Slashdot Mirror
"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."
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.
I'm no more a lawyer than you are, but I don't think common sense is allowed when it comes to law. Though there are also those who claim common sense is patented, and the cost of a license is prohibitive _
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
The EU's patentability rules already disallow business model patents. To quote the relevant parts:
...
(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
Circular definition or not, the system has held up pretty well since it was introduced in 1973, most (all?) member states already had similar restrictions before the rules were unified.
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.
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.
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.
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.
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.
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
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.