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Supreme Court Skeptical of Computer-Based Patents
walterbyrd (182728) writes "The case, Alice Corp. v. CLS Bank International, poses huge risks for both sides. If the court upholds the patent or rules only narrowly against it without affecting most others, the problem of too many patents — and patent lawsuits — will continue. In that case, Justice Stephen Breyer said, future competition could move from price and quality to 'who has the best patent lawyer.'"
COULD move from price and quality to 'who has the best patent lawyer'?
What COULD? How about we accept the reality it's already happened?
That would spur innovation and business far more than upholding them could.
I doubt the authors of the constitution ever foresaw the risk of patent trolling.
A feeling of having made the same mistake before: Deja Foobar
Who is the best arguer? Who is the best detective? Who is the best doctor? Who is the best programmer? The very nature of being a knowledge worker is that if you are the best you can get your way in spite of reality.
Actually, I thought everything in our court system boiled down to "who has the best lawyer".
Proverbs 21:19
Really? How many times are you going to spend years of your life creating something awesome ... only to have someone else like Facebook or Zynga copy it, market it, and put you out of business?
I doubt you've looked past your own selfishness and actually seen the big picture, so its probably a good idea for you not to pretend to know what the authors of the constitution ... which has nothing at all to say about patents, had in mind when they wrote it.
Persistent Volume manager for Kubernetes - https://github.com/dwimsey/openshift-pvmanager
"I doubt you've looked past your own selfishness and actually seen the big picture,"
... only to have someone else like Facebook or Zynga copy it, market it, and put you out of business?"
but you also said: "Really? How many times are you going to spend years of your life creating something awesome
Now, who is selfish? The person who wants information to be free or the person who wants to be the sole profiteer?
I have the patent to view any output using eyes from a computer displayed or projected on a screen, no big deal ! .. !! patent = cash ? Who's the best lawyer ?
And the patent to use electric in order to make computing devices function.. no big deal !
Oh... wait a freaken second
I beg to differ. I create things all of the time and have realized that, even with a patent, I'm not rich enough to litigate it.
Why can't all fpga/microcontroller manufacturers just release free optimizing compilers???
I create software on a daily basis, for a variety of purposes. I've done work on some systems which have turned out to be very revolutionary and the concept of patenting them seldom came up - one employer, when I posed the question of IP, replied, "We're not an intellectual property company." Which effectively meant, it a competitor saw our system at work, copied it and patented it we'd probably be willing to pay them a license fee just to get off our backs - shocking, but probably the case.
As for Microsoft and Zynga, they're both standing on the shoulders of giants. If various methods of performing tasks within an operating system or performing collision detection and tallying scores existed, neither company would be around today - having been soundly thumped by Sperry, IBM, DEC, CDC, Activision, EA, etc.
A feeling of having made the same mistake before: Deja Foobar
I beg to differ. I create things all of the time and have realized that, even with a patent, I'm not rich enough to litigate it.
And that is litigate it to seek redress or to defend yourself, either way is costly and a bigger dog would simply drive you out of your line of work.
Stop that. We have a patent on pulling weeds, too.
A feeling of having made the same mistake before: Deja Foobar
I should add, the only people who think patents should be abolished are people who don't create anything.
It only takes a single example to reveal how untrue that statement is. To say that no authors can disagree with you is incredibly arrogant.
It's also a mere ad hominem, so it's not even logical. Even if someone doesn't "create" anything, that doesn't make their arguments wrong.
Anyone who creates has a different opinion.
Well, how nice of you to decide what everyone else thinks. I'm a software developer and 100% against patents. Am I not a "creator"? Are you going to resort to a No True Scotsman now?
but ranting around about getting rid of them just makes you look ignorant.
I rant about getting rid of them because I value real private property rights (the ability to use your own resources to accomplish some goal, which at present may infringe upon some patent) over monopolies over procedures enforced by worthless government thugs.
I should add, no human being disagrees with me. If you disagree, you're not a True Human.
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Which effectively meant, it a competitor saw our system at work, copied it and patented it we'd probably be willing to pay them a license fee just to get off our backs
Prior art, surely?
Really? So the next time you are pitching your business plan to a VC, and they ask you about barriers to entry, such as patents, how exactly will you convince them that nobody will just copy your idea and put you out of business?
I am not sure if you are a patent troll, or a regular troll...
Let's say that I also spent years of my life creating something awesome, only to discover that you independently had the same idea and managed to get a patent on it before I did. You then sue me for patent infringement, despite the fact that I was completely unaware of your work. In fact, it is possible that you never even produced a product based on your patent.
This is by far the more common case than what you describe.
Which effectively meant, it a competitor saw our system at work, copied it and patented it we'd probably be willing to pay them a license fee just to get off our backs
Prior art, surely?
You still have to hire a legal defense to plead Prior Art. Meanwhile, the plaintiff's attorney has already done enough research to tell them how much to hit you for licensing, if they don't want to outright kill you (with an injunction) but are happy to just bleed you to death, while they take the proceeds and fund more IP research to see whomever else they can bully - thus limiting competition - so they don't have to perform better service or offer a superior product. Quite contrary to the spirit of the patent clause in the Constitution, I assure you.
A feeling of having made the same mistake before: Deja Foobar
The biggest problem here isn't the question of software patents. It's patents on things that are obvious, or are an obvious progression from something that's already common (eg. taking the manual process of balancing a checkbook and having a computer perform the exact same steps). It's just that software is the field where it's taken root the most, I think because people treat computers as some sort of magic that transforms the ordinary into something extraordinary.
The most straightforward way to deal with it might be to take computers out of the picture. Start by asking the question "If we replaced the computer with a trained monkey who could slavishly follow instructions, would this be patentable?". If the answer is "Yes.", then the patent's valid. If the answer's "No.", then the burden should be on the patent-holder to explain why the application of a computer to this problem is so non-intuitive, so non-obvious, that someone familiar with the problem and computers would not think of letting a computer handle the chore. And "Because nobody's done it before." is not a valid response. Someone always has to be the first one to try to solve a problem. Counter-intuitively, the patent-holder should have to show that they were not the first, that doing this was so non-obvious that there's a large number of other people who knew what they were doing who tried this and could not figure it out. That the first person to try it immediately found this solution should be considered support for the idea that this was an obvious solution and thus not eligible for patent. That is, after all, almost the dictionary definition of "obvious": the first thing you think to try when faced with a problem?
The article suggests that the justices are wavering because there are reservations about the repercussion of their decisions on existing software companies. The issue I have with that is that they should NOT be decided based on the repercussions. Their decision should be made as a matter of law.
I am not sure if you are a patent troll, or a regular troll...
Either he's a skilled (if misguided) regular troll or you are easily trolled.
They "copy it" without you giving them the rights to copy then you sue them.
Just like you do now.
It has nothing to do with patents, as programming is nothing but an application of mathematics to a problem.
You can't patent mathematics.
BURN-IT-ALL.
Facebook and Zynga will steal it anyway.
!? First to file!
While I agree that their ultimate decision should only be made based on the law, that doesn't mean that they shouldn't think about all the ramifications of their decision. If they choose one course of action that follows the law despite those ramifications, it shows they considered all sides of the argument in full.
Personally, I think the only companies that will really be hurt if they decide to throw out software patents are law firms. These guys are spending way too much money trying to litigate each other into the ground, while their own customers have chosen their preferred products largely based on other things besides the patents in dispute.
Occasionally living proof of the Ballmer peak.
Let's say that I also spent years of my life creating something awesome, only to discover that you independently had the same idea and managed to get a patent on it before I did. You then sue me for patent infringement, despite the fact that I was completely unaware of your work. In fact, it is possible that you never even produced a product based on your patent.
This is by far the more common case than what you describe.
Which commonly happens, though if you can show you did arrive at the same result without a very technical means, the patent may be discarded and the idea deemed "obvious"
A feeling of having made the same mistake before: Deja Foobar
I've waffled between being against them or pushing for reform; currently, I'm against them. Here's why:
1. If you're being trolled, they're bad.
2. If you're a troll, you're not creating anything other than lawsuits.
3. If you created something and are small business (don't retain an in-house lawyer or thirty), you can't afford to defend your patent anyway -- its only value is to be part of a portfolio to boost your value if you sell out to someone with lots of money (here, your invention isn't what's valued, but your patent and its war chest strength).
4. If you created something and are a big business, you have the choice of being mired in the current patent sinkhole, or competing purely on how mobile your company is -- innovation and all that, which is what patents were supposed to supprot.
So any way you look at it, the current system is bad. I'm starting to think that it has got to the point where it is almost totally detrimental.
Note that I'm talking about the patent system as it pertains to software patents, not physical inventions. THAT patent system just needs reform.
And yes, I'm a creator in many fields, and even have my name on a patent or two.
Facebook and Zynga will steal it anyway.
There is very little that Facebook or Zynga are doing which is original. Social networking harks back to BBSs and arpaNET. Video games go back to Pong, at the very least.
A feeling of having made the same mistake before: Deja Foobar
You clearly don't know what "copyright" is. There is a difference between patents and copyrights.
As I understand it, you can challenge the validity of a patent at the PTO, and while it is not free, it is not crazy expensive. So if you have good Prior Art, your case is not so dire. Also, since a finding by the PTO of invalidity would ruin the troll's case against all victims, it seems it should be easy to fund the effort in cooperation with your co-defendants.
If you have evidence that you were practicing the invention before the patent was filed, then you are allowed to continue to do so anyway. I.e. it is not possible for anything you are legally doing today to suddenly become illegal tomorrow.
Finally, the threat of injunction is NOT commonly available to trolls. I believe you can only be granted an injunction if you are actually practicing the invention. Trolls can sue for damages (i.e. past royalties for unlicensed use of the invention), but unless they are actually making a competing product, I don't think they can get an injunction. Of course there are work-arounds for this, but the option is not available to every garden variety troll.
From TFA:
Translation: OOH SHINY!!!
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
If just anybody can copy the idea, then it wasn't patent worthy in the first place.
> I should add, the only people who think patents should be abolished are people who don't create anything.
Nope. Someone that creates realizes how derivative everything is. Someone that creates has half a clue. So they know how much bullshit goes on in patents. They realize how much stuff is simply average practitioners applying mundane methods.
If all it takes for reverse engineering is a working example or a simple description then you simply don't have a novel invention. You have something that could be recreated by any number of people in the industry. You probably has something that HAS been recreated by any number of people in the industry.
It's far less trouble to just leave everyone else alone.
Of course there are plenty of self-centered jack*sses that would gladly see the world burn for their own personal benefit. Those are the ones that really dig patents.
It's not about being creative. It's not about having a clue.
It's about being evil and anti-social. It's about being willing to abuse everyone else for your own personal gain.
A Pirate and a Puritan look the same on a balance sheet.
That would spur innovation and business far more than upholding them could.
I doubt the authors of the constitution ever foresaw the risk of patent trolling.
Patent law is in Article I, Section 8 and is the exclusive domain of Congress. While SCOTUS can interpret the statute - "oh, when Congress said 'whoever invents or discovers any new and useful process,' they didn't mean that to include natural laws since they're not really 'new', but just 'heretofore unknown'" - they can't rewrite it. If software patents should be completely eliminated, then Congress should amend the statute to explicitly exclude them.
Really? How many times are you going to spend years of your life creating something awesome ... only to have someone else like Facebook or Zynga copy it, market it, and put you out of business?
Why not go ask Linus Torvalds what he thinks of them doing that? You see, I'm not a dumbass. I don't work for free. Artificial scarcity is stupid. I don't buy into the copyright and patent futures market. So, I ask for the money to do my work or research or create things UP FRONT, and I ask for enough to cover the work and the profit I need for it, then I "give it away for free" since the work has been paid for. If I want more money I DO MORE WORK. This is how the free and open source model works. This is how Mechanics work too. The benefits from the mechanic's labor are unbounded. Instead of putting a coin-slot on the steering wheel so they can benefit in perpetuity from the work they do once, they recognize folks will bypass the artificial restrictions and instead negotiate a price up front and you pay for the entity of the unbounded benefit their work provides. This is a proven model. This is how the Burger Joint works. This is how every labor market works, except "ideas" and "information".
The problem is that with a patent system in place the Artificial Scarcity can be leveraged to cheat the researcher. Instead of paying a fair price for the inventor or creator's labor the corporations cherry-pick among what becomes a success. It takes the same effort to discover a success as it does to rule a solution out. Many discoveries are found in unrelated research. X-Ray radiation was discovered by accident. Without patents to create artificial scarcity of otherwise unbounded and infinitely reproducible ideas and information we'd have a more stable market where people charge what the need for their labors instead of accept less pay up front and gamble their effort in the imaginary property futures market.
What, you think demand is going to disappear if patents do? No, the demand for innovation will still exist, and it will be met. Look at the fashion and automotive industries. They are not allowed copyrights or design patents, and yet they are very lucrative and innovative and sell primarily on design. It wasn't until the 80's that software could even be patented. Oh NO! Your assumptions are shattered! Now what? You could just ignore that we made it all the way past the dawn of the personal computer before greedy dipshits like you decided artificial scarcity is somehow required for anything but stifling progress?
OK, I'll give you that I don't know exactly what will happen if we ban all patents. However, I just gave you two or three examples of markets where patents were not required for innovation. So, if you're a rational minded person, then you've got to ask yourself: Where is the evidence that patents are promoting the sciences and useful arts? Where's the evidence that patents are not harmful? Where's the evidence that patents are beneficial?! THERE IS NONE. So if you're not insane then you'd think: Hey, wouldn't it be fucked-up to run the world's economy of innovation and creativity based on an untested and unproven hypothesis?! I'm going to go ahead and give you the benefit of the doubt. I'll assume you want to end "piracy", right? OK.
Assuming you're not an absolute moron, you now agree we should do the experiment and abolish all patents and find out if patents are beneficial. What if they're holding us back needlessly? What if they're very harmful? I'm pretty sure you'd at least like to try and find SOMETHING to support your stance before continuing to believe in baseless assumptions without any evidence? RIGHT?! You don't and won't have a leg to stand on otherwise. I mean we only have evidence for the null hypothesis: Patents are not necessary for innovation or profit. Now the burden of proof is to PROVE patents are MORE beneficial than not having them. I would put it to you that copyright should
We have patents, and FB and Zynga still do that. So what, the worst case scenario of getting rid of patents is that nothing would change?
Troll is not a replacement for I disagree.
Really? How many times are you going to spend years of your life creating something awesome ... only to have someone else like Facebook or Zynga copy it, market it, and put you out of business?
They can do that anyway, and there's not much I can do about it unless I've got $250,000 to spend on patent lawyers.
And even then...there's no guarantee I'll win. There's hardly anything which doesn't contain a lot of prior art. Most likely my $250,000 will just be added to my bankruptcy bill.
No sig today...
> Which commonly happens, though if you can show you did arrive at the same result without a very technical means, the patent may be discarded and the idea deemed "obvious"
Only after a great deal of wasted time, money, and effort that should never have to be expended in the first place. Piss poor quality of patent examiners is a very real cost that is a burden on the rest of the industry. Abuse of the patent system is far more harmful to innovation than the idea that someone might copy and improve your product.
A Pirate and a Puritan look the same on a balance sheet.
I should add, the only people who think patents should be abolished are people who don't create anything.
Anyone who creates has a different opinion. I don't agree with current patent law and the situation, but ranting around about getting rid of them just makes you look ignorant.
I have personally known software developers with multiple patents to their name who thought patents only rarely made sense. Their employer foot the bill, obviously. In fact, they argued the patents were so worthless and confusing that they had trouble understanding half the patents that were based on their own work.
What I would or would not believe if I were in a different situation than I am now is completely irrelevant to whether or not my arguments or beliefs are valid. It is also not a surprise that humans would suddenly change positions when it suits them; they're only looking out for their themselves. I don't think I'd do such a thing, but doing so would not make someone's previous beliefs wrong. And it would be copying, not stealing.
Since you're using such blatantly illogical 'arguments', I'll say that yes, you are unintelligent.
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http://abstractionphysics.net/
And http://threeseas.net/mind/pate...
Yes, they will. And if you have a patent, then you have a legal right to make them pay you for your idea.
If you don't have a patent, then all you can do is whine about how unfair it all is.
So why do you insist that you don't even want the option to make money when your idea is stolen?
I just hear of bunch of people saying, "I don't like/understand how patents work, so they must be bad."
which has nothing at all to say about patents
Article One, section 8, clause 8
The Congress shall have 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;
You can challenge it with the PTO. But that has next to nothing to do with the lawsuit they bring. The judge will assume you plea is going to fail and you will have to litigate things in front of a judge or in front of a jury.
Thats cute, but you really dont understand what Patents are.
Its not some magical police whissle that will summon Patent SWAT team.
Patents only give you a stronger claim if/when you decide to spend $xxK in lawyer fees to SUE party infringing it. Nothing more.
Who logs in to gdm? Not I, said the duck.
We're doing quite well in EU without software patents.
"Wait. Something's happening. It's opening up! My God, it's full of apricots!"
It seems to be common in software patents to try and claim not just a method of doing X, but the whole *concept* of doing X.
So for instance, the *concept* of doing rubber-band bounce-back. Apple has a patent on this. (http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7479949.PN.&OS=PN/7479949&RS=PN/7479949)
To me this smacks of patenting an idea, rather than a specific way of implementing an idea.
Too much big money is tied up in the value of software patents, and I don't think the Supreme Court is interested in doing what would probably amount to irreparable harm to that many corporations.
Not saying it *CAN'T* happen that the court could rule against them, stranger things have happened in the past - but I wouldn't hold my breath.
Goodness knows I'd sorely enjoy being wrong about this, however.
File under 'M' for 'Manic ranting'
Ah, but this happens all the time to people who actually do own patents. If the company stealing your ideas is a large one, you don't have much of a chance in court.
how exactly will you convince them that nobody will just copy your idea and put you out of business?
You mean like they do already? You really think having a single software patent will stop someone like Facebook, Microsoft or Apple from stealing your idea, and then suing you into oblivion for violating their massive collection of software patents if you say boo about it? The current system effectively disallows small competitors from entering the market without massive risk, and unless they make millions fast they won't be able to afford the patent license shitstorm that will fall on them once the patent owners notice them.
Obtuse is the only word i can think of regarding your position. Your absolutism severely diminishes your argument's credibility.
Good-bye
But they *will* be decided based on the repercussions... what you or I think *should* happen is entirely irrelevant.
File under 'M' for 'Manic ranting'
CHIEF JUSTICE ROBERTS: Well, but I mean, you know, it in different directions. And I understand him to say that in each of those places, that's where the computer is needed.
MR. PERRY: Mr. Chief Justice, Figure 16 has nothing to do with the invention asserted against my client in this case. There are two inventions in this patent. One invention involving multilateral contract formation is not asserted against my client. And all of these drawings pertain to that. The only drawings that pertain to the asserted claims are 25 and 33 to 37. And that was established below, and it's established in this Court. And Mr. Phillips has never disputed it. So the claim he's pointed the Court the figure he's pointed the Court to has nothing to do with the invention. It's for a different invention that is not at issue in this case.
innovation and all that, which is what patents were supposed to support.
I don't think that's the case. Patents were supposed to motivate people to reveal their trade secrets by creating a way they could generate income from licensing them after the revelation. I think applying a "who cares if they keep the method a secret" test to requests for software patents would solve a lot of what's wrong with the current situation.
Their decision is *always* based on law. It is their only job - to *intemperate* the law, and make rulings. Oh and the little thing they can do which is basically toss a law as being unconstitutional. Being 1/3 of the 3 branches of the government is - you know - a pretty important task - if we just wanted trained monkeys to rubber stamp things we could patent it and get rid of judges all together.
Few manager/executive type people say things like this. Their choice is either keep it a trade secret or patent it... unless the stuff you're creating is not very important to the business. Most companies' existence is based on various secrets they possess.
So generous, maybe you should copy your product's source code tree to a usb drive and hand it over to your competitors to save them the trouble.
Read MS-DOS' history. You'll find that MS bought Q-DOS (aka 86-DOS) which was created by Paterson. According to DR-DOS creator, Kildall, Paterson pretty much cloned the entire interface of CP/M to create Q-DOS. The lack of software patents at the time meant he could legally do this. Back then microprocessors were rare and software for them rarer. Do you want to remove s/w patents and promote this type of lawlessness?
interpret- stupid typo :(
Let's assume I come up with the Next Big Thing.
If I do not have a patent, then I can get nothing for it if someone starts copying my idea.
So the bar is pretty low: in order to make the system valuable, I need to justify the cost of getting the patent.
If I do have a patent, then there are many ways for this to play out.
1) The big companies may decide that it is cheaper to license the invention than to sue me. Building a big infringement case is not free. Big companies do have to pay their lawyers. It seems logical that they would prefer to pay me less than the cost of a big court case in order to settle.
2) One of the big companies may want to purchase the patent in order to sue the other big companies, or use the patent in leverage for the next cross-licensing negotiation.
3) One of the big companies may decide to purchase my little company instead of just copying my idea, in order to avoid the bad PR and to get a head start on the competition.
4) Worst case: they kill my little company. So I stop infringing their patents. But they are still infringing mine. And since they have much bigger revenue, they will pay me much much more. Who do juries side with? The little guy who got put out of business, or the mega corporation with billions in the bank? In this scenario, it may be necessary to employ a contingency law firm. Or ... dare I say it ... sell the patent to a troll ...
In any case it seems to me that I come out ahead if I have the patent. Without it, I simply have no options at all.
The big problem with "software patents" (and yes, I've got 'em too) is that they're too conceptual. A patent was supposed to be a complete description for how to perform an action. These days you can effectively get patents on the actions themselves - as if instead of patenting a superior type of cotton gin, you could actually patent the idea that a machine could separate cotton fibers from seeds. You don't even need to build such a machine, just to posit that it could exist and might be built with metal bits. That, IMO, is far worse even than letting existing works be patented by adding "... on a computer" to their titles. Far worse.
Should you be able to patent, for example, the idea of a compression algorithm that works by finding commonly repeated arrays and referencing them, rather than a specific implementation thereof? I submit that you should not.
You're special forces then? That's great! I just love your olympics!
I have 4 issued patents. Several pending.
And I think the patent system as it is now, is more bad than good. I can imagine reforms that would make it useful.
But forced to choose between no patent system and what we have now - I choose no patent system.
Until there is some kind of defense based on independent invention, or "obvious" is given some teeth, the risk of company-killing lawsuits over bullshit patents kills innovation far more than the possibility of royalties helps innovation.
Really? How many times are you going to spend years of your life creating something awesome ... only to have someone else like Facebook or Zynga copy it, market it, and put you out of business?
How many people, right now, are violating Facebook or Zynga patents by taking advantage of their massive design and usability budgets and just solving problems the same way that they solved them, a week later?
It works both ways, you know, and I'd propose that there are far more people in the 2nd camp than there are in the 1st.
You're special forces then? That's great! I just love your olympics!
The court's conservative justices were more supportive of the patent. Justice Antonin Scalia wondered why implementing an abstract idea on a computer wasn't enough to justify patent protection.
"Was the cotton gin not an invention because it just means you're doing through a machine what people used to do by hand?" he asked rhetorically. "Why is a computer any different in that respect?"
Perhaps because to build the cotton gin, he had to figure out the abstract idea of a cotton saw and build a machine to use it. That he needed to build a machine was obvious, how to do that was not. To put the long existing abstract finance idea on a computer did not require a new idea. That he needed to put it on a computer was obvious. Nothing is left to call an invention.
The interesting question is where they go with new algorithms implemented on a computer. Does an invention need a physical implementation like a mechanical machine. Figuring out how to arrange matter to build a new machine is often much harder that figuring out a new algorithm for software. Given the ease of implementing new algorithms, is it a good bargain for society to provide intellectual property rights for one? The practical benefits of disclosure seem small. That leaves balancing the incentive provided by the patent versus the hinderance caused by the patent. The folks doing the software are saying that the hinderance far outweighs the incentives. (The businesses they work for may have a different view.) We can only hope the court will agree with the folks actually doing the work.
especially when the current method of revealing software trade secrets is "right-click, select 'decompile'".
-Hentai [in vita non pacem est]
I should add, the only people who think patents should be abolished are people who don't create anything.
Anyone who creates has a different opinion. I don't agree with current patent law and the situation, but ranting around about getting rid of them just makes you look ignorant.
No, I create stuff all the time and I think patents are a big problem. The stuff I create probably falls into 2 categories:
1. Stuff that someone else has already patented. And by that I mean I developed it on my own without knowledge of the existing patent, but someone somewhere probably already patented it. Patents are supposed to be novel enough that this should almost never happen, but we all know many modern patents are complete trash and a trained chimp could've come up with the same solution.
2. Stuff that someone else will patent at some point in the future.
Either way, I can't afford to patent all my own inventions, nor can I afford to litigate. So patents aren't helpful at all to me - they only serve to put the brakes on development because its basically impossible to write software without infringing someone's patent these days, so everyone is just living in hope that the patent holder doesn't notice or get pissed off with them. That isn't a healthy way to do things.
http://blog.nexusuk.org
I think applying a "who cares if they keep the method a secret" test to requests for software patents would solve a lot of what's wrong with the current situation.
This is an interesting standard because the biggest reason I can see for people not to care if they keep it secret is because there's numerous other groups coming out with nearly identical solutions - to me this means that the potential patent fails the 'non-obvious' test. Otherwise there's things like it's already been used in the past, etc...
To me, the biggest patents I hate is where they go 'standard practic on a computer' or 'something we've done on computers for ages, but now we're doing it on a tablet or smartphone.
I don't read AC A human right
So any way you look at it, the current system is bad. I'm starting to think that it has got to the point where it is almost totally detrimental.
No, any way that YOU look at it the system is bad. For those of us who invent things that we actually own the rights to and who intend to defend those rights there are always ways to make it happen. If you can't find an attorney to litigate your patent, then you either did a bad job patenting it, you patented something worthless, or you haven't exhausted your options.
And yes, I'm a creator in many fields, and even have my name on a patent or two.
I'm thinking you don't actually own the rights (ie your name is on the patent, but you employer owns the rights) or one of the other three apply.
It doesn't mean the system's broken.
I've written software that has a patent and I think it's silly. I only bothered because the person I wrote it for insisted.
If I were to write in a paper in medicine and try to get it published in one of the various medical journals that are out there that have a reasonably good reputation, I would be rejected so quickly if I were to try a "Algorithm for using instruments in surgery, nurse hands over knives handle first" journal article. But the equivalent of this level of obviousness make it through the patent office all the time. Software I have worked on has gotten patents more than once. In all cases, I thought the patents obvious to the point of silliness.
When I was younger, I naively believed that patents demonstrated that the inventor was truly clever and original -- the lightbulb, invention of jet engine, silicon chip, and so on. Now, what I see is a world filled with patents that are a waste of everybody's time and those few who actually truly invent something new are no longer getting the positive rep that used to come with filing a patent.
The solution is simple. You make the patent filer pay a few thousand dollars, you use that money to pay "world class experts in the field" and then you ask the experts, is the invention truly original and of significant value -- so much so that keeping the details of the invention secret would actively harm mankind?
If the patent isn't worth paying a few thousand dollars to file, then why should we even be considering it.
If they own patents that cover my ideas/methods, then no.
I suppose the light bulb or lawn mower would not be patentable for you then. Easy to reverse engineer and all. But amazingly, neither was widespread BEFORE being patented.
And just because it COULD be created by any number of people in the industry doesn't mean that any of them had the foresight to actually apply themselves to figuring it out. You know spending time, money, and energy on something. That's the point. Sally can spend time mowing lawns to make money OR she can spend it inventing a mowing machine that allows one to mow 10 times as much grass in the same amount of time. It might not pan out for Sally. She might have THOUGHT it was possible, but a lot of things are harder once you get down into the actual nuts and bolts. Even then once it does she better have a manufacturing facility and customer base to put it to use or someone else will just copy it and she will have both missed out on making money mowing lawns (opportunity cost of spending time tinkering in the garage) AND she will not get to reap what she's sown during that time in the garage.
Patents give the inventor some modicum of comfort that IF they succeed in their design that they'll be the beneficiary AND that not long after that the public will benefit as well. This makes people willing to work on projects that they wouldn't normally spend their time on if there was no chance of a reward in the end.
I didn't even write this comment for you. You're the anti-social one. I wrote it for others who might fall into believing the garbage you're spewing.
You want to eliminate innovation and public sharing of knowledge? Get rid of patents and watch concepts die in a garage or languish in a lab for lifetimes because inventors are so scared to lose out on their edge in business that they never share it with the rest of the world. Patents increase innovation through incentives for the sharing of knowledge and know how. That's what's important.
I'm skeptical of patents on inventions made of steel, and of gears. Almost anything that can be done with a machine made of steel could also be done manually. Therefore you can't patent a new invention that does the job in a new way.
Gears aren't a new a new invention, therefore a new invention can't be made with gears. Besides, gears just multiply force. Since you can't patent the basic concept ofmultiplication, that means you can't patent an invention that USES multiplication. Gears do multiplication, so you can't patent anything that uses gears.
WTF!?! What the hell does it matter what it's made of? How the heck does the novelty of an invention have ANYTHING to do with whether it does multiplication via gears, levers, or silicon chips!? If it's a NEW way of solving a problem, that's a new invention, whether it's made of wood, metal , silicon, or spinning rusty iron. If it's NOT new method, than it's not a NEW invention. Wtf it's made of doesn't have anything to do with it. I can't believe that's not completely obvious to everyone.
Absolute nonsense. Patents were supposed to 'promote the progress' of 'the useful arts.' Trade secrets had nothing to do with that because nobody who could practice something secretly indefinitely would bother getting a patent, which is costly and expires. If the goal was to reduce the usage of trade secrets, the first step would be to weaken trade secret law, but nobody ever brings that to the table because patents very little to do with trade secrets for proponents or opponents.
This is my signature. There are many like it, but this one is mine.
as a lawyer or a prostitute?
I'm skeptical of patents on inventions made of steel, and of gears. Almost anything that can be done with a machine made of steel could also be done manually. Therefore you can't patent a new invention that does the job in a new way.
Gears aren't a new a new invention, therefore a new invention can't be made with gears. Besides, gears just multiply force. Since you can't patent the basic concept ofmultiplication, that means you can't patent an invention that USES multiplication. Gears do multiplication, so you can't patent anything that uses gears.
WTF!?! What the hell does it matter what it's made of? How the heck does the novelty of an invention have ANYTHING to do with whether it does multiplication via gears, levers, or silicon chips!? If it's a NEW way of solving a problem, that's a new invention, whether it's made of wood, , silicon, or spinning rusty iron. If it's NOT new method, than it's not a NEW invention. Wtf it's made of doesn't have anything to do with it. I can't believe that's not completely obvious to everyone.
The constitution has NOTHING TO SAY ABOUT PATENTS? Really? BEHOLD, Article I, Section 8:
The Congress shall have 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;
That is the definition of a patent. Just because the *word* "patent" doesn't occur in the Constitution, that doesn't mean that patents are not discussed.
http://www.law.cornell.edu/constitution/articlei
So any way you look at it, the current system is bad. I'm starting to think that it has got to the point where it is almost totally detrimental.
No, any way that YOU look at it the system is bad. For those of us who invent things that we actually own the rights to and who intend to defend those rights there are always ways to make it happen. If you can't find an attorney to litigate your patent, then you either did a bad job patenting it, you patented something worthless, or you haven't exhausted your options.
OK, you're right; there are numerous ways to look at the current system and argue it is good. Very few of those ways create a system that is good for the public at large though. I invent things I actually own the rights to, but have not bothered patenting any of them. Why? They're in software, and I think software patents are patently silly. I make money by providing service, which involves creating things. Why spend time and money on litigation when I could spend it creating? All my patents are physical.
And yes, I'm a creator in many fields, and even have my name on a patent or two.
I'm thinking you don't actually own the rights (ie your name is on the patent, but you employer owns the rights) or one of the other three apply.
It doesn't mean the system's broken.
You're correct an all counts. The fact that I don't own all the rights doesn't mean the system's broken, and the fact that you do also doesn't imply it isn't broken.
Your argument is kind of like saying "Look! There's a small group of us that benefit from this specific law! Therefore, the law's not broken!" But the truth is that even broken things work for some people.
Look at it the other way around: in most of the world, there is no software patent law. There are plenty of people making a living creating software -- just look at things like AES: it's european, and wasn't covered by patent law. The inventors did just fine for themselves, as they were paid to invent it, not to prevent others from using it. On the other side you've got Fraunhoffer and MP3 -- they've done everything they could to protect their rights on that one, and the result has been that they spent a lot of money, while others went and implemented alternative formats, or just blatantly ignored their patents. An even bigger case of this is JPEG2000, where the existing patents on wavicle transforms actually held up progress in this area until the patent expired, because everyone just used alternative means to accomplish the same task, rather than go through the hassle of licensing the patent.
Most developers these days are told NOT to look at patents, so that legal ignorance can be claimed if someone litigates. The reason for this in that in software, TIMTOWTDI. So you take the risk, and then re-write so as not to infringe if you do. This doesn't sound all that beneficial for the patent holder.
Sure, some patent holders get lucky, and get rights to their invention sold off for a pretty penny, or in a very small number of cases, actually get to hold on to their patent while licensing the technology -- to me, this is similar to the situation in music, where you have a few rock stars that claim the music publishing system isn't broken, while everyone else attempts to route around it while pursuing the dream.
No, if my source of income was based on an idea that was easily copied and I ran my business so poorly that I couldn't handle the inevitable competition, THEN I'd be stupid.
BTW, you can't "steal" ideas, only copy them.
1. Copyrights should be 13 years, assigned to a human person (creator), with 13 year renewals for the lifetime of the human person, and not renewable after that, except when the human person dies before 26 years has passed and has surviving children below adult age. They can be assigned to a corporation during each copyright period (13 years) but not given away.
2. Patents should be 17 years, assigned to a human person (creator), with one 17 year renewal and no extensions, by the human person. They should not include software or business processes and must be non-obvious and not based on prior art.
3. The above two are the only things that matter. All else is legal fiction based on the incorrect legal fiction that corporations, which precede the US Constitution, somehow have any rights other than trade, but are merely collections of ways to reduce risk by human people.
Here endeth the lesson.
-- Tigger warning: This post may contain tiggers! --
You want to eliminate innovation and public sharing of knowledge? Get rid of patents and watch concepts die in a garage or languish in a lab for lifetimes because inventors are so scared to lose out on their edge in business that they never share it with the rest of the world.
Most importantly, I believe freedom is more important than 'safety' from a lack of innovation.
Second, you have no scientific evidence to back up your view of what a society without patents would look like. If you're going to reply with speculation or act like societies with vastly different cultures and forms of governments are evidence, then don't bother.
[End Of Line]
So... not to say I support the system, because I don't (although my solution is more intermediate than yours: software patents have a lifetime reduced to something like 4-5 years), I'm going to have to disagree with your #2 claim.
Patent trolls ("non-practicing entities" or "non-producing entities" or whatever - that is, companies who buy spend money to buy patents and to pay lawyers, and make money getting settlements or winning lawsuits) do create something other than lawsuits. They create a market for patents that aren't currently being used.
Hypothetical adventure time: let's say I am a mathematician with a really good understanding of audio (I'm not). I create an audio compression scheme that has incredible audio fidelity at 1/10th the bitrates of current codecs (let's say for general-purpose human hearing: everything from music to court recordings to nature sounds). However, the algorithm for this codec is extremely computationally expensive; even with economies of scale, a dedicated chip that can implement the decoding (never mind encoding) in real time would cost $40 to produce today, and in software you'd end up consuming an entire typical desktop CPU. Encoding is even 3x as expensive. As such, there just isn't enough demand for this algorithm right now; storage is cheap enough that people will use the vastly less efficient codecs rather than pay for this. It took me a year of work (2000 hours) to produce this.
Situation #1, no software patents: I earn nothing from the work I did, because I can't commercialize it. Even if I could, somebody would reverse-engineer the algorithm in far less time, and be able to compete without needing to recoup the investment. If I simply publish, I'll never recoup that investment at all.
Situation #2, no NPEs: I earn nothing from the work I did any time soon. If I want to recoup my investment in a few years when Moore's Law brings the price down into line with current audio codec chips, I need to start manufacturing them or I'm not allowed to sue people who do so without licensing my patent (the algorithm is public because it's patented) *or* I have to never publish at which point the innovation may as well never have occurred.
Situation #3, as it is today: I can sell the patent to an NPE, who buys it on the expectation that within a few years, people will either start wanting to license it or will start using it without licensing. I get an immediate windfall of cash to support my continued work inventing better algorithms. The world gets to benefit (not for free, but they do get to) from the innovation. The NPE gets to employ a lot of lawyers. OK, win-win-lose isn't perfect but I'll take it.
As I see it, the problems with patents are different from what the vocal majority here on /. seems to think.
1) Patents on overly broad things need to go. A patent should specify a specific invention. If somebody wants to use the same concept in a different use case, and they think of that before I do, I can't sue them for it. Caveats: The patent owner can add other use cases ("ON A COMPUTER!" to the patent, but that doesn't grant a *new* patent or extend the lifetime of the current one. Somebody else cannot be issued a patent for the same idea in a different use case, unless there's enough work adapting it to that use case that the adaptation itself is innovative enough to be patentable.
2) Better checks for "obviousness" in a patent application. Some kind of jury pool of experts either with academic credentials or other recognized ability to contribute should be asked "what are the obvious ways to do X?" where X is the use case in question (note that the request is not for the *most obvious" only; things which seem impractical today may become practical in the future) and anything that covers the patent in sufficient detail would get it thrown out.
3) Better checks for prior art, both at application and after granting. This would be similar to #2, but would also make it easier to invalidate a patent on the basis of older publications.
There's no place I could be, since I've found Serenity...
You didn't come up with some brilliant system. You just shifted the onus on participating in a system you dislike to your employer.
Your ad here. Ask me how!
Personally, I think the only companies that will really be hurt if they decide to throw out software patents are law firms.
Patents are classified as "assets" for a corporation. Rendering them invalid will essentially cause millions of dollars worth of illusionary government documents to vanish from the company's ledger which is especially problematic if they were used as collateral, as well as all the cross-licensing contract bullshit they engage in.
The purpose of patents were to offer a government enforced monopoly for a specific period of time, and to compensate the public for the costs and effort of the enforcement, the patented method had to be described in sufficient detail to allow those skilled in the arts to reproduce the method. Today the purpose seems to have been corupted, but that is what it was. My opinion is most software patents are both insufficently unique and insufficently described to deserve patent protection; and what protection there is, is of to long of a duration to promote advancement of the field.
Apocalypse Cancelled, Sorry, No Ticket Refunds
But you might still be a lawyer.
(captcha: Perhaps)
Not necessarily. Contrary to what you may believe, not all software is sold. Some of it is simply used as a tool to accomplish some goal, and nothing more than that.
Let's assume I come up with the Next Big Thing. If I do not have a patent, then I can get nothing for it if someone starts copying my idea.
See candy crush. Nothing really patentable there, plenty of copy cats, 9.4BB market cap.
>
Read MS-DOS' history. You'll find that MS bought Q-DOS (aka 86-DOS) which was created by Paterson. According to DR-DOS creator, Kildall, Paterson pretty much cloned the entire interface of CP/M to create Q-DOS. The lack of software patents at the time meant he could legally do this. Back then microprocessors were rare and software for them rarer. Do you want to remove s/w patents and promote this type of lawlessness?
If software patents had existed at the time, rest assured the personal computer industry would have never evolved much less existed. Back in the day programmers typically cooperated and shared source code. The GNU GPL has the right idea although patents remain a thorn in the foot of the software industry. Computer programmes are simply applied mathematics. Mathematics cannot be patented. Hence, software should not be patentable.
Really? How many times are you going to spend years of your life creating something awesome ... only to have someone else like Facebook or Zynga copy it, market it, and put you out of business?
I doubt you've looked past your own selfishness and actually seen the big picture, so its probably a good idea for you not to pretend to know what the authors of the constitution ... which has nothing at all to say about patents, had in mind when they wrote it.
Umm, it's called "copyright".
That's what protects your code. It's the force behind the GPL.
And guess what? Copyright is a lot stronger in many ways than patents are.
The constitution has NOTHING TO SAY ABOUT PATENTS? Really? BEHOLD, Article I, Section 8:
The Congress shall have 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;
That is the definition of a patent. Just because the *word* "patent" doesn't occur in the Constitution, that doesn't mean that patents are not discussed.
http://www.law.cornell.edu/constitution/articlei
The wording of the US Constitution sounds like copyright to me. Copyright with strict limitations on its lifetime (written works - 25 years, all else - 10 years; non-renewable, non-extendable; only recognized for the original author or creator of the work) makes sense, patents never make sense because they do not "promote the progress of science and useful arts."
Software is not inventing math... just using it similar to how every field in engineering uses math. Pop open any vhdl or verilog book -- it looks like ada/pascal and C respectively. And yes, this software-like code that looks like algebraic formulas is used to create electronic circuits. The circuits and the code are patentable. So why can't software be patented? Stop repeating the same nonsense thousands of times that "Software is math!" It's not, it's technology.
Few manager/executive type people say things like this. Their choice is either keep it a trade secret or patent it... unless the stuff you're creating is not very important to the business. Most companies' existence is based on various secrets they possess.
So generous, maybe you should copy your product's source code tree to a usb drive and hand it over to your competitors to save them the trouble.
Read MS-DOS' history. You'll find that MS bought Q-DOS (aka 86-DOS) which was created by Paterson. According to DR-DOS creator, Kildall, Paterson pretty much cloned the entire interface of CP/M to create Q-DOS. The lack of software patents at the time meant he could legally do this. Back then microprocessors were rare and software for them rarer. Do you want to remove s/w patents and promote this type of lawlessness?
Yes because the same process that allowed qdos to rip off cpm also allowed the BSD's minix Linux sun and more to reimpliment AT&T Unix which in turn had reimplemented many things from Multics
---Saying gnome 3 is better than windows 8 not so much a compliment as it is damning with light praise.
Two answers:
First, software exists outside the physical world. Every piece of software is an algorithm, and algorithms are pure math, and pure math, by very long-standing precedent, isn't patentable. Hence, the argument goes, software isn't patentable, because doing so is equivalent to patenting the pure math behind it.
Second, the real reason software shouldn't be patentable is because of all the policy reasons given in this discussion. They just cause more trouble than they're worth. The "software is math" argument is just the vehicle we're using to pursue our policy goals. That's not to say it's not a good legal argument -- it is -- but the reason we like to make this legal argument is because software patents are bad policy, and we think it will be easier to get courts to interpret the existing law to exclude software patents than it would be to get Congress to change the law to explicitly outlaw software patents.
vi ~/.emacs # I'm probably going to Hell for this.
Imagine if you could copyright steel designs like you can copyright software code. Would there be any need for patents anymore?
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Samsung v. Apple is a perfect case for how utterly stupid Patents have become in the US. Rounded corners? Serious? You plan on winning a war with rounded corners? Beveled corners are ok? Stupid. And yet the lawyers and judges are all getting older and richer looking at this crap. Do you know why in the US they call it 'Math' and not 'Maths' like they do in Britain? Because in the US, they recognize that its a mass noun and not a count noun. There is no branch of 'Math' that doesn't touch any (or every) other branch. Its all interconnected. You can't be discrete about it: its continuous. Calculus, Arithmetic, Trigonometry, Statistics, Combinatorics, Algebra, they all connect to each other, and can't be viewed in complete isolation. Solving difficult problems in one area becomes a much easier problem solved in a different other way. Computer software is that way. Patenting some of it means you have locked down the lot. Mathematicians know this, and that's the reason math can't be patented. Software patents are stupid, and yet here we are.
I don't buy into the copyright and patent futures market. So, I ask for the money to do my work or research or create things UP FRONT, and I ask for enough to cover the work and the profit I need for it, then I "give it away for free" since the work has been paid for.
Ask whom? Let us say you want to build a better mousetrap? It might be worth billions, but who is going to give you the money to r&d it? If you pitch the idea to a mega crop they might just think it is a good idea and do the development themselves.
You should read the US constitution if you believe that. It explicitly authorizes the Congress to create patents. Article 1 Section 8 powers of congress states.
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;
What if a non trivial percentage of the payments of software patent royalties were required to go to a fund for software education? Then trolls would get no benefit and be wiped out and inventors would still be recompensed and finally we'd be creating a new generation of inventors.
I don't know if the government would be broadminded enough to support such a plan. :/
If software patents were taken to their literal full extent, I'd lose my job anyway, because it's impossible to create any substantial piece of software without infringing multiple patents.
Developing new software would become so expensive - what with the cost of having a patent lawyer stand over your shoulder demanding explanations of everything you implemented, and the cost of licensing anything I infringed, or re-implementing things to infringe something else cheaper to license - that the market for my skills would shrink considerably.
Happily I live in a country that is so far in the grey area as to whether it recognises the validity of software patents, and I work for a government agency that has decided to license it's output with a BSD-style license (presumably so the corporate chums of the political bosses can make as much money as they'd like from our taxpayer-funded work...)
Yes, they will. And if you have a patent, then you have a legal right to make them pay you for your idea.
... and you will fail because you don't have the funds to win the patent case, and after the battle is over you will be broke.
Besides, if your innovation was in software, you will probably have to pay off a number of patent trolls the moment you become big enough to be milked and will also go broke, or work most of the time to pay someone else.
Software patents are a lose-lose for the small guy. Without them, the small guy can continue innovating and stay ahead of the big shots.
The Patent Office has been just handing them out, because good or bad, the courts will have the final say on any patent anyway.
Simple ideas should NOT be patented. It should be part of a unique new product that the patent requester is bringing to market.
the only people who think patents should be abolished are people who don't create anything. ... Anyone who creates has a different opinion .. ranting around about getting rid of them just makes you look ignorant.
How patronising and presumputous.
I spend most of my time creating things, both as a professional engineer and as a hobbyist. But I am not money-minded and I don't mind sharing what I do. Back in the days of "Hobby" computer and electronics mags I had several magazine articles published with my designs. I was paid the magazines fairly nominal publication fee, but no royalties came of it and I did not mind. For example one circuit was for a buzzer to sound in a car if you were leaving it with the lights on; showing my age, that was before any production car had such a warning.
Maybe I should have patented it, but I don't care. But actually, the legal minefield of patents would deter me from going there, and indeed I would think twice now about even publishing a design these days. I think you will find most true inventors will think the same way.
So generous, maybe you should copy your product's source code tree to a usb drive and hand it over to your competitors to save them the trouble.
I've seen many a project where handing over the source code might have been a good way to delay the competition, if they were foolish enough to try extracting anything useful from it.
And there are multiple appeals at the PTO. As I recall on the FAT patent MS was finally confirmed by the PTO and the final level of appeal took place behind closed doors with only the Patent Office people and Microsoft representatives, the people opposing it were not allowed to take part or review what happened. So even the PTO level appeals can go on and on and on.
> math, by very long-standing precedent, isn't patentable
That's actually a recent misconception. The long-standing precedent is "the LAWS of nature, including the laws of mathematics".
Gravity is a "law of nature", and therefore you can't patent gravity. That doesn't mean that you could patent a specific design for a counter-balanced elevator, which is an inventive USE of a the law of gravity. Conservation of energy is a law of nature, so you can't patent it. An automobile airbag is a patentable invention which uses conservation of energy.
In Parker v. Flook, 437 U.S. 584 (1978) the court articulated this fact "Even though a phenomenon of nature or mathematical formula may be well known, an inventive application of the principle may be patented."
Similarly, this is a law of mathematics:
X * (a + b) = (X * a) + (X * b)
The above, being a "law of nature, including the laws of mathematics", is not patentable. On the other hand, a method of ranking web pages for relevance, reliability, and informativeness may well be an inventive use of various mathematical tools. The search engine ranking uses mathematical laws in the same way that an elevator uses the physical laws.
It's the basic laws that are not patentable. Following, or using, the laws of physics the laws of thermodynamics, or the laws of mathematics doesn't make something unpatentable. This becomes plainly obvious when you try to apply that rule to decide what _IS_ patentable. You'd end up with:
Only inventions which do not follow the laws of nature may be patented.
The problem with that is pretty obvious, isn't it?
> Imagine if you could copyright steel designs like you can copyright software code. Would there be any need for patents anymore?
Yes, absolutely. In some ways patent and copyright are opposites. In copyright, your song can say the same thing that Beyonce's song did, but in different words, and that's fine. Copyright protects a specific _expression_ of an idea. Copyright protects the parts (the words), and specifically does not protect the whole. Patent protects an inventive mechanism or process, not the parts of which it's composed.
Let's consider an invention we're all familiar with, one with a long-expired patent, the television. Under copyright, one could replace the copper wires with aluminium wires the exterior of bakelite rather than wood to get around the patent - it's a different expression of the same invention. Patent is supposed to allow a payoff for the R&D required to create the technology, not make the ripoffs look different. (Which is why design patents are a bad idea, I think, - trademarks cover that area).
Parker v. Flook and Gottschalk v. Benson both repeat several times that the application of mathematics in a new and useful way is patentable.
The math function itself isn't patentable, so you can't patent cosine(), but a use for it is patentable, under both cases. Therefore you could (if it were useful and novel) patent a ranking algorithm which included the cosine of the number of keywords in the meta tags. Here's another quote from Flook, where they specifically say they their reasoning does NOT include computer programs generally:
Neither the dearth of precedent, nor this decision, should therefore be interpreted as reflecting a judgment that patent protection of certain novel and useful computer programs will not promote the progress of science and the useful arts, or that such protection is undesirable as a matter of policy.
You assert that Flook makes programs unpatentable even though Flook specifically says the opposite, because the court knew you might make that mistake. Are you saying that the justice who wrote the opinion misunderstood his own opinion while he was writing it?
> all software is composed solely of mathematical algorithms
Proven false by the fact that most professional programmers are incapable of even high school math. (Ask a dozen professional programmers to solve a quadratic equation. Most likely, NONE will be able to.)
Software is the "useful application" of logic. Is that useful application is novel etc, it's patentable under both Flook and Benson.
BTW, I've enjoyed this discussion, thanks. Your points are more well though-out than many posts here on Slashdot.
Although I believe you are mistaken, because the court explicitly said the case shouldn't be read the way you're reading it, the fact that you have actually read the case, or at least parts of it, is refreshing.
Thanks again. I look forward to discussing a future article with you.
PPS - Nice user name. I was very excited when 4db1aef6a2b79aba4f862285c2658348e083f2b7 put my name into the kernel.
AFAIK, There is no "trade-secret" law to weaken that is independent of misappropriation of business information through theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage.
Note that a trade-secret is not protected from reverse engineering and is limited in time until it is common knowledge to the people that could use it profitably.
As many (including some quoted in the article) have observed, this new focus on s101 seems ill-chosen. One can't make an across-the-board statement that all software-related subject matter is unpatentable. The patentability of methods has been an essential part of our patent system, dating back to Jefferson, (actually, it even goes back to the Statute of Ann, upon which our patent system is based) and until the last decade, it occurred to few credible sources that software algorithms were unpatentable because they did not describe methods.
That doesn't mean that there is no problem, as there is in all areas of the law, with unscrupulous parties gaming the system. But I believe that what is needed to address such problems is wiser application of the proscriptions against unworthy patents under s102, 103, and 112. Over the past 5 years, there has already been significant progress made in this regard (although admittedly you wouldn't know it by reading Slashdot). Today, it's far more difficult to troll successfully and the trend in Congress is to tighten up anti-trolling measures even further.
Furthermore, the issues that lead to Apple v. Samsung suits, frivolous troll threats, or whatever, are not specific to software patents. Hell, they're not even specific to intellectual property. You have analogous actions in every area of the law -- think unfounded slip-and-fall suits. The problem is an artifcact of our legal and economic systems. Anybody can sue anybody for any ostensibly credible cause of action, and can use the cost of legally defending against such a suit to leverage a defendant to settle, even when the case had no chance of success.
So unless somebody comes up with a way to provide free legal aid for anybody who is hit with a frivolous suit, and apply that solution across the board (e.g., awarding both parties' legal fees & court costs to the winning party) the underlying issues will not go away.
Invalidating what may be 1/4 or 1/3 of all patents granted over the last 30 years thus seems an extreme solution that is neither necessary nor sufficient. Only those who don't know the first thing about patent law would seriously consider such a thing; and that's not what the S.Ct. Justices cited in the articles are suggesting.
Most likely outcome? Based on the decisions since Bilski, I'd guess that the Court will at most propose a modified guideline (or even a new test) for determining threshold patentability under 101, where that test is to be followed by conventional analyses under the other sections of Title 35; and will stress that the PTO and the courts must select a patentability test for a particular case only after considering the particular fact set associated with the case. That's not a bad way to go, IMO, because it avoids a blanket solution, something that rarely works well in this area of the law..
Really? How many times are you going to spend years of your life creating something awesome ... only to have someone else like Facebook
or Zynga copy it, market it, and put you out of business?
Exactly! The current patent system gives all the power to large corporations who own lots of expensive lawyers. Independent developers are screwed, blued, and tattooed.
Software patents are most dangerous to creative, independent developers. You could spend all of your time just researching patents that might cover what you are working on. And as Linus said, all you get for this effort is the threat of treble damages for willful infringement.
The current patent system is completely incapable of separating the obvious from the non-obvious in the realm of software. That is because the patent system is filled with non-practitioners. Nowadays even someone who is an expert in one field of software may not know enough about other areas to separate the obvious from the non. [This is not an endorsement for patents on non-obvious software but that is a separate issue].
If you are a creative and productive software designer then you are probably creating code that infringes software patents on a weekly or monthly basis. Not because you are stealing ideas but because you are developing them independently. Since the presumption of validity is given to the patent holder, even one totally bogus software patent can put you out of business.
We don't see the world as it is, we see it as we are.
-- Anais Nin
It's both. Copyright is for authors. Patents are for inventors.
Congress later (1909) broadened the meaning of what an author is, so now copyright covers more than just text. Patents are still for inventors.
Whether either actually works to promote progress is another discussion, but it was clearly the intent of the framers.
Ignorance killed the cat. Curiosity was framed.
And if the law is unclear (which it apparently is)? The Court has to make a decision not fully based on existing law, because it's either vague (the statutes) or contradictory (the case law). They're in a position where they essentially have to rewrite parts of the statutes to be more clear, and therefore are de facto making law. What should they base their decision on? The intent of Congress may be impossible to discern, and there may in fact have been no clear intent (some fuzzy laws are passed as compromises, so nobody's really against them). They probably want to aim for a decision that Congress won't want to reverse, but that could be guesswork.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes