The Funny Things about Computer Algorithms, #1

As someone who has lived and breathed computer algorithms all her life, I am blessed to have had an abundance of opportunities to help procure protection for computer algorithms, namely methods that can be implemented by computer software or hardware. To this day, I continue to be fascinated by various perspectives from which computer-implemented methods are analyzed and applied. I feel so privileged that I would like to share some of the wonders and curiosities of working with computer algorithms.

Computer science has always had a special role in the patent world. For example, it was only in 1995, a few years after the Internet was created, that the United States Patent and Trademark Office (USPTO) decided to accept computer science degrees for purposes of being admitted to the patent bar[i]. Since then, computer technology has continued to break new grounds, and the patent community has continued to grapple with the implications.

Like a double-edged sword, while computer technology can induce intense awe, it can also cause deep confusion. For a patent attorney who is also a computer scientist, sometimes there is no greater joy than helping elucidate why and how various advances in computer technology should or should not be protected.

One way to start exploring relevant issues is to recall how the world turned before the advent of computers and the Internet. The world was dominated by physical products, and it was typically a new drug or a new mechanical device that improved people’s lives. That concept of an invention has apparently stuck around. These days, many patent offices, including the USPTO, are still advocating that an invention operating on digital data may not be eligible for a patent without a claim directed to interacting with a physical object in a tangible manner, as further discussed below.

Based on the traditional concept of an invention, an original concern was that some ideas that could be readily performed by a human were so “basic” that they should not merit patent protection. Examples include converting binary-coded decimals to pure binaries[ii], which is not only simple but also involves little more than an established relationship between numbers. However, this concern has been stretched to discredit many more ideas, including those that may be performed by a human theoretically but not in practice.

A good illustration of how computer algorithms are viewed through the patent lens today is Example 46 of the Patent Subject Matter Eligibility Guidance (“Guidance”)[iii]. This example concerns monitoring the behavior of livestock in response to environment and physiological conditions. This example includes four claims, and three[iv] of them that are system claims are discussed below.

Claim 1 of the example, which recites (A) a “processor” programmed for (1) “obtaining animal-specific information”, which can be produced by sensors placed at or near the animals, and (2) “monitoring” the animal-specific information” with respect to “past behavior of the animal" to determine whether any animal is “exhibiting an aberrant behavioral pattern”, is deemed illegible because the recited monitoring is found so “basic” that it can be routinely performed by a human. Yet Claim 2 of the example, which expands on Claim 1 by reciting a feed dispenser and the processor controlling the feed dispenser based on the results of the monitoring, is deemed eligible. The rationale given for the eligibility of Claim 2 is simply that the additional recitation in Claim 2 “links the judicial exception to a technical field” and “practically applies the exception”.

One consequence of including this example in the Guidance is that even when the claimed process does not sound so basic anymore but instead involves rigorous application of computer science principles, patent examiners hold onto the preconception that nothing but digital data is produced and remain oblivious to any technical or practical aspects. The fact that the analysis is clearly intended for and only useful in a specific application, such as improving animal health, carries little weight in determining whether the invention has a practical application when the claim does not explicitly extend to a field outside of computers.

Moreover, Claim 4 of the example, which recites (A) a “processor” programmed for (1) “obtaining animal-specific information” (but not for (2) “monitoring”) and (B) a “herd monitor” comprising a “radio frequency reader” and a “transmitter” for collecting and transmitting animal-specific information, is deemed eligible. Apparently, a processor performing “basic” monitoring does not reach the threshold for eligibility, but an ordinary herd monitor does. At this point, it is hard not to laugh at the disparaging treatment between an intangible process and a physical operation. At the end of the day, all ideas originate from the human mind, but apparently when they do not directly affect external, tangible objects, they can be considered much less sophisticated and thus much less inventive.

To me, it is not much of a thrill to work with “basic” methods, and it is even less fun to see the ingenuity in computer algorithms get buried in misconception or chaos.

It is not the intention here to put the USPTO under a spotlight, and I note that the series of subject matter eligibility guidelines provided by the USPTO are generally more valuable than the often-superficial court decisions. As more issues regarding subject matter eligibility are being addressed in improving these guidelines, it is not surprising that a sharper focus is being placed on identifying truly inventive ideas. At present, though, ill-fitting litmus tests of whether ideas could be performed by a human or other somewhat arbitrary distinctions are still being adopted.

As computer technology becomes increasingly integral to people’s lives, it becomes progressively difficult to accurately assess the state of the art, much less truly capture the inventive aspects of advances in computer technology using precise and meaningful claim language. This challenge was a main reason why many inferior computer-related patents came into existence in the first place. Overcoming this challenge should thus be a main goal in improving the quality of patent applications in technical fields. I look forward to the day when so-called “software inventions” are no longer deemed of lesser importance and the power of computer algorithms is universally recognized.

[i] PTO Official Gazette, 1179 0G 12 (Oct. 3, 1995).

[ii] Gottschalk v. Benson, 409 U.S. 63 (1972).

[iii] https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_app1.pdf.

[iv]

Claim 1	Claim 2	Claim 4
A system for monitoring health and activity in dairy livestock animals comprising: a memory;		A system for monitoring health and activity in a herd of dairy livestock animals comprising: a memory;
a display; and
a processor coupled to the memory programmed with executable instructions, the instructions including a livestock interface for obtaining animal-specific information, wherein ... ; and a monitoring component for (a) comparing the obtained animal-specific information with animal information from a herd database to verify an animal’s identity, and (b) analyzing the obtained animal-specific information to identify whether the animal is exhibiting an aberrant behavioral pattern as compared to past behavior of the animal, and (c) displaying the analysis results for the animal on the display.		a processor coupled to the memory programmed with executable instructions, the instructions including a livestock interface for obtaining animal-specific information for a plurality of animals in the herd, wherein... ; and
		a herd monitor including (a) a radio frequency reader for collecting the animal-specific information from a plurality of animal sensors attached to the animals in the herd when the animal sensors are within proximity to the radio frequency reader, each animal sensor having a radio frequency transponder, and (b) a transmitter for transmitting the collected animal-specific information to the livestock interface.
	wherein the monitoring component is further configured for (d) automatically sending a control signal to the feed dispenser to dispense a therapeutically effective amount of supplemental salt and minerals mixed with feed when the analysis results for the animal indicate that the animal is exhibiting an aberrant behavioral pattern indicative of grass tetany.

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