Privately Owned Algorithms?

Mine -- down to the integer!!

It’s mine!!  All mine!!

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Can one patent abstract ideas?  Or claim equations as intellectual property?

The U.S. Supreme Court will likely make a decision in the near future concerning the constitutional scope of patents.  The decision could have profound implications pertaining to the legality of free software — and possibly have ramifications for fractal software, fractal programmers, and fractal artists.

David Bollier, writing in, lays out the dimensions of the court case:

At the heart of the case known as Bilski v. Kappos is a “business method patent” application that sought to obtain a patent for a method of managing the risk of bad weather through commodities trading. Bilski did not build any invention or device, as traditional patents have required; he came up with a method of doing business that orchestrates human knowledge and interactions, for which he believes he deserves a patent.

But this is the passage (and question) that caught my eye and caused me to reflect on possible ripple effects in the fractal art community:

But should the government be in the business of granting legally protecting monopolies on abstract ideas such as “business methods” and mathematical algorithms? The outcome of the case is being watched closely by the free software community because it could negatively affect the future of collaboratively developed code.

Can algorithms be privately owned?  Maybe — at least that is what some legal precedents seem to suggest.  Bollier clarifies:

Patents are given out so freely by the U.S. Patent and Trademark Office that companies have the legal rights to all sorts of abstract ideas, some of which may be embedded in software. “One-click shopping” was one of the earliest, most infamous business method patents granted. “If you’re selling online, at the most recent count there are 4,319 patents you could be violating,” said David E. Martin, chief executive of M-Cam Inc., an Arlington, Va.-based risk-management firm specializing in patents.

A key issue in the Bilski case is the appropriateness of granting patents for software and other sorts of collaboratively produced Internet works. It once made sense to grant patent monopolies over inventions developed by individuals or companies, but now that the Internet makes online collaboration so powerful and efficient, should anyone be allowed to privatize collectively generated knowledge and then charge premiums for it?

I predict a massive mess in Fractaldom if the court ruling codifies algorithms as deserving of patentability.  Imagine the chaos (no pun intended) if Ultra Fractal‘s poobah-programmers decided to patent their formulas, or even parts of them.  UF, which relies heavily on user-based formulas and openly encourages tweaking, not to mention its ability to combine lots of soon-to-be patentable private property into layers, might become nearly unusable since any image made with UF could be stuffed with patent violations.

In fact, in a worse case scenario, the creative forces behind Ultra Fractal, who did a bit of liberal borrowing when initially creating the program, might find themselves facing some retroactive monetary compensation to some of these folks:

One for all -- and none for us...

We gave freely of ourselves so that UF’s author and select courtesans could prosper.

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Currently, “pure knowledge” like algorithms is not patentable. However, if the high court rules in favor of more stringent patent restrictions, the result could be especially devastating for open source programming.  Would innovation still occur when some aggregated components suddenly become patented?

And, artists, what about all of “your” images made with free fractal software?  If the author of such software can soon own many of the formulas you used, will you have to pay a kind of licensing fee to display those images — or else be forced to remove them from any public sphere?

For whatever it’s worth, according to court reporters, the SCOTUS justices generally did not warm to the idea of broadening the scope of patents.  According to The Prior Art:

Across the board, the justices indicated a deep skepticism toward the invention described in the patent application at issue.


Some of the justices went even further — expressing both a fair amount of disdain for the idea of granting broad “method” patents and a concern that ruling in favor of the petitioners would lead to patent grants on fundamental ways of conducting business or organizing human behavior.

Still, even if the U.S. high court rules against such an amplified view of patents, courts elsewhere in the world might begin to weigh in on such matters.

I sense this case could have far-flung knottiness for most of us, but I admit my own shortcomings here.  I am not an attorney, nor am I well versed in legal matters.  Subsequently, I’d welcome hearing from any of OT’s readers who might be able to shed more light on what is and is not at stake here.


If you’re interested, you can view an admittedly subjective thirty-minute video discussing the origins of software patents and their detrimental effects.  It is entitled Patently Absurd: How Software Patents Broke the System.  It was made by filmmaker Luca Lucarini and financed by the Free Software Foundation.

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