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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
"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 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 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?
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.
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.
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.
From TFA:
Translation: OOH SHINY!!!
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
> 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
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...
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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Why should the average software engineer need to be "industrious" enough to know how the patent system works? That's just asinine. That right there is the perfect argument against your love of the patent system.
The only rightful metric of whether or not to revise a system or to abolish it is the relative benefits of either option. None of this rhetorical nonsense you are trying to spout is remotely relevant.
Are we better off with more trade secrets or more patents?
The harmful effects of the intellectual land grab are clear.
The key problem with patents is that they don't just grant you property rights on your own efforts but they also allow you to STEAL mine.
They should be treated like toxic waste rather than trivialized like candy.
A Pirate and a Puritan look the same on a balance sheet.
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.
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!"
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.
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?
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 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
Which seems to be rules for determine whether you're scrolling, dragging, or flipping apps/tabs.
Forgot that bit - again, they're not describing the rules that they use (which is the whole idea of a patent - you publish what would otherwise be your trade secrets and in exchange you get government protection against anyone copying them without paying you for a small amount of time), they're describing the idea that there could be rules to determine whether you're scrolling, dragging, or flipping apps/tabs.
Big difference.
You're special forces then? That's great! I just love your olympics!
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.
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.