Internet Patents: Giving Away the Store

Dystopian novelist George Orwell liked to point out that, in the future, the government will twist and distort the meaning of words in order to enslave the citizenry. If you think he was nuts, read on.

Here's how we got to State Street, folks. The basic reasoning:

Incidentally, the judge who wrote for the State Street majority was none other than our old friend Giles S. Rich, then in his nineties. Rich survived long enough to interpret the very language that he himself had injected into U.S. patent law, namely, the substitution of “process” for the former word “art”. He died in June, 1999. The rest of us are stuck with the mess.

You can protest Internet patents until you're blue in the face, and boycott all you like, but you're wasting your time. The court's reasoning in the State Street decision is sound, if you accept the definition of “algorithm” laid down by the Benson decision. It's quite likely that the courts will affirm Internet patents. We're not going to get rid of Internet patents until the computer profession exposes the profound error that underlies this whole dysfunctional tradition of jurisprudence. That means getting rid of software patents, too.

Defenders of Internet and software patents will argue that strong intellectual property protection is needed for economic advancement. In this, they are correct, but they're leaving something out. Strong science is needed, too. In their boundless greed, some patent seekers will try to lock up the abstract concepts, mental processes, and scientific truths used by practitioners so that they can effectively monopolize a certain way of doing business. This is precisely what Amazon has achieved in its patent on one-click technology. The company defends its patent by stating that it spent thousands of hours developing the one-click method, which boils down to the use of garden-variety web programming to retain customer information from session to session. But all e-commerce sites spend thousands of hours developing their pages, and all e-commerce sites use cookies to retain customer information. What Amazon has obtained is a patent on the conceptual knowledge and mental processes that Web developers employ every day to create e-commerce sites.

Amazon's patent could be contested by looking for evidence of prior art, which would invalidate the company's patent claim; but such a solution is piecemeal. It does not address the underlying problem, which is essentially this: in obtaining patents on any software algorithm, patent seekers are succeeding, in effect, in obtaining a monopoly on the mental processes and abstract concepts routinely employed by software developers. Our attack on the patentability of software algorithms should begin at this level and proceed in accordance with the First Amendment. The U.S. Constitution guarantees not only freedom of speech, but also freedom of thought. By obtaining broadly phrased patents that restrain others from using the stock-in-trade mental steps and concepts used to develop web sites, Internet patent holders are violating the constitutionally guaranteed freedom of software developers to engage in the thought processes characteristic of their profession.

Internet patent holders will reply that their algorithms are novel, and therefore deserve protection. They are, after all, easily copied by others. This argument must be refuted as well, and once again, Turing points the way. His 1937 paper proves that algorithms, like the laws of physics, are timeless, immutable truths given by nature. If this were not the case, Turing's equations could not have shown that a certain class of problems exists which algorithms (and by extension, computers) will never be able to solve. Turing was able to project the science of algorithms forward to the point at which he could discern its ultimate limitations, just as Einstein was able to discern, thanks to his equations, that it is not possible to travel faster than the speed of light. Neither prediction could have been made unless both were dealing with the underlying truths of nature. Either you see this, or you don't; and if you don't, go back to college.

As two centuries of U.S. jurisprudence establish beyond question, the truths of nature cannot be subject to patent protection. Any such truth that is discovered in the process of technological development should be regarded, therefore, as if it were prior art. In short, there's a better way to combat Internet patents than chasing after old journals and Internet posts in search of prior art. Because algorithms are part of the truths given by nature, all algorithms, even novel ones, are prior art by definition. It therefore follows that there is no such thing as a valid patent on a software algorithm, including one for which no evidence of previous practice can be found to exist.

Internet patent holders will further argue that patents are needed to compensate those who try to discover new algorithms. This is the most absurd argument of all—and it is deeply offensive, as well, coming as it does from companies that may very well have accomplished little more than blending an existing business practice with the level of web publishing knowledge found in an introductory textbook. Most of the algorithms now in existence were invented before they became eligible for patent protection. Patent protections were not needed then. They are not needed now. There is no evidence that withdrawing patent protection for software algorithms would discourage further scientific progress in this area.

The whole lengthy, dysfunctional, Orwellian edifice of legal reasoning that supports Internet patents has a huge central flaw. It rests, ultimately, on a monumental misunderstanding of the science of algorithms (Newell 1986). The computing community must explain this to the public and lawmakers. And we must speak with a unified voice: Abolish software patents, and abolish them now.