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Courts May Revisit Software Patents
An anonymous reader writes "It looks like the courts may finally be gearing up to overturn the ruling that opened the floodgates for both software and business model patents. It's been nearly ten years since the US courts decided that business methods were patentable and that most software could be patentable — and we've all seen what's happened since then. With all the efforts to fix the patent system lately, it appears that the court that originally made that decision may be regretting it, and has agreed to hear a new case that could overturn that ruling and restore some sanity to the patent system."
I'll admit I'm generalizing here, but anybody who ever thought lawyers, judges and legislators were actually intelligent rather than just clever, plausible and glib need look no further than the way the courts have dealt with hardware and software matters. The smug, bone-deep ignorance is as blatantly obvious as an elephant's...um...trunk.
If you need further evidence, consider some of the laws that have been enacted or are under consideration as a result. You get the impression these people think a computer is some kind of magic fetish that actually produces results.
I've calculated my velocity with such exquisite precision that I have no idea where I am.
Actually, worse: It lets you think of one hypothetical way of skinning a feline, and block anyone else from skinning any quadruped. Even if you've not actually demonstrated that your way of skinning the quadruped will indeed work (or even could work).
Floating face-down in a river of regret...and thoughts of you...
Where does your definition of "algorithm" end, though? Patents were, AFAIK, designed exactly to allow one to receive a monopoly on the algorithm they have developed. In fact... 101. Inventions patentable Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title [35 USC 101].
Living in Washington, D.C., I know quite a few people who work in the patent office. They are, generally, quite competent people. Many of them have fairly scientific minds and are technically savvy. And many of them like their jobs, and think it's quite neat that they get to learn about things on the forefront of technology.
However, they also know that they are judged by the Powers That Be not based on whether or not they make the "right" decision, but rather on whether or not they process enough applications when compared to the "average" examiner. If one decision requires relatively little paperwork, and the other requires a mountain of paperwork, taking up lots of time, followed by an inevitable challenge (or even lawsuit) by the aggrieved party, well, some examiners are simply going to start rubber-stamping everything in front of them. They're under enormous pressure to increase the rate at which they process applications, and the only way to do that is accept more, and reject less.
It becomes a vicious circle - examiners know they're judged based on whether or not they process enough applications. Therefore, some such examiners, in order to look "the best", are going to start blazing through applications, approving them all, to improve their numbers. This, of course, raises the "average", forcing everyone else to spend less time examining, and to make the easy decision.
Changing the presumption of validity would simply make the "easy" decision a "reject", and while I think it's better to reject them offhand (and have a review) than accept everything by default (leading to patent trolls and settlements rather than reexamination of a patent), it still doesn't solve the problem.
Patent examiners need to be reviewed based on the quality of their work, not just the speed by which they process it.
Wrong - the phrasing is "obvious to persons having ordinary skill in the art", not experts in the field. This is why it is commonly abbreviated "PHOSITA" in documents.
And ye shall know the truth, and the truth shall make you free.
John 8:32(King James Version)
You know, I hear this argument all the time, but the person making the argument never points out that the pharmaceutical companies is making billions of dollars in PROFIT (after expenses), and a huge chunk of their expenses are in the form of advertising & marketing, NOT research and development.
Drug companies have HUMONGOUS profit margins. They can have a lot of their revenue taken away, still have a lot of money to do R&D, and still make a healthy profit.
You do know what Economics 101 says about companies that make a lot of profit, don't you? According to the Law of Supply & Demand, it means that they don't have enough competition.
Companies with "enough" competition will _barely_ break even (since they are forced to price their products to fight the competition), and they will still have to spend enough on R&D to keep up with the competition or they will be rendered obsolete. That kind of situation is what's best for the consumers, not so good for the owners of the companies.
a mechanical device is made of matter you can use maths to describe it but then you can't patent the maths only the device.
in a similar way software is only maths, you shouldn't be able to patent the software but maybe you should be able to patent it running on a specific device. If you allow a general patent (this algorithm running on any matter) then your not really patenting a device you patenting the algorithm.
thank God the internet isn't a human right.
This is a trivially falsifiable assertion, and it does not do anyone's credibility any good that it is repeated so often.
It is the general case for patents, e.g. chemical process patents, that the new abstract process/algorithm (the part valuable to a third party) is protected by patent and specific reduction to practice is protected by copyright (which may or may not have any practical value). In some other venerable patent areas, these are largely independent works, though in some cases the reduction to practice may be licensed as well. One argument that can be made for algorithm patents is that they are structurally indistinguishable in both theory and practice from an chemical process patents -- swap "bits" for "molecules". Software receives no special protection like you assert above, the algorithm/process and implementation protected by patent and copyright respectively, much like it is for everything else.
Of course, the elephant in the room that everything is an algorithm and that there is no mathematical difference between bits, molecules, hardware, software, or data. It is a distinction with no theoretical difference and people keep trying to patch up the law so that we can pretend a distinction exists in the face of clear evidence to the contrary; copyright has a similar issue, by the way. It has led to absurdities such as an algorithm on Intel x86 not being patentable in Europe but the same algorithm on a Xilinx Vertex-5 is -- the distinction between the two is arbitrary and capricious. The problem is not algorithm patents (and much of what we are talking about here is business process patents, not algorithm patents per se) but that so many patents are frivolous, but that is not a problem unique to any particular field of patentability. The two biggest problems are really frivolous patents being rubberstamped, and theoretically inconsistent treatment in a few narrow areas that are then bleeding over into other areas as the inconsistency becomes obvious in real cases. The only way to actually fix these inconsistencies is by adopting an all or nothing policy; I have no particular opinion on which way that goes.
This is a crock of shit. Do you have a patent? I do. Do you know how much it cost to register the patent and keep it current? In USA> In Europe, Asia? Do you know how much money you have to pay for upkeep? how about for each country? So stop with the bullshit. I seen it personally that there is a big corporation that can make a lot of money from it, but will not pay you any. They know as a small business owner or patent holder you will not have money to cover it all, and in every country. 5 years ago my patent expired because I couldnt pay the fees, guess what? Now, the same company now does the same shit, slightly modified from my ideas, and I GET SHIT!Oh and they patented it too. Or do like MS use it, and good luck litigaating against them. Have you been in court? Do you know how much it cost for usage, your time, travel expenses...so fuck the patent system as it is. It doesnt protect the small person at all.
So fuck this patent bullshit about small business owner - cause unless YOU HAVE THE MONEY you CAN NOT PROTECT YOUR PATENT.
Everything might be Maths and Maths might be the only concrete thing: http://en.wikipedia.org/wiki/Ultimate_ensemble
"Give me six lines of C++ code written by the most competent programmer, and I will find enough in there to hang him."
Not if life saving drugs stop being developed, because the pharmaceutical companies spend millions proving a particular chemical is safe and effective and then get massively undercut by a third party manufacturer producing the same chemical via a different process.
It doesn't go like that, pharmaceutical companies spend more on marketing than they do on research. Not only that but government does a lot of research as well. According to this, "An alternative to pharmaceutical patents", in Europe the bulk of research is paid for by government. Now I don't know if that's true but in the US the federal government pays millions for research as well. An excellent example of this is Taxol. The NCI, National Institute of Cancer, part of the NIH or National Institutes of Health a government agency spend $183 million in taxpayers' money to develop Taxol. What did the NCI do with it? After spending all that money to develop and test the drug as a cancer treatment the NCI "sold", gave it away is more like it, all the data needed to win FDA approval of Taxol as a drug to Bristol-Myers Squibb for $43 million. In other words taxpayers paid more the $140 more than they got. And how much does BMS make selling Taxol? In 2000 BMS made almost $1 billion and they were expected to make more each year thereafter. Now I don't know how many doses are needed for one treatment with Taxol but while BMS has been able to lower the cost of making one dose to under $1 a full treatment costs a few thousand dollars to someone needing it or their insurance.
FalconShould there be a Law?
...patent offices need more resources to identify bad patents and prior art.I used to contract for the USPTO. If there's one thing they're not for lack of, it's resources. Of course, they'll squawk about not having enough examiners, deriding the backlog in their system (I heard the CFO repeatedly call it the five hundred million dollar problem -- and he was serious). All the while ignoring the fact that their backlog problem (if it's even a problem), is a direct result of myriad ignorant policies (many discussed here ad infinitum) incentivizing more filings; worthless, wasteful, defensive or trollish filings.
Further, with regard to the USPTO at least, they are culturally ill-equipped to be charged with identifying poor patents. In my two years there, I didn't once get wind of the sentiment that patents should be rare, worthy beasts. Oddly, it did seem as though the trademark group, the red-headed stepchild of the patent office, viewed their charge in this light.