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Supreme Court To Review "Business Method" Patents
xzvf alerts us to big news on the patent front: the Supreme Court decided today to review the validity of "business method" patents. In particular, the Supremes will look over the "In re: Bilski" case, which we have discussed before. "By agreeing to weigh in on the case, the high court is venturing into controversial terrain. Critics of business-method patents say it was never the intent of the law to protect such things, which in their view are often far closer to abstract concepts or mathematical algorithms rather than physical inventions. Proponents say they are key to promoting innovation in today's knowledge- and service-based economy. ... The court's decision to review the Bilski case caught many observers by surprise. The Bilski patent claims are widely viewed as vulnerable to challenge on a number of grounds, and the sense among some experts was it would make a poor test case. ... The Supreme Court won't hear arguments in Bilski until its next term, which begins in October. A ruling is likely during the first half of 2010."
It's even spelled correctly elsewhere in the summary. But what else to expect from /. "editor" kdawson?
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
I'm confident the interests of the American people will be of the highest priority during deliberations.
[maniacal laughter followed by gentle sobbing]
What should happen: The Supreme Court rules against business method patents and manages to eliminate software patents entirely at the same time.
What will happen: The Supreme Court rules in support of business method patents and redefines "prior art" to mean "other US patents that haven't yet expired" at the same time. Lawyers rush to patent levers, gears, buttons (electrical, mechanical, and on clothing), etc.
-- The act of censorship is always worse than whatever is being censored. Always.
Canada and the UK have both denied business method and software patents, as have the EC (attempts by that corporate lackey Charlie McCreevy notwithstanding). Now that the civilised world has invalidated these types of patents, wouldn't it make sense for the US to follow?
And more and more things become patentable- we may well have a ministry of silly walks.
I hope they throw out all the process patents but it'll be very long if ever.
Not to mention, it would require them to blatantly disregard the patent statute. 35 U.S.C. section 101, "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter ... may obtain a patent therefor[.]"
Today's Sesame Street was brought to you by the number e.
To you, my most esteemed collection of pigeons, please permit me to introduce my cat.
Do not mock my vision of impractical footwear
Well, since you can patent computer algorithms there's no reason why this shouldn't be allowed too.
Not to mention, it would require them to blatantly disregard the patent statute. 35 U.S.C. section 101, "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter ... may obtain a patent therefor[.]"
...though it's quite within their brief to determine whether a statute is unconstitutional, of course. Marbury vs Madison.
Do not mock my vision of impractical footwear
One of the Supreme Court's greatest purposes is to review legislation for constitutionality. Judicial review is a key part of the balance of powers within the U.S.
I'm not saying it's likely given how long this has been a concept within American patent law, but just because it's a clearly written statute does nothing to protect or endanger the concept.
True, but I haven't heard anybody argue that process statutes are unconstitutional. I've only ever heard that in connection with proposed first-to-file statutes.
Today's Sesame Street was brought to you by the number e.
private business_method() /* insert comment here */
{
S.S.O.O.;
S.S.T.M.;
end of debate;
}
But had I heard the summary as an argument in passing I would have stopped and simply interjected:
"Sole rights to a particular business model should not equate to business success but the quality of implementation and service of a particular instance of that model should."
Doesn't "discovery" require that the subject of the discovery exist already? So, how does one discover something new? For example, when the "New World" was discovered, it's existence had been known for many years by the population who lived there, just not known by Europeans.
The real "Libtards" are the Libertarians!
Here is where you show me where in the petition for cert. anybody has raised constitutional questions, since according to Supreme Court's Rule 14, they won't consider it if it wasn't raised in the petition.
Today's Sesame Street was brought to you by the number e.
Process, as used in 35USC referred to manufacturing processes not thought processes.
TFA says Bilski was rejected by the U.S. Patent & Trademark Office on the basis that it simply involved a mental process.
Even if it has been a patent on a proceedure for sorting office papers into filing cabinets that did not require specialized equipment, it would STILL not rise to the level of a patentable process.
Processing raw corn into imitation leather shoe laces via a series of physical and chemical manipulations would be a patentable process.
See the difference?
Sig Battery depleted. Reverting to safe mode.
If I "discover" a new way of processing rubber, that method may have existed before in the abstract universal sense that it was possible to do it. The only thing holding people back was the knowledge.
On the other hand, if I am the first to "discover" a naturally-occurring mineral, I can't get a patent on it because products of nature are not patentable (yes, I'm aware of gene patents. The theory there is that they don't occur in their isolated state in nature).
Today's Sesame Street was brought to you by the number e.
COPA, Abortion, Gay Marriage, Software Patents, Eminent Domain, Copyright term limits, Privacy Issues/Search and Seizure... does anyone else think that the U.S. has been relying more and more on Judges to make the difficult decisions or clean up the mess left by the legislature?
I'm sure everyone else can think of more examples.
More and more the only hope I ever have of bad laws being fixed is that one day it will go before the Supreme Court. I mean, COPA is a "success story", if you can call it that, but just once I want *Congress* to fix these things. :)
Process, as used in 35USC referred to manufacturing processes not thought processes.
Well, that's the whole question the Court has to decide. The CAFC says the process has to be tied to a particular machine or it has to transform matter. The Supreme Court will decide if they're right.
Today's Sesame Street was brought to you by the number e.
Then I can patent accepting money, goods or other services in payment for other goods or services. We can even patent "profit maximizing"! Truly, this will finally allow people to stop emulating and perfecting business models, allowing me to reign supreme!
Next up, patenting human bodily functions. Everytime you breathe, your heart beats, or you fart, you owe me a quarter.
Isn't that an invention, not a discovery? From Webster:
Perhaps what is really needed is a change to the law which removes the word "discover" and leaves only inventions as patentable.
The real "Libtards" are the Libertarians!
In the Federal Circuit opinion below, they held that a method patent must be tied to a particular "machine" or involve a "transformation" of some physical article. The "transformation" prong of that test left some interesting loopholes open for software patents, because they held that transforming REPRESENTATIONS of physical articles is good enough. When going through old cases, the court noted that a patent for x-ray medical software was okay because the data represented physical objects (i.e. human bones). However, patents for financial systems weren't patentable because dollars and cents aren't tangible articles.
However, the most interesting parts of the Federal Circuit's decision was that they almost completely declined to discuss the "machine" prong of the test at that time. It will be interesting to see what (if anything) the SCOTUS does with this. Specifically, the Federal Circuit said that a patent must be tied to a "particular" machine (so that the method could still be practiced on machines other than the one described). However, we don't really know much about what constitutes a "particular" machine. Up until Bilski, the Federal Circuit relied on "In Re Alappat"... which held that loading particular software onto a "general purpose" MAKES it a "particular" computer. The Bilski holding said that Alappat was now reversed... but in the discussion, they only talk about how other parts of that case were wrong.
So, is a general purpose computer "particular" enough when loaded with specific software, or not? That would be a very interesting question for the SCOTUS to answer.
Just as an aside... I know this is blasphemy on Slashdot, but not ALL method patents are bad. Method patents traditionally cover things like industrial processes and medical testing, things that actually do require innovation and/or substantial investment in FDA approval. The trick is in writing a rule that filters out crap from patents that actually do make public policy sense. It's harder than you might think to come up with a blanket rule that threads this needle.
"A method for collapsing the US Economy finally and utterly causing U.S. territories to plunge into war."
Does the RIAA have a patent on their model?
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
I laugh every time I read this absurd argument. Patents are not about promoting innovation, they are about protecting intellectual property, even if that term is far younger than the patent concept. They are about creating a limited time micro-monopoly in order to stifle competition.
Patents aren't bad, but they have been allowed to get out of hand (Bezos, I'm looking at you). Business method, software, and DNA patents are abuses of the patent concept. Furthermore, the pace of technological advancement is faster now than it ever has been, and will only get faster; patent duration must be shortened appropriately.
Similarly to another /.-er's fantasy, I imagine the world when *I* become an overlord and hire my own army of clowns to would slap politicians who say things like:
"Promoting innovation" - SLAP!
"For the sake of the children!" - SLAP!
"Free markets" "The GNP" - SLAP
"It's the Jews" "It's the communists" "It's the Arabs" "It's teh tehrorists!" - SLAP!
"For your safety" - SLAP, KICK, SLAP!
Thanks, Bozo, I needed that.
So, is a general purpose computer "particular" enough when loaded with specific software, or not? That would be a very interesting question for the SCOTUS to answer.
Logically one would think a general purpose computer would become "particular" enough when the loaded software made it only suitable for the specific task. In other words, a dedicated mp3 playing machine would be particular because it is designed for only the purpose of playing mp3s.
Time is what keeps everything from happening all at once.
You want to patent something, go invent a machine. Leave abstract concepts, math, my DNA, the way in which a window opens on my computer and the like the hell out of it.
I think a key difference between a software and a non-software patent should be a test to the effect: Can this be implemented with any computer purchased at the local Buy More? If the patent application can be implemented with commodity, off-the-shelf components, then the unique element in the patent must be software. If the unique element is software, then the patent is a software patent. The nice thing about the commodity, off-the-shelf component test, is that it extends nicely into business method patents. If the patent optimizes the method of exchanging sheets of paper in an office, then it quickly becomes obvious when someone is trying to patent something very abstract.
Now someone could claim that the combination of hardware mentioned in the patent is somehow special. I don't care about this. As long as the patent doesn't disallow large sections of software running on essentially any old hardware, then the author may have a valid hardware patent.
Unfortunately, I'm not a lawyer, and as such my opinion is worthless. Still I can hope the Supreme Court agrees with me.
I guess that would depend on the meaning of process in context. I mean if you take the general definition of process:
1. a systematic series of actions directed to some end: to devise a process for homogenizing milk.
2. a continuous action, operation, or series of changes taking place in a definite manner: the process of decay.
(+ a few more)
If that's the definition you could patent basicly anything, you don't even have to do it to patent it. I can patent doing a 1080 degree spin triple summersault and if any olympic diver manages one they own me royalties. Or for violating my pickup line patent when trying to score with a girl. A general "process" patent is madness.
Live today, because you never know what tomorrow brings
If the variety of rubber in question already exists and can be manufactured by some other means, but the patent claimant has devised a different method of synthesizing that rubber, then I'd classify that as a discovery, not an invention.
Virtue finds and chooses the mean.
Aristotle, Ethica Nichomachea
Let me know when you're ready to start construction.
She tends to side with the big IP holders.
Hmm, still not convinced. I still believe business method patents are bad for society. IP in general stifles innovation. It practically removes any possibility of incremental improvement in other people's work. No matter how hard you try, it is impossible to own an idea. I hope the court rules against it, and perhaps it could eventually land a real blow to the whole concept of intellectual property.
In that case, the rubber itself could not be patented, since it obviously had already been invented (or discovered, if it occurs naturally), but the new method of synthesizing the rubber could be patented. I would guess that this is what is meant in the law by "process"- a new process to create/manufacture some material or machine, not a method of conducting business that doesn't really involve creating any new material or device.
That "gene patent" case that the ACLU is pursuing deals with a method for isolating certain genes from anybody's DNA for the purpose of testing for cancer. It's no different than a medical test for checking a blood sample for chemical markers that indicate certain diseases... nobody's "patenting your blood" there either. Method patents make sense in these contexts because the costs of FDA approval for such medical tests can run into the hundreds of millions of dollars, so without patents nobody would develop such tests and we would lack early diagnosis for those diseases.
The ACLU case is all about using a catchy (yet misleading) slogan for purposes of publicity and fundraising.
Process, as used in 35USC referred to manufacturing processes not thought processes.
Citation please.
And the Federal Circuit also ruled the Bilski patent to be unpatentable but explicity said that software patents should still be patentable. SCOTUS will likely affirm. The main question is whether the Court will also affirm the "machine or transformation" test for process patents that the Federal Circuit used, which, by the way, came from a Supreme Court case.
For your convenience:
The Supreme Court, however, has enunciated a definitive test to determine whether a process claim is tailored narrowly enough to encompass only a particular application [**24] of a fundamental principle rather than to pre-empt the principle itself. A claimed process is surely patent-eligible under  101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. See Benson, 409 U.S. at 70 ("Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines."); Diehr, 450 U.S. at 192 (holding that use of mathematical formula in process "transforming or reducing an article to a different state or thing" constitutes patent-eligible subject matter); see also Flook, 437 U.S. at 589 n.9 ("An argument can be made [that the Supreme] Court has only recognized a process as within the statutory definition when it either was tied to a particular apparatus or operated to change materials to a 'different state or thing'"); Cochrane v. Deener, 94 U.S. 780, 788, 24 L. Ed. 139, 1877 Dec. Comm'r Pat. 242 (1876) ("A process is . . . an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing."). 7 A claimed process involving a fundamental principle that uses a particular machine or [**25] apparatus would not pre-empt uses of the principle that do not also use the specified machine or apparatus in the manner claimed. And a claimed process that transforms a particular article to a specified different state or thing by applying a fundamental principle would not pre-empt the use of the principle to transform any other article, to transform the same article but in a manner not covered by the claim, or to do anything other than transform the specified article.
In re Bilski, 545 F.3d 943, 954 (2008)
Do you really believe the SC will leave any shred of the "machine or transformation" test intact? Before in re Bilski, this test had never been heard of before. It has no basis in statute, prior SC decisions, or prior Federal Circuit decisions.
I think it is far more likely that we get a KSR type result, which will completely throw out the newly created "machine or transformation" test and restore the previous test which is based on an actual statute that Congress actually wrote.
Whether or not the Bilski patent will survive or not, I have no idea. But I think the "machine or transformation" test is dead dead dead.
Proponents say they are key to promoting innovation
Wait, wait, wait, wait, WAIT!
We're gonna promote innovation of business practices by restricting their application? Last I checked, a successful business practice is its own reward. If these proponents are gonna make this argument, they need to be slapped down with the fact that at least in this case, the only reasonable conclusion derivable from that premise is that this type of patent should be forbidden.
Additive identity, multiplicative cancellation, distributive multiplication over addition: pick any two (unless 1 = 0)
True, but I haven't heard anybody argue that process statutes are unconstitutional.
You have now. This is the blurb from Article I, Section 8 of the Constitution of These United States of America:
If you ask me, I don't think the Founding Fathers had "business processes" in mind when they wrote this. Understandably at the writing of the Constitution, there were no audio recordings or video recordings or computer software. But business processes did exist, and if the intention was to count their creators among "authors and inventors," I should think that they would have done so, don't you?
My blog
For what it's worth, I pretty much agreed with Judge Rader's dissent in the In Re Bilski case. He simply argued that the problem with Bilki's patent wasn't that it was a process, but rather that it was an obvious process in light of prior art. We don't necessarily need sweeping new rules from the courts or the PTO... we simply need patent examiners with a clue. Examiners should have enough subject-matter expertise to spot some of these egregious patent claims that have been publicly practiced for decades or longer.
In that case, the rubber itself could not be patented, since it obviously had already been invented (or discovered, if it occurs naturally), but the new method of synthesizing the rubber could be patented.
Absolutely true.
a new process to create/manufacture some material or machine, not a method of conducting business that doesn't really involve creating any new material or device.
That's what the Supreme Court has agreed to decide.
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Thanks for doing that legwork. Your cut and past proves my statement was correct.
Software patents may (arguably) be patentable, it is not yet settled. But if software are ultimately found to be so it will be because they require a device (computer) and are not a patent of a pure thought process as is business methods.
Sig Battery depleted. Reverting to safe mode.
Is that what you call it when you go into massive debt to pay others to do your work for you?
News flash! This is not a model for a real economy, it's a model for an imaginary one.
Well, you could argue (not that I am) that one invents a useful art in the form of a business process, and could patent their discovery. I'm not saying that that's necessarily right or good, but I could see a solid case made on those grounds.
"You can either have software quality or you can have pointer arithmetic, but you cannot have both at the same time."
Because if I think of a better way of running my business, I won't implement it unless the government gives me a patent. I'll just stand here, stamping my little feet, holding my breath until I turn blue. And someone else will use the idea.
Have gnu, will travel.
and in one voice, black white and mexicowan get together and as the new confederate battle flag is raised...
Oh really?
"All great wisdom is contained in .signature files"
I agree that it is difficult to write a general rule to determine if a method patent should be granted, but in today's technological world there is a big difference between the concept of performing an action and implementing that action. Myriad's patent of the BRCA genes is a perfect example. It is fine to grant them a patent on a METHOD for detecting a mutation in the target gene but ridiculous to say that they should hold the rights to all methods that could possibly perform the same function (even if that method has yet to be invented). To me that is like someone discovering the internal combustion engine and being granted a patent for any process that turns fossil fuels into energy.
Like what though? There isn't one thats possible to legally have. Over the course of many years there isn't a single business practice that hasn't had prior art thats useful.
Taxation is legalized theft, no more, no less.
Maybe we must simply accept that some forms of innovation cannot be encouraged in this manner, due to the amount of stagnation this manner simultaneously spawns.
I wonder if "think of the economy!" will find itself alongside the well-worn excuses "think of the children!" and "think of the terrorists!" for ramming broken laws through.
One part of this I always choke on is the "tied to a particular machine or apparatus" test. The software patents I have been involved with throw stupid, irrelevant descriptions of computers, CPUs, and RAM at the patents to make it look like the software is tied to a machine. But they are about software running on general purpose hardware or operating systems, and not special, purpose-built machines designed to run the process under question. The math could be done by a human -- perhaps slowly, and not as accurately, but it could still be done. A PC is a general purpose machine that can do many things, not just the one thing listed in the patent.
The other test is if it "transforms a particular article into a different state or thing." A number is not an article, so computing a new number (changing it into a different state) doesn't count, and I think that was one of the reasons Bilski was rejected. The Bilski decision cites Diamond v. Diehr, Flook, and Gottschalk v. Benson saying "Specifically, the Court has held that a claim is not a patent-eligible "process" if it claims "laws of nature, natural phenomena, [or] abstract ideas." Bilski, encryption, and just about all software patents are attempts to protect abstract ideas.
The way Diehr is written is that the algorithm is protected only as a part of all the claims taken together: they could patent using the Arrhenius equation as a step of curing rubber only in conjunction with all of the other steps. But Diehr qualifies in that it transforms a particular article into another state (raw rubber into cured rubber.) Bilski is trying to transform risky investments into less-risky investments, and that was rejected by the court because "risk" didn't qualify as a tangible article. Are blinking pixels on a screen a more "tangible article"? Can you really claim that blinking them one way is patentable if there are a trillion other ways of blinking them to achieve the same results?
John
I personally believe that a "specific machine" should contain some patentable element in hardware. I.E. they put some novel piece of hardware in it that's essential to its function.
Anyhow, I know about the craziness over when is a transformation "real" and I wish they could find a better way to do that.
Actually, it might just be simpler if Congress just passed a law saying that computer software is not patentable. I know that that opens up a can of worms in and of itself, but I think that they should think of it this way: if you ignore all the claims talking about software, would the things its doing still be patentable? If so, you can have the patent. But it doesn't cover software. So I have to duplicate some other part of the things claimed in the patent in order to infringe.
But I bet clever enough lawyers would find some crazy way to complicate that.
So, is a general purpose computer "particular" enough when loaded with specific software, or not?
Well I don't know how the justices will choose to interpret the matter, but if I were hearing this case then I would have to say that "no, it is not" for the following reason:
If a particular program is loaded onto a "general purpose" machine, a computer in this case, thereby rendering it fit for a particular purpose that does NOT foreclose the possibility that one may install any number of additional programs with separate purposes on the same computer, up to the limits of the storage device, such that some combination of programs, subject to processing constraints, can be executed simultaneously. If the "general purpose" machine (i.e. the computer) remains capable of executing additional and arbitrary tasks depending upon what additional software is loaded then I would have to say that the computer remains "general purpose" even after software has been loaded. Thus the computer is never, by itself, rendered "particular" enough by loading any one program or even combination of programs since more, subject to the aforementioned constraints, could still be added. It would be necessary to have the computer controlling some external physical device which was NOT "general purpose" in order to qualify for patent protection and even then it would only protect the use of the specific external device in combination with the computer as part of the process but neither, by itself, the computer nor any software running on it.
The court has specifically recognized cases where somebody made a new process to manufacture something that was already manufacturable by an older process. For example, Aspirin was recognized as a pre-existing synthetic under U. S. law, but the court ruled that the newer process for making it was novel, because it produced a medically pure compound at a cost that made it of widespread utility, while the older process produced a compound that required costly steps to eliminate contaminants. The court recognized it therefore as a new invention.
Who is John Cabal?
[NOTE: If you need to google KSR, CAFC and section 101 before you respond to this post, that's a good clue that you're fighting a battle you don't understand]
This is teh Intarweb, since when do you have to know what you are talking about to share your opinion?
HA! I just wasted some of your bandwidth with a frivolous sig!
Hear! Hear!
We may not always agree between us, but in this case:
Right Fscking On, Bro!
I was irrevocably hooked here:
...and then when its done we'll have us a real nice BBQ with Memphis sauce on Texas steer, wash it down with Tennessee sipping whiskey, and relax afterwards with some good Arkansas pot or a nice Virginia ceegar.
It don't get any better than that!
Yeah, that's my observation also.
Damn Yankees keeping their heads in the past.
Over the past several/three decades, the "Stars and Bars" have evolved to represent the individual State's rights trumping Federal abuses of State's rights...it's no longer tied strictly[YMMV] to the Confederate States of America, and all that the Confederacy stood for in the 1860's.
It's a whole new world out there, and the South has adapted/adopted.[hint:research Huntsville, AL; Houston, TX, etc.some of the 'highest of the high-tech' centers/research/manufacturing is in the 'good old South':
researched, managed, manufactured, launched, controlled, put into Space, do 'the job'[latest is to repair/upgrade Hubble!], return to Earth, and pickup better than taxi service in NYC!]
I've lived and worked in yankee territory, but am glad to be back out of their traditional areas.
P.S. NYC and 'Regular' coffee, WTF!!??!!??!
'Regular coffee' should be just plain coffee!!
Lay off of the cream/milk and sugar. If I want that in in my coffee, I will elaborate:
me:"coffee, any Ethiopian blend', Hot!"
coffeemaker/marketer:
'Regular, or 'Black'?
me:'WTF?!?!?!? I want just plain fscking coffee, you moron!!
coffeemaker/marketer:'Is that a 'Plain Black Ethiopian Blend', with or without the moron, cream, and sugar?
me: 'Uhm....nevermind.
BTW, do you have aa 'restroom' I can use?
I may be a 'Down South Redneck', but I also have an I.Q. of 173[for whatever little that is worth], and several Degrees(A.A.S. in Veterinary Technology...think Registered Nurse/Physician's Assistant for 'critters', and a B.S. in Biochemistry, with a strong physics background from interests and hobbies.
But it's a handy, if inaccurate Strawman for the damn yankees to throw out as FUD.
*Hey, Y'all, watch this!!!*
MuwHaHaHaHaaHeeHeeHooHooHooBbbBBWWHHaaHhHAAAAAhAAAAAahAAAAaaaah*
Or, something stupid. [note: it 'looks like' gogole is trying to 'parse' this
Down With Slashdot BETA!!! I've been around the corner and seen the oliphant; you can only abuse me from your perspecti
>>(yes, I'm aware of gene patents. The theory there is that they don't occur in their isolated state in nature)
therefore they should be only patentable in the isolated state - patenting a gene in order to use it as a part of a genome is simply wrong, because it did exist in such a genome before. It's like I patented silica that appears in naturally-occurring minerals.
45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
>>...not ALL method patents are bad...
Hmm, still not convinced. I still believe business method patents are bad for society.
Your "objection" doesn't actually conflict with what he said. He basically said "Not all cars are bad", and you basically replied that you "still believe Humvees are bad". (I first wrote dogs and PitBulls, but changed it to a car analogy :)
Before all of this business methods patent crap and software patents crap, a "process patent" meant an industrial process that physically transformed a physical object to a different state or thing. A physical process to refine ore into metal, a physical process transform graphite into diamonds. You got a patent for inventing a new physical object, or a new physical process for materially transforming a physical object.
As far back as 1876 in Cochrane v. Deener the US Supreme Court defined a process patent as:
an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing.
US Supreme Court Gottschalk v. Benson 1972:
Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines.
The latest Supreme Court patent ruling was 1981 Diamond v. Diehr, which directly quoted and reaffirmed that line above from Gottschalk v. Benson. Diamond v. Diehr also specifically WARNS that "insignificant post-solution activity will not transform an unpatentable principle into a patentable process. To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection.".
In Parker v Flook 1977 the Supreme Court stated Whether the algorithm was in fact known or unknown at the time of the claimed invention, as one of the 'basic tools of scientific and technological work,' it is treated as though it were a familiar part of the prior art.". For patent purposes, no possible algorithm can ever qualify as novel, no possible algorithm can ever qualify as nonobvious. Software itself is nothing but pure algorithm, no possible software can ever qualify as patent-novel or patent-nonobvious.
The idea that "process patents" somehow could be extended to anything other than physical processes is exactly where patent law went insane. In the twenty-odd years that the Supreme Court as neglected to oversee this field, the lower courts have gone wildly and flagrantly in violation of those Supreme Court rulings. A "business method patent" is not validly a process patent. A "software patent" is not validly a process patent.
I am thrilled to see the Supreme Court finally taking up the issue, however I wish it were a slightly different case. The nature of this particular case is such that the Supreme Court could very easily toss out this patent on narrow grounds, without adequately addressing and reiterating the above Supreme Court quotes, failing to address the thousands and thousands of other business method and software patents that have been issued over the last several years.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
That would mean any step by step procedure could be patented, like, a way of moving your body (all dances, all choreography) or any progression of 4 (say) or more notes.
It also means that a piece of an argument, if it was useful, used by a teacher or author (or lawyer) could be patented. If it's an identifiable part of a process, then it's fair game.
Of course, IP lawyers never consider what their world would be like if the laws that they force down other people's throats were applied to THEIR industry because, he he, they dont' have to- no IP lawyer is going to destroy his/her own career that way.
But by decontextualizing your quote, you achieve your end- to distort the overall intention of the original authors. That original intention, as articulated by them and not you is to promote advancement in the useful arts and sciences. As soon as IP law and patents cease providing society that service, and start to work against society, the basis of their legitimacy is gone. In other words, they must first and foremost pass THAT test, before being considered for protection from the state.
Software patents and Bowel Movement, er I mean Business Method patents started failing that test a long time ago, according to the vast vast vast majority of professionals in the field.
KSR v. Teleflex: Supreme Court's ruling which expanded the scope of 35 USC 103, the statute controlling the obviousness standard in patents.
Specifically, the KSR expanded the Teaching, Standard, & Motivation Test adopted by the CAFC to include other possible avenues by which statutory obviousness may be shown.
CAFC: Court of Appeals for the Federal Circuit. Significant because they are the court of appeals on cases of patent law(the pipeline to the supreme court goes up through them) For the periods where SCOTUS review of their decisions were scant, their rulings effectively dictated the courses of patent law for many years.
101: 35 USC 101, details the statutory classes of inventions that are patentable. i.e. this is the class which dictates whether something (a living organism, genetic code, software) is patentable or not.
One part of this I always choke on is the "tied to a particular machine or apparatus" test. The software patents I have been involved with throw stupid, irrelevant descriptions of computers, CPUs, and RAM at the patents to make it look like the software is tied to a machine. But they are about software running on general purpose hardware or operating systems, and not special, purpose-built machines designed to run the process under question. The math could be done by a human -- perhaps slowly, and not as accurately, but it could still be done. A PC is a general purpose machine that can do many things, not just the one thing listed in the patent.
Even if you take the most special, purpose-built machine designed to run a piece of software, the math could still be done by a human. The USPTO's position is that "process running on a general purpose machine" is not patentable, but "process running on a specially configured machine" is patentable... but they haven't figured out what the difference is. If you install OSX on a machine, it can't run .EXEs. Is it no longer general purpose? Likewise, if you install Windows, you can't run .APP files.
More importantly, if you have software doing process A, a machine that doesn't have that software installed can't perform process A. Only a "specific machine" with software A installed could perform it.
It's a really weak definition, honestly. Hopefully, that's what SCOTUS will clarify.
Can you really claim that blinking them one way is patentable if there are a trillion other ways of blinking them to achieve the same results?
Sure - nothing in the patent statutes say you have to invent the only solution for a particular problem.
trying to label what's being done with pretty technical termage does not change the fact that they are patenting LOGIC processes. they are basically patenting THOUGHT. anyone attempting as such should be penalized for overloading the patent machine.
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Like what though? There isn't one thats possible to legally have. Over the course of many years there isn't a single business practice that hasn't had prior art thats useful.
Wait, what are you trying to argue: that business practices aren't useful; or that there's been prior art for every single business practice?
I wish the court would take up the issue of companies that exist solely to buy up other people's patents and enforce them in court. Companies like Acacia are nothing more than groups of lawyers committing legal extortion.
I'll bet that almost any business method has been in use in various forms for eons. Unusual methods of marketing have been around when people were building the pyramids. Dressing up ancient concepts in shiny new clothes does not make these ideas new or patent worthy.
Minerals also do not occur in isolated states in nature. Look at gold as an example. You have to crush a lot of rock to get an ounce or two of gold as a rule.
Thanks for the info and for pointing to specific cases, that is definitely helpful. Like you said, I hope they don't just focus on the narrow issue and ignore the larger context.
My question is, even if you have an an act, or a series of acts, how does that not qualify as a form of IP? It may be physical property you are transforming, but isn't the process itself is still pure knowledge? Doesn't that say only one person would be allowed to have the knowledge of making steel from a base metal? Would someone else be stopped from using their own property to figure out a similar process to make a similar end product?
http://slashdot.org/comments.pl?sid=1252871&cid=28178061
Any guest worker system is indistinguishable from indentured servitude.
Except that the founding fathers didn't envision a machine that would perform tasks as instructed through a given process (certainly not on the level of complexity that modern computers would do). A new and innovative process (algorithm) is itself a scientific discovery (as evidenced by the fact that they are published in dedicated scientific journals). They are certainly "useful". And allowing mathematicians to negotiate the product of their labor would promote abstract research into useful subjects more than having them rely on hand outs (aka grants). So there. The standard is completely fulfilled.
Any guest worker system is indistinguishable from indentured servitude.
Just in case you don't know the uproar started with programmers being ticked off by RSA getting a patent on their algorithm. Because programmers until then essentially thought they had the right to implement any algorithm they could understand. I seriously doubt that RSA existed since Pyramid time in any form.
Any guest worker system is indistinguishable from indentured servitude.
Whether prior art exists or not isn't the issue. It's whether you can find examples of it.
"You can either have software quality or you can have pointer arithmetic, but you cannot have both at the same time."
A majority of people who voted in the Prop 8 referendum voted for it. That is NOT the same as a majority of voters (e.g., all people who can vote)
Prop 8 was actually passed by ~36% of eligible voters. The CA amendment process is borked. A constitution should *never* be amendable by a minority of possible voters. That's just nuts, regardless of the subject matter.
Note that amendments to the federal constitution must be passed by majorities of all *possible* voters not just ones who bother to actually vote. Not voting = No.
If you apply for a patent on gold purified from ore, section 101 will not be what holds you back from getting a patent. It will be section 102.
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My rights outweigh your ability to make profit.
Enjoy!
Ownership has nothing to do with profit. To own something is to have the right to reject others its use. And my ideas are mine to own. If you don't agree before hand that you won't steal them, you won't even get a peak at them. You get to be limited by the ideas in which people are not personally invested -- the ideas that they share out of something akin to charity. The best of our minds you will never see. You don't own my ideas any more than you own my body. And your "right" to steal gives me every right to not tell that there is something to be stolen. Enjoy.
Any guest worker system is indistinguishable from indentured servitude.
the process itself is still pure knowledge?
Well, obviously knowing the steps is pure knowledge, but you can't infringe any patent based on mere knowledge. In fact the patent system required the public publication of that knowledge. It's the act of preforming that physical process that is patented. You can know how to transform coal into diamonds and you can give people the instructions for turning coal into diamonds, but it is patent infringement to engage in the act of commercially turning coal into diamonds. There are some exceptions and limits or where it's not infringing.... you can experiment with the process and probably some "non-commercial" activities, but I don't know the exact rules on that.
Would someone else be stopped from using their own property to figure out a similar process to make a similar end product?
Part of the idea behind patents is to encourage exactly that. The patent holder must publish their process, patent law explicitly allows experimentation with that process, and it is considered a Good Thing if you find some way to work around his patent by coming up with a new process to make the identical end product. And you can then patent that new process and go into competing business selling that identical end product (assuming the end product itself is "refined metal" or "diamonds" and not itself a patented inventable-object).
I think your question there is pretty much due to the software patent mess. Software patents are so fuxored that they essentially become process patents on any possible means of reaching the "end product". Process patents are not supposed to do that. A classic example of a normal process patent was the 1800's Hall Process for producing aluminum (aluminum was actually more expensive than gold before the Hall Process was discovered). Such a patent does not cover the end product at all. Other people could still make and sell aluminum, they just had to find a different way to extract solid aluminum from mineral ore. Essentially 100% of all aluminum today is produced by the Hall Process, and obviously that patent expired a long time ago.
I certainly agree that patents in general are an artificial restriction created by laws... the whole "To Promote progress and the Useful Arts" thing... and I certainly agree that patents in general carry a number of costs and cause some problems... but they don't seem TOO bad so long as they are properly restricted to non-obvious physical objects and novel non-obvious physical processes. My main focus is the insanity that has developed with the notion patents for non-physical "inventions" like software patents and business method. And while genes are at least physical, similar insane bending and expansion of standard patent rules has been going on there too.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.