> 8. The judgment notes that an ANN may be implemented in hardware, for example a physical box with electronics in it (see [14]), or in software where the ANN exists as a computer emulation, for example where a conventional computer runs a piece of software which enables the computer to emulate the hardware ANN (see [18]).
> 9. The judgment compares hardware and software implementations of an ANN (see [32]-[62]). For hardware implementations, the judgment notes there is no program to which the program exclusion of s.1(2)(c) can apply (see [43]). For software implementations, the judgment holds it is appropriate to look at the emulated ANN as, in substance, operating in the same way as the hardware ANN it emulates. If the hardware ANN is not operating as a program, then neither is the emulated ANN (see [56]).
> 10. Thus, *the judgment concludes an emulated ANN is not a program for a computer* (see [58]). As a matter of construction, the claimed invention is not a computer program at all (see [61]). So, the computer program exclusion is not invoked by the claimed invention ([61]).
It's very strange. It's also not clear to me why you couldn't construct that any software is a hardware emulation, and therefore use that as a claim of prior art. Seems to be a fundamental contradiction.
I'm not sure how the UK avoided software patents before now based on this argument though. As in:
- literally implement ANN in hardware
- patent it
- someone emulates your patented design in software (or even hardware of some parts slightly abstracted to make "emulation" of your patent fast).
What happens now? Either all emulatable hardware patents are useless, or there's a backdoor into software patents (synthetically put it in hardware first).
Software runs on hardware, specifically, computers. There's no non-hardware way to run software. The court is seriously confused and shouldn't be analyzing anything more complicated than a toaster.
I will patent that. The judges being bereft of both intelligence and abundantly full of property and pomposity, I do ordane that both parties and judiciary are far outside of the f*king boat in which they are engaged in rowing.
Turn off the machine and show me the circuit? It is not there. It should be copyrightable... But since created by machine, it should not be. Scrooge should come early for them. I shall argue on.
Yes it's ridiculous. Literally all working software can be implemented in hardware. In fact all working software is implemented in hardware. There's no other way to run software than in hardware.
Much like the EU patent convention that also excludes computer programs as such, programs for generic computers routinely get patented. It seems it is the opinion of esteemed patent judges that "as such" means it only applies to programs that do nothing other than exist as computer programs, in some pure, Platonic sense. If they actually do anything, they are no longer "as such" (but if they do nothing, that is not a patentable invention anyway, software or not).
In other words, it is the learned and wise decision of the honored judiciary that the entire sentence excluding computer programs is there just for decoration. Like flavor text on a Magic card. As a layperson I naturally defer to their expert judgement.
> For hardware implementations, the judgment notes there is no program to which the program exclusion
Puzzling argument. This logic can apply to every single computer program (i.e. it can be implemented in hardware), which means the exclusion will never apply, which means the judge's reasoning is wrong.
But he has a "Sir" in his title.
That is guaranteed to ensure maximum accuracy and flawless logical thought.
I've no problem burning some karma on this one, the "BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES" are basically a shop to "buy a judgement" from somewhere sounding authentic. Absolute scam.
To whoever "won" the appeal, well done, you have a software patent, "good luck"; in his opening article he even points out to you in his opening statement this can't be applied to program for a computer. Money well spent eh.
Someone should tell them that any program for a universal Turing machine could be implemented as an ordinary Turing machine. That any computer program could be implemented as an ASIC.
Section 12 seems to contain the real reason why this is a technical contribution:
> The judgment accepts an argument that moving data outside the computer system, in the form of a file that is transferred, provides an external (outside world) technical effect.
> When coupled with the purpose and method of selecting the file’s contents, this fulfils the requirement for a technical effect which avoids the computer program exclusion.
Sounds like these sorts of "decision matrix"-type ANNs are going to now be patentable if there is some kind of application of "special sauce" that can be used to select files or some other external component.
Thanks for the link to the Statutory Guidance, which provides some very helpful commentary, and I feel that points 12 and 13 are of some interest:
12. The judgment accepts an argument that moving data outside the computer system, in the form of a file that is transferred, provides an external (outside world) technical effect (see [73]-[74]). When coupled with the purpose and method of selecting the file’s contents, this fulfills the requirement for a technical effect which avoids the computer program exclusion (see [76]).
13. The judgment further holds that a trained hardware ANN is capable of being an external technical effect which prevents the computer program exclusion from applying (see [78]). The judgment holds there ought to be no difference between a hardware ANN and an emulated ANN in this respect.
If I am not mistaken (though there is a good chance I am), the judge could have made a narrow judgement in favor of the plaintiff on the basis of point 12 alone. Inventions that use a suitably-programmed computer in a process that produces an "external technical effect" are not prima facie ruled out (though they do have to satisfy a requirement of sufficiency of description, which, as the judge noted in his opening remarks, is not being ruled on here, together with (I think) non-obvious novelty and utility)
Point 13 may have much broader implications, as it asserts that any trained software ANN is, in itself, an "external technical effect", and presumably patentable if it satisfies other requirements such as sufficiency.
The first issue with this is, as you and others have pointed out, that the justification given for this claim (the possibility of a functionally-equivalent implementation in hardware) works equally well for any computer program - ANN programs are not different in this regard. If followed to its logical conclusion, this principle would seem to completely nullify the "program for a computer" exclusion.
A second point that might be made here is that the difference between a trained ANN (whether implemented in software or hardware), and itself in its untrained state, are data - specifically, the weights. This might imply that the intellectual property issue here is a matter of copyright, not invention.
Finally, and perhaps most broadly, if a trained ANN is, in itself, an "external technical effect", does that open the door to the patenting of ANN training methods? (Maybe they already are?)
So if I implement a software version of the ANN with one small change, my software version is not an emulation of the hardware ANN, so the patent does not apply?
the doctrine is that only things that are 'novel' and 'non-obvious' (to a 'person having ordinary skill in the art') can be patented, and any accessible published material (among other things) is considered 'prior art' for determining this. So unless your 'one small change' fundamentally alters the behavior of the 'black box' in a novel way, one would probably say that it is not novel and pretty obvious for a person having ordinary skill in the art to emulate a slightly modified version the hardware in software. of course, vector search on music also seems pretty obvious to me. I don't actually know how this plays into infringement specifically rather than trying to patent something though.
> For hardware implementations, the judgment notes there is no program to which the program exclusion of s.1(2)(c) can apply
This is complete nonsense, but not surprising because the judge probably has no idea what a program is. In France, a few years ago, when discussing the matter of Web cookies, some authority described cookies as “little programs” ¯\_(ツ)_/¯
Patent appeal for artificial neural network, the appellant argued that the ANN was self-trained and not directly programmed with detailed logical steps, thus, it shouldn't be considered a computer program under the exclusion.
I am not a patent lawyer but my understanding is that a patent requires that the application show that the invention is reproducible. And if it's reproducible then the logical steps must therefore be sufficiently detailed :/
Hmm, seems someone's managed to patent something fairly trivial... the same thing as OpenAI's Clip, but instead of with image-text pairs, with music-text pairs; for vector retrieval. And apparently neural networks aren't software because they can be implemented as hardware...
If I understand this correctly, the court decided that the programming part is an implementation detail therefore it is not the primary subject of the patent claim. As a result, the judge reasoned that the claim is not primarily to a computer program, thus not invoking the exclusion .
Sounds fair to me. If the actual invention claim is patentable is another story though, it's just that being implemented in code doesn't make it a computer program automatically.
> It is not implementing code given to it by a human. The structure, in terms of the emulation of uneducated nodes and layers, may well be the result of programming, but that is just the equivalent of the hardware ANN. The actual operation of those nodes and layers inter se is not given to those elements by a human. It is created by the ANN itself.
So therefore the inventor is a computer? I thought that was settled already.
In the common law system that's judges' job, to via precedent create law for things that aren't clearly specified in legislation. If the populace/legislature dislike it, then they can pass explicit legislation on the issue, which will override the precedent set by the judge.
Aren't UK-style law systems kind of built upon precedents set by the interpretation of the law by judges? I don't like it either but that's how I've seen the differences explained
I am not a lawyer, but if I recall correctly there are three types of law : statute (what parliament legislates), common law (that which has built up over the centuries as "just the way we expect the law to work" and precedent ("this was unclear at one point but courts down the years have been convinced that what it means is x"). Appeals are usually on the basis that the court has misunderstood or misapplied the law and the outcome of these appeals form the precedents for future cases.
The law exists; the judge didn't make it. But the law is expressed using loose terms that aren't closely-defined, so it falls to the judge to interpret the law within the circumstances of the case.
This case is an appeal; if a judge in an appeal case interprets the law in a particular way, that sets a precedent that should be followed by judges in lower courts, if the circumstances are similar. That's not "making law"; laws here are written to be interpreted by judges, because that's how it works.
Just fyi, (and because I'm showing off), the United States has issued patents on software-based recommending systems. I know because mine was one of the very first ones issued. Maybe the very first, depending on how you look at it.
If you're curious, I understand it can be an okay introduction into the field of music recommending. It as about as easy to read as such patents can be, since I wasn't smart enough to do any work near as complex as the stuff you machine learning folks do these days. A friend of mine called it "toothpick AI" back in the day (it issued in 1995.) Have a look here:
Here's my own website about the patent and the adventure. Someday I need to add something there, about how I could do anything as dumb as let Microsoft be the owner of it. It's a long story, which I could elaborate on if anyone is interested. Anyway:
Video Gift Box tanked in the end, unfortunately. A really great group of guys gave a good run at it though, and I made a few bucks by licensing the patent to them while they tried. But thanks!
Ha, I knew someone would start off by adding a hostile comment of that form. What can I say? If you had been James Marshall, and you noticed the gold that kicked off the California gold rush, do you think you would you have left it there in the water, because you think you would have been able to see into the future, and see the terrible ecological consequences that gold mining sometimes brings? No, you would have picked it up, like anybody else.
> I decry the current tendency to seek patents on algorithms. [...] There are better ways to earn a living than to prevent other people from making use of one's contributions to computer science.
Ha, I knew someone who likes/has patents would quickly avoid-justify and deflect the peer pressure and related shame.
What's more important is if you're doing something good with whatever gains a patent may be providing you; but I also what detriment there may be and how much in fact your patent (and others) actually suffocate and slow the advancement of humanity and the quality of life for all.
But you just mentioned that you had a patent, a thing thing that exists to protect innovators from being copied by competitors to leave a fair time to cash out on your work, but ultimately a large corporation got ownership of it. How is this not a joke?
Not sure what you mean. I have been joking some here in this thread, but overall, the thing was one of the most serious things in my life. As to how MS ended up with it, I probably chose the wrong partners for the startup where we tried to monetize it.
At the end of the startup, there was a 20 minute phone call, where I had to decide to either keep my patent and probably ruin my chances to marry the love of my life, or to sign over the patent, take some cash and stock, start my new life with my fiancé, and hope that I could come up with another patent that good later in my life. I chose wisely.
Why do we always have to prove this in one direction? You could take the opposite stance and say that we don't need any patents because look at open source and how stuff is created without anyone being paid crazy sums of money.
>1. You're basically patenting algorithms, which aren't supposed to be patentable.
Hardware patents just cover algorithms that have steps involving arranging atoms.
>2. There seems to be an assumption that anything new is unobvious and therefore patentable. And in computing that isn't really the case.
It isn't really the case in anything. That no one has bothered to patent yellow wrenches with beveled edges doesn't mean they should be patentable. That the software equivalent is currently more likely to be granted isn't really an issue with the idea of patenting software.
>A patent is supposed to describe how to actually do the thing. Software patents by and large don't do that.
That's an issue with particular software patents, not one particular to patenting software.
>hardware patents just cover algorithms that have steps involving arranging atoms.
Yes. Further steps have been done. Its the difference between copywriting the idea for a book, and copywriting an actual book.
>That the software equivalent is currently more likely to be granted isn't really an issue with the idea of patenting software
It's an issue with the current incarnation of software patents.
That's like saying IC cars aren't bad for the environment because we 'could' fuel them all with biofuels and have a carbon capture thing on the exhaust.
In the real world an IC car can rightfully be criticised for being bad for the environment.
>That's an issue with particular software patents, not one particular to patenting software.
Again, the issue doesn't have to be inherent to be valid.
1. Why is it any different for hardware? Hardware is nowadays designed on computers too. It's all computers until someone sends it over to Asia where it is then manufactured.
2. Again, why is that different for hardware?
I really wonder why my friends who studied mechanical engineering have the privilege of making money with their inventions, while I cannot ...
That hardware was developed on computer is irrelevant.
A piece of hardware designed with a ruler and protractor is indistinguishable from one designed on a computer.
Re 2. If you 'invented' some trading cards based on HN members. That would be new in the sense that it's never been done before. But that doesn't make it patentable. We all have a sense that that's just an obvious iteration on a theme. But trading cards based on HN members, on a computer somehow becomes patentable.
You can make money from your invention. There's still copyright. If you want to take an algorithm and turn it into an actual product, provide an implementation then I'm not averse to patenting.
Currently we're in a situation where you could come up with the idea of listening to music 'on a computer' patent that very broad, basic thing. Without putting any work into an actual implementation.
I agree with your basic point, but this has very little to do with the difference between hardware and software, but boils down to the question of whether there is an actual implementation.
Maybe that should be the requirement then, instead of saying "software patents cannot exist, but hardware patents can".
Nah, more appropriate would probably be to ridicule me for letting it out of my hands. I could have been an epic patent troll! (Except for the fact that the huge teams of patent lawyers at Microsoft, Amazon, Apple etc. would have probably squashed me and invalidated it.)
"BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES"
These guys are some absolute jokers, really not worth taking any of their decisions seriously.
None of their decisions are enforceable even inside the UK, its basically just a pit to give employment to washed out lawyers who are friends of whoever.
UK legal system has gone the same way as their healthcare system.
Is a summary that, because the ANN could be implemented in hardware, it is not necessarily strictly software, and therefore patentable?
Edit: There's a more digestible summary here: https://www.gov.uk/government/publications/examination-of-pa...
> 8. The judgment notes that an ANN may be implemented in hardware, for example a physical box with electronics in it (see [14]), or in software where the ANN exists as a computer emulation, for example where a conventional computer runs a piece of software which enables the computer to emulate the hardware ANN (see [18]).
> 9. The judgment compares hardware and software implementations of an ANN (see [32]-[62]). For hardware implementations, the judgment notes there is no program to which the program exclusion of s.1(2)(c) can apply (see [43]). For software implementations, the judgment holds it is appropriate to look at the emulated ANN as, in substance, operating in the same way as the hardware ANN it emulates. If the hardware ANN is not operating as a program, then neither is the emulated ANN (see [56]).
> 10. Thus, *the judgment concludes an emulated ANN is not a program for a computer* (see [58]). As a matter of construction, the claimed invention is not a computer program at all (see [61]). So, the computer program exclusion is not invoked by the claimed invention ([61]).