SFLC Tells SCOTUS, "Software Patents Are Unjust"

H4x0r Jim Duggan writes to inform us that the day after Red Hat advised SCOTUS that software should not be patentable, the Software Freedom Law Center filed its amicus brief in the Bilski case. "In this closely-watched case, the Supreme Court will decide whether the Court of Appeals for the Federal Circuit was correct in restricting patentable processes to those 'tied to a particular machine or apparatus,' or which 'transform[s] a particular article into a different state or thing,' a conclusion which if fully implemented could bring to an end the widespread patenting of computer programs. ... This case gives the Supreme Court a chance to reaffirm what its past cases have held for more than a century: that no patent law consistent with the US Constitution can permit the monopolization of abstract ideas." Groklaw is running the usual cogent gloss with the full text of the SFLC's brief.

Comments

FSF submitted its own brief

[H4x0r Jim Duggan]

• FSF's Amicus Curiae Brief
• FSF's press release
• List of Bilski v. Kappos amicus briefs

    The brief can be split roughly in three. There's the "Interest Of
    Amicus Curiae" section, which is a long description of FSF, to inform the Supreme Court why they should be interested in reading the brief. Then there's the Argument, which has the remaining two parts. The first is about the previous rulings which indicate that software has already been explicitly excluded by the Supreme Court. The last part, which starts at "II. For Many Software Developers, The Patent System Is Unjust.", deals with how software patents have proved to hinder, rather than promote, the progress of the useful arts - which means they have no valid constitutional basis.

Re:FSF submitted its own brief

[Anonymous Coward]

I read the brief, and the best part: the car analogy.

Re:FSF submitted its own brief

[Timothy Brownawell]

The last part, which starts at "II. For Many Software Developers, The Patent System Is Unjust.", deals with how software patents have proved to hinder, rather than promote, the progress of the useful arts - which means they have no valid constitutional basis.

Will this section be worth anything if neither party is actually asking for software patents as a whole to be thrown out? (And why would they ask for that? My understanding is that the patent they're arguing about is about business methods rather than software, and that business method patents as a category are quite a bit hokier than even software patents.)

I've said it before and said it again

[JimboFBX]

A patent should be defined as a solution to a problem. Define a problem, give it to someone with no prior knowledge of the solution, ask for a solution, then compare the answers (if there are any) to the one the patent came up with. You should be able to present the problem it to peers in a field and determine if it is obvious or not based on their answers (or lack of).

Re:I've said it before and said it again

[JimboFBX]

Solution: store all the payment and shipping information before hand (90% of responses)

Patent solution: store all the payment and shipping information before hand

Patent is obvious

REJECTED

Re:I've said it before and said it again

[nschubach]

I need a method of organizing my open programs...

You could get many answers for that. Are you saying the taskbar isn't obvious? How many people do you ask? What education will they all have? (An interface designer will come up with a different solution than an programmer...)

I still say, no patents, only copyright. Software is like an instruction manual. You can describe many ways to get the same objective and they all look like books. Also, look and feel should be trademarks, not patents.

Re:I've said it before and said it again

[donaldm]

A patent should be defined as a solution to a problem. Define a problem, give it to someone with no prior knowledge of the solution, ask for a solution, then compare the answers (if there are any) to the one the patent came up with. You should be able to present the problem it to peers in a field and determine if it is obvious or not based on their answers (or lack of).

I can see were you are coming at but what you have said actually reinforces software or any abstract idea as patentable. What is really needed is to define what can and cannot be patentable and that is not going to be easy since patents are defined according to how the law perceives patents and to make things even more difficult it is very easy to misinterpret what is ment in one language to what the translation means in another. It becomes even more difficult when your own language (in my case English) can also be interpreted in different ways in the eyes of the Law.

To ask a peer to look at whether a patent is obvious or not is commendable but not really practical since it would be just about impossible to get a peer review since money is usually involved and the cost of getting a patent revoked once issued no matter how stupid or trivial can be very expensive.

I think the best way of getting rid of stupid patents is not to allow abstract ideas or mathematical concepts but to insist on physical results. However when I look at some physical electrical patents (I am an Electrical Engineer) I am appalled, since some of these are actually based on a minor change to an existing system and IMHO this should never be patentable. At least getting rid of software patents could go a long way to fixing what is really a complex issue.

Re:I've said it before and said it again

[AuMatar]

Being the first time someone has done something doesn't make it non-obvious.

Problem: Nobody has ever jumped off the roof of my apartment and survived.
Solution: use a parachute.

Is this patentable? No, because people have jumped off high places before, and that's what their answer was. A patent's purpose is to promote the useful arts and sciences. This is their purpose under the constitution. The problem that must be non-obviously solved is therefor the technical one, not the business desire. His statement of the problem was correct- how do you perform purchases without a postpay or confirmation step. The solution was to save that information server side, which is what 90% of programmers would have told you in under 30 seconds of thought. It is therefor an obvious solution.

Re:I've said it before and said it again

[smoker2]

So no one in the history of mankind ever had a store account ? Identify yourself and the payment is taken care of discretely and automatically ? Just because it's "on the internet" does not make it patentable. And people were doing it before, and people are still doing it now. One Click is just a marketing phrase describing a widely held practice, one that was widely held before the patent was granted. Why do you think there was such a fuss when the patent was granted ?

And using the fact that no-one did it before as a non-obviousness filter is stupid. Most sensible companies didn't do it because of the extra security concerns involved, not because they didn't think of it. As an e-commerce developer at the time, I didn't do it because I didn't like the idea of my details being held by an invisible third party. I therefore didn't place others in that situation.

Re:I've said it before and said it again

[Teancum]

A patent was originally defined as legal protection granted to an individual for creating a device that does something unique and useful. A temporary monopoly was granted by the government to allow that inventor who created that unique and original device to recoup the R&D costs associated with creating that device in the first place, noting that R&D for something genuinely original often has dead end roads when trying to get something to work and is generally quite expensive to perform. Once somebody has established a good template for how something can work, many others are willing to copy that device since the hard work has already been accomplished.

The slippery slope from this definition and the one given above (that a patent is about solutions instead of physical devices) is precisely what has led us to software and business method patents. R&D costs, while not completely missing, are orders of magnitude lower and really not a significant problem. Furthermore, previous tests measuring the validity of patents have included an explicit exclusion for mathematical theorems and formulas.

To put it another way, all computer software can be reduced down to a single number. Perhaps a rather large number with thousands, millions, or even billions of digits, but a number none the less. What a patent essentially does is to give people exclusive copying authority over certain classes of numbers and makes it illegal to publish that number without their permission.

Other arguments can be offered here, but the point is that patents don't cover a mere solution or abstract idea. The original intent of the framers of the U.S. Constitution and based upon the previous English Common Law precedent over previous patents... including abuses of patent law in England that the founders of the American Republic were trying to avoid... was intended to be narrowly defined to cover strictly physical devices precisely so patent law wouldn't become perverted to censor speech and political philosophies. A broadly construed patent philosophy can be a tool to pervert other aspects of the constitution including the 1st amendment and other areas of the constitution as well.

Horrible software patents include such things as the LZW algorithm patent that somehow landed in the hands of Unisys... where they asserted the patent to extract royalties for those companies wishing to use the GIF image standard in their products... including web browsers. The argument that payment of royalties to Unisys for the use of this algorithm is somehow going to encourage Unisys to invest into its R&D program seems absurd. Besides, in spite of the millions in royalties that were paid to Unisys for those who did pay the extortion tax here, very little can be said to have come from it other than the employment of a few lawyers who were involved in setting up the royalty schedule and sending out the cease and desist letters. In other words, even in this clear-cut example of a software patent that was granted, the use of the patent was to stifle innovation and progress rather than to encourage further development of software ideas.

Actually, the enforcement of the LZW patent did encourage the development of other methods of graphical image display formats: It created the PNG format that was explicitly established as a way to legally work around the LZW patent so it would never have to be used in the first place. Those involved explicitly were involved in establishing a graphical image standard that would not be encumbered by patents or require royalty payments for its use and application. It also was a general improvement upon the original GIF standard as well, allowing for greater color depths and even improved data compression compared to the GIF images that were originally being protected. That was useful, but it wasn't the patent itself that was proving to be useful in this case... it was merely a roadblock that needed to be overcome and ignored. It has become ignored for the most part as well.

Re:I've said it before and said it again

[Anonymous Coward]

We want clever people making clever things, and we also want them to share how to make that clever thing with everybody else, so how do we encourage that?

For software, that's really easy: let reality run its course so that the inventor is first to market.

In 1800 that didn't work very well, because of the nature of the inventions. Without inventions, the inventor had to keep a secret, snail mail investors who took a 4 week journey to come see it in the lab, get the money together using the archaic financial systems, get the gold onto the stagecoach with enough guards, then the newly-formed company has to hire a workforce and fabricate the new parts in secrecy, and get them onto the stagecoaches out to market. Then customers see it and word about the awesomeness of the product slowly spread by word of mouth and snail mail.

Now the inventor goes from the invention to a product that uses it, immediately, and customers can pay for it and download it immediately while a firestorm sweeps through Twitter. By the time someone can make a competing product that uses the same idea, the inventor already has his money back.

Ok, you've convinced me: they should have a 4 day monopoly. I would have said 3 days but that's not fair to people who invent things right before a holiday-adjacent weekend.

You can be fairly certain that the developers of PNG looked long and hard at LZW before they were able to come up with something better.

No, they didn't. They just took a different compressor off the shelf. The only things in the compressor that they "looked long and hard at" was whether they would be allowed to use that algorithm, and how well it performed compared to others. In 1995, compression algorithms superior to LZW were a dime-a-dozen thanks to the compression fad that swept through hacker society 5-7 years earlier, and JL-G's zlib was ready and waiting for them.

Good luck with that

[crypTeX]

This is one where I believe that no amount of logic and reasonable precedent will matter. The court will simply not invalidate the basis of an existing industry and it has nothing to do with corruption. No quantity of shine can alter the fundamental nature of this complaint. It won't happen, don't get excited.

Re:Good luck with that

[wizardforce]

The sad thing is that you are completely right. The powers that be are stuck in Keynes era economic thinking that speculates the proper allocation of resources results in an overall loss of jobs... It doesn't any more than the loss of the buggie whip industry did but there it is.

Re:Good luck with that

[Anonymous Coward]

Except that there is no "industry" at stake here other than patent troll companies that buy vague ideas that were wrongfully patented by a faulty system then go about suing valid industries that are trying to do their job at innovating. To clarify that, the only ones that are going to lose out here are those are actively gaming the system.

Actual companies in the field will NOT be negatively affected by having all their software patents invalidated simply because nobody else will have software patents to sue them either. And thus all the companies that are actually IN the tech industry can actually move forward - and with reduced costs since they won't be paying for massive amounts of useless god awful patents.

Re:Good luck with that

[Runaway1956]

Which industry are you speaking of? Patent trolling? Seriously - those people and corporations with a marketable product will continue to sell their product, until someone comes out with a better product. No industry is going to fail, aside from the patent troll industry. A few lawyers may have to search for a slightly more ethical specialty, like ambulance chasing.

Re:Good luck with that

[wizardforce]

The industry won't fail. This is true, however things will change. Any corporation dependant on the current patent system to destroy its competition will fight tooth and nail to keep it and frankly, considering what happened with anti-trust charges against MS I wouldn't count on software patents being invalidated by SCOTUS.

Re:Good luck with that

[shentino]

Then that would imply that SCOTUS is a pack of wusses afraid to bankrupt the mafia.

Re:Good luck with that

[eddeye]

The court will simply not invalidate the basis of an existing industry and it has nothing to do with corruption.

Bingo. The Court won't make a decision that far-reaching. Roberts pushes for narrow decisions. They'll leave broad policy matters such as software patents per se to Congress. Even if they did miraculously invalidate software patents entirely based on the current statutes, what would happen? Congress would pass a bill yesterday explicitly authorizing them.

I suspect the Court will broaden the holding of Bilski. Bilski was based on 30 year old rules from a different technological era. The Court didn't accept this case just to affirm the lower decision. Nor will they formulate a stricter rule for the reasons stated above.

Nothing the Court decides is likely to affect software much. Bilski is aimed at egregious business method patents, nothing more. Software patents are just as accepted as before - the PTO simply requires reciting a machine somewhere in the claims. Something like "doing X" becomes "doing X on a processor". That's it.

If you want fundamental changes to the system, you'll have to petition Congress to amend the patent act. Trying to force it through the courts is a waste of time and resources.

Yes I am a patent attorney.

indeed

[wizardforce]

I would go further to speculate that the patent system as it is harms technological advancement more than it encourages it in most industries. The patent system was established with the intent to create temporary monopolies for inventors in order to encourage the development and dissemination of that R&D throughout society. The problem is that too often, it's used to destroy competitors. The court costs and inequality of enforcement associated with the system defeat most of its purpose as specified in the US constitution. Software patents are only the tip of a very large iceberg.

Re:indeed

[plover]

The patent system was established with the intent to create temporary monopolies for inventors in order to encourage the development and dissemination of that R&D throughout society. The problem is that too often, it's used to destroy competitors.

OK, let's look at one of the industries most reviled for price gouging in America: pharmaceuticals. They claim to spend anywhere from $100 million to a billion dollars or more to come up with a successful new drug. They patent it. Then, with the required years of development and testing, they get to put it on the market for maybe 12 years or so, without competition, and they charge anywhere from $100/month to $1000/month or more. After 12 years, GenericCo starts selling them for $4/month, so they then have to drop their prices to compete.

For the moment, let's ignore all the criminal and other misdeeds of big pharma (phony studies "proving" generics are bad, misleading marketing to doctors and politicians including golf trips to St. Andrews, selling pointless medicines for not-serious conditions such as "restless leg", "weak boners", etc.,) and focus on just the patent portion of this.

If it took them $500 million dollars to create the drug, and they have only 12 years to sell it, they have to make more than $500 million dollars to make the investment worthwhile. Don't forget, for each useful drug they invent, they also invest millions on drugs that don't work, or drugs that are eventually shown to have toxic side effects and must be pulled from the market. And just about every death that occurs while a patient is taking their drug ends up with a lawsuit that must be defended against.

Without that 12 year period of patent protection, generic drug companies could usually start making cheaper products almost immediately. There would be no reason for pharmaceutical firms to continue to pump a billion dollars into any drug if it's never going to see its return on investment, so innovation would end. The search for a cure for cancer, or of the many chronic conditions such as lupus, muscular dystrophy, etc., would end because there's no profit to be made even if they succeed.

That's the general argument in favor of patents. As a society, we pay the creative and smart people to keep being creative and smart. Do I want them to stop innovating, and not create the cure for whatever disease I'll come down with in 3-5 years? I certainly hope not!

The question here is: does this imply the same for software patents? Not even close. The bar to entering the software market is non-existent. Anyone with a computer and internet connection can download a professional quality operating system and developer studio for free, take online courses in everything from programming and calculus to software engineering, and start innovating almost immediately. It costs them almost nothing to produce and deliver their products, and they have limited to no liability to the users of them. In contrast to the hundreds of pharmaceutical firms, there are millions of developers. Innovation is going to happen continually with or without patents. And innovation is global: what is created in Shanghai can be downloaded in Chicago in seconds.

Even if Bilski is kind of an "end run" around the general issue of patents on software being a bad idea, they should still be prohibited before they make the United States a pariah of developed software.

Re:indeed

[Theaetetus]

The question here is: does this imply the same for software patents? Not even close. The bar to entering the software market is non-existent. Anyone with a computer and internet connection can download a professional quality operating system and developer studio for free, take online courses in everything from programming and calculus to software engineering, and start innovating almost immediately. It costs them almost nothing to produce and deliver their products, and they have limited to no liability to the users of them. In contrast to the hundreds of pharmaceutical firms, there are millions of developers. Innovation is going to happen continually with or without patents. And innovation is global: what is created in Shanghai can be downloaded in Chicago in seconds.

Even if Bilski is kind of an "end run" around the general issue of patents on software being a bad idea, they should still be prohibited before they make the United States a pariah of developed software.

And without even addressing your question - which is a good one, and worthy of hours, if not days or months of debate - I ask this: is this a question for a legislative body with power to amend and redraft patent laws, or a question for a judicial body with power to interpret laws as they are currently written? 35 USC 101 allows patenting of processes. Software is processes. Therefore, software is patentable... provided it doesn't fall under one of the narrow judicially-created exceptions. If software shouldn't be patentable - which is a different question than "is software patentable" - then Congress is the one that should amend 35 USC 101 to exclude software, not the Supreme Court. Otherwise, they're merely being activist judges.

Re:indeed

[Adaeniel]

The search for a cure for cancer, or of the many chronic conditions such as lupus, muscular dystrophy, etc., would end because there's no profit to be made even if they succeed.

You forgot about academic research. There are people out there that want to solve a problem purely to solve a problem.

Re:indeed

[drinkypoo]

OK, let's look at one of the industries most reviled for price gouging in America: pharmaceuticals.

yes, let's. When one of their drugs is about to go generic, or has even just lost its buzz in the media, they make a slightly different version of the same drug, receive FDA approval for the new drug on the basis that it ought to perform similarly to the old drug, and some extremely minimal testing which only must ensure that it is less harmful than a placebo. They then market the new drug as the best treatment for an ailment when in fact they do not really know if the new drug is more or less effective, since the study sample size is not large enough to determine that. Then you get Zyprexa.

There is no fucking way that big pharma deserves any slack. None. Record profits, just like big oil. No fucking way.

Re:indeed

[causality]

For the moment, let's ignore all the criminal and other misdeeds of big pharma (phony studies "proving" generics are bad, misleading marketing to doctors and politicians including golf trips to St. Andrews, selling pointless medicines for not-serious conditions such as "restless leg", "weak boners", etc.,) and focus on just the patent portion of this.

You can decide to disregard that and pretend that it doesn't matter, but really this tells you quite a lot about with whom you are dealing when your focus is the pharmaceutical companies. More on that in a moment...

Without that 12 year period of patent protection, generic drug companies could usually start making cheaper products almost immediately. There would be no reason for pharmaceutical firms to continue to pump a billion dollars into any drug if it's never going to see its return on investment, so innovation would end. The search for a cure for cancer, or of the many chronic conditions such as lupus, muscular dystrophy, etc., would end because there's no profit to be made even if they succeed.

There is a single glaring flaw in your reasoning. There is one thing that pharmaceutical companies absolutely cannot do and have no hope of ever accomplishing: they cannot make a profit from healthy people. What are in my layman's opinion (I am not a doctor) designer diseases such as the restless leg syndrome that you mention are one of their responses to this dilemma. Advertisements that market prescriptions to the general public when the necessary medicine is supposed to be the doctor's decision are another response to the same dilemma. Likewise, they have no incentive whatsoever to cure anything, even when it is within their power; in fact they have a strong incentive against doing so. They have plenty of incentive to come up with medicines that you might call ongoing treatments, because they guarantee an ongoing source of income.

Anything that remotely smells of this kind of motive doesn't deserve the protection of a government monopoly. So, I really don't see how patents are helping this situation. They seem to be protecting the cash cow more than anything else.

Re:indeed

[plover]

If software shouldn't be patentable - which is a different question than "is software patentable" - then Congress is the one that should amend 35 USC 101 to exclude software, not the Supreme Court. Otherwise, they're merely being activist judges.

First, the phrase "activist judges" was created as a political hot-button codeword to try to sway people emotionally instead of rationally. It's a ploy to discredit the work of the legal system using fear and anger instead of logic and reason. It has no place in a legal debate.

And in the case of patents, your argument is not correct. 35 USC 146 clearly states that the U.S. Court of Appeals for the Federal Circuit is to make the decision in case of a disagreement with a ruling of the Board of Patent Appeals. Congress explicitly granted the courts (whether they be "activists" or not) the power to decide these cases. And Bilski is one such case.

Because our legal system is based on precedent, not just on written law, a case such as Bilski can have a ripple effect on other similar decisions. Sometimes I'd rather have a system like the Swiss courts, where each case is tried on its own merits and judged only against the law, not against how the courts ruled on your neighbor's case. But we have what we have.

35 USC 101 is very simple, and says on its face: "subject to the conditions and requirements of this title." That means that it's not simply "processes are patentable", but you have to go through the entire document to make that determination. Reading further, in MPEP 2106.01, you can see some of those requirements that are relevant:

"Since a computer program is merely a set of instructions capable of being executed by a computer, the computer program itself is not a process and USPTO personnel should treat a claim for a computer program, without the computer-readable medium needed to realize the computer program's functionality, as nonstatutory functional descriptive material. When a computer program is claimed in a process where the computer is executing the computer program's instructions, USPTO personnel should treat the claim as a process claim. ** When a computer program is recited in conjunction with a physical structure, such as a computer memory, USPTO personnel should treat the claim as a product claim. **"

They specifically state here that a program is nonstatutory (not patentable) unless the program is supporting a patentable process. In the case of Bilski, the program is supporting their process. The real question is still if Bilski's business method patent is valid.

Re:indeed

[plover]

Record profits == capitalism in action. It's more American than apple pie.

I don't begrudge someone the right to make money, at least not when they play within the boundaries of the system. If 50,000 tone-deaf idiots want to give Britney Spears $100 each to hear her sing into an Auto-tune system for an hour, then Britney wins at capitalism.

Of course, Big Pharma is well known for not playing within the rules, and is certainly not above bribing 75% of Capitol Hill to get their way. But the answer there is to bring them back in line with the rules, not to change the process so they can't make "record profits."

Re:indeed

[drinkypoo]

Of course, Big Pharma is well known for not playing within the rules, and is certainly not above bribing 75% of Capitol Hill to get their way. But the answer there is to bring them back in line with the rules, not to change the process so they can't make "record profits."

My point, to which you seem to have twigged only halfway, is very much that they ARE playing within the rules, and that the rules stink. If we have a government where spending more money on lobbying works better, and we permit patents to be used as they are, then the natural consequence is that they will be abused to the detriment of society. Patents are a legal fiction intended to benefit society. QED, if they don't do that, they should be abolished. Humanity will not lose its interest in fighting illness if we stop attaching profit to impeding the process. Much of what big pharma does is in fact harmful to the process of healing illness, simply because they are willing and able to sell ineffective or partially effective products.

I'm not arguing that we should eliminate capitalism, but that government intervention in the form of patents is half-assed. I don't complain about the size of the profit, I complain about the size of the ill-gotten profit.

Scope for arguing about software patents

[H4x0r Jim Duggan]

Will this section be worth anything if neither party is actually asking for software patents as a whole to be thrown out?

Yes. The court's job is to decide on the point of law and it's not limited to following the request of either party.

The last paragraph of FSF's Interests of Amicus Curiae notes: Notwithstanding the contrary assertion at sec. I.C.3 (pages 36-44) of Respondentâ(TM)s brief, the Foundation submits respectfully that this case is an appropriate one to address patenting eligibility of computer software. Several amici aligned with both parties of this case so regard it and indeed the court of appeals eschewed a categorical exclusion of business methods and, instead, applied the machine-transformation test to a claimed process which was implicitly software-based though not reciting software directly in its broadest independent claim.

Like how the CAFC's machine-or-transformation test excludes some software, the SC can install a different test with broader or narrower scope.

Re:Scope for arguing about software patents

[Quothz]

Will this section be worth anything if neither party is actually asking for software patents as a whole to be thrown out?

Yes. The court's job is to decide on the point of law and it's not limited to following the request of either party.

That's true, but they are limited to ruling on the case at hand. SCOTUS has long held that the Constitution limits them to declaratory judgments, that is rulings that involve an actual dispute before them. SCOTUS will not rule that software patents are unconstitutional because they don't promote science and the useful arts in a case about business method patents.

They may, however, rule that machine-independent patents fail that test. However, I suspect they won't, since it's a stupid argument--Congress, not the courts, is given the discretion to choose how to promote science and the useful arts. They may well strike down machine-independent patents, but I highly, highly doubt they'd second-guess Congress based on such a subjective criterion as whether it promotes good stuff, or at least explicitly.

Mind you, even if SCOTUS does lay the smackdown on machine-independent patents, we'll still be in for round two: Whether a compatable computer is a specific-enough machine for patents to stick to it. Unless they rule very broadly, which would be very untypical of SCOTUS, that question will have to go through a full judicial vetting before the question of software patents is settled.

Re:Scope for arguing about software patents

[H4x0r Jim Duggan]

This isn't so much a business methods case as it is a case of Bilski's patent. The CAFC rejected Bilski's patent and installed a test, and some of the patents that will fail that test are what we call software patents.

There's no "business methods" line that the CAFC or SCOTUS have to stay within, and FSF's request is just for upholding of the CAFC's test and a clarification about when a computer (such as is used by Bilski's patented system) is or isn't a "particular machine".

I take your points, but I still see this as by far the biggest chance we're getting this decade to fix this problem.

Re:It will be good if this passes, but...

[Trepidity]

But it would show that there is valid justification for their existence. Who started up a campaign to end software patents? It wasn't Novell, or Red Hat, or the Open Source Initiative; it was these folks. The FSF is willing to take unpopular hardline pro-freedom positions long before they become politically correct enough for the "respectable" FOSS groups to hop on the bandwagon.

Sort of analogous to how I think there's a good reason for the existence of folks like Dennis Kucinich, Ron Paul, and other people pursuing principled but somewhat inflexible positions. I might not want them as president of the world, but I like them being around.

Re:Talking of abstact ideas

[plover]

Bilski is an abstract business method patent, and that's exactly why it's been thrown out by the court of appeals. Yes, they patented software to do the computations, but in the end it's a process more than just software.

(Their process is that of selling a lot of people "fixed cost" subscriptions to a service that can have a variable cost, such as heating fuel in the winter, and then using the leverage of that large group of people to drive down the sellers' bids on the fuel, and making a profit on the difference.)

We're all expecting/hoping that if Bilski is thrown out because it doesn't meet the "tangible transformation of a thing" test that the software component will also be thrown out for the same reason.

Software patents in general kind of just happened by accident. If I recall correctly the first software patent was for a chemical process that used a computer to operate valves to moderate the reaction, and from there the lawyers have just ignored the chemistry part and decided "software is patentable." It's never been challenged like this before, so we're all crossing our fingers and hoping they die and stay dead.

Re:It will be good if this passes, but...

[Nevyn]

Who started up a campaign to end software patents? It wasn't Novell, or Red Hat,

Red Hat has always taken the stance that Software Patents are bad and should die, and I would bet they have done much more to further this goal than the FSF. If only because they are a company, and have much more money.

What?

[benjamindees]

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States...

Notice how the Supreme Court has jurisdiction over Constitutional questions, in addition to just being able to "interpret laws"?

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;

And notice that the scope of patentability is a Constitutional issue?

35 USC 101 allows patenting of processes

US code doesn't allow patenting of business processes unless the US Constitution allows patenting of business processes.

Why software patents don't contradict the first

[Anci3nt of Days]

This constitutional argument completely ignores the requirement that to gain patent protection, one must disclose a working embodiment of the invention - that is they must publish how their invention works. To exclude the public from exploiting a software invention by patent does not preclude the public from understanding how the invention works, talking about it, experimenting with the ideas or even ultimately deriving a new invention based on the original that is sufficiently novel.