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Federal Circuit Appeals Court Limits Business-Method Patents

timothy posted more than 5 years ago | from the sounds-smart-so-far dept.

Patents 73

Zordak writes "The Court of Appeals for the Federal Circuit has just issued its much-anticipated opinion in In Re Bilski [PDF]. This was a re-visit of the State Street issue of what constitutes patentable subject matter (including whether software and business methods are patentable). In summary, the court has affirmed and strengthened the 'machine-or-transformation' test, upholding the patent office's rejection of claims on a method for hedging risk in the field of commodities trading. Although the court refused to exclude software patents categorically, it is likely that the reasoning of this decision will be used to reject many software patents (note that some of the dissenting judges would have completely overturned State Street and tossed out all software and business method patents). Although not as sweeping as some had hoped for, it is certain that this decision, along with the Supreme Court's KSR decision last year, will lay a difficult mine field for those who want to patent software and business methods."

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To patent something... (4, Funny)

ChromaticDragon (1034458) | more than 5 years ago | (#25575381)

It helps to be first

Re:To patent something... (-1)

Anonymous Coward | more than 5 years ago | (#25575397)

Win...

...dows (1)

gnutoo (1154137) | more than 5 years ago | (#25578967)

Failure.

So goes the patent shake down [boycottnovell.com] . What does that leave them with?

Re:To patent something... (1)

Enki X (1315689) | more than 5 years ago | (#25575533)

Surprisingly relevant... It doesn't matter if the patent has any substance at all... you just have to be the first to submit an application... (and have loads of money)

re: I'm a Democrat .. (2, Interesting)

rs232 (849320) | more than 5 years ago | (#25575687)

"I work full-time and gross $19,200/year and I'm a Democrat. What's your excuse?"

If all you socialists get into power we'd all be broke .. oh ... wait ... :]

Give a man $10 he's a free-loader .. give a man $700 billion he's a captain of industry ...

Re: I'm a Democrat .. (1)

Enki X (1315689) | more than 5 years ago | (#25575727)

Sir, I don't disagree on any particular point....It's just...

Re: I'm a Democrat .. (4, Insightful)

Warll (1211492) | more than 5 years ago | (#25575931)

$10 he's a free-loader .. give a man $700 billion he's a captain of industry ...

Those two are not mutual exclusive...

Re: I'm a Democrat .. (1)

MarkvW (1037596) | more than 5 years ago | (#25577003)

I'd rephrase it:
Give a man $10 and he's a freeloader; give a man $700 billion and he's a freebooter.

Re: I'm a Democrat .. (1)

funkatron (912521) | more than 5 years ago | (#25577089)

I'm a man, do you want to give me $700 billion?

Re: I'm a Democrat .. (1)

immcintosh (1089551) | more than 5 years ago | (#25577107)

The bailout of a thousand thousand thousand thousand dollars begins with a single Hamilton.

Re:To patent something... (2, Interesting)

princessproton (1362559) | more than 5 years ago | (#25575867)

Slightly inaccurate. The US is a "first to invent" system, as opposed to "first to file" system (which is how the rest of the world operates), and proof is required. In addition, patent application reviewers are actually reviewed, judged, and promoted by the number of patents that they REJECT. There are very visible and acknowledged rejection quotas that the employees must meet. The only patents that are simply approved are the 1-year provisional patents, which are usually just stamped and thrown in a file. True, USPTO employees are usually completely overwhelmed, underpaid, and at times underqualified to understand the substance of the patent applications, but the substance needs to be there and in the right form for approval.

Re:To patent something... (2, Insightful)

alexborges (313924) | more than 5 years ago | (#25576017)

"but the substance needs to be there and in the right form for approval"

Franz Kafka tried to sue you for infringement of his humor.

Re:To patent something... (1)

techno-vampire (666512) | more than 5 years ago | (#25577199)

There are very visible and acknowledged rejection quotas that the employees must meet.

This is something I've never heard of. I'd love to learn more about that; can you give a cite?

Re:To patent something... (4, Interesting)

princessproton (1362559) | more than 5 years ago | (#25577385)

I recently took an IP law class (taught by a patent attorney) and he mentioned this fact. He also said that the best way to get a patent through is to contact the patent reviewer assigned to your application near the end of the month, agree to a rejection on specific grounds (even if they are minor, simply to help them fill their quota), and then resubmit the next month with a response to those issues. The reviewer assigned to your case is always the same, so they will recognize your application and approve it on its second time through as a quid pro quo. So yes, there's no denying there are issues and opportunities for corruption within the approval process, but it's actually more natural for the reviewers to reject rather than approve to make a dent in their caseload. Also, the grounds for objection (obviousness, for example) can be very subjective so it is possible to reject many patents based on a combination of several pieces of prior art and the assumption that it could have been discovered or invented by anyone with ordinary skill in the art, even if this might be unlikely in reality.

Re:To patent something... (2, Interesting)

Dachannien (617929) | more than 5 years ago | (#25581203)

He also said that the best way to get a patent through is to contact the patent reviewer assigned to your application near the end of the month, agree to a rejection on specific grounds (even if they are minor, simply to help them fill their quota), and then resubmit the next month with a response to those issues.

"Agree to a rejection"? As an applicant, you don't have any say in whether your application gets rejected or not, aside from doing your best to ensure that the application meets the statutory requirements when you file it or amend it. You could contact the examiner, I suppose, and say that you happily accept a rejection, but the examiner still has to write up a rationale for the rejection. Once you get the office action describing the rejection, you have some time to submit a response, and at that point, it's up to you to decide to be a dick about it or not.

Also, PTO quotas become more important at the end of a quarter and particularly at the end of a fiscal year. Some agents will pester examiners for interviews around that time in the hopes that the examiner will be more amenable to allowance, since allowance = disposal = a count.

Re:To patent something... (1)

princessproton (1362559) | more than 5 years ago | (#25584535)

Yes, my answer was poorly worded (I should also clarify that this is also not necessarily the "best" way to get a patent through). You are correct, applicants do not get generally get a say, HOWEVER, proactively eliciting a rejection to ease the examiner's caseload (especially if explicitly offering potential grounds for rejection, since most patents ask for far more than the inventor actually needs/is likely to get anyway) CAN result in your response be viewed more favorably and not scrutinized as closely. Although the rejection and the written response are still necessary, this shifts much of the work to the attorney/patent agent, and the examiner is more lenient in response.

Re:To patent something... (1)

Dachannien (617929) | more than 5 years ago | (#25591371)

If, as an applicant, you are in possession of potential grounds for rejection, you have a statutory duty to disclose those grounds to the PTO. Later on, if your patent ends up the subject of litigation, and it becomes apparent that you intentionally withheld information from the PTO relevant to the patentability of your invention, that alone is grounds for invalidation of the patent.

Re:To patent something... (1)

Theaetetus (590071) | more than 5 years ago | (#25577945)

The only patents that are simply approved are the 1-year provisional patents, which are usually just stamped and thrown in a file.

I agree with your post, with a slight correction. These are provisional patent applications, they're not issued, and they grant no rights whatsoever... all they give is a filing date that a later nonprovisional patent application can use for the purposes of avoiding prior art. i.e.: A files a provisional on 1/1/2008. B files a provisional on 6/1/2008. A files a nonprovisional on 1/1/2009. B's application can't be used against A. But that doesn't mean that A can claim he has a patent, or any other rights.

Re:To patent something... (1)

Zordak (123132) | more than 5 years ago | (#25578141)

I agree with your post, with a slight correction. These are provisional patent applications, they're not issued, and they grant no rights whatsoever...

I agree with your post, with a slight correction. Provisional patent applications grant almost no rights whatsoever. They grant you the right to stamp "Patent Pending" on your widget.

Re:To patent something... (1)

Veramocor (262800) | more than 5 years ago | (#25578269)

They also reserve your priority date. Where prior art clocks start on the date before the provisional not the non-provisional application. Also helps in case of interferences.

Patently FALSE assertion (2, Interesting)

Anonymous Coward | more than 5 years ago | (#25578193)

Completely FALSE. Do you have any evidence of this? Please show me in the MPEP (Manual of Patent Examining Procedures) where it says that patent examiners are reviewed, judged, and promoted based on rejections.

I work at the U.S. patent office and you do not have quotas set for how many rejections you do.

You have so many COUNTS per week that you have to do. The first time you look at a case and make a decision you get a count (A First Action On the Merits FAOM, whether you reject it or allow it). When a final disposal is made (patent is granted or is abandoned or inventor pays additional money to continue prosecution [RCE]) you get a disposal count.

If you allowed patents on first go around you'd get two counts your first action and your disposal. So a patent examiner who wants to do the least amount of work would want to allow everything. You'd get more counts plus you can do an allowance in a page or two of writing instead of 20-40 pages of writing for a rejection.

Your quality is looked at for both rejections and allowances. They do care if you allow a case that shouldn't have been more, but it can not be said that if you allowed a lot of cases (which were allowable) that you would not get promoted.

As for pay in 5 years if you get all your promotions you would make around 110,000. A person with 15 years of experience or a supervisor around 150,000 [a representative to the U.S. house makes 169,000 for comparison, although I would say that most patent examiners are smarter than the House reps but who on slashdot isn't Parent thread excluded). The government couldn't pay more if they wanted to as the top grade level/step is capped by congress for all federal employees.

Best Regards,

Anonymous Coward Examiner

Re:Patently FALSE assertion (1)

Zordak (123132) | more than 5 years ago | (#25582597)

As for pay in 5 years if you get all your promotions you would make around 110,000. A person with 15 years of experience or a supervisor around 150,000 [a representative to the U.S. house makes 169,000 for comparison, although I would say that most patent examiners are smarter than the House reps but who on slashdot isn't Parent thread excluded). The government couldn't pay more if they wanted to as the top grade level/step is capped by congress for all federal employees.

And here's the real problem. Market rate for a starting associate patent attorney in a law firm is $120,000 -- $150,000 in even moderate markets (DC and NY are more like $175,000, but of course, you have to live there). At five years, depending on how much you bill, you can be pulling in as much as $250,000. And we wonder why there's such high turnover at the USPTO? "Hey, you can come work for us and have unreasonable quotas and spend your vacation catching up on your counts, and we'll pay you like HALF of what you can make in private practice!" What a great deal!

Re:To patent something... (0)

geekboy642 (799087) | more than 5 years ago | (#25576051)

I work full-time and make $68,000 per year, and I'm a Democrat.
My brother-in-law works full-time and makes $24,000 per year, and he's a Republican. But then again...I have a college degree and he doesn't.

Re:To patent something... (2, Funny)

Attila Dimedici (1036002) | more than 5 years ago | (#25576555)

I work full-time and make $68,000 per year, and I'm a Democrat.

Wow, you're poor......... for a Democrat.

Champagne bottles popping at Groklaw (3, Informative)

postbigbang (761081) | more than 5 years ago | (#25575477)

It's not a full victory, as mentioned. But it's a step in the direction of sanity versus a congress that's been overly influenced by the IP troll communities.

The victory seems solid, but SCOTUS has a different palette of judges to look at this with. We'll see if it becomes the law of the land or not, then, a few years from now should it be appealed-- and my guess is that it will be despite its strong tone.

Re:Champagne bottles popping at Groklaw (3, Informative)

Chris Burke (6130) | more than 5 years ago | (#25575739)

We'll see if it becomes the law of the land or not, then, a few years from now should it be appealed-- and my guess is that it will be despite its strong tone.

Or it could be something that they deliberately don't appeal, and they and other companies avoid going against in other cases so as to avoid an even stronger SCOTUS precedent. Kinda like when in Microsoft vs AT&T, they got close enough to the issue of software patent-ability that one of the Justices questioned whether they were assuming it to be the case, as they'd(SCOTUS) never held software to be patentable before, and the counsel for both sides backed way off so as to avoid any possible ruling for or against software patents. Seems especially prudent when the Justice semi-implies what the answer would be.

So it could go either way. Apparently the issue of whether software or business methods are patentable has never reached the Supreme Court before. It'd be rather sad if the whole software patent regime that's caused so many problems over the last couple decades was just a legal fluke that never should have happened. On the other hand, one of the main limits on Judicial power is that they can only rule on issues that come before them.

Re:Champagne bottles popping at Groklaw (2, Insightful)

postbigbang (761081) | more than 5 years ago | (#25575873)

It's important to pick the right battles, that's for sure-- but this one already has years, and lots of money spent on it. Maybe it's not the right time for them to pursue it, we'll agree, but there's a lot invested here-- including those patents that summarily become invalidated should it be tested again. Only SCOTUS has the final say beyond a new law-- that's the thing to fear most. Big guns will cry in a bad economy, and get sympathetic ears. That frightens the hell out of me.

Re:Champagne bottles popping at Groklaw (1)

Theaetetus (590071) | more than 5 years ago | (#25577995)

Only SCOTUS has the final say beyond a new law-- that's the thing to fear most. Big guns will cry in a bad economy, and get sympathetic ears. That frightens the hell out of me.

Bear in mind that this isn't a constitutional issue... Congress is explicitly empowered to craft patent legislation, so all SCOTUS would be doing is interpreting the statute, and congress is free to amend it... and if Microsoft, Google, Apple, and others are throwing money at congress, they'll modify 35 USC 101 to include software. Count on it.

Re:Champagne bottles popping at Groklaw (3, Insightful)

postbigbang (761081) | more than 5 years ago | (#25578125)

We agree on 35 USC 101.

Then there's: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.

And there's the perversion in IP law that SCOTUS might have to deal with. That's what I fear: new legislation, and the IP battle of titans to get software patents more deeply entrenched, or other business 'theory' concepts established in any way.

Re:Champagne bottles popping at Groklaw (1)

Talondel (693866) | more than 5 years ago | (#25579975)

Given modern interpretations of the commerce clause, it's doubtful that the "intellectual property clause" that you quote in any way limits Congress' ability to legislate in this area. Congress can pass IP laws under their commerce clause power without having to worry about the limiting language in the IP clause.

For example, it's not at all clear what the constitutional authority for the DMCA is, but the legislative history shows that one draft cited the IP clause as the constitutional authority, and another cited the commerce clause. The final version didn't state what the authority was.

Groklaw link: (3, Informative)

toby (759) | more than 5 years ago | (#25575821)

here [groklaw.net] .

Re:Champagne bottles popping at Groklaw (0)

Anonymous Coward | more than 5 years ago | (#25576189)

This ruling is about exactly where I as hoping the law would end up. I'm actually secretly hoping someone will come up with a software-centric invention that really does seem patentable to the general developer's community.

I doubt it will ever happen, and I can't imagine something that would fit that description, but it would be nice to have something to compare all the other ridiculous patent applications to and say "See? This one over here was a real invention. Your application doesn't even qualify as somewhat creative."

Re:Champagne bottles popping at Groklaw (2, Interesting)

postbigbang (761081) | more than 5 years ago | (#25576311)

Why should there be one at all? Having even one would seem to violate lots of tenets and philosophies.

Re:Champagne bottles popping at Groklaw (1)

Veramocor (262800) | more than 5 years ago | (#25578229)

SOCOTUS loves to smack down the CAFC.

In fact the KSR decision was a repudiation of the CAFC interpreting obvious strictly based on the TSM (teaching suggestion motivation) test.

If I were a betting man this decision will be changed by the SCOTUS is some way (either broadening what is patentable under 101 or further narrowing it).

Re:Champagne bottles popping at Groklaw (1)

afidel (530433) | more than 5 years ago | (#25578671)

No, the 9th district is just VERY large and so has many cases reviewed by SCOTUS, SCOTUS overturns the majority of cases they hear and hence to someone not analyzing the data it appears that the 9th gets overruled a lot. There has been plenty of analysis done on the subject, I suggest you check Google =)

Re:Champagne bottles popping at Groklaw (1)

afidel (530433) | more than 5 years ago | (#25578689)

mea culpa. I misread CAFC as California and hence 9th. Please excuse my momentary stupidity.

Patent Office (2, Interesting)

truthsearch (249536) | more than 5 years ago | (#25575549)

So, will this change policy at the patent office? Or does it change the potential outcome of patent related lawsuits?

If the patent office doesn't change what applications they approve, then the battles will still need to be fought in courts, right?

(Is it obvious IANAL?)

Re:Patent Office (1)

Enki X (1315689) | more than 5 years ago | (#25575653)

http://yro.slashdot.org/article.pl?sid=08/07/24/1458215 [slashdot.org]

Did I miss something here?

Re:Patent Office (2, Insightful)

Zordak (123132) | more than 5 years ago | (#25575759)

Yes. The law of patents is what the Federal Circuit says it is (unless the Supreme Court says differently, which happens only occasionally). If the Federal Circuit had said "software is patentable subject matter, and that's final," the USPTO could not reject any software on the basis of subject matter.

Re:Patent Office (1)

SirLanse (625210) | more than 5 years ago | (#25575703)

Sadly the patent office just takes the money and hands out the paper. It lets the courts do all the dirty work. If there is prior art, the court overturns the patent. If it is stupid, the court overturns it. The only thing the patent helps is if you have it, you get to make a little money. Chances are, a really good idea will be profited from while you litigate.

Re:Patent Office (1)

elashish14 (1302231) | more than 5 years ago | (#25576207)

Sadly the patent office just takes the money and hands out the paper. It lets the courts do all the dirty work. If there is prior art, the court overturns the patent. If it is stupid, the court overturns it. The only thing the patent helps is if you have it, you get to make a little money. Chances are, a really good idea will be profited from while you litigate.

What's even sadder and more important is that until someone actually challenges the patent holder, nothing is going to happen. Put it in the hands of a giant like Microsoft with vast resources and the best legal team, and who's going to stand up to them, even if they're phony?

If the patent office issues a BS patent... (0)

Anonymous Coward | more than 5 years ago | (#25576005)

...which subsequently is challenged and overruled by the courts, then make the patent office pay the court fees.

(Yes, I know that both the patent office and the courts are ultimately funded by taxpayers, but that'll still increase the PO's responsibility to some extent).

Re:Patent Office (1)

Dachannien (617929) | more than 5 years ago | (#25576567)

This ruling goes along with the PTO's current practice to a large degree, actually. The only major hole through which software patents can be driven through under current practice is the "machine-readable medium encoding a program"-type of claim.

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Re:COCK (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#25576267)

I don't want to be a nitpicker, but you forgot to place a period at the end of your last sentence.

Fund the US Patent office independently (3, Interesting)

kaltkalt (620110) | more than 5 years ago | (#25576235)

The problem is that Congress decided not to fund the USPTO and allow it to fund itself through application fees, processing fees, and all whatever other fees the USPTO wants to charge. So, the more patents they review and grant, the more money they make. This was the primary cause of the patent explosion - it suddenly became in the Patent and Trademark Office's best interests to allow and grant as many patents as possible. Take the $500 application fee (or whatever it is), charge a review fee, charge a patent issuance fee, and leave it up to the courts sort out whether or not a patent on a method of removing snot from a nose with a finger is a valid patent or not. That's what's been going on. My solution is for congress to fund the USPTO, but that they should only be allowed to issue, say, 100 patents per year. All patent applications are held and reviewed and at the end of the year, the top 100 are granted patents. Frankly, 100 is too generous, I'd rather it be 20 to 30. These days there are nowhere close to 100 truly innovative and nonobvious inventions per year. Maybe 5 or 6, at the most. So 20 patents per year is more than adequate, and 100 is allowing crap that shouldn't otherwise be patentable. Once new patents become a rarity, the number of patent applications will drop exponentially. It should not be a valid business model to own a portfolio of ridiculous patents and sit around waiting for someone to infringe them. That does not foster innovation - quite the opposite.

So, give the USPTO $100,000 or so in federal funding, grant 100 patents per year (a board can pick the top 100), and by all means don't give the USPTO financial incentives to grant as many patents as it can, only to leave the actual work of determining patent validity up to the judiciary. Our courts are clogged enough without people suing over patent infringement for nosepicking methods.

Re:Fund the US Patent office independently (2, Informative)

Dachannien (617929) | more than 5 years ago | (#25576615)

That's not entirely true. All of the PTO's funding still has to be appropriated by Congress, but they generally give back roughly all the revenue that the PTO collects.

Also, since KSR v. Teleflex last year, allowance rates are down sharply.

Re:Fund the US Patent office independently (1)

kaltkalt (620110) | more than 5 years ago | (#25577019)

See http://www.washingtonmonthly.com/features/2005/0506.roth.html [washingtonmonthly.com] for a nice summary of the issue I'm talking about. I believe 35 U.S.C. section 42 [uspto.gov] is the law in question re: USPTO self-funding.

From the article:

Then, in 1991, under pressure to reign in massive budget deficits, lawmakers passed (and President George H.W. Bush signed) a law that revolutionized the way the patent office does business. Borrowing ideas then in vogue among private sector consultants and CEOs to "reengineer" organizations to make them more "customer-driven," Congress instructed the patent office, which had always been funded from government revenues, to now pay its own way through fees charged to applicants, and to make the process of winning a patent easier on them.

In many ways, these changes worked exactly as planned. Partly because patents were easier to get and partly because the 1990s were a period of explosive technological innovation, the agency saw a rush of new business. Patent applications more than doubled from 178,083 in 1991 to 355,418 in 2003. The office became self-financing and flush with cash. Congress was even able to tap its surplus pool of user fees to help pay down the federal deficit. The patent office hired new examiners, and in 2003, moved into fancy new headquarters in a billboard property along the George Washington Parkway near the Pentagon.

The 1991 decision to make the PTO pay for itself, however, has created a series of perverse incentives that encourage the office to approve undeserving applications, and has made it easier for applicants to game the system.

Because each new application now brings in a $380 fee, the agency has an incentive to approve those patents sending a signal to the market to apply for more. Additionally, patent-holders pay annual maintenance fees for the first 12 years of a patent's life, meaning that each approved patent brings in a total of over $3,000 to the office. So every patent issued means a bigger budget for the patent office, and helps to guarantee that Congress will continue to look kindly on the office. "It's like telling the Treasury Department, go call the Bureau of Engraving and Printing and tell them that they're gonna get paid by how many twenties they print," says David Martin, who runs M-CAM, an intellectual-property consulting firm based in Charlottesville, Va., and has testified frequently before Congress about the patent system.

Re:Fund the US Patent office independently (1)

Timothy Brownawell (627747) | more than 5 years ago | (#25578327)

Borrowing ideas then in vogue among private sector consultants and CEOs to "reengineer" organizations to make them more "customer-driven," Congress instructed the patent office, which had always been funded from government revenues, to now pay its own way through fees charged to applicants, and to make the process of winning a patent easier on them.

Trouble being, the patent applicants aren't actually the customers -- they're the product. The customers would be all the rest of us, who get the benefits of the (supposedly) increased innovation the patent system (supposedly) provides.

Re:Fund the US Patent office independently (1)

SlashdotMeNow (799901) | more than 5 years ago | (#25576921)

Suggestion: Increase the application fee and make it non-refundable. Any changes to the application after lodging incurs another application fee. No other fees payable when the application is approved. That way the patent office is incentivised to reject patents because accepting them means more work but no extra money.

Re:Fund the US Patent office independently (1)

kaltkalt (620110) | more than 5 years ago | (#25577613)

Also patent owners should have to disgorge all profits made on a patent that is declared by a court to be invalid (especially if procured by "fraud on the patent office"). Merely having the patent cancelled, and getting to keep years of profits, is not enough of a disincentive to apply for and/or enforce frivilous patents.

Right now they are always increasing the application fee, and it is non-refundable. But they have patent "maintenance fees" for each of the first 12 years after a patent is granted as is in effect. So that right there is a huge incentive for the USPTO to grant patents - automatic 12 years of annual fees per patent. The USPTO has NO incentive to deny a patent, and every incentive to grant all of them.

Re:Fund the US Patent office independently (1)

lysergic.acid (845423) | more than 5 years ago | (#25577007)

well, i think it makes sense to determine the USPTO's funding based on the volume of applications they receive/process, but they definitely shouldn't be making money based on how many patents they grant. that's a blatant conflict of interest. any money they make should go to the treasury, letting the OMB, CBO, or whoever is in ordinarily in charge of the federal budget decide how much money the USPTO should receive each fiscal year.

and there really ought to be some form of government or public oversight to watch for corruption in the patent approval process. if the USPTO is approving all patent applications and leaving it up to the courts to determine whether a patent infringement case is valid or not, then it'll just give major corporations like Microsoft or Apple bully smaller companies around using bogus patents. if the RIAA's crusade against music "piracy" has shown us anything, it's that our court system doesn't work. regardless of one's guilt or innocence, a well-funded corporate litigant can use the financial costs of a lengthy trial to bankrupt ordinary citizens, forcing the defendant to settle out of court even if the lawsuit is groundless.

Re:Fund the US Patent office independently (0)

Anonymous Coward | more than 5 years ago | (#25577509)

Society is too hung up on constants. Make the application fee exponential! I too do not know what the patent application is, let's assume it is $500. Let's change that to $5 * 100 (N). The first application from a company in a "market" is $500. The second application costs $50,000. The third application costs $5,000,000. Even for the biggest companies, it quickly becomes a waste of money to continue to fill a given market with patents, as the fees rise too quickly. However, if M$ wants to file 4 patents in a single market (with that last application coming in at a cool $500 million for the fee), I am sure the USPTO could sure use the money.

Having one patent in a market isn't often a problem, it is the minefield of patents that is a problem. Making multiple patents very expensive to a single entity would help. Some way to tie in these cross-licensing agreements to the fee structure would also help.

Re:Fund the US Patent office independently (2, Insightful)

db32 (862117) | more than 5 years ago | (#25582519)

$100,000 per year? So your plan is to turn the patent office into 2 employees working in the dark out of a cardboard box in a bad part of town? Someone is a bit out of touch with reality in terms of money.

Wonder what Novell feels like right now (0)

slashdotlurker (1113853) | more than 5 years ago | (#25576361)

It could get overturned on appeal (and Microsoft friendly Dems are going to be in charge in all likelihood soon), but one wonders.

Re:Wonder what Novell feels like right now (2, Interesting)

alexborges (313924) | more than 5 years ago | (#25576397)

Are "friendly dems" the kind that actually took microsoft to court in the 90's only to be saved by baby bush?

Re:Wonder what Novell feels like right now (0, Offtopic)

techno-vampire (666512) | more than 5 years ago | (#25577271)

Microsoft friendly Dems are going to be in charge in all likelihood soon

If the Democrats are Microsoft friendly, then why are so many slashdotters anti-Microsoft and pro Democrat?

Re:Wonder what Novell feels like right now (0)

slashdotlurker (1113853) | more than 5 years ago | (#25577495)

You mean independents like me (who will be voting for Obama tomorrow) ?

Its an open secret that Democrats might be agnostic in this Microsoft vs open standards debate, but Democratic lawmakers tend to be pro-Microsoft (as are many Republicans). The reason is pretty simple - much of their money in campaigns comes from the silicon valley and other tech firms on the West Coast. Most of them like Microsoft. With the emergence of Google, that picture might change, but it hasn't yet.

Take a look at RIAA, which is another enemy of many slashdot contributors (some would say, hated even more than Microsoft). Yet, one of its former chairpersons is a woman by the name of Hillary Rosen, who was a big Hillary Clinton supporter, and now supports Obama.

On issues related to privacy, Democrats have been complicit (Obama included) with big government Republicans in killing the Bill of Rights. Your lawmakers, regardless of party, do not work for you when it comes to these commercial and tech issues. The reason for that is obvious - try selling "save my right to choose an office standard" as a political argument. The creature hunted in our political campaigns is a fecund, much worshipped and fawned, human creature called Joe Sixpack. And we all know how much Joe Sixpack hates Linux. Or anything requiring more than a handful of gray cells.

Re:Wonder what Novell feels like right now (0)

gtall (79522) | more than 5 years ago | (#25581327)

Errr...you do realize there's a difference among the Judicial, Legislative, and Executive branches of government. Here's a clue, this is a court case.

Gerry

A Poor Piece of Jurisprudence (3, Informative)

Grond (15515) | more than 5 years ago | (#25576701)

There is some more legally (as opposed to policy) oriented coverage of the decision at Patently-O [patentlyo.com] .

The majority decision introduces a new, complex, and vague test for patentability of business methods and software that raises more new questions than it answers. The end result will likely be the discovery of several 'magic words' that patent applicants can insert into their applications to ensure patentability without materially affecting what the claims cover. Unfortunately, those magic words will likely only be discovered after millions of dollars are wasted on expensive legal battles.

The new test states that a business method or software-implemented invention must be either "tied to a particular machine" or "transform a particular article." The court does not define what a 'particular machine' is. It is possible that a general purpose computer is sufficient, but it may not be. If it is not, it is unclear how specific the patent must be about what kind of computer it is tied to.

The court also failed to define what was a suitable level of transformation or what kinds of articles would suffice. Maybe the transformation must be significant, or maybe any change in state at all is enough. Maybe it will depend upon the nature of the invention. Maybe some articles are physical enough while others are not. All of these questions will require millions of dollars and years of litigation to answer. In the meanwhile, the value of thousands of patents will be called into question.

The court did point out that the article need not be physical, as in the example of a CT scanner which manipulates data representing a patient's body but not the body itself. So perhaps as long as there is some ultimate tie-in to a physical object, the invention is patentable. It is unclear why the manipulation of data representing a patient's body is adequately tied to a physical article but the manipulation of data representing commodities (which are ultimately very real barges full of coal, for example) is not. Figuring out exactly where that line is will be very difficult.

In my opinion (and in the opinion of Judge Rader, who wrote one of the three dissenting opinions) , the law already provided plenty of reasons to deny the application in the case as well as other overly broad or overly vague business method and software patents. Inventing complicated new tests will do more to provide employment for patent attorneys than it will to streamline business and encourage innovation.

Of course, I would also call into question the requirement for a physical tie-in of any kind. So long as the business method or software patent is limited to a specific, useful application (and is new, nonobvious, etc), I see no reason why we shouldn't encourage the development of such inventions. For example, better that a hedge fund patent a new kind of derivative and the world see what they are doing than they keep it an in-house trade secret. Assuming the Supreme Court or Congress does not overrule it, this decision will do much to drive such complex financial methods into the shadows.

One other very real concern. This decision could very well spell the end of Google's Page Rank and AdWords patents. If that happens, expect Microsoft and Yahoo to announce new, improved versions of their search engines and ad-delivery systems...and expect Google's stock to tank. Almost all of Google's value is tied up in its intellectual property. This decision weakens some of the fundamental parts of its business. Without software patents, it will be much harder for Google (or the next clever startup) to challenge more established companies.

Re:A Poor Piece of Jurisprudence (0)

Anonymous Coward | more than 5 years ago | (#25577393)

Feel free to propose a drawing line for eliminating swpats. We are all waiting for your proposals.

Re:A Poor Piece of Jurisprudence (3, Interesting)

Grond (15515) | more than 5 years ago | (#25577597)

I'm not proposing eliminating software patents, so I don't need to provide such a line. I don't actually have a problem with software patents, so long as they are actually new, useful, nonobvious, and accompanied by a written description that adequately discloses the invention. The problem is not software patents: the problem is bad patents, and I can make several recommendations for cutting down on those.

First, the presumption of patent validity should be eliminated, making it easier to overturn bad patents. The large numbers of patents that are invalidated shows that the presumption of validity no longer makes sense.

Second, the patent office should make it easier for those with computer science backgrounds to become patent agents and patent attorneys. By bringing in more people educated in the field, better patents will be written and bad patents will be more easily overturned.

Third, courts and examiners should (and have started to) make more of the fact that all claims (even, or perhaps especially, broad ones) must be backed up by disclosure in the specification. As an example, if I disclose only one compression algorithm in my specification, then I should not be able to claim something as broad as "compressing data by eliminating redundant information." Instead, I should only be able to claim the algorithm I disclosed. Too many overly broad patents are granted, and this is especially common among software patents because the examining corps doesn't have enough competent computer scientists to weed out the chaff.

Re:A Poor Piece of Jurisprudence (1)

Theaetetus (590071) | more than 5 years ago | (#25578067)

Second, the patent office should make it easier for those with computer science backgrounds to become patent agents and patent attorneys. By bringing in more people educated in the field, better patents will be written and bad patents will be more easily overturned.

I'm doing my part (registered to practice a little over a month ago, just got a job as an agent). :)

Re:A Poor Piece of Jurisprudence (1)

darkmeridian (119044) | more than 5 years ago | (#25578785)

The Federal Circuit may be going after mental process patents where at least one step is performed in the mind of the practicer. An example of such a case would be Metabolite, where a doctor infringed a patent by looking at blood test results and concluding the patient was at risk for heart problem.

The abstract nature of machine has been tried earlier. Some patentee as arguing that his patent required the alteration of electrical signals and that THIS was a physical transformation. The Federal Circuit went into some aside about how there already was a carrier signal, etc., and said it wasn't patentable. Of course, at some level, information has to take a physical form of some sort so the whole thing is kind of ridiculous if you get metaphysical about it.

Re:A Poor Piece of Jurisprudence (0)

Anonymous Coward | more than 5 years ago | (#25580003)

The reason that manipulating data representing commodities is not patentable is that it can apply to anything that one trades. There is no limit to how it can be used; it literally is just a process you can work out in your head. This is different from CT scanner software, which is only applicable to CT scanner hardware. Even though you can't patent a method for arranging random numbers, you could patent a method of arranging random numbers for lottery tickets because you're essentially patenting a method of manufacturing lottery tickets.

The key is that there has to be some physical outcome, where the physical aspect is not contrived. You could not patent the Pythagorean Theorem as a method of manufacturing arbitrary-sized triangle templates for draftsmen because fundamentally the Theorem applies to any set of matching numbers and angles. Of course you could patent a method of manufacturing triangle templates, but you wouldn't get a monopoly on applying the Pythagorean Theorem.

Now let's take the hypothetical example of a modem with on-the-fly data compression. It seems like a data compression algorithm is not patentable, but it should be possible to patent a modem that includes data compression because it's really an improvement on the modem. You're taking a physical device and making it better. Such a patent is not, however, a patent on a data compression algorithm. It is a patent only on using that algorithm in a modem. Any other use of the algorithm is not foreclosed.

dom

Re:A Poor Piece of Jurisprudence (2, Insightful)

Alsee (515537) | more than 5 years ago | (#25580573)

I just finished reading the ruling, and I just was about to post many of the same points you just did. I completely agree with your analysis of this victory-for-confusion ruling. It's amusing to be in such complete agreement on the analysis, and be so diametrically opposed with your "I would also call into question the requirement for a physical tie-in of any kind..." followup.

The Supreme Court RULE, repeatedly stated and reaffirmed by the Supreme Court and repeated and reaffirmed in this ruling, is "Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines".

Transformation and reduction of an article to a different state or thing is a physical transformation of a physical article.

This ruling was self contradictory when it arbitrarily cited a purely mathematical "transformation" of purely mathematical data as an example of patentable process.

Of course, I would also call into question the requirement for a physical tie-in of any kind. So long as the business method or software patent is limited to a specific, useful application (and is new, nonobvious, etc), I see no reason why we shouldn't encourage the development of such inventions.

A 100 digit number may be novel and non-obvious and useful for some specific application. I *do* see reason why we should not "encourage the development of such inventions". A number is not an invention. Math is not an invention. The Supreme Court has stated that any algorithm "is treated as though it were a familiar part of the prior art" for patent purposes. Math is not a patentable "invention". An information algorithm is not a patentable "invention". All software is pure algorithm. Software is nothing but a stylized way of writing math. Any possible software is in fact a pure math function taking in one set of numbers, mathematically calculating on those numbers, and returning a set of answer numbers. Any possible software must be treated as though it were a familiar part of the prior art for patent purposes, by the Supreme Court's ruling. And the Supreme Court also explicitly warned that insignificant post-solution activity will not transform an unpatentable principle into a patentable process".

The transformation of information is a mathematical process. You can't patent math.

Any software can be (slowly) "run" entirely mentally. In fact is it a standard part of debugging and analysis for programmers to "run" software in their head, to follow and check exactly what it is doing by carrying it out yourself entirely mentally. It is ludicrous to suggest that some sequence of thoughts could be a patent violation. That thinking certain thoughts could be thought-crime. Absurd to suggest that mentally preforming some "information process" could be patentable. And there is absolutely nothing non-obvious about using a old ordinary computer simply to speed up that information processing. A computer was once new and patentable, but using a computer for it's obvious and intended purpose of speeding up generic non-patentable math is not patentable.

If you have some new non-obvious physical device you can get a patent for that object. If you some new non-obvious physical process for physically transforming a physical article to a different state or thing, then you can get a process patent on the physical act of preforming that physical transformation.

I'm a programmer. I am protected by copyright. Extending patents to cover math is entirely broken. As a programmer I neither want not need broken double-coverage.

The Supreme Court laid out the rule, process patents are for the transformation of articles. Articles are physical objects. That means physical transformation processes.

So, from both sides of the debate we agree that this ruling is a mes. It raises more questions than it answers, and where it does answer questions those answers are ambiguous and contradictory.

-

Re:A Poor Piece of Jurisprudence (1)

Grond (15515) | more than 5 years ago | (#25583583)

I agree with you that, as the law stands now, software and business method patents are in a precarious position. What I don't agree is that they are undeserving of protection as a policy matter. You've made a few commonly raised points, so I'll address them.

A 100 digit number may be novel and non-obvious and useful for some specific application. I *do* see reason why we should not "encourage the development of such inventions". A number is not an invention. Math is not an invention.

But I am not talking about patenting math or numbers per se. I am talking only about patenting the specific application of a number or of some mathematical principle. Consider an alloy defined as 1 part Chromium to 2 parts Iron. I am applying the mathematical principle of a ratio in order to define a useful, physical composition of matter. Yet no one would claim that I am claiming a patent on ratios, just an application thereof. Similarly, if I patent the use of a differential equation to render fluids in a computer game, I'm not claiming differential equations, just their use in rendering fluids.

The Supreme Court has stated that any algorithm "is treated as though it were a familiar part of the prior art" for patent purposes. Math is not a patentable "invention". An information algorithm is not a patentable "invention".

You misunderstand the Court. The court did not state that software was not patentable, merely that algorithms alone are unpatentable, a point on which we agree. What is patentable is an application of the algorithm to a new and useful process.

I'm going to skip down a bit because a lot of the rest of your points depend on the claim that I am advocating patenting math, which is not the case.

Any software can be (slowly) "run" entirely mentally. In fact is it a standard part of debugging and analysis for programmers to "run" software in their head, to follow and check exactly what it is doing by carrying it out yourself entirely mentally. It is ludicrous to suggest that some sequence of thoughts could be a patent violation.

No one is suggesting that. While it is true that one can execute software in ones head, I would be astonished to discover that your head contained a computer monitor, or an internet connection, or a sound card, or any of the many other physical output devices that are routinely claimed in software patents. Again, I am not talking about patenting the naked algorithm, only the application of the algorithm to produce a specific result in the real world. As a technical matter, ones brain likely does not fall within the legal meaning of "general purpose computer" claimed by nearly all software patents, so this alarmist point is moot.

And there is absolutely nothing non-obvious about using a old ordinary computer simply to speed up that information processing. A computer was once new and patentable, but using a computer for it's obvious and intended purpose of speeding up generic non-patentable math is not patentable.

And rightly so, but (good, non-obvious) software patents don't claim "A method for rapidly calculating a known equation by using a computer." They claim "A new and non-obvious use for known equations to accomplish a useful result by use of a computer." For example, Google's Page Rank patent is based on linear algebra and graph theory. All of the math was well known, but the particular application to the Internet was not. The problem is complex enough that no one would attempt it by hand on any useful scale, so the patent claims the use of a computer. Larry and Sergei did not patent linear algebra or graph theory. They patented a new, non-obvious use of that math to accomplish a specific result: the ranking of the relevance of web pages to a search query. I posit that that result, which has created billions of dollars in wealth and saved hundreds of millions of people countless person-centuries of wasted time, is very much deserving of protection in order to encourage innovations like it. To the extent the present law does not allow for it, the law should be amended to make such protection available. Yes, there are bad software patents, but they can be eliminated through things like prior art and failure to adequately back up overly broad claims in the specification. There is no need to eliminate protection for a broad class of inventions.

I'm a programmer. I am protected by copyright. Extending patents to cover math is entirely broken. As a programmer I neither want not need broken double-coverage.

Copyright and patents cover completely different things. Your copyright only very narrowly protects your specific implementation of an idea. Patents, on the other hand, protect the idea rather than the specific implementation. Furthermore, patents protect even against 'clean room' implementations. Copyright provides a screen behind which companies can hide their source code. Patents force inventors to disclose their techniques to the public. The copyright term is essentially eternal, whereas the patent term is comparatively short. Copyright and patents differ both in what they protect and their tradeoffs. Copyright is essentially free, securing and maintaining a patent costs a lot of money. They are not double coverage.

I am not suggesting extending patents to cover math, only the specific application of math in a new, non-obvious process that accomplishes a useful result. As to your needs or wants: well, if you don't want the protection of patents, then don't apply for any. You'll save a lot of time and money, since getting one is expensive and most are not commercially useful. But do not claim that software patents are not desirable to a lot of programmers and software companies: just ask Google, Apple, IBM, Sun, Microsoft, etc. All of them use software patents in one way or another. Some use them defensively, some use them offensively, sometimes they are the very core of their business. The same is true of every other industry. Software is not special. The only reason it was left out of the language of the Patent Act was because the Act was written in 1952 and software barely existed. Were it written today, I assure you it would be protected explicitly, as it should be.

Re:A Poor Piece of Jurisprudence (1)

Alsee (515537) | more than 5 years ago | (#25589845)

But do not claim that software patents are not desirable to a lot of programmers and software companies

It is technically true that a "lot" of programmers are left handed. It is also a wildly fraudulent statement. Programmers re overwhelmingly right handed, and overwhelmingly opposed to software patents. Small and medium software companies are largely opposed. And of your megacorp list "Google, Apple, IBM, Sun, Microsoft", unless I'm mistaken at minimum one of them does not support software patents, at minimum two of have never sued to enforce such a patents, and across all 5 such patents have been a financial net negative. Just because a person or company obtains such patents does not mean that they support them being patentable. I would take a bogus patent on the number '3' if it would help protect me from some idiot troll suing me with his bogus patent on the letter 's'.

Opinion-wise it pretty well lays out with programmers and smaller businesses on one side and patent lawyers and megacorps on the other. Programmers massively object, and the EU found large negativity from small and medium companies when they investigated the issue.

Consider an alloy defined as 1 part Chromium to 2 parts Iron. I am applying the mathematical principle of a ratio in order to define a useful, physical composition of matter.

Right. Physical articles and physical processes for transforming articles to a different state or thing.

No matter how much I *think* about "1 part Chromium to 2 parts Iron", I never *actually make any alloy*.

Similarly, if I patent the use of a differential equation to render fluids in a computer game, I'm not claiming differential equations, just their use in rendering fluids.

You are patenting the purely mathematical process of evaluating a particular chunk of math.

With sufficient effort you could in fact carry out the patented process entirely mentally and in fact produce the result. There is absolutely nothing inventive about using an ordinary old computer in the ordinary old way to evaluate any generic math steps more quickly. There is absolutely nothing inventive about using an ordinary old monitor in the ordinary old wqy to show a generic lighting of pixels for any generic numbers.

You are talking about nothing more than using a glorified calculator in the ordinary intended way, saying that you want a patent on typing in a certain series of pluses and multiplies and other steps, and having the overgrown calculator LCD lightup/dark to show those numbers in the ordinary intended way.

There is absolutely nothing novel, non-obvious, or inventive anywhere. All you you've done is pick out an interesting math euation and said that you want a patent to prohibit anyone else from doing the math in that equation.... Ohhhh... I'm sorry... you only want a patent on someone using an ordinary old computer in the normal obvious old intended purpose of more quickly carrying out any general math equations you want to solve.

The court did not state that software was not patentable, merely that algorithms alone are unpatentable, a point on which we agree. What is patentable is an application of the algorithm to a new and useful process.

No. Read the ruling. Diamond v Deihr is an anti-software-patent ruling often mistaken for a pro-software-patent ruling because of the direction of the verdict.

The court did not rule useful processes were patentable. The court said that an *industrial rubber manufacturing process* was a patentable processes. The physical transformation of a physical article to a different state or thing is statutory subject matter. The court ruled that a patentable *physical process* did not cease to be statutory subject matter simply because you happened to do some math along the way. The court explicitly warned that insignificant post solution activity (meaning *physical* activity) could not be used as magic pixie dust to turn it into a patentable invention.

The claimed invention made use of the Arrhenius equation. Had the claimed invention applied the Arrhenius equation in some useful process as you suggest, but one which was not an a physical industrial process... if it did not involve significant *physical* post solution activity... then it would have been rejected for failing to present 101 statutory subject matter.

Reading the dissent is actually helpful for understanding the majority ruling. Four justices wanted to throw the patent out as invalid. The minority was concerned that an affirmative ruling might be taken as opening the door for invalid patenting of non-physical-process claimed "software inventions". The majority answered that that was absolutely not the meaning of their ruling - they specified that their ruling stood for the simple proposition that a statutory subject matter physical process did not cease to be statutory physical subject matter simply because math was incidentally done along the way. The majority said that they did *not* intend the ruling to be taken the way the minority was afraid it might be taken, and the majority explicitly stated that they were not upholding the patent as valid, that it could still fail on 102 and/or 103 grounds.

Well, it turns out the minority was right. Many people have misinterpreted the ruling exactly the way the minority feared, many people misinterpreted the ruling to mean exactly what majority said it did *not* mean. The majority ruling was quite intent on the fact that they were evaluating a classic example of a physical industrial process to transform an industrial physical article into a different state or thing.

It was a razor thin 5-4 ruling even in the extreme case of an actual classic industrial manufacturing process. Four justices wanted to throw even that out as blatantly invalid. The other 5 said that maybe it should be thrown out for the purely-software-difference not actually making it novel over the old physical process, or for purely-software-difference not purely-software-difference not constituting a non-obvious different.... the other 5 merely said rubber manufacturing *does* fall within 101 Statutory subject matter. Had it *not* been a physical process the same 4 dissenters would still have ruled against it, and likely the entire majority would have ruled against it.

The majority was ruling in support of physical industrial manufacturing processes. They were not ruling in support of "useful" but non-physical processes. They explicitly warned not to allow insignificant physical activity s a loophole to slip though non-physical non-inventions.

For example, Google's Page Rank patent is based on linear algebra and graph theory.

Yeah, useful math. But not a patentable invention.
That patent is pretty far down the list of things Google relies upon for their market position. They largely rely on trade secrets for the huge array of hard earned surrounding factors that go into producing high-quality manipulation-resistant results. They rely upon their trademark. They rely upon the copyright in their work. They rely upon first-mover advantage. They rely on their efficient effective facilities. They rely upon hard earned good will and the trustworthy high quality performance of services. I'm sure I've forgotten quite a few other things, but the point is that their patent portfolio is about the bottom of the list of things Google relies on. Google isn't getting information-processing patents because they value the patentability of information-processing, they get such patents for the same reason many other companies get such patents... for defensive purposes. The reason is because information-processing is patentable, because they want to be equally armed in case they *get* sued.

Google did not need software patents have to "created billions of dollars in wealth and saved hundreds of millions of people countless person-centuries of wasted time".

There is no need to eliminate protection for a broad class of inventions.

I agree, chuckle.
There is however need to officially clarify that a sizable class of patents were improperly issued on non-inventions, and that a number of them have been improperly upheld in lower courts in contradiction to multiple Supreme Court statements of law.

To the extent the present law does not allow for it, the law should be amended to make such protection available.

The computer and software industry was created and enjoyed explosive growth entirely free from software patents. It was only in the 1980s that the State Street Bank opinion really opened the door for such patents in the US, it was only in the 1990s that such patents really started to be requested/granted in any significant numbers, and really only in the 2000s that such patent suits have arisen in any notable numbers, and the 2000s that the US has been arm twisting other countries into poking holes into their laws to permit software patents. The patent laws of almost every country on earth always naturally included some explicit or implicit aspect that non-physical "processes" and algorithms were obviously not within the realm of n "invention".

Here's piece of an internal memo written by Bill Gates to his staff:
"If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today. ... The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors."

The only reason it was left out of the language of the Patent Act was because the Act was written in 1952 and software barely existed. Were it written today, I assure you it would be protected explicitly, as it should be.

If software were actually within the realm of inventions we would need to explicitly exempt them from patents. The purpose of patents is to promote progress. Software patents are economically harmful and an increasing inclination to strangle progress. FFII.org has accumulated abundant materials documenting that during the EU's debate on whether or not to extend patentability to software. The German government also ran a huge survey and obtained n overwhelming (nearly 100%) response from both programmers and almost all businesses that such patents were harmful. Essentially only the positive response they got were from Microsoft and a couple of other megacorps that were lobbying for it, and from patent lawyers.

Innovation, change, and progress are bad for established megacorps. Innovative upstarts are a threat. Innovation and change are a threat to their position and stability. For some companies like Microsoft, innovative Open Source is especially a threat to be squashed.

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Re:A Poor Piece of Jurisprudence (1)

Grond (15515) | more than 5 years ago | (#25591307)

I'm gonna paraphrase your points to keep the post length down. I will try to be fair in my paraphrasing.

Programmers are virtually all anti-software patent

The US patent system is a pragmatic one: if protection encourages innovation, then it is good; if not, it is bad. We should not look to the opinion of scientists or programmers but rather to the hard data. Empirical economic analysis either shows a mixed picture or a benefit. It does not show anything like a clear case for eliminating software patents. Maybe we need to collect more data, but there is not an establish empirical case for barring software patents.

No matter how much I *think* about "1 part Chromium to 2 parts Iron", I never *actually make any alloy*....You are patenting the purely mathematical process of evaluating a particular chunk of math.

And no matter how much you think about differential equations in your head you will never actually make an animation of flowing water appear on a computer screen. My example claim explicitly includes both a specific purpose (to produce images of a fluid) and a tangible output (the images on a screen). It is emphatically not a purely mathematical process and cannot be performed by the human mind alone (i.e., it is not an abstract idea, law of nature, or mental process).

Diamond v. Diehr is an anti-software patent ruling.

As I said above, even if that were true, then the court should be legislatively overruled to allow software patents. I won't go into anymore analysis of the ruling as this isn't really the forum for detailed legal discussion.

Google does not rely on its patents but rather its other IP and its computing infrastructure.

Google would not have gotten a strong trademark without good search results. It would not have gotten the VC funding necessary to build infrastructure, tweak its algorithms, or build the source code that powers all of its other sites without good search results. The absolutely fundamental part of Google is the Page Rank algorithm. If a patent were not essential, then Google would have either kept it a trade secret or published it and gone ahead anyway. If they kept it a trade secret they would've lost the ability to deter anyone who discovered it separately and if they published it then it would've been snatched up by more established competitors like Microsoft, who already had a strong trademark, the money to build infrastructure, etc.

Bill Gates opposes or opposed software patents.

Funny how Bill Gates' opinion can be trusted here but not elsewhere. In fact, in other industries with patents we do not see this 'patent thicket' problem and we don't see it in software. People want to get deals done, and the market will ensure that licensing deals, mergers, co-branding, etc all work out. Empirical scholarship has failed to identify a patent thicket or anti-commons tragedy in any area of technology or research. Software is not special.

The software industry grew without patents, therefore it does not need them.

The one does not necessarily follow from the other. Were software patents allowed from the beginning, it is entirely possible (and I believe likely) that the industry would have seen even more rapid growth. I can support this by comparing software to biotech. Biotechnology is another industry about as old as software, patents are essential to it, and it has seen explosive growth as well. Biotech and software share many similarities: startup costs are low (a few millions will do in either case), discovery costs are high (software is expensive and so is new compound discovery), but replication costs are low (software and compounds are both easy to copy).

Other countries disallow algorithms or mental processes.

The patent laws of other countries were also mostly written prior to the development of computers, just as in the US. In any event, once again, I'm not talking about mental processes or abstract algorithms, but rather the application of algorithms to produce real world results.

Innovation, change, and progress are bad for established megacorps. Innovative upstarts are a threat.

And software patents prevent established companies from appropriating those innovations for themselves. They give them leverage. This is true in other industries and is true in software.

For some companies like Microsoft, innovative Open Source is especially a threat to be squashed.

Open Source and software patents are not incompatible. Open Source projects have little to be concerned about from software patents, as the lack of lawsuits brought against open source projects shows. It's a money-losing proposition for the patent holder, and getting an injunction against an open source project would be very difficult post-eBay. If they are ever threatened by a valid software patent, then they need only design around it. Encouraging designing around patents is one of the fundamental goals of the patent system.

And, to be fair, open source is not particularly innovative. In one of the few studies of its kind, Krzysztof Klincewicz analyzed 500 open source projects and found that only 5 of them were innovative. Open source is extremely good at producing cheap, stable, high-quality copies. It is very bad at innovating.

Re:A Poor Piece of Jurisprudence (1)

Just Some Guy (3352) | more than 5 years ago | (#25583123)

Without software patents, it will be much harder for Google (or the next clever startup) to challenge more established companies.

Good. That means IP holding companies can't use stupid patents to browbeat legitimate businesses.

YRO (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#25578291)

YRO = Yodeling Rectal Ocelots?

Honestly. I can't find anywhere what the hell YRO means.

Given the course of events.... (2, Insightful)

russotto (537200) | more than 5 years ago | (#25579223)

...it seems the patent office SHOULD have rejected the claim for "a method to hedging risk in the field of commodities trading" because it was non-useful.

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