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Supreme Court To Review "Business Method" Patents

kdawson posted more than 5 years ago | from the bilious-over-bilski dept.

Patents 181

xzvf alerts us to big news on the patent front: the Supreme Court decided today to review the validity of "business method" patents. In particular, the Supremes will look over the "In re: Bilski" case, which we have discussed before. "By agreeing to weigh in on the case, the high court is venturing into controversial terrain. Critics of business-method patents say it was never the intent of the law to protect such things, which in their view are often far closer to abstract concepts or mathematical algorithms rather than physical inventions. Proponents say they are key to promoting innovation in today's knowledge- and service-based economy. ... The court's decision to review the Bilski case caught many observers by surprise. The Bilski patent claims are widely viewed as vulnerable to challenge on a number of grounds, and the sense among some experts was it would make a poor test case. ... The Supreme Court won't hear arguments in Bilski until its next term, which begins in October. A ruling is likely during the first half of 2010."

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fp (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#28175359)

lick my ballsack you homos!

Re:fp (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#28175727)

He makes a good point. It's a first post, we lick his ballsack, and we're homos. 3/3.

About time (-1)

Anonymous Coward | more than 5 years ago | (#28175399)

I hope they throw out all the process patents but it'll be very long if ever.

Re:About time (4, Informative)

Zordak (123132) | more than 5 years ago | (#28175621)

I hope they throw out all the process patents but it'll be very long if ever.

Not to mention, it would require them to blatantly disregard the patent statute. 35 U.S.C. section 101, "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter ... may obtain a patent therefor[.]"

Re:About time (1)

Nefarious Wheel (628136) | more than 5 years ago | (#28175665)

Not to mention, it would require them to blatantly disregard the patent statute. 35 U.S.C. section 101, "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter ... may obtain a patent therefor[.]"

...though it's quite within their brief to determine whether a statute is unconstitutional, of course. Marbury vs Madison.

Re:About time (1)

Zordak (123132) | more than 5 years ago | (#28175701)

True, but I haven't heard anybody argue that process statutes are unconstitutional. I've only ever heard that in connection with proposed first-to-file statutes.

Re:About time (5, Informative)

morgan_greywolf (835522) | more than 5 years ago | (#28176811)

True, but I haven't heard anybody argue that process statutes are unconstitutional.

You have now. This is the blurb from Article I, Section 8 of the Constitution of These United States of America:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

If you ask me, I don't think the Founding Fathers had "business processes" in mind when they wrote this. Understandably at the writing of the Constitution, there were no audio recordings or video recordings or computer software. But business processes did exist, and if the intention was to count their creators among "authors and inventors," I should think that they would have done so, don't you?

Re:About time (2, Interesting)

FishWithAHammer (957772) | more than 5 years ago | (#28177023)

Well, you could argue (not that I am) that one invents a useful art in the form of a business process, and could patent their discovery. I'm not saying that that's necessarily right or good, but I could see a solid case made on those grounds.

Re:About time (1)

Darkness404 (1287218) | more than 5 years ago | (#28177227)

Like what though? There isn't one thats possible to legally have. Over the course of many years there isn't a single business practice that hasn't had prior art thats useful.

Re:About time (1)

Jophiel04 (1341463) | more than 5 years ago | (#28175675)

One of the Supreme Court's greatest purposes is to review legislation for constitutionality. Judicial review [wikipedia.org] is a key part of the balance of powers within the U.S.

I'm not saying it's likely given how long this has been a concept within American patent law, but just because it's a clearly written statute does nothing to protect or endanger the concept.

Re:About time (2, Interesting)

Zordak (123132) | more than 5 years ago | (#28175885)

Here is where you show me where in the petition for cert. anybody has raised constitutional questions, since according to Supreme Court's Rule 14 [supremecourtus.gov] , they won't consider it if it wasn't raised in the petition.

Re:About time (1)

whoever57 (658626) | more than 5 years ago | (#28175851)

Not to mention, it would require them to blatantly disregard the patent statute. 35 U.S.C. section 101, "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter ... may obtain a patent therefor[.]"

Doesn't "discovery" require that the subject of the discovery exist already? So, how does one discover something new? For example, when the "New World" was discovered, it's existence had been known for many years by the population who lived there, just not known by Europeans.

Re:About time (4, Interesting)

Zordak (123132) | more than 5 years ago | (#28175939)

If I "discover" a new way of processing rubber, that method may have existed before in the abstract universal sense that it was possible to do it. The only thing holding people back was the knowledge.

On the other hand, if I am the first to "discover" a naturally-occurring mineral, I can't get a patent on it because products of nature are not patentable (yes, I'm aware of gene patents. The theory there is that they don't occur in their isolated state in nature).

Re:About time (1)

whoever57 (658626) | more than 5 years ago | (#28175997)

If I "discover" a new way of processing rubber, that method may have existed before in the abstract universal sense that it was possible to do it. The only thing holding people back was the knowledge.

Isn't that an invention, not a discovery? From Webster:

To Discover, Invent. We discover what existed before, but remained unknown; we invent by forming combinations which are either entirely new, or which attain their end by means unknown before. Columbus discovered America; Newton discovered the law of gravitation; Whitney invented the cotton gin; Galileo invented the telescope.

Perhaps what is really needed is a change to the law which removes the word "discover" and leaves only inventions as patentable.

Re:About time (1)

GospelHead821 (466923) | more than 5 years ago | (#28176395)

If the variety of rubber in question already exists and can be manufactured by some other means, but the patent claimant has devised a different method of synthesizing that rubber, then I'd classify that as a discovery, not an invention.

Re:About time (2, Insightful)

Dragonslicer (991472) | more than 5 years ago | (#28176623)

In that case, the rubber itself could not be patented, since it obviously had already been invented (or discovered, if it occurs naturally), but the new method of synthesizing the rubber could be patented. I would guess that this is what is meant in the law by "process"- a new process to create/manufacture some material or machine, not a method of conducting business that doesn't really involve creating any new material or device.

Re:About time (1)

Zordak (123132) | more than 5 years ago | (#28176855)

In that case, the rubber itself could not be patented, since it obviously had already been invented (or discovered, if it occurs naturally), but the new method of synthesizing the rubber could be patented.

Absolutely true.

a new process to create/manufacture some material or machine, not a method of conducting business that doesn't really involve creating any new material or device.

That's what the Supreme Court has agreed to decide.

Re:About time (5, Informative)

icebike (68054) | more than 5 years ago | (#28175901)

Process, as used in 35USC referred to manufacturing processes not thought processes.

TFA says Bilski was rejected by the U.S. Patent & Trademark Office on the basis that it simply involved a mental process.

Even if it has been a patent on a proceedure for sorting office papers into filing cabinets that did not require specialized equipment, it would STILL not rise to the level of a patentable process.

Processing raw corn into imitation leather shoe laces via a series of physical and chemical manipulations would be a patentable process.

See the difference?

Re:About time (2, Informative)

Zordak (123132) | more than 5 years ago | (#28175979)

Process, as used in 35USC referred to manufacturing processes not thought processes.

Well, that's the whole question the Court has to decide. The CAFC says the process has to be tied to a particular machine or it has to transform matter. The Supreme Court will decide if they're right.

Re:About time (1)

DustyShadow (691635) | more than 5 years ago | (#28176667)

Process, as used in 35USC referred to manufacturing processes not thought processes.

Citation please.

And the Federal Circuit also ruled the Bilski patent to be unpatentable but explicity said that software patents should still be patentable. SCOTUS will likely affirm. The main question is whether the Court will also affirm the "machine or transformation" test for process patents that the Federal Circuit used, which, by the way, came from a Supreme Court case.

For your convenience:

The Supreme Court, however, has enunciated a definitive test to determine whether a process claim is tailored narrowly enough to encompass only a particular application [**24] of a fundamental principle rather than to pre-empt the principle itself. A claimed process is surely patent-eligible under  101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. See Benson, 409 U.S. at 70 ("Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines."); Diehr, 450 U.S. at 192 (holding that use of mathematical formula in process "transforming or reducing an article to a different state or thing" constitutes patent-eligible subject matter); see also Flook, 437 U.S. at 589 n.9 ("An argument can be made [that the Supreme] Court has only recognized a process as within the statutory definition when it either was tied to a particular apparatus or operated to change materials to a 'different state or thing'"); Cochrane v. Deener, 94 U.S. 780, 788, 24 L. Ed. 139, 1877 Dec. Comm'r Pat. 242 (1876) ("A process is . . . an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing."). 7 A claimed process involving a fundamental principle that uses a particular machine or [**25] apparatus would not pre-empt uses of the principle that do not also use the specified machine or apparatus in the manner claimed. And a claimed process that transforms a particular article to a specified different state or thing by applying a fundamental principle would not pre-empt the use of the principle to transform any other article, to transform the same article but in a manner not covered by the claim, or to do anything other than transform the specified article.

In re Bilski, 545 F.3d 943, 954 (2008)

Re:About time (1)

icebike (68054) | more than 5 years ago | (#28176943)

Thanks for doing that legwork. Your cut and past proves my statement was correct.

Software patents may (arguably) be patentable, it is not yet settled. But if software are ultimately found to be so it will be because they require a device (computer) and are not a patent of a pure thought process as is business methods.

Re:About time (2, Insightful)

Kjella (173770) | more than 5 years ago | (#28176335)

I guess that would depend on the meaning of process in context. I mean if you take the general definition of process:

1. a systematic series of actions directed to some end: to devise a process for homogenizing milk.
2. a continuous action, operation, or series of changes taking place in a definite manner: the process of decay.
(+ a few more)

If that's the definition you could patent basicly anything, you don't even have to do it to patent it. I can patent doing a 1080 degree spin triple summersault and if any olympic diver manages one they own me royalties. Or for violating my pickup line patent when trying to score with a girl. A general "process" patent is madness.

That'd be "Bilski", not Bilsky. (2, Insightful)

langelgjm (860756) | more than 5 years ago | (#28175413)

It's even spelled correctly elsewhere in the summary. But what else to expect from /. "editor" kdawson?

Re:That'd be "Bilski", not Bilsky. (4, Funny)

BabyDuckHat (1503839) | more than 5 years ago | (#28175465)

There's a business method patent called: Proofreading Using a Computer.

Re:That'd be "Bilski", not Bilsky. (3, Funny)

Kjella (173770) | more than 5 years ago | (#28176149)

Yes, but there's a new patent for doing it on submissions sent OVER THE INTERNET.

Re:That'd be "Bilski", not Bilsky. (3, Funny)

Allicorn (175921) | more than 5 years ago | (#28176159)

Welp... no prior art here.

Good News (4, Funny)

BabyDuckHat (1503839) | more than 5 years ago | (#28175435)

I'm confident the interests of the American people will be of the highest priority during deliberations.

[maniacal laughter followed by gentle sobbing]

Re:Good News (4, Funny)

N3Roaster (888781) | more than 5 years ago | (#28175479)

[maniacal laughter followed by gentle sobbing]

I hear they have drugs for that now.

Re:Good News (0)

Anonymous Coward | more than 5 years ago | (#28176207)

Yeah, but because GSK owns the patent and there are no generics I can't afford to buy them...

Re:Good News (0)

Anonymous Coward | more than 5 years ago | (#28176579)

Also already patented, unfortunately.

Re:Good News (1)

noidentity (188756) | more than 5 years ago | (#28177471)

I'm confident the interests of the American people will be of the highest priority during deliberations.

Corporations are people too!

That's great (2, Insightful)

Chandon Seldon (43083) | more than 5 years ago | (#28175449)

What should happen: The Supreme Court rules against business method patents and manages to eliminate software patents entirely at the same time.

What will happen: The Supreme Court rules in support of business method patents and redefines "prior art" to mean "other US patents that haven't yet expired" at the same time. Lawyers rush to patent levers, gears, buttons (electrical, mechanical, and on clothing), etc.

Re:That's great (5, Funny)

Anonymous Coward | more than 5 years ago | (#28175519)

U.S Economy collapses finally and utterly, U.S. defederates, patent system abolished, though that is incidental as former U.S. territories plunge into interstate war, americans arrogantly call it WWIII despite the non-involvement and borderline non-interest of most of Europe and Asia. Afterward, religious kooks rule the depopulated midwest, supplied with arms by east and west coasters to fight a proxy war.

Re:That's great (1)

Nefarious Wheel (628136) | more than 5 years ago | (#28175697)

U.S Economy collapses finally and utterly, U.S. defederates, patent system abolished, though that is incidental as former U.S. territories plunge into interstate war...

Are you listening, Harry Turtledove? Or is that you?

Re:That's great (4, Funny)

hairyfeet (841228) | more than 5 years ago | (#28175743)

And while this happens we southerners just quietly build a Berlin style wall at the Mason/Dixon and in one voice, black white and mexicowan get together and as the new confederate battle flag is raised on high say "You damned yankees stay the hell off our lawns!".

I'm in (1)

XanC (644172) | more than 5 years ago | (#28176397)

Let me know when you're ready to start construction.

Re:I'm in (1)

Patent Lover (779809) | more than 5 years ago | (#28176465)

Me too, and I live in the North.

O RLY? (2, Insightful)

hellfire (86129) | more than 5 years ago | (#28177115)

and in one voice, black white and mexicowan get together and as the new confederate battle flag is raised...

Oh really?

Re:O RLY? (-1)

Anonymous Coward | more than 5 years ago | (#28177355)

Learn the difference between confederate - as in the GP - and Confederate. American English isn't niggardly when it comes to subtleties and complexities.

Re:That's great (1)

Daniel Dvorkin (106857) | more than 5 years ago | (#28177353)

Your black neighbors, who have the rights of citizenship thanks to the damned Yankees very much not staying the hell of your lawns, probably won't share your feelings of Dixie solidarity.

Look, I know y'all love your Stars and Bars, but the war is over. You lost. Deal with it.

Re:Collapses (1)

TaoPhoenix (980487) | more than 5 years ago | (#28176145)

"A method for collapsing the US Economy finally and utterly causing U.S. territories to plunge into war."

Does the RIAA have a patent on their model?

Re:That's great (1)

jcorno (889560) | more than 5 years ago | (#28176661)

Afterward, religious kooks rule the...midwest, supplied with arms by east and west coasters to fight a proxy war.

Tonight we're going to look into the future, all the way to the year...2000.

Re:That's great (5, Insightful)

Zordak (123132) | more than 5 years ago | (#28175599)

You do realize that this Court will be nearly identical to the one that decided KSR, which raised the bar for obviousness, don't you? And honestly, Bilski was not a well-written decision, even if you agree with the conclusion. In fact, one of the criticisms of Bilski is that it was just a poorly-reasoned knee-jerk reaction to the Supreme Court continuing to smack down on the CAFC. I won't pretend to know exactly how the Supreme Court is going to come down on this, but I guarantee it will not end up with the Supreme Court making section 101 broader than it was pre-Bilski. Still, don't let that get in the way of your complaining.

[NOTE: If you need to google KSR, CAFC and section 101 before you respond to this post, that's a good clue that you're fighting a battle you don't understand]

Re:That's great (4, Funny)

Chris Burke (6130) | more than 5 years ago | (#28175765)

[NOTE: If you need to google KSR, CAFC and section 101 before you respond to this post, that's a good clue that you're fighting a battle you don't understand]

Ha, joke's on you! Thanks to Microsoft, I only had to Bing them! So with that out of the way, U R WRNG.

Anyway, I remember reading on /. about the case that raised the bar for obviousness... And ATT v MS where a Justice said out loud that the court had never held software to be patentable before... So I was very hopeful reading this headline. Thanks for more hope!

Re:That's great (1)

againjj (1132651) | more than 5 years ago | (#28176897)

Since when do slashdotters need to be informed in order to espouse opinions?

Re:That's great (1)

greensoap (566467) | more than 5 years ago | (#28177255)

This may be a trivial point, but KSR did not raise the bar for obviousness. Most would argue that it lowered the bar required to show obviousness, by removing the teaching, suggestion, or motivation to combine requirement from the analysis. Although, there is still a requirement to show some reason to combine, so it really isn't as much of a change as everyone thought. If you talk to litigators, they still drum up reasons why a person of skill in the art would combine two references, even after KSR. -- As the author states, I am not giving legal advice. I am not a lawyer nor am I trying to be a lawyer. Do not rely on my posts to support your legal conclusions, consult a lawyer in your jurisdiction and get real advice.

Re:That's great (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#28176637)

Not even close. The supreme court will invalidate all patents since there aren't enough minority patent holders. At least that's what Sonia Sotomayor would do.

Civilised world (5, Insightful)

Anonymous Coward | more than 5 years ago | (#28175521)

Canada and the UK have both denied business method and software patents, as have the EC (attempts by that corporate lackey Charlie McCreevy notwithstanding). Now that the civilised world has invalidated these types of patents, wouldn't it make sense for the US to follow?

Re:Civilised world (1)

KokorHekkus (986906) | more than 5 years ago | (#28175897)

In the long term: yes. In the short term: no.

I'll reiterate something I've posted before: If the US patent system diverges far enough from the global average of rights when it comes to patents then the US market will become too expensive to both develop for and enter into. So anyone who knows how to game the system better will be given a competetive advantage. If you need to engage in market conditions that differ to much from the global average then that market becomes a high risk one. The result could easily be that there is some additonal protection for companies that are only based in the US. For multinationals and foreign companies it will become too risky to enter into and that will lead them looking to the global market as their primary market and the US as a secondary market because of the inherent risks.

I don't think any economy is going to prosper in the long run by excluding actual innovation. They will end up with second-generation inventions.

Re:Civilised world (4, Insightful)

AK Marc (707885) | more than 5 years ago | (#28176173)

If you need to engage in market conditions that differ to much from the global average then that market becomes a high risk one.

There's a simple reason GM and Chrysler have died (and Ford will declare bankrupcy as well if GM comes out of bankruptcy strong). Protectionism. We've had as much protectionism as possible and not violate every trade agreement signed. We don't standardize crash tests with the world. We don't do emissions with the rest of the world. We don't do lighting requirements with the rest of the world. "We don't have to, we are the US" is the cry from the independent people of the US. And it helped insulate the US market from entrants. We have screwed up CAFE and tariffs on trucks that are so nutty Toyota and others built plants in the US just to get around the protectionism. Yay, we got plants. Oh, but then they weren't in Detroit and put Detroit out of business. Is that a yay or a boo? We do everything we can to not do what any other country on the planet is doing. It's not because we are independent, it's because the Big-3 CEOs paid lots of money to buy Congress and convince them the US way was right, and the rest of the planet was wrong.

So, our non-insulated market with artificial barriers propped up the big-3 about 10-20 years longer than if we has homogonized all vehicle standards with the EU and Japan, but it could only delay the inevitible. The same is true with IP. That's all we have left as a country, and we can delay our collapse by a few years, but we can't stop it. The only thing that would have saved the Big-3 would have been to fire everyone over 40 and start again. They were too much into what market share and profits they thought they were entitled, they forgot they needed to make a product people wanted. Sure, you can blame the unions and such, but there wasn't a union contract that wasn't signed by the big bosses, and they all thought those terms were good. After all, GM can't fail, right? And so goes our IP. We will grasp at that, rather than let it go and compete evenly. But the more we cling to it, the further it drags us under.

Re:Civilised world (2, Insightful)

langelgjm (860756) | more than 5 years ago | (#28176447)

The same is true with IP. That's all we have left as a country, and we can delay our collapse by a few years, but we can't stop it... After all, GM can't fail, right? And so goes our IP. We will grasp at that, rather than let it go and compete evenly. But the more we cling to it, the further it drags us under.

The problem with that analogy is that IP is not a national industry like the car companies. Because of international agreements like TRIPS, IP is extremely transnational (which in turn is a reflection of the fact that many transnational companies pushed for TRIPS' provisions). Sure, the US benefits greatly from strong IP, because many of our companies sell IP and IP-dependent items around the world. But that's also true of Japan and Western Europe.

Furthermore, up and coming countries like China are going to play the IP game the same way we did - ignore IP when it suits them, and respect it when it no longer suits them to ignore it.

Re:Civilised world (0, Flamebait)

joocemann (1273720) | more than 5 years ago | (#28176653)

I disagree. IP is pretty much all the US has to offer right now.

Oh, and bombs/war.

Re:Civilised world (1)

mcnellis (1420749) | more than 5 years ago | (#28176217)

Yes and no. yes it would make sense to do that, but no it wouldn't make sense for the US to do that. Why would the US follow the rest of the civilised world?! That would go against everything the US has ever stood for in the past 100 years!

Re:Civilised world (1)

Arcane_Rhino (769339) | more than 5 years ago | (#28176367)

233 years, actually.

Re:Civilised world (1)

mcnellis (1420749) | more than 5 years ago | (#28176537)

Meh, more like 150. The US has only been a real corporate dick to the world since the Industrial Revolution or a little thereafter.

Re:Civilised world (1)

artor3 (1344997) | more than 5 years ago | (#28177435)

Well, we here in the civiliZed world have our own way of doing things, if you hadn't noticed.

As time moves on (3, Funny)

moniker127 (1290002) | more than 5 years ago | (#28175531)

And more and more things become patentable- we may well have a ministry of silly walks.

Re:As time moves on (1)

tepples (727027) | more than 5 years ago | (#28176513)

we may well have a ministry of silly walks.

Monty Python aside, Americans may already have one. Wouldn't pathologically silly walks [wikipedia.org] be under the purview of the ministry of health [hhs.gov] ?

Re:As time moves on (1)

Amazing Quantum Man (458715) | more than 5 years ago | (#28176577)

We don't have "Ministries" in the US. We have "Departments".

Oh my. (1)

Nefarious Wheel (628136) | more than 5 years ago | (#28175629)

To you, my most esteemed collection of pigeons, please permit me to introduce my cat.

algorithms (1)

angrydotnerd (1377713) | more than 5 years ago | (#28175639)

Well, since you can patent computer algorithms there's no reason why this shouldn't be allowed too.

Re:algorithms (0)

Anonymous Coward | more than 5 years ago | (#28175777)

Um... A ruling against this will also be a ruling against software/algorithm patents. That's why it's news for nerds. :P

Re:algorithms (1)

mrlpz (605212) | more than 5 years ago | (#28175925)

Which means what ? That the ridiculous algorithms used by the three credit reporting companies can now be considered invalid, and I can come up with my own "Credit Score" algorithm and make my own service ? Yeah, right.

Privately right to complain... (1)

Tolabrew (1228850) | more than 5 years ago | (#28175759)

private business_method()
{ /* insert comment here */

S.S.O.O.;
S.S.T.M.;
end of debate;

}

Re:Privately right to complain... (0)

Anonymous Coward | more than 5 years ago | (#28177035)

Huh?

I didn't read the article of course (0)

Anonymous Coward | more than 5 years ago | (#28175799)

But had I heard the summary as an argument in passing I would have stopped and simply interjected:

"Sole rights to a particular business model should not equate to business success but the quality of implementation and service of a particular instance of that model should."

Congress? Please? (5, Interesting)

Kerrigann (1401847) | more than 5 years ago | (#28175967)

COPA, Abortion, Gay Marriage, Software Patents, Eminent Domain, Copyright term limits, Privacy Issues/Search and Seizure... does anyone else think that the U.S. has been relying more and more on Judges to make the difficult decisions or clean up the mess left by the legislature?

I'm sure everyone else can think of more examples.

More and more the only hope I ever have of bad laws being fixed is that one day it will go before the Supreme Court. I mean, COPA is a "success story", if you can call it that, but just once I want *Congress* to fix these things. :)

Re:Congress? Please? (1)

Martin Blank (154261) | more than 5 years ago | (#28176069)

The SCOTUS eminent domain explanation triggered a wave of statutes that redefined the concept at the state and local level. Gay marriage has been handled in the state courts, but not seriously in the federal courts, at least until the recent filing in federal court of a constitutional challenge to California's Prop 8 ban. However, a great many proponents feel that this is the wrong way to be going about it right now, and that getting Prop 8 overturned via another initiative (currently gathering signatures for a 2010 ballot appearance) would be the better way to go.

The courts are an important part of the system, but they others are just as effective in shaping public policy.

Re:Congress? Please? (1)

s73v3r (963317) | more than 5 years ago | (#28176235)

While a ballot initiative would be the better way to end Prop 8, where a majority of the voters would vote against bigotry, there is a great deal of precedent for civil rights issues being handled in the courts instead, where the emotions of the people should be cast aside in favor of what the law states.

Re:Congress? Please? (1)

Kerrigann (1401847) | more than 5 years ago | (#28176379)

I didn't mean to drive the discussion off topic towards Prop 8 :)

I really just meant that there are too many instances where it is the courts (either state or national) that, through judicial review, end up reversing bad policy.

Which, I know... is their *job* circa Marbury vs. Madison. But with thing's like COPA... that was just a blatantly un-constitutional law and the congress knew it.

With software patents, I guess I just haven't seen the issue really seriously raised in Congress. I just wish it would be.

Everyone else is infinitely more qualified to discuss this topic than I am... so I think I'll shut up now :)

Re:Congress? Please? (3, Interesting)

compro01 (777531) | more than 5 years ago | (#28176657)

I would be nice if Congress could send reference questions [wikipedia.org] to the court like we do here in Canada.

OTOH, I have a feeling it would turn into something like "Ok, so you say that would be blatantly unconstitutional. We'll just pass it anyway and hope we can stack the court before a case on it gets to you."

Re:Congress? Please? (1)

ahacop@wmuc.umd.edu (63340) | more than 5 years ago | (#28177087)

An advisory opinion [wikipedia.org] , as it is called in the U.S., is actually unconstitutional.

Re:Congress? Please? (1)

compro01 (777531) | more than 5 years ago | (#28177177)

That's why I said "it would be nice if". The constitutional prohibition on it also mentioned in the article I linked.

OTOH, constitutionality is just an amendment away.

Re:Congress? Please? (1)

Dragonslicer (991472) | more than 5 years ago | (#28176695)

does anyone else think that the U.S. has been relying more and more on Judges to make the difficult decisions or clean up the mess left by the legislature?

That's because judges generally don't have to worry about making decisions that might piss off the religious zealots or super-hippies and cost them the next election.

Re:Congress? Please? (1)

Mr. Underbridge (666784) | more than 5 years ago | (#28177263)

super-hippies

Would those be hippies who wear capes made out of hemp? Some henna body art, perhaps? Do they have powers, like creating a force-shield of stink?

They should totally do this! (0)

vampire_baozi (1270720) | more than 5 years ago | (#28175995)

Then I can patent accepting money, goods or other services in payment for other goods or services. We can even patent "profit maximizing"! Truly, this will finally allow people to stop emulating and perfecting business models, allowing me to reign supreme!

Next up, patenting human bodily functions. Everytime you breathe, your heart beats, or you fart, you owe me a quarter.

Re:They should totally do this! (1)

Zarluk (976365) | more than 5 years ago | (#28176439)

The government has already done that for you an me.

What's "general purpose" vs. "particular" machine? (4, Interesting)

ActusReus (1162583) | more than 5 years ago | (#28176001)

In the Federal Circuit opinion below, they held that a method patent must be tied to a particular "machine" or involve a "transformation" of some physical article. The "transformation" prong of that test left some interesting loopholes open for software patents, because they held that transforming REPRESENTATIONS of physical articles is good enough. When going through old cases, the court noted that a patent for x-ray medical software was okay because the data represented physical objects (i.e. human bones). However, patents for financial systems weren't patentable because dollars and cents aren't tangible articles.

However, the most interesting parts of the Federal Circuit's decision was that they almost completely declined to discuss the "machine" prong of the test at that time. It will be interesting to see what (if anything) the SCOTUS does with this. Specifically, the Federal Circuit said that a patent must be tied to a "particular" machine (so that the method could still be practiced on machines other than the one described). However, we don't really know much about what constitutes a "particular" machine. Up until Bilski, the Federal Circuit relied on "In Re Alappat"... which held that loading particular software onto a "general purpose" MAKES it a "particular" computer. The Bilski holding said that Alappat was now reversed... but in the discussion, they only talk about how other parts of that case were wrong.

So, is a general purpose computer "particular" enough when loaded with specific software, or not? That would be a very interesting question for the SCOTUS to answer.

Just as an aside... I know this is blasphemy on Slashdot, but not ALL method patents are bad. Method patents traditionally cover things like industrial processes and medical testing, things that actually do require innovation and/or substantial investment in FDA approval. The trick is in writing a rule that filters out crap from patents that actually do make public policy sense. It's harder than you might think to come up with a blanket rule that threads this needle.

Re:What's "general purpose" vs. "particular" machi (1)

EzInKy (115248) | more than 5 years ago | (#28176205)


So, is a general purpose computer "particular" enough when loaded with specific software, or not? That would be a very interesting question for the SCOTUS to answer.

Logically one would think a general purpose computer would become "particular" enough when the loaded software made it only suitable for the specific task. In other words, a dedicated mp3 playing machine would be particular because it is designed for only the purpose of playing mp3s.

Re:What's "general purpose" vs. "particular" machi (2, Interesting)

Cassini2 (956052) | more than 5 years ago | (#28176325)

I think a key difference between a software and a non-software patent should be a test to the effect: Can this be implemented with any computer purchased at the local Buy More? If the patent application can be implemented with commodity, off-the-shelf components, then the unique element in the patent must be software. If the unique element is software, then the patent is a software patent. The nice thing about the commodity, off-the-shelf component test, is that it extends nicely into business method patents. If the patent optimizes the method of exchanging sheets of paper in an office, then it quickly becomes obvious when someone is trying to patent something very abstract.

Now someone could claim that the combination of hardware mentioned in the patent is somehow special. I don't care about this. As long as the patent doesn't disallow large sections of software running on essentially any old hardware, then the author may have a valid hardware patent.

Unfortunately, I'm not a lawyer, and as such my opinion is worthless. Still I can hope the Supreme Court agrees with me.

Re:What's "general purpose" vs. "particular" machi (2, Interesting)

darjen (879890) | more than 5 years ago | (#28176609)

I know this is blasphemy on Slashdot, but not ALL method patents are bad. Method patents traditionally cover things like industrial processes and medical testing, things that actually do require innovation and/or substantial investment in FDA approval.

Hmm, still not convinced. I still believe business method patents are bad for society. IP in general stifles innovation. It practically removes any possibility of incremental improvement in other people's work. No matter how hard you try, it is impossible to own an idea. I hope the court rules against it, and perhaps it could eventually land a real blow to the whole concept of intellectual property.

Re:What's "general purpose" vs. "particular" machi (0)

Anonymous Coward | more than 5 years ago | (#28176743)

Do you really believe the SC will leave any shred of the "machine or transformation" test intact? Before in re Bilski, this test had never been heard of before. It has no basis in statute, prior SC decisions, or prior Federal Circuit decisions.

I think it is far more likely that we get a KSR type result, which will completely throw out the newly created "machine or transformation" test and restore the previous test which is based on an actual statute that Congress actually wrote.

Whether or not the Bilski patent will survive or not, I have no idea. But I think the "machine or transformation" test is dead dead dead.

Re:What's "general purpose" vs. "particular" machi (1)

ActusReus (1162583) | more than 5 years ago | (#28176821)

For what it's worth, I pretty much agreed with Judge Rader's dissent in the In Re Bilski case. He simply argued that the problem with Bilki's patent wasn't that it was a process, but rather that it was an obvious process in light of prior art. We don't necessarily need sweeping new rules from the courts or the PTO... we simply need patent examiners with a clue. Examiners should have enough subject-matter expertise to spot some of these egregious patent claims that have been publicly practiced for decades or longer.

Re:What's "general purpose" vs. "particular" machi (1)

jwilty (1048206) | more than 5 years ago | (#28177159)

I agree that it is difficult to write a general rule to determine if a method patent should be granted, but in today's technological world there is a big difference between the concept of performing an action and implementing that action. Myriad's patent [aclu.org] of the BRCA genes is a perfect example. It is fine to grant them a patent on a METHOD for detecting a mutation in the target gene but ridiculous to say that they should hold the rights to all methods that could possibly perform the same function (even if that method has yet to be invented). To me that is like someone discovering the internal combustion engine and being granted a patent for any process that turns fossil fuels into energy.

Re:What's "general purpose" vs. "particular" machi (1)

noidentity (188756) | more than 5 years ago | (#28177515)

not ALL method patents are bad. Method patents traditionally cover things like industrial processes and medical testing, things that actually do require innovation and/or substantial investment in FDA approval. The trick is in writing a rule that filters out crap from patents that actually do make public policy sense. It's harder than you might think to come up with a blanket rule that threads this needle.

Maybe we must simply accept that some forms of innovation cannot be encouraged in this manner, due to the amount of stagnation this manner simultaneously spawns.

Innovation (4, Insightful)

Dracos (107777) | more than 5 years ago | (#28176195)

Proponents say they are key to promoting innovation

I laugh every time I read this absurd argument. Patents are not about promoting innovation, they are about protecting intellectual property, even if that term is far younger than the patent concept. They are about creating a limited time micro-monopoly in order to stifle competition.

Patents aren't bad, but they have been allowed to get out of hand (Bezos, I'm looking at you). Business method, software, and DNA patents are abuses of the patent concept. Furthermore, the pace of technological advancement is faster now than it ever has been, and will only get faster; patent duration must be shortened appropriately.

Re:Innovation (1)

Dragonslicer (991472) | more than 5 years ago | (#28176723)

Patents are not about promoting innovation, they are about protecting intellectual property

In theory, patents and copyrights are about both. Promoting innovation is the goal, and protecting intellectual property for a limited time is the means to achieving that goal. The current implementation might be a bit off (read: very broken), but the goal is supposed to be encouraging inventors and artists to continue inventing and creating art.

Re:Innovation (1)

artor3 (1344997) | more than 5 years ago | (#28177487)

Patents are absolutely about promoting innovation. There's no reason to share a design with other companies unless you can be sure they'll pay you for it. Without patents, they could just take the idea and run. Companies would become reliant on trade secrets, and *that* would stifle innovation.

Disclaimer: Business method and software patents, as well as a few other types, are an abuse of the system, I hope the court rules against them.

Promoting innovation (4, Insightful)

aaandre (526056) | more than 5 years ago | (#28176203)

Similarly to another /.-er's fantasy, I imagine the world when *I* become an overlord and hire my own army of clowns to would slap politicians who say things like:

"Promoting innovation" - SLAP!

"For the sake of the children!" - SLAP!

"Free markets" "The GNP" - SLAP

"It's the Jews" "It's the communists" "It's the Arabs" "It's teh tehrorists!" - SLAP!

"For your safety" - SLAP, KICK, SLAP!

Thanks, Bozo, I needed that.

Re:Promoting innovation (1)

phantomfive (622387) | more than 5 years ago | (#28176641)

Yeah, well I'd have another set:

"It's my right to download stuff for free!" - SLAP!

"Parents should be responsible for their kids at all times and in all places!" - SLAP!

"The Amero!" "The North American Union" "They're exporting all our jobs!" - SUPER SLAP!!!!!!

Actually I have no real answer for the other two.

Stop patenting stupid crap. (1)

Nekomusume (956306) | more than 5 years ago | (#28176241)

You want to patent something, go invent a machine. Leave abstract concepts, math, my DNA, the way in which a window opens on my computer and the like the hell out of it.

Nobody is "patenting your DNA" (0)

ActusReus (1162583) | more than 5 years ago | (#28176655)

That "gene patent" case that the ACLU is pursuing deals with a method for isolating certain genes from anybody's DNA for the purpose of testing for cancer. It's no different than a medical test for checking a blood sample for chemical markers that indicate certain diseases... nobody's "patenting your blood" there either. Method patents make sense in these contexts because the costs of FDA approval for such medical tests can run into the hundreds of millions of dollars, so without patents nobody would develop such tests and we would lack early diagnosis for those diseases.

The ACLU case is all about using a catchy (yet misleading) slogan for purposes of publicity and fundraising.

Let's hope Sotomayor isn't confirmed (0)

Quila (201335) | more than 5 years ago | (#28176561)

She tends to side with the big IP holders.

Re:Let's hope Sotomayor isn't confirmed (1)

joocemann (1273720) | more than 5 years ago | (#28176691)

links?

Re:Let's hope Sotomayor isn't confirmed (2, Informative)

ActusReus (1162583) | more than 5 years ago | (#28176765)

Google is your friend [google.com] .

Sotomayor worked as an intellectual property litigator prior to becoming a judge. However, her record on IP is actually pretty moderate and mixed. She's ruled in favor of copyright holders in a few cases, yet has limited the ability of big corporations to squash cybersquatters. Generally, her opinions have tended to be pretty narrow and focused on the case at hand. No telling where she'll go now that she has the power to decide broader law without being reversed.

Re:Let's hope Sotomayor isn't confirmed (1)

Quila (201335) | more than 5 years ago | (#28177473)

From what I've read around the net the copyright attorneys for the corporations love her.

Innovation? That's a point *against* here. (1)

mokus000 (1491841) | more than 5 years ago | (#28176793)

Proponents say they are key to promoting innovation

Wait, wait, wait, wait, WAIT!

We're gonna promote innovation of business practices by restricting their application? Last I checked, a successful business practice is its own reward. If these proponents are gonna make this argument, they need to be slapped down with the fact that at least in this case, the only reasonable conclusion derivable from that premise is that this type of patent should be forbidden.

Knowledge and Service Based? (1)

mosb1000 (710161) | more than 5 years ago | (#28176947)

Is that what you call it when you go into massive debt to pay others to do your work for you?

News flash! This is not a model for a real economy, it's a model for an imaginary one.

Promote Innovation (4, Insightful)

PPH (736903) | more than 5 years ago | (#28177051)

Because if I think of a better way of running my business, I won't implement it unless the government gives me a patent. I'll just stand here, stamping my little feet, holding my breath until I turn blue. And someone else will use the idea.
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