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Bilski Patent Case Appealed To Supreme Court
An anonymous reader writes "The landmark ruling of a few months ago that limited patents to inventions which include a machine or which transform physical matter has been appealed up to the Supreme Court. 'On the one side of this controversy... are those... who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods. On the other side are consumer advocacy groups and free-market devotees who worry that patent monopolies could tie up methods of creative thought processes, including teaching, judging, creative writing, making medical judgments, or picking juries (some current, real examples of claims).' The Bilski decision has already had an impact on potential software and biotech patents, in addition to the obvious limitations on business method patents. The petition (PDF) argues that the 'machine-or-transformation' test conflicts with the broad language of the patent statute and with congressional intent. It's entirely within the Supreme Court's discretion to take the case or not, but for now it looks like the issue is far from decided."
is a use or lose clause.
Where is the "Ignorant" mod tag?
... atents can help anyone but patent lawyers. Since American patents are only binding in America, they put domestic companies at a competitive disadvantage with the rest of the world. ...
I'm not sure that's right. Consider this sequence:
1. America allows software patents.
2. America leans on European countries to allow them, and eventually succeeds.
3. SCOTUS invalidates software patents as non-Constitutional.
4. To be compatible with EU, which now has software patents, US signs a treaty allowing software patents, which, being a treaty, I believe, carries same weight as other parts of our Constitution. Now whole world has software patents, just because the U.S. temporarily did in the beginning.
5. ???
6. Profit!
Software patents are extremely important to certain businesses, most of all the telecoms industry, which manages to keep prices rising in an area where their half-life should be 12-18 months.
If there were no software patents, it would be much harder to maintain the telecoms cartels, the high prices, and the jobs and profits they generate. So for many people, software patents are very, very useful.
Of course the overall effect is to slow down progress in communications, keep costs artificially high, penalize emerging industries, and punish the competitiveness of regions like the USA and Europe, which allow the cartels to continue.
However, the times are changing and I've written about why the growing power of the Internet as a non-political force in politics will cause the end of software patents.
It's worth noting that software patents will also be reviewed in Europe by the European Patent Office's Extended Board of Appeal (EBA), the closest thing we have to SCOTUS with respect to patents in Europe. Sure, the EPO is a fiefdom of the patent industry and EBA its chief priesthood, but reexamining the cosy arrangements that allowed software patents to exist so far is very significant.
I think we are seeing the swing of the pendulum back towards sanity and the understanding that when it comes to the digital economy, any barrier to trade and competition - and the essence of a patent is to prevent competition - is harmful.
My blog
The answers below are how standard patent rulings would take place, not my decision or want.
1. What if you 'invented' it by looking at a creature with really great night vision, and then copy and pasted it over?
Regardless. If you made it, its an invention. If you found it, a discovery. Both are patentable.
2. What if someone was born with really great night vision, and you just copy and pasted it from them?
Yep. Look at the Ashkenazi Jew lady who had expressions of breast cancer.. Now every Ashkenazi Jew who takes a BRCA-1 test pays a royalty. Non-Jews dont.
3. What if someone was born with really great night vision AFTER you patented it -- are they in violation of your patent?
Most likely. And the worst case: Patent companies have unproportionately large legal bases to enact lawsuits towards. If you are a peon, you will lose, either by 20+ year trial, or directly. Note that 17 years is length of patent.
4. What if the children of the people you modified with night vision inherit the gene? Do they owe royalties?
There was probably a contract that included offspring in the original document. They will likely owe royalties. If they do not pay, the company will probably try a copyright suit along with a patent suit, because you knowingly infringed on copyright. Since it's knowingly, fees are upwards 35000$-250000$. Thank the copyright system.
Patents mean that you might not be legally allowed to use the results of your R&D without paying off someone else first. They also don't ensure that the results of your R&D will actually be useful or sellable. The only mean that others can't directly copy your results, but copying something physical takes long enough that you'd probably have a substantial first-mover advantage anyway.
To provide a vague but true example, I recently worked for a startup that developed a product independently for something that was fairly obvious (applying existing technology to a different industry), and during a patent search it was discovered that to bring their product to market would violate several patents (all of them software).
After trying to re-design the product to steer clear of patent issues, the product never achieved its potential before the money ran out. Had we taken the direct route, we would have been done and sold a million units by now.
The problem with process and method patents is that they patent the goal rather than how the goal was achieved. With a typical mechanical patent, you first state your goal and then patent the 'way' to achieve the goal. If someone wants to achieve the same goal they can, so long as they use a different 'way' to get there. A process patent frequently focuses on the goal rather than the way.
For example, I should be able to implement a way of creating a PDF compatible file without violating any patents... assuming I used different code to achive the same result. This being the case, there is little reason to patent software, as it's trivial to change code and arrive at the same result.
Or, say I want to encode an MPEG compliant file, so long as I don't use the same code as someone else, I should be able to create my own implementation without being in violation of any patents or copyrights.
Sometimes the best solution is to stop wasting time looking for an easy solution.