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

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

[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.

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...

[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.

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

[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

[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.

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.

[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.

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

[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

[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

[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

[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

[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

[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

[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

[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.

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: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?

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: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

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.

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.

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.

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

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.

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.

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: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.

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.

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.

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

[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.

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.

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.

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.]