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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."
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
A man no more knows his destiny than a tea leaf knows the history of the East India Company
But that is the way it is supposed to work. You can patent the device that predicts heart attacks, but you can't stop people from making other devices that predict heart attacks if they use a different method than yours. The idea "lets predict heart attacks" is not patentable, the machine that does it is.
Not quite. As Dave Barry put it:
/me shudders.
"The big problem with pornography is defining it. You can't just say it's pictures of people naked. For example, you have these primitive African tribes that exist by chasing the wildebeest on foot, and they have to go around largely naked, because, as the old tribal saying goes: "N'wam k'honi soit qui mali," which means, "If you think you can catch a wildebeest in this climate and wear clothes at the same time, then I have some beach front property in the desert region of Northern Mali that you may be interested in."So it's not considered pornographic when National Geographic publishes color photographs of these people hunting the wildebeest naked, or pounding one rock onto another rock for some primitive reason naked, or whatever. But if National Geographic were to publish an article entitled "The Girls of the California Junior College System Hunt the Wildebeest Naked," some people would call it pornography."
So no, just having certain areas exposed doesn't make an image pornographic (if it did, most biology and sociology textbooks would be 18+ only).
Also, maybe I'm being trolled, but did you just say that you find children in bikinis hot? Your argument makes perfect sense if you used adults instead of children, so I can only assume you specifically intended to clarify that you find children sexually attractive.
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.
Screw blogs. How about we ask the US Supreme Court?
... cannot be the subject of a patent. Software is nothing more than "algorithm". And along with the above warning, we could hardly have a more clear prohibition against software patents. The Supreme Court WARNS the courts that they may not permit "insignificant post-solution activity" to transform a non-patentable software algorithm into a patentable process because that would allow creative writing patent lawyers to paint a process-patent costume onto prohibited non-patentable non-inventions and railroad them through the system. Which is exactly what the lower courts went right ahead and did anyway. The patent courts did exactly what the Supreme Court WARNED them they were forbidden to do. And that is how we got this mess of software patents and business method patents.
US Supreme Court Cochrane v. Deener in 1876 defined a process patent as:
an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing.
In Diamond v. Diehr 1981 the US Supreme court quoted exactly that definition and reaffirmed it.
US Supreme Court Gottschalk v. Benson 1972):
Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines.
And that too was quoted and reaffirmed in Diamond v. Diehr 1981.
There is no difficulty with OBJECT patents. The only difficulty we are having is with PROCESS patents. And the only valid form of process patent is one for a physical process to transform physical matter into a different state or thing. If you figure out a way to turn coal into diamonds, you can patent that physical transformation process.
Diamond v. Diehr 1981 also specifically WARNS that "insignificant post-solution activity will not transform an unpatentable principle into a patentable process. To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection."
P.S.
In addition to all the above, Diamond v. Diehr 1981 also explicitly stated that an algorithm
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.