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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."
So does this mean that the scourge of the telecom industry may manage to survive?
Godless heathen.
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.)
Stop allowing patents on what is *obviously not patentable, e.g. mathematical algorithms and software
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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.
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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.
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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.
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.
My turnips listen for the soft cry of your love
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.
Delay is preferable to error. (Thomas Jefferson)
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.
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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.
I thought this part had the most impact on software patents:
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.
Well, there's spam egg sausage and spam, that's not got much spam in it.
> The problem, in my opinion, with software patents isn't with the fact that they're software -- in my mind, software ought to ... -- but that they're typically of very poor quality, shoddily researched, and overbroad.
5 42_ITM for a fuller description.
> be patented,
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_0199-6106
(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.
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:
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.
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.
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.
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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.]
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