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."

Comments

That'd be "Bilski", not Bilsky.

[langelgjm]

It's even spelled correctly elsewhere in the summary. But what else to expect from /. "editor" kdawson?

That's great

[Chandon Seldon]

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.

Re:That's great

[Zordak]

You do realize that this Court will be nearly identical to the one that decided KSR, which raised the bar for obviousness, don't you? And honestly, Bilski was not a well-written decision, even if you agree with the conclusion. In fact, one of the criticisms of Bilski is that it was just a poorly-reasoned knee-jerk reaction to the Supreme Court continuing to smack down on the CAFC. I won't pretend to know exactly how the Supreme Court is going to come down on this, but I guarantee it will not end up with the Supreme Court making section 101 broader than it was pre-Bilski. Still, don't let that get in the way of your complaining.

[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]

Civilised world

[Anonymous Coward]

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?

Re:Civilised world

[AK Marc]

If you need to engage in market conditions that differ to much from the global average then that market becomes a high risk one.

There's a simple reason GM and Chrysler have died (and Ford will declare bankrupcy as well if GM comes out of bankruptcy strong). Protectionism. We've had as much protectionism as possible and not violate every trade agreement signed. We don't standardize crash tests with the world. We don't do emissions with the rest of the world. We don't do lighting requirements with the rest of the world. "We don't have to, we are the US" is the cry from the independent people of the US. And it helped insulate the US market from entrants. We have screwed up CAFE and tariffs on trucks that are so nutty Toyota and others built plants in the US just to get around the protectionism. Yay, we got plants. Oh, but then they weren't in Detroit and put Detroit out of business. Is that a yay or a boo? We do everything we can to not do what any other country on the planet is doing. It's not because we are independent, it's because the Big-3 CEOs paid lots of money to buy Congress and convince them the US way was right, and the rest of the planet was wrong.

So, our non-insulated market with artificial barriers propped up the big-3 about 10-20 years longer than if we has homogonized all vehicle standards with the EU and Japan, but it could only delay the inevitible. The same is true with IP. That's all we have left as a country, and we can delay our collapse by a few years, but we can't stop it. The only thing that would have saved the Big-3 would have been to fire everyone over 40 and start again. They were too much into what market share and profits they thought they were entitled, they forgot they needed to make a product people wanted. Sure, you can blame the unions and such, but there wasn't a union contract that wasn't signed by the big bosses, and they all thought those terms were good. After all, GM can't fail, right? And so goes our IP. We will grasp at that, rather than let it go and compete evenly. But the more we cling to it, the further it drags us under.

Re:Civilised world

[langelgjm]

The same is true with IP. That's all we have left as a country, and we can delay our collapse by a few years, but we can't stop it... After all, GM can't fail, right? And so goes our IP. We will grasp at that, rather than let it go and compete evenly. But the more we cling to it, the further it drags us under.

The problem with that analogy is that IP is not a national industry like the car companies. Because of international agreements like TRIPS, IP is extremely transnational (which in turn is a reflection of the fact that many transnational companies pushed for TRIPS' provisions). Sure, the US benefits greatly from strong IP, because many of our companies sell IP and IP-dependent items around the world. But that's also true of Japan and Western Europe.

Furthermore, up and coming countries like China are going to play the IP game the same way we did - ignore IP when it suits them, and respect it when it no longer suits them to ignore it.

Innovation

[Dracos]

Proponents say they are key to promoting innovation

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.

Promoting innovation

[aaandre]

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.

Re:About time

[Kjella]

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.

Re:About time

[Dragonslicer]

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.

Promote Innovation

[PPH]

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.

O RLY?

[hellfire]

and in one voice, black white and mexicowan get together and as the new confederate battle flag is raised...

Oh really?

Re:What's "general purpose" vs. "particular" machi

[Alsee]

>>...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.

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