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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.
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
Damnit, where's our -1, Humorless or -1, Killjoy moderation option's? We could use them right about now...
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.
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?
Contractions Motherfucker, do you speak them?
I still cannot find the droids I am looking for...
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.
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)),
Except that "Supreme is Throw out Bilski Patent" makes no sense. Also it make no sense if you take the 's as meaning possession either.
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."
"Supreme's" is not a contraction. "Supremes" is a popular term for members of the Supreme Court, not a contraction, and the apostrophe is superfluous. BTW, IMB isn't a contraction, either, it's an acronym.
English, motherfucker, can you type it?
Free Martian Whores!
Here are some quotes from my analysis (I'm the founder and former director of the NoSoftwarePatents campaign):
Again, here's the full text.
You'g. I'o wha'nt.
The stories and info posted here are artistic works of fiction and falsehood.
Only fools would take it as fact.
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.
So that's how klingon was invented...
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.
Translation: Congress, do your fucking job.
The world's burning. Moped Jesus spotted on I50. Details at 11.
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.
You know, if you cannot tell the difference between potato and asparagus then you might have problems that even an apostrophe cannot solve...
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!
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'd say there is a 5-4 majority in favor of dodging the issue of business method patents.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
Yes it is, and if you search for that phrase you will see that it is short for Supreme court justices, where the apostrophe stands for court justice. I have seen this contraction before and thought it strange until I had it explained to me. You will find that many newspapers and such use it. For example: https://www.lectlaw.com/files/exp20.htm
Supremes is also used, but I've never been able to figure out what Diana Ross had to do with the Supreme Court.
So, sorry to be a pendant, but to answer your question, yes, I do type English, and apparently I understand it better than you. CmdrTaco is using correct grammer and spelling.
I still cannot find the droids I am looking for...
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!