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.'"

Comments

Good

[Lord Apathy]

Thus is a good thing. Patenting software is like patenting a math equation. I can understand software copyrights but not a freaking patent. I wonder how this will affect the cases that where already in court.

Now if we can only get some sense in patents regarding biology. By the way my patent on the biological reproductive process in humans will go into affect today. So all you with kids prepare to cough up.

Re:Good

[Chris Burke]

Patenting software is like patenting a math equation.

It's not even "like", it is patenting math. Software is math. Someone might say that everything can be reduced to math, but the fact is that a ball tossed in the air may follow a parabola, but the ball isn't math, it is just described by math. Whereas software is math, as surely as "y = ax^2 + bx + c" is math. One is a human-readable representation of a pure mathematical concept, and software is a machine-readable representation of a pure mathematical concept. You can't patent the human-readable form of math, you should not be able to patent the machine-readable form of the exact same math.

You can patent the machine that is capable of reading and acting on the mathematical operations described by the software. But not the software itself, because that is, literally, no metaphor at all, patenting math.

Re:Good

[Klaus_1250]

By that same logic, doesn't that void patenting genes as well, as Genes are natures version of software?

Re:Good

[Mouse42]

From my experience with watching how the companies I work for treat patents, they aren't used offensively. They are used to:

A) Show proof of innovation to venture capitalists, stock holders and management
B) Ensure they will have the right to use that process, so some other guy won't use a patent offensively against them.

I would say the patent you're discussing falls under A.

However, that certainly doesn't stop a patent troll from buying the company who has the patent and then using it offensively.

Re:Good

[Jerf]

I've frequently wished that the very fact that a patent troll can sue twenty other people for violating their patent was considered ipso facto proof that the patent couldn't have been all that innovative, by the very fact that several other people coming up with the same solution ought to be the very definition of "obvious to someone skilled in the arts".

Certainly when we're talking about students coming up with "patented material" that should be strong evidence that it's not that hard.

(This is a summary of the argument, there are details and nuances, etc. But I think the root idea is sound.)

Re:Good

[aproposofwhat]

Hans,

At the level at which you (possibly as a software engineer) deal with it, the mathematics behind the software is normally so abstracted as to be almost invisible.

That does not change the fact that at the most basic level all computer programs are just mathematics - a Turing machine manipulating program and data.

And mathematics isn't a science at all - it is a logical discipline, where (all useful) theorems are either true or not true, unlike science where hypotheses are there to be shot down, but so long as they work better than existing hypotheses they are held to be contingently true.

Fact is, it is possible to prove the correctness or otherwise of a computer program, so it's mathematics.

Bri.

I'll believe it when it happens, not before...

[mark-t]

I don't care who's reporting it or how reliable the source, the news that software patents would be invalidated, at least to me, and I'm sure a great many others, is something that is far in excess of too good to be true, so I'm gonna wait and see what happens.

I really wish I could believe that this were possible, but I think too many people with very deep pocket and friends in the right places would get screwed over by this sort of thing to ever allow it to happen.

What about compression algorithms?

[Spy der Mann]

Does compression of data count as "physical transformation" (IMO it's not, but I wonder what the USPTO thinks about it)?

And if this turns out well, does that mean that the MP3 and MPEG4 formats will no longer be patent encumbered?

Not good

[5pp000]

I don't agree. Once again, patent policy is being set by people who obviously don't understand the technology, and so, having lurched from one extreme to the other back in the 1980s, we're now going to lurch to a new extreme that is also not going to make sense. If you read TFA closely to the end, you'll see that somehow two connected computers constitutes a "particular machine", where one does not. This doesn't make any sense, and is going to result in an arbitrary selection of which patents are valid and which aren't.

I understand that many people feel that software patents are so broken they should be thrown out. I don't agree. I think the problem with software patents is that the PTO never has had adequate expertise concerning prior art in the industry, and largely as a consequence, the bar for obviousness has been set about two orders of magnitude too low.

Re:Not good

[malkavian]

Bear in mind obsolescence and market saturation times as well.
Patents were developed with a long time to market and market saturation time (i.e. several years to ramp up production, then about 10-15 years to get a market using this as almost a standard), which ate up about half of the patent time. So you had about the same time again to enjoy the benefits of a stable market before the floodgates were opened, and everyone could make it.

In the software world, a technique can have the development time of hours. Market saturation can happen in weeks/months.

If software were to be patentable in its current form, I'd say 5 years would be a good ballpark figure. Like all things, this would have to be hashed out sensibly, so it'll likely never be implemented in a workable form.

Re:Not good

[SpinyNorman]

I understand that many people feel that software patents are so broken they should be thrown out.

The purpose of patents is meant to be to encourage innovation by protecting investment in innovation, but by that standard the concept of software patents is indeed broken.

Software is not like other fields where innovation occurs relatively infrequently and often at considerable cost of time and money. In the software field, there are two contradictory forces at play that capture the essence of the field:

1) Writing software is an inherently creative / innovative process. Every day you are innovating - sometimes coming up with a design takes longer than others, but innovation is essentially a daily and cheap process.

2) Software inherently requires reuse. As the realities of design patterns (formalized or not) and libraries attest, even programming languages themselves, software is inherently about applying a limited set of tools and approaches to solving the unique task at hand.

Consequently, and correspondingly:

1) Software doesn't need patent protection because innovation is not an optional investment - it is a fundamental daily practice part of the field.

2) Software is hampered by protecting "innovation" (i.e. other's software designs) since it is the nature of software that at a certain level of abstraction there are only so many ways of doing things and so many types of functionality that are needed (design patterns and libraries). If software patents are allowed it is inevitable that other software developers, on a daily basis, will need to keep redesigning the wheel, since all software needs wheels. Look at the GNU compiler set as an example - there are only so many types of code optimization techniques that make sense, and due to the patent office having allowed these "wheels" to be patented, every compiler designer, GNU team included, need to find less optimal and obvious ways of doing optimization than the obvious approaches that suggest themselves though the normal discipline of software design.

Previous lawsuits from frivolous patents?

[Jinky]

If this is actually true and at least the frivolous software patents are going to be removed, what about those who have been sued by the patent owners and lost? Will they be entitled to receive anything back from the patent owners as the patents are now invalidated? I know if I lost out hundreds of thousands of dollars to one of these BS patents, I would want my money back. Hell, if I lost $5, I'd want it back. I only read part of TFA, so maybe I'm missing something. Patent discussions are boring :o

Google will be fine.

[SanityInAnarchy]

That blog seems to want software patents to continue -- not surprising, really, given that it's a "patent law blog", and lawyers are the ones with the most to win from the cottage industry of software patents.

While I doubt this ruling will stand, I hope it does. Google has an enormous amount of manpower to throw at this kind of problem, most of it highly intelligent. The only way this hurts Google is if a competitor is able to implement PageRank (and other features) so much better than Google that people start to switch -- and I doubt Google will be standing still as this happens.

The fact is, software patents have had an overwhelmingly detrimental effect.

Does anyone really believe that, for instance, h.264 would never have been invented, were it not for patents? It would either have been open, or some interested party would have paid for the development.

As it is, while it's relatively cheap to obtain the computing power needed to, say, transcode a large library of video to h.264, the licensing cost can end up being something like $2500 per machine used in this capacity. And because of the longevity of patents, it seems unlikely that it will expire before a better encoding option surfaces.

Yeah -- ever wonder why YouTube took so long to convert everything to hi-def, when they have the computing resources of Google available? I think we know now.

I can imagine software patents being a good thing, but not in their current form. Getting rid of the 15-year-monopoly on an ephemeral idea or a mathematical function can only be a good thing for society as a whole.

Re:Can Someone Please Speak English?

[Chris Burke]

(And, IMO, shouldn't be patentable. But of course, it's easy for me to say that because I don't hold any patents, least of all a software patent.)

Sure, but for anyone coming from the other side, who does have software patents and is thus in favor of keeping them, all I can say is this: You would be nowhere and have nothing if patents had been allowed in the first thirty years of electronic computing. All the sorting algorithms, all the OS scheduler algorithms, all the compiler technology, all the things you take for granted every day, would have been locked up and all the amazing development that required freely taking these basic ideas as building blocks for more ideas would have faced repeated decade-long roadblocks. The environment in which you are creating your software patents would not exist if they had been able to place those roadblocks to progress just as you are doing today.

So sucks to be you, Mr. Software Patent Holder, but the health and development of the industry requires you to take down your toll booth.

You can't have it both ways

[JSBiff]

You've got to decide whether software patents are good or bad. If it's good for Google to patent the idea of page ranking, then software patents, in general, must be a good idea. If software patents are a bad idea, then allowing Google to have a software patent on the PageRank algorithm is a bad idea.

  In the future, if software patents are basically denied altogether, Trade Secret law will used to protect this sort of thing. Unfortunately for the many companies like Google, who've already been awarded patents, the algorithms are already disclosed. Which is why you will probably see some sort of transition period where currently existing software patents aren't just immediately invalidated, but I suspect will be grandfathered in - a basic principle of fairness is you can't change the rules after someone has already upheld their end of the bargain - the patent bargain is that you publically disclose your 'secrets', so that other people can *eventually* use them, but get legal protection on those secrets for a limited time. Telling people who've made disclosure that suddenly they get no protection on their disclosured algorithms is something I don't think is gonna pass - there will be too much resistance from companies on legislators to get protection for this sort of thing.

Personally, I think search engine competition is a good thing. I think competition in general is a good thing. My only concern with outright gutting of the patent system, is that now much knowledge that would have been disclosed in patents, will now remain locked up as trade secrets and NOT eventually become generally available to practitioners of software engineering, and so will, long-term, hold back the progress of computer science. Of course, we all know that right now, patent trolls are holding back the progress of computer science even more. Sort of a lose-lose situation. I guess gutting software patents is, really, probably the lesser of two evils here.

Re:Retroactive?

[DragonWriter]

The article uses the workd "invalidate", which sounds to me like it would cancel existing patents. My question is - would this new set of criteria be retroactive, or would it apply only to new applications?

Changes to the scope of matters to which patent protection applies would affect existing patents, since those patents would no longer relate to patentable subject matter and thus could not be enforced in court.

The PTO changing the rules to cancel previously approved patents would generate massive legal problems.

The PTO is not changing the rules, the PTO is arguing to the courts that the law has been incorrectly applied (including by the PTO) in the past, and that the law should be correctly applied now and in the future. Since patent rights are not inherent rights, but privileges granted by law, there is no basis for protecting them other than the laws passed by Congress authorizing and limiting them. If those laws are incorrectly applied to restrict freedoms of others in ways that the law does not authorize, it is a violation of the Constitutional rights of every person affected (specifically, its a deprivation of liberty without [procedural] due process).

In particular, companies have spent billions of dollars to register patents, only for the PTO to say "Oops, just kidding. Jokes on you."

If the PTO is correct, those companies spent billions of dollars to exploit a misapplication of the law to which from which they were not entitled to benefit but did, in fact, benefit. Since they will neither be recompensed for the expenditures nor forced to disgorge their already-realized ill-gotten gains, I don't see the particular problem here.

This seems to be a fairly routine controversy over what the law means and how it should be applied vs. how it has been applied, not some kind of unusual power grab that you are characterizing it as.

Re:This violates my patent

[Kingrames]

Well then we're safe then, since we're not funny.

Re:Patent Pending

[phoenixwade]

Actually I assume that this ruling will be litigated.

Yeah, that's a "well, Duh!" comment - there is too much money involved here for it not to be litigated.

If this interpretation is upheld in litigation, you can bet that congress will get involved and fix it so that software patents are retroactively reinstated.

I'd like to see big money lose over the interests of the people, but I doubt our system could ever allow that.

Re:About damn time!

[colmore]

Here's an idea. Write (or type and print out) a letter to your senators and representatives and to Mr. Obama (and I guess McCain if you think he's got a snowball's chance) and tell them how important you think this is.

If you work in the tech sector, tell them that too. Super double extra bonus points if you hold a legit patent. Or heck, if you hold an illegitimate patent for defensive reasons.

Emails don't count.

Re:About damn time!

[Just Some Guy]

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.

You couldn't be more wrong. IT is being crippled by software patents, because you can be sued for writing the most obvious things that some jackass already registered. Those companies pretty much hate software patents. Do you think Microsoft really wants Joe Troll in Texas coming after them for 20 billion dollars because he patented spreadsheets? No! They see them as an evil that they have to put up with so that they don't get run out of business by the people gaming the system.

American companies, or at least the intelligent ones, hate software patents because they're only useful against American companies. They don't do jack against the 95% of the world's population that doesn't live here, but give that 95% one hell of a big stick to beat us down with.