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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.
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.
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.
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.
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
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.
Google is your friend.
Sotomayor worked as an intellectual property litigator prior to becoming a judge. However, her record on IP is actually pretty moderate and mixed. She's ruled in favor of copyright holders in a few cases, yet has limited the ability of big corporations to squash cybersquatters. Generally, her opinions have tended to be pretty narrow and focused on the case at hand. No telling where she'll go now that she has the power to decide broader law without being reversed.
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?
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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 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
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?
>>...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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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
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.
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.