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Software Patent Sanity on the Way?

ScuttleMonkey posted more than 6 years ago | from the moving-at-the-speed-of-a-bureaucracy dept.

Patents 157

Ars Technica is reporting that the traditionally silent US Patent and Trademark Office (USPTO) may be starting to turn things around. It seems that in recent action the USPTO has started to make it much easier to invalidate software patents with some saying that the abolition of such patents may be in the distant future. "Duffy cites four recent cases that illustrate the Patent Office's growing hostility to the patenting of software and other abstract concepts. While the USPTO hasn't formally called for the abolition of software patents, the positions it took in these cases do suggest a growing skepticism. In the first two cases, decided last fall, the United States Court of Appeals for the Federal Circuit (which has jurisdiction over patent appeals) upheld patent rejections by the USPTO. They were not software patent cases, as such. In In Re Nuijten, the court considered a patent related to an algorithm for adding a watermark to a digital media file. The Federal Circuit did not invalidate the claims relating to the watermarking algorithm itself; everyone seemed to agree that the algorithm was patentable. Rather, the decision focused on whether a digital signal could be the subject of a patent claim. The court concluded that it could not. A victory for common sense, perhaps, but hardly a rejection of software patents."

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Somewhat a dupe (4, Informative)

Annymouse Cowherd (1037080) | more than 6 years ago | (#24372295)

A lot of the article is talking about another article that was on slashdot recently.
http://yro.slashdot.org/article.pl?sid=08/07/24/1458215 [slashdot.org]

Re:Somewhat a dupe (5, Funny)

D Ninja (825055) | more than 6 years ago | (#24372637)

Here at Slashdot, we call that "Prior Art."

Re:Somewhat a dupe (1)

neokushan (932374) | more than 6 years ago | (#24373157)

Yeah but to be fair, this is the kind of thing you don't mind hearing about twice.

Re:Somewhat a dupe (0)

Anonymous Coward | more than 6 years ago | (#24373511)

Could you repeat that as I missed it the first time around?

Seems vaguely familar (0, Redundant)

HaeMaker (221642) | more than 6 years ago | (#24372311)

repeat from last week? [slashdot.org]

Re:Seems vaguely familar (2, Informative)

HaeMaker (221642) | more than 6 years ago | (#24372353)

Ack, messed up the link [slashdot.org] .

Re:Seems vaguely familar (3, Funny)

Daimanta (1140543) | more than 6 years ago | (#24372919)

Scoring 7 karma in 2 posts after eachother. That is a trick I must surely try.

Re:Seems vaguely familar (4, Funny)

Daimanta (1140543) | more than 6 years ago | (#24372969)

Indeed, I will probably try this soon. But I'd rather plan this strategy first.

Re:Seems vaguely familar (1, Offtopic)

XnavxeMiyyep (782119) | more than 6 years ago | (#24373137)

Oh wow, you got eight points instead of seven.

Re:Seems vaguely familar (1, Funny)

XnavxeMiyyep (782119) | more than 6 years ago | (#24373167)

Time to up this to nine points, eh, mods? *wink* *wink*

Re:Seems vaguely familar (1, Funny)

b4dc0d3r (1268512) | more than 6 years ago | (#24373391)

Someone upped yours, now up mine. Wait, how does the joke go?

Re:Seems vaguely familar (2, Funny)

zapakh (1256518) | more than 6 years ago | (#24373545)

Mine goes up to eleven!

Re:Seems vaguely familar (5, Funny)

serviscope_minor (664417) | more than 6 years ago | (#24373319)

unfortunately, funny posts don't get yo karma. You need one that is informative, like this post.

Re:Seems vaguely familar (-1, Redundant)

serviscope_minor (664417) | more than 6 years ago | (#24373673)

I concor with the parent. Note, this is also informative.

Re:Seems vaguely familar (4, Funny)

cream wobbly (1102689) | more than 6 years ago | (#24374359)

Sorry, yours is redundant.

Re:Seems vaguely familar (4, Funny)

neokushan (932374) | more than 6 years ago | (#24373173)

Yeah, it's definitely werth trying oot.

Re:Seems vaguely familar (3, Funny)

neokushan (932374) | more than 6 years ago | (#24373181)

Ack, messed up my sentence!

Yeah, it's definitely worth trying out.

Re:Seems vaguely familar (1, Funny)

Anonymous Coward | more than 6 years ago | (#24373637)

Yeah, it's definitely werth trying oot.

Ack, messed up my sentence!

Are you sure you're not just trying to cover your Scottish accent?

Re:Seems vaguely familar (1)

RancidMilk (872628) | more than 6 years ago | (#24373001)

repeat from last week? [slashdot.org]

Has it been that long, already?

USPTO doesn't make legislation (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#24372323)

The "Software Patent Sanity" you desire will have to come from congress.

Don't hold your breath, hippie.

Re:USPTO doesn't make legislation (2, Insightful)

Nullav (1053766) | more than 6 years ago | (#24373247)

Odd. I was under the impression that the USPTO had some degree of control over the USPTO.

Re:USPTO doesn't make legislation (2, Informative)

cencithomas (721581) | more than 6 years ago | (#24373817)

Yeah, you'd think huh? But if their decisions are challenged, they escalate to the Board of Patent Appeals and Interferences, and then the United States Court of Appeals for the Federal Circuit.

Re:USPTO doesn't make legislation (1)

Nullav (1053766) | more than 6 years ago | (#24373869)

Thanks for clearing that up somewhat. Still, it sounds a lot better than the 'wait for Congress' picture the AC painted.

Keep up the pressure? (2, Insightful)

moz25 (262020) | more than 6 years ago | (#24372327)

It does appear that consistent negative publicity helps. Too bad that it has taken over a [i]decade[/i] before changes appear.

It also seems that this long delay is going to lead to a rather messy situation... although possibly less so than it already was :-)

Re:Keep up the pressure? (0)

Anonymous Coward | more than 6 years ago | (#24372375)

Good things come slowly. It's much easier to destroy. A pity, sure, but that's how nature works.

A small step, yes. But, at least, in the right direction. The war continues.

From the US Government? (5, Funny)

null etc. (524767) | more than 6 years ago | (#24372347)

I can hardly believe that the US government would make a sensible decision that also happens to be in the interest of its citizens.

Re:From the US Government? (4, Funny)

K. S. Kyosuke (729550) | more than 6 years ago | (#24372457)

That is why I tagged it "toogoodtobetrue". There must be some conspiracy behind it!

Re:From the US Government? (4, Insightful)

Zordak (123132) | more than 6 years ago | (#24374103)

That is why I tagged it "toogoodtobetrue". There must be some conspiracy behind it!

There is. It has to do with ensuring that when Microsoft, IBM, HP, and other Big Tech megacorps see inventions from legitimate individual inventors, the megacorps can indiscriminately steal the inventions and then label the inventors "patent trolls" if they get sued. This is not a case of throwing the baby out with the bathwater. This is a case of shoving the baby down the drain and accidentally letting some bathwater slip down with it. And it's been in the works for a long time.

If you don't believe me, remember that USPTO director John Dudas is a Bush stooge appointed for his loyalty over his qualifications. In the end, this is still about protecting those who make the right donations to the right politicians. Any benefit to you is strictly incidental, and will be canceled out the moment you invent something.

Re:From the US Government? (0)

Anonymous Coward | more than 6 years ago | (#24374723)

tinfoilhatmuch?

Re:From the US Government? (2, Interesting)

Zordak (123132) | more than 6 years ago | (#24374799)

tinfoilhatmuch?

Registered patent attorney who has seen how things go.

Re:From the US Government? (1)

IAmGarethAdams (990037) | more than 6 years ago | (#24375439)

Oh God! And the clue's in the name! John Dudas = Judas(!!)

Re:From the US Government? (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#24372571)

I can hardly believe that the US government would make a sensible decision that also happens to be in the interest of its citizens.

The idiot you guys put in charge in 2000 and 2004 must have gotten lucky.

Re:From the US Government? (2, Insightful)

arth1 (260657) | more than 6 years ago | (#24372705)

I can hardly believe that the US government would make a sensible decision that also happens to be in the interest of its citizens.

CEOs are citizens too...

Re:From the US Government? (1)

PlatyPaul (690601) | more than 6 years ago | (#24373625)

I'm not even sure they're human....

Re:From the US Government? (1)

arth1 (260657) | more than 6 years ago | (#24374733)

I'm not even sure they're human....

As long as lawyers and not anthropologists get to decide the definition of human, CEOs will always be seen as human. Even when they sport a forked tail and lay eggs.

Think of the Patent Attorneys! (1)

mpapet (761907) | more than 6 years ago | (#24372775)

This is too easy to stop and will probably suffer an ignominous death.

If it ever gained a little steam outside the right-thinking-patent-repair-club, it's dead in less than 30 seconds.

Fox News and many other runs a blurb something like... "Sources inside the White House have stated that in difficult economic times like this, it's a terrible idea to introduce more regulations that will surely lead to fewer jobs..." See how easy that is?

Sadly, this is the state of discourse in American politics.

BTW, more patent regulations support the terrorists, illegal immigrants and tooth decay.

Re:Think of the Patent Attorneys! (1)

retchdog (1319261) | more than 6 years ago | (#24373249)

Yes, isn't it amusing how regulating a regulation counts as "more regulation" instead of less?

Re:Think of the Patent Attorneys! (2, Interesting)

Zordak (123132) | more than 6 years ago | (#24374325)

You must think our USPTO registration certificates also invest us with dark powers or something if you think we have that much power. Bush's cronies at the patent office have been working very hard to totally destroy the patent system, and we've been powerless to stop them. Last year, they passed a rule package that was retroactive and so draconian, every single patent attorney who commented on it said, "No, this is a bad idea." They passed it anyway, despite that fact that it was so far reaching that it was clearly statutorily invalid, and even constitutionally suspect. It cost our clients thousands of dollars to amend their already-filed applications to conform to the new rules. Then the rules were enjoined by a court at the eleventh hour (thankfully), and then we had to explain to our clients that all that work was for nothing.

If you never plan to invent anything, and want to ensure those who do invent have no recourse when their inventions are blatantly stolen by Big Business, then just lap up whatever those goons at the paten office dish out. But if you think there is any value to having a strong patent system to protect legitimate inventions (like the Framers of the Constitution did), take everything that comes down from the USPTO with a grain of salt---even seemingly "good" stuff like this.

Note that this post does not represent the opinion of my employer or anybody else except me.

Re:Think of the Patent Attorneys! (2, Insightful)

Timothy Brownawell (627747) | more than 6 years ago | (#24375207)

If you never plan to invent anything, and want to ensure those who do invent have no recourse when their inventions are blatantly stolen by Big Business, then just lap up whatever those goons at the paten office dish out. But if you think there is any value to having a strong patent system to protect legitimate inventions (like the Framers of the Constitution did)

Perhaps Big Business has a symbiosis with the patent system, patents prevent anyone without a good legal department from doing anything new or useful, and big business demands specialization and compartmentalization such that "invention" is a job (and cost) on its own instead of a natural byproduct of doing a good job.

Re:From the US Government? (5, Insightful)

IMightB (533307) | more than 6 years ago | (#24372779)

I think it was Churchill who said it best "The US can be counted on to do the right thing, only after it has exhausted all other possible options"

Re:From the US Government? (1)

peragrin (659227) | more than 6 years ago | (#24372883)

I do love that quote, as it is very true.

On the other hand at least in the USA all other options are tried, instead of just installing camera's everywhere saying it is for the good of the nation(UK).

In the USA it takes a long time to do anything let alone do it right. The again when it is done it can be undone just as easily if it wasn't right.

Re:From the US Government? (0)

Anonymous Coward | more than 6 years ago | (#24374829)

Duffy is a moron?

Re:From the US Government? (2, Funny)

neuromancer23 (1122449) | more than 6 years ago | (#24373067)

Patents and Mental Health:

1. A patent is a MONOPOLY granted by the state to a particular individual or business, which is then enforced through violence.
2. All patents are therefore, aggressive acts of violence against a free market: i.e. examples of anti-social behavior (see DSM-IV).
3. If all patents are expressions of an anti-social personality disorder, then all patents (not just software patents) are fundamentally insane by definition.
4. Therefore, the sane thing to do would be to abolish all patents immediately.

Q.E.D.

Re:From the US Government? (0)

Anonymous Coward | more than 6 years ago | (#24374255)

Leaving England to invade your own country always struck me as one of the brighter ones.

Software is not of patentable subject matter.... (3, Insightful)

3seas (184403) | more than 6 years ago | (#24372427)

.... it is abstact matter with a definable physics supporting its use. [abstractionphysics.net]

To bad there is not stock to invest in on this overall debate as the outcome is certain. Software patents will become a thing of the past. An embarrassing thing at that.

Re:Software is not of patentable subject matter... (5, Interesting)

Anonymous Coward | more than 6 years ago | (#24372839)

More than embarrasing. Costly.

Like the saying, "Make hay while the sun shines" the fallacy that equates license to property will burn many more fools before we are done. Money in the bank is always decreasing in value. Using that money keeps it alive. Many profited in the domain name business, if they were wise enough to buy and sell them in a short lived market. The coming ICANN changes will soon massively devalue once treasured domains and those foolish enough to be left holding them, but not using them, will lose out.

The same is true of bogus patents. Fine if you were able to catch the wave of USPOs mistake that sparked the software patent war in the first place, and leverage ivalid patents, but disaster for those caught holding them in the belief that they are tangible property.

When the correction finally comes (and it will) it will wipe billions off the value of some companies. It couldn't happen to more deserving people of course. And perhaps that's the main reason it hasn't happened already. Software patents always have been, by widely recognised standards including those of UPSO itself, invalid. It's only the propagation of an error that has allowed some to profit meanwhile. The value of a market resulting from an error should not be justification to allow that error to persist.

Re:Software is not of patentable subject matter... (2, Insightful)

nschubach (922175) | more than 6 years ago | (#24374745)

I've said it before and I'll say it again, Software patents should be Copyrights, not patents. Patents belong on physical items. It would be like patenting the method of turning a page in a book.

If someone can figure out a better way to code the same thing you are doing without using your code, more power to them. That's innovation.

Duffy as Troll (4, Insightful)

the eric conspiracy (20178) | more than 6 years ago | (#24372473)

The thing that arstechnica is missing is that Duffy is a troll. He is representing amicus in the Bilski case, and is raising the possibility that the USPTO is adopting a position that will invalidate most business process / computer based patents as a FUD attack against any attempt to limit the scope of patentability in this field.

Can it be really innocent infringement? (0, Offtopic)

imrehg (1187617) | more than 6 years ago | (#24372497)

From the article:

Innocent infringement : defendant was not aware of any copyright infringement, and upon information and belief some or all of the copies which she downloaded did not bear copyright notice.

This looks very weird - when people rip CDs and DVDs, they rarely (if ever) attach any copyright notice to the resulting mp3 and avi files... Would it mean, that because the copyright notice has been removed (it was on the CD case for sure, or the load screen of the DVD), then you don't know you are infringing? As much as I applaud the rest of the complaints, this is just silly. On the internet it is mostly: "everything is copyrighted except if it's explicitly noted", not the other way around...

On the other hand, if it gets accepted, then everyone is pretty innocent from this point on... Would be fun. :)

Re:Can it be really innocent infringement? (1)

imrehg (1187617) | more than 6 years ago | (#24372523)

Damn, too many slashdot tabs open, wrong article to answer to... :(

Re:Can it be really innocent infringement? (0)

Anonymous Coward | more than 6 years ago | (#24372629)

That's what the TITLEBAR is for. You know, the little blue thingy above the menubar :)

Re:Can it be really innocent infringement? (0)

Anonymous Coward | more than 6 years ago | (#24373907)

I use the silver theme, you insensitive clod!

Provide the proof! (5, Interesting)

srealm (157581) | more than 6 years ago | (#24372663)

I've always believed that patents should include not just the idea being patented, but also details on how to recreate such an idea (ie. the prototype).

For physical objects, this means schematics. For drugs and such this means formulas. For software it means source code.

See how many companies will be willing (or in the case of patent trolls, ABLE) to patent software when they have to pony up a working implementation as part of the patent application (and thus public record).

I am also against 'secret' or 'partially secret' patents, how is someone supposed to know they are infringing on a patent if they can't get all the details on a patent?

Re:Provide the proof! (5, Informative)

sir_eccles (1235902) | more than 6 years ago | (#24372859)

I can't resist replying to this comment. It is typical of many Slashdot comments particularly in relation to Patent Law.

I don't know how much the author actually knows about patent law but the comment illustrates a severe lack of understanding.

Patents must and do include "details on how to recreate such an idea". It's called the "description". While you no longer need to produce a prototype there is generally enough in the description for "someone skilled in the art2 to recreate it. In fact the whole reason you don't have to produce a working model is because you might not have the resources available but you want your idea protected while for example you get funding to set up a factory or what not.

I really don't know what you mean by a "secret patent". Since 2001 in the US and the rest of the world for approximately forever, pretty much all granted patents have been published twice. Once 18 months after filing and the second time after grant. Just because you don't know about a patent does not make it secret. All the patent databases are available for free online these days.

"secret patent" - aka submarine patent (4, Informative)

seifried (12921) | more than 6 years ago | (#24372961)

http://en.wikipedia.org/wiki/Submarine_patent [wikipedia.org] .

Submarine patent is an informal term for a patent first published and granted long after the initial application was filed. In analogy to a submarine, its presence is unknown to the public; it stays under water, i.e., unpublished, for long periods, then emerges, i.e., granted and published, and surprises the relevant market. This practice was possible previously under the United States patent law, and is now not practical with present patent filings since the U.S. signed the TRIPS agreement of the WTO: since 1995, patent terms (20 years in the U.S.) are measured from the original filing or priority date, and not the date of issuance. A few potential submarine patents may result from pre-1995 filings that have yet to be granted and may remain unpublished until issuance. Submarine patents are considered by many as a procedural lache (a delay in enforcing one's rights, which may cause the rights to be lost).

Re:"secret patent" - aka submarine patent (1)

sir_eccles (1235902) | more than 6 years ago | (#24373077)

Yes I know, that's why I mentioned the publishing change around 2001. But I don't think any of the patents discussed on Slashdot in recent stories have been actual submarine patents. They have all been ones you just simply didn't know about.

Re:Provide the proof! (1)

QuantumRiff (120817) | more than 6 years ago | (#24373645)

I know there have been the oppositte, where the theft of your patent idea becomes a "state secret" and you are hosed.. take a look at this one [patenthawk.com] for an example. Lucent stole this guys idea, and sold it to the military, and he can't touch them

Re:Provide the proof! (1)

sir_eccles (1235902) | more than 6 years ago | (#24374215)

An odd case for sure. But the patent still isn't secret you can look it up on google [google.com] .

Of course what happened to the original inventor doesn't quite seem right, though I don't think that is a fault of patent law as such.

Re:Provide the proof! (1)

Richard W.M. Jones (591125) | more than 6 years ago | (#24373903)

Patents must and do include "details on how to recreate such an idea". It's called the "description". While you no longer need to produce a prototype there is generally enough in the description for "someone skilled in the art2 to recreate it.

The problem is the description is written in verbose, obscure "patent speak" which is not enough to reproduce the patent. Like this nonsense (picked, I might say, pretty much at random from a Google search on computer patents):

The most recent data is copied from the first memory location to a second memory location, where the most recent data is added to the historical data. Once the copying is done, the most recent data is deleted from the first memory location. Once the first memory location is cleared, the polling of the heterogeneous computers begins. The initial polling is to determine if each one of the plurality of heterogeneous computers is active. [Source [patentstorm.us] ]

At best you can say that "most recent data is copied [etc]" is a computer program crudely and inaccurately translated into lawyer speak. At worse you could say that this is just obfuscation. Provide source code in a common programming language to make what you're trying to say clear and precise.

Rich.

Re:Provide the proof! (1)

sir_eccles (1235902) | more than 6 years ago | (#24374123)

Yes, patent speak can be a problem. But we are talking about a legal document not an engineering textbook. Have you ever read a legal contract and understood all the "wherein the first party identified by the..."?

Because it is a legal document it uses terms which have specific legal meanings. For example there is a real difference between saying "comprises of" and "consists of" switching between the two in a patent can serious affect the scope of protection. Similar to how the meaning of "obvious" is not the dictionary definition. Sometimes plain english just isn't specific enough.

Ok you ask who the skilled man is who is meant to be able to recreate the invention. Without being insulting, it isn't the majority of slashdot readers. In reality its probably a team of people including an engineer, a patent attorney/agent and several others.

You can learn how to read a patent properly, in the same way you can learn to read a scientific paper in a peer reviewed journal. As for your example, as you've taken it completely out of context it is as near as useless as it can be.

Re:Provide the proof! (1)

sconeu (64226) | more than 6 years ago | (#24374263)

But a patent is supposed to be so that someone sufficiently skilled in the art to which the patent relates can reproduce it, NOT so that a lawyer can read it.

Re:Provide the proof! (1)

sir_eccles (1235902) | more than 6 years ago | (#24374591)

You haven't really understood my point. I will repeat it.

While in reality the skilled person construct is more than one person, it is not just anyone off the street.

Does a physicist expect his paper on the formation of globular clusters to be understood by everyone? No. Even other physicists will complain that the paper is nonsense. But if you want to fully understand it you can study more physics, read up around the subject and you'll start to understand it.

With patents, it is just the same. Learning the "patent speak" isn't terribly hard. You don't have to be a lawyer, but it helps to at least know how to read a legal act, understand precedent, and understand what the different parts of a patent mean.

My Question (4, Insightful)

g1zmo (315166) | more than 6 years ago | (#24372751)

I've asked before and I've never gotten a good answer. How can you patent the act of using something in exactly the manner in which it was designed to be used? A computer is designed to execute an arbitrary series of pre-defined instructions. That's it's only function. Software is just a list of such instructions. How is that patentable? It's not a new invention. It's not an extension of the original device. It's like patenting the act of driving a nail with a hammer, or letting fresh air into a room by opening a window.

Say a particular calculator is patented, and I patent the act of entering 2+2 on it. Then someone else comes by and patents the act of entering (3+7)/2. Hey, it's an innovative new application of an existing device!

Re:My Question (2, Interesting)

Yaa 101 (664725) | more than 6 years ago | (#24373029)

Software can be patented but only by the owner of the microcode that make up the instructions of the processor. Of course this is not smart if the owner of the microcode actually want this to be used by their clients, this is why Intel, AMD et al. never patented the instructions of the processor.

The reason why others were able to patent specific sequences of the instructions have to do with corruption and actively attempts to stifle science by politicians. The patent system is seen by politicians as a good tool to keep the status quo as new science always undermines that.

Re:My Question (3, Insightful)

j. andrew rogers (774820) | more than 6 years ago | (#24373257)

Your reasoning can be trivially extended to exclude all patentable art. The fact that you built a new widget using tools designed for the purpose of building widgets does not make the widget unpatentable. Patents are mostly about new configurations; the tools used to create those configurations are irrelevant. Consider chemical process patents, which are just algorithms for efficiently producing molecular states, despite the fact that chemistry instructions that define the process are very general and used in millions of different applications.

Not Quite... (3, Insightful)

maz2331 (1104901) | more than 6 years ago | (#24374529)

The example of the widget's patentability ignores that not all configurations are "novel" and "non-obvoious".

I like the standard that the Supreme Court put forth in the KSR case. In a nutshell, simply combining already known components and design elements and getting the expected result is not patentable. If, however, the result is not something anyone "skilled in the art" would expect, then it qualifies.

So, say we design a chemical plant to produce gasoline from coal (which has been done many times before), but happen to run across a tweak to the materials in the pipes that causes the reactions to occur faster than theory predicts, we have a patentable configuration. The addition of a previously unknown catalyst is the patentable idea, not the already-known process.

Unless the code to be patented does something unexpectedly beneficial, it falls into the same category of "obvious". Just solving a new question with a combination of already-known steps doesn't cut it here.

Re:My Question (1)

JesseMcDonald (536341) | more than 6 years ago | (#24374537)

The fact that you built a new widget using tools designed for the purpose of building widgets does not make the widget unpatentable.

Sure, but in that case what you're building is itself a novel device independent from the tools used to build it. In the case of software the "device" you're "building" is essentially a mental process (an algorithm) automated by a machine. The machine is already patented, and mental processes are not considered patentable. How, then, can the combination of a machine (used as intended) and a mental process be separately patentable?

Chemical process patents may indeed be algorithms, as you say, but they aren't mental processes -- the point of the algorithm is to produce something, not to perform abstract calculations.

Here's an idea: limit the number of patents granted to a small number per year. At the end of the year only the 50-100 most novel and useful applications are granted; everyone else is welcome to try again in a year. Why reward mediocrity, especially at such a high cost to society in general? I imagine this would considerably reduce the proportion of software and business method patents as well.

Re:My Question (0)

Anonymous Coward | more than 6 years ago | (#24374835)

http://boycottnovell.com/2007/05/15/software-is-not-a-component/

Re:My Question (2, Interesting)

MobyDisk (75490) | more than 6 years ago | (#24373633)

That's an interesting idea, if we can find where it ends. Surely patenting buttons a calculator is senseless. But software is completely open-ended.

Where would the logic end? If I design a new latch out of 3 screws and a flexible piece of metal, can someone argue against my patent saying that this is exactly the intended use of a screwdriver and a hammer? Or perhaps we could extend this logic to copyrights since the intended use of a pen is to write?

Re:My Question (1)

forgotten_my_nick (802929) | more than 6 years ago | (#24373801)

"How can you patent the act of using something in exactly the manner in which it was designed to be used?"

So anything created by a drill, wood crafting tools are not patentable as you are just using tools designed to be used in that manner.

"Software is just a list of such instructions. How is that patentable? "

Patents are just a list of instructions. If you can't describe your patent as a list of instructions it is not patentable.

"Say a particular calculator is patented, and I patent the act of entering 2+2 on it. Then someone else comes by and patents the act of entering (3+7)/2. Hey, it's an innovative new application of an existing device!"

No because that is a BS example.

What separates software patents from others? (4, Insightful)

Anonymous Coward | more than 6 years ago | (#24372867)

Let's say someone finds a new way to cut logs that let you build log cabins almost as easily but many times more sturdily and with better isolation. This would surely be patentable.

Let's say someone invents a new file system, that lets you access files almost as quickly but with many times the protection against data corruption. Why would this not be patentable?

My impression is that the case against software patents is really a fight by proxy against patents in general, recognising the growing role that software plays to make anything happen.

Re:What separates software patents from others? (2, Interesting)

shentino (1139071) | more than 6 years ago | (#24372975)

I wouldn't be all that averse to patents if it weren't for all the damn loopholes that big fat corporations have lobbied for.

Perhaps this is the side effect of big corporates pressing their luck a little too hard and making it pop, springing a massive leak of backlash.

Sorta like annoying someone enough that they finally snap, lose their temper, and let you have it.

Re:What separates software patents from others? (3, Interesting)

zach_the_lizard (1317619) | more than 6 years ago | (#24373145)

Or perhaps it is a problem that we have politicians that are easily bribeable. Sure corporations should be to blame for initiating the bribery, but the other side of the equation, those who accept the bribes, are just as guilty, if not even more so.

I think the only way to get the patent system perfect (or any other endeavor that man engages in to bring order to society) is to either have robots rule us (*insert memes here*), or make it profitable for the politicians to not accept sums of money (or campaign donations) to make loopholes. That would probably mean that we vote out everyone who engages in such behavior, no matter how good a leader they may otherwise be. A tall order.

Re:What separates software patents from others? (2, Interesting)

pnewhook (788591) | more than 6 years ago | (#24373325)

Because in the first case, the patentable object is an actual thing that does something useful. Software on it's own as a separate entity is not useful as it does not do anything. It needs hardware to actually function and be useful. If it's not useful, it doesn't pass the requirements to be patentable.

If you want to patent say a new harddrive with software file system that allows fast system access, then as a physical unit the entire thing is patentable, and the patent item just happens to have software in it. But software on its own should not be patentable - it doesn't make any sense.

Re:What separates software patents from others? (2, Interesting)

ZenDragon (1205104) | more than 6 years ago | (#24373853)

For the most part, I agree. However, this is the realm for a copyright not a patent. Just because your software does a particular thing shouldn't prevent development of similar software simply by the fact that it does the same thing. Its like patenting the process of driving. You can patent a particular technology used in driving, but not the act of driving itself, so to speak. Maybe that was a bad analogy but any reasonable person would get the point.

Re:What separates software patents from others? (1)

pnewhook (788591) | more than 6 years ago | (#24374953)

I agree. I don't believe software patents should exist at all.

In fact patents in general are a bad idea and serve only to stifle innovation.

Re:What separates software patents from others? (1)

TheOnyxRocket (921830) | more than 6 years ago | (#24374353)

Software on it's own as a separate entity is not useful as it does not do anything.

It's amazing to see several posts that say this. I don't know about yours, but my software is useful. If it wasn't useful, I doubt anyone would bother to try to get a patent. My software is at least as useful as a patented paperclip (requires papers) or a patented laser (requires electricity) or a patented car (needs driver and gas).

Re:What separates software patents from others? (1)

pnewhook (788591) | more than 6 years ago | (#24374933)

Your software on it's own does nothing. It cannot function. It doesn't even exist except in concept.

Software only ever does anything with the help of something physical and with an interface to the real world.

Patenting software would be like patenting the ink on a book or the spaces between the words..

Re:What separates software patents from others? (1)

Just Some Guy (3352) | more than 6 years ago | (#24373343)

Let's say someone invents a new file system, that lets you access files almost as quickly but with many times the protection against data corruption. Why would this not be patentable?

For precisely the same reason that Newton's method for finding roots isn't patentable, even though it's clearly better and faster than just guessing around.

Re:What separates software patents from others? (0, Troll)

b4dc0d3r (1268512) | more than 6 years ago | (#24373569)

I use truffle pigs, they're very efficient.

Re:What separates software patents from others? (1)

Trojan35 (910785) | more than 6 years ago | (#24373515)

I think it's the threshold of "invention".

Is a new file system a real invention? Yes, probably. What about patenting adding a 4-letter extension to file names instead of a 3-letter one? Probably not.

I think everyone disagrees where the line should be drawn, which is why people are frustrated to the point of just wanting to throw it all out the window.

Re:What separates software patents from others? (1)

forgotten_my_nick (802929) | more than 6 years ago | (#24373913)

I think the real problem is that there are underlying issues with the patent process that people are abusing.

Software patents are a good thing. What is bad is that some of the BS software patents that get in. The main failing points that I have seen are.

- BS obvious patents (obvious after the fact is patentable, but these are before).
- Prior art out the wazoo but hidden.
- Resubmitting same patent multiple times with slight changes (seriously! you can see them in google if you look hard enough)
- Submitting to certain offices knowing that they would go through faster/easier.
- Interns reviewing patents.

Now for those that don't like patents the easier way to combat them is review those coming up for prior art. Check out: http://www.peertopatent.org/ [peertopatent.org]

Or if you have a cool idea that you believe should be free for all, publish it instead.

Re:What separates software patents from others? (1)

Timothy Brownawell (627747) | more than 6 years ago | (#24374083)

My impression is that the case against software patents is really a fight by proxy against patents in general, recognising the growing role that software plays to make anything happen.

There are a few differences:

  • Software has approximately zero manufacturing cost and production ramp-up time. You don't need protection for while you get factories up to speed or shop around for capital.
  • Software is protected by copyright. The mechanism of a log cutter isn't.
  • Some software (especially protocols/file formats) derives nearly all of its value from network effects. This greatly amplifies the power of the patent holder, I'd say beyond what is reasonable. (This could also apply to certain physical patents, but I'd guess that the effects are probably stronger with software because things happen so fast.)

It shouldn't be about whether an invention is entitled to or "deserves" protection, but whether giving protection to a class of inventions is really beneficial to society.

Of course, "it depends" doesn't make for nearly as good a rant as "hell no", so any populist group (formal or informal) will tend toward the latter...

Re:What separates software patents from others? (2, Insightful)

argent (18001) | more than 6 years ago | (#24374619)

Let's say someone finds a new way to cut logs that let you build log cabins almost as easily but many times more sturdily and with better isolation. This would surely be patentable.

I assume you mean "better insulation". How much do you think it would cost to research such a process to the point where it was patentable? You have to actually cut logs and fit them together... even if you prototype the design in Second Life you're going to have to build it to tell if it actually works.

Let's try another example: Let's say someone patents an idea (putting adhesive strips on a piece of soft plastic to hold it against a curved monitor screen on a fish-finder to protect it), then later sees someone using van-der-waal forces to hold a flat piece of soft plastic against a flat touch screen, and files a modified patent that eliminates all the claims of his original patent (because the first few claims made a big point of the difficulty of attaching he plastic to the curved screen, and the use of adhesive strips) and replaces them with a patent for this handheld screen protector, then starts going after people who had been making these things long before he filed his amended patent?

The thing about software patents is that most of them are more like the second case than the first. They're overly broad, are based on simple and obvious ideas, and are frequently re-interpreted to apply to problems that nobody had even thought of when the original patent was filed.

If software patents were restricted to completed systems with comparable levels of research and development costs as your examples, I suspect there would be a good deal fewer objections to software patents. Some people might have the kind of hidden agenda you're talking about, but most people wouldn't care. The problem is that they're not, and most of them seem to be about things that are routinely implemented hundreds of times a day by people who have no idea that they're creating a "patentable invention".

I don't know how to come up with rules that would allow your "hard problems" patents without leaving the floodgates open. I'm not a lawyer. I don't play one on TV.

You got any ideas?

shiqt.. (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#24372925)

no matter how SHALL WE? OK! *BSD is dead. At least.' Nobody turned over to yet to get involved in May do, 8ay not Tops responsibility and piss cocktail.

algorithms patentable? (5, Interesting)

dougmc (70836) | more than 6 years ago | (#24372929)

everyone seemed to agree that the algorithm was patentable

That's an odd thing to agree upon, because algorithms are not patentable [umd.edu] (search for `algorithm')

But methods are. I forget where I read this, but the difference was explained something like this --

Bob: So, algorithms are not patentable and methods are.
Lawyer: Right.
Bob: But what's the difference between an algorithm and a method? Aren't they pretty much the same thing?
Lawyer: Listen carefully ... algorithms are not patentable, but methods are ...
Bob: ?

Re:algorithms patentable? (2, Interesting)

jmalicki (1764) | more than 6 years ago | (#24373091)

That webpage may state that algorithms are not patentable, but our courts disagree. See, for example, [findlaw.com] [findlaw.com] :

"The court's analysis did not stop there, however. The Court further stated that mathematical algorithms were not a type of subject matter expressly prohibited by  101; rather, unpatentable types of mathematical algorithms represent laws of nature, natural phenomena and abstract ideas. The proper test for determining whether a claim is unpatentable, the court said, is "whether the claimed subject matter as a whole is a disembodied mathematical concept. . . which in essence represents nothing more than a 'law of nature,' 'natural phenomenon,' or 'abstract idea.'" The court said that a claim directed to a combination of interrelated elements' recites a specific machine, not a disembodied concept."

Re:algorithms patentable? (1)

dougmc (70836) | more than 6 years ago | (#24373641)

Better reference, from Wikipedia on Algorithm [wikipedia.org] --

Legal issues

See also: Software patents for a general overview of the patentability of software, including computer-implemented algorithms.

Algorithms, by themselves, are not usually patentable. In the United States, a claim consisting solely of simple manipulations of abstract concepts, numbers, or signals do not constitute "processes" (USPTO 2006) and hence algorithms are not patentable (as in Gottschalk v. Benson). However, practical applications of algorithms are sometimes patentable. For example, in Diamond v. Diehr, the application of a simple feedback algorithm to aid in the curing of synthetic rubber was deemed patentable. The patenting of software is highly controversial, and there are highly criticized patents involving algorithms, especially data compression algorithms, such as Unisys' LZW patent.

Re:algorithms patentable? (1)

ZenDragon (1205104) | more than 6 years ago | (#24373975)

[findlaw.com] [findlaw.com] :

"The court's analysis did not stop there, however. The Court further stated that mathematical algorithms were not a type of subject matter expressly prohibited by  101; rather, unpatentable types of mathematical algorithms represent laws of nature, natural phenomena and abstract ideas. The proper test for determining whether a claim is unpatentable, the court said, is "whether the claimed subject matter as a whole is a disembodied mathematical concept. . . which in essence represents nothing more than a 'law of nature,' 'natural phenomenon,' or 'abstract idea.'" The court said that a claim directed to a combination of interrelated elements' recites a specific machine, not a disembodied concept."

In other words, you can patent an physically embodied concept, but not the concept itself. To cite an old example; you can patent the abacus, but you cant patent the concepts and math that it is based on.

Re:algorithms patentable? (1)

DamnStupidElf (649844) | more than 6 years ago | (#24374679)

The proper test for determining whether a claim is unpatentable, the court said, is "whether the claimed subject matter as a whole is a disembodied mathematical concept

So, basically, up to the whim of the patent office. There is nothing (that government can recognize, at least) that is not the result of natural laws, or that is not a natural phenomenon. Humans obey the naturalistic laws of the universe, as do the tools we make. It merely falls to the patent office and courts to arbitrarily put these natural phenomena into two classes; those they wish to call inventions and those they wish to continue to call natural phenomena. I will accept any disproof of naturalism as evidence to the contrary, or a clear description of what the division between natural phenomena and human behavior is.

The definition of an abstract idea is similarly useless, since every patent application is an "abstraction" on paper, dealing with imaginary ideal components and not a real physical object. Again, the dividing line between abstraction and practicality is completely up to the whim of the patent office or a random court. I think every function from one set (the domain) to another (the range) is abstract, regardless of the fact that every possible algorithm can be expressed as such a function.

If anything, patents are granted for practical ways to realize the implementation of abstract functions in a physical medium. The function itself is merely an abstraction, and the machine that approximates it may be patentable, but any dissimilar machine to implement the same abstract function should not fall under the patent. In essence, patents should function as strictly as copyrights such that an independent derivation of a machine should not fall under an existing patent. A mere description of an abstract function should not cause an independently invented machine that implements the function to violate any patent claims. That leaves no room for software patents.

If a digital signal is not patentable ... (0)

Anonymous Coward | more than 6 years ago | (#24373025)

Then DNA should not be either. Hopefully that logically follows from this, and gene sequence patents are complete bravo sierra.

Still does not address the real issue (3, Interesting)

j. andrew rogers (774820) | more than 6 years ago | (#24373105)

The real issue, which most people avoid addressing, is that there is no practical distinction between software patents, chemical process patents, or machinery patents as a necessary consequence of basic theory. The reason this has become an issue at all is because there is increasingly little distinction in practice as well. Consequently, any dividing line is going to be arbitrary and capricious. Note that there is a similar emerging problem with copyright law, which is also premised on a false model of the universe that is starting to become obvious in practice. Yet few people are suggesting we solve this problem by rectifying the law with reality, instead opting to promote an alternative fantasy model of the nature of the universe that will ultimately break when it intersects with reality.

As every computer geek should know, there is no theoretical distinction between the machine, the program, and the data. At one time there was a practical distinction, but those lines have been blurring for many decades now. Any solution that pretends like these are theoretically distinct classes of thing solves nothing, as the cause of this problem was pretending a theoretical distinction exists where none does in the first place.

Re:Still does not address the real issue (1)

JesseMcDonald (536341) | more than 6 years ago | (#24374899)

The real issue, which most people avoid addressing, is that there is no practical distinction between software patents, chemical process patents, or machinery patents as a necessary consequence of basic theory.... As every computer geek should know, there is no theoretical distinction between the machine, the program, and the data.

There is a practical distinction, though. Sure, in the context of a running program, machine, program and data are all different aspects of the same unit. In the context of a patent application, however, they are separated by a number of factors, not least of which is the fact that the application itself does not include any claims relating to the machine or data, just the program. It cannot include such claims, because the machine was invented by others, and a patent limited to specific input data would be extremely limited in scope.

What we're left with is an algorithm -- not a method of production, as in a chemical process patent, but a pure mental process -- automated by means of a general-purpose computer. How does an existing device, used as designed, plus an unpatentable mental process possibly qualify for a patent?

Re:Still does not address the real issue (1)

Timothy Brownawell (627747) | more than 6 years ago | (#24375463)

What we're left with is an algorithm -- not a method of production, as in a chemical process patent, but a pure mental process -- automated by means of a general-purpose computer. How does an existing device, used as designed, plus an unpatentable mental process possibly qualify for a patent?

Given a general-purpose robot, everything can be reduced to "a pure mental process -- automated by means of a general-purpose computer". So how are software patents any different from any other kind of patent?

Software Patents Just Need to be Smarter (5, Interesting)

hellwig (1325869) | more than 6 years ago | (#24373117)

The problem I see with software patents is that people are patenting the wrong ends of their ideas (they're putting their makeup on their asses in other words).

Take for example Amazon's one-click checkout. The idea of a one-click checkout should not be patentable. Anyone number of people should be able to accept a single click to check-out, what should be patented is the system behind the checkout. The mechanism for tying in the user's login, prioritizing recently used shipping addresses and payment methods, etc... You need to patent the process or the invention, not an ethereal idea.

If I invent Widget A that performs task A, and am awarded patent "Widget A for performing Task A", and someone realized widget A will also perform task B without any modifications, they can't patent "Widget A for peforming task B", because I still own the patent for Widget A, which is all that really matters. I own the exclusive rights for Widget A, no one else can reproduce Widget A regardless of what they want use it for. Amazon didn't invent one-clicking (didn't Microsoft patent that recently?), so they can't say no one else can use one-clicking for checking-out.

It's similar to the patent that the adult-entertainment (read: porno) industry has been fighting for years. Some company patented the idea that videos could be downloaded from the internet. Problem is, since that company did not create the internet nor the http protocol nor the first web-browser, they didn't actually create anything that had to do with the content their patent covered. Improving upon an invention means changing the invention, not mentioning something else the invention could be used for. That's the problem with software patents. People are patenting what existing technology can do, but if they don't own the existing technology, they can't tell other people they can't use it for other things.

recent cases? (1)

benicillin (990784) | more than 6 years ago | (#24373647)

The first two cases cited are from 2006, hardly recent.. Also not relevant.

Software/Math connection road to invalidation? (1, Informative)

Anonymous Coward | more than 6 years ago | (#24373653)

If algorithms/Computer programs can be proven to be correct or incorrect using mathematics, why are they not simply an extension of mathematics? They are almost entirely interchangeable to the point of in many cases being substitutable languages for one another-- f(x)= a+b, int f (int a, int b) { return a+b; } Thus if mathematical algorithms are not patentable and it can be shown that the "laws" of programming and logic are essentially the same as the laws of mathematical computation and proof, shouldn't that be enough to say that if Mathematical algorithms are not patentable, then mathematical algorithms expressed as machine instructions (programs) are not patentable?

Troglodyte here... (0)

Notquitecajun (1073646) | more than 6 years ago | (#24373803)

Okay...so if I design a new game, say, Duke Nukem Forever or something, it should be free for whoever wants to play it? Is that what people are arguing at some places here?

Supreme Court Decision (0)

Anonymous Coward | more than 6 years ago | (#24373971)

I think everyone on this board should read:
      http://en.wikipedia.org/wiki/Diamond_v._Diehr

"an otherwise patentable invention did not become unpatentable simply because a computer was involved."

With some reservations, I agree (2, Interesting)

Anik315 (585913) | more than 6 years ago | (#24374153)

I agree with scaling back of software patents with certain reservations. I don't think you should be able to patent abstract concepts such as formulas or even general purpose application software, but you should to make patent claims on certain kinds of software so long as the scope is narrow and there are specific hardware and software specifications.

Software that nonsuperflously extends the basic functionality of a particular device beyond what it was designed to do should be patentable. The best example of this is custom device drivers and but other novel software extensions might also apply.

Furthermore internal network architectures should be patentable. If you have a network that you own and operate, and you have a protocol that you use for that network, you should be able to patent your protocols so that third parties can't operate on your network by reverse engineering your protocols.

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