The small explosion in the issuance of educational patents that we are witness to today is funded by some impressive corporations and institutions:
A closer look on the main firms in terms of their educational related technological portfolio shows that more and more the constitution of this industry is now animated by very large and diversified companies. If we observe their core business, we can characterize these large companies in four main groupings.
Dominique Foray and Julio Raffo, A small explosion: patent in educational and instructional technologies and methods; what do they tell us? 2009 www.epip.eu/~ Blue emphasis added.
The responsibility of the corporations and institutions who are enjoying the protection of their many education patents is the no small one of uplifting education from its historic stagnation:
The educational sector is often characterized by experts as a sector suffering from an innovation deficit and a structural inability to advance knowledge and know-how at the same rate as what is occurring in some other sectors. Baumol qualifies the educational sector as a non-progressive one: productivity rises only very episodically and, as a result, the unit labor costs are increasing all the time. A bunch of literature is devoted to the problem raised by this innovation deficit and productivity stagnation: how to cure the Baumol's disease in the educational sector? The development of an educational science, the connections between research and practices, the processes of knowledge codification and transfer and above all the kind of incentives that teachers and schools need to get to innovate are the "usual suspects" which are empirically studied in order to implement profound changes [...].
Dominique Foray and Julio Raffo, A small explosion: patent in educational and instructional technologies and methods; what do they tell us? 2009 www.epip.eu/~
However, the evidence that such a distinguished and weighty sponsorship, and operating under the protection of so many patents, is doing education much good is hard to come by. What is prominent, rather, is evidence that education is not merely failing to improve, but that it is collapsing — some of which evidence can be viewed by clicking the images below:
I have a question for you. Do you think that students in Washington State should learn multiplication and division with mastery by the end of the fifth grade? — M. J. McDermott
I've just watched the most infuriating video I've ever seen in my life. Apparently, they're teaching our kids a new way of doing math. — Anonymous
Well, that way was more confusing, and it was like all over the place. — Third-Grader
Our teachers [...] spent a tremendous amount of time developing their own systems and connections for how to approach different math problems, to the point where everyone was doing something different, even for a simple addition problem. — Sue Middleton reading from Shannon DeMita
During the past decade, my colleagues and I have noticed a dramatic decrease in the math capabilities of incoming freshmen at the University of Washington. — Cliff Mass, professor of atmospheric sciences at the University of Washington
Well, basics are fine, but you can't go back. The world's changed. The digital age is still being born. — Tim Brennan, Ridgwood, NJ Interim Superintendent
The sickest part of the scam is the claim that kids who can't do the simplest arithmetic are learning to "think about" math. This claim is used to keep kids ignorant. — Bruce Deitrick Price
If the kids in America couldn't do this, then they're really stupid. — Belgian student
What might be going wrong is that the well-meaning corporations and institutions highlighted in blue above are getting their educational advice from people who unfortunately are unable to point to any instance of remarkable learning that they themselves have ever produced, and unable even to point to their favored methods being used by anyone anywhere to create remarkable learning. As is to be expected, relying on the advice of someone who has himself never managed to produce exceptional learning results in products that fail to produce exceptional learning. I trust that it is a safe assumption that if Panasonic, Philips, Sony, Hitachi, Siemens, IBM, Yamaha, and so on, had ever discovered that their educational products were lifting children into the 99th percentile, then they would have splashed the good news across our television screens. Even more so if they had placed any student into the 99.99th percentile. If Toyota or Honda or Mitsubishi or Nissan get exceptional mileage from their automobiles, they go out of their way to let the public know it; thus we may be justified in drawing negative inferences when they maintain silence on the question of exceptional performance originating from their education patents.
And yet a methodology does exist which produces startling results, as for example in the TwelveByTwelve Pilot Study demonstration that the math a ten-year-old, nominally in grade five, is capable of, once obstacles to his learning are removed, is not merely facility in multiplication and division (the modest goal some Americans are shown striving to achieve in the videos above), it is writing the calculus examination below:
Extra-Sessional Examination July 1989 Mathematics 140 Calculus I Page 1
Extra-Sessional Examination July 1989 Mathematics 140 Calculus I Page 2
A total of six 99th, and three 99.99th, percentile scores can be found shared by Kirsten, Alexa, and Marko on math or quantitative reasoning dimensions at the bottom of TwelveByTwelve Pilot Study. The only reason that all nine scores weren't 99.99th percentile is that some tests don't report decimal places. Ninety-ninth percentile or higher is the level of performance that optimal educational practice produces, and that can be implemented today. If current educational patents aren't producing that level of performance, and more especially if their deployment is accompanied by deteriorating performance, then they are more likely owned by patent trolls than by educators who have discovered useful inventions.
And the economic benefit of effective education might be estimated as ... what? Well, two estimates of the effect of raising American students to merely the level currently met by Canada or Germany can be read below, and while reading which it should be remembered that both Canada and Germany have educational systems which by TwelveByTwelve standards must be considered as ineffectual and in dire need of replacement. Where the US aspires to raise its educational performance to the level of Canada, it is the Canadian standard in whose stratosphere TwelveByTwelve students soar. The benefits of the US adopting TwelveByTwelve, then, must be expected to be immensely greater than those aspired to by Eric Hanushek in the two excerpts below:
United States schools fail international competition
International Achievement in Education
The above reflections point to three conclusions relevant to the question of patents and patentability:
Educational development is a large undertaking which requires considerable capital investment, which patent protection can help attract for such reasons as are offered in the parallel case of software development:
The need of the incentive of patents for software is at least as great as that of the incentive available for hardware, because: "Today, providing computer software involves greater ... risk than providing computer ... hardware...."
Amicus curiae brief of the Association of Data Processing Service Organizations in Flook (1978), as quoted in Diehr (1981)
But while patent protection may indeed be as indispensable in education innovation as it is in every other kind of innovation, the question remains of what kind of educational innovation should patent protection be extended to, and more particularly whether the Transformational Syllabus (TS) method of manufacturing examinations is patentable.
For the reader's convenience, what appear to be the five most relevant cases bearing on the question of patent protection for educational invention are linked below.
The second-last case, In re Bilski (2008), stands out from the others in two ways: it is the only one of the five that is not a US Supreme Court decision, and it is the only one to have caused disruption and dislocation in the patenting field.
|CASE||COURT||YEAR||ORIGINAL SOURCE||TBT COPY|
|Gottschalk v. Benson||USSC||1972||Benson||Benson|
|Parker v Flook||USSC||1978||Flook||Flook|
|Diamond v Diehr||USSC||1981||Diehr||Diehr|
|In re Bilski||CAFC||2008||In re Bilski||In re Bilski|
|Bilski v Kappos||USSC||2010||Bilski||Bilski|
|USSC = United States Supreme Court|
CAFC = Court of Appeals for the Federal Circuit
TBT = TwelveByTwelve.net
The CAFC in In re Bilski 2008 was widely regarded as having undermined the validity of possibly thousands of existing patents, and more generally as having brought into question the legitimacy of patenting business methods. Such understandable fears were laid to rest, however, when the USSC performed its defanging operation in Bilski (2010).
THE CAFC DID NOT ORIGINATE THE MACHINE-OR-TRANSFORMATION TEST IN ITS 2008 JUDGMENT
Whereas it is possible for press coverage and other commentaries to leave the impression that the machine-or-transformation test was given birth by the CAFC in In re Bilski (2008), and which new test the USSC welcomed and admired in its Bilski (2010), the reality is that machine-or-transformation is an old test which the USSC can be found reciting in each of the first three cases tabled above, together with the qualification that it must not be regarded as excluding other tests.
Thus, a statement of the machine-or-transformation test, with qualification, can be found in Benson (1972):
It is argued that a process patent must either be tied to a particular machine or apparatus or must operate to change articles or materials to a "different state or thing." We do not hold that no process patent could ever qualify if it did not meet the requirements of our prior precedents.
Perhaps removing two of the three negatives in the sentence immediately above will clarify what might be its intended meaning: "We hold that a process patent can sometimes qualify even if it does not meet the machine-or-transformation test."
And also in Flook (1978):
The statutory definition of "process" is broad. An argument can be made, however, that this Court has only recognized a process as within the statutory definition when it either was tied to a particular apparatus or operated to change materials to a "different state or thing." As in Benson, we assume that a valid process patent may issue even if it does not meet one of these qualifications of our earlier precedents. [citations removed]
And again in Diehr (1981):
Recently, in Gottschalk v. Benson (1972), we repeated the above definition recited in Cochrane v. Deener, adding: "Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines." [citations removed]
Above, then, we see a single instance of the CAFC in In re Bilski (2008) being right but unoriginal. Below, in contrast, we will see five instances of the CAFC being original but wrong. Although the USSC in Bilski (2010) did affirm the CAFC judgment that the Bilski patent be denied, it did so for reasons other than those cited in In re Bilski (2008), and found fault with the CAFC reasons and reasoning:
CAFC ERROR #1: MANDATING MACHINE-OR-TRANSFORMATION AS THE SOLE TEST OF WHAT CONSTITUTES A PROCESS
The USSC contradicts the CAFC decision that machine-or-transformation is the exclusive test:
Under the Court of Appeals' [CAFC's] formulation, an invention is a "process" only if: "(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing." [...]
The machine-or-transformation test, then, may be summed up as being a test of long standing, and with the USSC repeatedly and consistently affirming that it may not be regarded as the only available test. The CAFC in In re Bilski (2008) promoting machine-or-transformation to the status of the exclusive test must be regarded as an aberration which the USSC corrected in Bilski (2010).
CAFC ERROR #2: FAILING TO RECOGNIZE THAT THE MACHINE-OR-TRANSFORMATION TEST ROSE TO THE HEIGHT OF ITS APPLICABILITY IN AN EARLIER ERA
The USSC does not merely demote machine-or-transformation to the status of a "clue", it indicates that it is a clue that has seen its greatest applicability during a bygone era, the Industrial Age, and which age has been supplanted by the Information Age:
It is true that patents for inventions that did not satisfy the machine-or-transformation test were rarely granted in earlier eras, especially in the Industrial Age [...]. [...] But times change. Technology and other innovations progress in unexpected ways. For example, it was once forcefully argued that until recent times, "well-established principles of patent law probably would have prevented the issuance of a valid patent on almost any conceivable computer program." [...]
Of course the USSC does not imagine that the Information Age having begun, industrial innovation has ceased; it intends to convey only that Information-Age innovation must be increasingly recognized and fostered even as industrial innovation continues.
CAFC ERROR #3: DOUBTING THE LEGITIMACY OF BUSINESS METHOD PATENTS
Section 101 similarly precludes the broad contention that the term "process" categorically excludes business methods. The term "method," [...] may include at least some methods of doing business. [...] The Court is unaware of any argument that the "'ordinary, contemporary, common meaning,'" [...] of "method" excludes business methods. [...]
CAFC ERROR #4: INTERPRETING PATENT LAW NARROWLY WHEN CONGRESS INTENDED IT TO BE UNDERSTOOD BROADLY
Whereas the CAFC pushed in the direction of excluding non-traditional patent varieties, the USSC seizes every opportunity to move in the direction of inclusion:
Section 101 defines the subject matter that may be patented under the Patent Act:
Section 101 thus specifies four independent categories of inventions or discoveries that are eligible for protection: processes, machines, manufactures, and compositions of matter. "In choosing such expansive terms ... modified by the comprehensive 'any,' Congress plainly contemplated that the patent laws would be given wide scope." [...] Congress took this permissive approach to patent eligibility to ensure that "'ingenuity should receive a liberal encouragement.'"
CAFC ERROR #5: FAILING TO RESPECT CASE-LAW PRECEDENTS
The USSC agreed that the Bilski patent should be denied, but not as a result of failing the machine-or-transformation test which is largely irrelevant to business methods, but because Bilski appeared to be attempting to patent an abstract idea, and abstract ideas are unpatentable, an option which the USSC admonishes the CAFC for having overlooked:
The patent application here can be rejected under our precedents on the unpatentability of abstract ideas. [...] It may be that the Court of Appeals [CAFC] thought it needed to make the machine-or-transformation test exclusive precisely because its case law had not adequately identified less extreme means of restricting business method patents, including (but not limited to) application of our opinions in Benson, Flook, and Diehr.
DID THE USSC HAVE HIGH PRAISE FOR THE CAFC DECISION?
Wikipedia is capable of leaving the impression that the USSC praised the In Re Bilski decision:
In their decision, handed down on June 28, 2010, the Supreme Court rejected the machine-or-transformation test as the sole test of process patent eligibility based on an interpretation of the language of § 101. The majority [USSC opinion], however, had high praise for the Federal Circuit [CAFC] opinions, advising that "[s]tudents of patent law would be well advised to study these scholarly opinions."
Given that the CAFC in In re Bilski did not originate the machine-or-transformation test, and given that whatever it did originate proved to be wrong, then one may wonder how the USSC could have voiced "high praise" for it. Consulting the original USSC statement provides the answer:
The United States Court of Appeals for the Federal Circuit heard the case en banc and affirmed. The case produced five different opinions. Students of patent law would be well advised to study these scholarly opinions.
That is, if the CAFC produced five different opinions, then one of these was the majority opinion, which the USSC did not praise highly, but rather criticized strongly for its many errors, and the other four must have been individual opinions, carrying no force of law, but worth studying because they expressed the very criticisms of the CAFC majority opinion that the USSC voiced in Bilski (2010).
BILSKI PLACES NO OBSTACLES IN THE PATH OF PATENTING EDUCATIONAL METHODS AND PROCESSES
The USSC Bilski (2010) opinion can be taken to mean that no particular or unique obstacle exists to patenting educational methods or processes.
Most particularly, it is unnecessary, and even improper, to attempt to squeeze Information-Age inventions into the Procrustean bed of machine-or-transformation. Such an artificial exercise should be avoided because the USSC has demoted machine-or-transformation from an exclusive test down to a clue, and indicated that it is a clue that is applicable primarily to Industrial-Age inventions where it is an important clue, and inapplicable to many of the methods invented in today's Information Age. Furthermore, the USSC reaffirms that business methods can be patentable, and so if business methods have been freed of having to pass the inappropriate test of machine-or-transformation, then educational methods must be considered to have been freed of that burden as well.
One may be justified in regarding the USSC majority opinion in Bilski (2010) as having in effect erased the CAFC opinion in In re Bilski (2008) from the judicial record. "The outcome from the [USSC] decision might be best stated as 'business as usual' " [ patentlyo.com/~].
THE TEST THAT BILSKI (2010) RECOMMENDS IS ONE THAT TRANSFORMATIONAL SYLLABUS EXAMINATION-MANUFACTURING METHODOLOGY PASSES EASILY
It is not process patents that the USSC wants to block, it is the attempted patenting of abstract ideas, which may be taken to mean ideas that do not translate directly into a product which segments of the public will be eager to purchase because they appreciate the benefit that the product confers, and understand that they would otherwise be unable to supply that product for themselves.
TS methodology, then, is anything but an abstract idea because it manufactures a concrete product intended to be packaged and weighed and shipped — which product is the batches of Transformational Examinations, referred to as TEXAMS. The TEXAMS are prima facie unlike any examinations that have ever been employed before — they are both unique (meaning that every student's examination is different from every other student's) and equal (meaning equal in the average difficulty of the questions). Such unique-but-equal TEXAMS bring with them at least the ten benefits explained in detail at Explicit Transformational Syllabus, and which are listed without elaboration below:
provides students with an unlimited supply of maximally-relevant PRACTICE TEXAMS, indistinguishable from any imminent EVALUATION TEXAM, and therefore diagnostic of exactly how well the student will do on that EVALUATION TEXAM,
practically wipes out cheating,
enables benchmark comparisons, meaning on the one hand geographical comparisons, as of countries, or states, or schools, as well as historical comparisons, as for example comparisons of how well students are doing today compared to one month ago, or one year ago, or ten years ago,
permits students to take exams whenever they want, whether it's a day or two earlier or later than scheduled, as suits a student's timetable, or a year or two earlier or later, as suits a student's learning speed,
permits evaluation of student performance not just monthly or weekly, but daily, thereby quickly signalling to both student and teacher when some adjustment or intervention might be called for,
provides the standardization which makes competition possible at any level — interpersonal, intramural, intercollegiate, interstate, international — thereby harnessing in the interests of academic excellence the same powerful motivational device that presently serves athletics,
removes obstacles to learning such that student achievement is boosted to unprecedented highs,
removes examination defects, while at the same time making it easy to manufacture examinations of greater complexity than are available today,
raises student morale by removing frustrations and hidden inequalities,
lowers examination-preparation costs to an estimated one-thousandth of what they are today.
Take, for example, the Benson (1972) USSC decision which, as far as I can gather, describes Benson applying for a patent on an algorithm able to transform a number in base 10 (a decimal number) into a number in base 2 (a binary number), as for example transform the decimal number 17 to the corresponding binary number 10001.
But if Benson had gotten a patent on that algorithm, then that would have overlooked a substantial piece of prior art, namely that around 1968 Bill Gates had written his first computer program, and which was able to convert a number expressed in any base into the corresponding number in any other base — which requires a more complex and powerful algorithm than Benson's, and yet an algorithm that includes Benson's as one component.
Also, if Benson (1972) had gotten his patent, then he might have been able to sue me for also having written the same more-advanced program capable of converting a number expressed in any base to its equivalent expressed in any other base, and perhaps also for having taught that algorithm (among others) at Kiev's Institute of Mathematics in 1994:
The reality is that Benson's algorithm was so elementary that a thirteen-year old computer buff (Bill Gates) could write a more comprehensive version of it, and so elementary that a more comprehensive version of it could be taught in an introductory-programming course, with the teacher (me) being able to devise the algorithm on his own, without needing to consult Benson or anybody else to see how it might be done.
What Benson attempted to patent, then, was an algorithm that no one would have paid him to supply, and such that the only use of the patent to Benson would have been that of encouraging his threats of vexatious litigation so as to extort payment from programmers doing what comes naturally.