Supreme Court Weakens Patents

ajakk writes "The U.S. Supreme Court, in a unanimous opinion, overturned the decades old test for determine whether a patent is obvious. The Court ruled that the Court had looked at obviousness in a "narrow, rigid manner." This should allow patents to be more easily invalidated because they are obvious."

Comments

Now everyone will RTFA

[Harmonious Botch]

Now that one click is not patentable...

The whole opinion

[Anonymous Coward]

http://www.supremecourtus.gov/opinions/06pdf/05-10 56.pdf

Re:The whole opinion

[ari_j]

In case anyone else is as confused as I was when I saw two AC comments in a row, both +4 Informative at the time I am writing this with links to different Supreme Court opinions: Both opinions are referred to in TFA. The article mentions the opinion linked to from this comment first and to the parent of the comment you are reading second. The first is KSR v. Teleflex; the second is Microsoft v. AT&T. Please don't mod either of them redundant, and enjoy. :)

KSR INTERNATIONAL CO. v. TELEFLEX INC. ET AL.

[Anonymous Coward]

http://www.supremecourtus.gov/opinions/06pdf/04-13 50.pdf

Re:KSR INTERNATIONAL CO. v. TELEFLEX INC. ET AL.

[eldavojohn]

There's also a paper on Digital Law Online entitled "Unclear and Unconvincing: How a misunderstanding led to the heightened evidentiary requirement in patent litigation" that does a good job of giving the history of this subject and how it came to be so backward before this was "weakened" ... it's a bit long though.

The logo should be changed

[arivanov]

I think the tagline logo for patents should now be changed. All you can eat is over.

Re:The logo should be changed

[ClamIAm]

Personally, I feel the icon is still valid. Mostly because we still allow patents on things that don't actually cost anything to manufacture, such as software and "business methods".

Re:The logo should be changed

[liliafan]

Personally, I feel the icon is still valid. Mostly because we still allow patents on things that don't actually cost anything to manufacture, such as software and "business methods". Okay firstly I will point out I don't agree with software patents, they are destructive to innovation, however, how can you possibly say software doesn't cost anything to manufacture?

There is lots of costs involved in software development, nothing in this world is free, even from the view of some geek sat at home hacking away at his favorite opensource application, there is time involved, there is development environments, there is debuggers, there is electricity to run the system. So that is a minor example of very low cost since.

On the other end of the spectrum you have a large company that is developing software, how about their costs? Hiring developers, QA people, office space, standard overheads.

Software development does cost money.

Re:The logo should be changed

[Bloke down the pub]

things that don't actually cost anything to manufacture, such as software

I need some really tedious file reformatting and data entry programs writing. How nice of you to offer to do it for nothing while I nip out for a pint or ten.

Re:The logo should be changed

[Forseti]

how can you possibly say software doesn't cost anything to manufacture? There is lots of costs involved in software development [...]

Not design; manufacture. Designing a chair costs money, making replicas of that chair at a factory in order to sell them also costs money. Designing software costs money, but once that's done, there is no additional cost to manufacture, unless you count the box, CD and jewelcase, which are no longer needed. Selling one copy or one billion copies costs the same, and someone getting a copy for free doesn't "cost" you anything.

Re:The logo should be changed

[Mister Whirly]

Aren't you talking about distribution, and not manufacturing? Making physical copies of software certainly requires money to manufacture,(equipment, raw materials, labor, etc.) but distibuting digital copies of software would not involve the same costs...

Re:The logo should be changed

[Skye16]

Well, it *does* cost money to pay the electric bill, and the computer that *makes* the copy (even if it is only digital). The computer is a one-time cost, and the electric bill is a recurring cost; miniscule, agreed, but still a cost.

Re:The logo should be changed

[liliafan]

Boxes cost, media costs, replication to media costs, even if you just download, bandwidth costs. Nothing is for free.

Re:The logo should be changed

[Frank T. Lofaro Jr.]

Electric bill is miniscule? Guess you don't live in Nevada. :)

Re:The logo should be changed

[X0563511]

Bandwidth.

NOTHING is free.

Re:The logo should be changed

[MobyDisk]

I think the tagline logo for patents should now be changed. All you can eat is over. Yeah, but that's probably trademarked. 8)

Re:The logo should be changed

[sjames]

CDs and packaging cost PERHAPS $5. Compared to a $150 software package, that's practically nothing. It's certainly nothing compared to the cost to manufacture a product whose physicality is intrinsic to it's usefulness. Bandwidth does cost, but the cost per download is absolutely miniscule compared to what many companies charge for software.

What it comes down to is that physical products have a design cost followed by a significant per/unit cost to reproduce. Software has only the design cost. If you spend half a billion dollars to develop a program and sell 50 million copies, the development cost per unit is $10. At a margin of 50 points the selling cost is $20 (for comparison, white box PC makers get about 2 points margin if they're lucky). at $150 ea, the margin is an outrageous 93 points.

The only legal activity that has a higher margin is patent trolling.

Re:The logo should be changed

[Somnus]

Very well, but how do you recoup the design costs if not by charging for reproductions?

Re:The logo should be changed

[liliafan]

I don't disagree that software is overpriced, I think the margins on some software is extortion, I was just making the point that there is cost involved in the manufacturing, and design. The grandparent said there was no cost when there very obviously is cost involved.

Re:The logo should be changed

[Forseti]

No one said anything about not charging for reproductions, nor not recouping design costs. The OP simply stated that he felt that a proper litmus test for deciding if something is patentable is if it costs something significant per copy to manufacture. I never even stated that I agreed with that idea.

Re:The logo should be changed

[ClamIAm]

This is a pretty good troll: I almost wrote a serious reply. Good job.

Re:The logo should be changed

[ClamIAm]

Bandwidth. NOTHING is free.

Let's follow this logic further: paper costs money, and books are made out of paper. Therefore, people should be able to patent literary devices. For example (FTA):

Claim 1: a communication process that represents, in the mind of a reader, the concept of a character who has been in jail for a long time and becomes bitter towards society and humankind.

Claim 2: a communication process according to claim 1, wherein said character subsequently finds moral redemption through the kindness of another.

Claim 3: a communication process according to claims 1 and 2, wherein said character changes his name during the story.

Re:The logo should be changed

[zoefff]

There is always a cost to manufacture, although with software this is minimal. Making medicine can have low manufacturing costs as well, but to get one is quite expensive and risky. Patents should be about protecting investments in innovations and the bigger the invention cost, the bigger the 'patent rights', IMO, being the innovation software or not.

emphasis on innovation, of course, as being something new.

Finally...

[tshillig]

Isn't this exactly what we wanted to happen? What kind of repurcussions is this going to have on patent-crazy companies like Microsoft?

Re:Finally...

[Harmonious Botch]

Accoding to TFA, MS was one of the companies that filed an amicus brief
in favor
of the ruling. They see themselves, apparently, as victims of excess patent litigation.

Re:Finally...

[Lord Lemur]

So what is the new metric, I couldn't find it in there?

Re:Finally...

[jellomizer]

Well some of their patents will get denied. Actually I think this will actually Help Microsoft. A lot of times they makes these patents not as much to stop competition. But to stop someone else making the patent first and then suing Microsoft. Microsoft has been playing a Patent War that contains both Offensive and Defensive Patents. Some of them they will use to oppress competition others they use to protect themeless from others who would make the patent and shove it in their face. These new rules will probably be helpful for MS. Because it will reduce the number of Patent Holders knocking on the door saying they violated their patents. And for a company who is so Uninovative as MS. It is probably much better then it is harmful to them.

Re:Finally...

[theantipop]

It's very difficult to tell from the article. I haven't read the summary yet, but even that will probably be a bit vague. The courts help narrow the scope of patent code, but they rarely spell everything out enough to remove all ambiguity.

Re:Finally...

[vidarh]

Yes it's a good thing, but RTFA. Microsoft was one of a group of companies that wanted SCOTUS to make this decision. Obvious patents cost Microsoft far more in litigation than what they can expect to lose in licensing revenue.

Re:Finally...

[Chris Burke]

FTA: "Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress," Justice Anthony Kennedy wrote for the court.

Which, yes, is exactly the kind of common sense that seems to have been lacking and that I'm very glad the Court supported. That's the whole problem with patenting "obvious" things -- other people, perhaps many other people, would come up with the idea anyway in the course of solving whatever problem they are working on. Yet if it is patented, then suddenly the idea they would have come up with independently as a solution becomes instead a roadblock that they either have to find a way to work around (and work arounds may be very non-obvious) or pay royalty fees. I think anyone who works in technology developent has seen this happen.

Personally I would probably extend the court's reasoning beyond what they mean, because I think even in cases of real innovation (granted a difficult definition) patents often retard progress. It's all in the phrase I used above "in the course of solving whatever problem they are working on". The vast majority of the time patents are not submitted by a lone inventor who came up with a neat idea they want industry to pay for if they use it, nor are they submitted by a company whose sole desire is to create IP. Normally, it's a company that is trying to make a product, and in the course of creating it they come up with some stuff and decide to patent it. Those patents are mostly there to be weapons in the event of patent litigation, to force negotiations.

Take an example in a field I'm familiar with. Intel and AMD file many patents a year. Yet that IP is not their business. Creating processors that deliver the performance and features customers want, and better than the competition, is their business. They spend years creating a new design with the sole intention of meeting their perf/power/feature/price goals. In the course of so doing, they will come up with quite a few tricks some of which undeniably fit the definition of "real innovation". These will be patented, but again, that patent does little for the company except give them more armament should a patent suit be brought against them. The patent itself doesn't help the goal of creating better processors, because you can't necessarily just slap some random idea into an existing design, and a new design that uses the patent would take years to make and even then would only be a small part of a huge design. Yet those patents also get in the way of anyone else who, in the course of trying to make a microprocessor, would come across the same idea.

That's really part of the fundamental problem. Even things which pass the smell test of "non-obvious" may be independently invented by multiple people. There is basically no thought so unique that it cannot be thought twice. That doesn't mean they shouldn't be patentable, but it does mean that if no patent is necessary (when the idea in the patent is a tiny part in the solution to the company's real problem) then innovation is being unecessarily hindered. Companies like Intel and AMD use their patents as a way to stiff-arm competitors, and as a way to prevent lawsuits from aggressive patent-IP-lawsuit firms, who are in my opinion the real problem. They invent nothing, create nothing, but buy up proprietary ideas as if they were pieces of furniture and use them to attack companies doing real work.

That rant got off track. Suffice to say I'm very glad SCOTUS ruled that an overly limited definition of obvious is contradictory. The fewer "obvious" ideas that can be patented, then the fewer patents will be filed by companies that don't necessarily get any direct benefit from patents but feel they must due to the way patent law works.

P.S. The Microsoft ruling just boggles me, though. Jurisdiction is one of the things all courts seem to be sticklers about, readily stating that some case or part of a case involves actions outside their jurisdiction. Microsoft selling software in Asia et. al. seems to be a really obvious one, so I'm just surprised that the lower court ruled as it did. Again, kudos to SCOTUS for common sense.

Re:Finally...

[Adhemar]

Accoding to TFA, MS was one of the companies that filed an amicus brief in favor of the ruling.

Not really. There were 2 patent cases decided today. In one, KSR v. Teleflex, Microsoft did not take part. It did not write an Amicus Curiæ Brief.

The other case is Microsoft v. AT&T. Obviously, Microsoft did not write an Amicus Curiæ Brief either, it was the fucking Applicant. Interestingly, the Freedom Software Law Center (Eben Moglen's organisation) did write an Amicus Curiæ Brief, technically siding with Microsoft for a reversal of the Court of Appeals decision, but for a different reason.

Microsoft wanted the Court to decide software isn't a component unless copied on a physical disk, the SFLC wanted the Court to decide that software isn't a (patentable) component altogether. The Court's decision seems to follow Microsoft's arguing more that the SFLC's.

Finally...

[Jaysyn]

... a little more common sense on the patent front?

Vonage

[Caffeinate]

So does this mean that the scourge of the telecom industry may manage to survive?

Re:Vonage

[maczealot]

IANAL, but this does seem to suggest that Vonage's lawbots could file something regarding the obviousness of Verizon's patents.

Here are the patents Verizon has, just a cursory reading makes them seem REALLY obvious imho(but then again I am a Vonage customer):
Patent Uno Patent Dos Patent Tres

IANAL

[Short Circuit]

I'm not a lawyer, but wouldn't ex post facto prevent this from being used to overturn patents already in place? Or does that only apply to congressional law?

Re:IANAL

[jcr]

wouldn't ex post facto prevent this from being used to overturn patents already in place?

It would probably keep litigants who lost a patent suit from challenging the patent again, which is bad news for RIM. For current litigation though, defendants in patent infringement actions are likely to have a much easier time of it than they did before this decision.

-jcr

Re:IANAL

[Anonymous Coward]

No. Patents can be re-examined at any time with this ruling in mind. This will apply to every flimsy patent issued because of a bad CAFC ruling made years ago. This is the first time SCOTUS has weighed in on this topic since the Graham v. Deere case that established the rules for Obviousness. By calling for more re-examinations (poor patent office might get overrun), these old patents can and should be overturned. The screaming you hear is the big pharma who are going to lose their butts on this. The people who are happy, well believe it or not, they are the software folks (and patent examiners, who will like being able to reject patents without nearly as much effort as before).

Also, people can use this case as precedent to have patents that they are being sued with overturned, showing that they do not have the strength to overcome obviousness over prior art. (Basically, SCOTUS just re-defined obviousness in prior art. Now that prior art has changed, patents can be overturned on prior art they previously were not able to be.)

Re:IANAL

[smartr]

SCOTUS interprets the laws. They don't make them. So I'd say no... IANAL

Re:IANAL

[Anonymous Coward]

"I'm not a lawyer, but wouldn't ex post facto prevent this from being used to overturn patents already in place? Or does that only apply to congressional law?"

No. In a highly technical sense, ex post facto laws as used in the U.S. constitution refer only to laws that affect criminal punishment, either by increasing the punishment for a crime or defining a new crime. There is no per se constitutional prohibition against ex post civil laws, although some retroactive laws might violate due process.

In a more general sense, the court has not changed the law - the Federal Claims interpretation was always subject to alteration by SCOTUS. In essence, the decision today says that this is what the law has always said, and so is not a change at all.

Re:IANAL

[ChronosWS]

The purpose of the ex post facto clause in the US Constitution generally is applied to laws passed by Congress, stating essentially that you cannot make something illegal after the fact. Thus, if it was legal to sell cars a year ago, Congress cannot today pass a law saying that selling cars a year ago was illegal and then put you in jail for having broken a law which didn't exist at the time you committed the act. However, they could pass a law saying that selling cars NOW is illegal, and you'd have to stop immediately. I don't know exactly how this applies to priviledges granted by Congress (vis-a-vis patent law.) Congress could, by law, invalidate all existing patents I imagine. Similarly, SCOTUS can invalidate laws which grant priviledges to persons and corporations, and this happens all the time. So it would seem to me, not being a lawyer, that if the patents are no longer valid because of this ruling, then it is as if they never existed in the first place. Remember, it's not that those patents are now being made illegal (which is where I'd think ex post facto would apply,) they are simply being made invalid and unenforceable. What will probably happen now is that a whole host of lawsuits seeking to overturn obvious patents will arise, and a bunch will get tossed under the new rules. But I am not a lawyer :)

Re:IANAL

[Pharmboy]

SCOTUS interprets the laws. They don't make them. So I'd say no... IANAL

Oh really? Ever heard of Roe vs. Wade? Brown vs. Board of Education? Plus a whole string of cases that forces racial quotas in schools via busing, under court order.

Not making a statement as to the wisdom, but these were clearly cases where the court took a stand and created law.

Re:IANAL

[tricorn]

No, the law hasn't changed, only the interpretation of it. Plenty of now-obvious patents could now be challenged again.

In addition, even if it was a change in the law, there's nothing that says that can't happen. See, for example, the extension of copyright terms to works already in existence.

Re:IANAL

[udippel]

No. I still have to read the gory details, but in any case: There is no new law here, but the Supreme Court has helped the lower courts with their definition of 'obvious'.
At least, next time someone starts to sue for infringement, it is easier to get the patent revoked for obviousness.
And the USPTO will sweat about getting the new stand into their guidelines and procedures.

Still, the Supreme Court has not taken any decision about software patents; only on obviousness. In the end it was them who forced the USPTO to grant software patents.

No, not everything is in order from now onwards. It will get slightly less silly.

Re:IANAL

[rhakka]

They created nothing. They can strike down laws as unconstitutional which may have the side effect of legalizing something that was previously held to be illegal, but they cannot create law, that is the job of congress. The executive branch signs the law, and the supreme court can overturn the law... that's it.

Re:IANAL

[smartr]

Most rulings they make are going to have a bearing on how the law is applied. Interpreting the law is arguably more significant of a power than creating law. The main power of the other branches stems more from the ability to allocate funds and war. Either way, I think it is odd how little attention is paid to judges in comparison to representatives.

Re:IANAL

[djw]

What you are referring to is the Supreme Court's power of judicial review -- which, interestingly, is not part of the Constitution. This power did not exist until 1803, when the Supreme Court itself arguably created it from whole cloth in Marbury v. Madison.

Re:IANAL

[Dun Malg]

wouldn't ex post facto prevent this from being used to overturn patents already in place?

It would probably keep litigants who lost a patent suit from challenging the patent again no... that doesn't make any sense. When SCOTUS overturns law, anything that was previously decided on the basis of that law is up in the air, if not outright tossed out. For example, when SCOTUS declared various states' death penalty laws were unconstitutional in 1972, the criminals convicted under those laws had their death sentences immediately overturned. Really, do you think they'd say "You were sentenced to death unconstitutionally, but it's too late now, we're going to kill you anyway. Sorry."?

Re:IANAL

[Dun Malg]

I'm not a lawyer, but wouldn't ex post facto prevent this from being used to overturn patents already in place? Or does that only apply to congressional law? Ex post facto applies only to the passing of laws. For example, congress cannot pass a law criminalizing the sale of cigarettes, then have everyone who has ever sold a cigarette previous to the law passing arrested, they could only arrest those selling them after the law passed.

SCOTUS rulings are something completely different. SCOTUS doesn't pass law, it merely rules on the constitutionality of laws. A law that's ruled unconstitutional has essentially been ruled to have never been law. Anything previously done under that law is invalid.

Re:IANAL

[falconwolf]

SCOTUS interprets the laws. They don't make them. So I'd say no... IANAL

Oh really? Ever heard of Roe vs. Wade? Brown vs. Board of Education?

Um, no the USSC didn't make laws. In the case Roe v Wade they ruled a law unconstitutional and in Brown v Board of Education they ruled segregation violated the 14th Amendment.

Falcon

Windows vs AT&T has some very strange phrasing

[argent]

The first point is interesting, reading in part...

Until expressed as a com-
puter-readable "copy," e.g., on a CD-ROM, Windows--indeed any
software detached from an activating medium--remains uncom-
binable. It cannot be inserted into a CD-ROM drive or downloaded
from the Internet; it cannot be installed or executed on a computer.
Abstract software code is an idea without physical embodiment, and
as such, it does not match 271(f)'s categorization: "components"
amenable to "combination." Windows abstracted from a tangible copy
no doubt is information--a detailed set of instructions--and thus
might be compared to a blueprint (or anything else containing design
information). A blueprint may contain precise instructions for the
construction and combination of the components of a patented device,
but it is not itself a combinable component. What exactly is this "Windows in the abstract" separate from "a copy of Windows"? Do they mean that if I copy a software program that incorporates a patented invention, until that copy is converted into a deliverable form it's actually not an implementation of the patented invention. So, for example, software distributed as source code can't violate a patent until it's compiled?

Microsoft may have laid up a whole heap of trouble for themselves here.

Did he just say that?

[Red Flayer]

``Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress,'' Justice Anthony Kennedy wrote for the court.

I'd like to reword that a bit:

"Granting patent protection to advances that would occur in the ordinary course without real innovation is the progress of retards"

Seriously, though, maybe it's just the nature of the patent-related articles I see on Slashdot, but the real quote seems like the most concise statement on obviousness I've read.

The good news is that this court apparently recognizes the original purpose of patents.

The bad news is that this blindingly obvious quote was selected for inclusion in the article because the patent system has been viewed as a driver-of-revenue instead of a driver-of-innovation for so long.

Some common sense, at last!

[boxless]

IANAL, but this ruling seems so clear and unabiguous, I've got to believe it will put a dramatic damper in patent troll activity. The decision (I've only read the summary) seems to be fairly even-handed. The old teaching-suggestion-motivation test might be a reasonable test to use in some cases, but not at the expense of common sense.

I think the justices 'got it'.

from the ruling:
Inventions usually rely upon building blocks long since uncovered, and claimed discoveries almost necessarily will be combinations of what, in some sense, is already known. Helpful insights, however, need not become rigid and mandatory formulas. If it is so applied, the TSM test is incompatiblewith this Court's precedents. The diversity of inventive pursuits and of modern technology counsels against confining the obviousness analysis by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasizing the importance of published articles and the explicit content of issued patents. In many fields there may be little discussion of obvious techniques or combinations, and market demand, rather than scientific literature, may often drive design trends. Granting patent protection to advances thatwould occur in the ordinary course without real innovation retardsprogress and may, for patents combining previously known elements,deprive prior inventions of their value or utility.

MS-bashing not quite appropriate here.

[Kadin2048]

Isn't this exactly what we wanted to happen? What kind of repurcussions is this going to have on patent-crazy companies like Microsoft?

This is one of the reasons why it's good to RTFA ... Microsoft was actually the appellant in this case -- the losing party who pushed the case to the USSC, and just won -- they were fighting AT&T, who claimed that U.S. patents basically could be enforced extraterritorially.

The whole issue was whether Microsoft, a U.S. corporation, was responsible for violating AT&T's U.S. patents (which are not, by and large, enforceable elsewhere, for instance in Europe and Asia -- there's no patent equivalent to the Berne Convention on copyright, really) if they only ever violated them in places where AT&T's patents didn't apply (outside the U.S.).

So if Microsoft went and sold AT&T-patent-encumbered software, but only in Europe, AT&T wanted to sue them for patent infringement here in the U.S. This was obviously a Bad Thing, and would have been a major expansion of patentholder's rights.

The WSJ article about it today was pretty good. (I think that link should work, since it has the "googlenews_wsj" in the URL to bypass their 'Free Preview' bullshit.)

So in this case, Microsoft was actually the good guy.

Re:MS-bashing not quite appropriate here.

[__aaclcg7560]

So in this case, Microsoft was actually the good guy.

I think Microsoft is the lesser of two evils as calling them the good guy would be an oxymoron and a trademark violation. :P

Re:MS-bashing not quite appropriate here.

[Anonymous Coward]

"...it's good to RTFA.. "

Yes, so why didn't you?

You are talking about a different case.

Re:MS-bashing not quite appropriate here.

[optimus2861]

This is one of the reasons why it's good to RTFA ... Microsoft was actually the appellant in this case -- the losing party who pushed the case to the USSC, and just won -- they were fighting AT&T, who claimed that U.S. patents basically could be enforced extraterritorially.

Actually, TFA isn't about the Microsoft/AT&T patent case, it's about another patent case, KSR International v. Teleflex, in which Microsoft came down on the side of KSR, who were challenging a Teleflex patent on adjustable gas pedals as being too obvious. The Microsoft/AT&T decision is briefly mentioned but it's not the focus of the article. I don't know whether to fault the submitter for not pointing out which case was being referred to, or the editor for not catching it, or both.

Re:MS-bashing not quite appropriate here.

[Mister Whirly]

And also a serious violation of Slashdot etiquette. No matter what happens, MS is ALWAYS evil here.

Re:MS-bashing not quite appropriate here.

[Harmonious Botch]

While I don't disagree with parent at all, it is worth noting that there are actually two cases in TFA, both about patents, and both decided on the same day.

The first one was Teleflex Inc. vs KSR International Inc. MS was an interested bystander in this ( as were Intel, Cisco, Time Warner, Viacom Inc., Micron Technology Inc., General Motors Corp., Ford Motor Co. and DaimlerChrysler AG. )
The second case was Microsoft vs AT&T on the subject of patents on exports.

It's not quite clear to me which one GP was referring to.

Re:MS-bashing not quite appropriate here.

[Anonymous Coward]

Microsoft tried to get away with using AT&Ts patent and you call them the good guy? Odd perspective.

What actually happened was Microsoft settled for their US based patent violations but disputed the foreign violations. And we got yet another bizarre legal interpretation of what exactly computer code is to decide the case (they got away with an "it's a copy" argument - claiming they only ship a blueprint overseas, not parts, and blueprints can apparently violate patents while parts can't.)

Microsoft approved, actually. (RTA)

[Etherwalk]

The major tech companies wanted the patent reform--they tend to be victims of spurious patent cases. Microsoft, CISCO, Intel, Etc... (And Time Warner) are more concerned about protecting themselves from being sued by a patent squatter than they are about most of their own patents. Also, this lets them hijack other people's ideas more easily.

The major drug companies didn't want the reform, because patents are their life blood. It will get harder for them to patent obvious changes to medicine, such as combining multiple medications in one pill. (Though in some cases they'd still get away with it, I'd imagine, if they can demonstrate that there's some kind of real innovation going on in the time-delay mechanism or something. Or at least they'll argue that...)

Next step

[Mateo_LeFou]

Stop allowing patents on what is *obviously not patentable, e.g. mathematical algorithms and software

Re:Next step

[alienw]

I still don't understand what makes algorithms and software OBVIOUSLY not patentable. Also, stop misusing the word "mathematical". I am not a proponent of software patents; I just don't see what makes software patents so different from other patents, and I haven't seen a single logical argument against software patents that doesn't involve circular reasoning.

Re:Next step

[cpt kangarooski]

I'm opposed to software patents, but not for reasons of obviousness. Rather, given that the purpose of patents is to spur inventors to invent, disclose the workings of their inventions, to bring those inventions to market, and to have the least burden on the public in terms of what they can't do, I think that software patents are inappropriate. There are other incentives to do these things besides the incentive of a patent. In the case of software and business methods, I think those other incentives are quite strong; strong enough that those fields would continue to thrive without patents (as they did until fairly recently, when patents came onto the scene in those fields) and that they'd actually do better, in fact, without the chilling effect on the market that the patents cause.

If someday those other incentives diminish, we might want to have patents there again. Certainly we should keep an eye on this. But for now, I think that we'd see much more invention, disclosure, and bringing-to-market without the burden of patents than we have now.

Does this argument satisfy you? Better still, would you agree with it?

Re:Next step

[oliverthered]

algorithms and software (just a bunch of algorithms ) are just representations of a mental process.
As soon as you allow them to be patented you make thought itself against the law.

Re:Next step

[jimstapleton]

I have no qualms with software patents per-se. However a better way to handle them I believe, would be to say, that provided the provider recieves no financial recompensation direct (i.e. sales) or indirect (i.e. support), that a software patent cannot be used against a software provider.

That doesn't negate any /copyright/ restrictions (i.e. you can simply steal someone's software, it doesn't leagalize piracy), but for example, a sub-pixel rendering patent could not be used against a free (as in beer) piece of sub-pixel rendering software. Now if a company got ahold of this software, and tried selling it or a set of software containing it - then that company could be held responsible, and could be required to pay royalties.

The idea is - if it can be created/distributed at such "minimal" effort that no cost is required, then it the patent is of questionable novelty.

Re:Next Step

[Lockejaw]

Suppose Alice patents the FOO algorithm. If Bob wants to use it in a piece of software he's selling, he obviously needs a license from Alice to use it. But since "exclusive Right to their respective Writings and Discoveries" has been taken to include non-commercial use, what else can't Bob do? Can he implement it in free (gratis) software? Can he use the algorithm in code he writes, but doesn't distribute? Can he perform the algorithm himself? Can he be paid to do so?

Since, as a sibling post stated, an algorithm is just a thought process, it's not really something to which exclusive rights should be granted.

Most of the software patents we see these days don't play by the rules as it is. Either they don't do the full disclosure that is supposedly required (really, doesn't it seem odd that a product can be both patented and a trade secret?), are trivial or obvious combinations of existing things, have a large body of prior art, or some combination of the three. Software patents that do follow those rules are essentially patents on algorithms (i.e. sets of instructions on how to perform some task or calculation).

The proper domains for proprietary software are trade secret for closed source code and copyright for open source code.

Re:Next step

[Chris Burke]

Math is not patentable. Software is nothing but a computer-understandable representation of math. A software patent however does not involve such a computer-understandable representation, it merely covers the idea. The idea behind software is pure math. Therefore a software patent is a patent on math, and should not be granted.

That may seem circular, but math not being patentable is a matter of law. Not to mention a good idea, since math is the fundamental language of the universe, it is the language by which we describe all scientific progress. To patent math is to patent the foundation of science, and will cripple progress. Just like software patents are crippling progress.

Have you ever seen a patent on a math book? Of course not, math isn't patentable. Yet suddenly when you encode that math in a computer language, it is patentable? Hell, with a program like Maple the content of the math book could be "computer readable", so does Maple mean math textbooks can be patented?

Re:Next step

[Red Flayer]

That doesn't negate any /copyright/ restrictions (i.e. you can simply steal someone's software, it doesn't leagalize piracy), but for example, a sub-pixel rendering patent could not be used against a free (as in beer) piece of sub-pixel rendering software.

Hmm. The problem I see is that one can't copyright an algorithm, so by extension there would be no restriction on wholesale "theft" of software. So any patented software out there would be completely vulnerable to pirated copies under a different trademark.

Plenty of people see this as the best-case scenario, since "information wants to be free". However, in practice, this would mean that there is almost zero financial incentive to produce new innovative, software outside of the service revenue model.

I think it's tough to find a balance between "promoting the useful arts" and restricting innovation via patent lockdown, but allowing free-as-in-beer use of patented materials destroys the entire patent system for software, since there is almost no unit cost to redistribute software. Is annhiliating the patent system for software desirable? I don't know, but I do know that I don't wish to discuss it on Slashdot (been burnt one too many times).

Sorry to be so long-winded, but I feel that what you're advocating would result in the wholesale destruction of the patent system...

One last thing...

The idea is - if it can be created/distributed at such "minimal" effort that no cost is required, then it the patent is of questionable novelty.

So what you're saying is that anything produced digitally is not novel?

Re:Next step

[omeomi]

I still don't understand what makes algorithms and software OBVIOUSLY not patentable.

I think one problem with software patents is that many companies have patented technology, that while it may not be a 100% obvious technology, is something that another entity could come up with completely on their own, without even knowing that somebody else has patented the idea. I have no problem with a patent preventing someone from steeling a technology, but I find it very disturbing when companies apply for patents just to keep others from using a technology...for instance, Vonage v. Verizon.

Re:Next step

[omeomi]

s/steeling/stealing/i

Re:Next Step

[huckda]

you file the copyright not a patent...

Re:Next step

[dgatwood]

Hmm. The problem I see is that one can't copyright an algorithm, so by extension there would be no restriction on wholesale "theft" of software. So any patented software out there would be completely vulnerable to pirated copies under a different trademark.

No. That would still be a very large copyright violation, just as it is now. In fact, AFAIK, wholesale copyright infringement does not cause you to infringe the patents because you are not creating an implementation of the patent.

Re:Next step

[Red Flayer]

What about backwards engineering a software product and implementing the same (patented) algorithms via different language? Still a copyright violation, or no?

Re:Next Step

[hachete]

I think software patents work like this.

An algorithm turns a general purpose machine into one for a particular purpose. This is no different from patenting the Spinning Jenny. So, in principle, I agree with software patents. However, I think the *implementation* of patents should be tightened, particularly wrt full-disclosure. If you patent an algorithm or a method, then you must fully disclose the code, or at least a reference implementation. Something which is patented cannot be a trade secret. And I agree with the other strictures. I think these conditions - if strictly followed - would rid the world of most software patents. Although of course, people like Bush can put foxes in charge of the hen-house and fuck-up everything.

Re:Next step

[the_lesser_gatsby]

I still don't understand what makes algorithms and software OBVIOUSLY not patentable.

Some algorithms (like RSA) are really smart and clever and do deserve patent protection (the length of protection can and should be discussed). But bloody silly algorithms like 'one click' and all the avalanche of pathetic patents on well-used and obvious programming techniques should rightly now be shown the door.

Re:Next step

[Elvis Parsley]

Not a violation of copyright. There are some grey areas around the fringes, but essentially copyright covers the expression of an idea, not the idea itself. That's why you can have endless romance novels which use the same plot and many of the same motifs (virtuous, beautiful woman falls for sensitive guy without a shirt, they have issues, and eventually alabaster bosoms heave) without anyone getting sued. If you were to take a program written in Perl and rewrite it in Fortran, it's an entirely new expression.

Re:Next step

[pnewhook]

I still don't understand what makes algorithms and software OBVIOUSLY not patentable.

Because on their own they are simply not useful (patent law specifies that an invention be useful). Software on its own cannot do anything, it is just an algorithm or bunch of text. IT doesn't do anything. It is only useful when it is actually added to something else (like hardware).

So you can patent software if it constitutes a required and necessary part of an overall invention, and that invention passes the usefullness test, but software on its own cannot be patented.

At least that's how it is here in Canada.

Re:Next step

[Ngarrang]

I still don't understand what makes algorithms and software OBVIOUSLY not patentable. Also, stop misusing the word "mathematical". I am not a proponent of software patents; I just don't see what makes software patents so different from other patents, and I haven't seen a single logical argument against software patents that doesn't involve circular reasoning.

If you give 100 programmers the same task, two of them are bound to create similar or The SAME algorithm to solve the problem. This is what makes software patents so strange. It would be like someone getting a patent on the doubly-linked list. Adding that second link is an obvious extension of a single-linked list.

And, there are only so many ways to do something correctly. The One-Click ordering sequence is a natural progression from the shopping cart metaphor. "Why make someone follow ALL of the prompts when we can shorten the time with a one-click button?" The average 5-year old is smart enough to figure this out.

Re:Next step

[jimstapleton]

That's usually covered in the EULA.

So it's either a violation of contract (and possibly copyright), if the person RE'd it after purchase, or it's definetly copyright if they pirated it to RE it.

I don't remember *ever* not seeing a "don't reverse engineer" this clause on a EULA for software.

Re:Next step

[Red Flayer]

Yet copyright exists only for items that are published; once published, then access to the material is granted to the general public free from any EULA (in theory), though usage of the material cannot violate the copyright.

RE of software, even pirated software, is not a copyright violation since copyright covers distribution. Pirating the software itself may constitute a copyright violation, but RE is not covered by copyright at all.

Re:Next step

[Anonymous Coward]

Fabrication processes, DNA structures etc. are also representations of a mental process (kind of).

One day software will be smart enough to invent new things too.

Re:Next step

[Chris Mattern]

still don't understand what makes algorithms and software OBVIOUSLY not patentable. Also, stop misusing the word "mathematical". I am not a proponent of software patents; I just don't see what makes software patents so different from other patents, and I haven't seen a single logical argument against software patents that doesn't involve circular reasoning.

Because a patent has to be (or least used to have to be) for a *device*. What's more, for a device that can be operated for some useful purpose. Abandoning that principle was, IMHO, not a good decision. You could patent a device that included software, and people couldn't replicate the device as a whole. But you couldn't just patent software; algorithms and methods are not devices.

Chris Mattern

Re:Next step

[Dog-Cow]

The "don't RE" clause is completely unenforceable. Even the DMCA allows RE, and it's certainly not a copyright issue.

Re:Next step

[Anonymous Coward]

Please keep track of the difference between copyright and patent.

Copyright applies to the exact expression that someone uses. Ten different writers can write about exactly the same (public) event, giving the same information. As long as each writer puts the event in their own words, then each of the ten writers' stories are under copyright.

Patent applies to ideas, no matter how the idea is implemented.

Therefore, reverse engineering -- even into the same language as the original -- has never conflicted with copyright law, but it often conflicts with patent law.

Re:Next step

[UncleTogie]

However, in practice, this would mean that there is almost zero financial incentive to produce new innovative, software outside of the service revenue model.
So this would have the effect of keeping corporations from feeding us as much sheer crap, while enabling enthusiasts to get back to creating tools instead of trolling patents to see if they'll be sued.

Fine, where's the downside?

Re:Next step

[Anonymous Coward]

Copyright covers unpublished material as well. The rules are slightly different, but just about anything you create that *can* be copyrighted *is* copyrighted from the moment of creation.

Re:Next step

[Red Flayer]

Thanks, sorry I missed that. Should've thought that through...

Re:Next step

[landryraccoon]

Patents are supposed to encourage innovation by allowing people to reveal their inventions to the general public, and therefore allow everyone to build on that innovation. The patent holder now has an incentive to reveal their craft rather than keep it a trade secret.

The reason this shouldn't apply in software is that patents don't encourage people to reveal how they did things - commercial software is closed source. Effectively, everything is a "trade secret". Microsoft holds a ton of software patents, but it doesn't reveal it's source code or anything that would benefit the industry as a whole. In effect, software patents become for that company a one-way grant of rights over the public, with no benefit flowing to the public as a consequence. They could achieve the same result by keeping everything a trade secret, without hampering anyone else's ability to innovate. I would argue that a company that seeks patent protection for software should be required to reveal the source code of that software, so that general innovation is promoted. They can still claim patent protection on that software, but everyone is entitled to learn from and build on the source code it protects.

Re:Next step

[trianglman]

Not necessarily. Its not legal to distribute a book in a different language, so it could be argued that implementing the same code in a different programming language would be infringing on the original copyright. Thats what makes this such a gray area. IANAL, but I would say that implementing the exact same algorithm would be closer to copyright infringement, but implementing a new algorithm based on the original would not (thus why so much non-fiction can be about the same events and even cite each other as sources).

This may just be perfect world thinking on my part though...

Re:Next step

[PCM2]

algorithms and software (just a bunch of algorithms ) are just representations of a mental process. As soon as you allow them to be patented you make thought itself against the law.

If I've got an RS-232 cable plugged into a computer and its nothing more than few lengths of copper wire, then I run a piece of software on the computer and now there's electrical current on pins 2, 8, and 11 of the cable, I'd say that's caused a change in the physical world. It's not just a "mental process," any more than a [patentable] method of putting threads on a screw is a mental process.

We don't live in the Matrix. Out there in the real world, people use computers for actual work. They store data and perform operations upon that data that yield new datasets that did not exist previously. I don't really see how a process that takes an information resource and adds value with computer software is substantially different than any process that takes a raw material like iron or petroleum and adds value to that (and on up the value chain).

Re:Next step

[PCM2]

The average 5-year old is smart enough to figure this out.

So really, the problem is not necessarily software patents, but the fact that there doesn't seem to be an effective standard for obviousness for software patents. Which I guess is what the Supreme Court hopes to rectify?

Re:Next step

[TooManyNames]

I'm not really sure what you're getting at here. Algorithms are no more representations of a mental process than heat engines or ASIC chips. Algorithms do require a precise interpretation of mental processes, but then again so did every invention ever conceived. In fact, algorithms developed to leverage the way a computer works may have almost nothing to do with the corresponding mental process.

For example, take a simple algorithm which decides the next best move in a chess game... do you really think that the standard mental process is to recursively examine the next several moves and potential counter moves for a given board layout. Similarly, is the typical mental process for using language based off of some well-defined CFG?

Algorithms are designed according to the availability of several functional units not offered by the human brain. Software based off of mathematical algorithms exploit the availability of an ALU and/or FPU. Hardware might even be developed to accelerate frequent, specific tasks required by software (such as designing an accelerator to perform matrix multiplications) in which case the software is optimized according to the availability of such hardware.

The truth is that, despite some superficial similarities, both the underlying design and functionality of a brain and computer are quite different and serve different purposes. To argue that there is no difference in the way each is used (which is what you are saying when you claim that software really isn't any different from thought) is to ignore the very structure of a computer.

Re:Next Step

[reebmmm]

IAALBNYL (I am a lawyer, but not your lawyer), so let me dissect your analysis here.

First, while I'm not entirely sure your first paragraph's point, I can guess that you are upset that the entire idea of the FOO algorithm can be protected. This isn't an entirely coherent with respect to any of the intellectual property regimes anywhere. First, to the extent that a patent may apply, a patent would cover it only to the extent that it is a "process, machine, manufacture, or composition." The problem with respect to computer algorithms is that they are almost always reducible to a machine. This makes sense and why it's difficult to object to software patents on these grounds. Indeed, many of the most innovative non-software patents are essentially algorithms reduced to machines. While the Microsoft v. AT&T case didn't come out and say, "software as software is unpatentable" it was mentioned by both sides at oral arguments.

Second, to the extent that it relates to copyrights, copyright only protects a particular implementation of the algorithm. That is, the exact code that performs the algorithm as fixed by the author. Even then to the extent the algorithm dictates the implementation, there may not be much copyrightable material.

Third, disclosure only requires enough information to enable the claims. Essentially, enough disclosure to tell the fictional person having ordinary skill in the art the steps to get from A to B. A patent would never asked to disclose source code because, frankly, that's irrelevant. The fact that the steps might amount to a million lines of code really isn't the point either.

Fourth, litigation over software patents would be considerably easier if there really was a "large body of prior art." The fact of the matter is that there isn't. At least there isn't relative to other more developed areas.

Finally, it'll be interesting to see if the KSR opinion changes your guys about the "trivial or obvious combinations." I posted a similar comment at patently-o.com. To the extent that a software patent really is just taking known processes from the real world and adding a computer (and achieving no additional benefit), those patents might be history. However, that might also be a very easy issue to get around (find a synergy--efficiency, speed, accuracy, etc.).

Re:Next step

[naasking]

I am not a proponent of software patents; I just don't see what makes software patents so different from other patents, and I haven't seen a single logical argument against software patents that doesn't involve circular reasoning.

Two things:

1. Scarcity: ideas, knowledge, information, etc. are not scarce like physical inventions are, so the implications for the market are far different.
2. Duration: as a consequence of the first, because information is so easy to duplicate and distribute, advancement in this field is much faster than with physical inventions, and the innovation becomes "common practice/knowledge" much sooner; also, the cost of development is much lower than physical devices. I think I would be all for software patents that lasted 1-3 years.

The terms of the patent should be dictated by the nature of the innovation; something which advances the state of the art by 20 years, can be justifiably granted a patent of 14 years. Something which advances the state of the art by 6 months to a year, as software does, cannot be justifiably granted a 14 year patent.

Re:Next step

[Anonymous Coward]

you ever seen a copyright on a number? of course not, a long number isn't copyrightable. yet suddenly when you encode a text into a long number it is copyrightable?

Re:Next step

[enjo13]

A atom is not patentable, a new type of medicine is nothing more than a particular arrangement of atoms, therefore that medicine should not be patentable.

You can apply this logic to lierally everything. If the conclusion you reach is that NOTHING should be patentable, that's one thing. To exclude software (at least in this case) as being unique is another altogether.

Re:Next step

[Anonymous Coward]

Yes, but now you're talking about a physical cable, a "RS-232 cable," which is different from the algorithm. Sure, patent the cable, but the algorithm is different.

I think why people cringe at the idea of patenting math or algorithms is because they are seen as discoveries of natural phenomena, which are not patentable. A mathematical theorem is seen as necessary, if not known a priori. This is why we have proofs.

The idea of patenting math or algorithms is to indirectly suggest that somehow, the identities or theorems could somehow be different, which flies in the face of logic--in fact, is contradictory to the idea of logic itself.

This is on top of the fact that a mathematical theorem or algorithm is an idea, not a physical product. You can express quicksort in a variety of different languages, for example, suggesting that the algorithm itself is different from its implementation--which is critical to the idea of a patent.

I agree with other posters that software can be copyrighted, but that's a whole different issue. That's more akin to a particular set of source code, which is different from the ideas underlying the code.

Re:Next step

[autophile]

What about backwards engineering a software product and implementing the same (patented) algorithms via different language? Still a copyright violation, or no?

I wouldn't think so. Copyright is supposed to protect a particular expression of an idea, not the idea itself. Now, is it a patent violation? For now, I think so. Although patents are supposed to protect an implementation of an algorithm, the courts seem to think the algorithm itself is patent-worty.

But then again, I'm not a lawyer, so I'm taking the sane interpretation!

--Rob

Re:Next step

[jimstapleton]

by pirating it though, they are breaking copyright.

Re:Next step

[Chris Burke]

The subject is patents, not copyrights. And because copyrights protect specific representations, yes you can have a copyright on a number. You can't copyright the first million digits of Pi (because you didn't create them), but you can copyright, say, a t-shirt with the first X digits of Pi arranged to look from a distance as the symbol Pi. A treatise on math cannot be patented, but it can be copyrighted.

Re:Next step

[Josef Meixner]

If I've got an RS-232 cable plugged into a computer and its nothing more than few lengths of copper wire, then I run a piece of software on the computer and now there's electrical current on pins 2, 8, and 11 of the cable, I'd say that's caused a change in the physical world. It's not just a "mental process," any more than a [patentable] method of putting threads on a screw is a mental process.

And I delete your software, write one of my own and also make pins 2, 8 and 11 change their electrical potential. And now tell me, is the ability to exhibit reactions to the physical world a property of your software, of my software or perhaps of the common hardware running the software?

Re:Next step

[Anonymous Coward]

Not true, algorithms are no different then design specifications for hardware. Software is a combination of algorithms (actual innovation, and in truly innovative cases should be patentable), and intellectual art (the overall design, look, the actual code, its intended purpose, etc).

To support my claim, i bring to light a actual patent, to make things simple, thats keep it computer related, a patent for a electronic circuit. Im sure youll agree electronic circuits are patentable. I claim that a algorithm patent is no different then a circuit patent, and that logically flows from algorithms and physical devices being of the same nature in different worlds. A algorithm is a set of instructions on how to accomplish a task, a physical device is used to accomplish a physical task. A algorithm, being a set of instructions, is used to accomplish a task, while a device, being physical is used to accomplish a task. A circuit is nothing more then a algorithm implemented in physical hardware, while at the same time, a algorithm is simply a device implemented in words. As such, algorithms should be patentable, coming up with new, useful, and practical ones isent easy, and should be preserved rather then hidden. While you might argue software is just a sequence of instructions, its also a obvious set, and, is influenced by intellectual arts (see below), intellectual arts can be copywrited and anything that can be copywrited should not be allowed to be patented (you cant have things both ways). Thus, mostly only realistic to patent actual algorithms, like how to solve a kylouenoaoeupih equation (yes, thats made up). Sure, the patent system will need some reform, mainly to patents to be easily challenged, and removing the patent courts that essentially rewrote patent law, as well as changing the rules of what can/cant be patented (as i already said, if it can be copywrited, it cant be patented. By that, i mean if the patent covers a idea, over a exact implementation, it cant be patented, ideas=copywrite not patents).

Other aspects of software, for example, such patents as "one click shopping", and "determining action based on length of mouse click" are by all definitions not algorithms, but ideas, and should be covered by idea based laws (copywrite and trade secrets). While im talking, i might as well continue. Software should fall into three areas, patented, copywrite, and trade secret. A patented software is just a implementation of a algorithm, nothing special, and so its up to the patent holder to discuss whatever. As far as trade secret vs copywrite: it should be a pick one, and only one, situation. A copywrited software must be open source. This idea flows naturally from copywrites themselfs, they are supposed to encourage the intellectual arts by allowing artists to control their work, and have fair use. A close sourced software cant be used in fair use, as you cant see its source code, moreover, the source codes might never be released, which goes against copywrites, as it does not benefit society if the sources are closed, and the project dies, the program is simply forgotten, rather then becoming public domain. Fair use in software copywrites also will allow software to be studied, much like book writers read other writers books, movie makers watch other peoples movies, etc. Close sourced software falls into trade secret, not much protection, but who cares about that?

Re:Next step

[Ngarrang]

So really, the problem is not necessarily software patents, but the fact that there doesn't seem to be an effective standard for obviousness for software patents. Which I guess is what the Supreme Court hopes to rectify? In my view, yes. If you have created a piece of software that does something completely new and novel, then maybe. But, without a legal definition of "obvious", we will continue to have people abuse the system instead of working within the spirit of the law. But, even here, it has been argued that maybe Copyright law is more appropriate than patent law.

Re:Next step

[Chris Burke]

Software is unique, though, in that it is literally nothing more than math. Everything at some level involves math, as in it follows the physical laws of the universe, but that doesn't mean it is math. Software is math. Software is about a concept, and the concept that software describes with every single line and statement of actual code is a mathematical concept.

There's a very clear difference here, as you should be able to see by three things involving parabolas:

Math book: h = vi * t - 9.8 * t^2

C code: double height = v_initial * time - 9.8 * time * time;

Physics: Toss a rock straight up in the air with some initial velocity, and check its height after some period of time.

Minus innaccuracy in the gravitational acceleration, all of these things in some way describe the same concept: motion of an object subject to gravity. Math is involved in some way. However by virtue of being representations, two of these methods are only the math, while the third also involves a real physical object that undergoes change. Note especially that the math book (Which I hope you'll agree is math) is basically identical to the C code version, except one is designed to be read by both humans and computers. Though with programs like Maple, even the first version is "computer readable", despite being most definitely a representation of math and nothing more.

Re:Next step

[cpt kangarooski]

The idea is - if it can be created/distributed at such "minimal" effort that no cost is required, then it the patent is of questionable novelty.

That has absolutely nothing to do with novelty. Novelty is whether the invention is new or not. Nor does it have to do with nonobviousness. Your proposal is simply an exception for people who make software which they give away for free.

Frankly, I don't care for it. A broad exception for non-commercial activity by natural persons might be okay for absolutely any kind of patent (e.g. if you want to brew up a patented chemical or something in your basement, then that's fine), but I don't see why it should only be applied to software.

Re:Next step

[cpt kangarooski]

Reverse engineering has never been a copyright infringement. A copyright covers an expression of an idea. So long as your expression of the same idea is not copied from someone else's expression, there can be no infringement, even if they happen to be identical (which is in fact more likely than usual in the case of software, which is pretty structured). OTOH, a patent covers an invention regardless of how embodied. Even if someone independently comes up with the same invention and makes an embodiment that is quite different from that of the patent holder, it would still be patent infringement.

Re:Next step

[dosquatch]

A atom is not patentable, a new type of medicine is nothing more than a particular arrangement of atoms, therefore that medicine should not be patentable.

A medicinal substance is not patentable, the method for producing the substance is. Find a different method to make the same molecule, and you too can sell viagra.

Re:Next step

[cpt kangarooski]

There is no grey area. The issue is whether you are copying the expression or not. The idea underlying the expression is not copyrightable and may be copied from any source. The expression may not be copied, but can be independently reproduced identically, or can be totally different.

If you translate a book, then you're just making a derivative of it. But if you write a new book that uses the same basic plot but which is not a copy of how that plot is expressed, then you're fine.

In software, if you copy the code directly, you're in trouble. But if you write a new program that works exactly the same, you're fine. So long as you aren't copying portions of the code, it doesn't matter whether the algorithm is the same or not. And the more that the code lacks creativity because it is dictated by things like efficiency concerns, the less likely it is to be copyrightable at all.

And also historical and factual events are noncopyrightable. You can copy the fact that the Declaration of Independence was written in 1776 from the date on the document itself, from a history book, or from a movie. Remember that not every little thing that compromises a copyrighted work is itself copyrightable or copyrighted.

Re:Next step

[Anonymous Coward]

Maybe this will help educate you:

The purpose of patents is emphatically not to help people exploit their inventions for money, I am sorry but they are not. The overeaching goal of patents is to promote innovation and R&D investment into long term, expensive research and development projects. It is universally agreed in the patent law of all countries that mathematical formulas are not-patentable. The purpose for this is that they are too valuable to a broad range of different technologies to be monopolised even for a short time.

For example, suppose you develop a differential equation for modelling fluid dynamics in washing machines (sorry, really can't be bothered think too hard of a good example) you then, from this analysis, develop the best washing machine ever and sell loads of them. If it turns out that the same equation has application in computer graphics for fluid simulation then you should not be able to prevent someone from using it - they work in a completely unrelated industry which does not effect yours and there is no way you would have even considered using the equation for that, nor would you even want to because you are busy making money from washing machines.

Instead of allowing you to patent the formula, then charge all and sundry for so much as writing it down, you are allowed to patent the design that resulted from the formula. This balances protection of your R&D investment against the advancement of technology across all disciplines of engineering. It does not matter that the formula took a year to develop, and the resulting design took one month, nobody said that patent-ability was proportional to R&D investment, it is the balance between technological advancement and individual reward that takes priority.

The main problem with algorithm patents is something that is non-obvious one day can rapidly become a facilitating technology in a number of new pieces of software that are unrelated to the original the next day. Much like our washing machine formula finding a use in computer graphics. This is why civilised societies like Europe only allow algorithms to be patented in regards to their technical effect. If the same algorithm is used but has a different technical effect (i.e. solves a different problem) then it is not covered by the patent. And guess what, you have to specify the technical effect on the day you file the patent! You can't go back a year later and add a new technical effect as you could in IP-confused countries like the US.

The (admittedly laboured) point I am trying to make is that algorithms are fundamentally different from other inventions because their technical effect is not limited to a single problem which the inventor set out to solve. Hence, the inventor needs to put his cards on the table when he patents an algorithm. He needs to say what problem he was solving and the scope of the patent must be limited to that, if it is granted at all.

Re:Next step

[plasmana]

I think that's being a bit dramatic. You can think all you want. You just can't use your ideas for commercial gain.

Re:Next step

[Old Benjamin]

First of all, the purpose of patents is not to spur inventors to invent. They exist because when you invent a process, or anything original, you have the right to your invention. Second, even if it was the point of patents, they don't help. Abolish patents, and software firms will have no incentive to write anything: anyone can steal it. Their only solution? Do what Microsoft does and have ridiculous anti-piracy measures that don't even work. I will admit that some patents (like 1-click) are ridiculous however.

Re:Next step

[statusbar]

"The Supreme Court of the United States will hear a landmark patent case involving whether or not thoughts and relationships are patentable.
--jeffk++

Re:Next step

[patmc]

I have to agree with you. All ideas can be boiled down to a "mathematical" formula eventually. What differentiates inventions that are implemented in software over inventions that are implemented in hardware?

Re:Next step

[Chris Burke]

If I've got an RS-232 cable plugged into a computer and its nothing more than few lengths of copper wire, then I run a piece of software on the computer and now there's electrical current on pins 2, 8, and 11 of the cable, I'd say that's caused a change in the physical world. It's not just a "mental process," any more than a [patentable] method of putting threads on a screw is a mental process.

Search the above quote for the bolded part to see both the thing that turns software from an abstract representation of math concepts into actual physical changes in the physical world, and the thing that as a physical invention is (and should be) patentable.

Re:Next step

[sumdumass]

It appears that a patent protect something that does something (a taks or specific purpose)in a certain way were a software patent envelopes the entire task forever.

Taking a patent out on a number 2 pencil wouldn't stop you or me from developing the ballpoint pen or chalk. A software patents on a word-processor, because of the function of the word-processor would preclude you from making lotus notes or network notepad without paying the word-processor patent royalties. And the thing is, copyright does such a good job already of stopping someone from stealing my work and claiming it for themselves that a patent isn't really necessary unless your trying to stop anyone from making something similar.

Imagine If i worked on the first SMB protocol and decided to patent a process and means to find, locaTe, access and/or use in some fashion files on another computer over a computer-network. It could have stopped HTML from being made, any windows networking or unix networking, possibly email and all from happening because of this one patent and force everything as you know it to pay some sort of fee for using it. Imagine someone having a patent on a door handle and lock as apposed to a certain type of door handle and certain type of lock that is more secure. This is the difference, Everything done in software is being treated as if it is brand new thought and encompassing everything were these devices have been around in some manual form forever and only the specific way t works should be protected. And this is easily done by copyright.

Re:Next step

[honkycat]

If you were to take a program written in Perl and rewrite it in Fortran, it's an entirely new expression. If you do a straightforward translation, it may actually be considered a derived work rather than a new expression. In that case, even if no line in the whole program is identical, it's still not clear of the original copyright. This is similar to a translation of a book from one language to another -- rote translation is not considered a creative expression.

Of course, IANAL...

Re:Next step

[cpt kangarooski]

First of all, the purpose of patents is not to spur inventors to invent.

Well, in fact, the purpose of patents is to promote the progress of the useful arts. This means having the most inventions invented, disclosed, and brought to market, for the least burden on the public. So a portion of the purpose of patents is to spur invention, but this is absolutely not the only purpose, and to treat it as if it were the only purpose would be a grave mistake. It would be akin to saying that the purpose of a steam engine is to do work and that therefore the engine should not have a governor attached to keep it working safely.

They exist because when you invent a process, or anything original, you have the right to your invention.

That is a tautology. It's also utterly wrong.

Second, even if it was the point of patents, they don't help.

That's certainly a point of view, and people have been known to make that argument. I think that this is the case for software and business method patents at the current time. But it is possible that they will be beneficial in those fields at some time in the future, or not beneficial in some other fields. Where a patent does not produce a net public benefit we shouldn't have that patent.

Abolish patents, and software firms will have no incentive to write anything: anyone can steal it.

This is demonstrably false. Business methods have existed since time immemorable, and novel, nonobvious business methods have been developed throughout history. But the US is one of the few, if not the only, place to offer patents for them, and then only in the past few years. Software is newer, but the same situation applies: it's only been patentable here for a little while, and in most of the world, not at all. The thriving global software industry and business generally prove that you are wrong again.

Their only solution? Do what Microsoft does and have ridiculous anti-piracy measures that don't even work.

That is not a solution. That doesn't even make sense, and it indicates that you're way out of your league on this.

A patent is used against industrial competitors to prevent them from using your invention for themselves. For example, there was an infamous patent on the use of LZW compression in GIF images. The patent holder could prevent anyone from writing their own software that did that; software piracy was utterly irrelevant to the issue. The fuss over this resulted in the development of PNG as a patent-free alternative that anyone could make an implementation of. That PNG was free to use didn't mean that it was lawful to copy someone else's implementation, but instead only that it was lawful to make your own implementation of PNG at all.

I suggest that you learn the difference between copyrights and patents, which both have to do with software, among other things, but which are not the same, and don't overlap, and then come back and maybe then we can have a sensible discussion.

Re:Next step

[Old Benjamin]

That is a tautology. It's also utterly wrong. Tautology: In logic, a tautology is a proposition that is already true by definition, not because of any logical deduction. Usually, it is a non-sensical statement. For instance, "All triangles have three sides" is an inherently true proposition, but it doesn't tell us anything new. [www.apologetics.org/glossary.html] So what you're saying is that it is true, true again, and then false? Either way, how is it false? Where a patent does not produce a net public benefit we shouldn't have that patent. What I'm getting here is a sense that all people exist for the public good. My question to you is: 1: Who does the public exist for/who is the public. 2: So should I devote my whole life to Open Source code and live off Raman for the rest of my life because it is good for the public

Re:Next step

[maraist]

I agree with you. There isn't any difference between a software program and a rope that lifts your computer thereby making it more portable. If you can patent one, then you can patent the other.

What I disagree with you on is the intent of the patent.. You imply that since the definitions are functionally equivalent, we 'should' allow software patents. I'd only argue that if we must have a consistent law that serves no useful purpose, then yes, allow software patents, because it's more consistent.

But the fallicy is that by definition then, virtually every void main() {printf("hello world");} should be patentable, since it represents a potentially innovative idea. Hell, how we document our code should be patentable (and I'm not being sarchastic). If it's a process that makes our lives more efficient, then it meets the same criteria as an innovation of technology.

Here's the rub.. Patents utilize profiteering to encourage innovation. So the metric by which we should judge it's success is of innovation levels, NOT profit. But 200 years ago, it was impractical to be an IP-firm. You couldn't just have lawyers on staff developing millions of patents, but that is possible today. The wild-wild-west of software is an IP pie still waiting to be carved up. Imagine if the English language could be patented.. If ways of writing prose. If note-taking organizations. If virtually everything a human being could possibly do from sun-up to sun-down was patented by somebody.. Then how could life exist.. Every human would live at the mercy of a set of lawyers who must, by law, grant you permission to continue about your daily habbit.

This is the natural conclusion of modern efficiencies of process development. You can write software which writes patententable processes for you (given whatever the current arbitrary constraints of 'too obvious' are).

The system is collapsing in our generation, because the system is no longer relevant.

It is still, of course, a source of MASSIVE money making, so those that utilize it are going to continue to support it. But it is hardly a requirement for the sustanance of society. It is hardly needed to continue to spur innovation - at least not in it's current broad-definition form.

What is the R&D cost for a new drug? Perhaps in the billions because of trials and the shere blind-randomness of most of the products (but hey, Edison successfully worked that way). What is the cost of developing a small software algorithm? Basically a week's worth of time of a PHD if the algorithm is REALLY critical.. But 99 times out of 100, it's some guy with maybe a college degree. Maybe even a team of them.

How long does it take to recoup that cost? Is innovation really stiffled because an angel investor is afraid of paying one smart guy for a week of his time? Is the patent really changing anyone's investment decisions here?

As a legislator, what is the practical decision to make today? (Remember, this isn't a moral issue, but a societal-good issue) That the wild-wild-west of software, needs to be encouraged because we simply don't have enough of it? Or that we are slowly seeing the destruction of the software industry because it is becoming a legal mine-field to solve everyday coding problems? By my above metric, software synthesis was at a MASSIVE rate through the 90s with few if any software-related patents. So unless software synthesis in the late 2000's is exponentially higher WITH patents, the role of patents is innapropriate.

I would venture to say that the computer hardware industry is in a very similar situation as software.. When the number of patents on a commodity good approaches the thousands, there should be warning signs going off in a legislator's head. The main reason we don't have insanely expensive computer parts is that most of these patents are defense-oriented (you can't sue me, because we are cross-licensing, I can hurt you just as much).

At the far other end of the extreme is the medical industry,

Re:Next step

[vux984]

I still don't understand what makes algorithms and software OBVIOUSLY not patentable.

For starters, software can be enumerated. I can trivially devise an iterative generating function that will generate all possible software programs. Furthermore if you provide me an existing program, I can tell you on what iteration my generating function will spit it out.

Software programs have a direct relationship to numbers. In a very real sense a useful software program is little more than a useful integer, like a very large prime number. Granted finding useful software programs (and large prime numbers) is hard but that is beside the point. They aren't so much 'inventions' as 'discoveries of a pre-existing truth'.

This characteristic of software has no 'physical world' counterpart.

Carrying on the 'discovery of a truth' aspect; is the notion that algorithms can be expressed in pure mathematics; e.g. lambda calculus. It would be dangerous to have the

Then consider that logic itself is nothing more than an algorithm, as is most of mathematics. Could you imagine science progressing in a world where the rules of logical deduction were someone's private intellectual property. Where deriving the fundamental theorem of calculus from limits is off limits. Where simply solving equations could infringe someones patent?

Suppose someone had patented the algorithm for determining distance travelled while under constant acceleration from a particular starting velocity in a given time frame.

compute initial velocity multiplied by time
compute the square of time
compute 1/2 the acceleration multiplied by the square computed above
add that to the first value we computed
result:
total distance travelled

turns out that 'algorithm' is the representation of a simple mathematical equation; worse the equation itself, is a simple calculus integral.

At the end of the day that algorithm represents a mathematical truth. Any other algorithm you imagine to solve the problem is mathematically equivalent. So if you can patent one algorithm to solve a problem, you naturally control all equivalent algorithms, and since all algorithms to that result are equivalent you control *all* the algorithms for that problem. You effectively patent the ability to solve the problem itself.

In the physical world, you are free to invent a variety of solutions to a problem. In software, there is often only one possible unique solution. Any other solution, even if developed independantly, and done completely differently might be shown to be a mathematically equivalent variation of the first.

Finally, in complexity theory for example, part of proving what complexity class a problem fits into is showing that a mapping exists from your problem to another problem in the class, such that if ANY problem in the entire class is solved all of them are solved. Finding the shortest route between cities for a travelling Salesman problem is the same problem as determining if a boolean expressian can be satisfied is the same problem as finding the smallet set of nodes in a graph that touch all edges, is the same problem as determining if their is a subset of numbers in a set that add up to a specific number, etc, etc, etc.

The problems, by virtue of the presence of a mapping function, can be said to be equivalent. If I patent an algorithm/solution to a problem for which there exists a mapping to a 'different' problem perhaps I automatically get control over both solutions by virtue of the fact that my algorithm solves any problem that can be mapped to the problem I've solved, which means your different algorithm which solves a different problem is still mathematically equivalent to my algorithm, and therefor infringes my patent.

You could try and say that different algorithms that solve the same problem can be patented separately even if they are mathematically equivalent, but that would be pointless. I could trivially take any algorithm and transform it into a different algorithm that is mathematically equivalent and then dodge your patent.

Patenting algorithms is obviously a bad idea if you understand the relationship of algorithms to mathematics.

Re:Next step

[cpt kangarooski]

Your statement was: [Patents] exist because when you invent a process, or anything original, you have the right to your invention.

A patent is a right to an invention. So you essentially said that the reason we have patents is because when you invent something patentable, you have a patent.

The problem is that while you've claimed that it's true because you've claimed it's true, it's actually false; that's not the reason why we have patents.

What I'm getting here is a sense that all people exist for the public good.

That's an interesting philosophy, but I don't share it, I'm afraid. Still, so long as you're willing to live by it and not impose it on others, good for you.

My question to you is: 1: Who does the public exist for/who is the public. 2: So should I devote my whole life to Open Source code and live off Raman for the rest of my life because it is good for the public

Well, you're probably missing two things then.

First, a patent is an artificial, exclusive right. That is, no one just magically has a patent. A patent must be given to them from some outside authority, i.e. the government, which derives its right to govern from the consent of its people, and which acts in their common interests, or is illegitimate. Further, it's not a right to actually do anything; it's a right to prevent other people from doing things. The right to practice the patent is natural, however.

This means that if the county of ABC consists of Alice, Bob, and Carol, and grants Alice a patent, then 1) Alice has the right to prevent Bob and Carol from doing whatever the patent teaches for the duration of the patent, 2) this is because Bob and Carol have voluntarily given up their natural right to do that, by giving Alice a veto power over them, and 3) Bob and Carol are okay with this for some reason, even though it's an imposition upon them. Why would they be okay with it?

Because the second thing is that patents are utilitarian in nature. Alice, Bob, and Carol are each acting in their own self-interest. Alice wants a patent because she can exploit it to get money from Bob and Carol. Bob and Carol are willing to suffer the burden of the patent because they want to get the invention invented, disclosed, and put on the market. But Bob and Carol are unwilling to suffer a burden greater than the benefit they derive from this system because to suffer too great a burden would contrary to their self interest. Likewise, Alice is unwilling to invest her resources in inventing unless the rewards to her are greater than the benefits she'll derive from the process.

Some of the benefits Alice receives are unaffected by the patent system. For example, she could become famous for her invention, like Edison, or Bell. The patent system doesn't help her get famous. And if getting famous was enough for her, then it would be contrary to the interests of Bob and Carol to give her a patent since they'll always prefer to get inventions for free rather than to pay for them, if this is possible.

What I'm saying is that I think that the natural incentives in certain fields are currently great enough to produce a lot of invention, disclosure, and bringing to market, that we don't need to add the artificial incentive of a patent. And that further, the burdens of a patent (e.g. the monopoly pricing that the patent holder will have) are likely to outweigh the benefits, given how slight the benefits happen to be here.

So getting back to your question, while I wouldn't have the first problem with you devoting yourself to a life of charitable software development, I also don't expect you to. But I don't think I have to give you a special bonus for software development on top of what you could get with a patent-free market; I think you'd do it anyway, even if you couldn't get a patent.

Re:Next step

[curunir]

Math is not patentable. Software is nothing but a computer-understandable representation of math.

You're really over-generalizing here. Mathematical concepts cannot be patented. The computer-understandable representation of math is not a representation of mathematical concepts but rather the application of those concepts. Applying math for a non-abstract purpose is, and should be, patentable.

A software patent however does not involve such a computer-understandable representation, it merely covers the idea.

Software patents often encompass much more than just an idea. There is often a significant amount of research inherent in the patented algorithm.

Take for example the mp3 algorithm. There are many individual components to the algorithm that are fundamental mathematical concepts and shouldn't be patentable, even if they were discovered today ((F)FTs, for example). However the algorithm is the result of a lot of testing to determine which information can be dropped from a raw audio sample without significantly impacting how human beings hear that sound (waaaaay over-simplifying here, but the full details are beyond the scope of this discussion). The innovation is not in discovering those fundamental mathematical concepts, but in realizing how they can be applied to real-world problems. Removing protection for this type of work would be a serious mistake.

However it would also be a serious mistake to allow over-broad patents. In the same example, if the approved patent were for "a method of compressing a raw audio sample by removing elements that have little effect on the resulting sound," then the original work on mp3 would preclude similar work into AAC, OGG and all the other codecs that accomplish a similar task using a different means and there would be no innovation in that area.

There is a balance that needs to be struck between those who believe that software patents shouldn't be granted and those that believe that 1-click is a valid innovation. The only solution to strike that balance is to ensure that patent examiners are knowledgeable and thorough enough to discern when there is true innovation in the patent they're approving. It may be the case that granting no software patents is less destructive in the interim that allowing overly-broad patents, but it is far from the most ideal situation.

Re:Next step

[Old Benjamin]

A patent is a right to an invention. So you essentially said that the reason we have patents is because when you invent something patentable, you have a patent.

No, a patent recognizes the right to an invention: Just because China doesn't provide people freedom of speech doesn't mean they don't have the right to it, China just is taking it away

Also, if a patent is the right to an invention how can you come back and say that you don't have the right to the product of your work

Next you say you don't share the philosophy that all things should be for the public good, but you say that that is the purpose of patents.

What I'm saying is that I think that the natural incentives in certain fields are currently great enough to produce a lot of invention, disclosure, and bringing to market, that we don't need to add the artificial incentive of a patent.

Of course they are. Unfortunately, we aren't talking in terms of absolutes of no incentive or incentive, but rather how much. So yes there would still be incentive, but no, if we have patents there are even more incentives.

Basic economics tells you that more incentive creates more production

Re:Next step

[Anonymous Coward]

Not against the law per-se. It more makes thoughts exploitable for fees by capitalists with lots of lawyers.

Re:Next step

[jonbryce]

A simple translation of a work into a different language is a derivitave work, and requires a copyright licence.

That is well establised for translating from English to French and so on, so I think the same would apply for translating from Perl to Fortran.

Re:Next Step

[einhverfr]

IANAL, but I did at least read the syllabus in the opinion and plan to read the rest when I get a chance.

It looks to me like this case is *very* relevant to software patent issues for a simple and overlooked reason: the idea appears to be that an incrimental advancement that would occur during normal engineering improvements would not be patentable as these sorts of things seem to be the very areas targetted in the current Supreme Court's ruling, Previously, "obvious" meant that there were no components not previously known adn that people were talking about the idea prior to patenting. In short, anything "obvious" was only obvious due to the existance of prior art which seems to me to make the term meaningless.

As a software engineer, I will say that 90% of what goes on involves nothing more than small incrimental advances. Amazon's one-click shopping patent, for example, involves nothing more than a small incrimental advance over traditional shopping cart systems. I would be willing to bet that the vast majority of software patents are obvious anyway.

Of course, the real reason that companies seem to try to accumulate obvious and trivial patents is in defense. Litigating patents can be expensive, so the idea seems to be that if one is sued, you can tie up an opponent's resources for an extended time period and dig them into the ground financially no matter who wins. For example, see IBM's patent counterclaims wrt SCO.

Finally, I would point out that most businesspeople and software engineers would do well to make the study of intellectual property law (with proper deference to lawyers) a priority. I think it is important to know what can be subject to copyright, trademark, or patent protection. I would not presume to offer any authoritative ideas for discussion (only the Supreme Court can do that ;-), but the next best thing is a lawyer), but knowing some of the limits has come in *really* handy a few times when I had to deal with trademark trolls.

Re:Next step

[cpt kangarooski]

No, a patent recognizes the right to an invention

Well, given that a patent is a right to prohibit other people from practicing it, how can someone have a natural right to stop others from doing something which they do have a natural right to do? Remember, the patent holder is the equivalent of China in your analogy, and the people against whom the patent is used are the people of China.

how can you come back and say that you don't have the right to the product of your work

You do not have a natural right to stop other people from using your invention. But they might give you a right over them which permits you to stop them. They're only likely to do so, however, if it is in their interest.

Next you say you don't share the philosophy that all things should be for the public good, but you say that that is the purpose of patents.

And since patents are not 'all things' then there's not much of a problem with that. Just because patents are necessarily utilitarian doesn't mean that everything has to be.

Of course they are. Unfortunately, we aren't talking in terms of absolutes of no incentive or incentive, but rather how much. So yes there would still be incentive, but no, if we have patents there are even more incentives.

Basic economics tells you that more incentive creates more production

Only if your basic economist doesn't look at the big picture.

Let us imagine that we have a factory which makes widgets. Let's say that you work for a widget factory, making widgets, at $10 for each widget you build. The factory could presumably incentivize you to make more widgets by paying you $20 for each widget. After all, you want that extra money, right? Well, what if they paid you $10 million per widget? Is that a million times more incentive for you? Are you going to work a million times harder and faster?

No, you're probably going to stop making widgets for 40 hours a day 50 weeks a year and instead make one widget every year or two. Money is more valuable to people who haven't got it than it is to people who do. A very poor person cannot afford to pass on a job. A very rich person can sit around unemployed and still live comfortably. Each additional dollar has less utility than the one before it. We have progressive tax codes for similar reasons.

Meanwhile, the widget company is going to go out of business very rapidly because their costs are going to far outstrip their revenues.

So no, while we are dealing with an issue of how much incentive to add to the varying levels of natural incentive already present, adding more incentive is not a good plan. First, because excessive incentive accomplishes very little as opposed to a modest incentive, which accomplishes a lot. Second, because the public has to bear the cost of this incentive, and since they want the greatest benefit to them, that means the most benefit for them with the least cost -- and thus the least incentive that yields the greatest benefit.

So if you could get 90% of the invention for 50% of the cost by halving incentives, then that would probably be a good idea. It's nearly as good as your current situation and far cheaper.

In extreme cases, patents can even have a negative incentive effect. This is because, like many monopolists, patent holders are rent seeking. They will try to expand the scope and duration of their patent so that they can drive off or swallow up their competitors. In those circumstances, competitors often prefer to direct their efforts elsewhere than to bother.

Re:Next step

[Derkec]

I have mixed feelings on software patents. I think they are appropriate, but probably run too long.

Often interesting software (as opposed to one-click stuff) takes months or years to develop the proper concepts and approaches for. Once you have the concepts and approaches down, the coding is relatively straight forward. Copyright protects our coding, but that may represent a small fraction of the effort that went into the development of the code.

So if my company spends 12 months talking to customers about a problem space, then 12 months prototyping and experimenting, and then another six months to take what we learned to a marketable product, we spent 2.5 years working on a product.

Without the software patent, a lazy competitor can spend one month understanding what the heck we did, and six months doing his own development and then compete with us on more or less equal footing.

So for 2.5 years of work, you only get a half year of market advantage. Does that pay for the extra R&D time? The extra risk in case it didn't pan out?

Now, that's an over simplificiation but I think it suggests that there is a role for software patents to play.

Re:Next step

[Old Benjamin]

No, you're probably going to stop making widgets for 40 hours a day 50 weeks a year and instead make one widget every year or two

Except now if I make one-tenth as many widgets say, the company can expect to see nearly every person in the country applying for a job, and production skyrockets.

Remember, the patent holder is the equivalent of China in your analogy, and the people against whom the patent is used are the people of China.

Actually the people with the right are the people. The people who should be giving it are China

The biggest problem with what you are saying, regardless of which one of us is right about the economics, and how much is produced, is that you refuse to believe that if someone makes something (a song, algorithm, book, etc.) they don't have the right to make money off of that. It is not about the 'recognized right,' the point is that it is only fair to them that we let them make money for the products of their mind, and the way to do that is patents. Meanwhile, the widget company is going to go out of business very rapidly because their costs are going to far outstrip their revenues.

In the real world there is no widget factory per se, instead there are several companies each competing for your 'labor'. The result? Fair market value.

get 90% of the invention for 50% of the cost by halving incentives

No. The goods get sold at market value. The only difference is that there is now about 10% more invention. And you might say that this creates a monopoly on the product. Actually it doesn't. People will still only want to pay a certain amount, and there is a certain price where profit would be maximized, this is the same regardless of how much the inventor is payed

Re:Next step

[ClassMyAss]

The biggest problem with what you are saying, regardless of which one of us is right about the economics, and how much is produced, is that you refuse to believe that if someone makes something (a song, algorithm, book, etc.) they don't have the right to make money off of that. It is not about the 'recognized right,' the point is that it is only fair to them that we let them make money for the products of their mind, and the way to do that is patents. Meanwhile, the widget company is going to go out of business very rapidly because their costs are going to far outstrip their revenues.

It seems that you are being deliberately dense about this - being granted a patent is NOT equivalent to being allowed to make money off of something. It is specifically about denying anyone else the opportunity to make money off of the invention, even if they independently stumble upon your innovation themselves. You are right - it is only fair to let people make money off of their inventions, but patents have nothing to do with it. Patents grant the exclusive right to make money off of an idea. Which leads right in to your next statement...

In the real world there is no widget factory per se, instead there are several companies each competing for your 'labor'. The result? Fair market value.

Fair market value is exactly what a patent avoids; it is the entire reason people want patents, since without competition you can jack your prices and be the exclusive supplier.

Not that patents are always evil, though. I do tend to have some sympathy for the pharms because the amount of R&D required to come up with their drugs honestly would not (and could not) happen without the financial incentive of a temporary monopoly on the results. But one-click shopping? Marching cubes? These things are just ridiculous, and it really does seem like software patents are way off-base lately.

Re:Next step

[cpt kangarooski]

you refuse to believe that if someone makes something (a song, algorithm, book, etc.) they don't have the right to make money off of that

No, you've misunderstood me completely. I have no problem whatsoever with someone who makes something making money from it. I'm all for it, in fact.

But a patent is NOT the right to make money from an invention. It is the right to deny other people their right to make money from your invention; it is a monopoly. That is why it is called an exclusive right: it is the right to exclude. Without a patent, the inventor would merely be in a free market.

Re:Next step

[cpt kangarooski]

So for 2.5 years of work, you only get a half year of market advantage. Does that pay for the extra R&D time? The extra risk in case it didn't pan out?

What if it does? Patents aren't meant to reward inventors for their investment, they're merely there to get them to make investments they wouldn't otherwise have made. If a half a year of market advantage, plus whatever you can wring out of that (e.g. mindshare, a leg up on the next version) is enough, then there's no need for a patent. Why should the public pay for the cow when they can get the milk for free?

Looking at the US software market before software patents and looking at the rest of the world, I think that the natural incentives are probably sufficient. I don't think this will always be the case, but I think that that's where we presently are.

Re:Next Step

[rswail]

IANALBIDWT (I Am Not A Lawyer, But I Deal With Them)

Let me dissect your analysis of the analysis...

First, algorithms have always been held to be inherently unpatentable. The problem is not that computer algorithms are reducible to a machine. The problem is that they are implemented on a general purpose machine. The idea of a general purpose machine is a patentable idea (lets not get into arguing that Turing is an algorithm, reductio ad absurdum). But having achieved a general purpose machine, ideas and/or algorithms reduced to concrete form by using that machine should not be patentable. The Jacquard loom was a general purpose weaving machine. The idea of using the cards to decide which hooks to use is patentable. But patterns expressed in those cards is not.

Second, copyright doesn't only protect a particular implementation of an algorithm. Depending on the court and circuit, there are differing abstraction and filtration tests, mise en scene tests, implementation dictated by external effects tests etc that either remove copyright or enhance it.

Third, I don't have an argument with your argument concernign disclosure. However, once the basic problem of allowing patenting of algorithms and/or business processes is resolved (hopefully by not allowing them), the disclosure issue is moot.

Fourth, the problem with litigation is what is accepted as "prior art" in the field of algorithmic and process patents. If the patent offices are willing to accept a new area of patentability, as they have with these sorts of patents, then it is only fair that they accept new inclusions of definitions of "prior art" that can be used to challenge these patents.

Fifth, the KSR opinion is like a breath of fresh air in the field of patentability. Triviality and obviousness are two different aspects that often combine in the area of software and business process patents. Most of the patents that so infuriate the software developers of the world are both.

Re:Next step

[PCM2]

The idea of patenting math or algorithms is to indirectly suggest that somehow, the identities or theorems could somehow be different, which flies in the face of logic--in fact, is contradictory to the idea of logic itself.

Hmmmm, I think I see your point, but... if you wanted to make Coca-Cola could the formula be any different? Would any other combination of ingredients in any other quantities produce the same flavor? So Coca-Cola was "there" before the people in Atlanta ever came on the scene. Seems like that road lies madness. Conservation of mass suggests that nobody has ever really produced anything since the Big Bang.

Re:Next step

[TekPolitik]

I still don't understand what makes algorithms and software OBVIOUSLY not patentable.

I don't know that anybody is saying that no software invention ever will meet the requirements for patentability. The real problem is that as the rules have been interpreted to date patents have been allowed for many things that occurred and were destined to occur in ordinary course of software development. Out of every 10,000 software patents there is maybe one that genuinely has the level of invention making it appropriate to patent. Because of the scale of abuse of the patent system in the software industry - where the damage caused by abuse far outstrips the benefits reaped from legitimate patents - the most obvious solution is to scrap them.

Some interesting passages for software from the syllabus:

1. "Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, for patents combining previously known elements, deprive prior inventions of their value or utility" (page 5). This is what the LPF has been saying for years.
2. "... a person of ordinary skill often will be able to fit the teachings of multiple patents together like a jigsaw puzzle" (page 5). This sounds exactly like software development. I would also note that you could substitute "literature", "prior works" or a whole range of other things for "patents" in this sentence.
3. "When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp" (page 6). This one is huge. Patent applicants, especially in the software industry but also in other industries, have been patenting entire problem spaces by patenting all of the predictable solutions. This decision will put a stop to that.

Also the patent office has been very lazy about assessing industry knowledge by assuming that if the industry knows something somebody will have patented it. They will not be able to assume that anymore.

The Court has phrased this as a minor correction to lower courts, but this minor correction is going to see massive numbers of patents invalidated. If you get attacked by a patent troll your defence just became a whole lot easier. It's not a complete solution to the problem of meritless patents, but it will help.

Re:Next step

[TekPolitik]

What about backwards engineering a software product and implementing the same (patented) algorithms via different language? Still a copyright violation, or no?

If it is a literal translation of the code into a different language, then yes, it's a copyright violation. On the other hand if the original code is an implementation of a known mathematical algorithm, and in the process of reverse engineering you derive that original algorithm and the new implementation only uses the algorithm rather than the code, then there's no copying of the expression in the code and so no violation.

Re:Next step

[TekPolitik]

Yet copyright exists only for items that are published.

This is not correct. Copyright can subsist in unpublished works. The location of first publication (if any) may affect the nature of the protection, but not in ways most people would care about.

Re:Next Step

[TekPolitik]

Third, disclosure only requires enough information to enable the claims. Essentially, enough disclosure to tell the fictional person having ordinary skill in the art the steps to get from A to B.

Although in practice patents are rarely disclosed in a way sufficient to duplicate the original invention - they are disclosed in a manner so obfuscated that it is usually far easier to duplicate the invention inadvertently starting with the market need than to do so deliberately based on the patent description.

Re:Next step

[tepples]

A broad exception for non-commercial activity by natural persons might be okay for absolutely any kind of patent (e.g. if you want to brew up a patented chemical or something in your basement, then that's fine), but I don't see why it should only be applied to software. Two reasons: 1. A computer program embodying an invention costs next to nothing to reproduce, unlike other goods embodying inventions that cost money for materials. 2. A government could use an exemption limited to software as a pilot program before applying it to other fields of invention.

Re:Next step

[twistedcubic]

I haven't seen a single logical argument against software patents that doesn't involve circular reasoning.

Nice troll. +5

Re:Next step

[Have Brain Will Rent]

For example, take a simple algorithm which decides the next best move in a chess game... do you really think that the standard mental process is to recursively examine the next several moves and potential counter moves for a given board layout.

Ummm, yeah that's exactly what I used to do when I played regularly. I'd go about 6 levels down before I had to stop. IIRC at the time of his victory Fisher said he looked 11 levels deep. Of course there is also a weighting function involved to decide the value of the terminal positions.

Re:Next step

[Cyberax]

There are too little really patentable algorithms. Personally, I know only a few algorithms: RSA/DSA encryption (it was NOT obvious in 70-s), some linear programming and schedule optimization algorithms (they are incredibly complex and take years to develop).

For example, our company now is patenting idea which I made up on the spot when asked how we can create a certain device. That's because we might be infringing someones patents (I was told to never EVER do a patent search). I don't think my idea deserves to be patented but we have no choice.

Re:Next step

[Old Benjamin]

Without a patent, inventors wouldn't be inventors. And for the last time, no a patent is not the right to something, it recognizes the right, the moral right, and not the legal one, to intellectual property.

Re:Next step

[Klintus Fang]

I have no particular opinion for or against software patents, but have to point out that your reasoning has a hole in it.

consider this scenario: big powerful software company X has a new competitor that has a software patent on some new idea they have developed. big company X considers this software a threat... so they duplicate the patented algorithm in a piece of software they write and provide it for free to their customer's in an effort to stiffle this new competitors primary revenue stream.

If it's okay to violate a patent so long as you do so at no profit to yourself, then the scenario I just described would be perfectly legal.

Which isn't to say that I think software patents should be upheld, but only to say that the line you are trying to draw between when a software patent should and should not apply doesn't seem to make much sense.

Re:Next step

[bhiestand]

My issues with software patents are two-fold. The first I believe has been mentioned a bit previously. All software patents are, pretty much by definition, a combination of obvious, ideas, and prior art. Software just isn't the same as mechanical engineering. You can patent a specific way a series of gears work within a pocket watch. You shouldn't be able to patent the idea of "allowing a database to import/export data to/from a spreadsheet". Sure, you could possibly patent a way of doing it, but you'd most likely be basing this on the prior art of somebody else's programming language and the obvious implementation of such. Imagine how that patent would read: "A system of using a function to compare the data between the two, followed by a the use of a function to see which data is missing from which file, concluded with a nifty if statement that writes the missing data into the file that doesn't have that data". This leads to what is happening right now, with every company trying to acquire every obvious patent it can think of in order to avoid from getting sued for implementations that a 10 year old could have logically come up with.

Issue number two is, in my opinion, far more terrible. Imagine what would have happened if patents like this were around in the early days of computing! Patents such as "a system of using numbers to address computers over a network" and "a process of interfacing 'network cables' to computers" would be widespread. This would have severely limited the growth of computing and they'd probably still be trying to sort out the legal implications. Given that these patents would have presented a serious hindrance to the fledgling computer industry, I think it's safe to say that they could still be a danger to innovation far into the future.

Your solution would make the world safe for open source, but it would still allow dreadfully damaging lawsuits against companies that are simply trying to use one-click ordering or allow information to be shared between databases and spreadsheets.

Re:Next step

[alienw]

For starters, software can be enumerated.

So can anything else. This is, quite honestly, the stupidest argument I have ever heard.

In a very real sense a useful software program is little more than a useful integer, like a very large prime number.

Oh, really? And you can write software to discover other software programs mechanically? Is that how they came up with the latest version of Windows, or did it involve a lot of programmers working on it?

Suppose someone had patented the algorithm for determining distance travelled while under constant acceleration from a particular starting velocity in a given time frame.

This isn't technically an algorithm, it's a simple algebraic formula.

turns out that 'algorithm' is the representation of a simple mathematical equation; worse the equation itself, is a simple calculus integral.

Which makes it obvious and thus non-patentable.


In the physical world, you are free to invent a variety of solutions to a problem. In software, there is often only one possible unique solution. Any other solution, even if developed independantly, and done completely differently might be shown to be a mathematically equivalent variation of the first.

Not sure what you mean there. If you patent one solution, you don't own the rights to all solutions, just that one. You do have to describe your patent claims in extreme detail, you know.

I could trivially take any algorithm and transform it into a different algorithm that is mathematically equivalent and then dodge your patent.

Sounds like you flunked algorithms class. There is no easy way to transform one algorithm into an equivalent one. By your logic, every searching or sorting algorithm is trivially equivalent to every other one, because they do the same damn thing. Try showing me how you can get quicksort or heapsort by algorithmically transforming, say, bogosort.

Re:Next step

[Anonymous Coward]

Dude, don't feed the trolls.

Re:Next step

[vux984]

For starters, software can be enumerated.
So can anything else. This is, quite honestly, the stupidest argument I have ever heard.

No. The set of irrational numbers, for example, are easily proven uncountable. Even an undergrad can tell you that.

Sure you can take irrational numbers and assign each one you encounter an integer when you first encounter it, and you can do that forever without running out of integers, but its easy to prove that there will be numbers you will never enumerate, even if you enumerate forever.

Oh, really? And you can write software to discover other software programs mechanically?

Yes. Of course. We can't automatically determine which of those programs are useful for anything, or useful for a task. But just spitting out software programs? Trivial.

Its no different than writing books. Those too can be generated automatically. The fact that you can do it doesn't make it a worthwhile endeavor, as simply generating all possible books isn't nearly so useful as isolating which of them are actually worth reading. But it is a useful and important characteristic of books. (and software programs). ...

This isn't technically an algorithm, it's a simple algebraic formula.

And yet I presented it as series of steps. That's an algorithm. That is the POINT. Software algorithms can be reduced to mathematical equations. Consider a proof in propositional logic, where you write statements, then apply a set of rules, to come up with a proof. Nothing could be more procedural... but propositional logic can be reduced to a set of axioms, and any 'proof' can be equivalently expressed as a simple equivalence equation of a composition of the axioms.

Which makes it obvious and thus non-patentable.

Except that we knew that particular formula BEFORE calculus itself had been discovered. High school kids can show the curve, and determine the formula with a stopwatch, a measuring tape, a weight, a spool of ribbon, and some graph paper in an afternoon.

Not sure what you mean there. If you patent one solution, you don't own the rights to all solutions, just that one. You do have to describe your patent claims in extreme detail, you know.

Take a look at Leibniz and Newton's original papers on calculus. Even mathematical scholars have written "Despite... points of resemblance, the methods [of Newton and Leibniz] are profoundly different" (Ivor Grattan-Guinness, 1997. The Norton History of the Mathematical Sciences) -- Yet the two approaches are mathematically equivalent.

There is no easy way to transform one algorithm into an equivalent one.

No.Its true there is no easy way to find a mapping from a particular algorithm to another particular one, but its trivially easy to create a mapping from a particular algorithm to an equivalent algorithm if you don't care what destination algorithm is, beyond that it be equivalent.

By your logic, every searching or sorting algorithm is trivially equivalent to every other one, because they do the same damn thing.

No. Not *necessarily* equivalent. And certainly not necessarily *trivially* equivalent. But merely *possibly* equivalent. In the case of sorting there are certainly a few genuinely different approaches to the problem. But there are *also* many algorithms being used to sort that are variations of each other, or demonstratable transformations of an other.

Is a heapsort algorithm a separate algorithm from a ternary heapsort algorithm?
Is a quicksort implemented in Lisp the same algorithm as one in smalltalk? How about in C?
Is there a mapping from quicksort to heapsort?

At what stage do two algorithms become "different" vs "same"?

Try showing me how you can get quicksort or heapsort by algorithmically transforming, say, bogosort.

In point of fact, bogosort isn't a comparison sort. So it actually does qualify as a separate solution. (If you want to call it that.) G

Re:Next step

[alienw]

No. The set of irrational numbers, for example, are easily proven uncountable.

Sure, but you can't exactly patent irrational numbers. Nearly everything else IS enumerable, given the right metric. You can even enumerate every single possible patent.

But just spitting out software programs? Trivial.

Those wouldn't be programs, they would be random noise. Computer programs, by definition, have to solve some kind of problem.

And yet I presented it as series of steps. That's an algorithm. That is the POINT. Software algorithms can be reduced to mathematical equations.

Your argument is that something that is described using a formal language is automatically non-patentable? Utility patents are reserved for practical devices that are used commercially to solve problems. You can patent any novel, useful, and non-obvious arrangement of gears, for instance. However, a mechanical assembly could be reduced to a set of formal statements just as easily as a computer program.

In point of fact, bogosort isn't a comparison sort. So it actually does qualify as a separate solution.

Bogosort is certainly a comparison sort. It operates by only comparing elements with each other, which is the definition of "comparison sort". Besides, your assertion was that every algorithm that solves the same problem is equivalent. This is clearly not the case. Also, I am surprised by your implication that bogosort does not work. Mathematically, it is a perfectly legitimate sorting algorithm, and certainly works if implemented correctly.

But there are *also* many algorithms being used to sort that are variations of each other, or demonstratable transformations of an other.

So what? You are implying that since they are mathematically equivalent, they are obvious to derive from each other. Quite clearly, this is not the case.

Is there a mapping from quicksort to heapsort? I don't know. Maybe there is. If there is or one is discovered, what does that *mean*?

It would mean absolutely nothing, unless you like to argue about semantics. The fact is, inventing a good sorting algorithm is still considered an achievement. Finding a prime number isn't. Unless there is a mechanical way to generate good sorting algorithms, coming up with one is still an act of creative genius. This is what patents are supposed to reward.

Re:Next step

[vux984]

You can even enumerate every single possible patent.

I disagree.

Also, I am surprised by your implication that bogosort does not work. Mathematically, it is a perfectly legitimate sorting algorithm, and certainly works if implemented correctly.

When I mentioned that bucket sort and gravity sort 'actually work' I meant that they were actually faster than quicksort, not that bogosort didn't (eventually) work.

The fact is, inventing a good ... algorithm ... is still an act of creative genius. This is what patents are supposed to reward.

Then why don't we patent books too? or Paintings? or Musical Recordings? or Movies?

Simply being an act of creative genius isn't any reason for it to be patentable.

Software physically has more in common with books than inventions.

Furthermore, software is ALREADY covered by copyright while other inventions are not.

Why exactly should software need or enjoy BOTH protections?

Re:Next step

[alienw]

Then why don't we patent books too? or Paintings? or Musical Recordings? or Movies?

In those media, ideas are equivalent to their expression. A book can be adequately protected simply by disallowing blatant copying through copyright. An algorithm can be implemented in many different ways, so copyright laws will not protect it.

Software physically has more in common with books than inventions.

Uh, no. Books are simply ways to convey information. Software has far more in common with machinery than with literature. More specifically, any piece of software is essentially a representation of a certain finite state machine.

Furthermore, software is ALREADY covered by copyright while other inventions are not.

Many things enjoy similar protection. Integrated circuits, for example. The mask set is protected by copyright, while the circuitry itself can be protected by patents. This is done because it is trivial to create a different mask set for the same circuit, and because copyrights do not apply to circuits. The same is true of algorithms. The source and binary code is protected by copyright, while the algorithms themselves are protected by patents.

Re:Next step

[vux984]

An algorithm can be implemented in many different ways,...

Just as a song can be played in many different ways, on different instruments, in different keys, and even remixed into a barely recognizable facsimile of the original. Yet copyright follows it through.

Or one can watch the countless "implementations" of Romeo and Juliette, many of which are only loosely and abstractly based on the play, yet if R&J were still covered by copyright, all these works that draw on it would be impacted by those rights.

Copyright law is plenty flexible.

An algorithm can be implemented in many different ways, so copyright laws will not protect it.

No real reason for that to be true. A screenplay can be implemented as 10 different movies by 10 different producers for 10 different film studios in 10 different languages, and copyright still protects it.

Re:Next step

[alienw]

How about you go to the library and pick up a book about copyright? Your lack of literacy about this topic prevents any intelligent discussion.

Re:Next step

[vux984]

Whatever lets you sleep at night...

Anyone know which side IBM took on this case?

[java_dev]

I believe they produce the most patents annually.

Re:Windows vs AT&T has some very strange phras

[ThunkDifferent.com]

It makes you wonder if Xerox will jump on the bandwagon, no?

Positive patent reform in America?

[orclevegam]

I'm pretty sure that's one of the signs of the apocalypse.
Now, if we can just get this whole copyright thing straightened out a little bit (like maybe reducing the lifetime of a copyright instead of increasing it for a change), and repeal all the legislation on software patents, we may just get somewhere.

Re:Positive patent reform in America?

[DigitalSorceress]

Orclevegam,

That's not gonna happen as long as the people who own "Mickey da Rat" have enough money to keep buying lobbyists , lawyers, and politicians. I betchya, the next time "Steamboat Willey" comes due to enter public domain, there will be a nice, quiet extension to the copyright timeout again.

Just a theory.

Re:Microsoft approved, actually. (RTA)

[networkBoy]

In fact in the case of MS, Intel, and Cisco, I think most of their patent chest is defensive rather than offensive...
-nB

Re:SCOTUS Overlords

[Anonymous Coward]

SCOTUS has always been just as powerful and either Congress, or the POTUS.

Re:Windows vs AT&T has some very strange phras

[RingDev]

"So, for example, software distributed as source code can't violate a patent until it's compiled?"

That was my reading of it, but IANAL.

-Rick

Obvious?! No way!

[Stevecat]

Two words: ONE CLICK.

-SmR

Concise explanation?

[porcupine8]

TFA doesn't give much details. I tried reading the ruling, but I just don't have enough background knowledge for it to be clear.

Can someone give concise, easy-to-understand answers to these questions:

1. What was the old, "rigid" definition of obvious?

2. What does this decision change about that definition?

Re:Concise explanation?

[blckbllr]

Porcupine8,

I'll try to address the first question, and then return later to address the second question, unless someone finishes the opinion before me.

KSR International Co. v. Teleflex Inc., isn't so much about "obviousness" per se, but about the "teaching-suggestion-motivation" prong of the obviousness inquiry. According to the Manual of Patent Examination and Procedure, an Examiner can establish a prima facie case of "obviouness" by showing that:

"First, there must be some suggestion or motivation, either in the references themselves or in the knowledge generally available to one of ordinary skill in the art, to modify the reference or to combine reference teachings. Second, there must be a reasonable expectation of success. Finally, the prior art reference (or references when combined) must teach or suggest all the claim limitations." MPEP Section 2143.

To understand the "teaching-suggestion-motivation" to combine prong of the "obviousness" inquiry, I would suggest reading MPEP Section 2143.01.

I've briefly read what the Supreme Court said about the Federal Circuit's decision, but I haven't had time to digest it yet. It seems somewhat amorphous to meet at this point, or in other words, there doesn't seem to be a definitive holding (e.g., "We hold that...") at this point.

The views expressed herein are in no way associated with any private entity or government organization

Re:Concise explanation?

[udippel]

We will have to see. There is new case law to be established. At first glance, this part of the second decision sounds quite orthogonal to what we have had to read before:

When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense.

That is quite remarkable, considering that the invention consisted of replacing a mechanical transfer of throttle (pedal position) by an electronic sensor. Something like this used to have good chances for success before. On the silly reasoning that electronics has less wear and tear it could be considered 'advantageous' and non-obvious.
With this decision Supreme Court defined that combining an existing system (pedal) with an electronic sensor as 'normal', 'non-inventive'. It explicitely (and I guess intentionally) used the term 'anticipated success', effectively removing hindsight as argument for non-obviousness; as long as the outcome remains 'expected' and does not yield non-anticipatory results. Like the system prducing sliced bread miraculously as well ... .

I wonder how the European Patent Office is going to react ? Anyone from there reading /. and has some inside info ?

Re:Concise explanation?

[BadMrMojo]

Depending upon the GP's level of comfort, that may or may not actually be legible. blkbllr clearly knows his shit, so I'll defer to him on any details, but if you're looking for a slightly simpler - although less factually accurate - explanation:

Any invention is assumed to be made up of previously invented components, combined in some fashion. Part of the test to see if a particular combination of components is obvious is the TSM method described by the parent.

The previous practice is to try to tell if an average professional in the field ("one of ordinary skill in the art") who had the same components would put them together in the same way in order to solve the same problem. If so, the 'invention' is not patentable because it is obvious.

(Please let me know if that is too much of a simplification to be considered remotely accurate.)

Re:Concise explanation?

[CaptainPatent]

It seems that this question was answered, but only with examples in the MPEP which is more legal-speak, and because you "don't have enough background knowledge" I'll put it into plain english for you

Essentially when rejecting a patent application an examiner could combine two different peices of prior art in the form of patents, PGPubs, Non-patent literature, etc. to come up with a rejection. In order to properly combine these pieces of art properly the examiner had to show exactly why it would be obvious (and generally site prior art for such a motivation) instead of being able to say "yeah... duh!" which gave a lot of loopholes for attorneys saying "you didn't give proper motivation" when the examiner would put a motivation in his own words.

The change now puts the burden into the attorney's hands to show why a motivation would be improper and giving evidence that the improvement really never had been thought of before. This will make rejection easier for examiners.

Re:Concise explanation?

[porcupine8]

I see. So they haven't really changed the definition of obvious necessarily, they've just shifted the burden of proof from the patent office proving it's obvious to the inventor/attorney proving it's non-obvious. And they're saying in this case that they didn't prove it was non-obvious. So if what counts as obvious isn't really so much what changed, that explains why I was so confused, because that's what I was looking for.

But, of course, this could lead to a slightly different definition of what counts as obvious, because things that were counted as non-obvious before almost automatically might find it harder to *prove* themselves non-obvious. Right?

Re:Concise explanation?

[CaptainPatent]

Precisely. The ruling has not yet been implemented (nor will it for a while) but depending how the court opinion is translated later into the MPEP, it could spell some big changes. And you are correct that it won't mean a huge (if any) difference for the actual definition, but it will spell some big changes for the process. Because Obviousness will thus be easier to implement it will cover a broader range of claim language.

Re:Concise explanation?

[blckbllr]

CaptainPatent,

First, I don't know who you're quoting with "don't have enough background knowledge." I never said such a thing and none of the replies before me ever implied such a thing.

Second, I don't know where you came up with the statement "[t]he change now puts the burden into the attorney's hands to show why a motivation would be improper and giving evidence that the improvement really never had been thought of before." The Supreme Court never uses the phrase "burden" or "attorney," so I'm not sure if you read the same opinion that I did.

To correct some of the misapprehensions your post may have created, I'll try and recapture some of the what the Supreme Court said. I'll be quoting from the Syllabus and the Opinion directly. I note that the Syllabus is not written by the Justices themselves, but usually by a clerk or other court official.

As an initial matter, it seems to me that the Supreme Court thought that the Federal Circuit was not being "flexible enough" with its interpretation of the "teaching-suggestion-motivation" ("TSM") to combine prong of the obviousness inquiry. I think you have to read the proceedings below to understand where the Supreme Court is coming from:

"The Court of Appeals held that the District Court was incorrect that the nature of the problem to be solved satisfied this requirement because unless the "prior art references address[ed] the precise problem that the patentee was trying to solve," the problem would not motivate an inventor to look at those references. 119 Fed. Appx., at 288." KSR Int'l Co. v. Teleflex Inc., p. 10.

This seems to imply that the Federal Circuit (i.e., "the Court of Appeals") looked only to the references themselves rather than a broader inquiry. If you read MPEP Section 2143.01, you'll see that the TSM to combine inquiry focuses on the teachings of the "prior art." In this case, the Federal Circuit was doing exactly that - looking to the prior art to determine whether there was any teaching, suggestion, or motivation to combine the references.

Now, it seems the Supreme Court is allowing a broader view of the TSM inquiry by allowing a Court (or Examiner), to look beyond the references and include the knowledge of what one of ordinary skill in the art would possess at the time the references were available. For example, the Supreme Court states:

"The principles underlying these cases are instructive when the question is whether a patent claiming the combination of elements of prior art is obvious. When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, 103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill. Sakraida and Anderson's-Black Rock are illustrative--a court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions." (emphasis added) KSR at p. 13.

The Court merely sums up this paragraph with one statement that I believe captures the essence of the "new" TSM inquiry: "[A] court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." Id. at p. 14. Hence, my interpretation of the Supreme Court's ruling, is that you still must refer to the references themselves to understand the technology and the teachings, but then a court (or an Examiner) is allowed to go beyond the explicit teachings of the references themselves and look at what a person with ordinary skill in the art would d

Re:Concise explanation?

[blckbllr]

Porcupine8,

No, this is actually incorrect. The burden has not changed, and CaptainPatent's post did what I was afraid it would do. Please refer to my response to CaptainPatent below.

The views expressed herein in no way represent any private organization or government entity. These views do not represent legal advice and should not be relied upon as such.

Re:Concise explanation?

[CaptainPatent]

I do apologize as I meant to say Porcupine8 for the name as he was asking for a non-legalese definition and not you. I do not doubt your ability in a legal field for one second as from your posts you are probably either an examiner or a patent attorney.

With that out of the way, I suppose I was focusing more on the result which I feel will be implemented later on and additionally I did over-emphasize the shift of burden to some degree. I suppose in implementation we will not see the complete change of burden to the applicant, however it will allow for a much broader range of rejection. I have been discussing in my TC with some other examiners the implications this may have for us and we do agree that while it will not provide an immense change, it will make things easier for us and harder for attorneys so there will be a shift but to a more limited extent.

Re:Concise explanation?

[porcupine8]

I'm the one who doesn't have enough background knowledge, that's why I was asking for a brief, non-legalese explanation. See, not only am I not a lawyer, I have never even *hired* a lawyer. I've never even served on a jury or been to traffic court. Telling me to read the MPEP, you may as well tell me to read the bible in the original Aramaic. Sure, I could do it with some (quite a bit) of effort, but instead I'm asking someone to just tell me what the big deal with Jesus is all about.

I suppose, and feel free to provide your own interpretation, but I believe that the question has changed from "Is the invention non-obvious in view of the combined references," to "Is the invention non-obvious in view of one of ordinary skill in the art who has read and understood the references?"

This paragraph is basically what I was looking for, thank you.

If you want serious change..

[Anonymous Coward]

The US is relying on IP to carry the current standard of living forward. The US does not export or make much of anything any more. IP is a growing percentage of the US exports and "ownership". The US can not maintain its economy on hard physical goods any longer and IP is the only alternative means of money producing items.

If you want serious change, you have to understand the motivation that put many of these laws into place and keeping these laws tough. That is why there is resistence. Take any company with a strong IP portfolio, what do they actually produce and would they have the income they did if IP was not involved? See why there is resistance to change?

Re:If you want serious change..

[Anonymous Coward]

When the west no longer manufacture anything these "IP" portfolios will be useless, the cost of labor in the west is going to have to fall in line with the developing world. An "IP" cartel (AKA: "information based economy") is a short term solution that is provably harmful.

Re:If you want serious change..

[smartr]

I'm interested in seeing what factual basis you are making this on? IP does protect large anti-competative companies, and some IP vendors, but I fail to see how there's any actual tie to the US Economy. I'd argue that lessening IP laws will eventually bolster US's economy in the long run and allow for much more diversity domestically... While I'm no economist, just taking some figures from the CIA World Factbook... https://www.cia.gov/cia/publications/factbook/geos /us.html#Econ US exports are at: $1.024 trillion f.o.b. (2006 est.) Commodity wise: agricultural products (soybeans, fruit, corn) 9.2%, industrial supplies (organic chemicals) 26.8%, capital goods (transistors, aircraft, motor vehicle parts, computers, telecommunications equipment) 49.0%, consumer goods (automobiles, medicines) 15.0% (2003) US imports: $1.869 trillion f.o.b. (2006 est.) Commodity wise: agricultural products 4.9%, industrial supplies 32.9% (crude oil 8.2%), capital goods 30.4% (computers, telecommunications equipment, motor vehicle parts, office machines, electric power machinery), consumer goods 31.8% (automobiles, clothing, medicines, furniture, toys) (2003)

Re:If you want serious change..

[Anonymous Coward]

The US isn't relying on IP to carry our economy. Just like Honda buys ground and builds plants here in the US, the US is building and owning plants in other companies. Our economy is very, very much based largely on infrastructure, just look at the SEC filings for most US companies. The "Trade Deficit", or any export or import figures tend to completely ignore investment figures and should probably be taken with a grain of salt. By the way if you think anyone really has an accurate grasp (+/- 5%) of what's really going on in the world your seriously underestimating the rate that everything is constantly changing.

Re:If you want serious change..

[Anonymous Coward]

I'm interested in seeing what factual basis you are making this on

Search google for US trade deficit. It is the ratio of outgoing to incoming. Yes we are exporting but look how much we are importing. If we are importing, we are not meeting the demand for products ourselves in the US or across the world like we once used to. 1/2 full or 1/2 empty. Either way, we are producing much less actual products in relative comparison to what we used to and also relatively much less then other countries are now compared to the past. The rest of the world is producing these products and employing people and the US is not. We are gradually becoming more and more consumers and less and less producers. Exactly like your retired grandparents. How long do you think this will last before the country and your grandparents will run out of money?

Sorry, maybe are you confused that I am thinking a little more longer term then just the next election cycle.

Re:If you want serious change..

[smartr]

While the US does suffer from a nasty trade deficit, I fail to see how it ties to IP. While IP certainly would make America boatloads of money if it was somehow enforced internationally (Asia and South America respect America's IP?), it seems more like America is *importing* more IP than *exporting*. It seems more likely it would hurt parts of Europe and Canada, where the fallout recession would hit America.

Re:Windows vs AT&T has some very strange phras

[NeutronCowboy]

Interesting... it sounds like they are saying that code itself - i.e. the stuff you get on a printout, on a t-shirt, anything that isn't part of an executable - is not patentable because it is a set of instructions, rather than a device.

If that's true, all I can say is... Wow. All software patents will basically have to be revisited, because on the face of it, it sounds like software cannot be patented anymore.

Am I missing something here? Or can I start the happy software-patents-are-dead dance?

Taken

[Tablizer]

I already patented the combination of common sense and judge mental processes. Thus, the Court owes me!

Re:Taken

[Anonymous Coward]

Invalid. Cannot be reduced to practice.

Re:Windows vs AT&T has some very strange phras

[Anonymous Coward]

So, for example, software distributed as source code can't violate a patent until it's compiled?

Software can't violate a patent until it's executed on a computer because software is not patentable. What they patent is the functionality of the software as part of a computing device (have fun with the analogies). Unlike copyright law, it is not the distributor that is liable for infringement but the end-user.

One of these things is not like the others

[$RANDOMLUSER]

Companies that are frequent targets of patent-infringement claims urged the Supreme Court to overturn the Federal Circuit test. The group included Intel, Cisco, Microsoft, Time Warner Inc., Viacom Inc., Micron Technology Inc. and automakers General Motors Corp., Ford Motor Co. and DaimlerChrysler AG.

And what, pray tell, is Time Warner getting patent infringement suits over? Or patenting themselves for that matter?

Re:One of these things is not like the others

[Anonymous Coward]

Doesn't Time Warner own AOL? Wouldn't AOL be party to certain technological innovations that might get Time Warner in a Bind?

Re:One of these things is not like the others

[cswiger]

And what, pray tell, is Time Warner getting patent infringement suits over? Or patenting themselves for that matter?

Cable set-top boxes & internet routers. Mechanisms for correcting the optical dispersion of long-distance fibre runs. Fibre or coax in-line amplifiers. Stuff like that.

Re:One of these things is not like the others

[$RANDOMLUSER]

Ah. Forgot about the cable business. Thanks.

Re:One of these things is not like the others

[Anonymous Coward]

AOL is a part of Time Warner and has a patent for IM for starters

Re:One of these things is not like the others

[Egdiroh]

And what, pray tell, is Time Warner getting patent infringement suits over? Or patenting themselves for that matter? Have you already forgotten that Time Warner is AOL?

Damn

[Dunbal]

Thanks to the Supreme Court, now I'll never be able to get my patent for using written tokens to represent phonetic sounds approved. Hey, wait a second... the Supreme Court just denied me potential profit. I guess I will now file a MAFIAA type lawsuit against them for lost potential income and claim that they've put "thousands of people" out of work by this decision...!

Re:Ahaa!

[empaler]

It bears a striking resemblance to my patented ennea-click patent!
Why, it's simply my ennea-click divided by three!

Re:Windows vs AT&T has some very strange phras

[rjstegbauer]

OK...I'll bite.

Why would Xerox care about this more than any other company that files offensive and defensive patents?

Does this have something to do with their historically GREAT decisions on what to market and sell?

Sometimes, I play Mr. Obvious and you have to hit me on the head with a hammer.
Randy.

does this now mean I can't...

[davygrvy]

patent my "ball shaped protrusion for entry-way passage"? I was getting the language patent ready with such phrases like "the device claims an easy hand accessible shape installed at an appropriate height for easy use to open a passage-way". and my favorite "The device claims child safety by being too large to fit a child's hand".

SCOTUS gets it - see this statement:

[boxless]

At the end of the full ruling is this little chestnut:

We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, 8, cl. 8.

Re:SCOTUS gets it - see this statement:

[jez9999]

Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, 8, cl. 8.

Looks like someone needs to tell them about a company called Vonage.

Here's an argument for ye

[Mateo_LeFou]

Over 90% of software innovations are incremental steps on the existing set of best practices and commonly-used abstractions. If this base is screwed up by a bunch of patents, they defeat their purpose and hamper, rather than encourage, innovation.

If you live in America, you won't have to go far for an example. If you live elsewhere, then go to America and then you won't have to go far for an example.

Re:Here's an argument for ye

[Pseudonym]

Exactly.

As much as I hate software patents, I concede that there's an argument for making truly innovative algorithms (e.g. RSA) patentable. The problem is that over 90% of software patents are of the form of "we do X-prior-art and Y-prior-art... only together!" or "we do X-prior-art... only with the Internet!"

Re:Here's an argument for ye

[alienw]

This is not a problem with software patents. This is a problem with patents in general. Many of them are too damn obvious. This is exactly my point. Nothing wrong with software patents. Everything wrong with how we grant them.

Re:Windows vs AT&T has some very strange phras

[mhall119]

That is why most software patents contain language like "Methods and apparatus to ...", followed by what the software will do. You can't patent 2+2=4, but you can patent an apparatus and methods that would compute 2+2=4. The problem I have with software patents is that they are patenting the results, and not the process and mechanisms to achieve the results. My example above would cover any implementation of a calculator, without having to actually "innovate" a calculator, meaning you don't have to figure out how to perform the calculation, you just patent a device that can do it and wait for someone else to implement such a device, then sue them for their hard work.

I think software patents would be beneficial to society if their lifetime were representative of the fast pace of software evolution (meaning less than the current 20 years), and if the submitter were required to include the "blueprints" for the methods and apparatus like they do for patents on physical objects, meaning the source code implementation of the methods, and the hardware implementation of the apparatus. This would mean that patent trolls would have to actually create an implementation of what they are trying to patent, and let everyone know how they did it. The provided material would also go a long way towards showing whether a patent is obvious or not.

The problem is how we handle them.

[Kadin2048]

I'm of the opinion that software patents are not necessarily horribly bad or wrong, at least not moreso than any other kind of patent, but it's just that the way they have been implemented currently is so far from ideal that we'd be better off eliminating patent protection from software entirely than sticking with it.

What has traditionally been patentable are particular methods of solving problems. E.g., the sewing machine we're familiar with today (with two interlocking threads, one in a bobbin, etc.) is one way of solving the "how do we attach two pieces of material together" problem. It's (or rather, was) a novel solution to the problem, it was non-obvious, and it was particular. That's an example of a pretty good, justifiable patent. (Also because it's not easy to protect by other means -- once you see a sewing machine and take one apart, you realize immediately how it works and it's trivial to re-implement it, but if you hadn't ever seen one it's not obvious that two running threads is the way to do it, hence why it took so long to be invented.)

I'm not sure that there is a good argument for preventing people from patenting the solutions to problems, where the form of the solution happens to be microcode, in the same way that the form of the solution to the sewing-machine problem was milled pieces of steel.

But the problem arises when judges and patent examiners aren't skilled and selective about what's patentable. It's much easier, with software-based inventions, to get overbroad patents that negatively impact invention; rather than patenting a particular solution, what gets patented are entire classes of mathematical functions, or all possible software implementations (solutions) of a given problem. That would be like getting a patent, not on a particular sewing machine design, but on all sewing machines generally, or even "any machine for attaching two or more pieces of fabric together."

The problem, in my opinion, with software patents isn't with the fact that they're software -- in my mind, software ought to be patented, and it ought not be protected under Copyright (unless we're willing to define it completely as "speech" with all the freedoms that entails) -- but that they're typically of very poor quality, shoddily researched, and overbroad.

For this reason, I think the Europeans have done a good thing in just avoiding the issue entirely, because the cost of overbroad patents on innovation is far worse than no patents of a particular type at all. (I think this is trivially obvious but there are a lot of historical examples where overbroad patents have been problematic and basically stymied development that was otherwise ongoing -- the old internal-combustion patents are a prime example.)

We have the legal framework to deal with software, but unfortunately we just haven't used it correctly, and until we're willing to do it correctly -- and that means we're going to need to apply a lot more resources to the task of ensuring that patents are novel, non-obvious, narrow in scope, and deserving of protection -- they're a lot more trouble than they're worth.

Re:The problem is how we handle them.

[g2devi]

> The problem, in my opinion, with software patents isn't with the fact that they're software -- in my mind, software ought to
> be patented, ... -- but that they're typically of very poor quality, shoddily researched, and overbroad.

It's more fundamental than that. I understand that you're trying to find a middle ground, but there is none (at least none that is "obvious":-]). It's a

Here are four things to consider:

(1) How many people actually look at patent to come up with ideas? If no-one does, then how is it helping with innovation? What exactly is the purpose of software patents other than a way for lawyers and patent trolls to get paid for disrupting innovation?

(2) If I independently discover/reinvent the patent, then why should why should I have to pay someone else for the privilege of using *my* idea? Reinvention has nothing to do with obviousness. Sometimes the time is right for non-obvious inventions. Examples of this indepentent invention/rediscovery include quantum mechanics, light bulb, telephone, combustion engine, airplane, television, transistor, and integrated circuit. See http://goliath.ecnext.com/coms2/summary_0199-61065 42_ITM for a fuller description.

(3) Relating to (2), suppose you allow independent reinvention as an exception. What happens if I want to tell people about *my* idea for free? I can't (and may get sued if I do). Free speach and society loses.

(4) Software patents are supposed to protect "the little guy" but since big corps can afford to have millions of patents, it's almost certain that they have something that "the little guy" violates (or may potentially violate) and force "the little guy" to cross-license, enabling the big corps to "steal" (if you believe patents are IP) the idea. Even if "the little guy" doesn't violate any patents, it's possible for the big corps to drag the case out in court until "the little guy" is bankrupt (e.g. just look at how long SCO dragged the case out against another big corp), making it virtually impossible for "the little guy" to enforce the patent but very easy for big corps to freeze out competition.

So basically, even when you have legitimate innovation, software patents serve no good purpose and are harmful. If you have a legitimate innovation then trade secrets are a better alternative that doesn't mess with any of the above problems.

Software patents are a lot like DRM and both are like making a bed with an elastic sheet that's too small for the bed. It looks possible to have "perfect software patents" or "perfect DRM" or "to make the bed", and you may be able to tie down three of the sides, but as soon as you try to tied down the forth side either one of the other three sides come loose or the whole thing falls apart.

Re:The problem is how we handle them.

[jez9999]

How is that specific to software? It looks like you can apply those arguments to any patents, now. Basically, the whole system is too big, too complex, and too difficult to check whether you're breaching somebody else's patent. Any protection the 'little guy' might get is more than outweighed by the enormous time and resources they have to first put in to check that they haven't infringed on an existing patent, and that's without even considering the ones that have been filed and not published! This isn't exclusive to software patents, is it?

PS. I would support the total abolition of patents. I just think they're a bad idea in this day and age of a planet of over 6 billion people.

Re:The problem is how we handle them.

[MobyDisk]

(1) How many people actually look at patent to come up with ideas? If no-one does, then how is it helping with innovation? What exactly is the purpose of software patents other than a way for lawyers and patent trolls to get paid for disrupting innovation? I can answer this question from two perspectives.
A. Nobody looks at patents to come-ip with ideas, because then, they are liable for triple damages if they are found to be violating it.
B. Patents help with innovation, not by being a library of ideas to draw upon, but by making it illegal for someone to copy your idea and sell it as their own.

Also, (2) Is a whole can of worms. Soooo many people would suddenly independently come-up with your idea. :-) And it would take a lot of lawyers and patent clerks time to examine the "proof" to see if you really did.

Re:The problem is how we handle them.

[reebmmm]

A reinvention would be a huge step backwards. Just putting your brain to work on it for a second reveals a pandora's box of problems. The biggest problem: instead of just litigating the merits of the patent, you're also always going to be litigating when reinvention occurs.

To avoid that issue, courts would find that publication as a patent would act as constructive notice that someone invented something already. And presto, buh-bye reinvention loophole.

The patent law already handles the "accidental" infringement issue--it's called not willful infringement.

It's also a curious position to take that you'd incentive society and industry to not keep apprised of the latest developments. It's the same weird argument someone made earlier in this thread that we should encourage software development to occur as trade secrets.

Re:The problem is how we handle them.

[tepples]

The patent law already handles the "accidental" infringement issue--it's called not willful infringement. But then how does it handle the problem of the damages being greater than the defendant's net worth?

Not far enough

[a1mint]

A *MUST* read on patents:

http://www.philsalin.com/patents.html

Re:Windows vs AT&T has some very strange phras

[mike2R]

Unfortunately I think you may be over interpreting the decision - IANAL and haven't finished the opinion yet. The key phrases seem to me:

While reading 271(f) to exclude from coverage foreign-made copies of software may create a "loophole" in favor of software makers, the Court is not persuaded that dynamic judicial interpretation of 271(f) is in order; the "loophole" is properly left for Congress to consider, and to close if it finds such action warranted. Section 271(f) was a direct response to a gap in U. S. patent law revealed by Deep-south Packing Co. v. Laitram Corp., 406 U. S. 518, where the items exported were kits containing all the physical, readily assemblable parts of a machine (not an intangible set of instructions), and those parts themselves (not foreign-made copies of them) would be com-bined abroad by foreign buyers. Having attended to that gap, Congress did not address other arguable gaps, such as the loophole AT&T describes. Given the expanded extraterritorial thrust AT&T's read-ing of 271(f) entails, the patent-protective determination AT&T seeks must be left to Congress. Cf. Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 431. Congress is doubtless aware of the ease with which electronic media such as software can be copied, and has not left the matter untouched. See the Digital Millennium Copyright Act, 17 U. S. C. 1201 et seq. If patent law is to be adjusted better to account for the realities of software distribution, the alteration should be made after focused legislative consideration, not by the Judiciary forecasting Congress' likely disposition.

ie this decision is based on the court's interpretation of Congress's intention of a specific exception to current law which purely applies in the area of exports.

From the paragraph immediately above comes an interesting and somewhat heartening passage to a non-American:

Foreign conduct is generally the domain of foreign law, and in the patent area, that law may embody different policy judgments about the relative rights of inventors, competitors, and the public. Applied here, the presumption tugs strongly against construing 271(f) to encompass as a "component" not only a physical copy of software, but also software's intangible code, and to render "supplie[d] . . . from the United States" not only exported copies of soft-ware, but also duplicates made abroad. Foreign law alone, not United States law, currently governs the manufacture and sale of components of patented inventions in foreign countries. If AT&T de-sires to prevent copying abroad, its remedy lies in obtaining and en-forcing foreign patents.

Yes, algorthims are not patentable just devices.

[pavon]

So, for example, software distributed as source code can't violate a patent until it's compiled? Actually the Supreme Court took it one step farther - patents are not enforceable on software until it is combined with (installed on) a device that can run the software.

You cannot patent algorithms, just devices - this has been true since the beginning. The Supreme Court has never ruled that software is patentable, just that a device implemented using software is just as patentable as one implemented using hardware. It has long been believed that source code would not be considered a device, but just a description of a device, and is thus no more protected by patent law than a technical spec or published paper. However, programs running on a computer have been ruled to be a device, and therefore in practice sofware is patentable, even though technically it is not.

This case focused in part on the question of whether compiled code is a device - and the answer was no, it too is just a description. In practical terms this means very little for domestic software producers - since you can't run software without a computer, either you or your customer will be breaking the law if one of you does not license the patents, and knowingly selling software that needs patents licenses, without informing your customers about it will get you in bit trouble. Furthermore, even if you do inform your customers, you could have problems depending on the circumstance.

As far as international trade, it has the effect that patent export laws do not apply to software. With a physical device if you build it here and ship it abroad you have to pay patent royalties, but if you send the plans abroad and produce and sell it there, then US patent laws don't apply. Since software is simply a description, as long as the computer (or embedded device) is produced abroad, and the software is installed abroad, you don't have to pay US patent royalties. Of course you do still have to pay patent royalties in the other country if they apply.

Another area that it could have an impact in is open source drivers, especially firmware. You could argue that anyone that uses the software has paid for any required patent licenses when they bought the hardware in question. And since the court ruled that there is no difference between machine language and source code as far as patents go, they are no longer an excuse for providing binary only drivers. (Of course all the companies that are claiming "patent issues", are really probably trying to protect trade secrets).

Check out SCOTT v. HARRIS instead

[platyk]

Are you bored by legal technicalities? Would you rather be watching a 90 mph police car chase that ends in a cataclysmic crash?? Well the SCOTUS has delivered just what you want in their other big decision today: SCOTT v. HARRIS.

Yes, seriously here is the 93MB RealPlayer video: http://www.supremecourtus.gov/opinions/video/scott _v_harris.rmvb There are actually two videos of the chase back to back--the second one is better. Choice quote: "Let me have him 78, my car is already tore up!"

(I guess it is ironic that RealVideo format is probably heavily protected by patents.)

If you want the boring legal details of the case they are here: http://www.supremecourtus.gov/opinions/06pdf/05-16 31.pdf

And here's a news story about it: http://abcnews.go.com/Politics/wireStory?id=310057 5

Re:Check out SCOTT v. HARRIS instead

[ubuwalker31]

I wish I had mod points to mod you up, but I don't, so I added you as a friend. That being said, this is the first time that I have seen the court release a video on the internet that was relevant to the case. This is sort of huge, since we now know that the court has the capability to make and publish videos. I hope live broadcasts of oral arguments are next!

Re:Check out SCOTT v. HARRIS instead

[Anonymous Coward]

(I guess it is ironic that RealVideo format is probably heavily protected by patents.)

The file in question contains RV40 video and ATRAC3 audio. ATRAC was invented by our friends at Sony, and I don't know what claims they make on it. The ffmpeg project recently published an open-source decoder for ATRAC3, and Sony doesn't apper to be harassing anyone over it. RV40 is who-knows-what as it hasn't yet been reverse engineered. It's suspected to be based on H.264. The patent status of H.264 is unclear, although a federal court recently threw out some patents held by Broadcom.

Re:Windows vs AT&T has some very strange phras

[theantipop]

Software per se is not patentable. It is considered an abstract idea in the realm of algorithms and natural phenomenon. How people get around this is to patent that same software on a physical medium that is then used to produce some kind of tangible or usable result.

Re:Windows vs AT&T has some very strange phras

[deblau]

If I have the source code of Windows in my head, that's "Windows in the abstract". In order to install it on a computer, I have to make a tangible representation of that source code (i.e., I have to write it down). This is the master disc. As far as I can tell, when the court talks about copying, they mean physical copies.

The quoted language says that my 'idea' of Windows can't be a component of a patented item. A blueprint may tell how to build something, but only the piece once built may be a component. The court doesn't decide whether the master disc itself could be a component if it were used to install Windows directly, since it wasn't actually used for that in this case, but leaves open the possibility. That's the issue with 'footnote 14'.

copyright

[zogger]

Software is typed up stuff, written in a language or languages, and as such, is more akin to written books or articles or say like musical scores, and should only be allowed copyright, not patents. Patents should be restricted to tangible products. In addition, the software industry itself has insisted and got granted immunity from normal consumer warranties, which is clearly evidence they don't see their own typed up stuff as a "normal product". It's *special*.

They shouldn't have it both ways when no other industry can claim that. If it is patentable, it should come with a minimum implied normal warranty (suitable for use, no glaring and or dangerous defects, etc). No warranty should mean no patent, copyright only.

I hope that is linear enough to answer your question.

Re:copyright

[reebmmm]

The parent doesn't follow the logic all the way through to the end because if it did one would quickly realize that most every machine is essentially the embodiment of math.

Moreover, it doesn't take a genius to describe an algorithm as a machine--it's a trivial exercise and so trivial that patent folks usually don't talk about "patents on software" but rather patents on methods implemented by computers.

Re:copyright

[Anonymous Coward]

Kinda far fetched, comparing a set of machine-interpretable instructions to poëtry or music.
To me, software is nothing more than a chain of simple logical steps, which allow one to move from one point to another. Compare this to navigational instructions. There is no good reason why anyone should be able to patent or copyright the obvious.

Changes very little.

[pavon]

If that's true, all I can say is... Wow. All software patents will basically have to be revisited, because on the face of it, it sounds like software cannot be patented anymore. This has always been true - you cannot patent algorithms, just devices. However, software running on a computer is a device, and this ruling does not change that. Therefore, it will only change a few corner cases, where the software is not "combined with a device" (installed or executed) in the US.

So how does this benefit Vonage

[kilodelta]

I would think Vonage has a shot at overturning the verdict against them now. Good, and hopefully they'll file anti-trust against Verizon.

Re:So how does this benefit Vonage

[ISurfTooMuch]

They'll likely challenge those patents and file an appeal based on that challenge.

Any company holding a patent today probably feels as if it's on pretty shaky ground.

Re:So how does this benefit Vonage

[azrider]

6359880 - Does this look like a cellular network circa 1990? We were doing this with Ham Radio (autopatches and APRS) in the '80s The other two - "Enhanced" DNS? These (the second is a continuation of the first) simply describe how a particular address is resolved ie: data.vonage.com vs. voice.vonage.com. If I am mistaken, feel free to flame me :)

Re:So how does this benefit Vonage

[kilodelta]

I fondly recall APRS and phone patches. This is really going to hurt patent holders but rightfully so since lots of it is just patenting prior art.

Impact on Software Patents

[UnknowingFool]

I thought this part had the most impact on software patents:

Third, the court [Federal Court of Appeals] erred in concluding that a patent claim cannot be proved obvious merely by showing that the combination of elements was obvious to try. When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp.

After all, there are only so many ways to code 1 + 1 = 2. Many tech companies like IBM, MS, Sun, etc have huge portfolios of patents mostly for defensive purposes. With this ruling, it would seem that some of their patents are unenforceable.

Re:Impact on Software Patents

[PPH]

This is what I really like about their decision. The 'combination of elements' being insufficient to demonstrate innovation is going to kill off some of the most egregious abuses of the patent system.

A long time ago, I lost count of how many patents had been filed which essentially restated an existing problem 'X' currently implemented with traditional telecommunications technology and just said 'Do X using the Internet'.

The algorithm argument

[mfeldstein]

According to United States law, you can't patent algorithms for the same reason that you can't patent blueprints, i.e., patents apply to useful inventions, to things that work in the world, as opposed to abstract ideas.

To get a sense of the distinction, it may be helpful to think about the Supreme Court's *other* big patent ruling today, i.e., Microsoft v. Alcatel-Lucent. In this case, both companies admitted that Windows infringes on Lucent's speech recognition patents. Normally, these patents would not apply to products in other countries, which are governed by their own patent laws. This explicitly includes cases in which somebody sells a blueprint to somebody else in another country, who then uses that blueprint to manufacture a product that infringes on a US patent. The exception in US law is if you ship components of an infringing product overseas and then have them assembled over there. Congress correctly perceived such an act as an attempted end-run around US patent laws and said that, whether or not it is assembled in the US, a product that is manufactured in the United States and infringes on US patents is subject to US patent law.

Microsoft ships a master DVD overseas, where it is duplicated and installed on computers there. Alcatel-Lucent argued that this is fundamentally similar to assembling a US-manufactured product overseas and that Microsoft should pay damages. (A lower court awarded them $1.5 billion.) Microsoft argued, however, that shipping a master DVD is more like sending a blueprint for products that are then manufactured overseas. The Supreme Court concurred, ruling in favor of Microsoft 8-1.

Now here's the key twist. In an Amicus brief that was probably not appreciated by Microsoft and apparently not embraced by the court, the SFLC argued that *all* software is like a blueprint or an algorithm, as this weird test case of installing it overseas versus installing it domestically demonstrates (in their view). Therefore, software should be fundamentally unpatentable.

Re:The algorithm argument

[TemporalBeing]

Now here's the key twist. In an Amicus brief that was probably not appreciated by Microsoft and apparently not embraced by the court, the SFLC argued that *all* software is like a blueprint or an algorithm, as this weird test case of installing it overseas versus installing it domestically demonstrates (in their view). Therefore, software should be fundamentally unpatentable.

However, in the oral arguments (transcript here), Justice Breyer even gets them to say that the court has not held the software is patentable. To quote one of the Justices (P. 22, lines 6 to 9):

JUSTICE BREYER: I take it that we are operating under the assumption that software is patentable? We have never held that in this Court, have we?

The response on line 10:

MR. JOSEFFER: No,..

Some commentary: Groklaw Coverage Slashdot Coverage My First Comment( Response 1, Response 2) A Some other Comments

The SCOTUS ruling is an interesting read, and very good.

Re:Microsoft approved, actually. (RTA)

[dgatwood]

Speak for yourself. I find all software patents offensive. :-D

AHA!!! Finger point...

[Grindalf]

Why this is a relative concept, and one which will provide an excuse to allow unscrupulous lawyers and courts to make millions potentially from every existing US patent, whether innovative or otherwise. Jobs for the boys. Why do I get the feeling I'm in the wrong business...

Re:AHA!!! Finger point...

[Anonymous Coward]

Does everyone fail to understand that lawyers don't get to file suits just because they are bored and/or unscrupulous. They actually have to have clients. No client == no lawsuit.

Questionable lawsuits come about because of unscrupulous CLIENTS and amenable lawyers.

Re:AHA!!! Finger point...

[bratwiz]

But since they are bored and unscrupulous, that will give them plenty of time to beat the streets looking for a patsy to set up in front of a judge and jury. They'll supply the client, the legal system will supply the paycheck.

Hey, why not? Sure beats working for a living.

Re:Microsoft approved, actually. (RTA)

[Knara]

It's not possible that Cisco, et al have non-software patents?

Just a little annoyance

[hackingbear]

All it means is that patent applicants need to write a bigger check to the lawyers. Nothing else changed. Move on.

Web of Obviousness

[Anonymous Coward]

So what happens when this takes effect? Since just about every patented piece of software is just an obvious step away from every other patented piece of software, (almost) all software patents should be invalidated, right? Is that really going to happen? (I think not.)

R.I.P. incremental evolution

[macraig]

After reading this, it sounds to me as if incremental evolution or invention will suffer a major setback. Most progress is in fact incremental, not revolutionary. Because of this ruling, it seems that it's more likely that such incremental improvements will ALWAYS accrue to an existing "revolutionary" patent-holder, even if that patent-holder didn't invent the increment.

If that's a correct analysis, then this ruling will have a very chilling effect on new patents, and concentrate even more power/leverage in the hands of existing patent-holders, who will now routinely use this ruling to challenge threatening incremental-invention patents as invalid, as well as continue to sue anyone who dares produce an incremental product without the backing of a patent.

That won't help foster invention, it will retard it.

When are people going to wise up to the fact that what truly fosters invention is an ABSENCE of a patent system?

Re:R.I.P. incremental evolution

[Egdiroh]

Um, I think you misunderstand the patent system. Patents don't trump each other. If you come up with something that is based on one or more previous patents, while you could previously patent that new combination, you were not free from the patents on what you were improving upon.

So all that happens is that those combinations are no longer patentable. But that's not to stop inovation. Most consumer product makers like Nintendo and Apple have some amount of Patents that they license in order to make their products. Both of those companies as the seller of products constantly refine and improve upon them. This just means that if there is an obvious way for nintendo to improve the DS and come out with the next form factor, they won't have tlo pay someone cause they patented that combination.

It might hurt some companies that ride the bleeding edge without making any attempt to compete on quality or price. But the real peopel this will hurt are the patent equivelent of domain name squatters. People who have no intention of ever releasing a product, and will never produce a prototype that's even remotely market ready, but will just wiat for some one to try the combination and then sue them to get bought out or get a fat settlement.

Re:R.I.P. incremental evolution

[macraig]

Yes, I see your point, that if a product is sufficiently "incremental" that it will succeed commercially, then it's not necessary for the producer to patent anything but rather simply license existing patent(s). If the product's incremental improvement is successful enough commercially, then the patent licensing is merely an expense, and both patent holder and incremental inventor benefit from the success of the product.

Well, at least that's the way it might work. There's also the distinct possibility that the patent holder will be hostile to the licensing request. What happens then? Does the incremental inventor just tuck his tail between his legs and slink home with his toys, or does he produce in spite of it and risk being sued?

That last brings to mind what Walt Disney did in the 1930s(?) to gain legitimacy for his Mickey Mouse brand, in the face of an existing patent by a toy manufacturer. To my knowledge Disney never attempted to license it first, though, he just produced anyway and dared them to sue him (which they did and lost).

SCOTUS didn't weaken anything - they are fixing it

[pcause]

The Supreme Court didn't weaken patents,and have instead brought some sanity to system that is broken. The Patent Office isn't capable of doing prior art, applicants don't do a good job and there are tons of filings for incremental and OBVIOUS changes and so-called processes being granted. The rules from the Patent Court didn't work for software, since so many advances just get shipped and aren't written about until much later or more likely never.

There are companies that did a lot of innovative work in the 90's that are gone and there is no record of their technology, but they had things we see being patented today as "inventions". These innovations are obvious and were implemented, but no one remembers and there are no articles, and hence no "prior art" or way to show obviousness.

I am a supporter of software patents, but we need to have patents granted for true innovation. Taking an idea from the web and making it work on mobile is engineering and not innovation, but you would never know that from a lot of patent filings. Putting P2P technology in a STB (a computer) and making it "easy to use" isn't invention, but engineering.

Too much stuff is filed that is incremental and obvious so that people can show "protectable IP" to the VCs and therefor raise money. The Patent office can't figure out the stuff and so grants it. A mess that this ruling will hopefully put us on the path to fixing.

What would be the point?

[Lockejaw]

when companies apply for patents just to keep others from using a technology

Isn't that exactly what patents are for? You come up with an idea, explain what it is and get a temporary monopoly. One might argue that given the rate at which technology advances, it might be best to shorten the monopoly period.

Re:What would be the point?

[Original Replica]

You come up with an idea, explain what it is and get a temporary monopoly.

It used to be you come up with a device or a product, only now is it "come up with an idea". There lies the problem. A physical device is full of exact specifics, there is much work done between the idea stage and having a working device. Any idea not developed to this point is too vague and covers too much ground for society to afford to give over a monopoly. Patient your software, but every single line of code must be submitted, and that is all that is covered. That exact string of code, not the idea behind the code.

Re:What would be the point?

[omeomi]

Patient your software, but every single line of code must be submitted, and that is all that is covered. That exact string of code, not the idea behind the code.

There's no reason to patent that, it's protected by copyright law...

Re:What would be the point?

[falconwolf]

when companies apply for patents just to keep others from using a technology

Isn't that exactly what patents are for? You come up with an idea, explain what it is and get a temporary monopoly. One might argue that given the rate at which technology advances, it might be best to shorten the monopoly period

No. that's not what patents are for. Patetns are there to encourage progress in the Arts and Sciences. If you invent something and are issued a patent but never release a protect with the patent then you are not helping art or science progress. All you are is a scum sucking troll.

Falcon

Re:Yes, algorthims are not patentable just devices

[morganew]

Minor correction here, but important. The USPTO allows patents on a Method of doing something. This is how people get software patents; the software itself isn't patented, it's the method for doing the activity the software does.

This is different than the EU, which allows for "Computer Impelemented Invention" or CII. This is an invention as executed by a device. Though in reality, CII patents have been granted when there was no device at the time of filing, so that's even a misnomer.

Regardless, the ruling is a big win for the software industry as it makes the test for software patentablity much, much higher. Essentally, an examiner should now be able to say "this exists in the regular world in exactly the same manner, no, you can't patent it just because you reproduced it on the web".

It should be obvious

[jdavidb]

It's a shame that the definition of "obvious" isn't obvious.

Government law is so vague and subjective. It's complete crap.

Re:It should be obvious

[AlejoHausner]

You bring up an interesting can of worms. It has to do with "hard AI".

Yes, the definition of "obvious" isn't obvious. If you could somehow define "obvious", then you could define "common sense", "truth", "good", "moral", and all sorts of important concepts. However, at some level, you have to abandon the hope of codifying these important concepts, because you are bound to hit brick walls. If you could codify "thought", then artificial intelligence would have succeeded long ago. Most people would agree that the initial lofty goals of AI (eg. passing the Turing test) are unachievable.

I think that laws suffer from this problem too. They are not defined mathematically, and besides they're not code; a computer isn't used to apply the law. Instead, human experts in the interpretation of law (lawyers and judges) must do the job. You will always need "wetware" if you have laws. People are just too creative and too variable for a single set of laws to suffice in all cases.

In the end, what really counts is good will. Without it, and without a sense of "fair play" (there's those pesky vague but important words again), the legal system doesn't work. That's my impression of what the supreme court was saying in this decision.

Re:Windows vs AT&T has some very strange phras

[theonetruekeebler]

So, for example, software distributed as source code can't violate a patent until it's compiled? Maybe not, but source code is copyrighted no matter what medium or storage mechanism is used.

Microsoft may have laid up a whole heap of trouble for themselves here. Not nearly as much as the other ruling has got them out of.

I'm convinced that Microsoft, and indeed nearly all the big players in software, have such large and banal patent portfolios simply to protect themselves from these ludicrous suits. It's been a race between legitimate producers of product and the patent trolls, who for the past decade or two have been saying things precisely as absurd as "Here's a communications device that can wirelessly transmit and receive digital data. Here's a form of communication called 'e-mail'. Let's patent sending e-mail to and from a wireless device!" So they sue Blackberry and blackmail them for tens of millions of dollars, and Blackberry's over a barrel because the concept sending e-mail to and from a Blackberry is so fucking obvious that nobody bothered to write it down. I swear to Ghod it's no different than saying "Here's a car. Here's a store. Let's patent driving a car to a store!"

The real losers in this case are pharmaceutical companies, who have a highly profitable habit of saying, "Here's a drug whose patent is about to expire. Here's a way of encapsulating any drug to be slow-release for 24-hour dosing. Let's patent a slow-release version of our drug!" By getting a patent on the combination of the unpatented (their drug) and the universally obvious (slow-release tablets), they buy themselves another decade or more of high markup.

Microsoft, and indeed any techology company that sticks its head up, has been consistently and unfairly brutalized by patent trolls for too long now. I'll be happy to see this practice come to an end.

And no sitting on patents

[Anonymous Coward]

To add further to your call for sanity, it should not be possible to hold a patent for something that you are not actually producing.

After all, the only reason for being granted a patent is so that you can benefit from a degree of protection while you are creating the corresponding product and building up its early market. If you are not producing it, then you deserve no protection from other producers.

And worse, if you hold a patent and do not produce the item but merely hold other producers to ransom for royalties with it, then you're just a patent troll and a completely negative contributer to progress --- you should be penalized, not rewarded.

To implement that, patents should expire automatically at the end of an ever-shortening period to reflect the march of progress. A short extension might be possible, once, as long as you can show that you're actively working on your product but that it's taking longer than expected. But no more than once, because you'd be preventing other potential producers from doing a better job than you are.

And after this single short extension, you should compete on a level footing with others. If that's not adequate, then don't patent your invention in the first place, but keep it a trade secret as long as you can --- that is, until it gets reverse-engineered. Either way, exclusive reign to an invention is not in the interest of society, and needs no extended support.

Re:And no sitting on patents

[Lockejaw]

To add further to your call for sanity, it should not be possible to hold a patent for something that you are not actually producing.
...
And worse, if you hold a patent and do not produce the item but merely hold other producers to ransom for royalties with it, then you're just a patent troll and a completely negative contributer to progress --- you should be penalized, not rewarded.

Eliminating patent trolls would be nice, but doing it like this would also take patents away from the small inventor. Inventors licensing/selling their patents to companies capable of mass producing the product in question is about as old as mass production itself.

Re:And no sitting on patents

[dosquatch]

And worse, if you hold a patent and do not produce the item but merely hold other producers to ransom for royalties with it, then you're just a patent troll and a completely negative contributer to progress --- you should be penalized, not rewarded.

More to the point wrt submarine patents - if you patent something and sit on it waiting for someone else to innovate your idea into existance so you can troll them, that behavior should be taken as prima facia evidence that the idea is neither non-obvious or novel as even the patent holder expected that someone else would shortly bring the idea to market, if such hadn't already been done (*cough*VoIPerizon)

Re:And no sitting on patents

[falconwolf]

And worse, if you hold a patent and do not produce the item but merely hold other producers to ransom for royalties with it, then you're just a patent troll and a completely negative contributer to progress --- you should be penalized, not rewarded.

Eliminating patent trolls would be nice, but doing it like this would also take patents away from the small inventor. Inventors licensing/selling their patents to companies capable of mass producing the product in question is about as old as mass production itself.

That's easy and simple to deal with, records of contacting manufacturers trying to get someone to manufacture your invention should do the trick.

Falcon

piracy is legal then?

[someone1234]

"The proper domains for proprietary software are trade secret for closed source code and copyright for open source code."

I hope, You by no means imply that proprietary software has no right for copyright ;)

Re:piracy is legal then?

[Lockejaw]

Sure, it has. If you're letting people see the source code, it makes perfect sense to not let those people copy it without permission. If nobody can see the source code, they can't copy it, but feel free to copyright it anyway (you'll just have trouble registering the copyright without, y'know, making the code visible). Of course, you could just copyright the object code, but reverse engineering would be an option for discovering the source code.

Or if you're taking "proprietary" to mean "closed source", most open source code is also somebody's "intellectual property," and all free (libre) software must be. Software freedom cannot be enforced on public domain code.

Re:piracy is legal then?

[fyngyrz]

Software freedom cannot be enforced on public domain code.

You mean, "restrictions on use cannot be enforced on public domain software."

I swear, I have never seen such an Orwellian reversal of meaning than the idea that "freedom" requires that you not be free to do this, that, or the other thing. You can make any use of PD code, in any venue. This is less true of any other kind of release model. That makes PD the most free of any type of code there is. Period. End of story.

PD code is awesome. Just use it, you're done. For anything you like. Change it. Don't change it. Give credit. Don't give credit. Sell it. Give it away. Rent it. Link it statically. Link it dynamically. Incorporate it in your OS. Or driver. Or application. Or library. Or all of the above, or any combination of the above. In proprietary, secret things, and in semi-open things and in fully open things (meaning, of course, more PD.) The point is that such code is best able to help everyone who might have a use for it to get ahead. By far.

What we really have here in the theft of the concept of freedom from PD is an intent to tie code up in legal tangles, which is certainly not of as much benefit to the software community as code that does not lead to lawyers, fees, delays, pointing fingers, linking and usage limitations, and so forth.

Now mind you, I really don't care if you decide that your code is to be restricted. It's your code, after all. The thing that bothers me is this ridiculous pretense that when you restrict it, you're making it "free." That is a load of hooey, plain and simple. Free = PD. License proponents only wish they could legitimately use the word free the way PD can. Not that it stops them from trying.

Frankly, if your supposedly "free" code isn't PD, then you're just selling it using a different form of commerce — that of forcing people to act in the way you want via your license in order to obtain the privilege of using your code. That's not significantly different from a proprietary vendor requiring money.

Re:SCOTUS didn't weaken anything - they are fixing

[lone_wolf_mcquaid]

I KNOW! The dope who titled the original post doesn't know squat of what was said in the opinion. The original post should've read "Supreme Court Strengthens Patents" with their recent KSR ruling. Now it is tougher for inventors to argue their invention is not obvious given what's publicly known.

I wonder what impact this will have on business method patents that are more likely deemed obvious and often confused with software patents? An example of the former is the One-Click patent that is arguably obvious, while an example of the latter is the patent on RSA encryption that is well deserved. Ditto, LWM

Re:Windows vs AT&T has some very strange phras

[Anonymous Coward]

So, for example, software distributed as source code can't violate a patent until it's compiled?
It's my understanding that this has always been true. I believe this is the rationale behind, for example, FreeType implementing various font patents but leaving them disabled by default with compile-time switches. A number of audio and video codecs are only distributed by their creators in source form, presumably also for this reason.

US exports

[alexo]

> The US does not export or make much of anything any more.

I would be interested to know the source of this information.

From what I could find, the US is the second larger exporter, right behind Germany and ahead of China.

The exports being:

agricultural products (soybeans, fruit, corn) 9.2%, industrial supplies (organic chemicals) 26.8%, capital goods (transistors, aircraft, motor vehicle parts, computers, telecommunications equipment) 49.0%, consumer goods (automobiles, medicines) 15.0% (2003)

Re:US exports

[Anonymous Coward]

Compare that to our imports. I think you will see my point.

Re:US exports

[alexo]

> Compare that to our imports. I think you will see my point.

No, I don't.

You (assuming same AC) wrote:
"The US does not export or make much of anything any more."

You did not write that the US imports 85% more than it exports.

I see absolutely no similarities between the statements.

Big numbers

[flyingfsck]

In the limit, consider that any software program is just one enormous number, then any other program is simply that number plus or minus another number. Therefore all software programs are trivial enhancements of pre-existing programs and should not be patentable.

most pro-software patent arguments are "circular"

[bussdriver]

Most pro software patent arguments I have seen are:

They promote innovation
You can't disprove it so it should be law ...

Hidden premise:
I could lose employment or income if I do not defend my employer's software patents.

Nah

[PCM2]

Software is typed up stuff, written in a language or languages, and as such, is more akin to written books or articles or say like musical scores, and should only be allowed copyright, not patents.

The test for what can be protected under copyright is not "typed up stuff." Recipes, for example, cannot be copyrighted. Recipe books can be copyrighted -- which might include copious explanatory text, photos, and all sorts of other things -- but a list of ingredients and steps of how to put an individual meal together cannot. Neither can an instruction manual explaining how to build a model kit.

Recipes can, however, be patented. Mull that one over for a while.

Oh yeah ... and you will observe that patents are themselves nothing more than "typed up stuff."

A Patent Lawyer's Perspective

[Arguendo]

I am a patent litigator (meaning I mostly kill patents; I don't create them), and this of course is big news in my practice today, and will be very helpful in several on-going cases.

Here's my take: the case allows lawyers to tell a story about the prior art that makes sense. Previously, the Federal Circuit had shut you down if you couldn't point out explicit prior art for every little detail of the patent that you wanted to invalidate. That's exactly what they did in the case under review. The defendant pointed out that all of the basic problems had been solved in other patents, but the Federal Circuit responded that they hadn't been solved with the intent of solving the particular problem the patent said it was trying to solve. Well, so what? We should be able to assume (and argue) that ordinary engineers have a little common sense and creativity in determining how to use previous inventions. We shouldn't have to show the courts that there was an exact road-map for an idiot to follow and arrive at the precise "invention" at issue. That's the big help in this case.

So from my point of view, here are the two big advances from KSR today:

• "A person of ordinary skill is also a person of ordinary creativity, not an automaton." (Page 17)
  This should be obvious, but it will help that the Supreme Court said it. It will be quoted a lot because it shows that we can assume that the ordinary engineer can make simple inferences and doesn't need his hand held.
• "When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense." (Also page 17.)
  This is the Supreme Court's long-winded way of boosting the "obvious to try" argument. The Federal Circuit has for a long time rejected the argument that it would have been "obvious to try," instead saying that it needs to be "obvious to do". (For example, it may be obvious to try to build a time machine, but that doesn't mean the invention of a time machine would be obvious.) But I read this opinion as saying that "obvious to try" goes a long way towards showing that it was "obvious to do". In other words, if it was obvious to try and the trying used predictable methods and yielded a predictable result, then the whole thing was likely obvious. So this will help as well.

Finally, it is going to be interesting to see how the PTO itself deals with this opinion. If an examiner comes back to you and says, "no I think this is obvious," it's very difficult to "prove" otherwise, especially early in a product's life cycle when you don't have market data to show how successful it might be, etc. At least under the previous test, the examiner would have to point out all the explicit references in the prior art. Now they apparently just have to point out the basic elements, and then say, "in their opinion," a person of ordinary skill and creativity would have been able use these elements to make the invention. How do you argue with that? "No, I don't think ordinary people are that creative"?

So, you fix one problem and possibly create another. The opinion shifts the debate to help prove obviousness, but it doesn't solve the underlying problem of what obviousness means. So it goes.

Re:A Patent Lawyer's Perspective

[azrider]

The Federal Circuit has for a long time rejected the argument that it would have been "obvious to try," instead saying that it needs to be "obvious to do". (For example, it may be obvious to try to build a time machine, but that doesn't mean the invention of a time machine would be obvious.)

To be just a little more accurate, it would have been "obvious to try" this particular method in order to achieve the desired result. The ruling in KSR seems to say that, building on prior art, it would not be particularly innovative to achieve the desired result (prevention of chafing wires) by substituting a fixed pivot point for a floating one. While there are any number of ways to avoid moving a wire (or bundle of wires) along an abrasive surface, that number is finite and each one would be obvious to one "skilled in the art" (as opposed to someone with no mechanical aptitude or common sense). The bottom line in this ruling (and correct me if I am wrong) is that, for someone who designs any movable object with materials that need to be protected from normal wear and tear, there was no "AHA!!!" moment here.

Re:A Patent Lawyer's Perspective

[marcop]

If I may use an example... would a Post-It-Note be patentable under this ruling, or would it be easily invalidated by this ruling? I have heard companies use the analogy of paper and glue are obvious but putting them together is patentable to defend their patents which to me (an engineer) seems obvious.

Disclaimer: no I am not seeking free legal advice on a Post-It-Note style invention. I don't work in a field even remotely related to paper products. My company has a corporate legal department and also uses external patent attorney's. However, talking to them is sometimes frustrating because my engineering logical view often times can't process their legal opinions.

Re:A Patent Lawyer's Perspective

[aproposofwhat]

Disclaimer - I used to work for 3M :-)

The major part of the Post-It-Note invention was the creation of an adhesive that solved the problem. Merely combining 'glue' and 'paper' is not enough to make a Post-It-Note - the innovation is in an adhesive that sticks the note where you want it for long enough, but is easily and cleanly detached once the note has served its purpose.

I reckon that's far enough beyond the obvious to count, and also required innovation in the field of adhesives, so yes I do believe that (at the time) a Post-It-Note was patentable.

While at 3M, I remember being regularly encouraged to see if any of my work could result in a patent (I was not always a software engineer - I used to get my hands dirty in a lab :-)) - the company was very keen on IP, even back in the 80s

Re:Next step [OT]

[orgelspieler]

It almost makes sense the other way, too, as in making the technology more robust.

Proof?

[PCM2]

Math is not patentable. Software is nothing but a computer-understandable representation of math.

Can you show us a plausible proof for that assertion?

By your logic, running a warehouse is nothing more than a human-understandable representation of the motion of molecules.

Re:Proof?

[TemporalBeing]

First of all - I am all with you in finding that Software is unpatentable for at least the same reasons you stated. Software is better kept under Copyright Law and Trade Secret Law. However to play Devil's Advocate for a minute....

If you don't think so, then I give you what should be the easier challenge: Prove that software isn't math through counter-example, by showing me a single instruction or line of code whose semantic meaning is not directly translatable into simple statements of boolean logic or, rarely, analog (real number) math?

I made the argument a while back to a friend that software is not math, but language - a construct describing to the computer what it is to do - what is desired; that language does borrow from the language of math, but it is itself not math. This works much like an interpreter between human languages even, perhaps analogous to a user's installation manual:

1. Write something in one language (e.g. Russian, Dutch, C, C++)
2. Interpret to another language (e.g. English, Finnish, Assembly, Binary)
3. Read what was written and follow instructions if necessary (e.g. Run a program, perform a task, etc.)

BTW - the above may also qualify as a "business process" which is equally unpatentable for similar reasons, though the Federal Courts (below SCOTUS) have held them patentable; I am not aware of SCOTUS saying one way or the other with respect to business processes. Now, I am not saying the above is a perfect argument in any respect, however, I think if you follow it out more you will still arrive at the same conclusion you did just going from 'math' and 'algorithm' - it is not patentable, and is better kept under Copyright Law and Trade Secret Law.

Re:Proof?

[Chris Burke]

I made the argument a while back to a friend that software is not math, but language

Yeah, if you want to be very precise, software is a language for describing math. "height = v_initial * time - 9.8 * time * time" is literally a sequence of characters that represents a mathematical equation. Much like a math textbook contains language, some English, some in a specialized language for expressing math, but pretty much all of it describing mathematical concepts. You're right in that you end up at the same point either way -- language describing math should not be patentable, even if the language is one ammenable to computers.

Re:Proof?

[GNT]

I guess you missed all of Turing's research when he came up with Turing Machines and finite-state machines and all that other stuff that we are taught in computability to actually provide a mathematical model and basis for algorithms.

Borrowing from the ever useful Wikipedia entry:

"The concept of an algorithm originated as a means of recording procedures for solving mathematical problems such as finding the common divisor of two numbers or multiplying two numbers. The concept was formalized in 1936 through Alan Turing's Turing machines and Alonzo Church's lambda calculus, which in turn formed the foundation of computer science."

So yes, all you *&^%$#@! out there, software IS math.

Re:Proof?

[PCM2]

That's what software is: Encoding mathematical operations in a computer-readable format. The human-readable source code is also nothing but an encoding of math, and even borrows much syntax from traditional math literature, modulo the limitations of standard computer character sets.

OK, and the sequence of operations used to put threads on a small piece of metal to turn it into a screw, encoded into human-readable format -- i.e. a patent -- differs from this how?

Traditional patents protect novel sequences of physical processes. Other than an overzealous application of the ivory-tower mentality of academia, why should novel sequences of mathematical processes be any different?

Running a warehouse isn't a representation of the motion of molecules, it is the motion of real molecules. If you merely describe how a warehouse should be run using mathematical formulae then you have something analagous to software, and yes, it is then just a human-understandable representation of the motion of molecules.

"Just" that, huh? I guess you make my point, then, because it's the latter that is patentable. And of course, this ignores how completely fatuous it is for you to even accept this premise. Only scientists deal in molecules. Businesspeople -- the people to whom patents matter -- deal in tangible objects. Boxes, shelves, forklifts. This is also the language of patents. They don't talk about the molecules that make up the boxes. Likewise, the language of software patents deals with the real-world outcomes of the software, not the the countless mathematical processes that are ticking away in the computer. I'm sure this must all be quite offensive to computer scientists, but this is the world we live in. This is not to say that I don't believe people are trying to patent trivial algorithms all the time -- I know they are -- but the lack of a clear standard for obviousness in software patents seems to me to be a different issue than that of whether software patents should exist at all.

Note that running software involves a device for executing encoded mathematical representations, aka a computer, which is a piece of hardware and patentable.

Really? So you designed and invented a computer, and you've patented that. And I write some software that makes your computer actually do something, so you must own that, too, then -- right? Because it falls under your patent: The computer is the only invention here. But no, you're claiming that no software should be patentable at all, I guess. But that seems pretty odd, considering that when you put the last drop of solder onto your computer, plug it into an AC outlet, and switch it on, it does ... absolutely nothing.

Re:Proof?

[Chris Burke]

OK, and the sequence of operations used to put threads on a small piece of metal to turn it into a screw, encoded into human-readable format -- i.e. a patent -- differs from this how?

You're switching contexts mid-sentence here. You're talking in one case about the thing to be patented, and then the patent itself. Screws aren't abstractions or representations, and are patentable. The abstract description of how to make one is in your patent application. In the case of software, the thing being patented, the software, is a representation of math.

Get it? The patent is a human-readable representation in all cases, yes. The thing patented is not usually a representation of a thing, but an actual physical object. You can't patent patents, and you shouldn't be able to patent math.

Traditional patents protect novel sequences of physical processes. Other than an overzealous application of the ivory-tower mentality of academia, why should novel sequences of mathematical processes be any different?Businesspeople -- the people to whom patents matter -- deal in tangible objects.

Why shouldn't math be patentable, you ask? For the same reason novel sequences of words shouldn't be patentable. You're locking up the fundamentals of thought and progress.

"Just" that, huh? I guess you make my point, then, because it's the latter that is patentable. And of course, this ignores how completely fatuous it is for you to even accept this premise. Only scientists deal in molecules. Businesspeople -- the people to whom patents matter -- deal in tangible objects.

I was only correcting your non-parallel argument that conflated describing something with doing it. Molecules in aggregate are tangible objects, but software isn't tangible at all. "Software" doesn't even necessarily involve electrons, and you won't find that assumption anywhere in the definition of any computer language, because it is an abstract math concept. It is only the most common implementation in a silicon computer, the tangible physical object, that has anything to do with molecules.

Also, a series of formulas that describe how you run your warehouse would not have been patentable in the past, falling under the category of "business methods". Good thing too that neither Olds nor Ford were able to patent the assembly line! It wasn't until the modern regime, which acknowledges both business model and software patents, that it would have been patentable. So I'm against both, you see.

Only scientists deal in molecules. Businesspeople -- the people to whom patents matter -- deal in tangible objects. Boxes, shelves, forklifts. This is also the language of patents. They don't talk about the molecules that make up the boxes. Likewise, the language of software patents deals with the real-world outcomes of the software, not the the countless mathematical processes that are ticking away in the computer. I'm sure this must all be quite offensive to computer scientists, but this is the world we live in.

Utterly wrong! Pharmaceutical patents absolutely deal with the molecules that make up the product, the methods for making them, and as a separate claim, their pharamaceutical effects. Software patents will make claims about the real-world effects of software, and the mathematical algorithms used in the production of the effect. Each claim is separate. In most cases the algorithm itself is patented, in addition to but distinct from the desired outcome.

Really? So you designed and invented a computer, and you've patented that. And I write some software that makes your computer actually do something, so you must own that, too, then -- right? Because it falls under your patent: The computer is the only invention here.

That's not how patent law works. Patents don't absorb other inventions such that things not mentioned in the patent "fall under" it, whether they are patentable or not. You don't need a license to

Re:Proof?

[TemporalBeing]

Yeah, if you want to be very precise, software is a language for describing math. "height = v_initial * time - 9.8 * time * time" is literally a sequence of characters that represents a mathematical equation. Much like a math textbook contains language, some English, some in a specialized language for expressing math, but pretty much all of it describing mathematical concepts. You're right in that you end up at the same point either way -- language describing math should not be patentable, even if the language is one ammenable to computers.

Actually, my thought of it as being language is more towards what we are doing with programming OO concepts - whether doing OO in C (where it is more obvious), or in C++, Java, Small Talk, etc (where it is not so obvious). The majority of programming, especially when it comes to OO, is simply assignment; secondarily, it is data manipulation - and rather basic manipulation too; but in either case it is managing a process towards some goal and we are describing in language how to do that.

For example, a process to write copy a file can be summed in:

1. Open file at source
2. Open file at destination
3. Pick a chunk of data from source file and put in destination file
4. Repeat previous step until no more data is in the source file
5. Close both files

There is no math involved whatsoever in that process, though we do use math to perform the task. This is more because of the pervasiveness of math in everything we do than it is the nature of math in a computer.

That is to say, while math is involved in writing programs, it is becoming less involved than it use to be so much so that it is no more important in programming than it is for a UPS driver in delivering packages. Some programmers will need to know more math than others in order to get the program to function - just like an Accountant needs to know more math in filling out the books than the CEO does in reading them - but overall, it is not so much related as it use to be.

That is not to say that programmers do not need math training - they do. It is just that math is starting to take more of a back seat in how computers function, and this is a process that will only continue. That does not mean, however, that software is any less tangible than it was before - it is a very intangible thing. Nor does it mean that software qualifies for any kind of patent as a result of being "less math based".

As always, some parts of the system will have more math than others just like any other field. So, ultimately, software is merely language dictating to the computer what to do, and includes as a subset the mathematical language used to calculate parts of those instructions (e.g. loops, calculations, etc.). Math is not the primary function of the language.

Note: bold and italics added for emphasis only.

Re:Proof?

[alienw]

It's not an assertion, it's a definition. That's what software is: Encoding mathematical operations in a computer-readable format.

Actually, it's circular reasoning. And just because the software is used to automatically operate a 4-function calculator instead of, say, a player piano doesn't make it mathematical.

The human-readable source code is also nothing but an encoding of math, and even borrows much syntax from traditional math literature, modulo the limitations of standard computer character sets. If you'd ever looked at software before this should be clear.

Just because something USES math doesn't mean it IS math. Math can be used to analyze computer programs, just like it can be used to analyze aircraft frames. Computer science is a branch of mathematics and uses math to analyze algorithms. The algorithms themselves are not any more mathematical than chunks of aluminum or assemblies of gears.

Prove that software isn't math through counter-example, by showing me a single instruction or line of code whose semantic meaning is not directly translatable into simple statements of boolean logic or, rarely, analog (real number) math?

Here's another counterexample. I can translate any electrical circuit into a matrix of differential equations. The two are equivalent. However, electrical engineering is not math. Just because you can express a program using mathematical symbols doesn't mean it's mathematics. Just how many lemmas did Microsoft have to prove to write Windows?

Also, there is no such thing as "proof by lack of counterexample". You have to either prove that it is true, or prove that it is not false. Just because nobody comes up with a counterexample doesn't mean you can say it's true, unless you can PROVE that a counterexample does not exist. If you used that kind of reasoning in a math class, you would have flunked.

Please stop using the word logic if this is how you are going to abuse it.

You are the one who is abusing words here. Prime example: mathematical.

Note that running software involves a device for executing encoded mathematical representations, aka a computer, which is a piece of hardware and patentable.

This is actually exactly how software patents are formulated. A computer loaded with certain software. A software patent doesn't keep you from publishing an algorithm in a book, printing T-shirts with it, or thinking about it. You just can't run it on a computer.

CAFC smackdowned again

[mavenguy]

I just read the syllabus (technically not legally binding; the actual opinion is, but there's almost no effective difference) of the opinion, and the SCOTUS basically shot down decades of Court of Appeals for the Federal Circuit and predecessor Court of Customs and Patent Appeals case law, bringing back the previously SCOTUS decided Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 17-18 as the solid basis for determining obviousness. Assuming the CAFC doesn't try to weasel out of this like they originally did around Graham ( or around Benson for software) this will have a potentially huge impact in the scope of claims issued by the PTO, or if a patent even issues in the first place. Much will depend on how PTO management interprets the decision and what guidelines are given to examiners, at least in short run until some appeals hit the CAFC.

Once again the SCOTUS has reigned in the CAFC which, as the most frequent appellate decider of patent law, gets to decide what the patent law is for years at a time, with only the relatively infrequent SCOTUS decisions permitting correction. Today is one of those infrequent occurances.

Re:Microsoft approved, actually. (RTA)

[dgatwood]

Pun.

Proof?

[Chris Burke]

Can you show us a plausible proof for that assertion [that software is nothing but a computer-understandable representation of math]?

It's not an assertion, it's a definition. That's what software is: Encoding mathematical operations in a computer-readable format. The human-readable source code is also nothing but an encoding of math, and even borrows much syntax from traditional math literature, modulo the limitations of standard computer character sets. If you'd ever looked at software before this should be clear.

If you don't think so, then I give you what should be the easier challenge: Prove that software isn't math through counter-example, by showing me a single instruction or line of code whose semantic meaning is not directly translatable into simple statements of boolean logic or, rarely, analog (real number) math?

There is an incredible amount of source code out there for you to look at. Should be easy to find a counter example if I'm wrong. However I'm not wrong, what I say is obvious, and you can feel free to spend years looking for something that doesn't exist just to conclude what everyone else knew all along, ala Douglas Adam's Maximegalon Institute for Slowly and Painfully Working Out the Surprisingly Obvious.

By your logic, running a warehouse is nothing more than a human-understandable representation of the motion of molecules.

Please stop using the word logic if this is how you are going to abuse it. Running a warehouse isn't a representation of the motion of molecules, it is the motion of real molecules. If you merely describe how a warehouse should be run using mathematical formulae then you have something analagous to software, and yes, it is then just a human-understandable representation of the motion of molecules.

Note that running software involves a device for executing encoded mathematical representations, aka a computer, which is a piece of hardware and patentable.

Circular reasoning

[dosquatch]

I still don't understand what makes algorithms and software OBVIOUSLY not patentable.

Simple - software is not patentable. Not "shouldn't be", it currently is NOT. Business methods are patentable, and all software patents are flown in under the "A method for" banner. It's a loophole, not design intent. Is that obvious enough for you?

I just don't see what makes software patents so different from other patents, and I haven't seen a single logical argument against software patents that doesn't involve circular reasoning.

Let's for the moment assume that business methods should be patentable. I don't exactly agree, but the court says, and their opinion counts for more than mine.

Patented things are supposed to be non-obvious and specific. Overly broad patents should be, and have been, struck down. So, you might patent a particular, novel, design for pointy things on a stick, but you cannot patent the blanket category "fork". This is as it should be.

But business patents are not granted this way, particularly when it comes to software. Amazon's patent does not cover "A method for processing sales with a single mouse click," it covers "Every method for processing sales with a single mouse click."

This is abuse of the system. This is not as it should be. And it is not circular.

BROADBAND INVENTION

[Ep0xi]

I can say that my grandfather invented "Broadband" by trasmitting many music channels over a single phone line. Of course he was a genious, but i have no legacy from that invention, you might ask, why do i have to eat "rice" when i am from the best family of inventors ever.

Supreme Court Weakens Patents

[falconwolf]

Good, now only they will throwout softwares!!!

Falcon

Facts vs Methods

[Wolfier]

There are mathematical FACTS, and there are mathematical METHODS. The argument against software patents all seem to say that software = stating mathematical facts, which is unpatentable.

However, for a given representation of mathematical facts, there are METHODS to reach a conclusion.
In the following obvious, hypothetical example, the following 2 polynomials are mathematically equivalent:

1) x^5+3x^2+2x+7
2) x(x(x^3+2)+2)+7

However, form (2) involves less operations to perform on a computational machine. It is an optimization, so to say, which is meaningless outside the context of a Von Neumann machine.

If somebody patented this method of evaluating polynomials in 1920, it would probably be granted.
Note that it's the method, not the formula itself, which is an invention. i.e. If somebody else uses form (1), it's not an infringement. This would satisfy what should be right, i.e. mathematical facts are not patentable.

However, if somebody uses (2) for the purpose of optimization, it'd be rightfully an infringement - note that it can be rearranged easily into (1). It'd make the evaluation slower, but it'd still be functionally equivalent and not infringe.

I cannot see the difference between this example and applying unpatentable physical laws to patent the light bulb. If you say "ALL software are unpatentable, even the "method" types, because mathematics isn't", it'd be equivalent to saying that "the light bulb was unpatentable since physics wasn't".

Re:Facts vs Methods

[Chris Burke]

However, form (2) involves less operations to perform on a computational machine. It is an optimization, so to say, which is meaningless outside the context of a Von Neumann machine.

Utter nonsense, unless you consider the human brain a "Von Neumann machine". Before the invention of computers and calculators, optimizations that reduced the number of operations were more important. In fact ease of computation by hand was one of the stated reasons I learned about simplification methods like your example in algebra class way back in 7th grade, before algebraic and graphing calculators became ubiquitous in the classroom. Or don't you remember that the original meaning of "computer" was "person whose job was to perform repeated calculations by hand"?

But I'm still not clear on the difference between a mathematical statement and a mathematical method. Why is x(x(x^3+2)+2)+7 a "method" and not a "statement"? The fact that it is equivalent to the first statement seems to me to mean there cannot be any relevent difference. If you wrote equation 2 first, then created equation 1 as the optimization (it contains more parallelism, so it isn't inconceivable), then would equation 1 be the "method" rather than the "statement"? Would 2 then be a "fact" and unpatentable?

More importantly, I'm not aware of any such distinction in U.S. patent law. You wouldn't happen to know the section of U.S. code that makes this distinction?

Re:Facts vs Methods

[Anonymous Coward]

An algorithm is just as much a mathematical object as a polynomial is. Your "method" is an algorithm. And programs, as representations of algorithms, are isomorphic to theorems (google "Curry-Howard isomorphism"), so that distinction would be false as well.

Re:Facts vs Methods

[Anonymous Coward]

Interesting. What do you have to say about the lightbulb comment?

This solves a big catch 22

[sjames]

The big catch 22 of the former standard is that many patents cover things that are so blindingly obvious that most people would never even think to make a note of the idea, much less enshrine it in a patent. The only entities that would do otherwise are big corporations with lawyers on staff that cost the same amount sitting around as they do filing frivolous patents.

The first patents against the wall will be the so-called business method patents that can be sumarized as do the same thing merchants have done since we invented writing, only use a computer.

I wonder how the MP3 patents will fare given that they're really just a special (and somewhat simplified) case of the processing done for a cochlear implant, that is, do an FFT, then encode only the most important bands. The case of the cochlear implant case is much more difficult due to the hard limit on the number of bands that can be encoded (that is, how many electrodes can be effectively implanted).

machines have to be built..

[zogger]

...and there should be a working prototype before a patent is granted. That's how it should be anyway.

The patent system is busted way out of proportion to its usefulness. And I have an inkling why-the globalists have sold off the drive to be a manufacturing powerhouse inside the US, the handwriting is on the wall there. Heck, they are paying large sums of cash to give it away! This is called "investment". I call it short term and short sighted economic rape.

      And services, which were supposed to be the replacements for manufacturing, are now being outsourced as well, or diluted with mass numbers of imported "service workers".. What's left? Intangibles, this nebulous intangible "IP" deal where they pull numbers out of their nether regions to declare what something is "worth", and the only way they can maintain that is with more and more pretty strange "IP" laws, which increasingly are being ignored, because it's lame, and the bulk of the planet can see that.

This is a congame that can only go on for a short time, historically speaking. It's a fairy tale economic system, magic beans for the milk cow.

I think the deal with digital replicators has shown about what the market will bear with digital copies of "IP". Free or very very cheap is the top price there globally. Durable goods, a different story entirely. They have to be built, they have to work.

It's only a matter of time before the rest of the planet tells the US to go get stuffed and do their own work if they want real tangible goods. They aren't going to keep subsidizing forever, and if you notice, a lot of the heavy hitters in Asia and Europe are starting to shy away from the absolute king of magical fairy tale "IP", the backed by nothing federal reserve (debt) note, or as it should be called, the Imperial IOU..

software patents

[falconwolf]

I am not a proponent of software patents; I just don't see what makes software patents so different from other patents, and I haven't seen a single logical argument against software patents that doesn't involve circular reasoning.

I think this is simple. Patents, and copyrights, are supposed to encourage progress in the Arts and Sciences. Software patents don't do this. Many software programs have been written without any patent protection. A lot have actually been written without any protection, like open source software. Without patents software has grown a lot.

Falcon

Re:software patents

[alienw]

You could have the same argument about any other kind of patent, too. Not to mention, I fail to see your point. The most profitable companies are headquartered in USA, which has had software patents for the last 26 years or so. I'm not saying it's all because of the patent system, but I don't think you have much evidence to support your assertion.

Re:software patents

[falconwolf]

I fail to see your point.

Duh, the point is that software patents aren't needed.

You could have the same argument about any other kind of patent

Designing hardware can be very expensive and unless there is some sort of patent protection for it not many would risk spending the millions of dollars doing research. Couldn't this be part of the reason communism failed?

I'm not saying it's all because of the patent system, but I don't think you have much evidence to support your assertion.

And I doubt you have any evidence to support your belief software patents help, whereas all the open source software is evidence patents aren't needed. One of the first computer games, Spacewar written in 1961 was open source. Of course it wasn't called open source back then.

Falcon

Re:software patents

[alienw]

Duh, the point is that software patents aren't needed.

Just how do you figure that?

Designing hardware can be very expensive and unless there is some sort of patent protection for it not many would risk spending the millions of dollars doing research.

Pretty much any large software company spends millions of dollars doing research.

patents

[falconwolf]

First of all, the purpose of patents is not to spur inventors to invent.

Wrong, patents are specifically issued to encourage progress in the Arts and Sciences, at least in the USA:
Section 8 - Powers of Congress...
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;

Abolish patents, and software firms will have no incentive to write anything: anyone can steal it.

Software has been written long before the first software patent was issued. If patents were needed as an incentive to write software then open source software would never exist. There is plenty of incentive to write software without patents.

Their only solution? Do what Microsoft does and have ridiculous anti-piracy measures that don't even work.

So Apache, Firefox, the Gimp, and Linux don't exist? Or do they have MS's anti-priracy measure built in?

Falcon

Re:patents

[Old Benjamin]

What the law says the purpose is does not make it true. Also, the point is that inventors have the right to their inventions.

Also, more software is written with patents, by simple economics

All of the software you mention is very few. That would be like saying that charity denies capitilism. In fact, it is

Re:patents

[falconwolf]

the point is that inventors have the right to their inventions.

Right? Where does this right come from? There is no right to patents! Patents are just government granted limited monopolies.

All of the software you mention is very few.

I neither know nor have the tyme to list all of the open source software available for download from freshmeat or sourceforge forget all the other websites that have OS software But I bet even if I did, seeing as how you already dismissed software I already gave, it still wouldn't satisfy you.

Re:patents

[Old Benjamin]

Yeah, of course there is a whole lot of open source software, that is free. But compared to all of the software that ISN'T, it might as well not exist.

It can be no other way

[Anonymous Coward]

You can't nail it down any further without going right back to the overturned court decision (ie. if it wasn't written down somewhere it wasn't obvious). The best you could do is to define some procedures for acquiring expert witnesses (or rather, persons having ordinary skills in the art) to vote on obviousness ... but to do that the law makers would first have to admit that the validity of a patent can only be established in a court case, and I doubt they would ever go that far.

Algorithms

[falconwolf]

Algorithms are designed according to the availability of several functional units not offered by the human brain.

You may want to revise your definition of algorithms. Originally algorithms were simply a problem-solving procedure or noun a process or set of rules used in calculations or other problem-solving operations. Neither of these require a computer or anything else other than the human brain.

Falcon

Alternatives to Patents

[Anonymous Coward]

For my taste, the discussion has been too broad. Incentives are cited but are not specified.

Whether it's a commercial or open source software project, a specific non-obvious method for doing something should be patentable -- regardless of whether the method is software or hardware. A case in point is the RSA algorithm. It created a software company (and jobs) and allowed the creation of Certificates, fobs, etc... It isn't clear to me that we would have had a strong product offering in this area if everyone could just copy it.

Without patents, both IBM and Microsoft could just take the idea and the RSA inventors would be left without recourse.

Unless you could tell me how the inventors are compensated to the same level (or greater), I would say patents are both valuable and necessary.

Mike

Re:Alternatives to Patents

[cpt kangarooski]

Unless you could tell me how the inventors are compensated to the same level (or greater), I would say patents are both valuable and necessary.

I'm uninterested in compensating inventors, save as a portion of a larger scheme.

It isn't clear to me that we would have had a strong product offering in this area if everyone could just copy it.

Without patents, both IBM and Microsoft could just take the idea

So you don't think that the free market would be interested? While a government-granted monopoly can certainly provide a solution when the market doesn't (e.g. lots of infrastructure), I'd prefer to handle that on a case-by-case basis, where the problems in need of a solution are identifiable, rather than granting monopolies left and right hoping that a few of them were worthwhile even though most are not necessary.

Re:Alternatives to Patents

[Anonymous Coward]

I posted the original, so here are my reply comments.

Original: Unless you could tell me how the inventors are compensated to the same level (or greater), I would say patents are both valuable and necessary.
Your comments: I'm uninterested in compensating inventors, save as a portion of a larger scheme.

Reply: I don't get what the above means at all - not a bit of it. Can you be specific?

Original: It isn't clear to me that we would have had a strong product offering in this area if everyone could just copy it. Without patents, both IBM and Microsoft could just take the idea.
Your comments: So you don't think that the free market would be interested? While a government-granted monopoly can certainly provide a solution when the market doesn't (e.g. lots of infrastructure), I'd prefer to handle that on a case-by-case basis, where the problems in need of a solution are identifiable, rather than granting monopolies left and right hoping that a few of them were worthwhile even though most are not necessary.

Reply: This argument more than proves my point: (1) do you buy a car from mo-shmo or a large manufacturer? Why should I invest is mo-shmo car when a big guy could just copy your idea. The only reason the free market has a chance to buy your product is because patents protect the idea. Otherwise, you'd be the inventor, I'd be the manufacturer and I'd make all the money.

(2) We live in a world of laws. Laws prevent case-by-case decisions. And who decided these cases? voters, corporations, governments? I prefer a law. Everyone gets the same break.

(3) Yes, the inventor gets to be compensated. You can call it a monopoly, but that is just some supercharged words. Patents are a property right. I get to enjoy it as much as I enjoy my home. I can't go and live in yours for free so why are patents any different?


Mike

Re:Alternatives to Patents

[cpt kangarooski]

Reply: I don't get what the above means at all - not a bit of it. Can you be specific?

I am interested in maximizing the public benefit of the patent system. If accomplishing this requires doing something beneficial for inventors, then I am for it. If accomplishing this requires not doing something beneficial for inventors, then I am for that. I view inventors as a means to an end, but not independently worthwhile. Their inventions, OTOH, are of great value to me. Does this help you?

Reply: This argument more than proves my point: (1) do you buy a car from mo-shmo or a large manufacturer? Why should I invest is mo-shmo car when a big guy could just copy your idea. The only reason the free market has a chance to buy your product is because patents protect the idea. Otherwise, you'd be the inventor, I'd be the manufacturer and I'd make all the money.

I don't really see how it proves your point. A patent doesn't cause a product to be successful in the market. Indeed, the monopoly pricing and limited availability often retard success. But mainly, all a patent does is concentrate whatever success there is to the benefit of the patent holder. If a product is a flop, it'll still be a flop, patent or no.

Now, whether there's a patent might have an affect on whether the invention is invented in the first place, but that's not quite what we were talking about just then, AFAICT.

(2) We live in a world of laws. Laws prevent case-by-case decisions. And who decided these cases? voters, corporations, governments? I prefer a law. Everyone gets the same break.

Meh. We have plenty of case-by-case monopoly grants. Some places have cable tv monopolies, but have unregulated telephone or electrical service.

Yes, the inventor gets to be compensated. You can call it a monopoly, but that is just some supercharged words. Patents are a property right. I get to enjoy it as much as I enjoy my home. I can't go and live in yours for free so why are patents any different?

No, it really is a monopoly. Even Jefferson and Madison who had a lot of responsibility for the US patent system existing at all called it like it is.

Patents are not a property right but are arguably themselves property. So what? Property law, while it developed organically, is actually the same sort of utilitarian system at heart as patents are. It's just more clear cut with patents because they were put together deliberately by people who thought about this sort of thing.

For example, under the right circumstances, you can come and live in my home for free, take my home from me, and make it into your home, because property law isn't as simple as 'I own it, it's mine.' Look up adverse possession sometime. There's all manner of policies and limits on property. Looking to it is of no great help to you, I'm afraid.

Re:Alternatives to Patents

[Anonymous Coward]

(A) "Adverse possession" is a specific process and it more supports patent law than negates it. The adverse possession process is that I encroach on your property, in part or in whole, for a specific period of time. During that time, usually 20 years, you have the right to reclaim your property in court.

Patent law works in exactly the same way. The patent holder is required to protect their rights in court against any infringements.

(B) I cannot believe that you could seriously state that "If accomplishing [the public good] requires not doing something beneficial for inventors, then I am for that. I view inventors as a means to an end, but not independently worthwhile. Their inventions, OTOH, are of great value to me."

First, it goes against basic human property rights and against the 14th Amendment. Only two types of societies take property without compensation: communism and fascism.

Your comment, stated slightly differently could read: "I (this poster) is only interested in the house you build (never mind the research and construction dollars you may have put into it) as a means to my end. Your efforts are not independently worthwhile."

I am sure that you don't really agree with that statement at all. It therefore would not apply to patents either.

Mike

Re:Alternatives to Patents

[cpt kangarooski]

During that time, usually 20 years, you have the right to reclaim your property in court.

Actually the time varies significantly. I've seen it as short as 5 years.

Patent law works in exactly the same way. The patent holder is required to protect their rights in court against any infringements.

No, patent holders are not required to do anything. You're thinking of trademarks, and it's not really as true there as people often think.

First, it goes against basic human property rights and against the 14th Amendment.

Setting aside that there is no natural right to property beyond what you can personally protect, you've misunderstood me. I'm not suggesting that we take patents away from anyone. I'm suggesting that for certain fields, we don't give anyone patents to begin with. There is no right to get patents or requirement that there be a patent system or that patents must be granted for particular fields.

Re:Alternatives to Patents

[Anonymous Coward]

(A) Patent Law works exactly the same way as Adverse Possession. If I use your patented invention in my product it is totally up to you to (1) discover it, and (2) come after me for compensation.

(B) We have laws and property rights. We have rights to acquire patent protection. They are all granted to us by the Constitution. I don't have to personally protect them. I have the law and they will protect them through court orders. These orders can compel an offender to pay.

(C) If there were no patents, then inventors would market their ideas (just like they do now). Their inventions would not become public and the public could not take them. Inventors would retain their possessions and rights thereof. Patents grant rules so that an inventor can have a specific time to recoup their investment, usually 17 years. If I could copy your invention in a few months, then you wouldn't invest money that could only be recouped over years. It wouldn't be worth it.

This discussion has been illustrative in helping to define the boundaries of law, rights and compensation. But so far I cannot see any useful reason not to have patents. The arguments have only strengthened the need and rights for them.

Re:Alternatives to Patents

[cpt kangarooski]

(A) Patent Law works exactly the same way as Adverse Possession. If I use your patented invention in my product it is totally up to you to (1) discover it, and (2) come after me for compensation.

No. If I infringe on your patent long enough, you don't lose the patent and I don't get it and the ability to enforce it against others. I merely cited it as an example of how there are limits to real property law. Why you've latched on to it so fiercely is beyond me.

We have rights to acquire patent protection. They are all granted to us by the Constitution.

No. The Constitution empowers Congress to create patent laws and to grant patents. They are not obligated to, and the Constitution does not itself grant patents to anyone. If Congress wanted to, they could meet tomorrow, pass a law that shut down the entire patent system, and that would be that. No one could argue that the Constitution requires them to have patents.

I don't have to personally protect them.

You do have to take some initiative; no one will pursue infringers other than the rightsholder.

(C) If there were no patents, then inventors would market their ideas (just like they do now). Their inventions would not become public and the public could not take them. Inventors would retain their possessions and rights thereof. Patents grant rules so that an inventor can have a specific time to recoup their investment, usually 17 years. If I could copy your invention in a few months, then you wouldn't invest money that could only be recouped over years. It wouldn't be worth it.

If there were no patents, then inventors would have to rely on the law of unfair competition, treating their inventions as trade secrets. N.b. that this remains an alternative to patents now; many inventors choose not to get patents and instead to use trade secret law. However, the inventions would be in the public domain. The inventors are not obligated (generally) to disclose any facts about them, but they also have no recourse if someone reverse engineers their unpatented invention, or independently discovers it, or otherwise fairly discovers the secret. Because inventors generally prefer the protections of the patent system, they comply with it, instead of going the trade secret route.

If I could copy your invention in a few months, then you wouldn't invest money that could only be recouped over years. It wouldn't be worth it.

That depends on the invention. Many inventions have gone unpatented over the years. Many go unpatented even today.

But so far I cannot see any useful reason not to have patents.

As I said, patents involve a costly burden to the public, and it is the public's choice, via the government that serves the public, as to whether or not to have patents, and to what degree to have them if at all. I am saying that in the case of software and business methods, the costs to the public outweigh the benefits to the public. This cannot stand, and so we must not grant patents in those fields. This may result in some reduction in inventiveness in those fields, but history and the treatment of these fields in the rest of the world indicate that the reduction would be minimal at most. Thus the public could get most of the benefit for none of the burden. That's a better deal.

Your problem seems to be that you're looking at patents from the perspective of the patent holder. That's the wrong way to do it. You ought to be looking at it from the perspective of absolutely everyone else, since they are the ones who are granting the patent.

Re:Alternatives to Patents

[Anonymous Coward]

...patents involve a costly burden to the public [and] in the case of software and business methods the costs to the public outweigh the benefits.

This is the type of broad generalities that is more your wish than proven true.

I think that I can argue that the general public would be significantly hurt by the lack of patent protection.

The general formula one might apply to the burden to the general public is that the public pays more per unit of software in the way that Windows or Oracle costs more than open source. Those prices do not come from patents. They are a result of the market choosing these products over open source alternatives (however irrational those decisions may be).

Take the case of Google. The patent protections they have acquired allows them to justify the almost $1 Billion in server farms and jobs investment. Have 100s of Googles would mean that no one would ever recoup their costs. Think of Airlines as an example of an industry that is almost always in bankruptcy because they always have a low cost competition.

My argument is that protections justify investments (some small, some massive) from which we all benefit. Patents benefit the general public.

Moreover, take the case of Microsoft. Microsoft has patents over some aspects on Windows. 100s of little Microsofts wouldn't create innovation. However Web 2.0 does. Innovation is not stymied at all. What is stymied is the fracturization of a market. ...your problem is...
No, I am looking at it as the greater benefit.

Re:Alternatives to Patents

[cpt kangarooski]

This is the type of broad generalities that is more your wish than proven true.

Well, again, the thriving software and business method industries that exist in the rest of the world, and in the US prior to patents being issued in those fields is strong evidence in my favor.

The patent protections they have acquired allows them to justify the almost $1 Billion in server farms and jobs investment. Have 100s of Googles would mean that no one would ever recoup their costs.

I disagree. I think that there might not be that many, and not everyone would operate in every field that Google does now, but that overall there would be healthy competition in all of them, which would be beneficial for the public.

My argument is that protections justify investments (some small, some massive) from which we all benefit.

Well, no. A monopoly is capable of providing an incentive to invest, certainly. But there are other incentives as well; lots of money is invested in fields in which there is a free market. I'm saying that in these specific fields (software and business methods) the other incentives are great enough that there is no need for the artificial incentive of patents. Particularly as that artificial incentive is costly, while the natural incentives are not. This needn't be true all the time, but I think it's true presently. And again, the fact that there aren't software or business methods patents in most of the world, but there is plenty of invention going on there, indicates that I'm probably right. Ditto that we didn't have patents in those fields until very recently, but we've long had invention in those fields. And that a lot of work in those fields even here takes place without inventors seeking patents.

100s of little Microsofts wouldn't create innovation.

One Microsoft hasn't innovated either, actually. MS is infamous for buying smaller innovative businesses, copying competitors, and acting conservatively. Frankly, lots of little MSes would have to be innovative just to survive. The MS we've got doesn't have to; it has enough money and mindshare that it needn't lift a finger. Look at all the features that didn't make it into Vista, and look at how little of an improvement Vista is over previous OSes all the way back to the original Mac. There hasn't been a substantial leap forward like that in ages, and it hasn't come from MS.

The grey area

[tepples]

There is no grey area. The issue is whether you are copying the expression or not. The idea underlying the expression is not copyrightable and may be copied from any source. The expression may not be copied The grey area lies in the border between idea and expression.

but can be independently reproduced identically Good luck proving in court that your reproduction was independent.

A computer with memory that does A, B, and C

[tepples]

Yes, but now you're talking about a physical cable, a "RS-232 cable," which is different from the algorithm. Sure, patent the cable, but the algorithm is different. Then patent a computer that performs the algorithm. In fact, many patents on algorithms take this form.

Best ideas are simple - ovbious retrospectively

[MCRocker]

One of the gotcha's with defining obviouse is that some of the most revolutionary and brilliant ideas are very simple. In retrospect, they're obvious, but until someone thought of them for the first time...

Although not an invetion, one case that illustrates this in a way that most modern readers find hard to believe is that reading was originally only used for re-telling stories to others, so much so that one historical writer reported being quite startled to come upon someone reading silently to himself and was confused about what was going on for a few moments.

dear everyone, meet my standard for obviousness

[msouth]

Hi, I have a standard for obviousness that I think would work better. Here is the deal--you come up with something that could, feasibly, have been done at any time in the last 20 years, and you get it exclusively for the next 20 years. It's non-obviousness is derived from the fact that no one has done it. You would have to come up with a definition of "feasible", but I think you could do it.

The point is, I don't think the intent of patents was to spur a land rush into previously unexplored territory and reward the people with the fastest wagons. The idea is that if you find something that might not otherwise have been done, we'll let you have an exclusive right to it for a while if you tell us how it's done. How do you know it might not otherwise have been done? Well, we pick an arbitrary period of time and say "if it has been feasible for this long, and hasn't been done by now, it doesn't seem obvious, so we'll call it non-obvious".

I know the people that got a patent on auctioning municipal bonds over the internet. Auctioning things over the internet was already done. Auctioning by fax machine was already done. Does it really make sense for them to have an exclusive right to that? I like them, and they are the "small inventor getting rewarded for their innovation" types. But it could just as easily have been done by one of the big guys and they would have been locked out. I just don't think that is what patents are for. Fifty different implementations would be running by now if they hadn't gotten there first.

Think about it this way--if you used this rule, the people that want to patent their inventions would really have to be thinking hard. What can I do that no one has done even though it's been feasible to do it for 20 years? That is waaaaay harder than just being the first guy to the PTO with one-click. And that's the real point--give people an incentive to think really hard.

Re:dear everyone, meet my standard for obviousness

[msouth]

sorry to reply to my own post. I should have said that this is based on something someone said about the problem with software patents being that the field is too new, and you need a shakeout time to let the obvious stuff get invented. I was just trying to think of a way to codify that idea by picking a time. I don't know who said that originally, maybe perens talking about the pixar patent or lessig? But I'm sure one of you is going to flame me with it, so I just wanted to post this to thank you in advance :).

Familiar method "...with a computer"?

[tepples]

[A computer is] both the thing that turns software from an abstract representation of math concepts into actual physical changes in the physical world, and the thing that as a physical invention is (and should be) patentable. A "computer with memory", as many software patent claims call it, is taught by the prior art. So are you also a fan of patents on inventions that consist of the most straightforward combination of an existing method with the Internet or with a wireless network?

Re:Familiar method "...with a computer"?

[Chris Burke]

I was merely talking about classes of patentable inventions, I didn't mean to imply specific instances. Of course you can't patent the concept of a computer today, physical implementations of that concept are over half a century old.

Minor change that would demonstrate obviousness

[MCRocker]

The First to file and first to invent rules always seemed strange to me. If two people file a patent for a similar idea at about the same time, then shouldn't that be a demonstration that the idea was obvious... or at least not unique?

If I had my way, if anyone submitted a similar patent to one that was still being examined and not yet awarded (or made public), then both should be invalidated as the idea should be deemed obvious because two practitioners of the art clearly came up with the same idea independently. This would have prented both the light-bulf and phone patents to have been rejected, which, in historical retrospect seem to have been indepentently invented by several different people/groups at about the same time.

Re:Minor change that would demonstrate obviousness

[docwatson223]

Look at Marconi and Tesla - Tesla should have gotten the patent and the Nobel for it but....

Summary wrong again

[deblau]

The U.S. Supreme Court, in a unanimous opinion, overturned the decades old test for determine [sic] whether a patent is obvious.

No, the Court upheld the decades old test from Graham v. John Deere. What they did was tell the Federal Circuit "you're doing it wrong." Big difference.

The Federal Circuit had been rigidly applying the "teaching, suggestion, motivation" test, which says, clearly enough, that an invention is ONLY obvious if there is some teaching, suggestion, or motivation in the literature to combine various known inventions. (Opinion p. 2) The Supreme Court said that even without an explicit or implied motivation, inventors are 'routinely creative' (my words) when it comes to taking known approaches and applying them to new problems. The court said, on page 17:

The idea that a designer hoping to make [a device] would ignore [a particular approach] because [that approach] was designed to solve [a different] problem makes little sense. A person of ordinary skill is also a person of ordinary creativity, not an automaton.

They also said on page 17 that an invention might be obvious if it were only 'obvious to try', even though there was no way to know if it would work ahead of time, because people are routinely forced to try out different combinations of approaches in response to market pressures or design needs. The Court considers these actions to be part of the due course of business, and not particularly non-obvious. As a result, the court said, on page 15:

Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.

I finish with a quote that's been quoted elsewhere but is worth repeating:

We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, section 8, cl. 8.

Patent the use as a medication

[tepples]

A medicinal substance is not patentable, the method for producing the substance is. Find a different method to make the same molecule, and you too can sell viagra. What about this:

1. A composition of matter consisting at least in part of the chemical 1-[4-ethoxy-3-(6,7-dihydro-1-methyl- 7-oxo-3-propyl-1H-pyrazolo[4,3-d]pyrimidin-5-yl) phenylsulfonyl]-4-methylpiperazine, hereinafter called sildenafil.
2. A method of treating disorder in the mammalian body, involving the introduction of sildenafil into the body.
3. The method of claim 2 where the disorder is a sexual impairment.
4. The method of claim 3 where the impairment is erectile dysfunction.
5. The method of at least one of claims 2, 3, and 4 where the body is a human body.

So even if sildenafil citrate itself weren't patentable, use as a medication might still be.

Re:Patent the use as a medication

[dosquatch]

So even if sildenafil citrate itself weren't patentable, use as a medication might still be.

True, true, but only for the disorder so listed in the method patent. Should you, noble researcher, find that said substance is also effective in treating, say, excessive ear hair, you are free to patent a method of treating that disorder.

You might even "discover" a "new" disorder - "stiffie impairment" - and patent a method for treating that. I'd like to think this wouldn't pass, but given some of the stuff that does get granted, who knows?

Set max damages at 25% of derived revenue.

[Kadin2048]

Seems like the solution would be to mandate that the damages from non-willful infringement must be a percentage of revenue derived from the sale or operation of the infringing device or system, say 25% or less at a maximum (where by 'maximum' that's the highest it can be if the two systems are basically identical; if the infringing part is just a small component of a larger system then the penalty should be correspondingly smaller).

In effect you say that patentholders must license their patents on more or less favorable terms, nondiscriminatorily, to people who accidentally infringe on their patent in the course of doing business or designing similar systems.

Probably, you would want to make the penalty for non-willful infringement for people in the same or related business field higher than for someone in a totally unrelated field, since they arguably should have known about their competitor's patent more than the unrelated inventor should have, but these are all details.

The main idea would be that you couldn't ever have a punitive, bankruptcy-inducing damages award as the result of non-willful infringement -- the maximum damage might cause you to want to re-engineer the device, but it wouldn't take money out of your pocket just for doing it.

There's no "moral right" to IP.

[Kadin2048]

Without a patent, inventors wouldn't be inventors. And for the last time, no a patent is not the right to something, it recognizes the right, the moral right, and not the legal one, to intellectual property.

If that's your opinion, and your belief, well, that's fine -- more power to you. But it's certainly not a widely-held one, and I think you'll find any sort of evidence for or substantiation of it, in law or philosophy, surprisingly sparse.

I can't think of any basis for a natural right to "intellectual property;" it's a fairly modern invention, and one that is quite detached from the concept of freedom in thought or speech.

It seems as though you are edging very close on creating a natural right where it ought to exist only as a manufactured one: that is to say, we as a society might decide that it is beneficial to create the concept of "intellectual property," but that is wholly different from saying that there is a natural or "moral" right to it, somehow arising out of essential human nature and free will. Intellectual property is a wholly utilitarian concept, the development of which you can track quite easily over the past few centuries in response to economic and technological pressures.

Of course, in the most basic sense, the difference between "natural" rights and "derived" or "manmade" rights is arbitrary (unless, like Aquinas or the Framers of the Constitution, you invoke God, or like Kant, you perform a rigid derivation of rights from a first principle), so what I'm really saying is this: if you want to persist in believing that there is a natural right to intellectual property, fine, but be aware that you are taking a fringe position which isn't exactly popular or widely held. Very few people are going to be willing to swallow that on premise, as you seem to want them to.

[And I'm not even going to get into your comment about inventors only being inventors because of patents, because that doesn't make a damn bit of sense to me.]

Re:There's no "moral right" to IP.

[Old Benjamin]

What it means is that without patents, they wouldn't invent.

A Different standard for obviousness

[silverdirk]

How about this standard instead: Its obvious if someone can figure out how to do it without looking at the details of the patent :-)

In other words, we grant the monopoly in exchange for the details of how to do it. If we don't need the details, we don't grant the monopoly. If someone has a clever idea with an obvious implementation... well, they get to see how fast they can take it to market before competitors get wind of it and the competition begins.

The test would be quite easy: have the inventor submit the goal their invention solves. Have a team of 5 patent examiners describe how they would implement the goal. Then have the inventor submit the details, and strike every claim that was mentioned by the examiners.

Done deal.

Re:A Different standard for obviousness

[msouth]

I agree that this is a good way to decide if it is obvious how to do a thing once someone has described the thing. However, I don't really like the idea of not allowing a patent on something like that. If you want, call it an "innovation patent" or something else. The point of making something patentable is so that information/ideas that wouldn't get out there otherwise will get out there. Just because it's obvious how to do something, it's not necessarily obvious to do it.

For example, suppose someone submits a patent for an improved screw head that prevents the screwdriver from slipping out or whatever. The five patent examiners in your standard might indeed come up with the Phillips screw. But would they have thought of doing it in the first place? And, more to the point, would Phillips have bothered bringing his idea to market if it couldn't be protected by a patent?

(I did a quick google search to make sure I was spelling Phillips right, and this Ask Yahoo article: http://ask.yahoo.com/20021107.html explains that some Canadian came up with a screw head with a recessed square in it a couple decades earlier than Phillips' work. If someone had wanted to do it they could have used it instead of his patented technology. That's funny, and goes somewhat to the idea of "let the best marketer win". But I still don't think Phillips would have been interested in trying to go to market with it when all those big car companies could copy it for nothing, so I think my argument still holds in light of this.)

Part of the logic of my standard is that the market has been living without it for 20 years already. It's obviously not the only possible way to do the business, and it's obviously not the first thing people think of when they get into the business. So granting the patent probably won't hold the business back from normal progress. It just rewards the person who came up with the good idea and encourages him to bring it to market.

Basically, I'm saying that there is more to "what ought to be patentable" than "things that are hard to implement". The point, I think, was to encourage innovators to share their ideas. One standard of it being an innovation is that it's hard to figure out how to do it until someone shows you. My claim is that we should be willing to reward people who come up with even "simple" ideas that no one has come up with despite time being "ripe" for it (meaning it has been feasible to do) for 20 years now.

Re:A Different standard for obviousness

[silverdirk]

My thought is that people don't need any encouragement to share their ideas. If its a useful idea, they'll use it. If it has an obvious implementation, it will be "shared" by default. Granting protection is just a governmental favor to 1) help them recoup the development costs and 2) make sure the implementation is made public and isn't lost. For "clever but obvious" ideas, there isn't really any development cost, and there's no secret to the implementation. So why patent them?

The only remaining reason is to "compensate someone monetarily for their cleverness", which as far as I'm concerned, they don't really need. Clever people enjoy being clever. They get to take credit for the invention which is also a benefit. Money and monopolies just tangle up the system. (and prevent the next clever guy from using his idea without paying royalties... or maybe prevent it altogether if the first inventor is feeling protective of the idea)

Re:A Different standard for obviousness

[msouth]

I think you are possibly making the common mistake of thinking that everyone thinks/acts/is like you. I have a wife and four kids to feed (soon to be "four teenage boys to feed" actually). I have a huge number of worthwhile projects I would like to pursue, strictly based on their worthwhileness, some of which you can read about at http://leftoverpi.com/blog. I don't have time for half of them. I don't have time for a tenth of them.

The other day my wife was doing a home improvement project and she encountered a frustrating aspect of a fairly simple existing technology (which I'm sure was patented when it was introduced, because it was itself a pretty clever idea at the time). We came up with an improvement that would be a significant improvement, but would be impossible to keep secret. The only possible way I am going to spend any time on a project that would be sold in a hardware store is if I think I could get significant money out of it, because then I would have funding to do the other worthwhile projects I don't have time for now (supposing it didn't take all my time to get the other thing going and keep it going, of course). Therefore, the only way that this idea is going to get out is if there is a legal framework that lets me make some money off of it, for a while. I'm not going to spend time evangelizing it, and if I did, no one would listen anyway. It's a good idea, but until someone at $big_company sees it taking market share away from their unimproved product, no player with the ability to make any dent in the market is going to listen to me.

Even if you think "selfish bastard! you should just release it under a creative commons license!", well, it's fine if you think of me that way, but my point is that some people, many people, in fact, are selfish, and some people are just busy, or just happen to need the money, or whatever. It's not about "the government should reward clever people", it's about setting up a legal framework that encourages good ideas to get to the market and improve people's lives.

Money and a limited time monopoly do not tangle the system if the system is done well. Millions of people all over the world can now have the benefit of the Phillips head screwdriver for free. If Phillips hadn't been able to patent it, there's a good chance he would never have bothered going anywhere with the idea, knowing that if he did it would just be copied by the big car makers and he wouldn't get anything out of it. He might have gone on and worked on some other technology that would be easier to keep secret. People might create secret manufacturing facilities and keep their techniques secret far longer than the patent gives them the monopoly.

If you want a more practical argument, put on one side of a line every movie, book, and music album that was produced by someone hoping to profit from the limited time monopoly granted by copyright, and on the other sign, everyone that just produced something and put it in the public domain because they enjoyed being clever. Can you see from that that a legal framework allowing limited time monopoly encourages the production of works of value?

Re:A Different standard for obviousness

[silverdirk]

If you came up with an improvement to a simple machine on a home improvement product (which, I could be wrong, but I'm assuming you just dabble in it and are not a full-time professional), then I can pretty much guarantee that at least 5% of people in similar situations would come up with the same idea. Cleverness is valuable, but more common than you seem to think. This is exactly the kind of thing I think should NOT be patentable. What gives you the right to prevent other people from using this idea if they come up with it on their own? You can't even prove that you came up with it first. There could be over 100 people who have seen the exact same possibility and just never said anything. Next, "small" ideas will never make anyone money regardless of a patent system, for the same reason that open source succeeds. If a company has a choice between 2 ideas, and one costs money, they will tend toward the free one even if it isn't as good as the one that costs money. Thats just how it works. If you present a nifty idea like "one click purchases" and let someone know that it will require royalties, they will design their online store without the feature just to avoid the hassle of divying out royalty fees. Even if the rates are reasonable. They might just avoid the patent to spite you. Ultimately, the company that produces something should try to hire clever people so that they can get small innovations into their product. But, even in my own job I have seen small ideas that might improve some aspect of the product, and even after suggesting them they get turned down. Why? Because the cost of altering things to make the change would be high, and the preceived value added to the product doesn't justify it. This wouldn't change even if I patented the idea and tried to sell it to my company. If they won't implement it for free, then they sure aren't going to pay money for it. If someone else sees the idea and patents it? well that just guarantees that the idea will never be used at all. By the time 20 years are up the device will be obsolete. If it isn't patented? perhaps there will be a product redesign at some point and I can suggest the idea again.

Re:A Different standard for obviousness

[msouth]

I think you continue to miss the point.

Let's just look at these two possibilities:

1) My idea has a market--enough people would care enough to pay for the improved version that it would cover the cost of improvement and pay me a royalty.

2) My idea doesn't have a market--not enough people would care enough/pay enough

If 2 is the case, it probably doesn't matter. Much of what you are discussing is about changes being too expensive or impractical to make. If you're right about it being too expensive to make the change, then we are in case 2, and maybe I could get a patent but I don't think I would bother because it wouldn't make me any money anyway. "Hey, phillips screw heads made of diamond so they don't strip!". If it's not feasible, not one is going to do it, so patented/patentable or not is not a question of interest.

Now assume for the sake of argument that the idea is good enough and cheap enough that it would make me money. You make, essentially, this argument:

"Other people are just as clever, they would come up with the same thing if they thought about it, it's not fair to lock them out of doing this."

You assert that many people have probably already thought of the idea I thought of and just never said anything, and that I seem to think cleverness is a lot rarer than it is.

In actuality, I am sure that there are (for this particular idea) thousands, maybe hundreds of thousands of people that, when you suggest how the product might be improved, will come up with exactly the same thing I am thinking of. It's not really a matter of cleverness, in this case, as much as it is get-off-your-but-and-do-something-about-it-ness. Cleverness is pretty widespread, but get-off-your-butt-and-do-something-about-it-ness is very, very rare. It's because of that very fact that I think a clever idea that has been feasible for 20 years and yet no one has brought it to market should warrant patent protection. Strictly because doing that will get more stuff out to more people that not doing it will.

The minute you see what I am talking about you will think "I could have thought of that". There may be a hundred or a thousand other people who say "Man, I thought of doing that, too.". But they never got off their butts and did anything about it. When the opportunity has been sitting there for someone to make a useful improvement for 20 years and no one has done anything about it, that means that the improvement is not getting to the public. For the price of a 20 year monopoly, it could go to the public. It will still be useful 20 years later, and then, like Phillips screw heads, it will be free to use for everyone (if it's not useful 20 years later, it doesn't matter that it's .

(One more aside about it preventing other people from using it. It's not practical to pursue small time infringers. You could take every single patented technology, reproduce it in your basement, invite your friends over and show them, nothing would happen. The only thing that the patent does is keep a big company from realizing, when they see some upstart with a good idea, that they can just take the idea and put the upstart out of business.)

The real question is, does it make sense for society to grant a limited monopoly on things like this? Is the society better off with limited monopolies or without? And the founding fathers believed "with". That doesn't make it correct, I realize that. But my claim is that, if you use my standard of "obviousness", you don't interfere with people's ability to do their jobs (like one click does now), and you will get products/improvements in the market that you wouldn't have otherwise.

Suppose that people, for whatever reason, all built their shopping cart interaction the exact same way and it was always click heavy, and people just accepted it, and it stayed that way for 20 years. And then one day someone says "hey, we could cache information and let people check out with one click". Suppose they are not in the busines

I don't buy 'IT exceptionalism'

[Kadin2048]

In the limit, consider that any software program is just one enormous number, then any other program is simply that number plus or minus another number. Therefore all software programs are trivial enhancements of pre-existing programs and should not be patentable.

Well, I think that's getting close to reductio ad absurdum: I mean, in the limit, all machines are just scrap metal in certain arbitrary configurations. What's the difference between a slug of aluminum and a soda can? Not much; it's the same atoms either way, just reconfigured. Likewise, a blank hard drive and a hard drive with some files on it is the same materials, but the latter has had a few atoms reconfigured in a certain way that's meaningful and useful, and which some people might pay money for.

I'm not really sure there's a good argument there. (In fact, there are some physicists who really buy into the whole metaphysical-implications-of-information-theory who would probably argue that there is no difference between matter and energy at very fundamental levels, or at least that it's the information which allows matter to become organized into anything useful.)

To be honest, although I'd like software patents to go away, because I think as implemented right now they're perfectly hideous and doing horrible damage to the U.S. economy and to the development of IT in general, damage that we will probably never quantify properly, I find the "software exceptionalism" argument uncompelling.

Software is just numbers, sure, but it's trivial to turn every letter in the English alphabet into a number, so you can encode anything that's written numerically -- thus anything that can be written is nothing but a big number (and even without encoding it into standard base-10 digits, it's still a "number" in the theoretical sense, just with some large base; probably base-127 if you include all ASCII as 'digits'). That doesn't mean that ideas which can be written are inherently inferior to ideas which must be represented graphically, or orally. You never hear anyone claiming that, because there are no "linguistic exceptionalists" -- language and writing aren't recent technologies, and so they don't seem particularly new or different.

What we need to do is make sure that as many people as possible really understand software and programming, so that we can apply the same standards to software patents as we apply to ideas in other media; then once the playing field is level (or at the same time), we need to reconsider exactly how helpful patents are, and how we want to configure the system to maximize its utility to the public.

Just as an example, consider the concept or idea of mathematical integration. I could express this idea to you in a lot of ways. I could say "it's the area under a the curve," and maybe draw a diagram, or I could use mathematical notation, or I could build a physical device consisting of an arrangement of gears, such that the output shaft was equal to the integral of the movements of the input, or an analog electronic circuit, or I could write some computer code in some language that would do it. In all cases, I'm accomplishing much the same thing, and it would be ludicrous to allow me to patent or otherwise monopolize the entire concept of integration. However, there's no reason why my mechanical planetary-gear arrangement which performs integration, or my analog circuit, should be patentable, while the code that does the exact same thing on a microcontroller shouldn't. This isn't to say that I should be able to patent all or any implementation of integration, written as computer code, just the one I wrote, in the same way I can only patent one arrangement of planetary gears. And it might also be fair to make the patent on the software-based implementation last shorter than the hardware method, because the development and prototyping costs are assumedly lower. But there's no fundamental difference that I can see between them.