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The Post-Bilski Era Gets Underway

kdawson posted more than 5 years ago | from the method-in-their-madness-but-no-apparatus dept.

Patents 94

bfwebster writes "A set of pharmaceutical process patents for 'evaluating and improving the safety of immunization schedules' (Classen v. Biogen et al.; see US Patents 6,420,139; 6,638,379; 5,728,385; 5,723,283) were held to be invalid due to unpatentability. The decision was appealed to the US Court of Appeals for the Federal Circuit, but was upheld with a terse citation to In re Bilski (which decision we discussed here). Here's the entire text of the appeals decision: 'In light of our decision in In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc), we affirm the district court's grant of summary judgment that these claims are invalid under 35 U.S.C. 101. Dr. Classen's claims are neither "tied to a particular machine or apparatus" nor do they "transform a particular article into a different state or thing." Bilski, 545 F.3d at 954. Therefore we affirm.' It will be interesting to see what happens when these same standards start getting applied to software-related patents."

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What about post-9-11 era? (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#26185569)

Jews must be punished.

Re:What about post-9-11 era? (3, Insightful)

tomhudson (43916) | more than 5 years ago | (#26185767)

Dr. Classen's claims are neither "tied to a particular machine or apparatus" nor do they "transform a particular article into a different state or thing." Bilski, 545 F.3d at 954.

Hey, since that is a transformative act, why not patent it? Then you can prevent anyone else from trying to "punish jews."

While you're at it, why not extend the patent to *ALL* hate crimes? And WAR? Be nice if hate crimes and war were impractical because of potential patent violations.

And you could patent stupidity. We could all use an outbreak of common sense.

Re:What about post-9-11 era? (0)

Anonymous Coward | more than 5 years ago | (#26185791)

Don't feed the trolls.

Re:What about post-9-11 era? (0)

Anonymous Coward | more than 5 years ago | (#26187065)

He didn't feed it, he ate it.

Re:What about post-9-11 era? (2, Funny)

Kozz (7764) | more than 5 years ago | (#26186303)

And you could patent stupidity.

I'm quite certain that'd be one case in which prior art would not go unnoticed.

Re:What about post-9-11 era? (1)

tomhudson (43916) | more than 5 years ago | (#26187611)

I'm quite certain that'd be one case in which prior art would not go unnoticed.

Maybe the examiner is a practitioner? :-)

There's been lots of evidence of that over the last decade.

Re:What about post-9-11 era? (1)

Tubal-Cain (1289912) | more than 5 years ago | (#26186341)

While you're at it, why not extend the patent to *ALL* hate crimes? And WAR? Be nice if hate crimes and war were impractical because of potential patent violations.

Sad as it may be, you might be able to get away with patenting it. Assuming there aren't rules against patenting what is already illegal. I say someone patents "A Method For Hiding Illegally Obtained Moolah By Utilizing A Shell Company."

We could all use a sudden outbreak of common sense.

There. Fixed it for you.

Re:What about post-9-11 era? (1)

russotto (537200) | more than 5 years ago | (#26188947)

Sad as it may be, you might be able to get away with patenting it. Assuming there aren't rules against patenting what is already illegal. I say someone patents "A Method For Hiding Illegally Obtained Moolah By Utilizing A Shell Company."

Prior art, already published, and even taught in a class a few decades ago by one Tom J. Billman (now a guest of the Federal Bureau of Prisons).

Re:What about post-9-11 era? (1)

Tubal-Cain (1289912) | more than 5 years ago | (#26189421)

Since when did prior art count for something again?

Re:What about post-9-11 era? (2, Funny)

florescent_beige (608235) | more than 5 years ago | (#26186467)

Hey, since that is a transformative act, why not patent it?

Sorry, prior art. Look up Genghis Khan v Asia.

Re:What about post-9-11 era? (0)

Anonymous Coward | more than 5 years ago | (#26186643)

And you could patent stupidity.

Too much prior art. Thought, on the other hand...

Re:What about post-9-11 era? (1)

stupido (1353737) | more than 4 years ago | (#26191753)

Did it occur to you that terrorists don't care if they get sued for IP infringement?

Re:What about post-9-11 era? (-1, Troll)

Anonymous Coward | more than 5 years ago | (#26185777)

"Towellheads must be punished."

Fixed that for you.

Your answer is... (0)

Anonymous Coward | more than 5 years ago | (#26185601)

Your answer is only "one click" away...

Oh, wait, Amazon patented that... ok, you're answer is only 10 clicks away!

Link doesn't work... (1)

Doug52392 (1094585) | more than 5 years ago | (#26185667)

One of the links doesn't work, gives an HTTP 404 error.

Re:Link doesn't work... (1)

CaptainPatent (1087643) | more than 5 years ago | (#26185809)

I'm pretty sure this [slashdot.org] was the original discussion and intended link in case you're interested.

Post Bikini era? (1)

Philip K Dickhead (906971) | more than 4 years ago | (#26192523)

Well, that's how I first read it! Say it 'int so...

RAQUEL WELCH!

News for lawyers, Stuff that matters. (4, Interesting)

clarkkent09 (1104833) | more than 5 years ago | (#26185679)

For us non-laywers and not interested enough to spend time looking up those court cases but interested enough to understand what the significance of this is, can someone please translate the summary into plain English?

Re:News for lawyers, Stuff that matters. (2, Interesting)

David Gerard (12369) | more than 5 years ago | (#26185745)

As a rule of thumb, when a judge answers you with a single paragraph of "go away," you were stupid to even bring the case and pushing it is likely to lead only to heartbreak (and paying attorneys' fees) for you and your client.

I heartily recommend a diet of Groklaw [groklaw.net] , to teach you as a technologist WTF the lawyers mean.

In other words... (4, Informative)

maz2331 (1104901) | more than 5 years ago | (#26185789)

It's a virtual invention and gets no protection. Patents after Bilski pretty much have to be tied to a particular machine or change something in meat-space.

Re:In other words... (2, Interesting)

fractalVisionz (989785) | more than 5 years ago | (#26186141)

It's great to see the judgment for this case, however, it will not stop virtual patents in the pharma world (or in software either). Patent lawyers know the system very well, and will use what they learned here to make sure that all virtual patents are tied to a mechanical process or an apparatus. In this case, specifically for US Patent 6420139, evaluating the safety of immunization could become using a simple lab on a chip (the apparatus) that will take the samples from all patients and evaluate their effectiveness in correlation with the schedule of treatment*. The lab on a chip will be novel for detection of a certain disease, virus, etc., which will allow this to be patentable for each new immunization/screening that is needed (with minor tweaks of course).

*Note: this has been written about now, therefor prior art now exists. You may not use this to validate this patent, or others.

Unless It Hits KSR (3, Interesting)

maz2331 (1104901) | more than 5 years ago | (#26187099)

It still will need to pass the hurdle of "obviousness" under KSR, which basically lays down a standard of using commonly known components in accordance with known techniques and getting the predictable result is highly likely to be "obvious" and thus fail patentability.

What I found interesting in this case is that the courts have told the patent attorneys in this case that the Bilski ruling actually means what it says, and that trying to game their way around it will result in summary execution of thier case.

The rules have fundamentally changed.

Re:News for lawyers, Stuff that matters. (1, Informative)

Anonymous Coward | more than 5 years ago | (#26185801)

It might help if the given link actually worked. Prior slashdot discussion here: Federal Circuit Appeals Court Limits Business-Method Patents [slashdot.org]

Basically, in re Bilski is a Federal Court decision which stated that in order to be patentable, the invention must be (in the words of the summary) "tied to a particular machine or apparatus [or] transform a particular article into a different state or thing." In effect, in re Bilski invalidates a range of software and business patents.

The point of this story is not that the Classen v. Biogen result has changed anything legally, or is necessarily interesting to Slashdot on it's own, but that the Bilski decision is now being used to invalidate other patents.

Re:News for lawyers, Stuff that matters. (0)

Anonymous Coward | more than 5 years ago | (#26187975)

um did anyone else read the headline as "The Post Bikini Era Gets Underwear"

Re:News for lawyers, Stuff that matters. (0)

Anonymous Coward | more than 4 years ago | (#26190347)

Yes, but when I read it there was still a hyphen between Post and Bikini.

It's really not a huge change (4, Informative)

CaptainPatent (1087643) | more than 5 years ago | (#26185683)

As a software examiner I can say that this honestly doesn't change a lot in our art unit. If the implementation could occur in someone's head then no physical transformation takes place (i.e. software steps that aren't claimed to be on a computer.)

There are only a small amount of applications this effects and it's very easy to overcome, although I unfortunately can't go into much more depth than that.

Re:It's really not a huge change (3, Interesting)

DigiShaman (671371) | more than 5 years ago | (#26186075)

What about a business processes such as Amazon's 1-Click. Surely this will be next now that there is a precedent.

Re:It's really not a huge change (0)

Anonymous Coward | more than 5 years ago | (#26186257)

unfortunately giving out patentability details on specific cases is one thing I very much need to avoid.
 

Re:It's really not a huge change (0)

Anonymous Coward | more than 5 years ago | (#26186487)

unfortunately giving out patentability details on specific cases is one thing I very much need to avoid.

So much for the dream of transparency in our govt.

Re:It's really not a huge change (0)

Anonymous Coward | more than 5 years ago | (#26188139)

So much for the dream of transparency in our govt.

You want transparency, go to uspto.gov and log on to Public PAIR.

Re:It's really not a huge change (0)

Anonymous Coward | more than 5 years ago | (#26195651)

The only reason I can't give out information on patentability is to prevent the possibility of fraud or misinformation.

What happens if an examiner ends up examining a case they helped on? What happens if an examiner takes undocumented money under the table for giving out such information? What happens if an examiner gives out faulty information that costs an individual or company thousands of dollars?

Believe it or not, there are plenty of reasons examiners can't give out information like that. If I ever go to the private side, I'd be happy to give more advice, but for now I'm going to follow the rules / laws laid out for me and well... keep my job.

As for transparency, all of the laws are openly available to you including the entirety of the M.P.E.P.
You can see all pending applications (unless the company sent in a no-publish request) and all patents.
And lastly you can see most of the court proceedings and all of the decisions.
Sure it's a lot to dig through, but it is almost a fully transparent process.

Re:It's really not a huge change (0)

Anonymous Coward | more than 5 years ago | (#26186263)

There are only a small amount of applications this effects and it's very easy to overcome, although I unfortunately can't go into much more depth than that.

All in a day's work for CaptainPatent. :P Posting AC because it hides my identity and lets me say more than I would if logged in.

Re:It's really not a huge change (1)

Qzukk (229616) | more than 5 years ago | (#26188783)

All in a day's work for CaptainPatent

Boy #1: "Engineers!"
Boy #2: "Scientists!"
Girl #1: "Artists!"
Girl #2: "Inventors!"
Boy #3: "Lawyers!"
*everyone gives boy #3 dirty looks*
Boy #3: "Uhh... Heart!"

Re:It's really not a huge change (2, Interesting)

florescent_beige (608235) | more than 5 years ago | (#26186423)

There are only a small amount of applications this effects and it's very easy to overcome, although I unfortunately can't go into much more depth than that.

I don't think you meant anything controversial but there's just something about that line that makes me grumpy. It sort of implies that the inner machinations of the patent system aren't meant for regular people to understand. It plays to the feeling, common around here, that the only thing that regular people, the kind that might start small software shops, need to know about software patents is that they can kill your business if your competitors are big.

I know that's not what you meant, it's probably your job that prevents you from commenting further.

Still, how many little guys have not tried to pursue a really good idea that might attract attention from MegaSoftware Inc. because they fear getting a registered letter with scary legal documents that say "patent infringement" because some rich guy on his yacht called his $500/hr lawyers and said "that guy is good...kill him?"

Anyway, I kind of launched into a screed there. My fingers just typed it I don't know why.

Re:It's really not a huge change (0)

Anonymous Coward | more than 5 years ago | (#26188247)

interesting premise: lawyers are hitmen?

Re:It's really not a huge change (1)

Iamthecheese (1264298) | more than 5 years ago | (#26195851)

One is a greedy, evil scumbag that destroys lives for whim or money. The other has an honest line of work.

Re:It's really not a huge change (1)

geminidomino (614729) | more than 5 years ago | (#26197163)

You messed that up...

"One is a greedy, evil scumbag that destroys lives for whim or money. The other has an honest line of work where he kills people for money."

Re:It's really not a huge change (0)

Anonymous Coward | more than 5 years ago | (#26195693)

The reason I can't give out information on patentability is to prevent the possibility of fraud or misinformation (which - yes the PTO does frown upon.)

What happens if an examiner ends up examining a case they helped on? What happens if an examiner takes undocumented money under the table for giving out such information? What happens if an examiner gives out faulty information that costs an individual or company thousands of dollars?

Believe it or not, there are plenty of reasons examiners can't give out information like that. If I ever go to the private side, I'd be happy to give more advice, but for now I'm going to follow the (rules / laws) laid out for me and well... keep my job.

I haven't personally heard of any hitman plots to kill an inventor, but protection is designed to give the little guy as much of a shot as the big guys. If you filed your patent first, there's nothing MegaSoftware could really do about it.

That sidesteps the issue. (3, Insightful)

Jane Q. Public (1010737) | more than 5 years ago | (#26186443)

Properly, software, as a written work, should be covered by copyright and not patents anyway. This was true in the past, and the changes that allowed software patents to become common are precisely the cause of all the problems everybody is now trying to fix.

If the current Bilski ruling does not change this effectively, then reasonable people will continue to push until it is changed. In other words, our goal (no joke or exaggeration) is to put you out of a job.

Re:That sidesteps the issue. (0)

samkass (174571) | more than 5 years ago | (#26186507)

Properly, software, as a written work, should be covered by copyright and not patents anyway.

Actually, it's source code as a written work should be (and is!) covered by copyright. Once it's compiled and running through a particular state machine to accomplish certain transformations of data, it's most certainly a method and apparatus. There's no particular reason in my mind why a machine has to be physical to somehow magically be patentable.

Not so (4, Interesting)

Jane Q. Public (1010737) | more than 5 years ago | (#26186835)

either legally or conceptually. This identical issue was settled by the courts almost 150 years ago, when the "music industry" of the time was up in arms about piracy of music for player pianos.

Industry argued that the paper rolls should be patentable, because they constituted physical items that controlled a physical machine. The courts ruled (quite properly, in my opinion) that the physical form of the music is irrelevant; it might be possible, for example, to make a machine that could read music directly off the paper it was written on. Does that make it fundamentally a "different" product or work from the original? The answer was unequivocally "NO".

The same holds for written vs. compiled software: there is no fundamental difference between the results of software that is run in realtime by an interpreter (which reads the source code directly), and the results produced by the same program when compiled. If the interpreter and compiler are constructed properly, the output is identical. Therefore there is no legal (or moral, or ethical, or logical) difference. For all practical purposes they are the SAME.

It is precisely because industry has managed, after all this time, to finally get the courts to be sympathetic to the position that software should be patentable that we are having all these troubles. During the long period when it was understood and accepted that software was a copyright issue rather than a patent issue, such problems seldom arose. Now they are everywhere. Also, software patents have a chilling effect on innovation; we have seen this time and again, even some really egregious examples. It is clear by now that software patents have very little if any societal benefit, in proportion to the harm that they cause.

Re:Not so (0)

Anonymous Coward | more than 5 years ago | (#26187039)

35 USC 101 establishes the statutory categories of invention. These include articles of manufacture and processes. While algorithms and laws of nature, insofar as they are judicial exceptions to the statutory categories, are not per se patentable, practical applications of algorithms and laws of nature are, indeed, patentable.

That a process is accomplished with transistors and electricity rather than gears and springs should be (and is still not) a bar to patentability.

However, (1)

Jane Q. Public (1010737) | more than 5 years ago | (#26187105)

it is the courts that decide what is patentable as a "process", as the Blinski ruling so clearly demonstrates. Until recently, courts were (again properly, in my opinion) reluctant AT BEST to consider that software constituted a process, and usually rejected the idea out-of-hand. Until recently. Which was the whole of my point.

Re:However, (0)

Anonymous Coward | more than 5 years ago | (#26187271)

What do you mean by recently? Check out State Street Bank v. Signature Financial Group, which was 1998. Or In Re Benson, 1972. Software isn't that old as a patent issue. So I don't see what era it was in which software patents were rejected "out-of-hand."

Re:Not so (1)

samkass (174571) | more than 4 years ago | (#26191649)

The same holds for written vs. compiled software: there is no fundamental difference between the results of software that is run in realtime by an interpreter (which reads the source code directly), and the results produced by the same program when compiled. If the interpreter and compiler are constructed properly, the output is identical. Therefore there is no legal (or moral, or ethical, or logical) difference. For all practical purposes they are the SAME.

That is where we disagree. While there are isomorphisms between source code and instructions running through a state machine, I hold that the instructions + state machine form its own patentable process. The source code, and even the binary code, is copyrightable, as you say. But the algorithms and approach are almost by definition a methodology, and when they run on a machine to accomplish some purpose they are a novel invention.

The problem with music is that it is very difficult to prove that it accomplishes a purpose, or that the approach of any given piece is novel. Therefore I disagree that any decision on the patentability of music is precedent.

We can disagree. That is fine. (1)

Jane Q. Public (1010737) | more than 5 years ago | (#26201261)

But it still doesn't make any practical difference. Legally, it's still all the same. Technically, what is being patented is the "process", not the software... and that is what the Bilski decision was all about.

And I would like to explain one reason for my disagreement. First off, I can agree that algorithms can be considered a "process" or "methodology". But the question here is whether they are patentable processes or methodologies. And there are a number of rules for patentability that most algorithms do not meet (despite having been awarded patents by the PTO in the past... part of the problem has been overwork or incompetence on the part of patent examiners).

One of these standards is novelty. A patentable invention or process cannot (legally) be merely an assemblage of other items or processes already in common use. For example, a bottle opener welded to a pry bar is not eligible for a utility patent as a new kind of carpenter's tool. It is merely the combination of two already existing, common tools.

Very few algorithms pass this test. Most are merely assemblies of other common algorithms. Once in a great while, an algorithm is created that does something unusual or unique... but even then, it is debatable how much that algorithm is an entity unto itself, versus merely an assemblage of simpler code that already existed. If the latter (and it almost always is), it is not patentable.

This a primary reason why books are not patentable. A book might be unique and even "inventive". A book might be written that creates an unusual or unique effect in its readers. But... a book is only a collection of words. The whole of the book might be a novel combination of those words (no pun intended), but it is still just a collection of words. As such, it is not patentable.

In exactly the same manner, a computer program is merely an assemblage of smaller, common constructs: (if, then, else, while, when, until, etc...) As such, it is arguably not patentable, even if the overall, larger combination of these simpler constructs produces a unique effect.

As for your music example, I disagree there as well. Music accomplishes a very well-defined purpose: that of entertainment. Further, the already-mentioned player pianos are machines controlled by "music"... which is a mechanical purpose, even if no other. The music constitutes instructions or a "program" for the machine. The courts held that in this sense the music was no different from the punch cards that were used to control looms. It's all software... written instructions that achieve a purpose.

Same, same, same.

Further, we have seen how software patents can stifle trade and innovation. Here is an excellent example: when the company that created the compression algorithm used in .GIF files decided to enforce the patent, people stopped using the .GIF format in droves. Some still used it, and still do... but it's popularity took a nosedive. Today, most people are probably more likely to use the .PNG format, even though the patent on the .GIF algorithm has lapsed.

Re:We can disagree. That is fine. (1)

samkass (174571) | more than 5 years ago | (#26228163)

One of these standards is novelty. A patentable invention or process cannot (legally) be merely an assemblage of other items or processes already in common use. For example, a bottle opener welded to a pry bar is not eligible for a utility patent as a new kind of carpenter's tool. It is merely the combination of two already existing, common tools.

Actually, I'm no lawyer but I'm fairly sure that's not the definition of novelty. Although the standards are different from country to country (some countries patent devices for a particular purpose, others patent only the device itself no matter what it's used for), generally novelty can be proved in a variety of ways, the most common being whether the resulting product is commercially successful. It is presumed (in the United States, at least), that if you're being successful due to a patented product that the product must in some way be novel or someone else would have been making that money.

This a primary reason why books are not patentable.

A book is also not a process and generally doesn't claim to be for a specific purpose.

As for your music example, I disagree there as well. Music accomplishes a very well-defined purpose: that of entertainment.

You are right that "music" in general accomplishes entertainment, but a particular piece of music is rarely warranted to produce a specific effect. Thus individual songs are not methods and lack specific purpose. If one found a sequence of notes, however, that, say, induced vomiting in everyone who heard it one could conceivably patent that piece of music played over a device of certain specifications as a cure for certain types of poisoning. That's the sort of thing that happens every day when you write software, and why novel software is, IMHO, patentable.

My problem with the system as it stands is not that creative, novel, purposeful methods encoded in software are patentable, but that the standards for "novel" are so low.

Re:We can disagree. That is fine. (1)

Jane Q. Public (1010737) | more than 5 years ago | (#26255611)

Actually, I'm no lawyer but I'm fairly sure that's not the definition of novelty. Although the standards are different from country to country (some countries patent devices for a particular purpose, others patent only the device itself no matter what it's used for), generally novelty can be proved in a variety of ways, the most common being whether the resulting product is commercially successful. It is presumed (in the United States, at least), that if you're being successful due to a patented product that the product must in some way be novel or someone else would have been making that money.

Simply: no. (Keep in mind that the patent office in the last 8-12 years has not exactly been following its own rules.)

Novelty is precisely what the word would imply, and included in the idea of novelty (in the United States), is the provision that something patentable for utility cannot be merely an assemblage of devices that do already-common things. Your crowbar welded to a bottle opener might be eligible for a design patent, but that is another matter entirely. Unless the resultant product does not do something unique in itself (i.e., something other than hammer, pry, and open bottles), it is simply not patentable (utility patent), because it doesn't do anything new. This is explicitly stated in patent law; the degree to which it is enforced is another matter. (One of high contention these days.)

A book is also not a process and generally doesn't claim to be for a specific purpose.

Sometimes. But you missed the point. WHY is a book not a "process"? A recipe book for example, contains explicit directions for processes. (Recipe books, in fact, have been a major part of past court cases concerning copyright.) And it was determined (by the courts) that recipe books were not patentable as processes. Why, then, should business processes be treated differently? They both contain instructions intended to achieve a specific purpose. (Contrary to what you stated.)

You are right that "music" in general accomplishes entertainment, but a particular piece of music is rarely warranted to produce a specific effect. Thus individual songs are not methods and lack specific purpose. If one found a sequence of notes, however, that, say, induced vomiting in everyone who heard it one could conceivably patent that piece of music played over a device of certain specifications as a cure for certain types of poisoning. That's the sort of thing that happens every day when you write software, and why novel software is, IMHO, patentable.

And this is precisely where the courts in the past DISAGREED with you, despite your HO. Music is indeed often designed to produce a specific effect (melancholy, excitement, relaxation... the list is large), regardless of whether it is "warranted" to do so. But more to the point, as I already mentioned, the case of music (a written composition) that was used to control machines (player pianos), was decided very clearly by the courts. Almost 150 years ago. The reasoning was very sound, and has direct bearing on the "patentability" of modern software. But of course, you just ignored my explanation of that, and I see no reason to repeat myself.

You are entitled to your opinion, but the law disagrees. And the reasons are not arbitrary; on the contrary they have quite a bit of reasoning behind them.

Re:That sidesteps the issue. (0, Troll)

rsborg (111459) | more than 5 years ago | (#26186985)

Once it's compiled and running through a particular state machine to accomplish certain transformations of data, it's most certainly a method and apparatus.

Calling it a state machine doesn't make it any more physical.

There's no particular reason in my mind why a machine has to be physical to somehow magically be patentable.

However we're not discussing "in your mind" (unless you happen to be a judge hearing IP cases) but in terms of the law, which is based on judicial review and jurisprudence. This ruling pretty much aligns with both historical and current popular views, that "virtual" machinery does not constitute "real" machinery. The fact remains that scarcity in real physical goods is inherent and thus patents make sense.

Re:That sidesteps the issue. (1, Informative)

Anonymous Coward | more than 5 years ago | (#26186577)

Software is a written work, but I firmly disagree that software should be covered by copyright and not patents.

Copyright the creativity in a work. Copyright does not cover *functionality* or utility in a work. (The same is true for design patents.) So, for example, if I reverse engineer your program without looking at your source code, I won't be violating your copyright, even though I've stolen your idea and am now making $$$ off of it. An example of where you'll be able to get me for a copyright violation is, on the other hand, if I'm burning copies of the CD containing your binaries or source code and selling the CDs.

There are actually a number of really interesting cased in copyright law that explore the line of where something is "creative" vs. "functional" and so what should be protected by copyright. See, for example, Brandir International (about the "ribbon rack"--you've probably seen them around) (www.ribbonrack.net). Copyright is not good for protecting software because the line between creative and functional causes all kinds of issues and makes defining the scope of what is protected blurry. And unpredictable.

Utility patents, on the other hand, cover inventions with utility. So if you have a cool idea and patent it, and I reverse engineer it w/out looking at your source code, I am not allowed to rip you off.

(Also, as another side note, the printed matter doctrine in patents governs why you can't get a patent on, for example, the plot to a move.)

This won't be the last time that Jane Q. Public doesn't understand the law.

To low-scored poster: Nor the first time (0, Troll)

Jane Q. Public (1010737) | more than 5 years ago | (#26186863)

that you have gotten it wrong. I do understand the difference between creative and functional, but apparently you are not familiar with the legal history of same, except perhaps only some that is pretty recent, which is exactly the problem I was pointing out. Please see my reply to the other respondent.

Re:That sidesteps the issue. (0)

Ironica (124657) | more than 5 years ago | (#26187501)

Properly, software, as a written work, should be covered by copyright and not patents anyway.

And as others have pointed out, it is. However, this gives no real protection.

I could write a story about a boy who finds out he's a wizard, and goes off to a boarding school to learn magic, and has many adventures, and so long as it's not *too* much like JK Rowling's work (the adventures are different, the names are entirely dissimilar, etc.) I didn't violate copyright. The same is true for software: I could look at a program, then go about writing my own program that does the same thing, and without actually using any of your code, I'm clear on copyright. However, I *have* made a product that can replace yours. Sucks to be you.

Which doesn't mean that software patents are a good idea, either. Frankly, we probably need an entirely new category of IP protection for digital technology.

Re:That sidesteps the issue. (0)

Anonymous Coward | more than 5 years ago | (#26187757)

Frankly, we probably need an entirely new category of IP protection for digital technology.

I see no evidence this is true and plenty of evidence that innovation is coming fast and furious without any need for government intervention by creating more monopolies.

Re:That sidesteps the issue. (1)

Ironica (124657) | more than 5 years ago | (#26188839)

I see no evidence this is true and plenty of evidence that innovation is coming fast and furious without any need for government intervention by creating more monopolies.

Innovation is coming fast and furious in an environment where government intervention *has* created monopolies. There's tons of research on the effects of patents (much on the results of the Bayh-Dole Act), which has drawn the uncomfortable conclusion that patents absolutely ARE still a very relevant tool in fostering innovation. Believe me, I don't want it to be that way either... but I spent an entire quarter studying this stuff ;-) and patents do what they say they do.

The problem is that they do *other* things that have a chilling effect, and so the system does need to be overhauled to protect the rights of legitimate inventors, but not give advantages to enormous corporations or patent trolls. I don't have a concept for how it would look, I'm afraid.

Re:That sidesteps the issue. (1)

Jane Q. Public (1010737) | more than 5 years ago | (#26190115)

The Bayh-Dole Act is an abomination that must be destroyed. The intent was good: to foster innovation. And it has done so. HOWEVER, the manner in which it has done so has been so damaging to society and free markets that the best analogy to the Bayh-Dole Act is probably that of a medical experiment in which the patient survived, and even thrived, but only as a destructive monster that would probably be unrecognizable to its own parents. (Not a good-spirited but destructive monster like the Hulk, but rather a mean-spirited, self-interested and destructive monster like the one from the movie Alien.)

First off, I must say that comparing innovations that are the result of the Bayh-Dole Act to innovations in a free market is comparing apples and oranges. Or maybe guavas. Coconuts and strawberries. They are not even remotely similar. And profiteering from university research has little relevance to free markets. University research was not even remotely the topic of discussion, and even in the best of days before the Act, did not represent a free market situation. But it is an interesting point nevertheless.

Readers might not know about the Bayh-Dole Act, so I will summarize it as a law that allowed institutions of higher learning, and their employees (professors, etc.) to receive forms of private sponsorship that were not previously allowed, and to allow such professors and others to profit from such research by enabling them to patent the results of their work and retain rights to those patents.

Again, the intention was good. Unfortunately, from a broader perspective the results have been disastrous for society. Research that has been largely -- and even almost entirely -- funded by public monies, for the public good, has instead become the "property" of corporations that have little interested in the public good.

I know I have oversimplified, but I am not going to sit here and write all night. I will put it in a nutshell:

RESEARCH THAT IS FUNDED BY PUBLIC MONEY BELONGS TO THE PUBLIC!!!

Period. End of discussion.

Not at all. (1)

Jane Q. Public (1010737) | more than 5 years ago | (#26190035)

If you can write software that does the same thing as mine (as you say, without copying the "look and feel" TOO much), and even if you do it better... THAT IS WHAT A FREE MARKET IS ALL ABOUT. As long as you do your own work and do not steal mine, if the end result is similar... then you are my competitor. That is the way it works!

As an honest businessperson (i.e., not one to try to use dishonest or coercive methods to take over the market), I welcome the challenge. As long as you are also an honest businessperson, and also do not break the free market rules.

This is called Free Market Capitalism. And it works. Despite what people have been saying about it lately, it has NOT been capitalism, or free markets, that have failed. It has been government and large-corporation distortion of the markets that has caused these failures. Funny... but those aren't even free-market concepts. But they try to blame capitalism anyway, as a means to get you to lose faith in same.

Re:That sidesteps the issue. (0)

Anonymous Coward | more than 5 years ago | (#26189911)

Copyright does not cover (1) merger doctrine eligible material and (2) functional material.

This arguably knocks out coverage, or at least pokes large holes, in any given piece of source code that you try to protect with copyright. The problem comes with slavish copies: a verbatim copy of source code appears to be something with a modicum of creativity that is copyright-protected. Balance this versus the Merger Doctrine, which says that if there is a common single way of expressing something (such as a for loop), then it isn't protectable, no matter how it is written down.

This throws a huge monkeywrench into folks that depend on copyright for open source licenses, such as the Creative Commons and GPL. Courts haven't touched it with a ten foot pole, but all prior legal precedent points to the likelihood that software source code is protected only as a slavish copy, and then only the parts that are not subject to merger, function and abstraction, like a sheet of Swiss cheese.

The UI produced by a program has already been addressed in the Borland case, and functional aspects are not protected. This has already been decided. What is protectable are selection and arrangement of graphical elements, but probably not text and not when that seletion is functional.

Mod this down if you like, but it is the truth, and it is how copyright sits. Courts need to begin to deal with these licenses, because they all stand or fall together, and the Swiss cheese model leaves enough holes for abusers to "steal" code.

The end of this: Copyright is not the appropriate protection for software, it never has been, and function is not protected under copyright law. Function is the domain of patents, and thus... Bilski.

Re:It's really not a huge change (0)

Anonymous Coward | more than 5 years ago | (#26187081)

If this does not change what you were doing, something is probably wrong.

The John Love memo of 15 May 2008 requires examiners to apply a two-pronged analysis of process claims. To be patent eligible under 35 USC 101, a patent must either (1) be tied to another statutory class, such as a particular apparatus, or (2) cause a transformation of underlying statutory subject matter.

This analysis was not "standard" in the Office prior to the memo. Prior to the memo, most examiners I knew looked for software and algorithms per se (either claimed as such or disclosed as such in the specification), and looked to make sure that there was a tangible, concrete, and useful result from the method steps. Most of the time, displaying or storing was sufficient to meet that analysis. The John Love memo, however, requires examiners to look for specific recitation in the claim of the other statutory class to which the method claim is tied.

While it should be trivial to claim around these new requirements, you almost certainly should be sending out more 101 rejections in your non-final actions.

Re:It's really not a huge change (0)

Anonymous Coward | more than 4 years ago | (#26190661)

I started examining in a software area this year after that memo came out and I can say that at least 3/4 of my first actions include 101 rejections and close to 1/4 include 101 rejections for every single claim in the application.

Since I happen to be personally opposed to software patents I thoroughly welcomed that memo and Bilski since they let me do my job with significantly less moral qualms than I was expecting to have going in to this job.

Irrelevant. (1)

mind21_98 (18647) | more than 5 years ago | (#26185773)

Software patents, sadly, play by different rules than everything else. I'd imagine that software patents would still be granted and enforced, especially since they could just tie the process to the PC and meet the court's requirements. Meh.

Re:Irrelevant. (1)

tonyray (215820) | more than 5 years ago | (#26185969)

A computer is not a "specific machine". A washing machine, Westinghouse Model 293DQ, is. So, unless your software runs on only one make and model of computer, it isn't patentable.

Re:Irrelevant. (3, Interesting)

pauljlucas (529435) | more than 5 years ago | (#26186001)

For a software patent, "the machine" is the machine that results when the software is running on it. For example, when a computer is running a spreadsheet application, "the machine" is a "spreadsheet machine." (Don't believe it? Look it up.)

Re:Irrelevant. (1)

tonyray (215820) | more than 5 years ago | (#26186149)

Yes, but only if that is its ONLY function.

Re:Irrelevant. (1)

pauljlucas (529435) | more than 5 years ago | (#26186193)

The spreadsheet application can only do spreadsheets. The fact that current OSs can multitask is irrelevant. (I could use a washing machine as an expensive paperweight also, but that fact is also likewise irrelevant.)

Re:Irrelevant. (0, Troll)

Joe U (443617) | more than 5 years ago | (#26187077)

In Windows thanks to OLE, my spreadsheet (Excel) has a browser in it. A browser that can run Flash or Java.

My spreadsheet application is nothing but a series of objects in an interlinked multipurpose computer.

Yeah, I understand what you're trying to say, unfortunately it's broken.

Re:Irrelevant. (0)

Anonymous Coward | more than 5 years ago | (#26187293)

hello mcfly? most law deals in haphazardly applying decades- or centuries-old precedent to current matters.. and the legal system _likes_ it that way.

Re:Irrelevant. (0)

Anonymous Coward | more than 5 years ago | (#26187693)

hence the word broken.

Re:Irrelevant. (0)

Anonymous Coward | more than 5 years ago | (#26189897)

Actually the parent is referring to theoretical computer science, claiming the model is broken is claiming that modern computers do not exist.

A Turing Machine is a machine that produces an output from a given input (Well, actually, it decides whether or not the answer to a question is yes or no, production of useful answers is an extrapolation from the decidability problem) using only a state engine and an infinite amount of storage. It is mathematically provable that any and all software can be reduced to an equivalent Turing Machine. As such, a spreadsheet program is a turing machine being simulated on a Universal Turing Machine (Turing machine that takes a representation (ie. machine code) of a second Turing Machine as input).

Re:Irrelevant. (2, Insightful)

he-sk (103163) | more than 5 years ago | (#26188415)

The spreadsheet application can only do spreadsheets.

To the contrary, I bet most spreadsheets today are turing-complete, meaning they can conceivably simulate any computer program.

It's not called general purpose computer for nothing, you know.

Re:Irrelevant. (2, Informative)

florescent_beige (608235) | more than 5 years ago | (#26186647)

Actually, the Wikipedia page for Bilski quotes the court as having said:

"We leave to future cases the elaboration of the precise contours of machine implementation, as well as the answers to particular questions, such as whether or when recitation of a computer suffices to tie a process claim to a particular machine."

So I think the question remains open.

Re:Irrelevant. (1)

russotto (537200) | more than 5 years ago | (#26188933)

For a software patent, "the machine" is the machine that results when the software is running on it. For example, when a computer is running a spreadsheet application, "the machine" is a "spreadsheet machine." (Don't believe it? Look it up.)

And that's the LESS-silly dodge.

Many software patents also claim the media that contains the software as a patentable device.

Re:Irrelevant. (1)

VernoWhitney (514284) | more than 4 years ago | (#26190679)

Of course claiming media only makes it patentable when it meets certain other particular limitations (i.e. excludes signals, operates on a computer (thus excluding mental processes), etc.).

Re:Irrelevant. (1)

tonyray (215820) | more than 5 years ago | (#26186005)

Oops, have to reply to my own post. Not only would the software need to run on only one make and model of computer, it would have to be included with every instance of that computer. Think embedded firmware.

Re:Irrelevant. (1)

mind21_98 (18647) | more than 5 years ago | (#26186051)

But the case doesn't really prove anything [flywheelblog.com] , at least, not until SCOTUS denies to hear it/agrees with the ruling. But even then, it could just be that patent writers have to be a bit more creative about the wording of their patents.

Re:Irrelevant. (1)

tonyray (215820) | more than 5 years ago | (#26186311)

The whole point of In re Bilski is that this court, which had several years ago expanded the definition of what was patentable and lead to the mess the USPTO is now in, has now stated that they were wrong in doing so and that they were now adhering to an earlier definition that did not expand upon those decissions that SCOTUS had handed down. Software was not originally patentable (believe me, I've been programming since 1968). If they adhere to an earlier definition, it follows that it is not patentable. The exception they make is for firmware or other software necessary to the functioning of a particular machine - such as a milling machine, plotter, etc. Computers simply don't qualify as a particular machine although I know this is being debated. But I think those who believe computers become specific machines just by running a specific program on them are dreaming - it will never pass the courts.

Re:Irrelevant. (1)

alexborges (313924) | more than 5 years ago | (#26187279)

....(believe me, I've been programming since 1968)...

Right....

You'd have a negative slashdot UID.... duh! :P

Pack-in game? (1)

tepples (727027) | more than 4 years ago | (#26191353)

Not only would the software need to run on only one make and model of computer, it would have to be included with every instance of that computer.

So in other words, Nintendo could make one of its games eligible for a patent by including it as a pack-in with one of its consoles. Is this correct?

Software patents - not holding my breath (1)

SharpFang (651121) | more than 5 years ago | (#26186041)

âoeWe leave to future cases the elaboration of the precise contours of machine implementation, as well as the answers to particular questions, such as whether or when recitation of a computer suffices to tie a process claim to a particular machine.â

Direct citation from Bilski's case.

Re:Software patents - not holding my breath (1)

Lord Bitman (95493) | more than 5 years ago | (#26186937)

The real problem with these things is that they describe what is generally considered to be "what is being done" rather than "how it is done."

If a patent were granted for "A method of lighting homes using electricity", it covers a lot more ground than "a method of lighting homes using electrically-heated coiled metal in a vacuum"

In general, it's better to say someone has limited monopoly on "this thing they built" than it is to do so for "this idea they had", even if they built a thing based on the idea.

The Post-Bikini Era Gets Underway (2, Funny)

theaveng (1243528) | more than 5 years ago | (#26186101)

Ooops. That says "post-Bilski" not "post-Bikini".

Darn. And I was looking forward to visiting the bikini-free beach this summer. :-|

Re:The Post-Bikini Era Gets Underway (2, Insightful)

Anonymous Coward | more than 5 years ago | (#26186243)

Be careful for what you wish for. The alternative may be far worse.

Re:The Post-Bikini Era Gets Underway (1)

theaveng (1243528) | more than 4 years ago | (#26190257)

Outlaw nudity for anyone over 150 (years or pounds).

Discriminazi (1)

tepples (727027) | more than 4 years ago | (#26191385)

Outlaw nudity for anyone over 150 (years or pounds).

That might be sex discrimination. I would imagine that as a group, men over 150 pounds tend to be healthier than women over 150 pounds, if only because men are taller. Even Olympic swimmer Michael Phelps weighs about 200 pounds, largely because of his muscle.

Re:The Post-Bikini Era Gets Underway (0)

Anonymous Coward | more than 5 years ago | (#26186821)

I read bikini too

Re:The Post-Bikini Era Gets Underway (1)

eclectro (227083) | more than 5 years ago | (#26187449)

Sadly, the post-bikini era still remains but a dream for most nerds.

Patenting the scientific method? (1)

5pp000 (873881) | more than 5 years ago | (#26186351)

I've just glanced briefly at the first patent listed (6,420,139), and at its first couple of claims, and to me it seems they could be summarized as "apply the scientific method to immunization schedules".

While I'm not actually opposed to all patents, even software patents, I do think there are a lot of crap patent applications being submitted (with many of them being granted), and my initial impression is certainly that this is likely to be one of them.

This case is nonprecedential (1)

DustyShadow (691635) | more than 5 years ago | (#26186531)

This case is nonprecedential so that could be why the opinion is so short. It would have been nice for the court to elaborate on why the patent fails the Bilski test.

Here's the claim:

1. A method of determining whether an immunization schedule affects the incidence or severity of a chronic immune-mediated disorder in a treatment group of mammals, relative to a control group of mammals, which comprises:
immunizing mammals in the treatment group of mammals with one or more doses of one or more immunogens, according to said immunization schedule, and
comparing the incidence, prevalence, frequency or severity of said chronic immune-mediated disorder or the level of a marker of such a disorder, in the treatment group, with that in the control group.

As discussed here [patentlyo.com] , it's difficult to see why immunization of animals is not transformative.

Hmmh ... (0, Flamebait)

KwKSilver (857599) | more than 5 years ago | (#26186967)

Transformative? What, pray tell, is novel about immunizing animals? WTF is novel about studying the effects of vaccines, to determine if they are effective?! Finally, can you suggest any sound reason why those who submitted this drivel should not have telephone poles shoved up their asses!!?

Re:Hmmh ... (1)

DustyShadow (691635) | more than 5 years ago | (#26188085)

Novelty is not part of the patentable subject matter analysis. That is a completely different issue.

Re:Hmmh ... (1)

KwKSilver (857599) | more than 4 years ago | (#26194587)

Well knock me down and mod me flamebait! Oh, never mnd, somebody else already took care of that. If novelty is not a requirement for patentability, I'm moving my flag to the patents should be outlawed camp. Seems like a constitutional amendment would do it.

Somebody should clue the USPTO about that though, so that they can take down or appropriately modify this page. [uspto.gov] Maybe just a footnote that says "the requirement for novelty shall not be used to keep well-connected parasites from getting a free ride for the rest of their lives." Yeah, that should do it.

Can a post be modded lower than -1 Flamebait or -1 Troll? Anxiously awaiting the answer. Burn Karma, Burn!

Re:Hmmh ... (1)

DustyShadow (691635) | more than 4 years ago | (#26195023)

Novelty IS a requirement for patentability. Determining if something is patentable subject matter (what I said in my reply) is what Bilski concerned and it is part of the patentability analysis. Novelty is the next step. Look at the statute. 35 USC 101 is patentable subject matter, 35 USC 102 deals with novelty.

Re:This case is nonprecedential (1)

Ironica (124657) | more than 5 years ago | (#26188813)

Wow... so they want to patent the usual way of conducting medical research?

1. Come up with an intervention
2. Try that intervention on animals
3. Collect data on what happens
4. Analyze data and publish results

The tiny conspiracy theorist in me thinks that someone wants to be able to quash rigorous scientific research on the long-term effects of vaccines.

Re:This case is nonprecedential (1)

DustyShadow (691635) | more than 5 years ago | (#26189613)

You are also confusing the patentable subject matter analysis with the novelty analysis...

Business method patents, not software patents (0)

Anonymous Coward | more than 5 years ago | (#26188703)

I don't think this will have all that much effect on "software" patents--the existing loophole in which the applicant can claim the disc or storage device encoding the software still exists, since the storage device is a physical item of manufacture, not a method. This will probably instead be more directed to business method claims having steps like "considering the risk of investment x" that can be performed entirely mentally. The lawyers may be flurrying to add the "...but ON A COMPUTER!" into all these types of claims to satisfy the "tied to" requirement...the problem is that the original application needs to already have that possibility encompassed.

Don't think it's the end of business method patents, but certainly the first serious attempt to control and formalize them.

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