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Supreme Court Orders Do-Over On Key Software Patents
Fluffeh writes "It seems that the U.S. Supreme Court has an itch it just can't scratch. A patent granted to the Ultramercial company covers the concept of allowing users to watch a pre-roll advertisement as an alternative to paying for premium content and the company is demanding fees from the likes of Hulu and YouTube. Another company called WildTangent, however, is challenging Ultramercial's 'invention' as merely an abstract idea not eligible for patent protection. Add to this a recent ruling by the Supreme Court restricting patents — albeit on medical diagnostic techniques — and you get into a bit of a pickle. The Supreme Court is now sending the Ultramercial case back to the lower courts for another round, which doesn't mean that the court disagrees with the original ruling, but rather that it thinks it is a patent case that is relevant to the situation and they want to re-examine it under this new light."
This nonsense is crushing innovation. It's one more in a long line of examples of how we need to reevaluate how we govern ourselves.
Try as I might, I seem to be unable to get a patent on Euclid's algorithm.
Palm trees and 8
How is that even possible? What if someone had patented the concept of "auctions" or "transportation of persons other than by foot"?
Saying "let's think about this a little more" is a step in the right direction.
Patents are supposed to be on physical inventions, not abstract ideas.
35 USC 101 states that "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Processes aren't "physical inventions".
Isn't the concept of an advertisement running before you see content as old as radio and TV? Didn't I have to watch Timex commercials to see the TV shows they sponsored?
I think this is just another example of "Same old stuff, but now on the Interwebs!"
Unless there is an actual physical product. patents are inappropriate. Copyright a presentation of an idea, but patenting a thought is a path to policing thought... and wasting time having the courts arbitrate such.
How come Slashdot never gets Slashdotted?
That is a new law.
The original constitution states "physical inventions".
If it subverts the original meaning that is grounds for the supreme court to throw it out. The second issue is math should not be patentable because they are laws of nature and not manmade. Computer algorithms are just this and a process is simply math. Laws of nature have been ruled not to be patentable as well in the past and I think your text from the America Invents act are clearly unconstitutional but I am no lawyer.
What I want to know is if laws of nature as unpatentable are a European idea or American or both? The grandparent is correct in that original patents were for physical inventions with a prototype already functional only. Not for an idea. Otherwise everyone would be quite wealthy or broke as nothing could be made without infringing on everyone else.
http://saveie6.com/
Except that the process clause is meant to cover industrial processes that are not strictly machines, but which are physical inventions nevertheless (at least in the sense that they transform physical material from one form to another).
Agreed... But that doesn't mean that the "process" is a "physical invention," but rather that it must operate on a machine or perform a transformation of some physical material, no (hence the old CAFC test). At which point, software that operates a controller counts.
More like every DVD player that's been manufactured(1995 onward). It's the programming for user operation prohibition flag, inside the player, (rom/pc software), that prevents the skipping of the FBI warning/commercial previews prior to viewing the content.
The USPTO is the victim here. If it doesn't approve a patent it goes into appeal until it does. So they are left with approve a patent, and clog up the legal system and themselves, or reject a patent and clog up the legal system and themselves. The system needs an overhaul.
I know that will come out of the public purse
Make the employees responsible along with every manager above them. They should have to pay the costs. Bankrupt them, I don't care.
We need some new rules stating that a person can't hide behind "I was told to". If it's found to be immoral/unethical, then the person doing it should be held responsible. If said person can point a finger at a superior, then the superior takes more of the fault, but not all of it.
We need people to start taking responsibility for their actions.
If you think you're being told to do something "not nice", they should have a form that can be submitted to your superiors of you stating that you not believe what you're doing is "right". Everyone signs off, you get a copy, they keep a copy. If shit hits the fan, then you're "safe".
This would make "being a jerk" expensive to corps as it would cause a crap ton of paper-work.
That is a new law.
"New" as in from 1790. Specifically, the 1790 Patent Act - passed just 3 years after the Constitution was drafted - included as patentable subject matter "any useful art, manufacture, engine, machine, or device, or any improvement therein." The term "useful art," as it was known at the time, meant an industrial process.
The original constitution states "physical inventions".
Au contraire. The Constitution grants Congress the power "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."
The phrase "physical inventions" does not appear in the Constitution.
In fact, the word "physical" does not appear in the Constitution.
If it subverts the original meaning that is grounds for the supreme court to throw it out.
First, as noted above, the same people who wrote the Constitution wrote the Patent Act, passing it just a couple years later. Thomas Jefferson was the first Patent Examiner. It's a pretty tough argument to say that the founders didn't understand what the founders intended.
Second, the patent clause of the Constitution is one of the explicitly enumerated powers of Congress, and Congress has the power to pass any laws "necessary and proper" to performing those powers. Which means that the Supreme Court is supremely deferential when it comes to whether Congress has the power to pass a law regarding one of those enumerated powers. Basically, if Congress says that "useful arts" includes processes, the Supreme Court isn't going to reverse that by arguing they lack the power to define "useful arts".
Third, as noted, the Constitution doesn't include "physical inventions" as a limitation. Accordingly, it's a misreading to say that by allowing patenting of processes, they are "subverting the original meaning". I think you're getting confused with an entirely different clause - the "to promote the progress of [the] useful arts". Whether patenting processes subverts that is an entirely different question, which as of yet, you've not raised.
The second issue is math should not be patentable because they are laws of nature and not manmade. Computer algorithms are just this and a process is simply math.
You're right, and that's why computer algorithms are not patentable by themselves. Instead, they must be explicitly tied to a machine or performed by a machine, because machines are not laws of nature, nor are they man-made.
Laws of nature have been ruled not to be patentable as well in the past and I think your text from the America Invents act are clearly unconstitutional but I am no lawyer.
I have no idea what part of the AIA you're referring to. It says nothing about patenting laws of nature. Would you care to quote a passage?
What I want to know is if laws of nature as unpatentable are a European idea or American or both?
Both. However, "software patents" are patentable in both Europe and America, provided they are tied to a physical machine. It is software per se that is unpatentable.
The grandparent is correct in that original patents were for physical inventions with a prototype already functional only. Not for an idea.
As noted above, the grandparent is provably wrong, based on the Constitution and the original Patent Act of 1790. Additionally, the requirement of a prototype went away in 1880.
Otherwise everyone would be quite wealthy or broke as nothing could be made without infringing on everyone else.
And yet the economy continues and Apple
The second issue is math should not be patentable because they are laws of nature and not manmade. Computer algorithms are just this and a process is simply math.
You're right, and that's why computer algorithms are not patentable by themselves. Instead, they must be explicitly tied to a machine or performed by a machine, because machines are not laws of nature, nor are they man-made.
Ah, I see you are one of those religious fundamentalists. Machines are far too complex to be man made! All those intricacies and complexities. They must be made by God. Amen brother!
On the 1st day God created computers. On the 0th day he rested. Then there was a recursive loop, a segfault and a buffer overflow, and that explains how things came to be. Hallelujah!
Big apple, new Yorik, undig it, something's unrotting in Edenmark.
There aren't any "pure mathematics" patents.
What about these:
https://en.wikipedia.org/wiki/ECC_patents
Or these:
http://blogs.teamb.com/craigstuntz/2012/04/04/38707/
Or any of the hundreds of other patents on mathematics? What specific machine or material does a patent on finite field representations cover? Keep in mind that Certicom claims that its patents cover all computer architectures equally.
These are not industrial processes, these are not specific machines, these are patents on pure math with a formal statement about running the software on some computer.
Palm trees and 8
The term "useful art," as it was known at the time, meant an industrial process.
Exactly—and an industrial process is a specific way of making a physical product. This is completely separate from the abstract processes under discussion, which are aspects of mathematics—natural laws—waiting to be discovered, not applications of those laws invented to further the production of a specific material good, which is the essence of a "useful art".
The critical term, of course, isn't "useful arts" (which only occurs in the justification, not the actual power) but "Inventors". Algorithms aren't invented. Like other natural laws, they're discovered. Invention requires the application of the laws thus discovered toward a specific, concrete end.
The second issue is math should not be patentable because they are laws of nature and not manmade. Computer algorithms are just this and a process is simply math.
You're right, and that's why computer algorithms are not patentable by themselves. Instead, they must be explicitly tied to a machine or performed by a machine, because machines are not laws of nature, nor are they man-made.
While this is a very common argument, making it requires one to be (deliberately?) obtuse. A patent on an algorithm[1] running on a general-purpose computer is indistinguishable from a patent on the algorithm itself. The algorithm, as a universal natural law, is not eligible. The general-purpose computer was not invented by the applicant, and the use of one to evaluate any algorithm is obvious, as this is the purpose and nature of any general-purpose computer. What is left to patent?
If Google is to be believed, we'll have wearable heads-up displays by the end of the year. I mean, come on - that's freakin' science fiction right there.
Only if they can navigate the patent minefield, and manage to get it to market without anyone blocking it with an injunction. The way the mobile market is looking right now (approaching a complete all-vs.-all digraph of lawsuits), that's not looking very likely.
Moreover, it's not like the primary roadblock preventing use from having these sorts of wearable HUDs was ever in the software to begin with. It's just taken this long to develop the miniaturized logic circuits, displays, and batteries necessary to make it practical. Are you really trying to argue that no one would develop the (rather trivial) algorithms needed for HUDs without software patents?
[1] There are no "computer" algorithms, just universal mathematical algorithms which computers happen to be able to evaluate.
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
Wow, where should I begin; false dilemma, straw man, coincidental correlation? False dilemma: Just because there are significant innovations now, does not mean that there would not be more significant innovations without software patents. Straw man: Stifling innovation is not the same as making "it so unprofitable to innovate that no one does it", which is the point you go on to attack. Coincidental correlation: Just because we have patents and then innovation does not prove that patents cause innovation.
Considering that innovation predates patents (so there cannot be an exclusive causal effect), where is your evidence that patents further innovation?
(Personally, I believe patents can encourage innovation, but I also believe in the proverb "too much of a good thing, is a bad thing.")
trollolololololol you dont want to debate, you want to argue.
... says the guy whose initial post consisted solely of: "O please, the chilling effect from the current patent situation is felt by every maker on the planet."
If you'd like to come back and actually debate by stating a conclusion supported logical arguments from your evidence-supported premises, then please do. If you'd like to shoot off single-line snipe attacks, then why not just post as an anonymous coward like all other trolls?
If you cant understand how the current patent situation can stifle innovation, then you arent paying attention.
Conclusory statement. Not an argument.
By their very nature, patents restrict, not enable.
Irrelevant, no one had raised an argument that patents "enable" things.
So while we get more money driven inventions, that doesnt automatically mean that its the most productive system or that its societal benefit is maximized.
True, but likewise irrelevant, and fails to support your original argument of a chilling effect. Just because we don't know that the system is not the best system doesn't mean it therefore is the worst system.
Patents are a nicety given by society to encourage innovation. If it becomes apparent that patents stifle more then they benefit, then the entire concept needs to be revisited. Patents are for SOCIETAL benefit, with a side dish of offering the inventor a nice little limited monopoly to give him a 'attaboy'.
Agreed. Now, I'm simply asking for your evidence that patents stifle more than they benefit. This is the original evidence I asked for, to which you demurred and instead said "but everyone knows it exists". If you can't support your conclusion with facts, then, while it may be true, you'll never convince a reasonable person.
http://www.google.com/patents?vid=6563928
Can you even see what machine this patent refers to? The closest thing to that is in claim 122,
a data communication system
Which may not even refer to a machine, since we can communicate by shouting at each other across a room, by writing numbers of sheets of paper, etc. This is not even a formal reference to using a computer; it is just a vague reference to the concept of communicating electronically. Otherwise, these claims all cover pure math.
http://www.google.com/patents?vid=6782100
Tell me if you can find a claim that even vaguely refers to a machine, because I cannot.
http://www.google.com/patents?vid=5854759
Again, I am not seeing a claim that mentions a machine, but maybe you can point it out for me.
The ball is in your court; tell us how these patents are somehow not actually patents on pure math.
Palm trees and 8
This is a fairly common procedural follow-up to a Supreme Court ruling that might have implications for other cases. The situation is roughly like this:
1. Cases A, B, and C, on related but not identical subjects, file for Supreme Court review of a lower-court decision.
2. The Supreme Court hears A, and issues a significant new ruling. This ruling might have implications for B and C, but they weren't considered by the Court, because the Court only heard A.
3. Now the question is, what should the Supreme Court do with B and C, whose appeals are still pending? They could accept the cases for hearing and decide them, too. If they were on exactly the same issue as A, the Court could've consolidated A/B/C and issued one ruling. But in the more common case where they have potential but not 100% overlap, the Supreme Court doesn't usually want to hear all three cases. Instead they pick a representative one, in this case A, and issue a ruling. But if A overlaps with B/C, it could lead to an injustice if they just reject the B/C appeals.
4. There is basically a new question: in light of the Supreme Court's recent decision in A, are the lower-court decisions in B and C still correct, or should they be modified?
5. The principle is that the lower courts are supposed to look at such questions first, so the Supreme Court orders that lower courts reconsider cases B and C in light of the recent opinion in A. It's up to the lower courts then to look into whether their original decisions should now be modified. Then once they issue a new ruling, this can be appealed to the Supreme Court again.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
We can agree on one thing: your evidence is circumstantial. Societies have undergone many changes since the 1500's. You have only demonstrated that patents do not completely eliminate innovation (you have not yet offered any evidence that patents do not stifle innovation). I find it curious that the rise in innovation coincides with the Enlightenment, which ushered in many changes to society, in addition to patents. It begs the question, given all the other changes, would innovation have happened at the same rate without patent law? It is, of course, impossible to answer. My gut feeling here is the same as you, but I feel your arguments go beyond the evidence itself.
As for modern software, are you seriously arguing that software patents are the reason (or even an important factor) for the increase in software innovation over the last 40 years? I suspect that a much stronger case could be made for advances in hardware and the diffusion of software knowledge outside of the patent system. I think a stronger case could even be made that the relative dearth of software patents prior to the 1990's, made the current growth possible.
The greater concern is not that innovation would have progressed further without patents. The concern is that software patents, which are a very recent phenomena, have reached a critical mass to actually hinder innovation moving forward. Only hindsight will offer any real evidence into the merits of this concern, but anecdotal evidence abounds.
Steam engines for one? look up the history of the steam engine and you'll see there is about a 25 year gap in progress and that was because of the steam engine patents. It even says in the wiki "He adopted the epicyclic sun and planet gear system suggested by an employee William Murdoch, only later reverting, once the patent rights had expired, to the more familiar crank seen on most engines today."
so there is one right there, and an old one at that. I'm sure that others can come up with newer ones but this is the first one that popped to my head that directly matched your challenge.
ACs don't waste your time replying, your posts are never seen by me.
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