That's the sweat of the brow argument: If somebody worked really hard then they should get a cookie. But that doesn't work. If Bob is a savant and he designs a brilliant hand-off algorithm in five minutes, should that not be patentable because he didn't have to work very hard, but an algorithm that isn't even as good should be because a much worse engineer spent a lot longer to design it? The result would be to reward mediocrity and waste.
Which is why we look at the invention instead of the effort. So even though I'm sure Einstein worked really hard on E=mc^2, laws of nature are still unpatentable, because it's a description rather than an invention.
The problem is that no matter how hard it is to discover it, we can't give you E=mc^2, because it only describes things. You can actually have implementations that predate the discovery, because it's possible to build something without being able to describe how it works. We had X-ray machines before we had E=mc^2 even though it describes their operation. Allowing a patent on anything following the description would allow too wide a scope. You would be claiming too many things you didn't invent.
But algorithms are the same way. They're not inventions, they're abstractions. There is a really cool ad hoc routing algorithm where you send packets along random routes but tag the routes, and then the more/faster packets get to a destination using a particular route, the more you prefer that route for future packets. Sounds like something that should be patentable if algorithms are patentable, right?
But it's called the ant algorithm. Guess why.
Algorithms are pure abstractions. Those little buggers crawling around leaving scent tracks everywhere have certainly never heard of your algorithm and have no capacity to produce any sort of a binary, but there they are infringing your would-be algorithm patent.
So you say, a-ha! We'll just make it an invention by applying a context. Then the wildlife will be able to escape liability (and hopefully stop serving as pesky prior art).
The issue is that the context is totally facile. The interesting thing is the algorithm, not the context. It's just taking the unpatentable thing and adding "on a computer" and claiming it as an invention. Sometimes they try to be subtle and instead of saying "computer" they say "ad hoc wireless network" or "anonymizing P2P network" or some other thing the meaning of which is always "computer that could benefit from using this unpatentable algorithm" as if to pretend that the limitation is meant as an actual restriction rather than merely a vague description of the circumstances under which the algorithm is expected to be beneficial.
Which is why we look at the invention instead of the effort. So even though I'm sure Einstein worked really hard on E=mc^2, laws of nature are still unpatentable, because it's a description rather than an invention.
The problem is that no matter how hard it is to discover it, we can't give you E=mc^2, because it only describes things. You can actually have implementations that predate the discovery, because it's possible to build something without being able to describe how it works. We had X-ray machines before we had E=mc^2 even though it describes their operation. Allowing a patent on anything following the description would allow too wide a scope. You would be claiming too many things you didn't invent.
But algorithms are the same way. They're not inventions, they're abstractions. There is a really cool ad hoc routing algorithm where you send packets along random routes but tag the routes, and then the more/faster packets get to a destination using a particular route, the more you prefer that route for future packets. Sounds like something that should be patentable if algorithms are patentable, right?
But it's called the ant algorithm. Guess why.
Algorithms are pure abstractions. Those little buggers crawling around leaving scent tracks everywhere have certainly never heard of your algorithm and have no capacity to produce any sort of a binary, but there they are infringing your would-be algorithm patent.
So you say, a-ha! We'll just make it an invention by applying a context. Then the wildlife will be able to escape liability (and hopefully stop serving as pesky prior art).
The issue is that the context is totally facile. The interesting thing is the algorithm, not the context. It's just taking the unpatentable thing and adding "on a computer" and claiming it as an invention. Sometimes they try to be subtle and instead of saying "computer" they say "ad hoc wireless network" or "anonymizing P2P network" or some other thing the meaning of which is always "computer that could benefit from using this unpatentable algorithm" as if to pretend that the limitation is meant as an actual restriction rather than merely a vague description of the circumstances under which the algorithm is expected to be beneficial.