Slashdot Mirror
The Death of Nearly All Software Patents?
An anonymous reader writes "The Patent and Trademark Office has now made clear that its newly developed position on patentable subject matter will invalidate many and perhaps most software patents, including pioneering patent claims to such innovators as Google, Inc. In a series of cases including In re Nuijten, In re Comiskey and In re Bilski, the Patent and Trademark Office has argued in favor of imposing new restrictions on the scope of patentable subject matter set forth by Congress in article 101 of the Patent Act. In the most recent of these three — the currently pending en banc Bilski appeal — the Office takes the position that process inventions generally are unpatentable unless they 'result in a physical transformation of an article' or are 'tied to a particular machine.'"
During my phd I created a dynamically resizing matrix like structure for representing gene networks of arbitrary size.
Shortly after this I found that something effectively identical had been granted a patent in the US.
The patent didn't effect me at all, so I wasn't concerned on that front. What shocked me was that a patent had been granted for it at all.
The design was useful for me, because it reduced memory usage by around 96%, but in no way was it something that should have been granted a patent.
I imagine that patent will cause some researchers problems unless reforms prevent its usage. I've not heard of it being used offensively yet, I assume the holder will be waiting for a chance to get some serious settlement cash.
A learning experience is one of those things that say, 'You know that thing you just did? Don't do that.' - D. Adams
This calls for a Kermit full-waving "YAAAaaaaaaaaaaaaaaaay!"
Err... not so fast.
The PTO is an administrative body, not a legal body. It has no authority to state, "these types of inventions are patentable, and these aren't." It cannot impose new substantive requirements on inventions, including "physicality."
The PTO has taken this position a dozen times in the past - and it has been repeatedly rejected by the federal courts. The federal judges must be tired of having to explain to the PTO that "physicality" is not, and never was, a requirement of patentability.
So what we have here, once again, is the PTO exceeding its authority. The federal court has already hammered the PTO once this year for this (relating to its imposed requirements on continuation rules.) Expect this to occur again when the federal court decides In re Bilski.
Look, guys - nothing's gonna change. IT is one of the only consistently thriving segments of the U.S. economy, and the drivers of that market - Intel, IBM, Microsoft, Apple, Google, Yahoo, Adobe, eBay - all utilize and support software patents. If anything, they're pinning an increasing emphasis and reliance on software patenting. And they all have great lobbyists, so expect Congress to step in with new patent legislation if it looks like software patents are in jeopardy. (They've done it before, folks. Consider 35 USC 103(b) for a specific instance where Congress changed the law to support biotech patenting.)
- David Stein
Computer over. Virus = very yes.
I used to agree with what you're saying, but that was before I realized a few things:
1. Computer Science != Programming
Computer science is more about research, not about writing accounting and billing programs. The mistake colleges make is not mixing computer science with math, it's making the assumption that all programmers must be computer scientists.
2. You can only get away with being a programmer while sucking at math because of the many layers of abstractions that have been built on top of the math. The math is still at the bottom, but we now have higher-level, more right-brained ways of expressing that math.
An example might be SQL and relational databases. SQL is a very English-like language that is interpreted into relational algebra by the database engine. You don't really need to thoroughly understand all of the relational algebra to write basic SQL, but there it is nevertheless.
Correction. IBM is on your lists for supporting software patents. They do not believe in them. They believe the patent process needs overhauled and should support the open source model and a companies should make money off services, support and hardware (unless they can patent software tied to hardware or patent hardware innovations).
IBM has also started a patent fund with other companies to make sure nobody gets sued for broadly affected patents and work with others to find prior art and prior invention on modern software patents. IBM would like to see everything move towards a software services and support model mainly because they are in the forefront and most of the patents they are now putting through are hardware patents.
This is my sig. There are many like it but this one is mine.
Yes.
What he's saying is that software patents are not patents on math because you aren't patenting the math. You're patenting the concept.
It's the difference between copyright and patents. And people here are not clear on the distinction.
Copyright grants exclusive rights to the creator of a specific expression of an idea. I can hold a copyright on my specific play about a man, a woman, a gerbil, 10 pounds of cucumbers and a jar of petroleum jelly. My copyright only covers my play; if someone else rights a different, independently created play about a man, a woman, a gerbil, 10 pounds of cucumbers and a jar of petroleum jelly, that's just my tough luck.
A patent, on the other hand, grants exclusive rights to a concept or an idea. If I couldn't patent plays, I could patent the concept of a play involving a man, a woman, a gerbil, 10 pounds of cucumbers and a jar of petroleum jelly and no one else could write a play with those elements in it.
Seen differently in software, a copyright prevents someone else from ripping off my specific program, Stylus Toolbox. If there were no prior art, I could patent the concept of writing GUI front-end to a command-line utility for the purposes of controlling an inkjet printer. Then no else could write such a program. But I am not patenting MATH (or software), I'm patenting the concept of such a program.
Whether software patents are a good idea is another matter entirely. The fact is that existing law allows for software patents, and the reason is is that you aren't patenting the software, but the concept.
My blog
So what we have here, once again, is the PTO exceeding its authority.
It's almost like you didn't RTFA at all. The decisions in question, In re Nuijten, In re Comiskey and In re Bilski, are all CAFC decisions not PTO decisions. And in case you haven't heard, the CAFC does have authority to state, "these types of inventions are patentable, and these aren't." They rejected rehearing en banc of Nuijten. Additionally, I doubt the rehearing of Bilski will come out the way you seem to believe it will.
Additionally, the major players in the IP market, are increasingly getting patents for defensive purposes and pushing for patent reform (See the Patent Reform Act of 2007).
So, if you haven't been following recent developments both in the CAFC and SCOTUS, and by the tone of your comments you obviously haven't been, the trend is clearly away from stronger patent rights, especially in the field of software patents.
Now it is entirely possible that the system will not change and inane and overly broad software patents will continue to come flowing out of the PTO.. However, the trend is certainly in the opposite direction.
IBM is on your lists for supporting software patents. They do not believe in them.
Wrong. IBM is an ardent supporter of patents, and has consistently argued in favor of them. And an increasing share of its business is based on software patents.
Rather, IBM's position is that it is against bad patents: those that are not adequately examined, and that issue despite invalidating prior art. IBM supports software patents just as ardently as electrical patents... so long as the patented invention is novel, non-obvious, adequately described, etc.
(And, really, who could oppose that position? Even though better examination lead to a higher rejection rate, they also lead to greater certainty in the validity of issued patents. In fact, the only opponent of this position is the USPTO itself, which throttles the amount of time and resources that an examiner can throw at an application in the interest of "productivity." I'll let you draw your own conclusions about that.)
Also wrong (same article as above.) IBM's software patenting efforts have grown over the last decade.
- David Stein
Computer over. Virus = very yes.