God in the machine: encryption algorithms and the abstract exemption to patentability.

• Jurisdiction: United States
• Date: 22 June 2012
• Author: Hager, Jeremy R.

1. 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? Hovering on the outskirts of this debate is the fate of DRM, a heavily algorithm-based technology that currently enjoys patent protection. (12) At the center of the nebulous DRM cloud is its most vital technological component, encryption. It is this patented (13) encryption technology that remains most vulnerable in Bilski's wake, and its future could make or break the industry as a whole.

2. THE SUM OF ITS PARTS: AN OVERVIEW OF DIGITAL RIGHTS MANAGEMENT TECHNOLOGY (14) AND THE RELEVANT LAW

   There really is no generally-accepted definition for "Digital Rights Management." (15) Put simply, DRM is the layering of both technological and legal means (16) to prevent and discourage third parties from gaining unauthorized access to digital content. The scope of DRM is very broad. In their simplest forms, DRM systems act as copy-prevention systems by preventing, or at the least, impeding, consumers from copying digital content from various tangible sources, such as DVDs and CDs, cell phones, and eBook readers. (17) In their more complex forms, DRM systems differ in scope, from facilitating diverse complex business models, such as pay-per-use (18) systems, to secured communication, such as wireless (Wi-Fi) networking and Bluetooth technologies, (19) to secure distribution systems, such as music (20) and video downloading/streaming, (21) and secured web browsing, or even online transactions. While the DRM systems that exist are multifarious, most share one common trait. The common trait in these systems, and arguably the most important facet of DRM as a whole, is encryption. (22) Encryption is essentially the process of modifying data systematically, so as to make that data unreadable, while allowing for the data to be restored to its original state by an (in theory, anyways) authorized user. (23) The science of using secret codes or methods to prevent unauthorized reading of content is called "cryptography," (24) and is crucial to encryption.

   Cryptography is by no means a new science. It has existed as a means for securing information for centuries, dating back to antiquity. Spartan commanders used a cipher system involving batons and paper, the combination of which was called a "scytale," to encode messages. (25) Gaius Julius Caesar communicated with his field generals during military campaigns with a relatively simple form of cryptography, the "Caesar Cipher," in which the letters were shifted three places forward in the alphabet. (26) The commander in receipt of the encrypted correspondence would simply shift the letters backwards three spots in the Roman alphabet, and read the newly formed message. (27) During the middle ages, European governments relied on coded vocabularies, called nomenclatures, to communicate sensitive diplomatic information. (28) Allied success at capturing and breaking the German aptly-named "Enigma Machine" and its code, respectively, contributed greatly to the Allied victory in World War II. (29) Historically, with new advances in technology, came the need for more advanced copyright laws. This "intertwining" of technology and copyright, wherein the progress of the former demands expansion of the latter, has spiraled onward with the march of time, demanding new copyright protections with new advances in technology. (30) But the story of cryptography in regards to DRM begins in the mid-20th Century. The creation of new, more accessible content-copying technologies through the 1960s and 1970s, such as copy machines, audio recording devices, and video recording devices, made it much easier for the average consumer to copy and distribute media and content, which rendered content-producing industries all but helpless to enforce copyright protections. (31) This technologically-induced expansion of inexpensive means for dissemination of information paved the way for newer technologies to do the same for digital content preceding the turn of the century. (32) As expected, these technological revolutions necessitated the expansion of the protections afforded to content producers. What resulted was a partnership between industry-created technological protections--DRM--and legislative expansion--the Digital Millennium Copyright Act. (33)

   The first thing one must realize when examining DRM encryption technologies and DRM software is that while they both are considered synonymous, insofar as patentable subject matter claims (that being a "process" or "method" patent claim), they are intrinsically different. While not all systems that fall into the DRM classification use encryption, encryption is the most common means of copy protection and the core technology most associated with DRM. (34) Oftentimes DRM encryption technology is deployed via software. (35) The algorithms that make up the bulk of encryption schemes are based in advanced mathematical concepts, and the difficulty of breaking these encryption schemes depend on the keylength and the system/software implementing the encryption. (36) As time progresses and cryptographic research advances, new algorithms and new investors arise to put money into patenting new encryptions devices. (37) It is of no surprise then that the increase in software patenting has directly led to a rise in the need for new cryptographic techniques. (38) A DRM encryption device inventor will typically apply for a patent on his encryption technology as a "method claim," (39) which recites the series of steps that comprise the method. (40) Thus, a patent application for a DRM encryption technology will be considered by the patent examiner as a process patent.

   1. Is for Algorithms

      1. Encryption: The Common Denominator

         The technology employed in DRM is vast and complex. (41) A basic understanding of the encryption and decryption process is necessary before delving into the issues of patentable subject matter of these encryption devices. Whether the technology is the type of DRM found on DVDs, (42) downloadable music, (43) or streaming digital content, (44) most DRM technologies employ patented encryption devices, or technologies that encrypt or scramble, using an algorithm, the digital content so that it is unreadable without the decryption key. (45) Encryption is the most common means of copy protection, and is the core technology associated with DRM. (46) The content-provider will then license, to device manufacturers, the encryption scheme, with the encryption and decryption keys necessary to first encrypt their content, rendering it unreadable, and...