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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.'"
Invalidation of software patents was patented by me back in 2003.
Sounds like the machine that these patents are going to be tied to is the Titanic.
Someone should jump the gun and patent the idea that software cannot be patented. Then sue the trademark office for patent infringement.
The subject says it all.
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.
Supporting World Peace Through Nuclear Pacification
They should patent it.
Good news at last!
Common sense prevails.
Hopefully patent trolls will not be able to lobby against such changes; as for once, I daresay that certain major corporations are likely to be somewhat supportive, the current patent mess is as much a pain for them as for everyone else.
These restrictions bring patents back in line with their original intention, and hopefully will help reduce the excessive (patent) litigation so prevalent in the US...
There is no psychiatrist in the world like a puppy licking your face - Ben Williams
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.
File under 'M' for 'Manic ranting'
suddenoutbreakofcommonsense, but holyfreakingshit conveys my feelings better.
I haven't finished reading TFA yet, but this seems huge if it pans out — not only would software patents be invalidated, but essentially all "business process" patents would get tossed out as well.
How can I believe you when you tell me what I don't want to hear?
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?
You don't need to be "in the know."
The patent office is tired of BS patents for ideas, and is telling inventors that it has to transform a Lumpy Object (to quote Tom Peters) or be part of a process that is inextricably tied to the operation of a machine (for example, a process to get an internal combustion engine to get 100MPG.)
Simply coming up with a software algorithm or something in the abstract won't be patentable.
(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.)
Mit der Dummheit kämpfen Götter selbst vergebens.
First of all, can I just say, WOO HOO! This has been far too long in coming!
If this is what it sounds like (and no, I didn't RTFA; way too many links that look like they're probably rich in legalese!), it could pull the rug out from under many patent trolls, and allow a lot more innovation to come back into the US software world.
However, precisely because it has been so long in coming, it could mean a major shakeup of a number of things. One important example is listed right in the summary: Google's PageRank patent. With that invalidated, other search engines can legally use PageRank, without giving Google a dime, which could give them the same searching power as Google.
I can't even begin to speculate what the fallout of this would end up including, but I think it's important not to underestimate it. However, even if there are some short-term negative consequences, I think most of us here will agree that in the long term, at least, this is a big win for everyone (well, everyone but the patent trolls, that is!).
Dan Aris
Fun. Free. Online. RPG. BattleMaster.
The famous Overture's PPC patent which microsoft is trying to accuire through Yahoo should become invalid as well, resulting in "interesting times" to say the least.
echo '[q]sa[ln0=aln80~Psnlbx]16isb572CCB9AE9DB03273snlbxq' |dc
Hope this gets done quickly, because the EU and other players are pushing for software patents and one of the main arguments is "harmonisation with the global (read: US) systems".
And I'm very keen on finding out what their next pseudo-argument is gonna be.
Assorted stuff I do sometimes: Lemuria.org
Will the patents like the so-called "one-click" patent be voided wherein anyone who paid licensing fees to that company will no longer have to? Will fees be refunded?
They are holding patentable when there are two computers involved. So, any networking code may still be patentable since it is a system of multiple computers. This may help to invalidate non-network software. Fraunhofer, I'm looking at you...
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?
The PTO changing the rules to cancel previously approved patents would generate massive legal problems. In particular, companies have spent billions of dollars to register patents, only for the PTO to say "Oops, just kidding. Jokes on you."
No matter where you stand on software patents (and I'm against them if they can be restricted sensibly, BTW), that's no way to run a patent office.
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.
Your god may be dead, but mine aren't!
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
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.
Don't thank God, thank a doctor!
how much particular? What about i.e. iPhone? There are a lot of patents around it, probably several related with software. If "tied" means "no way you can implement a similar algorithm if is in a different hardware" should be mostly ok.
This could be the silver bullet needed to kill all patent trolls.
(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.
The enemies of Democracy are
s/process/physical transformation/g
Before: "A process by which text may be inserted into a 'base' of 'data' in a format easily searchable by electronic means."
After: "A physical transformation by which text may be inserted into a 'base' of 'data' in a format easily searchable by electronic means."
And presto, patent granted! Cue the next round of the trolls! :-)
Demanding constant attention will only lead to attention.
Here's what I've found so far:
And, the original article: The Death of Google's Patents?
Those parties materially impacted by this policy, for good or ill, will presumably need to get out their checkbooks and start making contributions to candidates who will legislate/administrate in whatever manner suits the contributors.
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.
Somehow I've got the feeling that if this goes through, there will be a lot of patent attorneys making a lot of money writing clauses into software patent applications along the lines of:
"whereby said process causes an electron to move from transistor a to transistor b"
since way down at a quantum level, the bit state of a block of memory is a physical process.
Alternatively, I'm sure there will be a lot of "software appliance" patents showing up under the argument that once its an "appliance", its no longer a general purpose computer.
...is for companies to employ a "physical object" provision in their patent filings. Google's PageRank patent, for example, may change from:
"A computer implemented method of scoring a plurality of linked documents"
to:
"A computer implemented method of scoring a plurality of linked documents with possible applications as a shower curtain"
How can I believe you when you tell me what I don't want to hear?
I love a good mystery (and polls). So, is it the PTO saying:
a) "Cap'n she can't take much more!" (Approaching total functional failure)
b) "Go ahead, make my day." (I ain't takin' no more sh*t from you)
c) "Do you want to live forever?" (What the hell, got nothing to lose at this point.)
d) "ZOMG! pwnies!" (This acid trip is soooo righteous, man!)
The scariest part about it is, as a government office/function/bureau, the most likely answer is:
e) All of the above (Hi, my name is Sybil.)
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.
Maybe, but these first thirty years of electronic computing are gone. Right now you practically can't design any new software because you might be infringing on a software patent. And it's worse if you research because you might find out you ARE infringing on it, and the responsibility is much greater.
Unfortunately, software patents hurt innovation much more than they foster it. In other words, they fail at doing what they were made to do. And perhaps the same is true for other kinds of patents - but in the information era, the impact of software patents is critical.
Then I got one, and was paid good money for it (sold it to the company I was working for).
And now it may become invalidated. Hmmm... While some software patents are ridiculous, such as the XOR algorithm and the "one-click" purchase of Amazon, others that involved true ingenuity and shrewdness perhaps should remain? If the same intellectual "energy" goes into creating an algorithm as it does, say, a widget, should it not be awarded *some* protection?
I am really mixed on this because of all the abuse software patents have seen. At the same time, when the whole notion of patents was drafted, that was no such thing as "software" Now, we have software running everywhere, including controlling such machines as the car you drive.
I know I will be hissed and booed, but perhaps there is *some* place for *some* software patents.
But in today's high seas of corporatism, many patents are abused anyway, and not just software ones. Big corporations will use their patents as "head whackers" where one corp will sue and counter-sue over patents just to gain market advantage, as opposed to exploiting the market for a patent. It's a fine distinction, one I am not sure about.
Ruby Neural Evolution of Augmenting Topologies
Do you not agree that software is equivalent to mathematical formulas, or do you think that software patents (an arbitrary subset of mathematics) should be patentable for some reason?
In the latter case, do you believe that, say, Andrew Wiles proof of Fermat's last theorem could be translated to a typed lisp expression (or any equivalent in some other language) and patented as a method of proving a certain fact about integers, and then authors of any proofs using Fermat's last theorem as a lemma could be sued for violating the patent? What about the four-coloring theorem which requires a programmatic proof? In short, what criteria would you use to distinguish unpatentable mathematics from patentable software?
I suppose the author, Mr. Duffy, thinks he wrote a fair and balanced article. He mentions several times how valuable certain patents are, and that this change "threatens" many patents and will "destabilize" patenting. There is no mention of the gains to society, this seems to be purely a lawyer's outlook on the immediate consequences to patent attorneys and their clients. Clients will lose a lot of patents, oh no!
There's no mention of how this will greatly help everyone against patent trolling. The closest he gets is a mention that this is "cause for celebration among those ... philosophically opposed to property rights in innovation", as if there are no real benefits to be had, as if that's a point that is of no interest to any except a few theologians of some obscure religion, He writes that this is a departure from over 2 centuries of tradition. We think otherwise. The tradition of patenting is over 200 years, yes, but the tradition of patenting software is perhaps only 30 years old, not 200. And the "system is supposed to be designed to encourage ... the innovative", but there is nothing about the means or any studies about the system's effectiveness. Are we supposed to take it for granted that because the system was designed to accomplish a purpose, it does so? Apparently we are supposed to take that view. How else could a "contraction of patent eligibility" be seen as "very troubling"? To the contrary!
He concludes that figuring out answers to these "fascinating questions" will keep patent attorneys employed. I would add gainfully to the front of employed, but I'm doubtful that these questions are "fascinating", any more than a "debate" over the merits of Young Earth Creationism vs Old Earth Creationism is interesting. We know the answers already, it's that some don't like the answers and have tried to create debate and controversy out of nothing.
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
There are too many Intellectual Property attorneys out there that would be put out of business by such a ruling.
Of course, the whole concept OF "intellectual property" actually IS something of an oxymoron, when one considers the actual meaning of the term... property that exists only intellectually... and not on the physical plane...
It will be interesting to see how the COURTS rule on this, as opposed to the Patent Office. It's the courts that will have the final say, anyway... not the Patent Office...
So computer programs are both equivalent to a physical machine, and an abstract mathematical proof, at the same time.
That is, you can argue it either way, and they're both right.
That said, I maintain that you should have to acutally build the Turing machine to get the patent :-)
- "History shows again and again how nature points out the folly of men" -- Blue Oyster Cult, 'Godzilla'
The makers of the Blackberry would then educate you about that $600 million check they had to write.
You just know someone is going to sue claiming that abolishing software patents is a "Taking" under the fifth amendment and that they (and all the other patent trolls) are due compensation.
...I would say it is much more akin to authoring music or text. You have a limited (though sometimes wide) vocabulary and syntax. Many authors will put the same vocabulary and syntax together in a strive for similar goals, yet the combination used is generally unique. The differentiation between them come out in skill and subtlety as well as application.
Copyright, IOW, is very appropriate. Patent is entirely not.
Business process falls into the same category IMO. If the drive-through window were invited in the 90's and not the 40's, only the first bank or fast food restaurant to come up with the concept could use it and all others would have to pay royalties. Then the owners of toll roads would sue for prior art, etc. etc.
The problem with quotes on the internet, is that nobody bothers to check their veracity. -- Abraham Lincoln
The whole pagerank algorithm is well know and not particulary complex. Implementing it and writing a spider was one of many homeworks i had in my numeric programming course (thou one of the most interesting) Basically you put the probability to get from website A to B into a matrix and find it's eigenvalues (which is best done numeric). Those are the pagerank. ...
What's not so well known is how to find a good set of a few hundred websites out of the trillions of pages your spider indexed to build that matrix
Actually, all that math is an abstraction of electronics, and electronics is just an abstraction of physics.
So "researchers" are no more Computer Scientist that "programmers" are because neither of them comprehend the entirety of the physics that are driving the electrons that make it possible for that computer to do the math that has been abstracted to a high level 'English-like' readable language. /sarcasm
Really, intra-software industry pissing matches are just humorous. There is no significant difference in skill levels of programmers and researchers. Only the knowledge of the application's focus changes. And for as complex as modeling some new mathematical equation may be, I can present you with a mile long list of tax codes, international trade law, federal regulation, incentive programs, etc... that can make a "simple" accounting program just as complex.
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
The article specifically states: "The vast bulk of patents on software, business and information technology are thought by some not to be threatened because those innovations are typically implemented on a machine namely, a computer and the tie to a machine would provide security against the agency's contractions of $ 101." It affects PageRank because that the technology not tied to a specific machine. But according the the article it shouldn't patents which are tied down to a specific hardware and software specification. Apple's iPhone software should be totally patentable. All this does is narrow the scope of patents so that you can't patent some technology for general use all computers.
Software is a series of words that instruct a computer to perform specific functions. Copyright is all that's necessary to protect the intellectual property of software developers.
And I don't mean copy protection of the specific code, obviously there are many ways for software to achieve the desired effect. It's the effect that should be subject to copyright, which is what leans software developers towards the patent office.
However, if you translate a poem to french, which would entail significantly changing several phrases to maintain a rhyming scheme, the original author still has copyright protection.
L'auteur n'en apprendra jamais probablement*, but the software developer probably will learn of competitive products that violate copyright.
* The author would probably never learn about it
War as we knew it was obsolete
Nothing could beat complete denial
- Emily Haines