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Supreme Court Throws Out Bilski Patent
ciaran_o_riordan writes "The US Supreme Court has finally decided the Bilski case (PDF). We've known that Bilski's patent would get thrown out; that was clear from the open mockery from the judges during last November's hearing. The big question is, since rejecting a particular patent requires providing a general test and explaining why this patent fails that test, how broad will their test be? Will it try to kill the plague of software patents? And is their test designed well enough to stand up to the army of patent lawyers who'll be making a science (and a career) of minimizing and circumventing it? The judges have created a new test, so this will take some reading before any degree of victory can be declared. The important part is pages 5-16 of the PDF, which is the majority opinion. The End Software Patents campaign is already analyzing the decision, and collecting other analyses. Some background is available at Late-comers guide: What is Bilski anyway?"
More analysis of the decision is available at Patently-O.
Diana Ross was not available for comment's. Rejoicing software developer's liberally apply apostrophe's in the street's but are they celebrating too soon?
My work here is dung.
Dear Mister Language Person: What is the purpose of the apostrophe?
Answer: The apostrophe is used mainly in hand-lettered small business signs to alert the reader than an "S" is coming up at the end of a word, as in: WE DO NOT EXCEPT PERSONAL CHECK'S, or: SUPREME'S THROW OUT BILSKI PATENT. Another important grammar concept to bear in mind when creating hand- lettered small-business signs is that you should put quotation marks around random words for decoration, as in "TRY" OUR HOT DOG'S, or even TRY "OUR" HOT DOG'S.
-- Dave Barry, "Tips for Writer's"
punted.
Bastards. Bilski is invalid, machine-or-transformation is thrown out, but the court explicitly provides no further guidance either way.
How could you write a blurb about the "Bilski patent" without explaining what the Bilski patent actually is? How could the editors pass on such a terrible blurb unmodified?
A slashdotter who didn't build his own computer is like a Jedi who didn't build his own lightsaber.
To: CmdrTaco the english-killer.
The title should be "Supreme Court Throw Out Bilski Patent", not "Supreme's Throw Out Bilski Patent".
Let's make a Patent that Patents the system for which Patent Lawyers & Patent Registers Circumvent Common Sense and are awarded Patents. That way anyone who files one of these ridiculous patents are infringing upon my patent. Anyone who defends the patent is also infringing upon my patent.
I'll see you in court Bitches. (That is step 6 of my process)
The Software Freedom Law Center has a great response up. From SFLC chairman Eben Moglen: "The confusion and uncertainty behind today's ruling guarantees that the issues involved in Bilski v. Kappos will have to return to the Supreme Court after much money has been wasted and much innovation obstructed."
(I hope they'll be providing a deeper analysis later on; the above came out like ten minutes after the decision, so obviously it's just based on the summary of the decision.)
-Karl Fogel
http://www.red-bean.com/kfogel
Supreme's Throw Out Bilski Patent
How many time's [sic] do I have to sic Bob on you?
Free Martian Whores!
This supreme court is stacking up to being the best one ever!
The judges have created a new test...
No, the judges said that the "machine or transformation" test that the Federal Circuit used to reject Bilski wasn't the exclusive test, but merely an important tool... And then they left it at that, and didn't specify a new test.
The important parts to take away here are that this decision carefully tiptoed away from software, and did affirm that some business methods are patentable.
They've basically declined to create a new test. The "majority" opinion, in its strongest parts, which leaned more in favor of business-method patents, only got 4 votes (Scalia didn't join those parts). The main concurring opinion (by Stevens), which leaned more strongly against business-method patents, also only got 4 votes. Scalia joined a separate opinion by Breyer which emphasized the common points between the two opinions, but leaned slightly against business-method patents. It agreed with the majority that the "machine or transformation test" wasn't the sole test, but still thought it was the main useful one. That opinion also ended up with a list of examples of ridiculous business-method patents that are definitely not legit, so it doesn't seem Scalia would actually uphold most specific business-method patents that came across his desk.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
It's also worth looking at the approach of the NYT. I revere the Gray Lady's punctuation standards. If they ever allowed "Supreme's" through (they would not...) they would rightly insist on the apostrophe because they are a newspaper of record which means that in the future someone might read the head line and should not think that Diana Ross had a hand in the decision.
In punctuation, a little learning is a dangerous thing. If you read Lynne Truss's essay on the apostrophe (and it is far from the last word on the subject) you will find out that even greengrocers' apostrophes are not always wrong: they date from an age when new fruit and vegetables were appearing, and their customer needed to know that there was a difference between potato's and asparagus. Later the issue was resolved by adding an e - potatoes - but you still needed to know what the rule was. Whereas, if you knew the "apostrophe rule" you knew that one of those red fruits labelled "tomato's" or one of the yellow fruits labelled "banana's" was a tomato or a banana.
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
While Bilski lost, the Supreme Court did not throw out software or method patents. The Supreme Court actually re-opened the door just a bit after the Federal Circuit had left it cracked.
The actual majority opinion is only 16 pages long, and really doesn't say much. They more or less like the "machine or transformation" test that the Federal Circuit had come up with... wherein a method patent must tie any abstract ideas to a "particular" machine or transformation of matter, such that the abstract idea may be combined with other machines or transformations not protected by the patent. However, the Supreme Court now says that while this test may get the job done most of the time, it is not necessarily the only possible test (and they don't say what the other tests might include.
Most important for software patent watchers, the Supreme Court completely ignored In re Alappat and the impact of "Beauregard claims" on the Federal Circuit "machine or transformation" test. That older Alappat decision opened the door for patentee to write claims for software as being articles of manufacter. This "Bearegard" format is basically a sneaky trick... saying that you haven't invented software on a hard drive (which should be analyzed as a method), but rather you've invented a hard drive that has software on it (which should NOT be treated as a method). This is how most software still gets in the door, as the PTO gives it a wink and a nudge doesn't treat it as being "software" at all! This was the issue that software patentees were watching mostly closely, and Supreme Court was completely silent and left the status quo untouched.
Nice headline, but it does not reflect the total picture. This opinion is NOT a victory whatsoever for the anti-software patent crowd.
too bad we are at the border of the abyss.
Software patents are still good. The court seems to unanimously agree to maintain the status quo that software methods are patentable subject matter.
Business method patents are still good, but just barely. The opinion is split 5-4 in favor of business method patents, but puts some rather vague restrictions on them (e.g., must not be abstract ideas).
Mike Borella http://www.borella.net/mike
Is the real story that Bilski case got thrown out over machine-or-transformation test failure, or that the article contains "Supreme's" in the name?
Most important for software patent watchers, the Supreme Court completely ignored In re Alappat and the impact of "Beauregard claims" on the Federal Circuit "machine or transformation" test. That older Alappat decision opened the door for patentee to write claims for software as being articles of manufacter. This "Bearegard" format is basically a sneaky trick... saying that you haven't invented software on a hard drive (which should be analyzed as a method), but rather you've invented a hard drive that has software on it (which should NOT be treated as a method). This is how most software still gets in the door, as the PTO gives it a wink and a nudge doesn't treat it as being "software" at all! This was the issue that software patentees were watching mostly closely, and Supreme Court was completely silent and left the status quo untouched.
While I agree with your other paragraphs, I disagree here for two reasons... Most software claims are not written as Beauregard claims, but as either method or system claims (or both), cause your second clause - that the PTO gives them a wink and a nudge - is incorrect. The PTO most certainly applies the machine-or-transformation test to Beauregard claims, and I've received several application rejections that cite the Fed. Circ's decision in Bilski against them. So, since we still have had to address that test, there's no reason to write a claim as a Beauregard claim when a method or system would work equally well and be arguably broader.
So, can I continue getting patents by adding "on the internet" to common sense operations?
One moment they are called SCOTUS, next they are the Supreme's
Why not refer to it as "The Supreme Court"
The SCOTUS also threw out the Chicago Gun Ban. So the Second Amendment applies to state and local governments, too.
No. 08-964. Argued November 9, 2009--Decided June 28, 2010
Which is about the same as saying ( Justice Potter Stewart, concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964)),
So, can I continue getting patents by adding "on the internet" to common sense operations?
You misunderstand the point of that phrase. It's a technique called claim differentiation and shows up typically in a dependent claim, the purpose being to expand the independent claim from which it depends. For example, say my independent claim is a new forward error connection scheme that involves receiving packets from a network, processing them using my revolutionary new error correction system and appending some sort of advanced hash to them [note: I personally haven't invented it yet, so please don't criticize me by saying "but error correction and hashes are known". This is just for example], and then transmitting the appended packets over the network. Then, in a dependent claim, I say, "The method of claim 1, wherein the network is the internet." Because the two claims, by definition, cover different things, the addition of the dependent claim means that the networks in the independent claim include the internet, but also include other networks - local networks, private networks, metropolitan area networks, wireless networks, wired networks, token ring networks, etc. It's purely useful in a litigation sense so that someone can't say "well, you were thinking of the internet when you said 'network' so when I do it over my corporate intranet, it's different and I'm not infringing."
Here are some quotes from my analysis (I'm the founder and former director of the NoSoftwarePatents campaign):
Again, here's the full text.
I've fallen off your lawn, and I can't get up.
Take a look at http://PatentLawNJ.com/index.php/business-method-patents---bilski-supreme-court-decision
There is no test for patentability now! Machine or transformation is a good one, but not the only one.
A more appropriate name instead of Supreme Court would be Oracle of Delphoi.
Or when the sense is plain. Anybody who has any interest in Bilski would understand this one. At least, I did, and IANAL, though I do follow US patent decisions in a general kind of way.
Headlines have always been a bit of a word game intended to get reader attention, and playing with language is part of that. I submit that it's the people above who think they understand the rules and are allowed to mock people who do not follow their prescriptions who are the "humorless killjoys".
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
" This [, the Information]Age puts the possibil ity of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck."
not necessarily the only possible test (and they don't say what the other tests might include.
You just made all Lisp programmers very, very nervous.
Is also worth reading. Basically, while this is not a hands down win for opponents of software (or business method) patents, the upholding of the older cases (Flook, Diehr, etc.) could give some guidance on future cases that may help them rule out abstract ideas and algorithms. Villa also talks a bit about how the lower courts may see this and how he thinks they may be handling future patent cases.
Sorry, I didn't mean to imply that the machine-or-transformation test is not at all applicable to Beauregard claims. However, BPAI rulings and District Court decisions over the past year have been all over the map on it. Some view Alappat and Beauregard doctrine as turning a "general-use" computer into a "particular" machine, satisfying that first prong. Others opinions "pierce the veil" so to speak, and consider the particularity of the machine apart from merely having software on it (e.g. Cybersource in California).
Regardless, when you invent software and install it on a general-use computer... in my opinion it's fundamentally disingenuous to say that you have a "particular machine". Even if Beauregard claims offer weaker protection than claims written in method or system form, the fact that a patent issues at all creates a chilling effect because most parties will simply consent to a licensing shakedown rather than spend the $4+ million required to litigate validity or non-infringement. Beauregard is simply terrible doctrine, and it would have been nice for everyone (even those who disagree) to get some finality on its status either way.
Since LISP is based on a stack machine, and since being tied to a machine is one of the tests, it would follow LISP programs are always patentable.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Some view Alappat and Beauregard doctrine as turning a "general-use" computer into a "particular" machine, satisfying that first prong. Others opinions "pierce the veil" so to speak, and consider the particularity of the machine apart from merely having software on it (e.g. Cybersource in California).
Regardless, when you invent software and install it on a general-use computer... in my opinion it's fundamentally disingenuous to say that you have a "particular machine".
What's a "general use computer" as opposed to a "particular machine"? The Fed. Circ. ignored that, and SCOTUS unfortunately never addressed it.
While Bilski lost, the Supreme Court did not throw out software or method patents.
If anything they suggested software and method patents have a place in "the Information Age", saying: "The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those in the Industrial Age—for example, inventions grounded in a physical or other tangible form. But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. As numerous amicus briefs argue, the machine-or-transformation test would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals."
What they say in the last sentence is actually false: it would not "create uncertainty" but rather almost certainly rule out patentability. This is the court giving a wink and a nudge to the new slavery: ownership of ways of organizing human beings.
Patents in their up-until-recently form were intended as protection for ways of organizaing brute matter, not living things and not in particular not human beings. Patenting business processes and ways of thinking (which in the Age of Functional Programming is transparently all that software is: mathematical functions that can be represented in their entirety as thoughts) is nothing but a "form of tyranny over the human mind."
Business process patents and patents on ways of thinking restrict humans in ways that if they were implemented by any other means would be considered obviously acts of tyranny.
The good thing about the decision is that it suggests the scope of such tyrannical patents is likely to be viewed as narrow, and the minority concurring decision has much stronger language on the meaning of "process" that leaves the door open to sanity and liberty carrying the day in the end.
Blasphemy is a human right. Blasphemophobia kills.
I believe GP was referring to the missing close parenthesis...
After all that was said has been analyzed; "everything canceled out."
ELOI, ELOI, LAMA SABACHTHANI!?
Oh, well, in that case the lack of balanced parentheses is a business model and it's doubtful that could be patented.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
So... essentially the court accepted a case and then wasted everyone's time doing the USPTO's job, and declared the patent invalid in this specific case because it wasn't patentable material... Something the USPTO should have done in the first place...
No new precedent, no new tests, no new rules... So everything will stay exactly as it is, and the USPTO will continue to approve bogus patents just like this one... Great! I love America!
Works fine on the IE6 version.
"If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be."
and you didn't make them any less nervous. )
Don't piss off The Angry Economist
After reading the 5-16, I went on to read Justice Steven's Option, which makes a lot more sense. Imagine that, he tries to be consistent with the constitution, and history!
We don't know and we're not going to help you, but god damn that Bilski patent was stupid.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
All of the Supremes seemed to agree that Bilski's "invention" was not patentable on the grounds that it was an "abstract idea", and that is clearly forbidden by judicial precedent, along with "laws of nature" and "physical phenomena". Kennedy's opinion states that there was no need for the circuit court to go further in coming up with the "machine or transformation" test as being essential. So, it seems that those that oppose software patents on principle need - for now - to pursue the notion that all of software is really just an "abstract idea", which seems a hard sell given the software community's touting of the real life benefits of computers and the software that runs them.
If humans are mostly water, and beer is mostly water, then humans must be mostly beer.
I read the whole text - the minority opinion really gives a lot of insight into the majority opinion. Here's the basic summary as I read it:
The court rejects "machine or transformation" as a defining test, which is ultimately a test if the patent is concrete. At the same time, they strongly oppose abstract ideas as patentable and it's really awkward to see what's in between those. They give a broad interpretation of process, arguably because "times change" and we're in the "Information Age" despite that there have been endless business innovations over the last few hundred years that would be patent-eligible using this interpretation, yet nobody thought patentable. Still they oppose the patentability of abstract ideas with post-solution limitations, despite this being the majority of software patents. On the other hand, they explicitly recognize some business methods as patentable. In short, it's all very confusing but definitively patent-friendly than the minority opinion.
As an example of patents that I think would be void under this ruling, Apple had to license some patents from Apple that were essentially "sorting, grouping and hierarchical presentation on a portable audio player". I really hope that is seen as an abstract idea "sorting, grouping and hierarchical presentation" with a post-solution limitation "on portable audio player". At least I hope it will, because there wasn't much positive here. Perhaps the most positive is that they were narrowly divided and there's a fair chance it can go 5-4 the other way given a case they can not dismiss so easily. After all, none of them wanted to grant the patent and they really more or less declared it to be an abstract idea without giving any real guidelines on that.
Live today, because you never know what tomorrow brings
It looks to me (after only a cursory skimming of the decision and reading the comments on several blogs) like the Justices did not like software or business method patents but did not want to completely get rid of them in one fell swoop. I would also say that in all probability they believe that some of those patents are legitimate but could not think of a clear way to separate those out from those that should be overturned. They did not feel that this case provided the basis for making that distinction and so left it somewhat open until a future case more closely approaches what they percieve as the line between valid and invalid. They may additionally been signalling to Congress that patent laws should be revised to clarify what types of business method/software patents are valid.
The truth is that all men having power ought to be mistrusted. James Madison
The Court explicitly narrowed the ruling to avoid setting a precedent that would change anything with respect to software or business methods. Nothing has changed.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
In short, enabling those door-to-door energy reseller contract scams. Good riddance.
Florian Mueller fails at trolling slashdot yesterday:
http://yro.slashdot.org/story/10/06/25/149228/Open-Source-Complaint-Against-IBM-Gets-Support
Read about how Florian Mueller is a whiny crybaby who can't believe that everyone is against him and that it must be a plot by IBM and groklaw.
Or read this more detailed list of some of the critiques of his current FUD campaign.
Florian Mueller - the "other" Darl McBride. Even the two Steves are more credible when it comes to Open Source.
Unlike copyrights, patents expire. The patent on the codec in GIF expired half a decade ago.
Patenting business processes and ways of thinking (which in the Age of Functional Programming is transparently all that software is: mathematical functions that can be represented in their entirety as thoughts) is nothing but a "form of tyranny over the human mind."
Business process patents and patents on ways of thinking restrict humans in ways that if they were implemented by any other means would be considered obviously acts of tyranny.
That's actually what the CAFC was trying to get at in their "machine or transformation" test: if the claimed process was abstract enough that it could be done solely by thinking, then people could be infringing in their mind... and how do you get an injunction to stop people from thinking? So, instead, by requiring that the claim be "tied to a machine", you ensure that it's impossible that someone could infringe just by thinking.
I don't know what kind of troll I hate the most:
1) The patent troll
2) The anti-patent troll
3) The I-never-read-anything-but-make-snarky-comments troll (parent)
Pavera, if you (or any of your mindless ilk) had bothered to read anything about this case, you'd know that the USPTO didn't grant the application. From JUST THE FIRST FUCKING PARAGRAPH OF THE SYLLABUS OF THE CASE:
1) The patent examiner denied the patent, saying it wasn't patentable subject matter
2) The Board of Patent Appeals and Interferences agreed, and affirmed the examiner's decision
3) The Federal Circuit affirmed the Board's decision
4) SCOTUS affirmed the Federal Circuit
So, in total FOUR levels of our federal government have said "You can't patent this", while NONE have said the app should have been granted.
Of course, morons never let facts get in the way of a good rant..
Yeah, but Stevens is retiring. Ms. Kagen is next up. I... have my misgivings about her. While an ordinary liberal in some ways, she strikes me as the type to be absolutely pro-government (e.g. the 4th amendment is meaningless, the government can do as it pleases).
That worries me, because we don't need another one of those.
> Patents in their up-until-recently form were intended as protection for ways > of organizaing brute matter, not living things...
There are lots of patents on fermentation processes. I'd call those ways of organizing living things.
> ...in particular not human beings.
True.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
...adopted a "I know it when I see it" rule on the question of what constitutes a patentable invention. Makes things a little tough for the district courts, I think.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
I'd say that anything that's Turing complete is a "general use computer" and anything else is a particular machine.
But the patent lawyers would hate me for that :-)
I have absolutely no idea what any of you are talking about, and it appears that none of you do either.
What does all this blather have to do with the case or the courts decision?
Your post is why I stopped posting to Slashdot and have focused on more modern sites like Hacker News. You deserve a +5, Informative, but I don't participate here enough to get mod points.
Those who complain about affect & effect on
Wrong. While Beauregard claims are commonly used in software patents, they are not the primary vehicle. Claim 1 (the primary and broadest claim) of most software patent applications is a method claim. Beauregard claims are usually the last set of claims, as a "nuclear option" in case courts ever strike down method and system claims. They also have some uses against certain types of infringers. In any case, Beauregard claims are an afterthought. Method claims are where it's at for software.
I've written my share of software patents. Legit ones, not this one-click nonsense that gives the whole field a bad name.
Democracy is two wolves and a sheep voting on lunch.
My favorite use of quotes (or: quote's) was/is at outside the bathrooms at the boat to Catalina Island:
"Restrooms" are for customers use only
The PTO does no such thing. It does nothing but rubber stamps patents... even stupid things that are already patented and easily search able in their own data base. [see cat entertainment devices-IIRC there are 6 different laser pointer cat entertainment patents].
This wouldn't be so bad, but the courts default to assuming that the patent office did something, and tends to pass injunctions at the drop of a hat. So good luck staying in business till you "win".
The only people benefiting from this "system" (due process of law etc) are lawyers and patent attorneys.
The Grey Goo disaster happened 3 billion years ago. This rock is covered in self replicating machines!
There are no legit software patents, and quite a bit of planet sees it that way.
The Grey Goo disaster happened 3 billion years ago. This rock is covered in self replicating machines!
The PTO does no such thing. It does nothing but rubber stamps patents...
Yeah, that's why I'm writing claim amendments for a final rejection at the moment...
... even stupid things that are already patented and easily search able in their own data base. [see cat entertainment devices-IIRC there are 6 different laser pointer cat entertainment patents].
Yes, and there are patents on combustion engines, even though the first one came out more than a hundred years ago. There are different ways of doing something, you know.
This wouldn't be so bad, but the courts default to assuming that the patent office did something, and tends to pass injunctions at the drop of a hat. So good luck staying in business till you "win".
Nope, injunctions are actually pretty difficult, since money damages are almost always going to be acceptable.
The only people benefiting from this "system" (due process of law etc) are lawyers and patent attorneys.
And inventors, and corporations, and consumers. The only people who don't benefit from this system are people who lack the creativity to invent something, but still want to piggyback on others' hard work for free.
It never fails. No matter how many times Dave Barry does the Mr. Language Person schtick, some idiot always stands up and finds something wrong with Mr. Language Person's responses. The whole joke is that Mr. Language Person is clearly incompetent at English and every response is chock full of blatant errors, yet there is always some self-absorbed nitwit who manages to find only one or two things wrong with it, and then launch on a massive rant about those one or two things.
And inventors, and corporations, and consumers. The only people who don't benefit from this system are people who lack the creativity to invent something, but still want to piggyback on others' hard work for free.
So are you claiming the FSF and kin (and me) are only interested in piggybacking on others hard work? Perhaps you think OSS license damage copyright too.
I release a lot of *my* hard work with BSD. I have worked for a engineering company that where getting litigated by a NPE for stuff we came up with quite independently. Where is the reward for *our* hard work. The company went bust when an injunction *was* awarded. Later they (the NPE) took a different company to court and the very patent that made our company go under was eventually thrown out (after 3 years!).
When it comes to patents, only lawyers win. So of course you defend it. Your winning. You get lots billable hours with the current system.
The Grey Goo disaster happened 3 billion years ago. This rock is covered in self replicating machines!
That's easy to say in the abstract. What about Google's PageRank patent? Search was a hard problem for many years. Altavista, etc were mediocre. Google came up with a new approach that was leaps and bounds better. In other words the very definition of a useful new invention. So you are left with two possible arguments why it should not be patentable. Either (1) Google's innovation was obvious such that anyone in the field would have known about it or (2) software inventions as a whole are undeserving of patents.
(1) - If you say it was obvious, then that means some other software creations are not obvious. Whatever those non-obvious software things are would pass test (1). To deny those things a patent you must invoke (2).
(2) - Why doesn't any software deserve a patent? Is creating a great, new, non-obvious piece of software somehow less work than a mechanical invention? Doesn't it require just as much genius, study, insight, and effort to produce a new search system as a new fishing hook or screw design? Software has the potential to be vastly more complicated than any other type of machine. An airplane has tens or perhaps hundreds of thousands of moving parts which must be synchronized. Large program can easily have millions of lines of code performing tens of millions of operations that potentially interact. To say that software is per se not worthy of patenting draws artificial and illogical distinctions between the tasks involved in software and mechanical arts.
Software is NOT purely mathematics, any more than a nuclear bomb is purely quantum mechanics. Functional software has to account for a plethora of real world conditions. How much processing power is available? Storage space? How quickly do we need a result? Are quick partial results better then slow complete results? Does our input data change, and if so how frequently? How do users interact with the system? These and numerous other considerations have to be considered even at the algorithmic level. Just because it all runs in binary boolean logic somewhere doesn't make it all mathematics. The system encodes many other considerations that don't show up at that level. For the same reasons, software can't be dismissed as purely "abstract ideas" or "mental steps". Theoretically you can simulate a game of Doom with bit logic in your head. However the results aren't remotely comparable to playing the game in real-time on a computer.
Now we can quibble over exactly where to draw the lines to get a software patent: how inventive it must be, how narrow the claim coverage is, how much protection it should afford, what the public domain already contains. Those are all legitimate questions. But to dismiss all software out of hand as being inherently unpatentable is nothing but illogical prejudice.
Can't argue with that. Whether that's desirable is left as an exercise for the reader.
Democracy is two wolves and a sheep voting on lunch.
To be honest I am not a fan of patents for anything. This is not that i am against the idea of patents, but the current implementation. In fact after reading about some of the first patents, I am even more convinced that the current system was never designed to promote disclosure of useful inventions.
I will give an example. Say a person wants to develop video codec for use in a game engine a small indie team have developed (aka a bink replacment). So they this completely independently. They then wish to make the codec free for others to implement so they don't want to get any patents etc.
Now they just need to make sure that they haven't infringed on more than 1000 patents in the MPEG-LA pool. So they go to a patent attorney and ask what they think... And the patent attorney says thats going to cost 10k per patent and then adds that everything he says could be wrong. Thats 10 million, just for the basic infringe/don't infringe. Its not even with a judge....
This example can be easily mapped to non software inventions as well. And thats the problem. Just about everything is granted, and independent invention is not a defense, and finally a lawyer and a judge decide what it all means--often years later.
None of this is useful for an economy other than from a patent attorneys perspective.
The problems of patents are however massively amplified with software. If independent invention was proof of obviousness (I think it should be) or at least a defense then there would be less problems. If you could get a clear answer out of an attorney or judge that would help. But lawyers don't get into trouble for being wrong like engineers and doctors.
I even paid for a patent attorney for a review of some of the MPEG-LA patents. He thought every one he checked had serious grounds for invalidation. But that cost so much too. Even if you have prior art. You are tied up in a legal system run by people with a vested interest in resolving things slowly.
Personally I started off that patents are good for some things. Now i think the proper balance is no patents, or a the very least, they should be much harder to get and much easier to challenge (read quick and cheep). There are massive numbers of granted patents right now that should just be thrown out. Ironically these patents probably should never have been granted in the first place even under the current system.
And for the record. No i don't think google should be able to get a patent on "page rank" any more than RSA should have been able to patent RSA etc...
The Grey Goo disaster happened 3 billion years ago. This rock is covered in self replicating machines!
I agree with just about everything you said. The patent system would be a lot better with those types of reforms. But nothing about those problems is unique to software. You're just more aware of it.
IOW software patents aren't the problem. Bad patents are the problem.
Democracy is two wolves and a sheep voting on lunch.
Well i think the problems are more compounded with software. This is for 2 reasons. More people can create software "inventions" that solve a relevant problem, and 2, most of these people consider their solution pretty uninteresting with regards to patents.
Then there are some "practical" considerations. Patents are suppose to have a "preferred embodiment" disclosed, as in with enough detail to make it. Yet every software patent i have read never disclose a working anything and uses very very vague terminology. The reason is that if the are specific enough, they are coded around trivially as compared to hardware. Some other posts in this topic point that out. A patent that is specific enough for a software "invention" is no different from copyright.
The Grey Goo disaster happened 3 billion years ago. This rock is covered in self replicating machines!
Preferred embodiment and disclosure are separate requirements. The patent must disclose enough for one skilled in the art to make it without undue experimentation. So you don't need to spell out every detail, just enough that a skilled practitioner can recreate it without wasting a ton of time figuring out how it works. Source code level is way overkill for this. E.g. I can just say "sort the list of names" and any decent programmer knows how to implement a quicksort on a list of strings.
Preferred embodiment is much weaker. It just requires that if you know of multiple ways to do something and one is clearly preferable, you must disclose that. E.g. if heapsort performs much better in your invention than quicksort, you must disclose that. But you only have to disclose the difference if you know about it when submitting the application. Again, source code level is generally overkill.
I agree most software patents are too vague. But there's a lot of room between hand-wavy vagueness and every-last-detail-in-source code for a reasonably accurate description.
Protection is only given to what the claims describe, not the specification. And claims are required by statute to be a single sentence written in English. They should be a lot tighter than they are now, but the opposite extreme of source-code level descriptions is unnecessarily restrictive.
There's room to work this stuff out. And now we're talking how software patents should look rather than should they exist.
Democracy is two wolves and a sheep voting on lunch.
The Court's Bilski ruling is actually growing on me. Nevertheless, it's pretty easy to see that the issue of defining the limits of an "abstract idea" will likely be the focus of much patent litigation in the near future. I do rather wish that the Court had made more of an attempt to address this. Lacking guidance from above, lower courts will have to address the issue case-by-case, and we'll likely end up with some kind of piecemeal, undefined, "I know it when I see it" means of determining which inventions are too abstract. I wouldn't be surprised if the issue ends up going back up to the Supreme Court again very soon.