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"Bilski" Case May End Business Method Patents
hey sends us to a blog at NYTimes outlining the upcoming appeal of the case known as "re Bilski," which could spell the end of patents on methods of doing business later this year. One patent expert is quoted: "I think this is the unraveling of business method patents... I think there is a process we are going to go through to get there and the Supreme Court is going to be the one that decides it." But another expert thinks the case is unlikely to bring down the whole class of patents: "Definitions of business method patents always end up being circular. You can't really ban something unless you can define it and no one is offering a definition we can use."
defining it be necessary for a patent?
Or it doesn't fit the current definition of what is patentable, therefore not patentable.
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What gives?
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What I don't understand is: Why does the USPTO grant something, i.e. business method patents, if nobody is able to come up with a definition? They must use some kind of definition, otherwise this proves that "business method patents" are nothing more than hot air. Is it just all about the money? I think I already know the answer...
At the risk of another cliche, the fat lady hasn't sung yet.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
If you can't define it, you lose your patent. That would fix most of our issues, because people who have to define their patent in easy to understand terms will suddenly find that there is prior art, or that someone else already has it.
I steal signatures. This one used to be yours.
Certainly I don't think "one click" et. al are inventions -- they are implementations of an idea accomplished high speed by other peoples inventions. But there isn't a device in "one click", ergo in my mind there was nothing to patent. So my hope would be that the ruling would also go back to more of the founding father's desires to give individual inventors rights to market their own technological devices for a limited period of time, not the great big multinational corporations, who tend to use and abuse the system as much as possible.
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
Defining what can be patented should be fairly straightforward but we keep getting tied in knots.
A "cash register" is a patentable device. It is a physical construct that performs a specific work function. Its inventors deserve compensation for its invention.
Using a cash register to calculate and record a business transaction is a method of conducting business. No one should be able to patent the idea that you use a cash register to conduct business becuase that use is obvious and implied in the original intent of the device.
If we apply this to something like the Amazon "one-click" patent, the specific software application that acts as the mechanism for conducting the sale may deserve some protection. However, the idea of letting a customer buy something by clicking once, does not.
My position, in short, is that functional constructs (physical or virtual) deserve protection but ideas about the use of a construct does not.
That seems a simple enough practical definition, but I'm sure there's some problem with it that someone will feel compelled to expose.
TLR
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She's dead, Jim.
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If the definition is "you cannot patent an idea", then logically all patents should be banned. Because even if a patent involves physical things (e.g., a heart attack predicting gadget), the only thing of value in that is the idea. Everything else in there is just metal, plastic and silicon.
And banning all patents would be fine by me. Let the market work out how to protect and reward ideas.
Khannnnnnnnnnnnn!
Look it up for yourself, but Eli had a working assembly line and replaceable parts, both innovations ahead of their time. He was a genius and yet all we remember (are taught) is that he invented the cotton gin.
Before Eli Whitney, firearms were custom built by hand.
because I hold the patent for method of determining the end of business method patents. ;)
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Business method patents allow a company to take control over better ways of doing business. One of the ways that businesses can cut costs is by adopting proven methods for increasing the efficiency of basic operations. This is common sense to anyone who gives it more than 10 seconds of thought. Should Starbucks be able to own a patent on the process of saving money by making a universal lid for its different sized cups? I don't think so because the cost to the economy is decreased efficiency at every other coffee shop that is barred from using this process without paying Starbucks.
The simplest reason for not supporting business method patents from a pro-IP POV is that the business that discovers the process will already benefit greatly if it can implement it internally, and no business method patent is going to be unique enough to warrant the sort of protection given to bonafide scientific discoveries.
How about this, very pragmatical definition:
1. if it's something that one or more humans must do, you can't patent it. (I.e., no patenting "you show the ticket to the doorman".)
2. if the same process could realistically be done by a finite and small number of humans, and your programs/modules/robots/whatever just automate a human's role there, you can't patent it. (I.e., no patenting "you input your ticket's number to the program.")
3. If a nearly identical process -- i.e., serves the same practical purpose and the essential steps are the same, or minor variations of the same step -- is already in use with humans or in any other form or medium, you can't slap a "in software" or "with computers" on it and patent the same bloody thing _again_.
The above, btw, comes from someone who actually likes patents as a general idea. I'm all for rewarding people who research new stuff, create new technologies, and/or invent new products. By all means, we need more of that stuff, and it's only fair to reward the people who invested massive money and manpower into researching it. In fact, at the risk of allienating a good chunk of slashdotters, I'm even for more of that in software. If that's what it takes to get more people into researching brand new stuff, I'm all for it.
I _am_ however, dismayed by the joke that most patents actually end up being. I think it's time to revert to the original idea of rewarding technological progress, and weed out the chaff that doesn't do anything towards that end. Starting with the rehashes of an existing technique, only with "in software" or "with a computer" slapped upon it.
A polar bear is a cartesian bear after a coordinate transform.
Am I missing something, or could business method and software patents be neatly ruled out by adding just 1 sentence to the patent laws, along the lines of: "You can only patent physical devices that are not universal Turing computers".
Slipping in the words "that have been built and can be proved to work" while making the amendment would seem to be a reasonable way of cutting down on a lot of junk patents too.
A pizza of radius z and thickness a has a volume of pi z z a
will have to place:
3) ?????
4) Profit!
into the public domain.
Have gnu, will travel.
It may be cliché, but at least you get points for writing it in reverse polish notation
Well, the problem with law and what created legalese, is that you need to be painstakingly precise in defaining _exactly_ what is allowed and what isn't. Because otherwise someone _will_ use any inexactity to their own end, to shaft someone else. Natural language is vague, and lots of things that look clear when said or written in a blog, leave loopholes that you could drive a bus through.
That's really why legalese evolved, and why contracts and laws are so verbose and use funny jargon.
E.g., let's say I aggree to sell you a "Wii, original box" for your money. What if I only send you the cardboard box, without a Wii in it. There actually was an auction on ebay doing exactly that, albeit with a PS2 back when it was launched and there were massive shortages. Ok, so let's clarify that a bit as "Wii in its original packaging". Does it say it has to be a working Wii? It doesn't. Ok, let's clarify that too. Does it say in how much time I have to send it to you? I don't think so. So if you don't get it until 2018, hey, I still didn't break my word. So let's clarify that one too. Did I say I was going to include a wiimote and the cables and everything? Well, nope. If I'm an arsehole, I might send it to you without anything except the box, just so you pay more buying everything that's missing separately. Did we stipulate any penalties for breaking that contract? No? Well, then I might break it anyway, and what are you going to do about it? Did I say where it would be delivered? I'm delivering it to the top of Mt Everest then. Feel free to drop by and get it from there, any time you wish. Etc.
As a private person you don't actually have to worry about most of that, because someone made some laws against that. But that means, essentially: someone else wrote a ton of legalese, so you don't have to. But it's there.
But companies don't get that break, and neither do courts and lawmakers. There you really have to define _everything_ in painstaking detail.
If you just say "thou shalt not steal", you'll get people arguing that they only borrowed it without your knowledge. Or conversely, what happens if I lent you a book and you forgot to bring it back in time? Can I claim that you're a thief and throw you in jail? So you end up having to write many pages as to exactly what is a theft, what isn't, and what steps to take to distinguish between them.
There you go. For vague everyday use you have a very simple concept: "thou shalt not steal." It doesn't get any clearer. But for a law it doesn't even _start_ to be enough.
A polar bear is a cartesian bear after a coordinate transform.
Well, how about this pragmatic distinction, then: "You may patent an exact description of the solution, but you may not patent the problem or the goal." It seems to me like that alone would weed out half the bogus patents in the USA.
So basically, just as an example of that idea:
- The exact building plans of a machine that predicts heart attacks, is describing the solution, and thus is patentable.
"Predicting heart attacks" is, however, a problem not a solution. It's a goal, not the means to reach it. It gives you no exact steps to take and exact mechanism to build to solve that.
"Predicting heart attacks" might be a part of the solution to another problem, but nevertheless that part is described as a goal, not as a way to solve it.
- As far as I'm concerned, you can even patent an exact algorithm that solves the programming problem of your choice, provided that you supply ample documentation as to how it does that, and why it works. (After all, that was the whole idea behind patents in the first place.)
You may not patent the problem or goal of that algorithm. So stuff like patenting "showing an applet on a page" should have never been patentable.
- You _can_ patent a way to produce a chemical. Heck, I'll allow even a gene or a protein, to pick some of the most maligned examples. Go ahead. If you know how to produce MCR-B in a vat, go ahead and patent it. But, bear with me, there's a "but" there.
But you cannot patent the general goal of interacting with a given mollecule. You can patent a gene, or rather a way of producing it, but you can't do something as silly as forbid someone to interact with it in any form of shape. You don't "own" the gene, you just own one method to synthesise it. If someone figures out a completely different medicine that interacts with the same protein or DNA strand, you can't lock them out.
Etc.
Yes, both the problem and the solution are ideas, but they're not the same kind of idea. More importantly, they serve diametrally opposite purposes. Figuring out a solution is good for us all. Even in the worst case scenario where you patent it just to forbid it from being done, after the X years expire, we'll all have your detailed description of the solution. But patenting the problem, like some of the trolls do nowadays, doesn't really help society at all. They're just adding burdens to those who'll actually find a solution. Patenting the problem is nothing more than staking a claim that you want to fleece whoever comes up with the solution. It runs contrary to the whole idea of stimulating research and progress, which is why we have patents in the first place.
Just as a side-note, this is really orthogonal to my other objections to patents, so it doesn't preclude them. Even if under this rule I'd allow an algorithm because it's a solution, not a definition of the problem, I'd still throw out those which implement already existing human processes. Sorry, no patenting the the same thing again with an "in software" strapped onto it. You get the idea. It's just one part of the filter I'd propose, not the whole one.
A polar bear is a cartesian bear after a coordinate transform.
I think he means not allowing patents that have no tangible (physical or virtual) counterpart. So someone couldn't patent essentially the words "a device that predicts heart attacks" without the physical device to back it up. That's what things like the 1-click are, thought without implementation. They didn't patent the source code to make it work, just the idea that they could implement it. Any jackass could say "we need a device that predicts heart attacks" but everyone would think it ridiculous for getting a patent for that statement alone, but that's what business method patents are.
That's my problem with software patents as well. They all say "a program that does X" without actually including the code to do it. Patents exist to put things into the public domain and give limited time protection and those used for software don't contribute to the common good. They only spell out the idea. If software creators were forced to include the code to do what they want to patent I'd be more agreeable to it, just like including a schematic for a machine.
This is an annoying comment, but the description (and the article) incorrectly refer to the case as "re Bilski." The title is actually "In re Bilski" -- short for "in the matter of Bilski." Simply saying "re" sounds horrible from a legal point of view.
The problem with the mentality that you shouldn't get paid next year for the work you did this year is that it can take *years* of research to develop something. I was just reading a write-up posted on the wall in my University's Physics building today, about how it took Edison and his assistants 18 *years* of labor every day to perfect the Alkaline Battery. When he started, while the basic concept of a battery had been around for awhile, he had to do a ton of basic materials science / chemistry research, then further engineering efforts once he found suitable materials, to find the best physical design for the battery. 18 years. Granted, not every 'invention' takes 18 years, but you need to keep in mind, when discussing patents, that the patent system needs to take into account that it could take a very long time to recoup the investment someone makes in an invention.
Another example of this is pharmaceutical patents. It can take years of research to develop a candidate for a new drug, then years of safety and efficacy testing before it receives FDA approval. All that makes it *very* expensive to bring a new drug to market. I think we can all see that, at least some drugs, have improved human health greatly, and so we should give the companies doing that R&D a chance to make back their money, and it very well might take years to make back the money.
I mean, if you did 10 or 18 years of R&D to create a new invention, it might easily take you 20 or 30 years to make back the money you invested in that (especially when you consider that, after spending all that time/money on R&D, you know have to spend a ton more money for manufacturing/distribution/marketting, and it just might take a few years for your product to be 'accepted' in the marketplace to the point where it begins to make any money at all.
This seems to be a bit of a straw man. A decision in this case is unlikely to be "business method patents are banned", but rather a limitation of the kinds of claims that are protected. This will be unlikely to do anything so simple as banning business method patents or algorithm patents, but rather make it harder to get and defend patents that depend on those kinds of claims.
Agreed. My comment -- and what I am thinking you agree with me on, if indirectly -- is that the gaping loopholes exist and allow the system to be gamed because of prior governmental meddling in patent law to favor the big corporations over the small inventors.
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...