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(Between square brackets: time codes + text written on the video, but transcribed as it will have to be translated for ST in other languages; (?) marks passages to be checked --Calmansi 10:02, 17 April 2010 (UTC))

[0:02 - 0:06] [Washington D.C. d. 9. november 2009]

[0:09- 0:15] [Disse mennesker står i kø for at høre mundtlig procedure i den første softwarepatentretsag bragt for højesteret i næsten 30 år]

[0:14 - 0:16] (Unidentified voice ?): Vil I præsentere jer selv og stave jeres navne?

[0:15 - 0:17] (Unidentified voice ?): Jeres navne, titler, det hele?

[0:17 - 0:21] Bilski: Jeg er Bernie Bilski, B I L S K I

[0:23 - 0:30] Warsaw: Rand, R A N D, Warsaw, W A R S A W

[0:31 - 0:32] (Unidentified voice ?) Vil i fortælle hvad det dybest set er i har opfundet?

// TODO:

[0:33 - 0:58] Rand: The invention is a guaranteed energy bill, which is like a budget bill without a true op (?), and it's a method of hedging both sides in the transaction. So behind giving consumers -- energy consumers -- a guaranteed energy bill, there's a lot of mechanics, and the mechanics involve financial transactions between energy consumption or any energy consumers and the energy providers.

[0:59 - 1:03] [These men hope to gain a patent on a business method of hedging commodity risk]

[1:03 - 1:07] Rand: And that's what the invention is in a nutshell. It's a method of generating guaranteed bills for consumers and also protecting energy company earnings.

[1:13 - 1:16] [The outcome of the cse will have profound implications for software]

[1:17 - 1:48] Dan Ravicher (Public Patent Foundation): The Bilski case itself is, someone applied for a patent on a business method or a software and the patent office rejected it. And now this is that person suing the patent office, saying: "You have to grant me that patent." This case is about what does it mean to be a patentable process. And so, since software patents fall into the category of processes -- because they're not the machine, and not a composition of matter, which are some of the other categories of things that are patentable -- this case will define what it means to be a patentable process.

[1:47 - 1:53] [Patent absurdity - how software patents broke the system...]

[1:52 - 1:57] (unidentified voice?): What about Justice Roberts? He said, you know, basically your patent involves people picking up the phone and calling other people.

[1:57 - 2:28] J. Michael Jakes (Attorney for Bilski): It could be reduced to that level as to certain acts that are performed, but it's much more than that. It has to do with selling a commodity at a fixed price to one party, selling to a different party at a different fixed price, identifying counter-risk positions. When you look at claim four in the patent -- we have a thing called claims which describe really what the invention is -- there's a long mathematical formula in there -- that didn't exist in nature or anywhere in the literature -- that these very inventive folks came up with.

[2:28 - 2:41] Ben Klemens - author, 'Math You Can't Use': Once upon a time, math was not patentable, and now it is. And we can have someone like Bilski coming in and saying: "Yes, you know, I worked hard on this mathematical equation and therefore I should have a patent on this information processing method here."

[2:42 - 2:45] (unidentified voice?): You mentioned in your claim that there is a very long calculation showing that

[2:45 - 2:46] Warsaw (?): There is.

[2:46 - 2:50] (Unidentitified voice?): Do you think a strong calculation or good math is a basis for a sof- for a patent?

[2:50 - 2:51] Warsaw (?): It can be.

[2:51 - 3:02] Ben Klemens: The basic process of writing software is, you take a broad algorithm of some sort. Some means of doing something with abstract data and then you (?) variable names.

[3:02 - 5:07] Ben Klemens (?): So for our first derivation, let's start with just a simple matrix, a matrix of values. We find the mean of each column: Mu 1, Mu 2, Mu 3. And we're gonna define Y to be X minus X - I'm sorry: X minus Mu for each column. Now, if we have some other factor X, we can take X dot S and find the projection of X onto this space. This is called the singular value decomposition. Now, here is the trick, here is the great part. Now let's say inst... let's say this first row, X1 equals sexuality. Let's say X2 equals: Do you own cats? And X3 equals, I don't know, affectionateness. Ok, so now, we'll also say that, let's take a vector J1 equals Jane, Jane's responses on this survey. Let's say J2 equals Joe's responses. Now let's do the same projection as we did before. We're going to take X dot S - we're going to take J1 dot S. We're going to take -- substract that from J2 dot S. We're going to find the distance between these two points, and we're going to call that "compatibility". And in that simple step, we have we have derived patent number 6,735,568. The trick, the trick of our derivation was that before -- with the singular value decomposition -- we had abstract numbers. What the guys at eHarmony did to get this patent was to assign names to our variables. So instead of an abstract X1, we have "sexuality". Instead of an abstract X2, we have "a preference for cats". And by making those assignments, by setting variable names in this manner, they were able to take an abstract concept and turn it into a patentable device.

What we want to do, according to the heads of our patent institutions, is take mathematics and slice it up into as many slices as possible and hand those slices out and say, well if you do a principal component analysis, if you multiply matrices for, uh, for dating sites, well ok, we give that to eHarmony. If it's for equities we'll give that to State Street. And so on and so forth. And uh, what we're giving out is basically exclusive rights to use mathematics, to use a law of nature, in whatever context. And what we're getting in return is basically nothing.

The patent a is government grant in the U.S. that rises out of the constitution.

The framers included a provision for granting exclusive rights to inventors in our constitution. The belief was that that was important in order to reward people who had made technological advances that would benefit society.

The rights that they are granted are not the rights to do the thing that they invented, but the right to exclude others from doing that thing.

So the idea was, you have a machine or a thing, which is not previously described in any literature, and which no skilled mechanic could figure out how to make given was is described in the literature, and for that you get a patent.

The basis for determining what is patentable subject matter has continued to evolve over the last 200 years of our national existence.

In 1953 the Patent Act was modified by Congress to add the words "or processes" to the word "product" in describing what could be patented.

The Congress which did that was plainly thinking about processes of industrial manufacture. Processes that produced something at the other end. Float glass on molten tin and it will become flat or whatever.

And it's unlikely that anybody thought of "process" at that time in terms of computer software because we didn't have applications on computer software for many years after that last revision of the Patent Act.

Back in the late 70s the patent law was interpreted such that you couldn't patent software. It was considered mathematical algorithm or law of nature.

The legal world changed. The environment was quite different starting with some decisions by the Supreme Court like Diamond v. Diehr.

The patent applicant was coming in with a new process for curing rubber. The temperature and the preciseness of the temperature is essential in curing rubber (?) and the innovation that was being patented in this case was an algorithm to monitor a thermometer that was basically in the process and determined when the rubber needed to be released and cooled.

And they said processes for curing rubber are patentable, there's nothing new about that, the fact that they use a computer in implementing it shouldn't change anything.

The Supreme Court makes it clear that you cannot patent software because it is only a set of instructions or (?) and abstract laws of nature, algorithms aren't patentable in the U.S. itself. And, however, then there was the creation of the Court of Appeals for the Federal Circuit.

The problem being solved, in some sense, begins with the fact that trial court judges always hate patent cases. And the reason trial court judges hate patent cases is for a single trial judge -- a lawyer who has spent his or her life doing litigation -- a patent case in which she or he is going to be required to find detailed facts about how paint is made or how computers work or how radio broadcasting operates is an opportunity just to be made into a fool.

Congress is attempting to change the system in which patent cases are litigated. But instead of changing who tried patent cases, Congress left the non-specialist district judge in charge of the trial. And then created a new Court of Appeals called the Federal Circuit whose job it was to hear all appeals from patent cases. Rapidly of course this court filled up with patent lawyers. And the patent lawyers then made the law in the Court of Appeals that applied to all those district judges who where still making non-specialist decisions of which they were afraid. Naturally the Federal Circuit turned out to be a place which loved patents, and its chief judge Giles Rich, who lived to be very, very old and died in his late nineties, was a man who particularly loved patents on everything. The Federal Circuit court under Giles Rich sort of broke Diamond against Diehr loose from its original meaning and came to the conclusion that software itself could be patented.


[16.27] RMS: Let's imagine that in the 1700s the governments of Europe had decided to "promote" the progress of symphonic music (or as they thought promoted) with a system of musical idea patents, meaning that anyone who could describe a new musical idea in words could get a patent, which would be a monopoly on that idea, and then he could sue anybody else that implemented that idea in a piece of music. So, a rhythmic pattern could be patented or a sequence of chords or a.. a set of instruments to use together or any idea you could describe in words. Now, imagine that it is 1800 and you are Beethoven and you want to write a symphony. You are going to find that it is harder to write a symphony that you won't get sued for than write a symphony that sounds good. Because to write a symphony and not get sued, you are going to have to thread your way around thousands of musical idea patents. And if you complained about this, saying this was getting in the way of your creativity, the patent holders would say, "Oh, Beethoven, you are just jealous because we had these ideas before you. Why should you steal our ideas."

[17:46 - 18:10] Ciaran O'Riordan, End Software Patents: People have been making music for thousands of years. There was never any need for patents in the field of music. And since the computer industry has made programming possible, people have been developing software as well, right since its beginning, there was never a need to have patents in this field in order for the activity to happen.

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