphones in front of me.
[41:23.470 --> 41:27.810]  Um, that device has a structure to it.
[41:28.390 --> 41:32.950]  And, you know, that's one way of claiming a, a patent, uh, claiming an invention.
[41:33.110 --> 41:35.090]  And another way is through a process.
[41:35.430 --> 41:39.190]  So, that device already exists.
[41:39.470 --> 41:43.350]  You didn't invent it, even if you find some new way of using it.
[41:43.650 --> 41:46.910]  What you might be able to do is get a patent on a process.
[41:46.910 --> 41:51.850]  A new process that implements this device for some novel use.
[41:52.430 --> 42:00.470]  And, you know, if nobody has used a microphone to stir, you know, cake batter or to, to, to, to do, you know, to go to war.
[42:00.610 --> 42:00.950]  I don't know.
[42:01.170 --> 42:06.530]  If nobody has used the device for that purpose before, then that's a legitimately new process.
[42:06.970 --> 42:10.870]  And you would be able to, I don't know, depends on the thing, you might be able to get a patent.
[42:15.560 --> 42:16.180]  Hey there.
[42:17.200 --> 42:19.840]  So, um, thank you for that very informative discussion.
[42:20.260 --> 42:26.000]  But what I, um, a whole other aspect of software is that they are also, uh, eligible for copywriting.
[42:26.340 --> 42:26.780]  Yes.
[42:27.100 --> 42:32.480]  So, and, uh, for those, uh, copyrights, the processes for copyright and patents work very differently.
[42:32.840 --> 42:32.940]  Yes.
[42:33.000 --> 42:38.500]  So, my question would be, given that software, this is a question I've actually done some responding on and some writing about.
[42:38.500 --> 42:50.100]  So, given that the software already exists, um, given that it already exists in the realm of copyright, and that it is eligible for copyright, does the case for, uh, continuing software patents make as much sense?
[42:51.080 --> 42:58.020]  Well, this is not the only, um, sort of situation where the, the realms of intellectual property cross over.
[42:58.100 --> 43:02.800]  There's also substantial cross over between trademark law and copyright.
[43:02.800 --> 43:07.920]  Um, in, in terms of, like, even just like a, a, a sculpture.
[43:08.180 --> 43:11.460]  You can copyright your sculpture, and you can also get a design patent on it.
[43:12.040 --> 43:14.480]  Um, there are lots of places of cross over.
[43:14.580 --> 43:23.960]  I don't think the fact that there's room in copyrights for software removes software from the world of patents.
[43:24.320 --> 43:27.040]  Um, or, or even makes a, a very strong case for it.
[43:27.140 --> 43:29.460]  Because ultimately what they're protecting is two different things.
[43:29.460 --> 43:38.760]  Um, the, the copyright is, is there to protect against your very specific expression of this software.
[43:39.000 --> 43:39.300]  Right?
[43:39.360 --> 43:42.200]  You're talking about, I am writing a, I'm writing a new thing.
[43:42.420 --> 43:42.740]  Right?
[43:42.800 --> 43:44.380]  It's protected on a couple of different levels.
[43:44.580 --> 43:45.900]  There's the, the bear code.
[43:46.680 --> 43:48.200]  Um, there's sort of the framework.
[43:48.440 --> 43:50.940]  And, and, and copywriting software is very complicated.
[43:51.120 --> 43:54.360]  I'm, I do not remember the whole structure of it off the top of my head.
[43:54.480 --> 43:59.040]  But basically there are different levels of where you can get copyright protection for a piece of software.
[44:01.040 --> 44:03.960]  But, patents is looking for something different.
[44:04.160 --> 44:07.580]  In the world of copyright, you're specifically protecting against copying.
[44:08.520 --> 44:12.800]  Somebody who saw what you did and said, okay, I'm gonna do that same thing now.
[44:13.500 --> 44:16.840]  In the world of patents, it doesn't matter if they copied you or not.
[44:16.940 --> 44:18.500]  It's an absolute monopoly.
[44:18.500 --> 44:24.880]  And what you get out of that is, is the know-how.
[44:25.100 --> 44:27.660]  The, that society gets out of that is the know-how.
[44:27.840 --> 44:32.320]  Now we know exactly how to perform this piece of software.
[44:33.200 --> 44:34.560]  I don't know if that, if that...
[44:34.560 --> 44:36.500]  Well, I guess I guess I have a follow-up question then.
[44:36.680 --> 44:36.740]  Yeah.
[44:36.940 --> 44:41.920]  Given that reverse in software, unlike many other fields, reverse engineering is extremely common.
[44:43.020 --> 44:46.600]  So, you don't have to know how something is made on the details of...
[44:46.600 --> 44:49.480]  You don't need to know the step-by-step patent instructions that you put in software.
[44:49.860 --> 44:53.380]  It's this code with this data structure in order to replicate something on the back end.
[44:53.980 --> 44:54.080]  Sure.
[44:54.080 --> 44:55.100]  So, if the...
[44:55.100 --> 44:55.900]  Because what is...
[44:55.900 --> 45:08.440]  So, what you're telling me in this case, and you know, we know this from patent trolls as well, is that people, you know, if someone creates a photo sharing site, then someone else says, oh, I had this patent for a photo sharing site, even if the code is working extremely differently.
[45:08.740 --> 45:11.380]  So, the actual patentable steps are not the same.
[45:11.680 --> 45:17.220]  And when a patent troll threatens to sue, you don't really have the ability to know what they're suing on or taking a look at their patents either.
[45:17.660 --> 45:18.960]  So, it's getting into patent troll discussions.
[45:18.960 --> 45:33.260]  But the point is, it's not so much that having copyrights on software would invalidate patents on software by the nature of what copyright and patents are, but in the nature of their intended effects of promoting innovation and competition in the marketplace.
[45:33.500 --> 45:36.020]  Do you think that copyright alone enough could do the job?
[45:38.120 --> 45:38.640]  Um...
[45:38.640 --> 45:38.820]  No.
[45:39.560 --> 45:40.000]  I mean...
[45:41.580 --> 45:42.860]  That's my gut reaction.
[45:45.160 --> 45:45.680]  It's...
[45:46.360 --> 45:49.520]  Copyright is a very difficult to enforce thing.
[45:49.820 --> 45:54.260]  If you credit the idea that patents are beneficial to innovation.
[45:55.620 --> 45:59.100]  Copyrights don't really provide that.
[46:00.120 --> 46:00.720]  Um...
[46:00.720 --> 46:02.260]  Copyrights protect against copying.
[46:02.780 --> 46:04.440]  And that's really all they, you know...
[46:04.440 --> 46:09.840]  When you, when you have a copyright lawsuit, you have to prove that they actually copied it from you.
[46:10.760 --> 46:11.300]  Right?
[46:11.500 --> 46:14.480]  And so, that doesn't give you much in the way of protection.
[46:15.320 --> 46:17.260]  And so, if, if, if you actually...
[46:17.260 --> 46:17.580]  If you...
[46:17.580 --> 46:17.800]  If you...
[46:17.800 --> 46:20.040]  And I'm sure many of the people here do not.
[46:20.180 --> 46:38.820]  If you sign on to the idea that offering people patents makes them more willing to, to make new things, then just offering them a copyright is not really going to get them there because it doesn't give them the same way, the same ability to monetize that invention.
[46:40.960 --> 46:41.380]  Okay.
[46:45.050 --> 46:45.670]  Hi there.
[46:46.310 --> 46:46.610]  Uh...
[46:46.610 --> 46:46.750]  Hi.
[46:47.430 --> 46:47.850]  Uh...
[46:47.850 --> 46:58.010]  I'm sorry if they find this to maybe be a silly question, but, um, I've had this idea, um, which is, I've heard, I don't even know if it's true, but, uh, somebody, somebody might be able to tell me.
[46:58.630 --> 47:07.550]  Uh, WD-40, that product, that, that silicone product that you use, uh, well, to make things, uh, well, for whatever you use silicone for.
[47:07.690 --> 47:09.370]  If they stick and they shouldn't stick?
[47:09.610 --> 47:09.810]  Yeah.
[47:10.410 --> 47:10.530]  Yeah.
[47:11.050 --> 47:21.130]  Um, it, um, that I've heard, but actually that formula, the formula isn't patented to, uh, the product itself isn't, doesn't actually have a patent.
[47:21.370 --> 47:21.670]  Right.
[47:21.750 --> 47:31.830]  And that is why actually it's, uh, very well, uh, and nobody actually managed to copy the, their, uh, their part of, uh, nothing is as good as it apparently.
[47:32.030 --> 47:32.130]  Sure.
[47:32.130 --> 47:46.590]  So would, by analogy to the situation with software, would, would it, could you, could you think of any, of any situation in which it would be better not to seek for a patent for, on a product like that?
[47:46.730 --> 47:47.330]  Oh, absolutely.
[47:47.650 --> 47:49.490]  Um, that actually comes up quite a bit.
[47:49.970 --> 47:54.350]  Um, the, the realm of trade secret protection is pretty prominent in the law.
[47:54.530 --> 48:00.810]  Um, and a lot of places do choose to use it because trade secret protection doesn't end after 20 years.
[48:00.810 --> 48:05.670]  If you can keep that secret going forever, you have it forever.
[48:06.590 --> 48:11.690]  Um, trade secret protection though is, like, each of them has their own advantages and disadvantages.
[48:11.910 --> 48:15.690]  Trade secret protection can go forever, but you have to, like, be really careful.
[48:15.890 --> 48:19.030]  And it involves a lot of, like, it has to be a secret.
[48:19.310 --> 48:24.830]  And you have to, like, be able to show that you are putting forth legitimate effort towards making this a secret.
[48:25.330 --> 48:33.010]  And if you aren't keeping, you know, if, if you aren't making efforts to keep it a secret and somebody steals it, well, that's your own fault and the court's not going to give you anything for it.
[48:33.130 --> 48:34.890]  Yeah, basically the Coca-Cola formulas.
[48:35.210 --> 48:35.310]  Right.
[48:35.490 --> 48:38.630]  I mean, the way Coca-Cola does it, they have that secret formula.
[48:38.870 --> 48:42.330]  They, I don't know, use, they have, like, three different...
[48:42.690 --> 48:43.010]  Speculating.
[48:43.010 --> 48:43.730]  It's very...
[48:43.730 --> 48:44.970]  There are various different places.
[48:45.190 --> 48:46.650]  They bring the different chemicals together.
[48:46.830 --> 48:50.070]  They mix them together so that nobody has the whole formula.
[48:50.590 --> 48:50.690]  Right?
[48:50.950 --> 48:54.770]  That's the level of effort that's required to keep a trade secret.
[48:55.210 --> 48:56.270]  These days, especially.
[48:57.970 --> 48:59.610]  So people get patents.
[48:59.870 --> 49:04.410]  And frankly, when you have a patent, like I was talking about earlier, it reduces transaction costs.
[49:04.610 --> 49:06.810]  Because once you have that patent, you can license the patent.
[49:06.990 --> 49:08.370]  You can sell the patent.
[49:09.410 --> 49:13.690]  It just makes things kind of easier for you for those 20 years.
[49:14.230 --> 49:15.250]  Thank you so much.
[49:15.390 --> 49:15.690]  No problem.
[49:17.170 --> 49:29.850]  So you said this ruling acknowledges that software patents as a concept are valid, but outlined certain ways in which they can not be validly put together.
[49:29.990 --> 49:36.230]  Did they outline any examples or concepts of what would be a valid software patent?
[49:36.230 --> 49:37.030]  Yeah.
[49:40.930 --> 49:51.030]  The one that I kept coming back to was the case of Diamond v. Deer from the 1980s, which was about a piece of software that was used to determine when to stop heating a piece of rubber when it was perfectly cured.
[49:52.510 --> 50:08.290]  And, you know, there have been a variety of other cases in the years since then, maybe not necessarily getting up to the Supreme Court level, but at least, you know, at the Federal Circuit level, acknowledging software patents as being something that they exist and they're okay to have.
[50:09.730 --> 50:14.410]  So I think that we have managed to reach a graceful dismount here.
[50:14.410 --> 50:18.330]  If there are no more questions, thank you all for coming.