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?"

Comments

It does not matter

[blind biker]

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.

Re:It does not matter

[dpilot]

Funny thing about the feudal system... From the historical perspective, rather than the feudal system failing, it has been implementations of the feudal system failing. In the words of The Who, "Meet the new Boss, same as the old Boss." One dynasty falls, another takes it's place. Even if the new dynasty begins with non-feudal hopes and aspirations, it generally falls into the feudal mold within a few generations. Then the new dynasty itself becomes the old dynasty, that falls to a newer dynasty.

It's really a failing of traditional human nature - we all want to do well by our family - or tribe. That is well and good, until it becomes barriers to the success of others. Like it or not, my family or tribe may not be the best-suited for a given role or position, but if they have that station due to dynastic or influences of oligopoly when others are more capable, then society suffers and becomes weaker.

Re:It does not matter

[eepok]

This is not insightful. It's ignorant of history, truth, and completely hyperbolic.

The truth is that the US judicial system has been *the* floodgate that opens to change from status quo rather consistently. Civil rights, women's rights, rights to contraception and inter-racial marriage. The three branches of our government all have their flaws, but the one that has consistently had less to do with bribes and pressure has always been the judicial.

Defeatism is surrender to the cause you hate. Apathy is just short of volunteering for that cause you hate.

Re:It does not matter

[plover]

There's a big difference. Almost all of the "serfs" today (at least the ones living in America) have shelter, food, clothing, running water, heat, electricity, lighting, TV sets, refrigeration, cell phones, cheap and fast transportation, medical services, borders secure from invasion, and on a level far surpassing the living standards of even the kings of the middle ages.

Sure there's inequity. The balance of wealth distribution is today skewed beyond understanding. I don't have a four-Lamborghini garage, or a stable of race horses; I have a ten-year-old Ford truck and a couple of dogs. But when you start worrying about how bad we have it in comparison to the 1%, or whine about money spent on taxes, try to also compare yourself to the 99% from 150 or more years ago. We live better today than every single human ever prior to 1850.

Re:Betteridge's Law

[NeutronCowboy]

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.

Re:Retrospectively?

[witchman]

I'm sure that, in retrospect, he did.

Sounds like a good idea ...

[gstoddart]

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.

Re:Betteridge's Law

[GodInHell]

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.

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 /today/.

The real problem...

[JustNiz]

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.

Re:The real problem...

[swillden]

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.

I disagree.

In particular, if the courts were to adopt the proposed interpretation, the effect on patent trolls would be devastating. Defendants would be able to make a motion for summary dismissal on the grounds that the patent is a functional patent which under the 112(f) rule must be interpreted in reference to the details of the inventor's implementation, and since the inventor has no implementation there is no possibility of determining the boundaries of the patent and therefore the question is moot. And the motion would succeed. This would reduce such trials from years to weeks, because there would be no justification for a lengthy discover phase.

Even in non-troll cases, it would eliminate the need for most of the lengthy discovery that goes on now, because the defendant could easily argue that all of its internal documentation is simply irrelevant, since the case can be decided by examining the software implementations and determining if they're sufficiently similar. This would still result in trials dominated by detailed arguments from technical experts, so they'd still be expensive, but the cost would be a tiny fraction of what it is now, and it would take far, far less time without all of the extensive (and expensive) discovery.

Perhaps even better, it would encourage inventors (or their lawyers) to write patents which are very specific and narrow, specifically in order to avoid the sorts of broad functional claims which would invoke the author's interpretation of 112(f). Long-term, that would probably be the most important and most beneficial change to the status quo.

Would it be a panacea? Clearly not. But it would make the situation vastly better than it is now -- except from the perspective of patent plaintiffs pushing very broad patents.

Just for clarity.

[cfulton]

Here is the language he is basing his entire argument on from the Patent Act of 1952 section 112(f)

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.

Tightening up enablement and written description

[Grond]

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.

Re:Judges

[Anonymous Coward]

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.