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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 With all the efforts to fix the patent system lately, it appears that the court that originally made that decision may be regretting it, and has agreed to hear a new case that could overturn that ruling and restore some sanity to the patent system."
Think of the people that patents DO benefit... I'm thinking any lawyer fighting to abolish patents won't exactly be pushing themselves to win the case...
Code, Hardware, stuff like that.
if you can't patent maths then why should you be able to patent software as it's nothing more than maths.
thank God the internet isn't a human right.
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I just can't see the CAFC reversing themselves to any significant degree here. Most entities involved have way too much to lose.
I predict this will get quietly swept under the rug...again.
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~ |rip/\/\aster /\/\onkey
Consumers have everything to gain from this. Nowadays it's impossible to write a gui'd "hello world" without stepping through a minefield of patents. As a small business owner, it's unreasonable and likely impossible to expect me to research every patent and pay royalties/license fees for "a piece of software that beeps when it wants the user's attention", or other things. Only large companies can afford such things, and they use it stifle competition. (What do you think MS's sabre rattling over linux has been about?)
Any CS person will tell you that when it comes to software, there's more than one way to skin a cat - probably thousands. But software/business patents let you find one, and squash the rest.
Why can't all fpga/microcontroller manufacturers just release free optimizing compilers???
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.
a new case that could overturn that ruling and restore some sanity to the patent system
No bets here, lawyers enjoy the complexity and confusion too much to make this any better. Congress just needs to change the law. In a business like computers which is evolving so quickly, say a 2 year patent then it expires. And you can only sue if you produce a competing product with it and have been harmed.
You need to stop patent trolls dead. Like RAID and bugs. Let innovation back into this business.
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).
Hmmm, what exactly is NOT maths in this world? :)
Patents are meant to cover a particular implementation in physical terms of a theoretical idea, and right now, they are often being used to try and cover the theory as well.
For example, my own pet hobby is working on a new way to factor large numbers. Let's say that my redneck republican self gets insanely lucky and bumbles into an algorithm that actually factors something in polynomial time, or even close enough to it so that RSA and the like are untenable. Since my approach depends on treating factor as a decision problem, it follows that if I did get really lucky and struck gold, that, it would be applicable to a wide range of other problems. Under today's law, patenting that would basically give me the right to apply that mathematical breakthrough for my own ends, when clearly, its in the interest of society that as many people should be allowed to exploit it. Basically, I would be allowed to charge money for any sort of an implementation of a combinatorial problem, which is absurd. Yes, I might theoretically build a billion dollar enterprise to milk this concept for all its worth, I would ultimately though screw everyone else with whom such a breakthrough might be useful, and damage the overall economy that many millions of times more.
Really, the dividing line is one of information and knowledge versus an actual real world device. As Jefferson so adroitly pointed out, information does not lose its value when it is copied. If I know something, and give that information to you, we both know something, and that doesn't hurt me that you know it. It does mean that I can't build some sort of an empire at your expense, but, given that we already went through the Catholic attempt, and then the various State attempts, to monopolize information, with disasterous results all the way around (and not a single success in 2000 years!), it is obvious that a social framework which allows information monopolies works to the disadvantage of mankind.
Quite ironically, those people whose livelihoods depend on information having value are the ones most arguing that information ought to be free. Patents are, in theory, today, supposed to protect IT workers and their inventions, but most GOOD IT workers these days remember that computer science as a field advanced even more before today's patent nuttiness. If we did anything, it would be to allow the shared discovery and utilitization of new techniques, but protect, if desired, commercial and open implementations. So, for example, if Microsoft invents a new GUI dongle, or on the flip side, someone invents a browser plugin, then, it would be better for everyone if you simply could not be sued for making your own implementation of that idea. That gives us a world where everyone's products can advance, we have IT for our customers and ourselves and leave the lawyers out, and everyone is happy.
It is really only the idiots at Wall Street, that have handed us the internet boom mess, the present mortgage mess and the previous S & L mess, that want to maximize every asset as much as possible with silly things like patents and create yet another bubble that will burst and screw the rest of us up. But really, Windows doesn't need any patents any more than Linux does. The value of both of those products is predicated on their overall customer experience, not some silly mining like claim staked out in Washington DC!
This is my sig.
Floating face-down in a river of regret...and thoughts of you...
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- A rethink to head off not only having their wrists smacked but having the USSC start reviewing their cases much more often (complete with reversals) or
- A chance to put together a really solid and detailed ruling to give the USSC a reason to agree with them.
We won't know which they pick until this summer.Lacking <sarcasm> tags,
Prepare to be sued.
My blog
Interesting stuff.
Excellent post, I'd mod you up if I could.
Prepare to be sued.
P.S.: "Fiiiiive triiiiilioooons, two hundreeeed thir..."
A better analogy would be "if you can't patent chemical compounds, you shouldn't be able to patent drugs, as drugs are nothing more than chemical compounds".
...
Software is just a subset of math, just as drugs is a subset of chemical compounds. Your analogy make it sound like math is at a totally different level of abstraction than software. It isn't.
Or maybe we need a car analogy to make it perfectly clear
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.
Since then we've seen the emergence of Google as a powerful challenger to Microsoft. This is one example among many of a company whose entire existence, much less its massive success, is dependent upon a patent (# 6285999, in Google's case). If Google had not been able to patent its major innovation, then Microsoft could easily have co-opted the idea, and it would have dominated search as well as operating systems and office suites. Recall that most of Microsoft's meteoric rise took place during a time when software was not patentable. The absence of software patents is precisely what makes "embrace, extend, extinguish" possible. Software patents give the original innovator the power to stop that strategy in its tracks.
I believe that what Slashdot readers truly dislike are bad patents, not software patents per se. Software just has more bad patents than it should because of the way the PTO treated them. Until the courts basically forced the PTO to accept software patents, the PTO did not hire computer scientists as patent examiners. Even now, the PTO has a massive backlog of software patent applications, and as a result computer related applications have by far the longest median time to issuance (roughly 44 months!). The PTO tends to err on the side of issuance, and so we end up with a flood of terrible software patents.
How to fix this? The simplest way is to eliminate the presumption that patents are valid, which requires a patent challenger to prove invalidity by clear and convincing evidence (a standard almost as high as beyond a reasonable doubt). Instead, we should recognize that many patents are not valid and end the presumption of validity. That way, bad patents can be more easily challenged, and patent trolls will think twice before bringing spurious suits.
Paragraphs, dude. Seriously.
Below I pasted the text of the actual court order from the CAFC granting the rehearing en banc. It appears that that the CAFC will be considering business method patents rather than software patents. More specifically, the CAFC seems interested in business method patents that contain a "mental process" as one of the steps. I don't think CAFC will be considering software patents at all.
The link in the techdirt article to PatentlyO provides much better information than the techdirt article.
IN RE BERNARD L. BILSKI
and RAND A. WARSAW
This case was argued before a panel of this court on October 1, 2007.
Thereafter, a poll of the judges in regular active service was conducted to determine
whether the appeal should be heard en banc.
Upon consideration thereof, IT IS ORDERED THAT:
The court by its own action grants a hearing en banc. The parties are requested
to file supplemental briefs that should address the following questions:
(1) Whether claim 1 of the 08/833,892 patent application claims patent-
eligible subject matter under 35 U.S.C. 101?
(2) What standard should govern in determining whether a process is patent-
eligible subject matter under section 101?
(3) Whether the claimed subject matter is not patent-eligible because it
constitutes an abstract idea or mental process; when does a claim that
contains both mental and physical steps create patent-eligible subject
matter?
(4) Whether a method or process must result in a physical transformation of
an article or be tied to a machine to be patent-eligible subject matter under
section 101?
(5) Whether it is appropriate to reconsider State Street Bank & Trust Co. v.
Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), and
AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir.
1999), in this case and, if so, whether those cases should be overruled in
any respect?
This appeal will be heard en banc on the basis of the original briefs and
supplemental briefs addressing, inter alia, the issues set forth above. An original and
thirty copies of all briefs shall be filed, and two copies served on opposing counsel. The
parties shall file simultaneous supplemental briefs which are due in the court within 20
days from the date of filing of this order, i.e., on March 6, 2008. No further briefing will
be entertained. Supplemental briefs shall adhere to the type-volume limitations for
principal briefs set forth in Federal Rule of Appellate Procedure 32 and Federal Circuit
Rule 32.
Any amicus briefs will be due 30 days thereafter. Any such briefs may be filed
without leave of court but otherwise must comply with Federal Rule of Appellate
Procedure 29 and Federal Circuit Rule 29. Oral argument will be held on Thursday,
May 8 at 2:00 p.m. in Courtroom 201.
Why wouldn't the lawyers fight hard on both sides of the case? That's what they are paid to do. Court cases that shift around the boundaries of patent law do not hurt or help "the lawyers". It just changes where the fighting is but there will still be fighting.
For example, the recent KSR v. Teleflex case changed the rules on obviousness. That created lots of work. Suddenly there were new arguments to make in seeking new patents. There were also new arguments to make in invalidating old patents. Lots and lots of work.
The only way us patent lawyers would actually loose is if patents were outlawed.
I am a lawyer, but not yours. Anything I tell you might be a total lie intended to benefit my clients at your expense.
I guess that many programmers will be anti patent for a number of reasons:
You left out the biggest reasons to oppose software patents, they stifle innovation and they lockout others who come up with something innovative.
FalconShould there be a Law?
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?
I am not sure if its a good idea, but it could be an interesting idea, with a small refinement.
Just as you say, you can "blow up" the code to 50,000 lines, but you can also blow up machine code and surround it with NOPs, or just make it extremely inefficient.
If, however, you move the burden of proof to the challenger, and he can implement the essence of the patented idea in any general purpose language as a program smaller than some constant, the patent is invalidated.
The problem is, defining "implementation of a patented idea" is quite fuzzy. Should it include the interface components required to actually put it in use? Should it be on a claim-by-claim basis?
I personally think that all software patents should be abolished, but I do think that if they aren't - they should at least be invalidated when someone can come up with a really short program that implements them.