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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."
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.
My work here is dung.
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.
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?
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
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.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
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