Is the Tide Turning On Patents?

Glyn Moody writes "The FSF has funded a new video, 'Patent Absurdity: how software patents broke the system,' freely available (of course) in Ogg Theora format (what else?). It comes at a time when a lot is happening in the world of patents. Recent work from leading academics has called into question their basis: 'The work in this paper, and that of many others, suggests that this traditionally-struck "devil's bargain" may not be beneficial.' We recently discussed how a judge struck down Myriad Genetics's patents on two genes because they involved a law of Nature, and were thus 'improperly granted.' Meanwhile, the imminent Supreme Court ruling In re Bilski is widely expected to have negative knock-on effects for business method and software patents. Is the tide beginning to turn?"

Comments

SC has plenty of ground to stand on

[ciaran_o_riordan]

The US Supreme Court has never upheld a software or business method patent. All they said in Diehr is that things that are patentable can be managed/controlled by a person or a robot/computer. The CAFC and the USPTO ran with this and approved all kinds of programs for such a robot/computer, but they're not the authority here. The Supreme Court is now taking over again for the first time in 30 years, and all they have to do in order to abolish software patents is to clarify and repeat their previous rulings.

The Supremes have always said that math isn't patentable, it's a fundamental truth that can't be "invented", and they've said that putting instructions, including math onto a computer is an obvious step.

• US Supreme Court
• Particular machine or transformation
• Patent Absurdity

the tide changed before and will change again

[NZheretic]

Fed-Soc.org - Patents: Legitimate Rights or Grubstakes that Obstruct Progress? - Winter 2000

This history shows the patent / free competition balance to be dialectical, not static. In this country, since the turn of the century, the pendulum has cycled twice between the patent right and free competition poles. The last free-competition era occurred between 1930-1950. Perhaps the zenith (or nadir, depending on point of view) was Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661 (1944) where the Supreme Court held that tying sales of a non-patented product to a patented product constituted an impermissible extension of the patent monopoly and therefore patent misuse. Ironically, Mercoid facts today could support loss of profits damages under Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538 (Fed. Cir. 1995). Partially as a reaction to certain court decisions (including the need to overturn Mercoid), the 1952 Patent Act slowly turned the pendulum back in a pro-patent direction. That movement accelerated full-bore with creation in 1983 of the Court of Appeals for the Federal Circuit to hear all appeals from trial court patent infringement decisions.

As I said before The 2000-2010 "Intellectual Property" boom is about to go the way of the "Subprime" Mortgage, Dot-Com vapor startup, Junk bond and Dutch Tulip futures. The Patent Troll Business Model is inherently flawed, and just like the aforementioned others, add nothing to a nations REAL economy.

patents

[zogger]

I disagree on your economic analysis with software patents. Patents on software are a type of "broken windows fallacy" argument, and as such, are a hindrance to the economy, not any sort of positive asset.

  This is *precisely* the time we should be abandoning outdated (**AA type numbers and agenda, the entertainment distribution "industry") /harmful(software and living things patenting) /useless(casino gambling banks and created out of thin air financial "products") /parasitic(governmental make-work mc jobs) "businesses".

Yes, there would be an adjustment period if we eliminated the bulk of those "jobs" up above, but after a short time, you would find people would be concentrating on real wealth production work, which in turn contributes to real wealth creation, an economy that doesn't need sham official figures to try and sugar coat reality, or one that relies on ..shoot..bingo cards as somehow all that valuable. This "IP" stuff is all well and good in some extreme moderation levels, but you can't run a huge nation the size of the US on services, patenting everything possible, every little tiny nuance of anything, even abstract concepts, and then high stakes financial gambling. The rest of the planet is starting to route around those bottlenecks now, that is why we are having a financial crisis, because we have been doing things "that way". So it is "that way" that needs to change, not just do more of it.