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Easy Fix For Software Patents Found In US Patent Act
WebMink writes "What if there was an easy, inexpensive way to bring software patents under control, that did not involve Congress, which applied retrospectively to all patents and which was already part of the U.S. Patent Act? Stanford law professor Mark Lemley thinks he's found it. He asserts that the current runaway destruction being caused by software patents is just like previous problems with U.S. patent law, and that Congress included language in the Patent Act of 1952 that can be invoked over software patents just like it fixed the earlier problems. All it will take is a future defendant in a patent trial using his read of a crucial section of the Patent Act in their defense to establish case law. Can it really be that easy?"
... we'll generate enough cash to... oh wait ... so many people in power don't want to fix the patent system... nevermind.
I swear they give me mod points to shut me up.
The letter of the law doesn't matter. The spirit of the law doesn't matter. The constitution of the USA doesn't matter.
Do you have money? Power? That matters. And as long as the powers to be want software patents, that's what you'll have, the way it is right now.
"The agriculture ministry is not in charge of Gundam" - Japanese ministry official.
Or, to elaborate a little further: this isn't a puzzle, an Indiana Jones movie, or even science, where there's an Aha! moment, and suddenly a century of mystery is conclusively revealed. It's the law, open to interpretation by at least 3 people, if not 15 or even 200. There is no final truth in the law, there's only your own power to convince someone else that your words carry more weight. If what Lemley says is true, and even if he does win it, I can also guarantee you that the law will be changed to fix whatever loop hole he found.
I have zero faith that he can convince a judge or a jury that he's right, and I have even less faith that congress critters won't change the law to fix his interpretation.
Those who can, do. Those who can't, sue.
Pretty sure submitter meant retroactively.
It's relieving to hear somebody may have found an existing law which would end the patent debacle, but the problem remains that the law is not clear to the average person. Even this paper hoping to clarify what the law says just looks like 57 pages of MSWord to me, and I feel at the whim of the high powered attourneys and politically charged judges to interpret it.
Herman Cain may not have been a quality pick for president, but I'm beginning to think his mantra of "simplify the law so the public understands it" has something to it.
He said:
>> If courts would faithfully apply the 1952 Act, limiting those claims to the actual algorithms the patentees disclosed and their equivalents,
Clearly the authors were thinking non-obvious stuff with complexity such as a Fourier Transform would be patentable but how about just parts of it? What is the smallest/simplest functional thing that could constitute an algorithm?
If this gets enacted as case law the obvious next step is that Apple will patent the 'for' loop and Microsoft will licence the 'if' statement.
It's not actually a loophole. Patents are supposed to cover a specific approach to solving a problem, not the ability to solve a problem at all.
His flaw is the assumption that software which is nothing more than math falls in the realm patents. It doesn't. Any Darwinian monkey would know this.
No, his awareness is that, however silly it may be, the courts have to this point declined to declare math implemented in a software algorithm as unpatentable. Given that reality, he outlines a possible approach to mitigating the resulting damage.
Your assumption is that common sense matter in a court of law. It does not.
No
MouseClass extends ScrollClass, which extends TabClass, which extends SidebarClass, which extends PowerClass, w
Software is Algorithms. Algorithms are methods of achieving a goal. Patents are for novel non-obvious devices or methods.
The claim that software shouldn't be patentable because "it's just math" isn't very strong. By a similar argument all patents could be invalidated because physics is just math and machines are simply applying physical algorithms. Furthermore the "physical things are different from virtual things" meme is going to hold society back in the long run so we may as well start getting rid of it now.
What needs to be reformed in software patents is the distinction between abstract algorithms and applied algorithms (so you can't patent "merge sort", but you could patent a particular formulation of a recursive merge sort).
I do tend to agree that software patents have become about patenting the idea of implementing something and has become divorced from the specific implementation.
You can patent how you implemented something, but not the notion of doing it in the first place.
The infamous "One-click" patent, which as far as I'm concerned amounts to "a method and system for doing one of the operations of a system is capable of doing, but with a single button click by using already configured information" only they've added "when buying stuff".
Because there's a lot of things which people have implemented behind a single button which can easily gather several bits of data, assemble them, and take an action. In fact, it's damned near the Von Neumann model of "input, processing, and output".
We've had buttons before. We've bought stuff before. We've even bought stuff online before and have transaction processing which handles it. We've even allowed you to log into a system and be recognized as a distinct user for which we have information stored.
But as soon as a web-site presents you with a single button next to an item, and clicking it causes it to use the information already known about you (shipping address, credit card info) to process a transaction and initiate shipping ... well, clearly we have performed magic and nobody else could have possibly come up with this idea on their own.
Lost at C:>. Found at C.
Actually, that's not at all true. In my practice there have a couple of times where I've found a case that leads me to a statute that none of the attorneys or the judge involved in the case knew existed. In one case I read the statute to the court and opposing counsel nonsuited (voluntarily dismissed) his own suit.
/today/.
Practicing law is fun BECAUSE it is complicated and too big a field of knowledge for any one person to know everything - you learn over time, get better, find the tools that work for you and find new ways to apply them. But sometimes, you just need to sit down and plow through a 50 page statute to find the tool you need. We've got a half-dozen competing content filtering software tools that are supposed to make the job easier, but there's just no replacement for starting with the written law.
Anyway, I'm not saying this guy has found a "we win" button, but its good to see the academics turning their attention back to solving problems that actually happen in court
While the US legal system is such that entities can drag even blatantly bogus lawsuits out for years, so winning against individuals and smaller businesses just by attrition of legal costs, fine-tweaking the definition of bogusness wont have even the slightest effect.
Give the bankrolls a couple minutes, they'll fix this. Easy fix. Trust me.
Understanding the scope of the problem is the first step on the path to true panic.
Here is the crucial quote from the abstract:
I'm not sure this would fix the problem. Sometimes, the fact that the algorithm is patented is the problem. Think about it: if a patent didn't cover the idea of generating a sorted sequence from a potentially unsorted one, but only covered quicksort and its equivalents, would that still be a problem? I'd say it's better than covering any implementation of any sorting algorithm, but I'm not sure the resulting situation is really where we want to be.
Please correct me if I got my facts wrong.
Finding a case that leads to a statute is a bit different than simply interpreting a very well known law. But I grant your point that the body of law is so vast that it is not possible for someone to know everything, which makes it entirely possible to have an Aha moment. I just don't see this particular interpretation to be novel. It reminds me more of Eben Moglen's approach to fixing copyright by arguing that the current copyright system provides for essentially infinite copyright, which is unconstitutional. Pretty much everyone knew that that was the case in practicality, but he still got roundly shot down before the Supreme Court.
Those who can, do. Those who can't, sue.
Im sure judges are getting tired of all these patent suits and would happily hang their hat on whatever point of law that would produce the most productive and expeditious result consistent with due process. If a court can narrow the application of a law in a way that reduces their workload, you bet they will.
The url *does* have a question mark after the headline!
Err, make that Lawrence Lessig. That's what I get for not actually reading the Google search results.
Those who can, do. Those who can't, sue.
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
No sigs in BETA. Beta SUCKS.
Copyright already solves this problem. If I copy the exact way you do it, copyright grants you protection (like writing the same paragraph as you in my thesis). If I come up with a different way to accomplish the same thing (as in, found a way to copy documents that isn't the same way a Xerox machine works), I should be allowed to. I can't see anything other than personal agenda to disagree with this
"When life gives you lemons, don't make lemonade. Make life take the lemons back!" -- Cave Johnson
It's good to see that an actual attorney is weighing in on this. It provides, at least for me, a better perspective on where the profession stands.
If ever my life, my family, or my livelihood is on the line in a courtroom; I will try to remember that my attorney is "having fun".
I'm sorry, but your opinion seems to be wrong.
What this boils down to is tightening up the enablement and written description requirements of 112 of the Patent Act, specifically with regard to the way functional claims are judged. This is not a particularly new idea, and quite a few people (including those that could be called 'pro-patent') have been saying for years that this is a reasonable way to address problems with lots of different kinds of patents, including software patents, that doesn't involve technology-specific changes to the law. I certainly have mentioned it on Slashdot many times (e.g. this comment from 2010).
One issue is that the use of functional claiming has been in pretty steep decline for a few decades now. So I'm not sure just how many software patents this approach will catch, but it could be that software patents are one of the last holdouts for functional claiming. Alternatively, the courts could begin to interpret software patents as using functional claiming even when they don't use the traditional "means-for" construction. This is already done in some cases (i.e. "means for" is not a necessary magic phrase), but it could become more common.
The bottom line is that this is a call to restrict patenting to only that which the inventor actually discovered and actually described in such "full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains to make and use the same." In other words, to enforce the statute as written.
I can't tell you how sad this makes me. Law's only purpose is to serve the people. If the people can't understand it then we're fucked.
I don't think you understand courts and judges. Judges aren't sheriffs. They don't enforce the law. They're more like referees in that they make sure both sides play fair in the court of law. It's up to the lawyers to present and support their case, a judge simple decides who made their case. If a lawyer chooses the wrong cases from previous trials to support his argument (essentially, he fails to support his argument), then he loses - more specifically, his client loses.
People give lawyers and judges a hard time, but they're the one preserving our liberties. We don't give them enough credit. The people who should be blamed for our problems are the idiots who write the laws. Lately that's been private interests and lobbyists and not our representatives.
What would a non-Darwinian monkey be?
At any rate, you're wrong. While some functions of software are functionally mathematical/algorithmic in nature (sorting, searching, recursion, iteration, encryption, compression, etc.) most software developers would be hard pressed to describe or express their work as a whole in mathematical terms. Requirements definition, human factors / usability, prototyping, supported interfaces, etc. are approached from a form and function perspective, not a mathematical perspective.
If you aren't part of the solution, then there is good money to be made prolonging the problem
Except physics isn't math. We can model physics with mathematics, but that doesn't mean they are literally the same thing.
Conversely, algorithms *ARE* math. This is entirely provable (a good text on the theoretical foundations of computer science might even describe such a proof), but probably not readily comprehensible to people who do not have a very thorough understanding of mathematics and mathematical proofs (which is, I'm afraid to say, most people... including even a lot of computer professionals).
File under 'M' for 'Manic ranting'
> Practicing law is fun BECAUSE it is
> complicated and too big a field of
> knowledge for any one person to
> know everything...
Yes, FUN! And it's not like anything important is at stake. Not like anyone's life ever got ruined because of cases like you described. No one ever went to jail, lost their job, their business, their family, all their savings, etc., because no one playing was aware of the law that could have freed them. FUN, I tell you!
And it's not like the deck is stacked against the little guy in the first place, or that big companies with big war chests win solely because they have more money to throw at a problem. Or win by attrition. Or that they bought unjust laws in the first place. Yes, it's just LOADS and LOADS of FUN!
Dear Slashdot: next time you want to mess with the site, add a rich-text editor for comments.
Would you rather hire an engineer who genuinely enjoys their work, so much so that they spend much of their free time pursuing their love of design and engineering work (i.e. free practice and training) or one that only ever looks at a problem when he's paid to do so and stops as soon as he finds an answer? I very rarely stop thinking about my cases, even when I've been off the clock for hours, I'm still mulling over the issues and trying to find better arguments. For me, its a passion.
Just because a job is important doesn't mean that those who do it aren't allowed to enjoy themselves.
THIS
Even if a judge knows a better argument a lawyer could be making he cannot step in and help. It's up to the lawyers to present their case as best they can.
Well not exactly.
The higher courts often reach to statutes and case law that was never mentioned by either side during their arguments.
Sig Battery depleted. Reverting to safe mode.
They're not mutually exclusive. Just because something is important and consequential does not mean it can't also be fun.
> Practicing law is fun BECAUSE it is > complicated and too big a field of > knowledge for any one person to > know everything...
Yes, FUN! And it's not like anything important is at stake. Not like anyone's life ever got ruined because of cases like you described. No one ever went to jail, lost their job, their business, their family, all their savings, etc., because no one playing was aware of the law that could have freed them. FUN, I tell you!
And it's not like the deck is stacked against the little guy in the first place, or that big companies with big war chests win solely because they have more money to throw at a problem. Or win by attrition. Or that they bought unjust laws in the first place. Yes, it's just LOADS and LOADS of FUN!
Yes, that's why people who have *careers* choose the field that they do. Because they enjoy doing the serious business of whatever field that happens to be. For me, that's IT. I have *fun* doing IT because it allows me to explore new technologies and creatively design and implement solutions for real problems and situations.
When the GP said that this guy is having fun, I knew immediately what he (she?) was talking about. I work harder and better because I have *fun* doing what I'm paid to do. Is it all fun? No. If it was all fun and games, they wouldn't call it a job -- and you wouldn't get paid for it either.
Is it possible that you folks who don't understand what it means to have a fulfilling and yes, fun, career? That would really be sad.
I'd much rather have a lawyer who enjoys his work and is energized to go the extra mile because it gives them pleasure (read: has fun) to do the best job they can.
A successful career is about much more than money. If you can't understand how that's supposed to work, I pity you.
No, no, you're not thinking; you're just being logical. --Niels Bohr
However, any case law or ruling by any two bit judge in any podunk jurisdiction trumps the legislature every time.
Not every court decision automatically becomes case law. Courts also aren't compelled to abide by decisions in a different jurisdiction -- for example, it's entirely possible for the First Circuit court to make one decision, while the Third Circuit could have a near identical case later and reach the opposite decision. For examples of this look at case law around the country on filming police officers on duty -- the law really depends not only on what state you live in, but what judicial circuit -- some have stated this is a First Amendment freedom and therefore trumps any state or even federal law on the matter; courts elsewhere have disagreed. It won't really be decided on a national level until/unless the issue comes up before the Supreme Court.
For me, its a passion.
The complexity of engineering made it a passion for Rube Goldberg, too, and this is what people are responding to here. To the average person's ears you're saying, "The [needless, gratuitous, egregious] complexity of the law makes it fun."
A lot of us suspect the law could be a good deal simpler (certainly true) but for the fact that the people who work in the feild actually enjoy the complexity. There's nothing wrong with enjoying stuff that's as complicated as it needs to be, but I know as a scientist and engineer who has been involved in patents in software and genomics, and as a businessperson who has done a good deal of his own legal work, that the law is more complex than it needs to be in any number of respects, and if more lawyers, judges and legislators hated complexity with a passion, rather than finding it "fun" we might have laws that are closer to the lower bound of possible complexity, rather than continually bumping up against (or soaring far beyond) the ceiling of complexity that is either practical or needful.
I am not saying the law can be "simple" in any absolute sense, merely that it can be simpler than it currently is, especially in the US (which compared to my native Canada is a nightmare), and if more people working with the law were simplicity-focused we would be better off than we are.
Blasphemy is a human right. Blasphemophobia kills.
http://www.eco-action.org/dt/affluent.html
"Above all. what about the world today? One-third to one-half of humanity are said to go to bed hungry every night. In the Old Stone Age the fraction must have been much smaller. This is the era of hunger unprecedented. Now, in the time of the greatest technical power, is starvation an [institution]. Reverse another venerable formula: the amount of hunger increases relatively and absolutely with the evolution of culture. This paradox is my whole point. Hunters and gatherers have by force of circumstances an objectively low standard of living. But taken as their objective, and given their adequate means of production. all the people's material wants usually can be easily satisfied.
The world's most primitive people have few possessions. but they are not poor. Poverty is not a certain small amount of goods, nor is it just a relation between means and ends; above all it is a relation between people. Poverty is a social status. As such it is the invention of civilisation. It has grown with civilisation, at once as an invidious distinction between classes and more importantly as a tributary relation that can render agrarian peasants more susceptible to natural catastrophes than any winter camp of Alaskan Eskimo."
However this could be fixed in our society with a basic income (and/or other changes):
http://www.basicincome.org/bien/aboutbasicincome.html
Every age has its challenges. Twenty thousand years ago, there was no malaria (a side-effect of agriculture), no threat of nuclear war or bioterrorism or nanotech or robotics run amok, communities and familes were probably stronger overall than in industrialized countries, people ate more vegetables and so had little cancer, diabetes, gout, or heart disease, people got a lot of sunlight and so autism and allergies were probably very rare, people who "worked" did so directly for themselves and their families and communities without some complex bureaucratic supervision alienating them from what they were doing, education was very hands-on, religion was likely more a direct experience connected with nature and community for most people, the planet seemed like an endless vista for growth with free land everywhere relative to the number of people, addictions as a "pleasure trap" were harder to get stuck in, etc. etc.. Oh, sure, there were bad things about those times too. My point is not that such times were uniformly "better" (where would we be without twenty-thousand years of dog-breeding to create "man's best friend"? :-), just that the issue is more nuanced than you suggest -- some things have improved greatly, but other things have gotten worse in some ways for a large percentage of the population. Increasing addiction rates are just one sign of social stress and a dysfunctional economic system:
http://en.wikipedia.org/wiki/Rat_Park
http://www.paulgraham.com/addiction.html
http://www.drfuhrman.com/library/article16.aspx
Consider as an example of a conflict between an old way of living an modern society:
"Christian Missionary Deconverted by Tribe"
http://www.youtube.com/watch?v=dr3q6Cid1po
And:
http://www.ishmael.org/origins/Beyond_Civilization/
"Civilization, in effect, represents an attempt to improve upon tribalism by replacing it with hierarchalism. Every civilization brought forth in the course of human history has been an intrinsically hierarchical affair--in every age and locale, East and West, as well as every civilization that grew up independently of ours in the New World. Because it's intrinsically hierarchical, civilization ben
A 21st century issue: the irony of technologies of abundance in the hands of those still thinking in terms of scarcity.