U.S. Supreme Court Hears eBay Case Wednesday

siddesu wrote to mention an article on CNN Money about the upcoming U.S. Supreme Court patent suit involving eBay. We've previously mentioned the case. The SCOTUS will hear opening arguments on Wednesday, March 29th. From the article: "Lawyers for eBay and small e-commerce company MercExchange will square off over whether eBay should be barred from using its popular 'Buy it Now' feature, which infringes on two MercExchange patents. The case is being closely watched to see if the high court will scale back the right of patent holders to get an injunction barring infringers from using their technologies. Software companies complain they can be held for ransom by owners of questionable patents while drugmakers oppose any weakening of patent rights, which they say would chill their investment in new medicines."

Comments

Place Your Bids

[ExE122]

Lobbying efforts center on legislation being drafted by Rep. Lamar Smith, a Republican from Texas who chairs a key House subcommittee.

Ironically, Lamar Smith is available on ebay with "Buy It Now" options. I'm surprised Abramoff hasn't bought out the whole lot.

--
"Man Bites Dog
Then Bites Self"

Re:Place Your Bids

[DeathFromSomewhere]

The funniest part is that the top results are all $0.25

Even better than RIM v. NTP!

[_am99_]

Here is a patent that doesn't require an EE degree to see that it is
ridiculous. I hope these cases keep coming and coming so political
pressure mounts to reform a backwards intellectual property system.

Re:Even better than RIM v. NTP!

[Tim C]

Personally, I hope that the relevant people here in the EU are taking note, and that this lends more weight to the anti-software patents campaigners' message.

No offence, but I suspect that the US is going to have to seriously screw itself over on this issue in order to save the rest of the world from doing the same.

Re:Even better than RIM v. NTP!

[Anonymous Coward]

"Here is a patent that doesn't require an EE degree to see that it is ridiculous."

True. Instead, it requires a trial judge, an appellate panel of three judges, an appeals court of approximately a dozen judges (presumably eBay requested a rehearing en banc), and the entire eBay legal team to fail to show/rule that the patent is invalid. What are the odds that not one of these people had an EE/comp sci degree?

Every single one of those people has studied patent law extensively. Have you? Can you prove that the patent is invalid, and if so, why haven't you been hired by eBay or their counsel?

These are honest questions. You appear to believe that everybody involved in this case is an idiot, since the answer is so obvious to you. Yet instead of posting a comprehensible explanation, you've chosen to leap headfirst into the rabble. A rabble that will be ignored. (Hint: the validity of the patent isn't even up for review by the Supreme Court, instead the parties are arguing over whether the patent owner can stop the infringer from using the invention, or merely collect a continuing stream of damages for the life of the patent.)

Re:Even better than RIM v. NTP!

[idesofmarch]

I do not think the supreme court is not reviewing the validity of the patent. I believe the issue is with using the injunction as a tool in patent prosecution. It is an important issue. The injunction is what causes people to pay up and settle, otherwise they keep on infringing until the end of the case.

Re:Even better than RIM v. NTP!

[Harinezumi]

He did not say that the patent is invalid or illegal, he said it was ridiculous.

What should be on trial here is not this specific patent, but the state in which our patent system currently is. The fact that this case is likely to appear ridiculous to a common citizen with no technical or legal background helps make the case for patent reform, and hopefully serves as a dire warning to the legislature of any other nation currently considering implementing software and business process patents.

Re:Even better than RIM v. NTP!

[russotto]

True. Instead, it requires a trial judge, an appellate panel of three judges, an appeals court of approximately a dozen judges (presumably eBay requested a rehearing en banc), and the entire eBay legal team to fail to show/rule that the patent is invalid. What are the odds that not one of these people had an EE/comp sci degree?

Better than average.

These are honest questions.

No, they aren't; they're an attempt to stifle dissent. They boil down to "trust the system or you're an arrogant ass". The system's broken. It apparently takes a law degree NOT to see that.

Re:Even better than RIM v. NTP!

[kbielefe]

What should be on trial here is not this specific patent, but the state in which our patent system currently is.

That's exactly what's happening, to a degree. The patent was already found to be valid. The only question presented to the Supreme Court is:

Whether the Federal Circuit erred in setting forth a general rule in patent cases that a district court must, absent exceptional circumstances, issue a permanent injunction after a finding of infringement.

You can get more background by reading the lower court decisions. Judges have discretion as to whether or not to issue an injunction in a patent violation case, although they are almost always issued by tradition. Even though the district court was forced by the law to find the patent valid, the judge still felt the patent was ridiculous and refused to order an injunction. I don't remember the exact quote, but it was something to the effect that software patent law was highly controversial and in a big state of flux. He basically expected and hoped the law would be changed by the time it got through the court system again.

Note that refusing to order an injunction only means that ebay won't be forced to remove that feature. MercExchange can still sue them over and over for continued damages, and will win the cases over and over until the patent law changes or ebay changes their site. Injunctions are issued by tradition to prevent the court system from getting bogged down. The Supreme Court will decide if they are required to issue the injuction. My guess is that they will decide they aren't required to do so. The Supreme Court is not generally in the business of limiting the power of the judicial branch.

Re:Even better than RIM v. NTP!

[hackstraw]

What should be on trial here is not this specific patent, but the state in which our patent system currently is. The fact that this case is likely to appear ridiculous to a common citizen with no technical or legal background helps make the case for patent reform, and hopefully serves as a dire warning to the legislature of any other nation currently considering implementing software and business process patents.

The last time this was posted on slashdot, people did not get this point. A google search on the address of the "company" yields this google optimized page:

    http://patents.oncloud8.com/paa/us_patent_agents_i n_us_va_great_falls.php

Which shows:

ATTORNEY Thomas Woolston 703-757-6503 MercExchange, LLC P O Box 1272 Great Falls, VA 22066

Clearly his legal and monetary interests outweigh the info found here that says:

Mercexchange's mission is to improve businesses through the application of new digital technologies, especially in networked environments. The businesses and products developed by MercExchange address large-scale consumer needs and business inefficiencies, resulting in new ways of doing business, new ways of creating value, and new industry paradigms.

This guy is a lawyer, disguised as an "inventor" that invents patents into inventions to give himself business that make working people pay for him not to work. Nice.

Re:Even better than RIM v. NTP!

[Zordak]

I wonder if that's a patentable business model.

Re:Even better than RIM v. NTP!

[sealawyer2003]

The court could assess a royalty or a one time payment for future usage. If the injunction does not issue, that's almost certainly what will happen instead.

Re:Even better than RIM v. NTP!

[Jimb0v]

Slashdot sure is anti business method patent. I just don't get it. If you don't agree with giving inventors a monopoly in exchange for disclosing their ideas, I understand. I just don't see why a distinction is drawn between the tangible and the intangible. Attacking the system because they let something through that you think is obvious, I can understand. But attacking an entire class of patents seems ridiculous. Many things that have no tangible component seem patentble to me. For example, slashdot's moderation system seems to meet the necessary requirements to get a patent (at least back when it was first invented, unless theres prior art im not aware of). To me it seems part of the problem is that the prior art in the business method group just isn't as easy to produce at the time these patents are prosecuted, but its easier to find at litigation where parties are more willing to spend money to find it. Also, a technical degree is a requirement to be a patent attorney. There is a very good chance someone with an EE/CS degree is involved in this case.

Re:Even better than RIM v. NTP!

[_am99_]

Every single one of those people has studied patent law extensively. Have you? Can you prove that the patent is invalid, and if so, why haven't you been hired by eBay or their counsel?... You appear to believe that everybody involved in this case is an idiot, ... Yet instead of posting a comprehensible explanation, you've chosen to leap headfirst into the rabble

I am not saying that the patent is invalid; I am saying the patent law that allows patenting of business practises (and software models) is ridiculus.

Patent law should protect INNOVATION that is not the result of OBVIOUS uses of available techology. Do you think the idea of a "buy now" button is innovative to the point of deserving protection from being copied?

Re:Even better than RIM v. NTP!

[Black Copter Control]

. . . . .and the entire eBay legal team to fail to show/rule that the patent is invalid.

Er, No. If this is the patent that I think it is, it's still in the preliminary stages. On an application for a preliminary injunction, the trial judge looked at things and said "All this company wants is money, the patent looks a bit shaky, the defendant is quite capable of paying any award and issuing an injunction would be quite disruptive, so I'm not going to issue an injunction.

The appeals court fired back that -- despite legislative language that simply allows the judge to issue an injunction, precedent says that the judge must issue an injunction unless there's a really good reason why an injunction shouldn't issue, and concluding that you've got a patent troll with a questionable patent isn't a good enough reason to not issue a patent.

This really is a stupid situation.

I'm thinking that the SCOTUS is suddenly taking on these cases because of the RIM/NTP dispute. Most of them probably have blackberries, and they looked at this case, and saw that they were being threatened with the loss of a highly valuable service because a patent troll was moving getting greedy with a patent that was about to be declared invalid.

The thing is that -- as stupid as it may seem -- the judge that threatened to shut down the blackberry service was probably right on target with how he was reading the common law in the case. The jury really couldn't question the validity of the patent... They had to presume that it was valid, and could really only overturn it if it was obviously bogus. Similarly, the judge had to accept the jury's 'determination' that the patent wasn't (blatently) bogus, and had no choice about issuing an injunction. The fact that the patent was most of the way to being declared invalid was little more than administrivia.

The patent system in the courts is pretty much set to run on rails. It's not too bad for physical patents where the cost of development is often orders of magnitude larger than the cost of court and time to market is similarly longer than time in court.
In the software universe, patents just result in obscenities.

The patent process also developed in a time where the number of patents issued per year were in the hundreds., and getting a patent really did mean that you probably had something "innovative and non-obvious". Now, the PTO is little more than a diploma mill, and a letter of patent means little more than that you jumped through all of the hoops.

Re:Even better than RIM v. NTP!

[Black Copter Control]

OK: So, big oops on the 'preliminary' part, -- and thanks for the links that should have been in the original article -- but it still stands that the judge/jury is essentially barred from a serious look into whether the patent is bogus and should never have been issued. They have to start with a presumption of validity, which makes "oops -- stupid patent" findings an extreme rarity -- not because bogus patents are a rarity, but because that's essentially not a role that the courts are seriously allowed to step into.

Supreme Court's role

[Douglas Simmons]

It should not be forgotten when convenient that the Supreme Court's role is limited to combing through the constitutionality of a past ruling. Roe v Wade being the "Law of the Land" is a misnomer. In this case, it seems that one part of the government established by the legislature made a ridiculous choice that doesn't pass the laugh test, but that's the legislature's job to fix, not the Court's.

Re:Supreme Court's role

[geoffrobinson]

Spot on comment. However, most people don't think like that. If they agree with a decision's results, they like the decision. It could use horrible logic and be based on faulty non-Constitutional reasoning, but many wouldn't care.

Re:Supreme Court's role

[RingDev]

IANAL and I am only familiar with this proceding from the little tidbits read/seen in mainstream media, but I was of the belief that the case being presented was not about guilt, or copyright, but about clarification of when injunctions are exceptable. Is it lawful for a company to file for an injuction on another company's business practices when the underlying copyright is under contest?

-Rick

Re:Supreme Court's role

[faceword]

It should not be forgotten when convenient that the Supreme Court's role is limited to combing through the constitutionality of a past ruling....that's the legislature's job to fix, not the Court's.

That is not completely accurate. The Supreme Court does not merely pass on the consitutionality of legislation; it also gets the final word in interpreting existing legislation. In this case, the constitutionality of the legislation is not at issue. What is at issue is the interpretation of existing legislation. Specifically, the arugment is what standard should be used when deciding whether to grant a patent holder an injunction. The statute provides that courts "may" grant injunctions "in accordance with principles of equity" and "on such terms as they deem reasonable." 35 U.S.C. 283. Over the past 20 years, the Federal Circuit, which has appellate authority in patent cases, has interpreted this clause to mean that injunctions should be granted almost automatically once infringement has been established (with some exceptions for when safety is at issue). One hopes that the Supreme Court will interpret the clause to mean that District Court has discretion to issue an injunction, but only on a showing that an injunction is equitable.

Thus, for example, a company like RIM probably wouldn't be shut down by a patent troll, even on a finding infringement. Instead RIM would just have to pay a court ordered fine/licence to the troll.

Re:Supreme Court's role

[eraserewind]

Couldn't they find that the patent and copyright laws, as implemented by the other branches of government, or individual patents for that matter, are not constitutional because they don't meet the aims set out in the US constitution? Not that I believe for an instant that they would decide so...

Re:Supreme Court's role

[TheCarp]

huh what does Roe V Wade have to do with this.

And btw... as an aside, I highly recomend that anyone who wants to talk about it first READ Roe V Wade, its not a hard read and only a few pages long. Its actually an amazingly good read, very well drafted and well weighted opinion.

It also makes me wonder how being anti-choice can be conservative, since the ruling actually ruled based on the original intent of the law, not the newfangled "moral" interpretation that the right to lifers like to claim has been the case forever.

But in any case, my point is... the supreme court really can take alot into consideration, and they write some pretty interesting arguments sometimes. I guess you don't get appointed to be one of nine out of millions without being able to make an argument that holds some amount of water.

-Steve

Re:Supreme Court's role

[roger_ford]

This is exactly right: the Supreme Court is definitely *not* limited to constitutional questions, though those make up a good portion of its docket. The Court hears three types of cases (for the most part): constitutional ones; ones involving the interpretation of statutes when different circuits disagree; and ones involving important federal issues. But since patent cases are decided exclusively by one circuit, the Federal Circuit, the Court doesn't have any circuit splits to deal with. Every now and then the Court takes one or two important patent cases; otherwise the Federal Circuit would be pretty much unrestrained in setting patent policy.

(I am a lawyer, but I do not represent you, and this does not represent legal advice. Consult competent counsel.)

Re:Supreme Court's role

[AviLazar]

Roe v Wade being the "Law of the Land" is a misnomer

Well yea, especially since the law of the land is the Constitution.

Re:Supreme Court's role

[Elemenope]

Couldn't they find that the patent and copyright laws, as implemented by the other branches of government, or individual patents for that matter, are not constitutional because they don't meet the aims set out in the US constitution? Not that I believe for an instant that they would decide so...

Not really, no. In American jurisprudence there is a presumption of the competence of the legislature for most classes of cases; all the government must show is that the legislation bears some rational relation to any legitimate governmental purpose. The Constitution grants the Congress power to regulate intellectual property and the reasons for that power, but a legislative schema that exists under that delegated power need not actually 'work', legislating 'stupidly' is not the same as legislating 'unconstitutionally'.

IANALBIPOOSD. YMMV.

Re:Supreme Court's role

[odyaws]

It should not be forgotten when convenient that the Supreme Court's role is limited to combing through the constitutionality of a past ruling.

That's not true. In fact, the Constitution does not explicitly grant this power to the Supreme Court. The Constitution is actually very vague on exactly what the Supreme Court is for (Article III, Section 1):

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

The precedent for judicial review was not established until Marbury v. Madison in 1803, when the Marshall court established the right of the court to declare laws unconstitutional based on Article VI, which declares the constitution to be the supreme law of the land.

Re:Supreme Court's role

[TheCarp]

Honestly though, how often does anyone know more than their opinion?

I always agreed with Roe V Wade, but I never read it until maybe 6 months ago. I still agree with it, and even like it. However, before 6 months ago, I couldn't say that I really truly understood it.

That said, I more recently went back and read the dissent. I like the dissent too. I think it brings up some valid points. I think its wrong, but still well reasoned.

Actually, while its true that looking at court decisions has made me quite cynical, seems that they are always ruling in asinine ways, actually reading the text of that decision really gave me a new respect for the intelligence and consideration of the court. They certainly don't take issues lightly and do their homework admirably.

Is it true of all cases? I don't know... but I know I will be trying to actually sit down and read more of their decisions. I mean, its the highest court in the land, and they don't issue that many rulings every year.

I may disagree with some very foundational princibles of our government, but isn't it still our civic duty to watch them?

-Steve

Re:Supreme Court's role

[budgenator]

IANAL either, but it seems that these are situations that an escrow account would be a good fit for. If eBay had to put a reasonable licensing fees in escrow until the case is settled and MercExchange had to pony up a reasonable cost-of-lost-opertunity on the money eBay put in; I bet the case wouldn't be dragging ass through the court system.

Re:Supreme Court's role

[NMerriam]

The Supreme Court could find that the President has to wear a hat on Tuesdays and invite all patent holders to lunch. They can find whatever they like, though they have no way of enforcing decisions. If they say that runny cheese is unconstitutional, then it is.

So yes, they could certainly find that the implementation of the Patent system is unconstitutional and direct Congress to fix it.

Re:Supreme Court's role

[NMerriam]

In American jurisprudence there is a presumption of the competence of the legislature for most classes of cases ... a legislative schema that exists under that delegated power need not actually 'work'

On the contrary, while courts generally defer to the legislature on intent, they do look at whether the stated purpose of a statute is manifested in reality. A law that does not "work" may well be unconstitutional for the obvious reason that Congress is abdicating a constitutional requirement to provide for some situation -- an ineffective provision being, to any man of reason, just as bad as no provision at all.

The clearest examples of this can be seen through the civil rights era of the 20th century, starting with Brown v Topkea Board of Education, where separate was recognized as being inherently unequal, regardless of what the legislature said. Local legislatures were quite fond of implementing civil rights laws that were constitutionally required of them, yet deliberately doing it in such a fashion that they were completely useless, ineffective, or counter-productive, and the courts repeatedly struck down statues precisely because of their failure to work.

Re:Supreme Court's role

[geoffspear]

This is because the framers never figured that it wouldn't take long for Congress and the Presidency to be filled with a bunch of idiots who don't bother to actually read the Constitution, let alone follow it.

It probably never occurred to them that if the Constitution said they weren't allowed to do something, that you'd have to set up a completely different process to make sure they didn't do it anyway. They probably figured that any blatantly unconstitutional law wouldn't get a majority in both houses of congress in the first place, and if it did, that the President would be sensible enough to veto it. Obviously they weren't very good students of human nature.

Re:Supreme Court's role

[Elemenope]

That's why I pointedly said 'most classes of cases'. In Brown, the court was using a higher standard of scrutiny because of the suspect class, e.g. race, involved. The court uses a higher standard of scrutiny when it is no longer reasonable in the broadest possible sense to assume legislative competence and when the subject matter provokes a high natural likelihood of infringing constitutional guarantees, such as (in Brown and all subsequent civil rights cases) when basically all-white legislatures are making laws regarding black folks' civil rights.

In an intellectual property case, there is no way the courts will find any reason to apply a high level of scrutiny. It is simply not terribly likely that fundamental constitutional rights are being stripped, no matter how subjectively awful a particular copyright regime is.

As usual, IANALBIPOOSD, and YMMV.

Where will it end?

[mgblst]

Blackberry, Microsoft, Ebay, Tivo, Google... so when does it stop encouraging innovation, and start stifling it? Is anybody in the US government, or the patent office actually paying attention to these suits, or do they see this as everything working fine? I now that in the past, patents were not considered quite so important, just need to look at the big patent sharing agreements between the large computer companies like IBM, AMD, Intel. Maybe the view has shifted, and it has become acceptable to shut a business down over patents? (or at least try to)

Re:Where will it end?

[eraserewind]

If you don't have a business of your own there is no benefit from cross licencing. If you have a business that actually does useful stuff you are at risk of infringing other people's patents. Far better to just come up with ideas and sue people. Better yet, just buy people's unused ideas and sue people.

Not that cross licencing is wonderful either. It's just a way to artificially keep smaller more efficient players out of your nicely carved up market.

There has to be a way...

[ursabear]

There HAS to be a way for the courts to define and address the difference between WELL DUH! lawsuits (like "patenting" an immediate purchase button, or cross-category searches) and important lawsuits that protect folks that have invested years and years of work and research (and perhaps tons of money) in creating a complex drug or product.

THERE HAS to be a way to define this and adjudicate accordingly. I'm fully aware that there are gray-area patents, but some things just shouldn't be patented.

Re:There has to be a way...

[jbolden]

There are. You can have a situation where you can't sue unless you case is sort of pre-vetted by a judge. You see this in Europe and it would definitely be worth considering for the US. Incidentally you also have it at the criminal level.

Re:There has to be a way...

[grs1969]

I'm not sure there is a reliable way to differentiate between the patents on the ridiculously obvious and the truly novel and useful - it's kind of like obscenity, you know it when you see it but you can't define it.

I say lets make some changes that will allow Darwinian forces to operate on patents.

1) It should be easier to get a patent revoked on the grounds of prior art or not being novel or innovative. Third parties should be able to do this, by say, petitioning the Patent Office with evidence of prior art.

If patents are much more easily revoked - organization will not patent thing that are easily attacked.

2) A patent holder MUST either create a product or service that uses the patent OR license it to another organization or organizations to do the same within a short time, say a 6 months to a year. If they don't, they lose the patent. Furthermore, the patent would expire if the organization stopped producing the product or offering the service - with some allowances for times when the product of service is off the market while being redeveloped or licenses are being offered.

I.e., use it, or lose it.

That would get rid of companies that patent any old thing then wait for an infringer to come along for them to sue.

It should also get rid of worthless patents through market forces - if a company can't make a viable business out of it, not get anyone to take up a license - it was not worth patenting - or lets another organization that is better or smarter have a crack at it.

Re:There has to be a way...

[Mike A.]

2) A patent holder MUST either create a product or service that uses the patent OR license it to another organization or organizations to do the same within a short time, say a 6 months to a year. If they don't, they lose the patent. Furthermore, the patent would expire if the organization stopped producing the product or offering the service - with some allowances for times when the product of service is off the market while being redeveloped or licenses are being offered.

The problem is that while six months is a perfectly reasonable time to bring software to market (unless you're Vista, of course), it's far too short for industries that actually need a manufacturing process.

Re:There has to be a way...

[Zordak]

1) It should be easier to get a patent revoked on the grounds of prior art or not being novel or innovative. Third parties should be able to do this, by say, petitioning the Patent Office with evidence of prior art.

As much as this article speaks of Rep. Smith as though he were a wholly owned subsidiary of whatever evil company you hate, his H.R. 2795 actually addresses this. I don't agree with everything in his patent reform bill -- in fact, I don't think anybody likes all of it -- but I think it's a genuine effort to do something about a broken system (of course, it is also heavily influenced by monied lobbies, but every once in a while, their interests may align with your own).

The problem you speak of is a real one. Most patentable improvements are not earth-shattering new discoveries. They are incremental improvements over the existing technology that make life a little bit better. If you look at a good patent application, the first thing you will see is a long list of prior art references that tell you everything other people did to get you to the point where you could invent your improvement. And however trivial it seems in hindsight, you have to ask, "If it's so great, and it was so obvious, why wasn't anybody doing it before?" (Note: I'm not commenting on this specific patent, just the problem you spoke of in general). If they were doing it before, then you have section 102 anticipation, and you don't even have to talk about section 103 obviousness.

We also have to remember that there are circumstances where somebody will come up with a valid, patentable invention, and (perhaps while he is waiting for his patent to issue), somebody else will come along and "practice" that patent more successfully and make more money off of it. That doesn't make the original patent invalid. Even if a certain improvement is ultimately inevitable, our constitutional patent system incentivizes he who would conceive and disclose it first. The whole purpose is to get it out into the public realm at the first opportunity.

You don't say.

[MartinG]

"Software companies complain they can be held for ransom by owners of questionable patents while drugmakers oppose any weakening of patent rights, which they say would chill their investment in new medicines."

Perhaps that's because, as we have been saying for years, patents on software impede innovation whereas patents increase (or so I am imformed - I don't work in the industry) innovation in the drugs industry.

Patents on software make as much sense as patents on books or music. Get rid of them now before they give patents in general a bad name.

Re:You don't say.

[AviLazar]

No, that is wrong - that is 100% wrong. Patents on software is fine - it is the ridiculous patents on software that is not fine...things such as "Clicking on an electronic button to quicken a process" is dumb - patenting say...oh I don't know World of WarCraft is not dumb. To relate it to your drug question....some of these ridiculous patent suits (i.e. "clicking on an electronic button...") could fall into the same as patenting "a process in which a liquid is heated in a clear container and poured into another container"....see dumb patent idea.

Patents are needed and useful. When a company spends millions (if not billions) researching an idea they need a fair opportunity to recoup their costs. They put out the time/work/effort - they should get first cracks... If someone is not happy about it - then they should be the first to come up with the idea (and put out the money).

Re:You don't say.

[Peter La Casse]

Patents on software make as much sense as patents on books or music. Get rid of them now before they give patents in general a bad name.

It's too late for that. I shared your position, until I realized that some of the arguments against software patents are true for many other kinds of patents as well. Society should reexamine the goals of the patent system and determine if they are being achieved by the current implementation. Are there any patent success stories? How do they compare in number and impact to cases where the patent system has been counterproductive?

Re:You don't say.

[Anonymous Coward]

"Perhaps that's because, as we have been saying for years, patents on software impede innovation whereas patents increase (or so I am imformed - I don't work in the industry) innovation in the drugs industry."

My dad IS in the drugs industry (or more specifically, in immunology research), and to hear him tell it, the situation's just as bad there as it is with software. There are tons of companies that do nothing but buy up patents and sue anybody who comes out with a new drug, hoping to get a share of the profit.

In fact, the situation might be WORSE for medical research, because researchers often have to curtail their research in order to avoid using patented chemicals or techniques. Everything has to be filtered through a lawyer.

Re:You don't say.

[arekq]

In fact, the situation might be WORSE for medical research, because researchers often have to curtail their research in order to avoid using patented chemicals or techniques.

Having just read another article about AIDS, I have to wonder, is this why we still don't have a cure for AIDS?

Re:You don't say.

[MartinG]

Patents are needed and useful. When a company spends millions (if not billions) researching an idea they need a fair opportunity to recoup their costs.

In the context of software this is simply not true. There is no evidence that is is true and lots of evidence that patents on software are hindering competition.

If people cannot compete on their own merit without being granted a monopoly on their software ideas then they should find another business. There are many many people queueing up to replace them who are willing and able to innovate without the need for patents. All that's preventing (or slowing) them is the existance of software patents in the first place.

Re:You don't say.

[Taevin]

No, I am quite sure it is you who is 100% wrong. Patents on software is very much not fine. In every case I can think of, it's actually quite absurd. nosoftwarepatents.com outlines the issue well (read the dangers of software patents in particular).

The problem with software patents is that they are incredibly restrictive in an industry that requires freedom and rapid innovation. As pointed out on the page I linked to, something that was innovative in the early days of modern computing would still be patented. A few carefully chosen software patents could have crippled the advancement of computer software, possibly to the extent that the Internet would not exist today (or at least the way we think of it now). Your example of patenting World of Warcraft actually is dumb. First, it's already protected by copyright and trademark laws; someone cannot just copy WoW, call it World of Warcrack and sell it. Thus there is no need to patent it in the first place. The truly chilling concept would be that a patent on WoW would likely be a patent on MMORPGs in general. Imagine that: 20 years of no MMORPGs besides World of Warcraft. Some players might be happy with that, and I'm sure it's VU's wet-dream but for the rest of the world it would be fucking tragic .

Of course there is plenty of prior art in that case so it's not an issue but hopefully that illustrates the problem well. Twenty years ago, no one had even thought of the idea of a MMORPG, now it seems to be the new trend in computer gaming. All those thousands of programmers coding for these games could easily change the face of gaming many times in twenty years. For all we know, gaming might be in a completely virtual reality in five or ten years. How likely is that to happen if only one company or patent holder could create software using that patent? Software patents just do not make sense.

Re:You don't say.

[AviLazar]

In the context of software this is simply not true. There is no evidence that is is true and lots of evidence that patents on software are hindering competition.

There is no evidence that companies spend money - and lots of it - in R&D when creating different software products? There is no evidence that MS spends money creating Windows? There is no evidence that Blizzard spent money on WoW?

Re:You don't say.

[AlterTick]

There is no evidence that companies spend money - and lots of it - in R&D when creating different software products? There is no evidence that MS spends money creating Windows? There is no evidence that Blizzard spent money on WoW?

No, there's no evidence that the availability of patent protection had anything to do with the motivation to finance development. The fact that you keep bringing up World of Warcraft illustrates your ignorance. Name a patent that Blizzard has on any part of WoW.

Re:You don't say.

[TheCarp]

Most definitly

There is an old saying "When you have a hammer, every problem starts to look like a nail". I think this is part of the issue here.

Actually I think we have a deeper issue than patents here. Look at the company that I work for (which is in the healthcare industry btw). We are incorperated as a non-profit with the specific aim of furthering healthcare.

We are huge, largest non-governmental employer in our state, one of the largest IT departments in the country. Plenty of money, we find funding sources from hospitals and insurance companies. Why? Because we make their lives better. They pay us to develop things and get them adopted, not because we have some great product to sell, but because what we produce really helps them, and yes we do provide services to them.

However the point is, there is no profit motive. Sure everyone is motivated partially by their pay, which is competitive with the industry, but the company overall is motivated and focused on healthcare. Sure there is a bottom line, and we have to keep it in the black as much as we can, like any well run company. However, as long as the outlook is positive, thats all that matters and we can get back to thinking about healthcare.

I really think that these issues stem from the problem of the for profit. When your company exists solely to make profits for investors, it tends to lose sight of other things. Why should a company fight to keep an advantage over others simply for the sake of profits? Isn't that missing the point? Isn't the whole point to provide a service to people and make a living yourself while doing it?

Frankly, I think we would solve alot by changing how corperations incorperate. I think we would all be better served by mostly doing away with the oppertunistic and greedy ways that money is currently invested. Whn you make a company ultimatly beholden to people whose only interest is the bottom line, I really think you do a disservice to the entire world.

As these drug companies have proven. Sure they take in billions, but they tend to spend alot on research thats not really needed. Workalike drug after workalike drug that are often hardly any better than eachother, and sometimes little better than whats currently being used.

They have lost site of the real social need, and are just beholden to stock holders who want them to do whatever increases the bottom line the most.

Im not saying they arn't free to act that way... they are and I would never recomend actually stopping them. Just that, I don't see why the US Government should help them out with patent legislation... which is optional and supposed to be for the public good, not the private good of the patenter... that is merely a bonus granted them to further the public good... if its not doing that, then there is no need to grant it.

-Steve

Re:You don't say.

[mdfst13]

"There is no evidence that MS spends money creating Windows?"

Microsoft spends money creating Windows and they get protection for that investment in the form of copyright. What they do not do is research unique solutions to specific problems that are then so obvious to the outside user that the user can copy the solution without infringing copyright.

How pharmaceutical companies differ from software:

1. Software does not require ten years of testing by the FDA before it can be used. This is the single largest investment a company must make in a drug before it can be released.

2. Software is protected by copyright. This keeps people from simply making copies of the software and redistributing. If pharmaceuticals were covered under copyright, then they wouldn't need patents. Copyright is strictly better for the holder than is a patent.

3. Software patents do not require revealing the actual implementation. I.e. you can make up an unworkable process, then someone else, without reference to your work, makes a working process and you sue them for infringement.

4. Software patents are not narrow. They routinely cover everything and the kitchen sink. By contrast, pharmaceutical companies receive patents for a single chemical compound for a single use! If they discover that their drug has a second use, then they need to get a new patent for the new use.

The biggest reason why software should not be patentable is simply that one does not write software by experimentation. It's not a matter of writing a thousand functions and then picking the one that works best. Instead, software is almost all about basic transforms. The computer takes input and produces output. 99% of doing that is drudge work. It can be drudge work that requires intelligence to implement, but it's still drudge work.

Copying a drug is comparatively trivial to the cost of getting the drug approved for use. By contrast, other than copying the entire software (prevented by copyright), software's difficult to reverse engineer. In truth, to completely reverse engineer a piece of software is probably more difficult than writing similar software from scratch. Especially if you plan to maintain or modify the software afterwards.

Re:You don't say.

[Scarletdown]

patenting say...oh I don't know World of WarCraft is not dumb.

A software product like WoW doesn't need protection using patents. It already has protection, a little thing called copyright.

Even better than RIM v. NTP!-Extent.

[Anonymous Coward]

Basically the whole story is the usual tug of war that every society has to endure.

"Software companies complain they can be held for ransom by owners of questionable patents while drugmakers oppose any weakening of patent rights, which they say would chill their investment in new medicines."

Validity of the patent isn't what's being questioned, but extent of punishment.

Re:Even better than RIM v. NTP!-Extent.

[Black Copter Control]

"Software companies complain they can be held for ransom by owners of questionable patents while drugmakers oppose any weakening of patent rights, which they say would chill their investment in new medicines."

This is because patents work for drugs, but not for software.

For a Drug manufacturer who spends 5 years and $10Million to bring a single drug to market (not to mention the millions more spent on dead ends), spending 250K on a patent dispute is just an annoying part of business... And by the time the patent dispute winds it's way through court, you're only gonna be halfway through the regulatory process.

With software where time to market can sometimes be measured in weeks, and development costs can be as little as free beer and pizza, spending $50K just to say "Hey! This Patent Sucks -- not to mention the cost of a full defense, and spending 2 years with a preliminary injunction before the court is finally convinced that the patent should never have been issued is enough to trash many small companies.

Bullies (and patent trolls) like small, easy victims... The cost of 'developing' a software patent is mostly in the filing. The cost of defending against a software patent is often orders of magnitude larger than the cost of the filing, so the opportunity to profit from a bogus patent is really high if you can force your victims to settle.

Patent trolls aren't much of an issue for drug companies because the cost of developing something nominally patentable is so high, and a drug company will have enough time and money invested in a drug that the probability of them fighting a bogus patent is really high. This seriously cuts into the viability of a troll business in that sector.

The rule that is being questioned here) -- that a court must issue an injunction in a patent dispute (despite legislative language that seems to say otherwise) -- simply exacerbates the problems for software companies because, essentially, the fact that the patent is bogus doesn't count as a defense until years later when you finally get to court and (hopefully) prove, to a jury, that the patent really is bogus. By that time, the opportunity to go to market with your idea is long dead.

Re:Even better than RIM v. NTP!-Extent.

[epee1221]

Validity of the patent isn't what's being questioned, but extent of punishment.
It is the validity of the patent that needs to be questioned. Patents in general needn't be altered.

Software vs. Drugs

[deanj]

Now, I'm the last guy that thinks drug companies are "nice guys" in the prices they charge, but in patent cases, I have to side with them.

They spend MILLIONS of dollars developing drugs. At least they have some right to patent what they created, because they actually created something. I'm not going into whether they SHOULD or not. That's what the law is right now, and it should probably be changed. I'm getting off track here.

Software companies with "patents" like these have spent little or no time "developing" anything. I mean..."One click"? "Buy It Now"? That's what you get when you have marketing people patenting things.

Geesh.

Re:Software vs. Drugs

[qbwiz]

I, for one, am happy for marketers. Before this "reform," they would probably never have the empowering experience of seeing their names on patents. Now, they get to patent things all the time; patents aren't restricted to scientists, engineers, and other inventors anymore. Isn't that a good thing?

Re:Software vs. Drugs

[brewer13210]

I have a brother who works at a major drug company. They don't spend millions on developing new drugs, they spend billions.

Re:Software vs. Drugs

[DrSkwid]

Cure a man - you get to eat a fish today.
Help a man cope with his symptoms - you get fish for life.

fuck the pharms

Re:Software vs. Drugs

[karnal]

"Why spend Billions when you can spend... Millions?"

Back on topic, I concur. My company does the same.

Re:Software vs. Drugs

[OnlineAlias]

Let us not forget that they spend more on marketing. Eli Lilly, 4 bln marketing, 3 bln R+D. In addition, truly new breakthroughs, like AIDS or gene therapy drugs, come through NIH grants. That's right, our tax dollars. We pay up front for the research, and then we pay again through the drug company retailing our research back to us.

Re:Software vs. Drugs

[Peter La Casse]

That's an interesting proposal. If it does turn out that limiting drug patents decreases private drug research, the Federal government can surely afford to make up the difference by increasing funding to university researchers. I have no objection to for-profit research, but using artificial means that hurt society to make it profitable is counterproductive I think.

The risk is that drug companies would continue to do research, and would actually hoard their knowledge via trade secrets. I don't think that would necessarily be worse than the current situation, though.

Re:Software vs. Drugs

[Tweekster]

You know that a good chunk of those "MILLIONS of dollars" in development also include advertising costs... Yes, drug companies get to artificially inflate the "HUGE" amount of development costs by adding their ad campaigns into the cost.

Re:Software vs. Drugs

[eraserewind]

I don't see how much they spend is relevant to the worth of the patent. It is just an indication of the size of the business opportunity to be gained by getting there first. They also make billions because of the patents they have been granted.

I don't believe for one minute that they are concerned about the level of investment in medical research. They are concerned about the level of profit to be gained from that investment in medical research. A legitimate concern for a business, and an important one in a capitalist society, but not the only one to be considered.

Re:Software vs. Drugs

[RexRhino]

How do you expect new drugs to be developed without the pharms? I know you probably feel it is wrong to profit off of the needs of others, but what is your proposed model for drug development?

Re:Software vs. Drugs

[Makarakalax]

Yes but nobody would invest billions unless there was high probability of making it back. That's why the chemical and engineering industries are the only two industries that should be allowed patents. Everyone else is perfectly capable of making money without securing unecessary monopolies.

Personally I think everyone else can have a different kind of patent where you are forced to allow others to use your idea, but with royalties paid to you. But patents like "Buy now" can fuck off and screw themselves or inventions will dry up even if you can use all the ideas at cost.

Re:Software vs. Drugs

[idobi]

You know that a good chunk of those "MILLIONS of dollars" in development also include advertising costs... Yes, drug companies get to artificially inflate the "HUGE" amount of development costs by adding their ad campaigns into the cost.

Well, what's the point of developing a new drug if people don't know about it. Maybe it's the media's fault for charging such high prices for advertising.

(You see where this is going, right?)

Re:Software vs. Drugs

[Tweekster]

the cost to develop a drug has nothing to do with getting the info out about the drug. The two should not be linked. One is advertising plain and simple, the other is research and development. The cost of creating a drug has nothing to do with how to make people aware of it.

Re:Software vs. Drugs

[idobi]

They're not inflating their development costs. R&D and Advertising budgets are itemized.

Their total costs for the drug includes both their development costs and advertising cost. Are you saying that they shouldn't be compensated for their advertising expense - only their R&D expense?

Re:Software vs. Drugs

[Tweekster]

You missed the point. Those are not itemized and when the drug companies say this drug cost $100million to develop, it doesnt really mean much if they spent $10mil on making the drug, and $90mil on advertising it. Right now, they get to lump those numbers together to inflate the R&D costs.

Re:Software vs. Drugs

[DrSkwid]

lose the patents & let the market decide

Re:Software vs. Drugs

[Miraba]

lose the patents & let the market decide

You've got to be shitting me. I work at a pharma company that has a handful of compounds in phase 1 and 2 trials, but nothing on the market. We've been through millions of dollars to get this far. If there weren't any patents, we'd be producing the competitors' compounds and trying to undercut them, not testing dozens of compounds each week in the hope of finding something better. Developing drugs is insanely expensive, and it's not going to happen without the possibility of hitting the jackpot.

Re:Software vs. Drugs

[Photon Ghoul]

If pharmacutical companies are spending so much that the entire company would cease to exist due to losing the ability to hold onto patents, then perhaps they should cut costs and find cheaper ways of doing the same thing. I also wonder how much of that high cost goes to patent lawyers and other people who wouldn't personally make money with the current patent system. Let's not forget the huge amount spent on marketing (TV, etc) and sales (50% of the people in the waiting room at my doctor's office are pretty sales ladies).

Re:Software vs. Drugs

[AK Marc]

I don't believe for one minute that they are concerned about the level of investment in medical research.

But the drug companies don't do "medical" research. They do "drug" research. They care about the disease just enough to know how to treat it. They spend nothing on trying to cure disease. If they were to cure it, they couldn't profit from it. They just want to know how to treat it. They aren't in a field that is altruistic. They are just as money grubbing as Microsoft, or Altria (Philip Morris), or whomever we are supposed to hate right now. Keep in mind, it is *illegal* for them to put the health of their customers over the profit for their stockholders.

Re:Software vs. Drugs

[Phisbut]

Well, what's the point of developing a new drug if people don't know about it. Maybe it's the media's fault for charging such high prices for advertising.

The public doesn't have to know about the new drug, only doctors really need to know about it. Then, when a patient has the appropriate symptoms/illness, they can prescribe the new drug. Now... if advertizing for the doctors involves "meetings" in Tahiti or Hawaii, then you can really wonder why the costs of advertizing are so high, but it's really not the media's fault.

Re:Software vs. Drugs

[Miraba]

If pharmacutical companies are spending so much that the entire company would cease to exist due to losing the ability to hold onto patents, then perhaps they should cut costs and find cheaper ways of doing the same thing.

I work with tens of thousands of dollars of equipment each day. So will any other person in a biotech lab. Why do we pay so much money on equipment? Because, believe it or not, it costs less in the end to not pay for all the man-hours. When your staff is full of PhDs and MDs (some people having both), you want to make the most of their time.

Then there are some costs that just can't be avoided. Clinical testing costs a shitload. Would you like to make a list of hundreds of thousands of people who are willing to go on helpful (best case), useless (the majority) or dangerous (worst case) drug regimens for free? That would certainly help reduce the cost.

I also wonder how much of that high cost goes to patent lawyers and other people who wouldn't personally make money with the current patent system.

Here's the breakdown of the company I work for, full-time staff as listed on our internal webpage.

Biology: 38
Business development: 2
Chemistry: 23
Clinical: 27
Corporate: 2
Finance and Administration, Accounting, Facilities, IT, Purchasing: 15
HR: 3
IP and Legal: 7
Pharmaceutical Development: 28

Total full-time employees: 145
FT scientists: 116
FT legal team: 7
FT "support" staff: 22

Let's not forget the huge amount spent on marketing (TV, etc) and sales (50% of the people in the waiting room at my doctor's office are pretty sales ladies).

That only becomes relevant when the company gets something to market. Many companies are stuck in clinical, and some of them are going to fold because, after spending hundreds of millions of dollars, their drug won't be approved by the FDA. Drug development is a crapshoot, and taking that magnitude of risk without the corresponding magnitude of payoff is financially suicidal.

Re:Software vs. Drugs

[leland242]

So I work for a company that supplies just about every major pharmaceutical company with equipment. It's easy to think the pharma's are evil empires, but they really aren't. Remember that normal people work in these labs - it's not just a bunch of money grubbing capitalists. Most of them seem very passionate about their research.

Re:Software vs. Drugs

[Photon Ghoul]

Thanks for the information, I hope the slight snarkiness isn't there just because someone who has to pay for medication dared ask why there seem to be some interesting excesses in a broken system.

Re:Software vs. Drugs

[Miraba]

I also have to pay for meds, so I understand the "WTF" aspect of drug costs, especially when paying for them out of pocket (that was a nasty shock when they forgot to factor in my health insurance).

I just get somewhat annoyed when people who aren't in biotech want to know why we don't have cures for cancer/HIV/the common cold, and why we can't get them out faster and cheaper.

That said, the salaries of CEOs of the successful companies are absolutely insane.

Re:Software vs. Drugs

[jezmund]

Not to mention the fact that the US Government (in other words the US people) invests BILLIONS every year to help develop these drugs. The Government (mostly through the NIH but other departments as well) funds the majority of basic research that enables companies to develop new drugs. Not to mention almost all PhDs (in biology research, at least) have been fully funded by the government during training. This allows drug companies to hire very highly-trained workers without investing any time or money in this training. So drug companies aren't the only ones shouldering the R&D burden, they're just the ones making billions in the end.

Why not have 2 patent systems?

[nnxion]

From the article:
Software companies complain they can be held for ransom by owners of questionable patents while drugmakers oppose any weakening of patent rights, which they say would chill their investment in new medicines.

I understand how drugmakers feel, but why should those rules affect the patents of software. Software is as it says "soft", drugs is "hard". A different set of patent rules should be applied in my opinion.

How about attacking this instead

[Hangtime]

infringed on two e-commerce patents that MercExchange said were key to eBay's "Buy it Now" feature

How about striking down this lower court ruling

# 1998 The Court of Appeals for the Federal Circuit in State Street Bank v. Signature Financial.[46] holds that there is no prohibition in U.S. law on patents for business methods as long as they are new, useful and non-obvious.

Considering that business methods are NOT new, useful and non-obvious its time to reverse this error in one judge's career sign-off opinion.

Re:Patent?

[digitaldc]

Just as ridiculous as patenting an Apple. It's not like they grow on trees or anything..err..I mean they actually grow on trees!

Re:Patent?

[Anonymous Coward]

Really? Obvious? Smirk... How many auctions have you been to? Was that idea *ever* relevent before internet auctions? Nope...

Most good ideas are obvious in retrospect. The invention must only be non-obvious when it was filed.

Re:Patent?

[PFI_Optix]

Didn't someone patent the hyperlink?

Patenting concepts that aren't even developed products is a dangerous thing.

Control and power

[quokkapox]

The current copyright and patent regime is simply all about the rich and powerful maintaining control and power over the general public, which suddenly has gained access to a new and better communications medium (the Internet) which, if allowed to function unfettered, democratizes society and indeed threatens their status quo.

The only way for the proles to fight patents and copyrights is to ignore them. This is, of course, impossible if there are only a few printing presses or factories that exist. But now there are more than a billion printing presses (everyone can publish and discuss ideas on the web); there are a probably 500 million CD burners in the world (wild guess) to pass around music and video, and we can even do better than that just by sharing data directly over the net.

The Internet is like the next evolution of the printing press. Gutenberg's machine took away the power of the learned few to disseminate information. The Internet represents the natural evolution of that capability, and more.

The next step will be the dissemination of the ability to manufacture at the molecular level in your house, and then on your desktop. If you don't believe that's going to happen, consider the fact that anyone in the world with a net connection can read this posting seconds after I submit it, and how wildly that would blow your mind if you lived at the time of the invention of the printing press.

This temporary nonsense with patents and copyrights will be just that, temporary.

Re:Control and power

[kbielefe]

I agree. When a wealthy internet behemoth like MercExchange tramples the rights of a poor, unknown startup like eBay, someone has got to stand up and do something. Jesus Himself would have been sued for violating the copyrights of Old Testament prophets.

Too bad we don't believe it's okay to use military force to overthrow an oppressive government that violates the rights of the poor. I've been ignoring copyrights for years, and all I have to show for it is a bunch of free music.

suggested mod to the satire impaired: funny flamebait

"Buy it now" is not technology

[Whammy666]

I was under the impression that patents were only supposed to be issued to innovative and original developments in technology. "Buy It Now" is not technology. It's a sales gimmick. Gimmicks should not be patentable. The patent system in the US is seriously broken. It seems that the patent office isn't even bothering to review patents anymore. They're just handing them out like tissues.

They really need to tighten the rules over what is patentable. Sales gimmicks, business plans, mother nature, etc. should not even be considered. There should also be a rule similar to trademark law for termination of patent rights for non-enforcement to prevent crap similar to the JPEG nonsense from popping up out of nowhere.

Re:"Buy it now" is not technology

[Secrity]

That pretty much sums it up. In addition to the USPTO not properly screening patent applications, I think that much of the problem is that judges and lawmakers do not understand today's technology. Judges try to bend old world legal judgements to fit new technology and lawmakers rely on corporations to write the laws regarding new technology. Interesting thing is that the corporations who write the laws can end up getting bit on the ass because somebody else can find a judge who doesn't understand the new law. Some of the patents sound like joke RFC's, see United States Patent 6368227, "Method of swinging on a swing"

Re:"Buy it now" is not technology

[idesofmarch]

Have you actually read the patent? Maybe there is more to it.

Re:"Buy it now" is not technology

[AlterTick]

Have you actually read the patent? Maybe there is more to it.

I've read the whole ridiculous, tedious patent. No, there really isn't any more to it. It's a patent on buy it now, on a computer, with a database. It's absurd.

Re:"Buy it now" is not technology

[DoofusOfDeath]

The scope of patents is actually "the useful arts" Arts (in 18th century parliance) aren't just aesthetic works like painting and music. The term actually means a 'way of doing something'. This is found in Article 1 Secion 8 of the U.S. Consitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

It's apparent that Thomas Jefferson had this understanding that patents can include ways of doing things, because he was apparently pissed off for the same reason we are. Here's a Jefferson quote from this article: http://www.businessweek.com/magazine/content/06_02 /b3966086.htm/

A man "has a right to use his knife to cut his meat, a fork to hold it; may a patentee take from him the right to combine their use on the same subject?" -- Thomas Jefferson

Re:"Buy it now" is not technology

[Leuf]

Let's suppose there's this company Foo that wants to compete with eBay. They've got some great ideas about how to make auctions better. They implement them and while they're barely a blip on the radar compared to eBay, they start carving out a niche for themselves. eBay takes notice. eBay offers a nice chunk of change for company Foo. Foo's owners turn it down. Shortly there after, eBay's pages start to look a whole lot like Foo's pages.

Are you saying there should be no way for Foo to protect itself from such a situation?

Just because something seems obvious after it's been done doesn't mean no one put any work into it. Isn't that the mark of a good idea? People wonder why didn't anyone think of that before, it's so obvious.

In this case it seems more like a bunch of people recognize the opportunity to have online auctions, and whoever gets the patents in first wins. That's not right. But at the same time how can anyone compete with the market dominator if they are allowed to copy everyone else's ideas?

Patently mad, this is...

[jtcedinburgh]

Surely the concept of 'buy it now' is no different to going onto any online classifieds site and purchasing something. It's just a straightforward purchase then - so what makes this necessarily any different to your conventional single item purchase on (say) Amazon? Just because the goods are on an auction site?

Me dost thing that the US patent system is patently mad...

John

So today...

[WisC]

... I went into a shop for a paper and some smokes, but the guy would not sell them to me cos he was scared of being sued for using "buy it now". I was a bit miffed at not getting a smoke and the news but its not all bad as the guy had a half smoked cigar and a paper from 3rd March 2003 going for one buck with only 2 days left, just hope I have some change left from my 5 bucks max bid.

Re:So today...

[Jimb0v]

I realize this is a joke, but it hits at a core issue with every patent story posted on slashdot. Noone reads the f' patent. While its true a general summary of the patent would be a "buy it now" feature. The metes and bounds actually covered by the patent is VERY particular. People really should check out the claims of the buy it now patent before passing judgment on the entire patent system (U.S. Pat. No. 5,845,265). I think it would be difficult to produce art which has every element in those claims.

Re:Patent?

[shimmin]

Outside the context of an auction, immediate purchase is unremarkable. If the genus is unpatentable, the species ought to be.

Re:How about attacking me instead

[Hangtime]

Don't wanna risk those karma point huh? That's fine. I can say over the last few years after I have read a number of these business patents, Yes indeed they are not novel. Patents were originally meant for those things that were unique and innovative not knock-offs of things that occurred in the real world. One-click purchases, "Buy It Now", these things that lived in the real world for 100s of years do not classify as being novel. On the whole, I would rather see business patents struck down (like it had been for 100 years prior to 1998) then continue to clog up our court system. If the USPTO was better at interpreting the "novel" test I wouldn't have a problem with it but quite frankly they do and therefore I am against it.

The double-entry accounting system developed in the 1300s and put into book form in 1494 - Novel and I would say very patentable

Amazon's One-click purchase - Not Novel
MercExchange - Not Novel
NetFlix - Rentals through the mail - Not Novel

The difference is that one is entirely new way of doing business and the other is just an extrapolated real world idea grafted on this thing called the Internet.

Re:Ugh...

[stupidfoo]

You're right! How dare they attempt to recoup their costs?

If they were to, say, make a new cancer drug, how much would that cost to develop? Most likely hundreds of millions 5 (10, 20?) years. Now, the market for that drug is relatively small, so the cost per dose is then... high.

Interesting, no?

Science Friday

[kwieland in stl]

There was an informative Science Friday discussion last friday. Check it out here. http://sciencefriday.com/streaming.html

Re:Science Friday

[danpsmith]

Really? You sure it wasn't Saturday?

Super Fun Time Game For All Family

[thelonestranger]

Everybody play the Software Patent Game http://ars.userfriendly.org/cartoons/?id=20060219& mode=classic

This patent dispute is warranted

[jerryodom]

Alot of times you see companies patent broad things, don't use them and then show up with a hand out but MercExchange looked to be trying to use their ideas, met with Ebay and then Ebay took their from ideas and ran with them.

At least thats what I got from this article which is an interview with the guy who owns MercExchange

http://www.auctionbytes.com/cab/abn/y04/m09/i30/s0 1

Re:This patent dispute is warranted

[Red Flayer]

That doesn't mean that the patent dispute is warranted, nor does it mean that the patent is valid.

This is a red herring tossed by MercExchange, whether or not they got EBay to sign an NDA or other use contract prior to the meeting, and whether or not EBay violated such a contract, is a question for a different lawsuit, not for this patent infringement suit.

If the patents are determined to be obvious, then MercExchange's course of action would be to sue under breach of contract. If they didn't get EBay to sign an NDA and non-use contract, well, then they have learned a costly lesson.

Re:This patent dispute is warranted

[irablum]

I think the issue in this case is very simple. Since Ebay representatives reviewed the patents, then infringed upon them, they should pay the damages. Now, obviously, Ebay should not be run out of business, nor forced to shut down, even temporarily. But, as is true with most litigation, its already been 3 years since the judge ruled that Ebay should pay up and they haven't, so an injunction in this case is warrented.

Basically, this guys business got trampled. It was probably dead anyway, and he's not the smartest guy in the world, nor the best business man. After all, it took him 5 years from having the idea to getting it up in the first case, and once up, it bombed like so many other dot com companies. So, the relatively minor $30+ million reward makes some sense. It would barely cover the cost of the lawyers (who are undoubtably taking a percentage) and might pay off his venture capitalists. He'll walk away with nothing regardless (except maybe a slightly better credit rating).

I think that Ebay could have offered him $5 million for the patents in 2000 and he'd have been much better off. (which, according to the article, was exactly what he wanted to do....) I think that in this case, some lawyer said to the EBay management, "Its cheaper to bury this guy than pay him off...." And THAT's a bad thing.

Ira

Re:This patent dispute is warranted

[jerryodom]

When you're right you're right. And you're right. ;)

Re:Patent?

[BodhiCat]

Just as ridiculous as patenting an Apple.

Yea, or trademarking an Apple, unless you are Steve Jobs or Yoko Ono.

In related news...

[Khammurabi]

MercExchange has also announced a similar lawsuit against Walmart. When asked about the new lawsuit on fixed price items, CEO Thomas Woolston was paraphrased to say:

It just seemed like a natural extension. I mean, seriously, I can just walk into Walmart, take something off the shelf, and purchase it immediately. The clerk doesn't even ask me if that's really what I want to buy first! That was so totally my idea. Big companies like Walmart need to learn that you just cant pwn the little guy like that and get away with it."

Re:How about attacking me instead

[Tweekster]

all three were done by porn shops on the internet.. remember where amazon went to learn how to sell on the internet. the porn industry, they had already been doing it for years

Re:Ugh...

[Tweekster]

Hundreds of millions of dollars is bullshit... A good portion of that is the advertising campaign to SELL that drug... yes, drug companies are allowed to include advertising in the R&D cost of a drug.

Patents _stifle_ new drugs, not create them

[mary_will_grow]

...while drugmakers oppose any weakening of patent rights, which they say would chill their investment in new medicines

So, limiting Pfizer's ability to just sit on what it's already made, and profit for doing nothing further, is somehow supposed to _chill_ investment in new medicines? I would think that if you were no longer able to just sit on your patents, it would *enhance* competition and *increase* the need to innovate in order to stay profitable.

OK Ayn Randian Bushites, let me make your argument for you so you dont need to: "But no one is going to want to innovate anything unless they can get patents".

I'm not saying throw out the patent system, just fix it. Even if we cut the lifespan of drug company patents by something _dramatic_, you honestly think Pfizer is just gonna say, "OK, nevermind, we aren't gonna do this anymore." Give me a break.

Re:Patents _stifle_ new drugs, not create them

[DougLorenz]

Silly socialist rants like that contribute nothing to the discussion. By the way, the term "Ayn Randian Bushites" is an oxymoron.

And if you honestly believe that throwing out patents on new medications will not stifle research, then you are severely mistaken. Yes, companies will continue to produce the drugs that are selling big, even if they had to compete. Products like Viagra are making money hand over fist, and would continue to do so even with competition.

However, if you honestly believe that any company would invest the billions necessary in AIDS research without the possibility of making that money back, then you have a severe misunderstanding of how economics works. A cure for AIDS will probably make one company a fair amount of money. However, there are a relatively small number of people afflicted with AIDS in the parts of the world that have enough money to pay for the research, and honestly nobody cares about producing an expensive AIDS drug for Africa when they know that nobody in Africa can afford to buy it.

And the same issue exists with all of the disorders which have a limited market.

Let's do the math... I'll simplify it a bit for understandability.

Imagine that you have identified a disease which affects about five to ten million people worldwide. The disease is severe, resulting in a slow and painful death. Say that economic research has found that the average price that someone would be able to pay for treatment for this disease is a thousand dollars. For a worldwide disease, that number is extremely optimistic, but let's go with the optimistic number.

Now, as a drug company research director you have to be able to research and develop a product, put it through all its testing, produce and distribute the drug, and develop an information campaign for patients and doctors to promote the drug. You also have to make a large enough profit on the drug to pay for all of the other drugs that your company has developed which have not been successful enough to pay for their costs.

Imagine that everything has gone well, and you have produced a drug that can either treat the symptoms or outright cure this disease. You have completed the effort within your budget, and you are now a hero to many. Then one month later your main competitor reverse engineers your product, and is able to produce and sell your product for less since they don't have to recoup any of the research and development costs.

Most companies would never commit to research if they were not able to recoup the costs. Without the research, there will be no cure. And your policy of screwing the drug companies would leave millions to die. But at least there would still be Viagra, and it would be cheap...

By the way, the disease that I used as an example here is Parkinson's...

Re:Patents _stifle_ new drugs, not create them

[Gogogoch]

Exactly! Many people on Slashdot see the value of something as only the marginal cost of production - what it costs to make one more unit. Any piece of software, therefore, has a value of about $0.25. And a drug might not be much more valuable than that either. These people do not have an appreciation for investment, risk and return. It is a very straight-forward but naive view of the world.

Re:Patents _stifle_ new drugs, not create them

[SoulRider]

Wow, I dont know where to begin.

The reality of the drug industry is that there really is no profit in curing anything. No one can recoup their R&D costs when they develop cures, you create a one-time market for the product. The real money is in creating treatments, there is no incentive under the current system to produce drugs that cure diseases. This is creating an atmosphere were the people who are actually interested in developing cures are unable to enter the market because of the high costs associated with entering the pharmaceuticle industry, thus stifling innovation and causing the drug companies to sit on their collective asses reaping the profits from drugs that have no real purpose other than to make them more money (see viagra). Do you actually think the polio vaccine would see the light of day today? I dont, what we would see is an increasing number of treatments that make people feel good, but only for a short time so that they have to buy another pill from the drug company. Dont kid yourself, the drug companies are only interested in getting you dependent on their drugs so you have to keep giving them money. They are not concerned citizens trying to improve the health of humanity.

Of course the people in this country do not help the situation. The simple fact that Americans just want some magic pill to come along and cure them of all their ills shows them to be what they really are, a bunch of pill popping junkies.

Pentent reform needed

[erroneus]

This is no news to anyone I guess, so maybe I'll just get modded as redundant.

I think one critical issue of patent reform should involve removing any patents whose novelty is linked to the media is uses. Consider "Buy it now." In the world of plastic money and paper receipts, this patent would be laughed out of the office. In a word, it's OBVIOUS. The fact that an item on an internet based sales site to me is irrelevant because the novelty lies in the medium being used. The medium is patentable, but should the WAY media is used really be patentable? If it should, then I'd like to patent driving down the road sideways. Heaven forbid someone create some form of cell-phone oriented sales/auction service and "Buy It Now" gets patented again because the medium is "wireless."

I'd really like to just be able to change the world, but I'd be more than satisfied if I could just change the ridiculous things going on with the patent world.

That would be true...

[Jeff Carr]

...but drugs aren't anything more than software packaged to look like a pill or a liquid. Your idea might work for the people in Zion though.

I took the blue pill by mistake, damn my color-blind eyes!

Buyer feedback for seller eBay

[saboola]

MercExchange(0): Seller will n0t respekt my intellectually property so I will sue! BUYER BEWARE! FFFFFFFFF---------!!!1!111! Do n0t buy from thiz seller!!!

Roe is definitely pertinent

[geoffrobinson]

Roe v. Wade gives differing legal rights based on the trimester. I cannot, based on this alone, give this the status as good legal thinking. If the human gestation period was a prime number, what would have happened to the legal decision?

This is a case in point of the judiciary expanding into legislative functions. And if you agree with the outcome, you are fine with the legal thinking which is based on evenly divisible numbers. Differing rights based on mathematics isn't in the Constitution. And any Supreme Court decision which utilizes such thinking in legal decisions can't claim to be solid legal analysis.

Re:Roe is definitely pertinent

[TheCarp]

You know that is an interesting and potentially valid argument about the case. In fact, its probably one of the most informed arguments about roe that I have heard.

however its not really based on math or trimesters, they simply made a distinction as to various stages of pregnancy and how the situation changes over time, that the law may apply differently as the situation changes.

That said, as was much of Justice Rehnquists dissent, they did strike down the enitre law, even though they ruled that the law may apply differently and even be constitutional in the later trimester.

Whats really interesting was that the dissent tried to say that the court had no standing to rule on the earlier trimester, since the case was not brought to the court until after it had passed, thus no plaintif had standing to bring the question of the first trimester.
(though I think that the reasoning that allows a case of pregnancy to be ruled on at all is sufficient answer to his objection IMNSHO)

While I may agree with you on these points, I think the majority of it, particularly looking into the debate of such laws over time was quite elucidating. Also I agree wholeheartedly with the application of 4th, 9th, and 14th ammendments.

Its too bad more laws arn't struck down, particularly with the 9th ammendment, its meaning seems so clear when you look at what the framers were trying to do with it.

-Steve

Re:Roe is definitely pertinent

[cens0r]

Roe v. Wade gives differing legal rights based on the trimester. I cannot, based on this alone, give this the status as good legal thinking. If the human gestation period was a prime number, what would have happened to the legal decision?

You have to be kidding me. If the gestation period was 7 months, they'd just call a trimester 65 days. The gestation period isn't exact so it doesn't really matter. That has to be the stupidest comment I've ever read.

Re:Roe is definitely pertinent

[geoffrobinson]

We need to be able to discern when the Court is upholding laws or ruling them unconstitutional and when they start getting into the realm of legislating. Roe also gets into issues of natural rights in those amendments you mentioned.

Re:Roe is definitely pertinent

[geoffrobinson]

I think you missed my point. They pulled the trimester thing out of the air because it was convenient. There is nothing in legal precedant or the Constitution that would cause one to use that. In other words, it is a clear indication that the judiciary was acting as a legislature.

Re:Roe is definitely pertinent

[TheCarp]

This is true, but, there are issues of interpretation there.

Take the 9th, it specifically states that the people have more rights than the bill of rights can enumerate. Thats why we have to have a court to look over the text, and the arguments surrounding the enacting of those texts, to determine their meaning and how broad or narrow to interpret them.

Its much like my own state (MA) gay marriage issues. The court said that the conventional interptation of the law violated equal protection, and gave the legislature what was it 180 days to fix it or lose it?

a friend of mine is fond of saying that it sucks that the people wont get to vote on it to voice their opinion. However the real reason isn't the courts fault, its that the anti-gay-marriage people tried to get a question on the ballot, and found out that they don't even have the support to do it.

Why? Simply because they disagree with eachother so much that they don't even have a single cohesive opinion that could be put up to a vote. Which, in my mind, seems to vindicate the courts opinion that the ideas of the people have changed and the law should be interpreted that way.

I guess, its really a tough issue, whats legislating and whats interpreting. I could really go either way on some of these issues, even this one that I agree so much with.

-Steve

Re:Roe is definitely pertinent

[iamacat]

Babies are not truly self aware until sometime after they are born, but you don't want the court to rule along these lines*. SCOTUS has to be human in addition to being rational, even if human judgement is necessarily fuzzy and arbitrary. Anyway, it serves the purpose that women have time to choose and that babies that can survive outside the womb are not killed.

* However, I would support euthanasia for newborns with truly crippling and untreatable disabilities such as fetal alcohol syndrome, AIDS or cystic fibrosis. Also, those 19 year olds that strangle their newborns should be seriously punished, but probably not with life sentences.

Re:Roe is definitely pertinent

[irablum]

IIRC, the term trimester is not a legal term, but a medical term. at least that was implied by the doctors who handled my WIFE*'s several pregnancies**.

Ira

* for those of you don't understand this term, it refers to a female partner withwhom you have signed a life-long contract (known as Marriage), not to be confused with other life-long contracts, like purchasing a cat, or using a Macintosh.

** pregnancies sometimes occur when a man has unprotected sex with a woman. This sex, while lots of fun, also can produce little baby geeks for the next version of Slashdot.

Re:Roe is definitely pertinent

[budgenator]

I always thought that you got your rights from being natural or born under our law; the theistist, wanted rights confered at conception; and compromise we got makes everybody militant.

Re:Roe is definitely pertinent

[NMerriam]

They pulled the trimester thing out of the air because it was convenient.

"They pulled the trimester thing out of the air" because it is how every medical professional in the previous 150 years measured the progress of a pregnancy. There are certainly many reasonable moral and legal reasons to disagree with Roe v Wade, I find it amazing that you have hung your hat on a rather meaningless issue of semantics that any middle-school student could have explained.

Re:Ugh...

[achbed]

Umm... The development costs are a straw man now. It used to be that way, but now the development costs are dwarfed by the marketing mania used to promote the drug. Also, there's a lot of "development" going on that's really just trials of existing medications for new uses so that the companies can renew the drug patents and keep the stranglehold on a hugely profitable drug for longer. For example, check out the annual income report for Merck (MRK). Research and development costs for 2005 were $3.85B, while "General Administrative" (including marketing costs!) was $7.16B. Now, after these costs, net operational income was $5.54B - 43% higher than the R&D costs! Total profit was in the range of $4.63B. Think that is something? They are also sitting on $9.59B in *cash* out of $15.64B in cash and investments. Most of that is spoken for in terms of accounts payable, but having enough lying around to pay for 4 years of R&D is a bit excessive, dont'cha think? Especially since profit after R&D is enough to pay for next year's investment...

Re:There has to be a way.... not in this case

[kansas1051]

The only issue before the Supreme Court is when should a patent holder be entitled to an injunction against an infringer. Courts have already determined (several times) that MercExchange's patent is valid and that eBay infringed the patent. Validity (i.e. is MercExchange's "invention" actually an invention?) will not and cannot be considered by the Supreme Court because it is not the issue being appealed.

Instead, the Court will determine if an injunction should automatically issue once infringement is found. Injunctions have been the standard remedy for patent infringement in the US since before the ratification of the Constitution, but to due patent trolling some (eBay) have suggested that injunctions should not be so easy to get, particularly in the software arts.

I know one more!

[Gorimek]

Do nothing to help a man, and whine about those who do - you get to demand your fair share of fish caught by others!

Re:Patent?

[AlterTick]

Really? Obvious? Smirk... How many auctions have you been to? Was that idea *ever* relevent before internet auctions? Nope...

Insightful, my ass. A "Buy it now" auction is precisely analogous to a classified ad in the newspaper saying "1978 Chevy Citation, $200 OBO". The first guy to pony up $200 gets it, and if no one comes up with that, the best offer is taken.

Most good ideas are obvious in retrospect.

And even old ideas seem novel if you've never heard of them before.

Mod parent up!

[Deven]

This is an important point.

Re:Patent?

[TheCarp]

Incorrect.

I have seen charitable auctions that basically did this. It was implimented differently but every item had a retail or "full" price set, which was the maximum auctionable price.

If you wanted the item that badly, you could just bid that price and end the bidding. Effectivly, buying it now.

This is not the same as ebays "buy it now", but very similar. I don't know the chronology of ebays buy it now but, I think I may have even seen this before ebay had buy it now.

Of course ebay is not a charitable auction, the charitable auction was just trying to raise money and wasn't interested in maximizing profit. Obviously the ebay auction has an interest in maximizing profit, thats why they take away the buy it now option once bidding starts.

-Steve

Re:Ugh...

[TheCarp]

You know... this is one of those cases where, I don't really want to get into the whole capitalism/socialism debate but, really, do we want for profit companies doing this research?

I mean, say what you want abotu competition and whatnot, we do have a real economic interest overall in producing medications, but I think that the economic interests of the company actually run contrary to the medical interests of the people.

I think that it makes the most sense for the R&D funding to come from insurance companies and the government taxes. Now now, I am as much against taxes as anyone, but medicine is one of those funny things... its really to everybodies benefit that we develop it.

Its also to insurance companies benefit, since they end up distributing the risk of illness amongst the people, and thus its their coffers where the payments for the drugs come from. Producing more effective treatments is in their economic interest... more effective treatments, mean healthier people, and less treatments down the line. Thus less risk.

The drug companies have no such interest. Sure they are composed of people and people like to help people, and many people who do work at drug companies are motivated by this. However, the institution itself feels economic pressures, and more effecitve treatment and curing disease are not in their best interests!

Frankly, I think we should screw them. Change the patent system. Make it so they can't recoup their costs, and they will have to adapt, and get their funding from the source of the real interest in medicine.... from the people who have an interest in actually curing disease and bringing down overall costs.

Its not like drug research is going to stop, it may slow temporarily, but I would think of it as more a retooling of the industry than killing it. Subject it to the pressures of evolution that serve the peoples needs rather than the self serving ones. Researchers will find new funding sources, and ones that encourage research into where the problems really are.

I mean, I suffer from pretty bad heartburn at times. I don't think we really need new medications for shutting down proton pumps. The ones we have arn't perfect, but the real costs of healthcare are in pallative care. So, maybe we need more R&D in those areas, and we can forgo the next stomac medication for a decade or so.

Of course, thats not where the drug companies want to spend their money, because there isn't as much money for them in it. Why? Simple economics, the patent system gives them ways to make alot more money by researching minor things that they can treat forever. Its not about educing overall costs and overhead in the healthcare system, its about getting a bigger slice of the pie for themselves.

-Steve

I predict

[localman]

I predict they'll do the same thing they did with copyright extention. They'll admit that it might be a bad law, but they'll uphold the law and tell us to go to Congress if we want it changed. I don't think they'll find the injunctions unconstitutional.

Which I can respect, but is really a shame, as congress is so in-the-pocket they're just about useless in promoting anything that's for the common good over the corporate good.

Hope I'm wrong!

Re:No injunction = death of small inventors

[irablum]

The problem here is that small IP holders are already frozen out due to he difficulties of navigating the patent system. what we have left are battles between Patent holding companies and Software manufacturers.

Its not like I can run down to the local patent office and patent my idea for a new web-based e-commerce ui design and then start suing people left and right. I can't because it would be 2 years before I can get my idea patented and 5 min before its invalidated because I didn't hire the team of lawyers to carefully craft the patent paperwork to include things I didn't think of but are similar to the things I did. If instead, I had $5 million and a crusty old Wang developer to sign on I could then do whatever I wanted.....

Ira

Re:Patent?

[MCraigW]

Didn't someone patent the hyperlink?
Yes, British Telecom, about a billion years ago.

Then it is about time for them to start suing isn't it?

eBay today, Blizzard tomorrow

[happyfrogcow]

World of Warcraft also has a "Buy it now" feature in their Auction House.

Re:Ugh...

[irablum]

especially since a good portion of actual R&D is going on in our nations universities and university hospitals. In those cases, the drug company provides grants to college graduate students in BIO chemistry departments (and piddly grants too, $4 and 5 million dollars, which is HUGE money to a graduate school). Then these students (who are often making minimum wage level "stipends") come up with the drugs which are then handed back to the drug company to profit on. So the order is:

1) Take profits from last drug.
2) Give 0.01% of profit to create next drug spread among several university research departments.
3) Spend 1% of profit from last drug to convince hospitals to perform various drug trials.
4) spend 10% of profit from last drug to get FDA approval for the new drug
5) spend 50% of profit to market new drug
6) PROFIT!!!!!!

(note the absence of the obligitory ???? since there's no mystery involved)

Ira

Re:Ugh...

[budgenator]

If you think that's bad look at orphan drugs; the US government can literaly do all the research, and clinical trials, then hand the drug off to a company as an orphan drug, the company then sells the drug at horrendous profits, I've heard of a lady, who sometimes asks herself if "today was a $2048.00 day", because that's what her medicine costs.

Re:Ugh...

[zotz]

"(note the absence of the obligitory ???? since there's no mystery involved)"

Noted. You are hereby informed that the posting of business plans without the obligatory ???? is not allowed on slashdot and never has been. Please get control of yourself!

all the best,

drew

Reasonable Patents

[airship]

The purpose of patents is to foster innovation - that is, to ensure that an investment in research and development will be paid off before an invention becomes available for all to create and sell. Seen in this light, wouldn't it make sense to allow patents only on those ideas that cost a bunch of money to develop? You could set a lower limit of, say, $1 million on development costs (with periodic adjustments for inflation), and make a company or inventor prove they had spent at least that much in developing an idea.
Anything that doesn't meet this financial criteria is going to make it into the marketplace anyway, as it's probably an obvious offshoot of existing technology.
Just my two cents.

just say no to patenting intangibles

[zogger]

The reason why it's ludicrous is exactly why you see a case like this, and so many other software patent "disputes". It's just plain *nuts* on the face of it. Why not patent novels? Really, why not? Buncha stuff all typed up in a language or three, correct? So why not? Expresses some idea. It takes some skill, some effort, collating various ideas together in what the author hopes is a unique enough "new" thing to make a sale. The next novel might be slightly different, try to bring across a different idea, so another patent! How about music? Composers work at it, song writers, lyricists, arrangers. Why not patent what they do? It can be scored, using a musical language, and a unique song is unique. Give a patent! Next musician does something different, another patent! I do a lot of outside work, making gardens, landscaping, small scale terraforming. although others do it, my work is unique, it is slightly different from everyone else's. Can I get a patent? Why not? it takes work, it's unique, the arrangement is unique, it is meant for some purpose, so why not? I want my arrangement of x type of flowers next to y type of flowers in front of z bush to be patentable, because no one else did it before and I want them to license that idea from me, I demand exclusivity and government protection! I don't want anyone ripping off my ideas! Any other landscaper will have to license it, pay me! I learned my trade, work at it, use tools, create new stuff, etc, how come I am left out???

See how silly that is?

Nope, copyright is good enough for software, good enough for music and visual representations, but patents should be held in the physical realm. If you can't hold the device in your hand, it shouldn't be patentable. Once you start down the road patenting ideas alone, artificial constructs that only exist as representations on some media, no matter what they do, eventually everyone on the planet would need to have their own patent lawyer following them around reading contracts and paying licensing fees to do most anything. It is just plain nuts. It was a very bad idea to go down that road.

Back in ye olden days, people still did technical drawings before they built some new device. They didn't patent the drawings! they didn't patent the idea, they patented the stuff, the stuff made from the idea, you had to prove yourself by doing it. It was the device that had to be patented, the thing. Those people knew the difference, they could have easily made patents applicable to just the idea, but they DIDN'T because it's just *lame*. They made it so you could get a copyright on a drawing if you wanted to, and the written up description. that was enough then, it's still enough now (although the copyright term limits are still way too long in years)

Re:just say no to patenting intangibles

[Jimb0v]

Design patents have existed a long time and do cover the physical arrangement... Also, process patents have existed for a long time as well. Further, business method patents make more sense than "a microprocessor programmed to do X" Which is how software is basically patented in foreign countries that don't allow business method patents. Obviously I am over simplifying, but I'm just trying to point out that a method of using the lightbulb would have been patentable when the lightbulb was invented. In other words, we have already been down this road, and the sky did not fall. FYI you still cannot patent "an idea" its clearly stated in the rules and caselaw that patenting an idea or something purely in the abstract is unpatentable subject matter (see 35 usc 101). What is patentable is a method that produces a useful, concrete, tangible result. I may be butchering the language a bit there, but there are constraints on what processes are patentable. For instance, you coudln't patent a mathematical formula, but you may be able to patent a new, useful, and nonobvious method of using that mathematical forumula as long as that use resulted in a useful, concrete, tangible result. I just think your post is rather misguided, copyrights protect very different subject matter than patents. And the bar for getting a patent is much much higher than the modicrum of originality needed to obtain a copyright. The real issue likely is that most computer scientists scoff at the thought of being restricted from doing something in code. It seems odd that it could literally be infringing to type up a piece of code, compile it, and execute it. But honestly, if you dig deep enough its really no different than scrounging around for spare parts and building something. Your parts are bits of memory whereas a tangible infringers parts are on a much larger scale. Its worth noting that merely being unique is not enough for something to be patentable. It must be new, useful, and nonobvious.

That's so insanely wrong . . .

[werdna]

It should not be forgotten when convenient that the Supreme Court's role is limited to combing through the constitutionality of a past ruling.

Nonsense. False. Inaccurate. Mistaken. Did I mention that it is also wrong?

Article III vests the judicial power of the United States in one supreme Court, and such inferior courts as the Congress may from time to time ordain and establish. The power extends to all cases in law and equity. The Supreme court has original jurisdiction (to try cases) in rare and obscure circumstances (that never happens). In all other cases the Supreme Court has appellate jurisdiction, that is, the power to review the decisions of the lower Courts.

Now, there is little doubt since a case in the early days of our nation, Marbury v. Madison, that the Supreme Court has held the power to review acts of the other branches for constitutionality. And there is no doubt they do that quite a bit. But to say that this is the sole scope of their jurisdiction is to completely misunderstand what they do.

Appellate review of lower court cases, essentially, is to review the courts to make sure that they applied the correct law to the facts of the case, and followed the correct procedures in arriving at their fact findings. This is PRECISELY the issue in the e-Bay case, whether the congress meant what it said by writing,

The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.

The Federal Circuit looked at this language and decided that injunctions had to be given every time an infringement is found, without regard to principles of equity or the court's view whether the terms are reasonable. Yeah, I know. (and it is a little bit deeper than that, but not much). Anyhooo... the purpose of the Supreme Court's review here has NOTHING AT ALL TO DO WITH THE CONSTITUTION, but rather with respect to the construction and application of the statutory language.

Just like an appellate court is supposed to do.

Of course, there is a difference

[paranode]

If drug patents were quite as ridiculous as some of these software patents, somebody would have patented 'cold medicine', 'leg medicine', 'head medicine', etc and sat on the patent to get rich. At least the drugs are specific; these software patents are unreasonably vague.

your reference

[zogger]

...proved my point. You can't do anything until you actually fire up the computer, or printer, or network switch, etc. Until then, your idea remains an intangible construct. Go ahead and patent your computer innovation, or new type of printer, etc. Copyright your code, but leave the patents to the tangibles.

As to a chemical patent, well..chemicals are tangibles, yes??

No, there's nothing magical about coding, it can be hard or easy, no one is trying to minimize the skull sweat involved or wants to fail to give appropriate societal props, financial or otherwise, it's just bad law, bad policy, it's screendoors on a submarine, just ill advised.

  Like I said in my earlier reference, then why not patent new musical scores or a new novel? How about my landscape design and techniques? How about Dance, can you patent a dance number? Go ahead, tell a novelist or playwrite or composer their work is trivial, not deserving of a patent, while the stuff you type up called "code" is. Answer the question-where is the difference? They type up stuff, you type up stuff, it can be very simple to amazingly complex and involved, it might take years and years to "code" up a novel. Why can't that novelist get a patent?

Because it's a stupid idea? Good enough reason?

    Ideas represented on any media, paper, scroll, vinyl, tape, magnetic disc, stone tablets, sheepskin, whatever-copyright fits. Perfectly acceptable.

  Stuff that is built- tangibles-patent.

  It's extremely easy to see the difference and why we are seeing problems with this experimental attempt to patent code, and thatis really all it is, an experiment, and I maintain all the evidence is there to see that it is failing..

  Every day that goes by with more software patents being allowed and encouraged is another day closer to the coding world coming to a screechin halt as everyone turns their wallet over to the lawyers. They are going to need cross licensing halls as big as Walmarts soon.

Balmer and MS and some other goons like that aren't joking around, they WILL eventually try and use the big patent stick,when/if they really feel threatened and see nothing to lose, and because of all the prior acceptance of software patents, it is going to hurt the industry-not just open source, the entire industry when that time comes. This is an example of MAD on crack and steroids that can and will be activated.

Re:your reference

[zogger]

Go ahead and patent those innovations that make the computer hardware better. That's the tangible. the software still remains intangible, representation of ideas on a media. Now, you can answer the question, why not patent a novel or a musical score?