IMO, the issue with software patents isn't that businesses patent algorithms or code(which they don't do). Instead, it's that technology moves too fast for the monopoly time that's granted. When it comes to software, what's innovative 5 years ago is common place and often a commodity today.
1. A method for fooing bars, comprising A, B, and C.
2. A method in accordance with claim 1, wherein said fooing further comprises doing D.
3. A system for fooing bars, comprising A, B, and C.
4. A system in accordance with claim 3, wherein said fooing further comprises doing D.
5. A computer program product for fooing bars, comprising A, B, and C.
6. A computer program product in accordance with claim 5, wherein said fooing further comprises doing D.
This covers several different legal precedents; even if "method" gets invalidated as an approach, the patent may still work under the "system" or "computer program product" theories.
This gets taken to a ridiculous extreme; many such patents describe the computer program product as a physical object consisting of bits on a medium such as a CD or disk, and include as a figure an illustration of such a medium.
There's a huge difference between design and implementation.
It seems to me the difference is a question of "real world implications". For sorting integers using quicksort, yes that's just a mathematical algorithm: an algorithm that performs operations on mathematical entities. The moment you apply that algorithm to something that affects the real world, that's when it becomes patentable. E.g. sorting restaurant recommendations by applying quicksort to the individual rating. This is no longer simply a mathematical algorithm; the entities being manipulated have a 1:1 correspondence with entities in the real world. It is recognizing the usefulness of this particular correspondence between mathematical entities and real world results that is patentable.
Sorting is a mostly solved problem. You take a group of numerical things and end up with a group of numerical things that are now sequential. You can either do it slow, fast, or stupidly.
If you have the example of ratings of restaurants, you're going to have some kind of group of numbers. If you want them sorted, you use a predefined and should-be unpatentable algorithm and sort the damned list. But your business model shouldn't be sorting a predefined list, because that's a really stupid business model and any fucking person can do it. Your business model should be to find a unique and novel way to rate restaurants (social graph, Zagat, number of cockroaches found in soup, etc.). The outwards facing UI of that rating system should be entirely disconnected from what your patent does. The order of that list is, yes, directly connected to how you rate restaurants, but the end result itself is not exactly how you rate them, it's just representative of the end result of your rating.
Think of Page Rank. Anyone can crawl the web and get a list of pages on the internet. Anyone can then sort that list by whatever means they want. It's not the sorting that is patentable, it's the association of some qualifier into a numerical representation of which gets sorted by another un-patentable system that is the "secret sauce".
Which is ultimately why "its all just algorithms" is a uselessly reductionist view of things, in the same way "all creative works are just strings of bits" is uselessly reductionist, or even "all physical objects are just globs of atoms" is uselessly reductionist. It's not a useful level of abstraction at which to view the issue.
Ultimately you have to tie it back to the purpose of the property right. Why does someone have a legal right to a particular glob of atoms, or a particular string of bits, or a particular series of steps of some algorithm in some specific context?
That doesn't make the situation any better, in my mind. In fact, in many ways that makes it worse.
Step 1) File patent for using algorithm (everyone knows) to do (some obvious application of that algorithm).
Step 2) Wait around for some other poor sucker to do the hard work of actually implementing "your" idea.
Step 3) Profit!
2) That assumes "implementing the algorithm" is the hard part.
I agree with your #1 though in that I think you should absolutely be required to have a working prototype to file a successful patent. A lot (though not all) of my objections to software patents would go away if that were enforced.
Which is why we look at the invention instead of the effort. So even though I'm sure Einstein worked really hard on E=mc^2, laws of nature are still unpatentable, because it's a description rather than an invention.
The problem is that no matter how hard it is to discover it, we can't give you E=mc^2, because it only describes things. You can actually have implementations that predate the discovery, because it's possible to build something without being able to describe how it works. We had X-ray machines before we had E=mc^2 even though it describes their operation. Allowing a patent on anything following the description would allow too wide a scope. You would be claiming too many things you didn't invent.
But algorithms are the same way. They're not inventions, they're abstractions. There is a really cool ad hoc routing algorithm where you send packets along random routes but tag the routes, and then the more/faster packets get to a destination using a particular route, the more you prefer that route for future packets. Sounds like something that should be patentable if algorithms are patentable, right?
But it's called the ant algorithm. Guess why.
Algorithms are pure abstractions. Those little buggers crawling around leaving scent tracks everywhere have certainly never heard of your algorithm and have no capacity to produce any sort of a binary, but there they are infringing your would-be algorithm patent.
So you say, a-ha! We'll just make it an invention by applying a context. Then the wildlife will be able to escape liability (and hopefully stop serving as pesky prior art).
The issue is that the context is totally facile. The interesting thing is the algorithm, not the context. It's just taking the unpatentable thing and adding "on a computer" and claiming it as an invention. Sometimes they try to be subtle and instead of saying "computer" they say "ad hoc wireless network" or "anonymizing P2P network" or some other thing the meaning of which is always "computer that could benefit from using this unpatentable algorithm" as if to pretend that the limitation is meant as an actual restriction rather than merely a vague description of the circumstances under which the algorithm is expected to be beneficial.
I'm actually surprised anybody would say that. To use an example, you're saying it's more difficult to implement quicksort than it was to come up with it in the first place?
IME, compared to thinking up an algorithm, implementing them is very easy.
I know this wasn't your example originally, but it does exemplify a common problem: There is nothing special about sorting restaurant recommendations vs. sorting some other such thing. If you have an unpatentable algorithm which is good at sorting lists of anything it shouldn't become patentable just because you claim it as "sorting restaurant recommendations." Mixing an unpatentable algorithm with a totally obvious application of it shouldn't get you a patent.
>Ultimately you have to tie it back to the purpose of the property right. Why does someone have a legal right to a particular glob of atoms, or a particular string of bits, or a particular series of steps of some algorithm in some specific context?
So why should someone have a legal right to a particular series of steps of some algorithm in a specific context? Why should adding an arbitrary context make it patentable if it wouldn't have been otherwise?
Totally correct. The first requirement to patent something it that it should not be a trivial invention (something that is so easily derived from something else). But most patents are, however, trivial in the software world. That is a big issue.
The burden of proof needs to be on the patent holder to show, by a preponderance of the evidence, that they invented something nonobvious. That's a pretty low bar, but would require them to present some evidence, which they currently don't have to do.
In any case, as I understand, once the patent has been issued, the courts generally defer to the PTO on the obviousness question. I think plaintiffs in infringement cases should have to demonstrate nonobviousness again in order to proceed. While it would be better for the PTO to be more of a stickler on this point, the fact is that we don't give them the kind of resources they would need to do as thorough a job as they should do on every patent.
For example, the PTO could maintain a team of engineers specifically for obviousness testing. When an application comes in, they would pose the problem the patent claims to solve to a selected panel of maybe 4 or 5 of them, who would have a couple of days to sketch some possible solutions. If they come up with the same idea as in the patent, that should pretty much kill it.
But as I say, we don't spend enough money on the PTO for them to do that. Since we don't, having the courts re-evaluate each patent on this point seems the only solution.
Having a patent over a completely new system means that as the one to birth that system, you get to have some control over it for a short while.
That was the original intent, anyway.
And that should simply be copyright for the expression of the algorithm.
the problem i have with algorithmic parents is that computer algorithms trend tend to be quite composable. other patents in other field aren't, e.g. pharma parents. when one algorithm could be such fundamental to a large amount of different apps, a patent on it gives the patent holder way to much than they deserve.