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."

Comments

A wiki for Bilski and other swpat issues

[H4x0r Jim Duggan]

I'm documenting this here: swpat.org/wiki/Bilski. All help appreciated.

Re:A wiki for Bilski and other swpat issues

[testadicazzo]

I was always under the impression that patents were to protect novel ideas that were unlikely to be obvious to anyone that was working in the field. This I find acceptable usage of patents!

You have always been mistaken. The purpose of the patent system is to encourage investment into research and development, and thus encourage and promote human progress and invention. Allowing ideas to be patented slows innovation, while allowing the patent of an invention which has required much time, effort, and or money to develop, provides a financial incentive for for R&D, and thus encourages innovation.

Thus patents should protect inventions which require a significant amount of research and development, not ideas. To quote Thomas Jefferson:

It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

If you wish to correct your ignorance, I can suggest the book "Math you can't use" as an excellent text on the subject.

Yeaaa. and we independent developers get to see

[unity100]

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.

USPTO has already been taking Bilski into account

[ProfBooty]

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.

Re:Don't hold your breath

[CorporateSuit]

Better to be a forum troll, than a patent-troll any day of the week.

Yeah, who needs yachts to drive on their oceans of money and naked women when we have strangers getting upset over what we think about Linux distros?

Best quote

[Anonymous Coward]

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.

Re:Best quote

[radtea]

I think the best quote is: a general purpose computer should be considered a "particular machine."

This is the core contention behind the justification of software patents. It incorrectly treats all of the specific coding of any algorithm implementation as irrelevant to the patentable subject-matter, because the algorithm could theoretically be made to run on any Turing architecture.

Anyone who has ever actually implemented an algorithm, much less anyone who has invented one, knows that this is nonsense: algorithms are not implementations, and to be "useful" an algorithm has to be properly implemented in a specific language and, frequently, on a specific machine or limited range of machines, because real computers are not Turing machines. Turing machines don't have interrupts, amongst other things, which is why they are deterministic and mathematically tractable.

Re:Best quote

[slashqwerty]

The Accenture brief states:

Machine or transformation test is not a reliable indicator of anything relevant. The standard for patentability should usefulness as set forth in the Constitution, in the patent statute, and by the Court.

But this ignores the constitutional requirement that it promote progress:

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;

Teles AG says:

Further, the global nature of todays economy strongly recommends that the United States patent system be harmonized with robust patent systems of other nations wherever possible.

This is the same argument used in favor of the Sony Bono Copyright Term Extension Act yet at the time the United States was one of very few nations to actually extend copyright to such a length. In this case the U.S. is one of very few nations to support software patents.

Re:Best quote

[jedidiah]

> It is not obvious that business method patents hinder the progress of the useful arts

You declare ownership of a new business process. Because of this you can prevent
EVERYONE ELSE WHO DOES BUSINESS from benefiting from that new process. Alternately
you can FORCE EVERYONE to waste money licensing your process. Alternately, companies
lose the motivation to innovate because they might be sued by some jerk like you.

Every patent allows the patent owner to cause trouble for everyone else for the next 17 years.

It's far better that Dell can't patent build to order rather than being prevented from
inventing it in the first place because a bunch of bogus process patents choked him when
he was a startup.

Software patents are a clear counterexample to your rubbish idea that the other side
of the argument is just making empty claims.

Patents exist to encourage inventors to disclose useful information, not to enable large
corporations to be bridge trolls.

The most frightening idea in all of those amicus briefs is the idea that medical procedures
might be patented. That's about the most horrific and destructive idea you could possibly
come up with. Doctors invent because they take their oath to Hypocrates seriously, not because
they identify with Crassius Maximus.

Re:Best quote

[Antique Geekmeister]

A general tool of almost any kind, used in a different way, is _not patentable_. It's using the tool for what it was designed for, it does not change the physical construction of the machine nor its number of parts nor its general capabilities.

The "actually implemented algorithm" is protected in its specific implementation by copyright, and should not receive the double protection of patent law against writing similar algorithms.

Re:Best quote

[Theaetetus]

A general tool of almost any kind, used in a different way, is _not patentable_.

A hammer isn't patentable? Of course it is. What you're quibbling over - and why this is going to the Supreme Court - is the definition of a "general tool". Is a hammer a general tool, or a specific tool? It can't be used to screw in screws... So, is a screwdriver a general, or a specific tool? Well, it can't be used to hammer in nails... at least not well. Finally, is a computer a general, or a specific tool? It's not very good at hammering or screwing, after all.

I realize this is all semantic bullshiat, but when the original Bilski case said that an algorithm tied to a specific machine is patentable, while one tied to a general machine isn't, you're purely in the semantic bullshiat area.

My take:

The point of this whole argument is to say that we don't want to make algorithms patentable. Specifically, we don't want someone's mental process to be infringement of a patent. If you patented the concept of 2+2=4, then someone reading your patent and understanding that when you add two to two, you get four would be infringing. This is a thoughtcrime, and that's bad. To be more realistic, we similarly don't want it to be an infringement when you read someone's patent on a method of diagnosing a disease and understand the method, or read a patent on a method of running a business and understand the method. Instead, it shouldn't be an infringement until you actually perform the method. But if it only requires mental steps, then understanding it is performing the method...

So that leads us to Bilski: it must be tied to a specific machine. Patenting 2+2=4 makes merely understanding addition a thoughtcrime. However, patenting "using a computer configured to add a first number, equaling two, to a second number, equaling two, to achieve a result, equaling four" could never be infringed by someone thinking through the steps, or even using a pen and paper. It requires a specific machine, so there can be no possibility of a thoughtcrime. You're not patenting the algorithm - you're patenting the computer performing the algorithm. Do it by hand, and you're not infringing. This allows inventors to improve on the design without infringing the patent, and simultaneously allows the inventor to exploit his invention without stifling innovation.

Re:Best quote

[naasking]

Turing machines don't have interrupts, amongst other things, which is why they are deterministic and mathematically tractable.

Just a correction: our computers aren't Turing machines because they have finite memory, not because they have interrupts. Analyzing arbitrary machine code is tractable on a real Turing machine with infinite memory, it's just that any such analysis may not run within the bounds of current computer memories, and even if it could, its runtime or resource consumption may not make the analysis actually useful.

Re:Best quote

[aztektum]

A patent on a hammer is fine. A patent that says I can't use it to hammer things a certain way is bogus. I paid money for the hammer. I should be able to use it how I see fit and share that knowledge unencumbered.

35 U.S.C. 273

[Anonymous Coward]

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...

More amicus briefs to come, probably

[Grond]

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).

Anonymous Coward

[Anonymous Coward]

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.

Re:Don't hold your breath

[hairyfeet]

Or as my dad says

" Son, there is no point in being a racist. Most folks are total assholes and will happily give you a reason to hate them personally!"

And I have found no truer words were ever spoken.

Re:Please tell me...

[jedidiah]

> Say an inventor comes up with a brilliant new algorithm for efficiently and accurately modeling
> fluids on a computer. There are many possible applications: computer graphics, weather simulation,
> etc. The inventor would like to maximize his or her profit from the invention.

This presumes that the crass entrepeneur is the driver of innovation in software.

Usually it's the exact opposite sort of person that drives software or scientific innovation. The
current patent regime threatens to mire this sort of person in a quagmire of pre-existing and largely
trivial patents. Even if this person were a genuine entrepenuer they would have to deal with the legal
minefield of patents and quite likely would be in a very weak position to deal with hostile potential
competitors with large patent portfolios to club him with.

Necessity is the mother of invention, not greed.

Re:Don't hold your breath

[nacturation]

Better to be a forum troll, than a patent-troll any day of the week.

Yeah, who needs yachts to drive on their oceans of money and naked women when we have strangers getting upset over what we think about Linux distros?

Don't do that. Besides not being very nice, it's quite the waste because you'll just end up having to buy more naked women to drive over.

Re:Please tell me...

[russotto]

The PageRank algorithm on which the Google empire rests was invented by Larry Page and Sergei Brin. They published the algorithm, patented it, and went on to become incredibly successful 'crass entrepreneurs.' Google owns dozens of software patents on key technologies such as its Map-Reduce implementation and AdWords. Few would say that Google is not a driver of innovation in software.

Google's patented search algorithm is not a driver of innovation in software. They have carved out their own niche in searching, in which they stand alone; no one builds on their work.

And if they really have a patent on MapReduce, that's a bad one too. Distributed software has used the general idea since before Google existed. I haven't read their actual claims, however.

Re:Novel Ideas

[TaoPhoenix]

Copyright protects Novel ideas. Patents protect the Automatic Author machine that produces Novel ideas.