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US Supreme Court Skeptical of Business Method Patents
Trepidity writes "The US Supreme Court held oral argument Monday in Bilski, a business-methods patent case that might also have important implications for software patents (We have previously discussed the case several times). The tone of the argument appears to be good news, as the justices were very skeptical of the broad patentability claims. They even brought up a parade of absurd hypothetical patents quite similar to the ones Slashdotters tend to mention in these kinds of debates. Roberts surmised that 'buy low, sell high' might be a patentable business method, Sotomayor wondered if speed-dating could be patentable, Breyer questioned whether a professor could patent a lesson plan that kept his students from falling asleep, and Scalia brought up the old-time radio soap opera Lorenzo Jones, featuring a hare-brained inventor with delusions of getting rich." Patently O has good blow-by-blow coverage of the day's proceedings. Official argument transcripts will be up soon, they say.
Oh, good. We may yet have some hope.
The US, the worlds largest quasi capitalism. Why won't anybody understand that patents and capitalism don't mix?
It's a solid business method!
I think Thomas Jefferson patented the idea of Liberty .... didn't he?
"He took a duck in the face at 250 knots." -- William Gibson, Pattern Recognition
the process of creating obfuscated reports about client billing practices intended to hide nickel-and-diming the customer to death. That would be a shot across the bow of lawyers, doctors, contractors and the banking industry in one fell swoop! Imagine the lobbying then to get rid of business method patents!
I enjoyed this bit of the exchanges the most:
**************
MR. STEWART: Well, first of all the only ruling that we're -- backtrack a bit,
to say, we oppose, sir, in this case because we recognize that there are
difficult problems out there in terms of patentability of software innovations
and medical diagnostics.
JUSTICE KENNEDY: You thought we -- you thought we would mess it up.
MR. STEWART: I didn't think --
(Laughter.)
MR. STEWART: We didn't think the Court would mess it up. We thought that this
case would provide an unsuitable vehicle for resolving the hard questions
because the case doesn't involve computer software or medical diagnostic
techniques, and therefore, we thought the Court would arrive at the position
that I think, at least some members are feeling that you have arrived at, that
you will decide this case, and most of the hard questions remain unresolved.
And, frankly, we think that's true.
*******************
Can someone explain to me:
1. Why the govt. does not want to resolve the mess that is software patents, now
that a golden opportunity has been presented?
2. Why is it the job of the govt. deputy solicitor to uphold the political
interests of the US of A rather than the legality of the issue at hand? (there
is an opinion here that software patents help the USA in World Trade.... which
seems very dubious to me at any rate).
3. How is it technically feasible, if at all, to make a ruling on the Business
Methods case without influencing whether software can or cannot be patented?
I think the govt. (read deputy solicitor) seems very worried that many lawyers
and patent powerhouses would come crashing down as a result of this ruling.
If you keep throwing chairs, one day you'll break windows....
There are some justices who are clearly in the tank for big business patents (e.x. Clarence Thomas/Monsanto food patents), and I'm sure the other ones can be bought.
Taking guns away from the 99% gives the 1% 100% of the power.
Even if you had a business method patent the chances are you'd still be defenceless in front of gigantic corporations who have the resources to just kick your arse up and down the legal system until you ran out of money.
They'll copy your model anyways, if you're small, you can't afford that many business patents (getting a patent is expensive, and litigating patents is also expensive and will put you out of business, unless you are successful against corporate army of lawyers).
Patents nowadays are very much for lawyers and large corporations BY lawyers and large corporations. They provide very little / no effective protection to the little guy.
Seriously, Scalia's "pop culture" reference is a radio show that went off the air in the mid 50's? Seriously? When he's talking about cars, does he compare everything to a 1954 DeSoto?
Don't they have law clerks that can help them line up snappy references? For example, "Professor Farnsworth" comes to mind. Sure, it's obscure, but not much more than his reference.
A good source of background info for this case is provided in epside 1 of the Software Freedom Law Center's podcast http://www.softwarefreedom.org/podcast/2008/nov/25/0x01/ It puts the case in perspective as to what software patents would be thrown-out under even the most optimistic Bilski rulings (ie: not ending all software patents, as we'd like to see).
The judges will ask questions and it may seem that they are favoring one side or the other. That isn't always the case. The judge's question may give a lawyer a chance to cover up a hole in his case that the judge saw but the lawyer missed.
Seriously, his references includes a less than obscure radio broadcast that many older people might recognize over a modern day cartoon that they won't recognize? Seriously? When 9 individuals comment and 1 brings a reference in that a number of older people would recognize do you always behave like a twit?
What are you "The Second Horseman of Jumped the Shark" or perhaps "The Second Horseman rode by Perez Hilton"? Seriously, realize that you are not always going to be the demographic some comments are aimed at and ...... get the hell off my lawn.
I'm not joking guys. We really planned on making our money on patenting our business model. We figured the big corporate bastards have made it impossible for tiny businesses like ours to make money and stay in business any other way so we'd patent our business model to protect ourselves from the giant behemoths. What will happen if you can't patent a business model is the behemoths who were in the same niche but slightly less profitable will look over and see you making money hand over fist and decide to copy your homework. What can you do? You're tiny. You're toast! But wait! I have a business model patent! You have to *buy* me! That means I get one last pay-check before you cut me loose!
They take that away and now we're defenseless in front of gigantic corporations who have the resources to just wholesale copy our model.
And what if the big corporations go on patenting sprees and start patenting anything imaginable? Just like all patenting has come down to. Any idiot realises that patenting was never created to benefit "the small players." Really, conspiracy aside, but how much influence does small businesses contra large businesses have on politics and politicians? Do you think there is one single top politician who doesn't own stock in one or many large corporations? And it doesn't have to be a plot or a cartel, you can be a very honest politician but when that opportunity comes along the temptation to make a few extra hundred thousand can become too much. Also it does help if you can pretend you're doing it for "the small players."
I am the lawn!
Patents are worth only the amount of money you can field to litigate an infringement case over in most cases. A small player will fold if they're actually infringing when presented with a lawyer letter (they can't afford the litigation any more than you can, really...). But, a big player, something with a 10 or more figure market cap, would be in a position, if you're a startup, to mire you down and out-litigate you in most cases. It would be an expensive proposition without any good foreseeable prospects- you might win one against them, you might not. If you do, can you out-last the appeals?
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
On the concept of "blow-by-blow coverage."
Expect to be hearing from my lawyer.
My read is that the justices seem to be ok with software patents in principle but are leery of business method patents that are not tied to a device or that do not incorporate some form of technology.
They seemed to struggle with how much of a "machine" needs to be added to an abstract business method before it becomes patentable subject matter.
In other news, Roberts appears to be confused about the difference between patentable subject matter and obviousness.
Mike Borella http://www.borella.net/mike
And what if the big corporations go on patenting sprees and start patenting anything imaginable?
What if this is already occurring? Have you been asleep for a long time?
APK likes to ask for responses to the same things over and over. Maybe he just likes the responses?
And what if the big corporations go on patenting sprees and start patenting anything imaginable?
Well, first they have to invent it, which means it has to be new and nonobvious - so no patenting "filing a patent" or "earning money". And if they do invent something, they have to disclose it to the world and teach us all how to do it. And if they've really done something new and nonobvious and it's actually valuable and innovative, why shouldn't they have a limited period to exploit that invention? Particularly when, by it's very definition, it's limited, and 20 years later, everyone gets to do this new, nonobvious, and valuable method?
I think most of the people who complain about the patent system, whether they realize it or not, are primarily concerned about the "new and nonobvious" part, rather than subject matter eligibility. We don't like it when someone gets a patent on a method of swinging on a swing, or investing in a hedge fund, or tickling a cat. But that's because those have either been done before, or are so freaking obvious that it's removing something from the public domain if you grant a patent on them... and that's a question of novelty and obviousness, not subject matter.
Email Marketing, So I will demand $0.25 per spam mail sent from every spammer for using my Idea.
Pyramid Schemes, So when they are caught they will need to pay me royalty for breaking the law.
Telemarking, They call me they will need to pay for violating my patent.
Lets just patent all the evil practices so it is just that more expensive to try to lie and cheat.
If something is so important that you feel the need to post it on the internet... It probably isn't that important.
The End Software Patents campaign has posted:
Please help publicise swpat.org - the software patents wiki
And what if the big corporations go on patenting sprees and start patenting anything imaginable? Just like all patenting has come down to.
Wow, you didn't even read further than my first sentence. There has to be some award for this.
I am the lawn!
And what if the big corporations go on patenting sprees and start patenting anything imaginable?
Well, first they have to invent it, which means it has to be new and nonobvious - so no patenting "filing a patent" or "earning money". And if they do invent something, they have to disclose it to the world and teach us all how to do it. And if they've really done something new and nonobvious and it's actually valuable and innovative, why shouldn't they have a limited period to exploit that invention? Particularly when, by it's very definition, it's limited, and 20 years later, everyone gets to do this new, nonobvious, and valuable method?
I think most of the people who complain about the patent system, whether they realize it or not, are primarily concerned about the "new and nonobvious" part, rather than subject matter eligibility. We don't like it when someone gets a patent on a method of swinging on a swing, or investing in a hedge fund, or tickling a cat. But that's because those have either been done before, or are so freaking obvious that it's removing something from the public domain if you grant a patent on them... and that's a question of novelty and obviousness, not subject matter.
Quit your trolling. You can patent general easy-to-think-of ideas which would then cover any real innovations. This is constantly being done today.
I am the lawn!
Here I was ready to file a business model patent on "Receiving advertising revenue based on news stories that draw the most flames, sometimes resorting to dupes". Somehow I think there might be prior art, but I doubt the patent office would notice ;)
Jumpstart the tartan drive.
And this is surprising how?
Big guys bullying little guys is a common thread in ALL fields, not just patents.
Might makes right no matter what the arena.
It's not. Parent poster was saying They take that away and now we're defenseless in front of gigantic corporations
But the truth is, little guys are defenseless even with patent law.
There was one I found very interesting, from someone who was apparently present
"Oh you woulda loved where that sht was going. After several places in this part of the discussion there was a noticable shift in the audience as the ramifications of the fact that at least 2 justices were, from the mannerisms they were definitely using, and exasperation they were expressing, pretty fin pissed about software. And when I say "pretty fin pissed" well, you're just going to have to trust me if you weren't there. Some of the other justices on the other hand were just chillin in their chair, all bouncing around n stuff, not engaged hardly what so ever."
Comment removed based on user account deletion
So long as it "Promotes the progress of Science and useful Arts", to which, I will respond that it largely doesn't these days the way it's being done.
The Supreme Court has traditionally interpreted preambles like "promote the general Welfare" and "promote the Progress of Science and useful Arts" as illustrative and not limitative, much like the list of purposes in the fair use statute (17 USC 107), and deferred to the Congress on their interpretation. Or at least that's the impression I got from the Court's opinion in Eldred v. Ashcroft.
I read the entire post, I just thought I would poke fun at the first line.
APK likes to ask for responses to the same things over and over. Maybe he just likes the responses?
And to forestall your answer "but all software could be performed with a pen, paper, and slide rule", the relevant word is feasible. Go decode a PGP message with a pen, paper and slide rule and come back when you're finished to describe how any software can feasibly be done manually.
RSA with a shorter key can be done with paper and pencil. Did you mean that increasing key length makes an unpatentable algorithm patentable? This appears to imply that execution time determines patentability: there exists a value n such that any novel algorithm that requires more than n operations is patentable and any algorithm that requires fewer is not. So what is n?
That doesn't make sense.
I am the lawn!
"......Sotomayor wondered if speed-dating could be patentable, Breyer questioned whether a professor could patent a lesson plan that kept his students from falling asleep....." Uh hate to break it to Supremies, but there's a lot of patents already issued on both dating methods and teaching methods. Honest. You should get on your clerks case for not being able to find something anyone at all familiar with the patent system could find in about 5 minutes.
Well, first they have to invent it, which means it has to be new and nonobvious
Really? Since when?
Yeah, that's the theory, but in reality it doesn't work that way.
Unix is user friendly, it's just selective about who its friends are.
Well, first they have to invent it, which means it has to be new and nonobvious
Really? Since when?
Yeah, that's the theory, but in reality it doesn't work that way.
Hence my second paragraph:
I think most of the people who complain about the patent system, whether they realize it or not, are primarily concerned about the "new and nonobvious" part, rather than subject matter eligibility. We don't like it when someone gets a patent on a method of swinging on a swing, or investing in a hedge fund, or tickling a cat. But that's because those have either been done before, or are so freaking obvious that it's removing something from the public domain if you grant a patent on them... and that's a question of novelty and obviousness, not subject matter.
I'm not joking guys. We really planned on making our money on patenting our business model.
What will happen if you can't patent a business model is the behemoths who were in the same niche but slightly less profitable will look over and see you making money hand over fist and decide to copy your homework. What can you do? You're tiny. You're toast! But wait! I have a business model patent!
Great. You have a patent. And when your lawyer slaps that patent down on the table in front of the army of lawyers representing the corporation who has copied your methods, that army of lawyers is going to laugh in unison, and slap down their seventy-five patents that you potentially violate. And then they're going to say, again in unison, "Well this looks like a simple matter -- we'll just cross-license each others patents, with compensation proportional to our relative patent holdings. Everyone wins!"
Fight it, and you're going after them for one patent violation and they're going after you for seventy five. Can your lawyer handle seventy five cases? They've got a team of lawyers on each one.
Agree, and well, you pay out the nose for the 'right' to use their patents and they can still eat your lunch by duplicating your methods.
This happens all the time in software and technology in general. Your patent is not going to save you from crap, unless you don't actually do or make anything yourself and thus can't possibly be the victim of this tactic -- i.e. you're a patent troll, only you aren't, so good fucking luck!
The enemies of Democracy are
Expensive yes, but even if a mega-corporation mires you down and causes you not to litigate, the patent doesn't go away. If someone steals an invention you patented, especially if they do it willfully, and makes a ton of money, you might be able to locate a lawyer willing to represent you on contingency (if you can prove willfulness you're awarded treble damages), or you can sell the patent with pockets deep enough to litigate.
I'm not going to pretend that patents are all good for the little guy all the time, but even the deepest pockets are deferential to sound patents.
I do have some hope, but I wouldn't get too excited if I were you.
A) The questions don't prove which way they're leaning. They've been known to ask hard questions of the people they eventually rule in favor because they want to have all the hard questions answered when they agree with them.
B) There are many indications that they want to make a *narrow* ruling, even to narrow the Machine or Transformation test used to invalidate Bilski's patent. They don't appear to be trying to kill software patents (even though they *should* do exactly that, IMHO).
WTF mods, you may not agree with the guy, but the guy is posting his concerns.
He's not flamebaiting or trolling.
Software patents are like buried land mines. They may slow us down and cripple us, but as long as they slow down and cripple our competitors even more than they do us -- that's what really counts.
Sounds like some sort of prisoner's dilemma.
"Sotomayor wondered if speed-dating could be patentable"
Surely you mean Speed Dating(R)?
Scalia proves he's right on top of the new business model and how it will impact technology, by referencing an old-timey radio show.