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Court Puts Further Limits on Software Patents
An anonymous reader writes "The Wall Street Journal is reporting on a recent court ruling that may severely limit the scope of both software and business model patents. The court found that 'The routine addition of modern electronics to an otherwise unpatentable invention' isn't enough to get over the 'non-obvious' hurdle that every patent is supposed to clear. This is a huge step in the right direction and one of the first admissions from the court system that perhaps software and business model patents have gone too far. 'In August, the Federal Circuit in essence raised the bar for proving willful infringement, a finding that allows a judge to triple a damage award. In April, the Supreme Court handed down a patent decision making it easier for trial-court judges to call an invention "obvious" and therefore ineligible for a patent.'"
There goes the One Click patent. And to think it was only good for a 10 year head start.
This move should also kill a whole bunch of the "... on the internet." patents off.
Thank you for using your common sense to defeat the enemies of innovation.
Three cheers for the independent judiciary.
What about the adding of old or futuristic electronics? Why is that not covered?
Professor X invents a Frammwizle. Patent Troll Y see that a Frammwizle can make many other past inventions more useful, and simply patents the use of the 2 together, just like is current dont with the Internet.
Since it's already happened, and this is meant to address that very situation, why should 'modern' be there at all?
"If you make people think they're thinking, they'll love you; But if you really make them think, they'll hate you." - DM
In April, the Supreme Court handed down a patent decision making it easier for trial-court judges to call an invention "obvious" and therefore ineligible for a patent.
Did this patent decision also make it easier for them to call an invention +5 insightful?
The theory of relativity doesn't work right in Arkansas.
Support NYCountryLawyer RIAA vs People
The system is still a mess, but at least this is a step in the right direction. Hopefully, in the future, there will be some legislation (taking a hint from these court decisions) involved where clear, up to date, policies are defined, resulting in less of these software patent lawsuits in our court system.
This is a huge step in the right direction
IsNot (patent pending)!!!!!
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
This ruling may have been a catalyst for IBM's new position and backtracking on their 'outsourcing' patent. http://www.sutor.com/newsite/blog-open/?p=1869 (posted on Slashdot just a few hours ago http://yro.slashdot.org/article.pl?sid=07/10/05/0449218)
From Sutor's blog IBM adopted a new policy a year ago to sharply reduce business method patent filings and instead stress significant technical content in its patents.
Does this make IBM's new policy seem a bit less altruistic?
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
If you RTFA, the litigation was over a business-process that was deemed to be more about thought than process, and therefore not covered.
Although many software patents might be obvious, and pass the Supreme Court test, there are no really good precedents - yet - that cover software patent obviousness, saving the ongoing one-click litigation.
Not as nice or as pertinent as some would like, but I'll take it.
---- Teach Peace. It's Cheaper Than War.
We had a competence transfer about patents and IP, and as the tutors were explaining what can be patented, the techies in the audience (me included) would exclaim, from time to time "what, you can patent that?" We were just so surprised that you don't need to come up with something original or complicated, not even the software algorithm. I had the impression as if we were almost encouraged to patent the most broad possible vaggueties - the word "idea" only barely applies.
I'm sure other companies do exactly the same.
"The agriculture ministry is not in charge of Gundam" - Japanese ministry official.
The test-case in the article was completely uninteresting to most of us. It was a further comment in the ruling that is "the routine addition of modern electronics to an otherwise unpatentable invention"
What this really is saying is...
If an idea isn't patentable on it's own, then simply doing it with a computer isn't enough to make it patentable.
So if an idea such as "Tell something to somebody using piglatin" isn't patentable, then "Tell something to somebody using piglatin on a computer" or "Tell something to somebody using piglatin on a PDA" is not patentable either.
It could really limit the "dumb" patents.
Now this is assuming a great deal but hopefully it isn't too stretched.
If a bunch of patents are, for whatever reason, invalidated and the process is determined to be broken then what becomes of the payments that companies have already forfeited in court?
There are some who postulate that the radar gun will never be truly beaten in court because it will then invalidate all the speeding tickets of the past that relied on a radar gun. I am not a lawyer so I have no opinion on either really but it is something that I have to wonder about.
It makes me wonder what Thomas Jefferson would think about today's citizens. The very idea that we are tolerating patents that benefit so few while the masses and the smaller groups have to work even harder or are prevented from competition would probably make him quite sad. I don't think he would be sad because of the patents themselves but he'd be sad because so many people know what is the right thing to do and yet the government (by the people, for the people) is no longer doing for the people and hasn't in a very long time.
Ah well... Think we should start a Patent Militia?
"So long and thanks for all the fish."
This is most definitely not about software patents, it is about business method patents. This has no effect on software patents at all. It simply stops the patenting of mental processes that are vaguely assisted by technology. You can be certain that software patents - on designs, algorithms, procedures, whatever - are as strong before as after this ruling.
Am I the only one that finds it deeply ironic that this ruling came because an "inventor" (patent jargon for 'lawyer') tried to patent something that would affect other lawyers? The CAFC does not care a jot about engineers, programmers, designers. But it does really care about inventors, sorry, lawyers.
My blog
I wonder why this was modded redundant. I scrolled through the prior comments and didn't see this one. I also think it is relevant, given that M$ attempted to patent "IsNot"
Oh well. I guess if I insist on remaining an AC I don't have much room to criticize.
2144.04[R-1]III. AUTOMATING A MANUAL ACTIVITY
In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958) (Appellant argued that claims to a permanent mold casting apparatus for molding trunk pistons were allowable over the prior art because the claimed invention combined "old permanent- mold structures together with a timer and solenoid which automatically actuates the known pressure valve system to release the inner core after a predetermined time has elapsed." The court held that broadly providing an automatic or mechanical means to replace a manual activity which accomplished the same result is not sufficient to distinguish over the prior art.). While this case is a little outdated, they're saying that the process would occur manually and all the timer / solenoid combination is doing is automating the formerly manual process. This is expanded to include thought processes too. While it's probably good to have a more recent case back up a good decision made years ago, it won't change patent law any.
Well, back to rejecting software patent applications.
It seems there is a huge bias against patents here which if fine as long as it doesn't detract from good data. I rely on the slashdot scoring to filter which posts I read. It seems that all pro-patent or more to the point all non-anti patent posts have a 3 point penalty. Any post that includes "patents suck, one-click die" gets at least 2 points. What????? There were some really interesting comments made by pro-patent people that are worth reading but the scoring is such crap on this issue that slashdot is worthless for an unbiased view. Whether you believe in patents or not you should believe in unbiased coverage of them. Slashdot has always been a great place to find great information on topics that the normal media can't cover due to their lack of knowledge. On this issue slashdot is worse than the normal media... This is a real black mark on slashdot.
Link
You are being MICROattacked, from various angles, in a SOFT manner.
No patents without implementation! That's one essential reform.
So you'd deny Keith Henson his satellite launching whip patent - just because he can't afford to buy a 747, modify it to attach the tow cable, and do aerobatics with it until he gets a payload out of the atmosphere?
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
A store somehow registering you so you can walk in, pick up an item and put it in your pocket to purchase, and walk out.
Not quite right.
How about: "A store recording your billing and shipping information, so you can walk in, point to an item, and tell the salesman to 'deliver it to my place and put it on my account'"
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Hold it hold it hold it...
The latest ruling came in a case arising from a patent application by Stephen Comiskey, a lawyer who wanted to create a system for "mandatory arbitration involving legal documents," such as wills or contracts. The U.S. Patent and Trademark Office denied Mr. Comiskey's patent application, as did the agency's board of appeals. Mr. Comiskey took his appeal to court.
Did this guy try to patent lawsuits?
Wow. That takes huge brass ones.
Frankly, I wonder if Mr. Comiskey shouldn't be more worried about his patent being invalidated by the huge body of prior art on Slashdot, every time a patent subject comes up and some bright bulb attempts to create a joke metapatent or something.
Welcome to the Panopticon. Used to be a prison, now it's your home.
Software patents are dumb, but I never heard of "business model" patents before. Good grief! Why not just skip all the half measures and make capitalism illegal! Lawyers and judges are going to be the death of this country.
They started the new review process in 2006 according to that story. The patent that slipped through the cracks just happened to have been filed 8 months prior to that, which would probably have made it in January of 2006.
This new ruling wasn't known to them back in 2006, you know.
I'm an Englishman and know nothing about US Law. I work as a Structural Engineer and am not an IP Solicitor. However as a geek I think it is time to change the way IP law works. Take software. I think that only the code in a piece of software should be protected by Law. Not the functionality. The USPTO can't possibly keep on top of it. IP Law is damaging innovation as things stand. The only ones who win at present are the legal trade. In fact, it is in their interests to make the system as complicated as possible. Then they can charge huge fees to try and make some sense out of case law. In England as in the US most Lawyers and Accountants are just vultures. In general they contribute little to society. It is time they were put in their place. Like that would ever happen.
Patents should go to whoever DOES it first, not whoever comes up with the idea for doing it first. Merely documenting a cool concept should not prevent others from trying it.
Yes! That's a perfect example! That patent should have been denied!
Only people that invent stuff should get patents. An invention isn't just sitting around thinking up crap. Anyone can do that. To qualify as the inventor, you have to show that the idea is actually physically realizable, you have to work out all of the kinks to get it to work.
If you have an idea that sounds good but you can't afford to actually develop it into an invention, you shouldn't get a patent. Saying you could have invented it if you could have raised the money to develop it isn't enough. Hey, I could have been a surgeon if I could have afforded medical school! So maybe I should get a surgeon's salary.
Well, apparently that isn't the way it works -- apparently you can come up with some scheme and if someone eventually does it in actuality, they have to pay you! But it shouldn't work that way...
Taking two devices to make an improved, or different device is perfectly valid.
It may be valid but it's not valid to issue a patent for it.
FalconShould there be a Law?
The only reason courts are finding in favor of common sense and the obvious workings of the law, and against shortsighted business interests, is because the culture is slowly making these attitudes part of common sense. Before, these principles were always merely a matter of esoteric expertise, which excludes "common sense" itself. The nature of "obvious" is defined by the overall community experience.
So it pays to keep whining, if the whines are legitimate, about injustices like these. It just takes way too long to feel good about it.
--
make install -not war
(re)Register Republican NOW. Vote Ron Paul in the primary. It'll drive the politicians NUTS!
I'll change my registration just before the primary to Republican so I can vote for Ron Paul. Then afterwards I'll change it right back to "No Party Preference". This is stupid, with an open primary I could vote for the best candidate for each party. Of course that would reduce the power of the parties though.
FalconShould there be a Law?
you have to have a working model (if it's a physical device) or software that runs (if it's software) that the patent examiner can try out.
Software should never ever be patneted!!`
FALCONShould there be a Law?
This stuff is all regurgitated from Diamond v. Diehr (1981), in turn
barfed up from Parker v. Flook (1978), wherein it is largely accepted
black-letter law that:
'insignificant post-solution activity will not transform an unpatentable principle into a patentable process'
Totally ancient. Even Slashdot's own 'djb' (Daniel J. Bernstein) recognized
the veracity of the "mental steps" doctrine as applied to software.
It makes me wonder what Thomas Jefferson would think about today's citizens.
Thomas Jefferson was originally opposed to patents, however eventually his friend James Madison convinced him that patents could prove more beneficial than not having patents. He even took out some patents himself. One was a machine that processed hemp aka marijuana, which up until the cotton gin was invented was the most widely used material for making cloth.
FalconShould there be a Law?
'start a Patent Militia' Them be fighting words, I'll bring my d20.
Instead of the D20 I'd rather have Canon's new EOS 1Ds Mark III with it's new 21.1-megapixel full-frame Canon CMOS sensor. Now we are seeing DSLRs closing in on low end medium format digital backs as well as 35mm film. I got my issue of "Digital Photo Pro" today and it has a review of it and of Nikon's new fullframe D3.
FalconShould there be a Law?
Part of the whole non-obviousness principle is that you cannot just take two common items, slap them together, and call that a patent. The invention has to be or do something novel.
As I mentioned elsewhere, I do not know why the PTO has been so lax on these rules in recent years, but the rules have been in place for a very long time.
In an open primary, Republicans could vote for the worst Democrat, and Democrats could vote for the worst Republican.
ObTopic: But is there a candidate for President of the United States from each of the top two U.S. political parties who advocates correcting the balance of property rights in inventions and works of authorship? Has Ron Paul stated his views on these? Google ron paul copyright law and ron paul patent law didn't seem to help.
"Invention" is coming up with the idea, by definition.
Once someone comes up with the idea, there's a lot of development to do before it becomes a working prototype and then a marketable product. (Edison: "... one percent inspiration, 99 percent perspiration.") That 99% stage requires a lot of money.
If somebody isn't already independently wealthy, he'll need to find backers. One of the primary purposes of the patent system is to protect the inventor during this stage. A prospective backer would get a LOT more money from a good invention if he just went ahead and developed it himself than if he paid the inventor a healthy chunk of the profits. When the inventor has a patent in hand this sort of cheating is precluded.
Without a patent system (or something like it) the little guys with expensive-but-profitable ideas have NO chance of benefitting from their own work. With it they have a shot.
= = = =
Software is a very different case from most inventions: There the capital cost is small enough that a single person working in "spare time" or a small team under non-disclosure agreement can bring a product to market without a large infustion of venture capital. Copyright is adequate to prevent verbatim cloning and with very low manufacturing costs a large profit can be made and a brand established before competition can re-implement most products. The patent system, designed around high capital costs and long implementation and payback times, isn't necessary for software-product incentive creation - but does produce a massive retardation by creating a "MINE! field" for future innovators.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
In an open primary, Republicans could vote for the worst [votefortheworst.com] Democrat, and Democrats could vote for the worst Republican.
While this is a potential negative of open primaries I think those who would do something like this are shortsighted for putting their political party above having the best candidate win the election. Instead of being able to think for themselves they let the party think for them.
Has Ron Paul stated his views on these?
I didn't find anything either however I imagine he supports copyrights and patents. He wants the government to follow the Constitution of the USA and it specifically enumerates to the federal government the power to grant them.
FalconShould there be a Law?
I understand that for some states the cutoff for party change is coming up in a week or so. Even if it isn't, changing now means you won't risk forgetting it until it's too late. It also means you'll have a chance to correct any errors before the deadline.
I hadn't thought about a cutoff for registration. However some states allow you to register on election day, or used to at least. Also I'm already registered I just need to change some info on it. I'll have to check on that where I live, however I don't want to change my party affiliation 'til the election because I'd rather avoid being added to any lists and don't like getting political junk in the mail. If I want something I'll subscribe to it. I also don't believe a person should have to declare any party affiliation when registering to vote. I've been registered to vote in 2 states and both required this even if it was "No Party Preference". The state has no need to know. All they have to know is what the voter wants.
FalconShould there be a Law?
Darn ... And here I was getting ready to patent sliced bread.