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Bilski Patent Case Appealed To Supreme Court

kdawson posted more than 5 years ago | from the settling-it-once-and-for-all dept.

Patents 175

An anonymous reader writes "The landmark ruling of a few months ago that limited patents to inventions which include a machine or which transform physical matter has been appealed up to the Supreme Court. 'On the one side of this controversy... are those... who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods. On the other side are consumer advocacy groups and free-market devotees who worry that patent monopolies could tie up methods of creative thought processes, including teaching, judging, creative writing, making medical judgments, or picking juries (some current, real examples of claims).' The Bilski decision has already had an impact on potential software and biotech patents, in addition to the obvious limitations on business method patents. The petition (PDF) argues that the 'machine-or-transformation' test conflicts with the broad language of the patent statute and with congressional intent. It's entirely within the Supreme Court's discretion to take the case or not, but for now it looks like the issue is far from decided."

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Wat.. (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#26714085)

Last post... Failure.

Re:Wat.. (1, Insightful)

Jeremiah Cornelius (137) | more than 5 years ago | (#26714635)

It is said that the lonely eagle flies to the mountain peaks while the lowly ant crawls the ground, but cannot the soul of the ant soar as high as the eagle?

Re:Wat.. (0, Offtopic)

navyjeff (900138) | more than 5 years ago | (#26716155)

No, it can't. Ants have no souls.

Re:Wat.. (0, Offtopic)

DinDaddy (1168147) | more than 5 years ago | (#26716653)

I thought they had 6?

What patent laws really need (3, Interesting)

nobodylocalhost (1343981) | more than 5 years ago | (#26714099)

is a use or lose clause.

Re:What patent laws really need (2, Interesting)

ILuvRamen (1026668) | more than 5 years ago | (#26714499)

that would still let them sit on it for the time period allowed. What they need is for people to prove they can actually make or do whatever the patent is for, or at least have some sort of progress made. I could patent teleporters and ion cannons if I wanted and then just sit on it but I shouldn't be allowed to unless I show some sort of proof that I've already started building one of those devices or at least have research that led to a blueprint that I'm pretty sure will work.

Re:What patent laws really need (4, Informative)

Theaetetus (590071) | more than 5 years ago | (#26714675)

I could patent teleporters and ion cannons if I wanted and then just sit on it but I shouldn't be allowed to unless I show some sort of proof that I've already started building one of those devices or at least have research that led to a blueprint that I'm pretty sure will work.

You already can't patent something unless you can show that you've either built it or have done sufficient research that would allow someone with proper manufacturing capabilities to build it. It's right there in the statute, 35 USC 112.

Re:What patent laws really need (1)

Volante3192 (953645) | more than 5 years ago | (#26714995)

And how are things in your world where people don't try to flaunt the law and the patent office is so overstaffed and underworked that everything submitted is given a thorough going over?

http://www.google.com/patents?vid=USPAT5041044 [google.com]

Re:What patent laws really need (1)

Volante3192 (953645) | more than 5 years ago | (#26715103)

Bah, apparently that one actually works.

Well...fine. Just look for some of the ones on cold fusion then...

Re:What patent laws really need (2, Informative)

Theaetetus (590071) | more than 5 years ago | (#26715237)

Bah, apparently that one actually works.

Well...fine. Just look for some of the ones on cold fusion then...

The only patents out there on cold fusion are either in the software industry, or are methods of fusing two materials while cold, such as paper and ink in a printing process.

Seriously, there are other legitimate criticisms of the patent office, but saying that it's possible to patent something you don't know how to make isn't one of them.

Re:What patent laws really need (1)

only_human (761334) | more than 5 years ago | (#26715615)

Seriously, there are other legitimate criticisms of the patent office, but saying that it's possible to patent something you don't know how to make isn't one of them.

So we are good with "Space vehicle propelled by the pressure of inflationary vacuum state?" http://www.google.com/patents?vid=USPAT6960975 [google.com]

Re:What patent laws really need (1)

Theaetetus (590071) | more than 5 years ago | (#26716491)

So we are good with "Space vehicle propelled by the pressure of inflationary vacuum state?" http://www.google.com/patents?vid=USPAT6960975 [google.com]

It's not my field, so I really can't say whether the description provides enough detail to allow one of ordinary skill in the art to build it. But, look at it this way - if it can't be built, no harm, since by definition it's not impeding innovation; and if it can be built but isn't terribly useful yet, then even better, 'cause it will expire and go public domain before anyone's ready to use it.

Kinda like if you applied for a patent on a habitable enclosure for floating on Saturn's gas clouds - it'll go public domain before you could ever build it, so there's not really any harm to anyone except the inventor who's paying the issue fees.

Re:What patent laws really need (1)

ShadowRangerRIT (1301549) | more than 5 years ago | (#26714515)

So if I invent a whole new replacement for the transistor that can reduce the scale in the same way the original transistor improved on the vacuum tube, but I have no capacity to fabricate it in any useful way, I should derive no benefit? Bit harsh, don't you think?

Personally, I think a lot of the problem is simply that we have no clear way to identify obvious patents. Patents on trivial things (like the patent on Elliptic Curve implementations that basically boils down to representing sign with a bit, rather than transmitting the whole number which could be easily calculated if you know the sign) break the system, but patents on the larger things are important.

Re:What patent laws really need (0)

Anonymous Coward | more than 5 years ago | (#26714665)

So if I invent a whole new replacement for the transistor that can reduce the scale in the same way the original transistor improved on the vacuum tube, but I have no capacity to fabricate it in any useful way, I should derive no benefit? Bit harsh, don't you think?

Not really... If I have a great new idea for a new piece of software, but I can't get VC funding for it, should I derive no benefit? In the real world, I need to prove to someone that its worthwhile, they put up money, we all benefit. Why not put patents in the same category?

Re:What patent laws really need (2, Insightful)

Timothy Brownawell (627747) | more than 5 years ago | (#26714847)

So if I invent a whole new replacement for the transistor that can reduce the scale in the same way the original transistor improved on the vacuum tube, but I have no capacity to fabricate it in any useful way, I should derive no benefit?

Ideas are cheap, it's all the details that have to be worked out during implementation that are the important part (plus the other important part, working out all the extra details that make mass production feasible).

Re:What patent laws really need (2, Insightful)

Dragonslicer (991472) | more than 5 years ago | (#26716285)

So if I invent a whole new replacement for the transistor that can reduce the scale in the same way the original transistor improved on the vacuum tube, but I have no capacity to fabricate it in any useful way, I should derive no benefit? Bit harsh, don't you think?

I'm pretty sure you can patent it, even if you don't have the manufacturing center to produce it. Your patent would have to include exact instructions for someone that does have the manufacturing center, though. Of course, without any kind of production ability, I'd be surprised if you'd be able to figure out all of the details in the first place.

What you can't patent is "a transistor that is one tenth the size of normal transistors" without giving any details about how you would create such a device.

Re:What patent laws really need (1)

Falstius (963333) | more than 5 years ago | (#26716611)

Even if you get the patent without doing the actual fabrication, it should have to be relatively specific. So the group that actually does the fabrication and fills in all of the details you left out can just apply for their own patent and site you as prior art. And they'll patent all of the hardware needed to actually perform the process.

Re:What patent laws really need (1)

fugue (4373) | more than 5 years ago | (#26716731)

Yup. I was working on a project that greatly enhanced a certain medical diagnosis (made it quick, accurate, non-invasive, cheap, etc). The inventor (I was merely the coder) ended up selling the patent to the company whose device we made obsolete, and they just buried it. Not a very good feeling, but it happens all the time.

I hope the SCOTUS smacks it down HARD (2, Interesting)

mercutioviz (1350573) | more than 5 years ago | (#26714167)

I'm not holding my breath but I'm hopeful that the Supreme Court will take this opportunity to sound the death knell for silly patent applications (and granted patents) like Bilski. As a bonus I hope they put the kibosh on software patents. I know it would make the lives of many software engineers much better and it would definitely kickstart innovation in the software industry.

Re:I hope the SCOTUS smacks it down HARD (4, Informative)

Just Some Guy (3352) | more than 5 years ago | (#26714303)

Correction: you want SCOTUS to uphold the Bilski ruling.

Re:I hope the SCOTUS smacks it down HARD (1)

mercutioviz (1350573) | more than 5 years ago | (#26714391)

Yes, I'm sorry, you are right. I meant that I hope that SCOTUS smacks down the Bilski patent app, which would have been better communicated by saying that I hope they agree with the FCAC's decision. -MC

Re:I hope the SCOTUS smacks it down HARD_NOT!!! (2, Interesting)

Anonymous Coward | more than 5 years ago | (#26715885)

As a patent attorney, I need to be careful in voicing my opinion on this, but I do hope that the net result of Bilski stands. It would turn back the tide against the idiocy that started with State Street. The non-machine based patents have gotten out of hand. I am a geek and computer nut/engineer first, and I want to see business method patent that contain no real manifestation of the method rendered useless. Otherwise, taken to the extreme, screenwriters could start patenting movie storylines. (When I think of it, I suppose it could be done right now. Big method claim of "A method for creating tension in an audience, the method comprising: a first actor exchanging dialogue with a second actor, said first actor orienting a gun in line with said second actor..."

The good thing about the SCOTUS taking this up would be if they CLEARLY lay out a test for determining patentable subject matter. In the old days, you had to tie it to something physical. Right now, signals in the ether could receive patent protection.

Re:I hope the SCOTUS smacks it down HARD (1)

defile39 (592628) | more than 5 years ago | (#26715891)

Also, SCOTUS likely won't grant cert if most believe the en banc ruling should stand. Perhaps restate further by saying, "I hope that SCOTUS doesn't touch it!"

Unfortunately (1)

killmenow (184444) | more than 5 years ago | (#26714771)

Unfortunately (it's not what you meant, but...) I fear the SCOTUS right now--regardless of whether it is conservative or liberal--is most importantly pro-BUSINESS. And that means they may very well smack down Bilski HARD.

Re:I hope the SCOTUS smacks it down HARD (0)

Anonymous Coward | more than 5 years ago | (#26715279)

innovation

I think you missed the "wholesale copying of" before this word.

Re:I hope the SCOTUS smacks it down HARD (1)

furby076 (1461805) | more than 5 years ago | (#26715561)

I hope they make a ruling that prevents patents of items that are currently improbable/possible and too vague. For example "I patent a teleporting device, that transforms objects to atoms, transmits them to another location, and then reforms the atoms into it's previous state." should not be allowed if the person doesn't 1) have such a device or 2) have the plans to develop it. And by plans meaning "If i had the money this would be REAL, but I don't have the money so it's only on paper".

Software patents are frivolous when they patent technology/methodologies that have already been in use (I think the click-to-buy is one of those situations). But to patent, say MS Office is OK if it helps protect MS office owners when/if someone tries to reverse engineer/pirate/etc the product.

basically: Squash the morons who want to patent things like "Compressing the human lung and then uncompressing the human lung in an automatic, and rhythmic manner to allow a constant flow of gaseous substances from inside and outside of the human body," but protect those who create something that is innovative.

Riiiigghht (5, Funny)

AKAImBatman (238306) | more than 5 years ago | (#26714183)

On the one side of this controversy... are those... who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods.

My bullshit detector just exploded.

Re:Riiiigghht (0)

Anonymous Coward | more than 5 years ago | (#26714225)

Indeed. Information is not scarce, it's foolish to "base" an economy on something that's infinitely replicable at essentially zero cost. If you have an information based economy, you have a failed economy, which, hey, is exactly the situation the west is in.

Re:Riiiigghht (0)

Anonymous Coward | more than 5 years ago | (#26714433)

I have a novel idea for an information related digital business. It would be very helpful to my clients and I would make some decent money. One of the main things which keeps me from being in business is a fear of getting sued, namely by a patent troll. So I've yet put any more of my time or money to develop a business model.

I agree completly. In my personal case, that quoted text is bullshit. Fear of being sued is stifling innovation. I would rather just work my 9/5 free from the worries of bullshit litogation

-ss

Re:Riiiigghht (0, Flamebait)

jellomizer (103300) | more than 5 years ago | (#26714819)

You are not thinking big picture. You see patents as a short term Consumer gets screwed as the people who may be best able to implement the patented invention cannot, although that isn't necessary true as the people who hold the patent could be the best able to implement it or have licensed it to people who can or have an overall patent sharing agreement with other companies. So in general Patents only suck for Open Source Implementers, or some small companies.
However R&D isn't cheap You could spend millions on R&D for a invention. If a Company cant have a guarantee that their R&D dollars will pay off then they won't have R&D. Patents insure that your invention give you the completive advantage for a time to make up the loss revenue in R&D. Without Patents right after your invention comes out within a couple months people will reverse engineer your product and make and sell a cheaper version of your idea (Because they don't have the high R&D overhead)

So in a world with no Patents there will be much less R&D and less innovation. Or people will hold onto their new ideas much longer as not having a mechanism to properly sell their ideas along.

I am not saying the Patent system isn't in need of reform. However it is not this pure evil. You only think that is so because unfortunately it conflicts with the Open Source Idea. But in reality you are just a fringe group who (I am not trying to insult you) really doesn't matter that much.

Re:Riiiigghht (4, Informative)

Timothy Brownawell (627747) | more than 5 years ago | (#26715095)

However R&D isn't cheap You could spend millions on R&D for a invention. If a Company cant have a guarantee that their R&D dollars will pay off then they won't have R&D. Patents insure that your invention give you the completive advantage for a time to make up the loss revenue in R&D.

Patents mean that you might not be legally allowed to use the results of your R&D without paying off someone else first. They also don't ensure that the results of your R&D will actually be useful or sellable. The only mean that others can't directly copy your results, but copying something physical takes long enough that you'd probably have a substantial first-mover advantage anyway.

So in a world with no Patents there will be much less R&D and less innovation. Or people will hold onto their new ideas much longer as not having a mechanism to properly sell their ideas along.

Patents have historically resulted in some area of technology being made "off limits" to further development for a couple decades, I believe that Against Intellectual Monopoly has a good account of this happening with the steam engine.

Re:Riiiigghht (4, Insightful)

AKAImBatman (238306) | more than 5 years ago | (#26715263)

Who said anything about patents being bad? The words "information" and "business process" do not jive with what the patent system was intended to be used for. Nor do they happen to cost millions or billions in R&D.

The messed up part about all of this is that it's all caused by an early misinterpretation of technology by courts. There was a case that came up where a patent was filed for a device (a rubberizer, IIRC?) that used computer control to accomplish its innovative task. The judge correctly assessed that the invention as a whole was innovative and granted patent protection.

Unfortunately, the court cases that followed cited that case as precedent for software patents. The judges didn't understand the difference and started granting exceptions carte blanche. Thus we ended up in the screwed up system we have now with no oversight over what is a valid patent and what is not.

Even more messed up is that patent law is okay. It says that patents should be non-obvious, it says that they should have no prior art, etc., etc., etc. Yet technology patents regularly get shoved through the system without any of these checks or balances applied.

The bozos who are defending this messed up violation of the law as legit are nothing more than charlatans who couldn't make an honest living if they tried. Last I checked, many of them even helped tank the world economy in recent news.

Re:Riiiigghht (1)

dragonjujotu (1395759) | more than 5 years ago | (#26716081)

+5 Intelligent... wait they don't have one for intelligent

Re:Riiiigghht (1)

Dragonslicer (991472) | more than 5 years ago | (#26716469)

Who said anything about patents being bad? The words "information" and "business process" do not jive with what the patent system was intended to be used for. Nor do they happen to cost millions or billions in R&D.

For the amount that Amazon's One-Click patent gets bashed, I've heard about far worse. I keep hearing commercials about a bank's "Keep the Change" program. It consists of this pseudocode:

// charge is the amount that's being charged to your credit/debit card
change = ceiling(charge) - charge
checking_account -= (charge + change)
savings_account += change

That's right, all it does is round charges up to the next dollar, and transfers the extra amount from your checking account to your savings account. And at the end of the commercial, I hear "Patent pending".

Re:Riiiigghht (0)

Anonymous Coward | more than 5 years ago | (#26716631)

Modded 0 Flamebait because it poses a view point against popular opinion.

What is the difference between Flamebait and Controversial anyways....

The author has made points.

It is true the Open Source people are in the minority.

How is this opposing view point a flamebait.

Re:Riiiigghht (1)

LaserLine (882496) | more than 5 years ago | (#26715837)

My bullshit detector just exploded.

Make sure you file a patent for that.

Bilski (2, Insightful)

Elektroschock (659467) | more than 5 years ago | (#26714193)

Software patents are useless. [stopsoftwarepatents.org] Period.

The decision is very risky as the quality of the decision of the Circuit Court was very high.

They will make Bilski fail again.

Software patents are *not* useless - just harmful (4, Interesting)

pieterh (196118) | more than 5 years ago | (#26714473)

Software patents are extremely important to certain businesses, most of all the telecoms industry, which manages to keep prices rising in an area where their half-life should be 12-18 months.

If there were no software patents, it would be much harder to maintain the telecoms cartels, the high prices, and the jobs and profits they generate. So for many people, software patents are very, very useful.

Of course the overall effect is to slow down progress in communications, keep costs artificially high, penalize emerging industries, and punish the competitiveness of regions like the USA and Europe, which allow the cartels to continue.

However, the times are changing and I've written [ipocracy.com] about why the growing power of the Internet as a non-political force in politics will cause the end of software patents.

It's worth noting that software patents will also be reviewed in Europe by the European Patent Office's Extended Board of Appeal (EBA), the closest thing we have to SCOTUS with respect to patents in Europe. Sure, the EPO is a fiefdom of the patent industry and EBA its chief priesthood, but reexamining the cosy arrangements that allowed software patents to exist so far is very significant.

I think we are seeing the swing of the pendulum back towards sanity and the understanding that when it comes to the digital economy, any barrier to trade and competition - and the essence of a patent is to prevent competition - is harmful.

Re:Software patents are *not* useless - just harmf (2, Informative)

vux984 (928602) | more than 5 years ago | (#26714619)

If there were no software patents, it would be much harder to maintain the telecoms cartels, the high prices, and the jobs and profits they generate. So for many people, software patents are very, very useful.

The telecom cartels primarily exist because of the massive infrastructure requirements to be a 'real' telecom. Its very little to do with software patents.

Re:Software patents are *not* useless - just harmf (1)

zappepcs (820751) | more than 5 years ago | (#26714809)

Actually, you might be slightly wrong - AT&T had all the patents and used them to be huge infrastructure in a monopolistic way. The break up of AT&T helped, but you still needed a lot of infrastructure to compete with them. It was patents that built the infrastructure barrier to entry that you speak of.

The whole "you are a client OR server" deal is... (0)

Anonymous Coward | more than 5 years ago | (#26716659)

...crap, utter crap. Artificial restrictions creating artificial scarcity.The main obstacles to having a more robust internet and telecom and broadcast "industry" is it is so hard to de industrialize it and de centralize it, and it is way more of a political problem with patents and payola and in the US the way the FCC regulates things.

  If we could turn the engineers loose, we could have widespread wireless mesh networking where anyone could be a client AND server at the same time, for data or voice or whatever, and we could eliminate ISPs and the big telcos to a great extent. Then people could run what they wanted to run, and pay for it themselves at any scale, or enter in other P2P business type models that might evolve. If my major cost is just the hardware and electric bill...I don't have a problem with that, I am *already* paying that, but I am stuck filtering my digital transfers through those middlemen skimmers for a lot more money tied to rank restrictions and the lack of any access legally to any good spectrum for that purpose. Which sucks because "the spectrum" is allegedly for "the people" not a dozen fatcat companies to own for generations like they are doing.

    As it is now, we are stuck with last century's model with no way around it, and especially because of all the software patents and the FCC being in the pockets of the major telcos and ISPs and the buggywhip digital content exploiters of the MAFIAA and the big entrenched broadcasters.

Re:Software patents are *not* useless - just harmf (1)

jonbryce (703250) | more than 5 years ago | (#26715405)

Telecoms cartels have nothing to do with patents. They arise because of either spectrum licences in the case of wireless communications, or the fact that you can't put new cables down without government permission, and even if you do get that, it is prohibitively expensive to do so.

Re:Software patents are *not* useless - just harmf (4, Informative)

pieterh (196118) | more than 5 years ago | (#26715737)

This "infrastructure is expensive" argument is 20 years out of date. Newsflash: no-one puts down cables any more unless they're for IP. There are many, many ways to build cheap and extremely competitive telecoms networks that would end the cartels overnight. They don't mostly happen because patents block innovation wherever it is a threat. I remind you that telecoms has become a software industry, top to bottom, and every "invention" of that industry is heavily protected by software patents.

Spectrum "regulation" are just the side effect of a powerful cartel that has friends in government - a good way to raise the cost to unbearable levels for newcomers and tax the consumer. Again, it's patents that prevent more efficient use of spectrum and those "expensive" lines you talk about.

It is all about keeping out competitors that would disrupt the cozy price-fixed market.

Try to start a VoIP telecoms provider, and see what happens. Read about Vonage, if you forget your recent history. Now tell me again, seriously, that telecoms cartels have "nothing to do with patents".

Patents are the core of the telecoms stack and the reason your mobile phone bill rises year on year.

Yes, to truly re-create competition in the telecoms industry, we need a powerful competition authority, and we need much better policies for spectrum use, but most of all, we need the end of software patents.

Re:Software patents are *not* useless - just harmf (1)

Timothy Brownawell (627747) | more than 5 years ago | (#26715959)

There are many, many ways to build cheap and extremely competitive telecoms networks that would end the cartels overnight. They don't mostly happen because patents block innovation wherever it is a threat.

I thought they mostly didn't happen because local (or sometimes state?) governments sell monopoly rights on physically laying the cables (supposedly to reduce the time the streets are torn up, or something)?

Re:Software patents are *not* useless - just harmf (2, Interesting)

DrgnDancer (137700) | more than 5 years ago | (#26716537)

I think he talking about things like VOIP. In theory you could, for no additional cost over what you already pay for high speed Internet do all of your telephony over your computer, or use a system like Vonage to create a "phone" system that piggie backs off of your Internet. The problem is that patents prevent or limit this kind of thing. Vonage, IIRC, paid a fairly large settlement to Verizon for patent infringement and now has to pay royalties to operate. This is almost certainly increasing their overall prices and making them more likely to fail in the middle term.

This kind of thing remain possible to do, but very often you're stuck with a more crippled system than it could be, or companies simply choose not to enter the market. At least in theory if software patents disappeared tomorrow, more VOIP type solutions might become available and the current player might be able to lower prices and become more competitive.

Re:Software patents are *not* useless - just harmf (1)

furby076 (1461805) | more than 5 years ago | (#26715631)

I am a fairly reasonable person and have yet to be convinced why software patents are useless and/or harmful. Like anything else, if abused they can be harmful but if applied correctly they allow a company/person reap rewards on the time/money they spent developing something. I can't fault someone who wants to get paid for their work...namely because I like getting a paycheck for the work that *I* do - and so do the rest of you.

Re:Software patents are *not* useless - just harmf (1)

Timothy Brownawell (627747) | more than 5 years ago | (#26715889)

Like anything else, if abused they can be harmful but if applied correctly they allow a company/person reap rewards on the time/money they spent developing something.

No, they make it easier to reap rewards, or to reap rewards out of proportion to what was invested. The monopoly power granted in order to do this is clearly harmful (especially so in fast-moving industries), and is not strictly necessary in order for new development to be profitable. The question is whether the benefits (additional innovation) are greater than the downsides (stagnation from higher barriers to entry)... I've seen decent arguments in Against Intellectual Monopoly that historically the downsides have not been smaller than the benefits (sometimes significantly greater, but sometimes closer to even), for software the downsides should be relatively much greater, because the barriers to entry are so very low without such interference and because the fast pace makes the stagnation last relatively longer.

Re:Software patents are *not* useless - just harmf (1)

furby076 (1461805) | more than 5 years ago | (#26716617)

No, they make it easier to reap rewards, or to reap rewards out of proportion to what was invested.

Since the quantity of the reward is arbitrary (who is to say if they should make 5%, 20% or 1000% profits) they try and limit it to time. Also, by limiting the potential for great reward you will limit the amount of people who will take a chance. In pharmacy - for all the billions they make in medicine, they also take a LOT of risk. They should get rewarded. How much is not for you to decide.

The monopoly power granted in order to do this is clearly harmful (especially so in fast-moving industries), and is not strictly necessary in order for new development to be profitable.

Your opinion. My opinion is that it lets companies reap rewards for products people want to buy. So they will invest XYZ dollars and hopefully make that money plus a profit.

The question is whether the benefits (additional innovation) are greater than the downsides (stagnation from higher barriers to entry)...

If someone creates a popular, but restricted piece of software and allows add-ons it could spur other businesses. Look at Windows. Closed source, but look at all the companies that make STUPID amounts of money on products based on Windows...for example Blizzard. Patented, closed source, highly restricted software caused another business to flourish...in MS' case they have helped thousands of businesses/gov'ts/personal folks to flourish with their software. But there are alternatives.

I've seen decent arguments in Against Intellectual Monopoly that historically the downsides have not been smaller than the benefits (sometimes significantly greater, but sometimes closer to even), for software the downsides should be relatively much greater, because the barriers to entry are so very low without such interference and because the fast pace makes the stagnation last relatively longer.

I've seen decent arguments for IP, though monopoly is harder then it seems. People claim MS is a monopoly - but they aren't....Apple, Linux, etc. Barriers to entry into the software industry is what you can program. All you need is a computer software engineering skills and a computer.

Re:Bilski (1)

langelgjm (860756) | more than 5 years ago | (#26714695)

The decision is very risky as the quality of the decision of the Circuit Court was very high.

Not only that, but it wasn't just any court - it was the Court of Appeals for the Federal Circuit, i.e., people who actually like patents in general. If even they don't like software and business method patents, it seems pretty unlikely that the Supreme Court is going to change the decision.

Re:Bilski (4, Insightful)

CubanCorona (759226) | more than 5 years ago | (#26714835)

People seldom consider the implications of abolishing software patents.

Sure, there are a lot of good arguments against granting artificial monopolies on computer software--and many of them ARE good arguments. However, categorically denying patent protection to software creates some logical difficulties.

Most computer aficionados are familiar with the idea that software and hardware are logically equivalent. We CAN build specialized hardware to do what we would have our software do.

It would seem a bit anomalous, therefore, to allow a patent on specialized hardware that embodies precisely the same inventive character as its patent ineligible software counterpart.

So, in my opinion, the real issue we are seeking to resolve here is more subtle and obscure than we are admitting. Certainly, affording computer software a unique status as patent ineligible subject matter is not the most complete solution.

I think that's what the court was getting at in Bilski. They were searching for some kind of logical test rather than an unexplainable, static, and inflexible prohibition on a certain class of invention.

I'm not saying the court was right--I'm trying to shed a little more light on the playing field.

Re:Bilski (1)

Timothy Brownawell (627747) | more than 5 years ago | (#26715267)

Most computer aficionados are familiar with the idea that software and hardware are logically equivalent. We CAN build specialized hardware to do what we would have our software do.

It would seem a bit anomalous, therefore, to allow a patent on specialized hardware that embodies precisely the same inventive character as its patent ineligible software counterpart.

AIUI, anything "legitimately" patentable must center around causing some sort of physical change, so that sort of hardware wouldn't count. The only thing that counts is something where the main point is turning some physical input into a different physical output, and it doesn't really matter whether parts of this involve software or not. (But it obviously can't be all software, because software is re-purposable and non-physical.)

Re:Bilski (1)

CubanCorona (759226) | more than 5 years ago | (#26715691)

I certainly appreciate your interpretation, but I would counter with this point:

Without getting into too much detail, the physical transformation inquiry only arises (at least in this context) when an invention is an "abstract idea." Method claims often fit this bill.

However, computer hardware is physical, tangible, and concrete--it is not merely an abstract idea. Thus the physical transformation inquiry is not apposite.

Re:Bilski (1)

jonbryce (703250) | more than 5 years ago | (#26715439)

If you can do something with a standard PC and software, you aren't going to want to produce custom made hardware to do the same task. If you can't, then whatever peripheral you have to attach to your PC is potentially patentable.

Re:Bilski (1)

CubanCorona (759226) | more than 5 years ago | (#26716165)

In reality, though, the categories of "things you can do with a PC and software" and "things you can do with a peripheral" are not mutually exclusive.

Take VoIP, for example. We have VoIP software for use with a computer, webcam, and mic. Yet we also have standalone VoIP devices that perform substantially the same functions. These devices are basically stripped down computers.

So what of that? VoIP on the computer does not deserve patent protection, but the same technology on a stripped down device does?

Re:Bilski (0)

Anonymous Coward | more than 5 years ago | (#26715517)

There's no point in making a reasonable argument around here. One of the base Slashdotter assumptions is that nerds deserve to get everything they want for free because they are somehow "elite" and not subject to the mere whims of people doing hard work to create things they want to consume.

Basically it comes down to "my greed is better than yours because I'm better than you."

Oh Boy (4, Insightful)

Bruce Perens (3872) | more than 5 years ago | (#26714203)

So, the thing we really want to come out of this is a further limitation of software and business method patenting than the lower court case arrived at. But this is going to be a really big fight, with deep pockets on both sides. And it's going to be years before there's an outcome, if they take it.

If the Supreme Court doesn't accept it, I suppose we have a chance to bring yet another case and try for more limitation of software patenting.

What really bothers me is that our only viable path to do this right now is the courts. We've not been able to establish a legislative campaign.

Re:Oh Boy (1)

DoofusOfDeath (636671) | more than 5 years ago | (#26714339)

What really bothers me is that our only viable path to do this right now is the courts. We've not been able to establish a legislative campaign.

I would normally be quite bothered by trying to get my way using the courts, when the legislature isn't in agreement. It seems like judicial activism of a sort.

But I'm coming to the conclusion that the House and Senate are basically ruled by external money on issues like this. That makes judicial "activism", especially in a case like this, a lot more palatable. I really hope the Supreme Court takes this case.

Re:Oh Boy (1, Interesting)

the_womble (580291) | more than 5 years ago | (#26714987)

Software only became patentable after Microsoft vs Stac, so this could be seen as just reversing a previous bit of judicial activism.

Re:Oh Boy (2, Interesting)

DoofusOfDeath (636671) | more than 5 years ago | (#26715049)

Software only became patentable after Microsoft vs Stac, so this could be seen as just reversing a previous bit of judicial activism.

Great point. OTOH, the Congress could have written software patents out of the law if they really wanted to. But no argument on your point.

Re:Oh Boy (2, Interesting)

jonbryce (703250) | more than 5 years ago | (#26715485)

As indeed the European Parliament did.

Political activism can work. It did in Europe. Campaign contributions are all very well, but if you want to be re-elected, you do need to give your voters at least some of what they want.

Re:Oh Boy (3, Informative)

Bruce Perens (3872) | more than 5 years ago | (#26716187)

Software only became patentable after Microsoft vs Stac

No. This is all garbled.

It was our friends at IBM that brought the case which made software patentable. Microsoft only started having a significant patent portfolio after Stac sued them.

Re:Oh Boy (4, Informative)

Volante3192 (953645) | more than 5 years ago | (#26714437)

Well, if the Supreme Court doesn't take it, Bilski is upheld, which is a good start.

If the Supreme Court does take it, and upholds it, it's a better start.

And if SCOTUS does hear it, it won't drag out for years. They move through cases very fast compared to other courts out there. You file briefs and you get 30 minutes to present your case. That's basically it.

(disclaimer: there can be exceptions, but I honestly wouldn't expect this to take longer than a month even at the extreme)

Re:Oh Boy (0)

Anonymous Coward | more than 5 years ago | (#26715231)

It might be final, but according to the article if accepted it won't be heard till October and therefore won't be decided till early next year. The other side has to file a response to this petition, both sides have to file briefs if accepted, and then argument has to be scheduled, all with months of lag in between.

That said, if the Supreme Court does take it, it's not like Bilski will be overturned while we wait for them to decide.

PLEASE uphold it! (4, Insightful)

Just Some Guy (3352) | more than 5 years ago | (#26714209)

There are no ways in which software patents can help anyone but patent lawyers. Since American patents are only binding in America, they put domestic companies at a competitive disadvantage with the rest of the world. Anyone can open an American office and start filing patents to be used against us, but good luck to an American company that wants to file patents in China to protect their claims.

Re:PLEASE uphold it! (4, Insightful)

Theaetetus (590071) | more than 5 years ago | (#26714369)

Anyone can open an American office and start filing patents to be used against us, but good luck to an American company that wants to file patents in China to protect their claims.

Yeah, if only there were some sort of Cooperative Treaty about Patents that would grant substantively similar rights in all the signing countries. They should probably hold a Convention in Paris to discuss it, and maybe set up some sort of Bureau in Switzerland to be an International registry.

Re:PLEASE uphold it! (2, Informative)

Rageon (522706) | more than 5 years ago | (#26714949)

Yeah, if only there were some sort of Cooperative Treaty about Patents that would grant substantively similar rights in all the signing countries.

You mean like the Patent Cooperation Treaty? http://en.wikipedia.org/wiki/Patent_Cooperation_Treaty [wikipedia.org]

Re:PLEASE uphold it! (5, Funny)

Anonymous Coward | more than 5 years ago | (#26715077)

I claim:

1. A method of telling a joke containing sarcastic witticism, the method comprising:

providing an obvious allusion to factual events in a farcical manner;

delaying until a reader locates the reference material referred to by the obvious allusion; and

posting a message in the form of a patent claim, the message substituted for a standard "whoosh" post.

Re:PLEASE uphold it! (1)

Theaetetus (590071) | more than 5 years ago | (#26715177)

I claim:

1. A method of telling a joke containing sarcastic witticism, the method comprising:

providing an obvious allusion to factual events in a farcical manner;

delaying until a reader locates the reference material referred to by the obvious allusion; and

posting a message in the form of a patent claim, the message substituted for a standard "whoosh" post.

hehe. Zing!

Re:PLEASE uphold it! (1)

mrclisdue (1321513) | more than 5 years ago | (#26715063)

I know that commenting on and complaining about, or supporting, the modding system has become prevalent (as well as all the complaints about what /. used to be, or has become)...blah..blah...blah:

but how about being able to mod something as sarcastic rather than informative, especially when it clearly is sarcastic and not especially informative?

Then, we could eliminate the whoosh whilst we're at it....

Re:PLEASE uphold it! (1)

mdielmann (514750) | more than 5 years ago | (#26715433)

I wanted to mod you as meme-killing, but the closest option was funny...

Re:PLEASE uphold it! (1)

mrclisdue (1321513) | more than 5 years ago | (#26715777)

I'm not sure how I'd mod you, but then someone else would utilize their mod points to invoke some kind of paradigm on my posting ability.

Re:PLEASE uphold it! (4, Interesting)

DoofusOfDeath (636671) | more than 5 years ago | (#26714467)

... atents can help anyone but patent lawyers. Since American patents are only binding in America, they put domestic companies at a competitive disadvantage with the rest of the world. ...

I'm not sure that's right. Consider this sequence:

1. America allows software patents.

2. America leans on European countries to allow them, and eventually succeeds.

3. SCOTUS invalidates software patents as non-Constitutional.

4. To be compatible with EU, which now has software patents, US signs a treaty allowing software patents, which, being a treaty, I believe, carries same weight as other parts of our Constitution. Now whole world has software patents, just because the U.S. temporarily did in the beginning.

5. ???

6. Profit!

Re:PLEASE uphold it! (3, Insightful)

LandDolphin (1202876) | more than 5 years ago | (#26714937)

5. Rest of the world drops software patents too.

Re:PLEASE uphold it! (0, Troll)

TemporalBeing (803363) | more than 5 years ago | (#26715861)

Let me correct that for you:
  1. U.S.A. allows software patents
  2. U.S.A. leans on European countries to allow them, and eventually succeeds.
  3. SCOTUS (of the U.S.A) invalidates software patents as unConstitutional.
  4. To be compatible with E.U., which now has software patetns, U.S.A. signs treaty allowing patents, which, being a treaty, [you] believe, carries same weight as other parts of [the] Constitution. Now whole world has software patents, just because the U.S.A. temporarlity did in the beginning.
  5. ???
  6. Profit!

America = U.S.A + Canada + Mexico + several dozen Central and South American countries.
SCOTUS only applies to U.S.A.
U.S. Constitution only applies to U.S.A.

Please go back to 5th grade Geography.

Smash capitalist anarchy and barbarism! (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#26714217)

Workers to power over a planned world economy with international socialist revolution! Forge a revolutionary Leninist-Trotskyist workers party!

Re:Smash capitalist anarchy and barbarism! (0)

Anonymous Coward | more than 5 years ago | (#26714575)

Hey, 1920 called, it wants its Socialist Revolution back!

Seriously, did you ever see a "planned economy" that worked, except in the sense of allowing the thieves to steal more?

Um, yeah... (1)

Timothy Brownawell (627747) | more than 5 years ago | (#26714315)

On the one side of this controversy... are those... who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods.

Yeah, because turning innovation into a minefield is a really good way to encourage it, as is connecting rewards to high speed paperwork-fu rather than marketplace superiority (or even novelty; see IIRC radio and steam engine, the "inventors" were those who first combined other people's ideas in a paperwork filing).

Re:Um, yeah... (1)

tgatliff (311583) | more than 5 years ago | (#26714615)

Many people seem to mistake "protecting innovation" with the business of licensing ideas... Meaning, one seems to mean that you actually developed something.. The other means you thought of something. Big difference...

Re:Um, yeah... (1)

mdf356 (774923) | more than 5 years ago | (#26715291)

The U.S. has a first-to-invent system, so the speed of your paperwork is irrelevant unless it takes you more than a year.

You want to complain about most of the rest of the world; almost all other countries use a first-to-file system, which is easier to adjudicate but can be unfair to slow paperwork-fu.

Kill off Human Genome Patents (2, Insightful)

RogueWarrior65 (678876) | more than 5 years ago | (#26714335)

IMHO, being able to patent parts of the human genome is stupid. You didn't INVENT anything. Now if you designed a replacement gene that does something new, sure you can have a patent on it. But that would have to exclude cures for things. Say you figured out the gene for color-blindness. Chances are you figured it out or at least verified it against the normal gene. No patent for you. But if you invented a gene that gave a person really great night vision, yeah I'd give you a patent for that.

Re:Kill off Human Genome Patents (1)

Creepy Crawler (680178) | more than 5 years ago | (#26714547)

But most patents on "creation" of genetic material are really derived from southern hemisphere based plants and animals. Knowing that, I sure wouldnt grant a patent on plundered genetic knowledge.

I specifically wrote a paper on this very topic. I refused to publish it due to, lets say, chilling effects. It's been downhill since Chakrabarty winning that supreme court judgment, and I expect "ownership" to go even lower. I could also cite cases of a Canadian Rapeseed farmewr who lost his farm due to Roundup Ready seed contamination, or the Ashkenazi Jew who had genetic expression of a specific breast cancer gene that lead to royalties to any test done that is of Ashkenazi descent.

Companies that routinely sit in this genetic circle are close knit with each other, because of the shared knowledge via horrendous patents on life. Even Mexico, and Central and South America have kicked the likes of ADM and Monsanto out of their country, as have China and other South Hemisphere countries, as they harbor 70+% of the worlds genetic knowledge.

Ill end with a poem by one of my favorite authors, Greg Egan.

______
It is not true that the map of freedom will be complete
with the erasure of the last invidious border
when it remains for us to chart the attractors of thunder
and delineate the arrhythmias of drought
to reveal the molecular dialects of forest and savanna
as rich as a thousand human tongues
and to comprehend the deepest history of our passions
ancient beyond mythology's reach

So I declare that no corporation holds a monopoly on numbers
no patent can encompass zero and one
no nation has sovereignty over adenine and guanine
no empire rules the quantum waves

And there must be room for all at the celebration of understanding
for there is a truth which cannot be bought or sold
imposed by force, resisted
or escaped.

Re:Kill off Human Genome Patents (1)

vux984 (928602) | more than 5 years ago | (#26714761)

But if you invented a gene that gave a person really great night vision, yeah I'd give you a patent for that.

What if you 'invented' it by looking at a creature with really great night vision, and then copy and pasted it over?

What if someone was born with really great night vision, and you just copy and pasted it from them?

What if someone was born with really great night vision AFTER you patented it -- are they in violation of your patent?

What if the children of the people you modified with night vision inherit the gene? Do they owe royalties?

Re:Kill off Human Genome Patents (3, Interesting)

Creepy Crawler (680178) | more than 5 years ago | (#26715045)

The answers below are how standard patent rulings would take place, not my decision or want.

1. What if you 'invented' it by looking at a creature with really great night vision, and then copy and pasted it over?

Regardless. If you made it, its an invention. If you found it, a discovery. Both are patentable.

2. What if someone was born with really great night vision, and you just copy and pasted it from them?

Yep. Look at the Ashkenazi Jew lady who had expressions of breast cancer.. Now every Ashkenazi Jew who takes a BRCA-1 test pays a royalty. Non-Jews dont.

3. What if someone was born with really great night vision AFTER you patented it -- are they in violation of your patent?

Most likely. And the worst case: Patent companies have unproportionately large legal bases to enact lawsuits towards. If you are a peon, you will lose, either by 20+ year trial, or directly. Note that 17 years is length of patent.

4. What if the children of the people you modified with night vision inherit the gene? Do they owe royalties?

There was probably a contract that included offspring in the original document. They will likely owe royalties. If they do not pay, the company will probably try a copyright suit along with a patent suit, because you knowingly infringed on copyright. Since it's knowingly, fees are upwards 35000$-250000$. Thank the copyright system.

Re:Kill off Human Genome Patents (1)

molesdad (1003858) | more than 5 years ago | (#26715069)

I think you just answered the question; Genome Patents are stupid due to the fact they are not invented and not new. At some point in time someone will be born with the mutation that defines x. They are discoveries not inventions.

Re:Kill off Human Genome Patents (1)

jonbryce (703250) | more than 5 years ago | (#26715597)

If there is already an established method of copying and pasting genes across, and I believe there is, then copying and pasting the night vision gene would be "obvious".

Re:Kill off Human Genome Patents (1)

jonbryce (703250) | more than 5 years ago | (#26715539)

But if you invent some sort of treatment for someone who has the Colour Blindness gene, using your research of the differences between the colour blind gene and the normal gene, that treatment might be patentable, provided it isn't obvious.

Mwahahahaha!! (1)

fuzzyfuzzyfungus (1223518) | more than 5 years ago | (#26714343)

You cannot defeat me, for I hold the patent for "Apparatus and method for overturning absurdly overbroad bullshit patents"!

Re:Mwahahahaha!! (1)

Jason Levine (196982) | more than 5 years ago | (#26714885)

Except I hold the patent for "Apparatus and method for targeting and destroying holders of overly broad BS patents with cruise missiles." I've also put in for "Apparatus and method for hitting holders of overly broad BS patents with flying shoes."

If the efficiency of the new business process (1)

Marxist Hacker 42 (638312) | more than 5 years ago | (#26714723)

If the new business process isn't efficient enough to pay for it's development, then should it actually be used?

Waste of Time For Bilski Opponents (2, Insightful)

the eric conspiracy (20178) | more than 5 years ago | (#26714759)

The Supreme Court has been generally narrowing the scope of patent law over the past few years. My guess is that they won't take the case, and if they do the odds are that they will uphold Bilski, or possibly narrow the scope of patentable material even further.

Re:Waste of Time For Bilski Opponents (1)

naasking (94116) | more than 5 years ago | (#26715389)

Actually, they narrowed patent law back in the 70s, it's just the lower courts ignored their guidelines for years until the Supreme Court started overruling them.

Re:Waste of Time For Bilski Opponents (1)

Knackered (311164) | more than 5 years ago | (#26715601)

Where's the "+1 Hopefully" moderation when I want it?

Business process patents are stupid... (2, Insightful)

ivan256 (17499) | more than 5 years ago | (#26714827)

If you need a patent for your business method in order for it to be profitable, it's a failed process. The only practical used for business process patents is patent trolling.

bilski (0)

Anonymous Coward | more than 5 years ago | (#26714921)

I'm not sure we want the SC to take cert on this. 35 USC S 101 (patentable subject matter) has traditionally been interpreted very broadly. In re Bilski significantly narrowed S101 with regard to software patents. And it did so really without regard to previous Supreme Court precedent. The Supreme Court could easily smack down in re Bilski, just like they used KSR to smack down the TSM (teaching suggestion or motivation) test for obviousness back in '07.

That said, the Supreme Court does not often grant cert for patent cases. One per year, at most. The chance that cert will be granted is small. Then again, this case has sent waves through the patent community, so who knows what's going to happen.

Bilskiid (1)

CopaceticOpus (965603) | more than 5 years ago | (#26714929)

So the argument is that without patents, we will have a SHORTAGE of people trying to find new ways to make money on the internet?

Not only is that (ahem) patently ridiculous, but if it were true it would be a positive thing.

what happens if.. (1)

pak9rabid (1011935) | more than 5 years ago | (#26715249)

I have to ask. What happens if this does get ruled in our favor and business method/software patents are ruled invalid? What happens to the companies that have invested millions into their software patent portfolios? Do they have to just suck up that cost? Does the USPTO refund their money? Does the USPTO get sued? (I'm not tolling here, I'm genuinely interested in the aftermath of such a landmark ruling.)

Re:what happens if.. (2, Informative)

jonbryce (703250) | more than 5 years ago | (#26715651)

They would at best be put back in the position they would have been in had the USPTO refused their application in the first place. I don't think that means you get your application fee back. It certainly doesn't mean you get your patent attorney fees back, and that is by far the biggest part of the cost of applying for a patent.

What I'm interested in is the position where people have been paying royalties for a patent that is subsequently declared invalid.

Re:what happens if.. (1)

dragonjujotu (1395759) | more than 5 years ago | (#26716399)

I'm too lazy to do the research, but what has happened with other patents declared invalid after someone has already collected royalties, etc.

Re:what happens if.. (1)

shentino (1139071) | more than 5 years ago | (#26716629)

Likely there would be a failure of consideration and the patent license would turn effectively into a consulting.

However, getting the companies to actually cough up refunds? If it gets ugly they'll shift resources out of the country first.

Patents encourage greed, not true innovation. (1)

John Allsup (987) | more than 5 years ago | (#26716419)

Patents give an unnatural degree of control over an abstract idea or principle. While such a system may promote some degree of innovation, it must be used with care, and at present is used rampantly, wantonly and without concern for knock-on effects through either the economy or the rest of life in general.

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