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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."
I'm confident the interests of the American people will be of the highest priority during deliberations.
[maniacal laughter followed by gentle sobbing]
There's a business method patent called: Proofreading Using a Computer.
U.S Economy collapses finally and utterly, U.S. defederates, patent system abolished, though that is incidental as former U.S. territories plunge into interstate war, americans arrogantly call it WWIII despite the non-involvement and borderline non-interest of most of Europe and Asia. Afterward, religious kooks rule the depopulated midwest, supplied with arms by east and west coasters to fight a proxy war.
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.
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]
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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.
And while this happens we southerners just quietly build a Berlin style wall at the Mason/Dixon and in one voice, black white and mexicowan get together and as the new confederate battle flag is raised on high say "You damned yankees stay the hell off our lawns!".
ACs don't waste your time replying, your posts are never seen by me.
[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]
Ha, joke's on you! Thanks to Microsoft, I only had to Bing them! So with that out of the way, U R WRNG.
Anyway, I remember reading on /. about the case that raised the bar for obviousness... And ATT v MS where a Justice said out loud that the court had never held software to be patentable before... So I was very hopeful reading this headline. Thanks for more hope!
The enemies of Democracy are
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. :)
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.
Yes, but there's a new patent for doing it on submissions sent OVER THE INTERNET.
Live today, because you never know what tomorrow brings
Welp... no prior art here.
OMG!!! Ponies!!!
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.
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
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.
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
>>...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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