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."

Comments

Riiiigghht

[AKAImBatman]

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.

My bullshit detector just exploded.

Re:Riiiigghht

[Timothy Brownawell]

However R&D isn't cheap You could spend millions on R&D for a invention. If a Company cant have a guarantee that their R&D dollars will pay off then they won't have R&D. Patents insure that your invention give you the completive advantage for a time to make up the loss revenue in R&D.

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.

So in a world with no Patents there will be much less R&D and less innovation. Or people will hold onto their new ideas much longer as not having a mechanism to properly sell their ideas along.

Patents have historically resulted in some area of technology being made "off limits" to further development for a couple decades, I believe that Against Intellectual Monopoly has a good account of this happening with the steam engine.

Re:Riiiigghht

[AKAImBatman]

Who said anything about patents being bad? The words "information" and "business process" do not jive with what the patent system was intended to be used for. Nor do they happen to cost millions or billions in R&D.

The messed up part about all of this is that it's all caused by an early misinterpretation of technology by courts. There was a case that came up where a patent was filed for a device (a rubberizer, IIRC?) that used computer control to accomplish its innovative task. The judge correctly assessed that the invention as a whole was innovative and granted patent protection.

Unfortunately, the court cases that followed cited that case as precedent for software patents. The judges didn't understand the difference and started granting exceptions carte blanche. Thus we ended up in the screwed up system we have now with no oversight over what is a valid patent and what is not.

Even more messed up is that patent law is okay. It says that patents should be non-obvious, it says that they should have no prior art, etc., etc., etc. Yet technology patents regularly get shoved through the system without any of these checks or balances applied.

The bozos who are defending this messed up violation of the law as legit are nothing more than charlatans who couldn't make an honest living if they tried. Last I checked, many of them even helped tank the world economy in recent news.

Re:Riiiigghht

[jhfry]

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.

Re:Riiiigghht

[Solandri]

Patents have historically resulted in some area of technology being made "off limits" to further development for a couple decades, I believe that Against Intellectual Monopoly has a good account of this happening with the steam engine.

Best example is probably the Selden patent on the gasoline-powered automobile. In defending the patent, they tried to keep Ford out of the market. Ford won, and the rest as they say is history. If Ford had lost, a lot of his inventions we now take for granted (assembly line, interchangeable parts, etc.) wouldn't have been invented until much later.

In this particular case, Ford won the patent suit on the grounds that the specific implementation covered by the patent (a Brayton engine) was not the implementation used by Ford (an Otto engine). IMHO that's how the patent system should work. You should not be able to patent a general concept (e.g. a gasoline-powered automobile). You should only be able to patent a specific implementation. If someone else comes up with something that does the same thing but with a different implementation, it has to be allowed to compete with your invention so technology can progress. Otherwise you get patent trolls holding entire segments of industry hostage to their royalties and stunting technological progress.

Oh Boy

[Bruce Perens]

So, the thing we really want to come out of this is a further limitation of software and business method patenting than the lower court case arrived at. But this is going to be a really big fight, with deep pockets on both sides. And it's going to be years before there's an outcome, if they take it.

If the Supreme Court doesn't accept it, I suppose we have a chance to bring yet another case and try for more limitation of software patenting.

What really bothers me is that our only viable path to do this right now is the courts. We've not been able to establish a legislative campaign.

Re:Oh Boy

[Volante3192]

Well, if the Supreme Court doesn't take it, Bilski is upheld, which is a good start.

If the Supreme Court does take it, and upholds it, it's a better start.

And if SCOTUS does hear it, it won't drag out for years. They move through cases very fast compared to other courts out there. You file briefs and you get 30 minutes to present your case. That's basically it.

(disclaimer: there can be exceptions, but I honestly wouldn't expect this to take longer than a month even at the extreme)

PLEASE uphold it!

[Just Some Guy]

There are no ways in which software patents 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. Anyone can open an American office and start filing patents to be used against us, but good luck to an American company that wants to file patents in China to protect their claims.

Re:PLEASE uphold it!

[Theaetetus]

Anyone can open an American office and start filing patents to be used against us, but good luck to an American company that wants to file patents in China to protect their claims.

Yeah, if only there were some sort of Cooperative Treaty about Patents that would grant substantively similar rights in all the signing countries. They should probably hold a Convention in Paris to discuss it, and maybe set up some sort of Bureau in Switzerland to be an International registry.

Re:PLEASE uphold it!

[DoofusOfDeath]

... 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!

Re:PLEASE uphold it!

[Anonymous Coward]

I claim:

1. A method of telling a joke containing sarcastic witticism, the method comprising:

providing an obvious allusion to factual events in a farcical manner;

delaying until a reader locates the reference material referred to by the obvious allusion; and

posting a message in the form of a patent claim, the message substituted for a standard "whoosh" post.

Re:I hope the SCOTUS smacks it down HARD

[Just Some Guy]

Correction: you want SCOTUS to uphold the Bilski ruling.

Software patents are *not* useless - just harmful

[pieterh]

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.

Re:What patent laws really need

[Theaetetus]

I could patent teleporters and ion cannons if I wanted and then just sit on it but I shouldn't be allowed to unless I show some sort of proof that I've already started building one of those devices or at least have research that led to a blueprint that I'm pretty sure will work.

You already can't patent something unless you can show that you've either built it or have done sufficient research that would allow someone with proper manufacturing capabilities to build it. It's right there in the statute, 35 USC 112.

Re:Bilski

[CubanCorona]

People seldom consider the implications of abolishing software patents.

Sure, there are a lot of good arguments against granting artificial monopolies on computer software--and many of them ARE good arguments. However, categorically denying patent protection to software creates some logical difficulties.

Most computer aficionados are familiar with the idea that software and hardware are logically equivalent. We CAN build specialized hardware to do what we would have our software do.

It would seem a bit anomalous, therefore, to allow a patent on specialized hardware that embodies precisely the same inventive character as its patent ineligible software counterpart.

So, in my opinion, the real issue we are seeking to resolve here is more subtle and obscure than we are admitting. Certainly, affording computer software a unique status as patent ineligible subject matter is not the most complete solution.

I think that's what the court was getting at in Bilski. They were searching for some kind of logical test rather than an unexplainable, static, and inflexible prohibition on a certain class of invention.

I'm not saying the court was right--I'm trying to shed a little more light on the playing field.

Re:Software patents are *not* useless - just harmf

[pieterh]

This "infrastructure is expensive" argument is 20 years out of date. Newsflash: no-one puts down cables any more unless they're for IP. There are many, many ways to build cheap and extremely competitive telecoms networks that would end the cartels overnight. They don't mostly happen because patents block innovation wherever it is a threat. I remind you that telecoms has become a software industry, top to bottom, and every "invention" of that industry is heavily protected by software patents.

Spectrum "regulation" are just the side effect of a powerful cartel that has friends in government - a good way to raise the cost to unbearable levels for newcomers and tax the consumer. Again, it's patents that prevent more efficient use of spectrum and those "expensive" lines you talk about.

It is all about keeping out competitors that would disrupt the cozy price-fixed market.

Try to start a VoIP telecoms provider, and see what happens. Read about Vonage, if you forget your recent history. Now tell me again, seriously, that telecoms cartels have "nothing to do with patents".

Patents are the core of the telecoms stack and the reason your mobile phone bill rises year on year.

Yes, to truly re-create competition in the telecoms industry, we need a powerful competition authority, and we need much better policies for spectrum use, but most of all, we need the end of software patents.