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Supreme Court Review of Bilski Heats Up
I Don't Believe in Imaginary Property writes "The Supreme Court's review of In Re Bilski (discussed here numerous times) is heating up, having attracted no less than 44 friend-of-the-court briefs from almost everyone with a stake in the patent system. Patently-O provides a nice summary of who is arguing against Bilski. The two questions before the Supreme Court are whether or not a process must satisfy the particular machine or transformation test, and whether this test improperly excludes many business methods in spite of the wording of 35 U.S.C. 273, which specifically allows business-method patents. So far, the case has attracted legal filings from nearly every large company or group whose patents might be threatened. You can read briefs from Yahoo, IBM, Borland, Dolby Labs, the BSA, and many others, even one from some guy claiming to speak on behalf of the State of Oregon."
I'm documenting this here: swpat.org/wiki/Bilski. All help appreciated.
Please help publicise swpat.org - the software patents wiki
who's the enemy of innovation, open source, new participative pluralist internet culture and freedom, and who is a friend.
the verdict of the masses are silent, but irreversible. and no court can make innumerable developers who can make or break a new web/it tech your friend by force.
Read radical news here
As techies ./-ers would expect an outcome that reflects logic and reason. Remember, of the scum-sucking leaches that are lawyers the supreme court represents the elite.
Better to be a forum troll, than a patent-troll any day of the week.
Hope is the currency of fools
The office has been sending out quite a few 101 rejections based on the district courts decision. This is something that both the Office and the Bar want clearly resolved as the Bar has been very creative in the past few years in claiming what is essentially software only claims.
Bring back the old version of slashdot.
I think the brief submitted by Mark Lemley et. al sums up my opinion the best.
The distinction on patentable subject matter should be based on the distinction between applied and abstract inventions.
It doesn't get much simpler than that in my mind. If you are patenting an applied method, applied algorithm (read: implementation), applied design (blueprints or machines) etc. then sure, you should be able to patent it. Barring prior art, public domain, etc.
But if all you have is an idea, too bad- do something with it.
I guess the thing that surprised me was, when I was taught about patents back in high school that is essentially what they told me the criteria was all along. Then I grew up & found out how twisted it really is, and then IP and software patents got into the mix, and because the politicians & courts had no clue what they were talking about, managed to hose the whole thing.
35 U.S.C. 273 refers to business method patents but *does not* specifically allow them. Whether 35 U.S.C. 273 approves of business method patents implicitly is left as an exercise for lawyers writing supreme court briefs...
The 44 amicus curiae briefs that have been filed so far are only those submitted in support of the Petitioners (i.e., the inventors Bilski and Warsaw) or in support of neither party. Amicus briefs in support of the Respondent (i.e., the Patent Office) will be submitted after the Respondent's merits brief is submitted, which will occur on or before September 25. Once the merits brief is submitted, amici have 7 days to submit briefs in support of the Respondent.
While I don't expect there to be quite the same volume of briefs supporting the PTO as the Petitioner, there will probably be at least a few.
Here is the the Supreme Court docket for the case.
Full Disclosure: I work for the team that wrote the brief of Dr. Ananda Chakrabarty (he of the Diamond v. Chakrabarty Supreme Court case that established the patentability of genetically modified organisms).
FYI -- the Bilski patent application is not considered a "software" patent application. Instead, it is considered a pure "business method" (i.e., a method of performing some business-related task that it not necessarily tied to any specific hardware, e.g., a computer).
If the Supreme Court strikes down the patent under 101, this particlar fact pattern and the resultant decision will not necessarily lead to the death of software patents. However, if the Supreme Court determines that that Bilski patent application is patent eligible, then software will be patentable unless Congress eliminates software patents by law. The reason for this is that pure business methods are considered closer to "abstract ideas," which are not patentable, than software patents since software is always used on a machine (i.e., a computer).
The whole case could turn on the 35 U.S.C. 273 issue. The Supreme Court can rely on some very technical rationale for deciding a case, and one of these is called "statutory construction." One such rule is that a statute will be interpreted so as to be internally consistent such that a particular section of the statute shall not be divorced from the rest of the act. 35 U.S.C. 273 refers to a defences to infringement with regard to business methods. It would appear to be internally inconsistent to have a "business method" be nonstatutory under 35 U.S.C. 101 while still provide a defense for someone infringing a business method. If one cannot patent a business method, then one cannot infringe a business method. If one cannot infringe a business method, there is no need for a defense against infringement.
her ex-husband is a patent lawyer. (Not a joke, look it up. His name is Kevin Noonan.)
..... Software is NOT a patentable subject matter
Imagine some simple algebraic calculation being patentable because the base math numerical system being used is the roman numeral system, which is not simply and directly capable of doing such a calculation.
Now Imagine when software patents will be look back on in hindsight of a corrected navigational mapping software development system.
How are those supporting software patents today, going to be viewed tomorrow? As barbaric?
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
Can someone please tell me how software patents are promoting the progress of science/useful arts? There are -many- countries who don't have software patents yet software still comes out of those countries.
There is not a positive thing that has come out of software patents. The quality of software hasn't improved, patent trolls are numerous, oh and because of software patents there are many incompatibilities in software that lead to many, many problems.
Taxation is legalized theft, no more, no less.
I'd rather see submarine patents be got rid of or patent transferability restricted to get rid of the patent trolls and the "patent holding companies".
At least people who come up with these processes, come up with something. The trolls are just in the business of collecting patents and wait for their chance to cash in.
Suppose someone invents a new mechanical device and patents it. The patentee can now prevent everyone else from making a business out of making, using, selling, offering to sell, or importing the patented device. In that sense, all patents declare ownership over a new business process. Business method patents are just applied economics in the same way that mechanical device patents are applied physics.
The huge diference is that you cannot use a TRIVIAL mechanical process and patent it, or even use that patent to leverage money against ESTABLISHED other mechanical industry (Otherwise your mechanical device would not be an innovation but a copy of existing mechanical device). And this is the contention here : A lot of those business process patent are either trivial, already in use for decenny, copy of something existing but-with-computer or just plain mathematical application. You do not have such a problem with mechanical device patent.
C. Sagan : A demon haunted world:
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In theory, there is no difference between theory and practice. But, in practice, there is. -- Jan L. A. van de Snepscheut
A Turing machine is a form of thought experiment with utility in many aspects of information science and mathematics. It was never intended as a platform to prove algorithms. That it has uses for algorithms is part of the proof of its general utility - which in the modern day goes far beyond afield of computer science. Typically algorithms are expressed not as Turing Machine code but in a format similar to a mathematical proof, in an actual programming language or as something called "abstract code" which has similarities to actual programming languages but without the distractions of implementation details.
The assumption that a pure algorithm must use a Turing machine as a standard platform is revealed as an error in this way: Turing machines have not only infinite storage, but infinite performance - the time to perform operations is not important to the operation of a Turing machine. For algorithms though efficiency of performance in number of operations, and hence time, is second only (and sometimes not even then) to correctness. Efficient use of resources like memory is an important metric for evaluating fitness of an algorithm. The Turing Machine doesn't consider these metrics because its purpose is not to find fit algorithms, but rather to serve as a generic type of operator for mathematic functions dealing with information.
In his momentous paper "On Computable Numbers, with an Application to the Entscheidungsproblem"[14] (submitted on 28 May 1936), Turing reformulated Kurt Gödel's 1931 results on the limits of proof and computation, replacing Gödel's universal arithmetic-based formal language with what are now called Turing machines, formal and simple devices. He proved that some such machine would be capable of performing any conceivable mathematical problem if it were representable as an algorithm, even if no actual Turing machine would be likely to have practical applications, being much slower than practically realisable alternatives. - op. cit.
Although I agree with both you and the grandparent I feel you've missed some essence of the truth here.
On a completely different note: Determinism has some utility - it doesn't have all utility. Every lawyer and salesman knows that ambiguity can also be a useful tool.
Help stamp out iliturcy.
"Chakrabarty (08-964 Chakrabarty.pdf) Brief by Scott Kieff and Richard Epstein argue that patent rights operate "like a beacon in the dark" to start conversations between innovative entities and potential users."
"like a beacon in the dark . . . leading the gullible across an unmapped minefield, held aloft by cannibals intent staking your crippled body to the ground and eating your remains (with or without your being dead first)." might be a better description there - {G}
Pug
An Invisible Entity of Vast Power whose existence must be taken on faith alone: Liberal Media
Why would the bar want it resolved? The more uncertainty there is, the more lawyers you need to argue about it. Seems to me that a lawyer collective would have a vested interest in making the waters muddier, not clearing things up.
Patents were meant to protect the inventor from someone stealing his/her invention.
Now they're being used by companies that want to increase their earning without increasing their expenses, they do this by killing the competition by abusing the patent law.
What good has ever come from allowing companies to own a patent? They hire inventors, and throw money at building their inventions. Now:
In all honesty, contracts could easily be written such that an inventor binds him-/herself to licensing all invented products while working for the company, to the company, for at least a 15 year period per invention, in return for a monthly paycheck. The actual period could be regulated by a maximum defined in law, probably depending on which market it applies to, to prevent the "for the lifetime of the inventor" loophole.
IOW, the law could simply prescribe that it is illegal for a company to hold a patent, and let the market sort the rest out as a licensing issue. When only an individual person can own what (s)he invented, all of the problems we're seeing goes away, because individual inventors wants to see their invention used for the general benefit of society as much as they want to make a buck.
(As opposed to companies - see second paragraph above.)
Copyright protects Novel ideas. Patents protect the Automatic Author machine that produces Novel ideas.
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
> So what's a business to do? A common thing to do is keep the algorithm a secret and keep the source closed. The public will never learn about the algorithm.
You say that like the "disclosures" in the patent applications are actually usable to anyone but lawyers. They're all written to satisfy statutory requirements and I've yet to see even one software patent that contained any source code (to be fair, I tend to only look at the absurd ones that make the news, but none of the other random patents I've seen were anywhere near useful and I *am* a coder who, theoretically, should benefit from this).
In other words, the actual patents don't do us any good. If their methods are that great, they'll either present academic papers (which is where most of the software innovation--rather than patents on running auction variants that have existed for 800 years, but are now computerized--seem to appear), or they'll write code that other people license from them.
If the "invention" is so obvious that other people are implementing it without even seeing it (which covers the vast majority of patent infringement I've ever seen--believe me, I don't go looking for ideas in patent applications...), I don't honestly think it was deserving of patent protection in the first place.
"Allowing ideas to be patented slows innovation,"
A) You can build on a patent, i.e. innovate
B) After about 20 years* anyone can make it.
The only thing it slows is distribution of the product because the holder can control who can make it. IT doesn't NOT IN ANY WAY prevent new products based on it from being patented.
"Thus patents should protect inventions which require a significant amount of research and development, not ideas.
No, and Yes.
No, it should not protect products based on how much it costs to develop,
Yes, it should not allow for the patent of ideas. This is counter to what patents are for, and undermines there value immensely.
The Kruger Dunning explains most post on
Copyright does not protect ideas. Copyrights protect a particular expression of an idea. Nothing protects ideas themselves.
Stylish sheet to fix many problems in Slashdot's D3: https://gist.github.com/801524
the Bar has been very creative in the past few years in claiming what is essentially software only claims.
Apparently the Constitution's copyright&patent clause has once again been successful in promoting creativity.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
IAA Patent Attorney. From what I've seen, patent examiners use Bilski in the most trivial way. You claim "A method to do X, Y, and Z". Examiner raises a 101 rejection citing Bilski. You change it to "A method to do X, Y, and Z on a computing device". Problem solved. Examiners only want to see some hardware recited in the claim. This machine-or-transformation test is above their pay grade.
The truth is, no one knows what Bilski really means. Neither the PTO nor the bar are going to upset the apple cart on a cryptic decision from the Fed Circuit. Nor should they. Sweeping changes should require an act of Congress.
Meanwhile, Bilski itself was basically a dare to the Supreme Court. Starting with KSR, the Supreme Court slapped the Fed Circ around a few times for making new rules (which is exactly what the Fed Circ was designed to do - develop specialty in patent and admiralty law). The Fed Circ finally threw up their hands in Bilski and said "The old rules make no sense, see what happens?". Now the Supreme Court has to step in and clean up their own mess.
Which isn't to say that KSR or Bilski (Fed Circ) give the wrong result. But the rules to get there were developed 30+ years ago. They're terribly out of date. The rules need to be updated to account for modern technology. Otherwise we'll get far worse decisions in the future.
Anyone else notice in TFA that one of the briefs was filed by:
Austin IP Law Ass'n