God in the Machine: Encryption Algorithms and the Abstract Exemption to Patentability

By Hager, Jeremy R. | Marquette Intellectual Property Law Review, Summer 2012 | Go to article overview

God in the Machine: Encryption Algorithms and the Abstract Exemption to Patentability


Hager, Jeremy R., Marquette Intellectual Property Law Review


  I. INTRODUCTION                                            483  II. THE SUM OF ITS PARTS: AN OVERVIEW OF DIGITAL RIGHTS      MANAGEMENT TECHNOLOGY AND THE RELEVANT LAW              485      A. Is for Algorithms                                    488         1. Encryption: The Common Denominator                488         2. Strength in Numbers                               490      B. The Industry Standard                                491         1. The Chain Rule                                    491         2. Sine on the Dotted Line                           493         3. The Prime Variable                                493 III. THE PATENT-DRM CONUNDRUM                                494      A. Knowledge and Not On Numbers                         495         1. Arithmus ex Machina                               495         2. "As a Whole"                                      497         3. A Slippery Slope                                  498         4. A Solution?                                       501      B. What the Circuit Giveth, the Supreme Court Taketh         Away                                                 502         1. Division of the Issues                            502         2. Remainder Questions                               503  IV. SOLVING THE EQUATION                                    505   V. CONCLUSION                                              506 

I. INTRODUCTION

Tensions were high when the Supreme Court announced its decision in the long-awaited Bilski v. Kappos, (1) a case expected to settle a dispute that had spanned more than thirty years (2) over the proper method for determining the patentability of processes under 35 U.S.C. [section] 101. Hanging in the balance were the futures of business methods patents, risk management patents, software patents, and other processes that skirted the bounds of 35 U.S.C. [section] 101. Some speculated an end to software patents in the United States entirely. (3) Others predicted clarification about the physical requirements of the "machine-or-transformation test," which had been determined by the Court of Appeals for the Federal Circuit as the sole means for determining patentable subject matter for process patent applications. (4) Anticipations and expectations were high for some clarity on the prevailing questions about software patents. Opponents to the existing system argued that current patentability standards were too broad, which overburdened the United States Patent and Trademark Office and hindered progress in e-commerce and other areas. (5) Proponents said that the current system worked just fine, as evidenced by the United States being a global leader in technological innovation. (6) What these interested parties got instead was little clarification on the machine-or-transformation test, or on software patentability as a whole. Rather, the Supreme Court confounded the debate by clarifying that the machine-or-transformation test was one means for determining whether a proposed process patent was eligible for patentability, but not the sole test (7) ... oh and abstract ideas still cannot be patented. (8) Obviously, this ruling fell considerably short of the paradigm-shifting ruling expected, and commentators on both sides of the software patent issue are in no better position than they were previously. The resounding question remained--what is the definition of "abstract?" It had long been established that algorithms, existing alone as mathematical formulae, were abstract, (9) but where does that leave software, which relies on algorithms to function and transform data? The Court reaffirmed its belief that Congress contemplated that patent's scope would be broad and encompassing, (10) while reiterating section 101's outer bounds. (11) The question further stood that, if software, which is classified as a process patent, must stand to subject matter muster, would it pass the machine-or-transformation test? Seeing as how the Supreme Court failed to rule definitively on the issue, if a software patent did not pass this test, would there be any other threshold for determining whether it was patentable, given the various tests hammered out by the circuit courts over the years? …

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