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Supreme Court Review of Bilski Heats Up

kdawson posted about 5 years ago | from the do-patent-leather-shoes-really-reflect dept.

Patents 121

I Don't Believe in Imaginary Property writes "The Supreme Court's review of In Re Bilski (discussed here numerous times) is heating up, having attracted no less than 44 friend-of-the-court briefs from almost everyone with a stake in the patent system. Patently-O provides a nice summary of who is arguing against Bilski. The two questions before the Supreme Court are whether or not a process must satisfy the particular machine or transformation test, and whether this test improperly excludes many business methods in spite of the wording of 35 U.S.C. 273, which specifically allows business-method patents. So far, the case has attracted legal filings from nearly every large company or group whose patents might be threatened. You can read briefs from Yahoo, IBM, Borland, Dolby Labs, the BSA, and many others, even one from some guy claiming to speak on behalf of the State of Oregon."

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A wiki for Bilski and other swpat issues (5, Informative)

H4x0r Jim Duggan (757476) | about 5 years ago | (#29032221)

I'm documenting this here: swpat.org/wiki/Bilski [swpat.org] . All help appreciated.

this fri$t p0$7 for gnaa and steve jobz (-1, Offtopic)

Anonymous Coward | about 5 years ago | (#29032259)

first post for gnaa gay nigger association of america and steve jobz

Can you help me Slashdot? (-1, Offtopic)

Anonymous Coward | about 5 years ago | (#29032401)

My dad is a nigger kike and my mom is a spic muslim. Of course I have a donkey-sized dick due to my dad but I also speak Hebrew, Spanish, Arabic and English. What does that make me?

Re:Can you help me Slashdot? (-1, Troll)

Anonymous Coward | about 5 years ago | (#29032557)

A faggot.

Re:A wiki for Bilski and other swpat issues (2, Insightful)

SlashWombat (1227578) | about 5 years ago | (#29035053)

I was always under the impression that patents were to protect novel ideas that were unlikely to be obvious to anyone that was working in the field. This I find acceptable usage of patents! However, many patents that are granted by the USPTO are NOT novel. The problem with business and software patents is that they are either obvious but have been applied to computing, or they are well known but no-one has applied for the patent before, since it was "obvious". The obvious fix is that any patent that is granted should perhaps have a two year probationary period, during which the patent office could receive objections from other interested parties. The patent should then be reviewed, based on any/all received information. This would freeze out many of the bogus patents that are issued (mainly to trolls who would never use the patent they own anyway!

Re:A wiki for Bilski and other swpat issues (5, Informative)

testadicazzo (567430) | about 5 years ago | (#29035115)

I was always under the impression that patents were to protect novel ideas that were unlikely to be obvious to anyone that was working in the field. This I find acceptable usage of patents!

You have always been mistaken. The purpose of the patent system is to encourage investment into research and development, and thus encourage and promote human progress and invention. Allowing ideas to be patented slows innovation, while allowing the patent of an invention which has required much time, effort, and or money to develop, provides a financial incentive for for R&D, and thus encourages innovation.

Thus patents should protect inventions which require a significant amount of research and development, not ideas. To quote Thomas Jefferson [let.rug.nl] :

It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

If you wish to correct your ignorance, I can suggest the book "Math you can't use" as an excellent text on the subject.

Incorrect (2, Insightful)

geekoid (135745) | about 5 years ago | (#29038293)

"Allowing ideas to be patented slows innovation,"

A) You can build on a patent, i.e. innovate
B) After about 20 years* anyone can make it.

The only thing it slows is distribution of the product because the holder can control who can make it. IT doesn't NOT IN ANY WAY prevent new products based on it from being patented.

"Thus patents should protect inventions which require a significant amount of research and development, not ideas.
No, and Yes.

No, it should not protect products based on how much it costs to develop,
Yes, it should not allow for the patent of ideas. This is counter to what patents are for, and undermines there value immensely.

Re:Novel Ideas (3, Funny)

TaoPhoenix (980487) | about 5 years ago | (#29036149)

Copyright protects Novel ideas. Patents protect the Automatic Author machine that produces Novel ideas.

Re:A wiki for Bilski and other swpat issues (2, Interesting)

DJRumpy (1345787) | about 5 years ago | (#29036761)

Agreed. Any patent that can be duplicated just from hearing about the idea, is to my mind 'obvious' and should not be patentable. There are also rulings that allow for reverse engineering and in some cases, the courts even went so far to state that reverse engineering is desirable to innovation, and market competition.

Is Reverse Engineering Legal [chillingeffects.org]

Patents are out of control when you can patent "A system for categorizing information in a 'database like' structure for easy retrieval at a later date'". Note I totally made that up, but as far as I know such patents exist or are applied for on a regular basis. At some point, someone needs to step in and put on the Sanity Brakes.

Yeaaa. and we independent developers get to see (4, Insightful)

unity100 (970058) | about 5 years ago | (#29032279)

who's the enemy of innovation, open source, new participative pluralist internet culture and freedom, and who is a friend.

the verdict of the masses are silent, but irreversible. and no court can make innumerable developers who can make or break a new web/it tech your friend by force.

Re:Yeaaa. and we independent developers get to see (1, Insightful)

girlintraining (1395911) | about 5 years ago | (#29032343)

and no court can make innumerable developers who can make or break a new web/it tech your friend by force.

No, but the "default" choice is often a more powerful cohersive mechanism than the court system. How many people still have "Tom" as a friend on Myspace, or use Internet Explorer "because it's there"?

Re:Yeaaa. and we independent developers get to see (0)

Anonymous Coward | about 5 years ago | (#29032897)

a more powerful cohersive mechanism

WTF is "cohersive"? Did you mean "coercive"?

Re:Yeaaa. and we independent developers get to see (1, Funny)

Anonymous Coward | about 5 years ago | (#29033037)

a more powerful cohersive mechanism

WTF is "cohersive"? Did you mean "coercive"?

It's an error, no doubt, but it's an amusing one. It's like a combination of "coercive" and "cohesive". I think we should regard it as cromulent.

Re:Yeaaa. and we independent developers get to see (0, Flamebait)

gnupun (752725) | about 5 years ago | (#29033145)

who's the enemy of innovation, open source

Open source is to innovation as Microsoft is to innovation: i.e., both are a bunch of copycats. Innovation usually comes from small companies or individuals. Without patents, if a inventor spends 5 years perfecting an invention, OSS folks will wait until it is successful, then copy it within a few months, thereby reducing profit of the inventor to $0. Patents ensure, OSS or commercial leeches don't destroy innovation.

Re:Yeaaa. and we independent developers get to see (0)

Anonymous Coward | about 5 years ago | (#29033409)

Except these days the innovative stuff is being built on top of OSS in its initial phases. It can be used to significantly reduce the time to test your software when you can get the basic framework right out of the box with OSS and have the ability to change or add only what you need instead of having to build everything from scratch. Nearly every new innovation and invention is built off of previous work and knowledge and the ability of open source to test these ideas cheaply has allowed OSS to gain a lot of new things before competitors. I believe you mean to state that mainstream OSS will adopt it once its been proven by the testbeds which is another issue.

Re:Yeaaa. and we independent developers get to see (0)

Anonymous Coward | about 5 years ago | (#29034017)

I am a graduate of one of the schools that filed a brief, and a member of two of the organizations. I disagree with their positions. I like the CAFC decision, and would like to see curbs on the expansive patents out there. However, many in the field find their compensation enhanced by filing these types of patents, and the long waiting periods mean they have clients in the pipeline longer. Uggh!

Don't hold your breath (2, Insightful)

xednieht (1117791) | about 5 years ago | (#29032281)

As techies ./-ers would expect an outcome that reflects logic and reason. Remember, of the scum-sucking leaches that are lawyers the supreme court represents the elite.

Better to be a forum troll, than a patent-troll any day of the week.

Re:Don't hold your breath (-1, Troll)

Anonymous Coward | about 5 years ago | (#29032305)

not true. Sotomayor hates white people.

Re:Don't hold your breath (-1, Offtopic)

Anonymous Coward | about 5 years ago | (#29032457)

You don't have to actually hate people to be racist. There are plenty of people worldwide who demonstrate that.

Re:Don't hold your breath (5, Funny)

hairyfeet (841228) | about 5 years ago | (#29032749)

Or as my dad says

" Son, there is no point in being a racist. Most folks are total assholes and will happily give you a reason to hate them personally!"

And I have found no truer words were ever spoken.

And even worse (0)

Anonymous Coward | about 5 years ago | (#29032629)

her ex-husband is a patent lawyer. (Not a joke, look it up. His name is Kevin Noonan.)

Re:And even worse (0)

Anonymous Coward | about 5 years ago | (#29032951)

That could work in our favour

USPTO has already been taking Bilski into account (5, Informative)

ProfBooty (172603) | about 5 years ago | (#29032311)

The office has been sending out quite a few 101 rejections based on the district courts decision. This is something that both the Office and the Bar want clearly resolved as the Bar has been very creative in the past few years in claiming what is essentially software only claims.

Re:USPTO has already been taking Bilski into accou (0)

Anonymous Coward | about 5 years ago | (#29034679)

Why would the bar want it resolved? The more uncertainty there is, the more lawyers you need to argue about it. Seems to me that a lawyer collective would have a vested interest in making the waters muddier, not clearing things up.

Re:Don't hold your breath (5, Funny)

CorporateSuit (1319461) | about 5 years ago | (#29032371)

Better to be a forum troll, than a patent-troll any day of the week.

Yeah, who needs yachts to drive on their oceans of money and naked women when we have strangers getting upset over what we think about Linux distros?

Re:Don't hold your breath (0)

Anonymous Coward | about 5 years ago | (#29032431)

no mod points, so an lol to you, good sir.

Re:Don't hold your breath (0)

Anonymous Coward | about 5 years ago | (#29032527)

Better to be a forum troll, than a patent-troll any day of the week.

Yeah, who needs people with yachts to drive^W sail on their oceans of money and naked women when we have those same strangers getting upset over what we think is a bad idea showing no innovation, but what they might think is a great way to make money from about^W Linux distros?

Re:Don't hold your breath (1)

xednieht (1117791) | about 5 years ago | (#29032553)

I'll bet you drive a Corvette too...

Re:Don't hold your breath (4, Funny)

nacturation (646836) | about 5 years ago | (#29033213)

Better to be a forum troll, than a patent-troll any day of the week.

Yeah, who needs yachts to drive on their oceans of money and naked women when we have strangers getting upset over what we think about Linux distros?

Don't do that. Besides not being very nice, it's quite the waste because you'll just end up having to buy more naked women to drive over.

Re:Don't hold your breath (0)

Anonymous Coward | about 5 years ago | (#29037835)

Better to be a forum troll, than a patent-troll any day of the week.

Yeah, who needs yachts to drive on their oceans of money and naked women when we have strangers getting upset over what we think about Linux distros?

Don't do that. Besides not being very nice, it's quite the waste because you'll just end up having to buy more naked women to drive over.

which would only empty your oceans of money.... it's a lose-lose situation!

Re:Don't hold your breath (0, Offtopic)

schnikies79 (788746) | about 5 years ago | (#29032575)

"Elites" are the modern bogeyman.

Best quote (5, Interesting)

Anonymous Coward | about 5 years ago | (#29032377)

I think the brief submitted by Mark Lemley et. al sums up my opinion the best.

The distinction on patentable subject matter should be based on the distinction between applied and abstract inventions.

It doesn't get much simpler than that in my mind. If you are patenting an applied method, applied algorithm (read: implementation), applied design (blueprints or machines) etc. then sure, you should be able to patent it. Barring prior art, public domain, etc.
But if all you have is an idea, too bad- do something with it.
I guess the thing that surprised me was, when I was taught about patents back in high school that is essentially what they told me the criteria was all along. Then I grew up & found out how twisted it really is, and then IP and software patents got into the mix, and because the politicians & courts had no clue what they were talking about, managed to hose the whole thing.

Re:Best quote (5, Interesting)

radtea (464814) | about 5 years ago | (#29032445)

I think the best quote is: a general purpose computer should be considered a "particular machine."

This is the core contention behind the justification of software patents. It incorrectly treats all of the specific coding of any algorithm implementation as irrelevant to the patentable subject-matter, because the algorithm could theoretically be made to run on any Turing architecture.

Anyone who has ever actually implemented an algorithm, much less anyone who has invented one, knows that this is nonsense: algorithms are not implementations, and to be "useful" an algorithm has to be properly implemented in a specific language and, frequently, on a specific machine or limited range of machines, because real computers are not Turing machines. Turing machines don't have interrupts, amongst other things, which is why they are deterministic and mathematically tractable.

Re:Best quote (4, Informative)

Antique Geekmeister (740220) | about 5 years ago | (#29033105)

A general tool of almost any kind, used in a different way, is _not patentable_. It's using the tool for what it was designed for, it does not change the physical construction of the machine nor its number of parts nor its general capabilities.

The "actually implemented algorithm" is protected in its specific implementation by copyright, and should not receive the double protection of patent law against writing similar algorithms.

Re:Best quote (1, Informative)

Grond (15515) | about 5 years ago | (#29033259)

A general tool of almost any kind, used in a different way, is _not patentable_. It's using the tool for what it was designed for, it does not change the physical construction of the machine nor its number of parts nor its general capabilities.

This is not entirely accurate. Suppose there is a patent on Compound X and the patent discloses the use of Compound X as a floor wax. Now suppose someone discovers that Compound X makes an excellent treatment for baldness, which is entirely nonobvious given its previous use as a floor wax. It is true that the inventor cannot patent Compound X again just because a new use has been discovered. But what the inventor can patent is a method of use of Compound X as a baldness treatment, specifying the dose and treatment regimen. This is true in the US though not true in many other jurisdictions.

The "actually implemented algorithm" is protected in its specific implementation by copyright, and should not receive the double protection of patent law against writing similar algorithms.

The protection provided by copyright is very narrow: it extends only to the literal source and machine code, not to the algorithm generally. For example: suppose one discovers a new efficient algorithm for simulating fluids. This has many potential applications: special effects, computer games, weather simulation, etc. Now suppose one publishes the algorithm and implements it in a specific program: a computer game. Nothing in copyright law stops everyone in the world from implementing the published algorithm in their own games, weather simulators, special effects software, etc. So long as they don't directly rip off the inventor's code but instead create their own implementation of the idea, they are in the clear.

So what's a business to do? A common thing to do is keep the algorithm a secret and keep the source closed. The public will never learn about the algorithm.

Software patents step in to fill the gap left by copyright. A patent on the fluid simulation algorithm protects any implementation of it in any domain. This allows the inventor to sell or license the rights to the highest bidder in each field. In the mean while, the public gets to see the algorithm published as a patent, and they are free to create and patent improvements as well as design around it. When the patent expires, the public is free to use the original idea. If the idea becomes outdated (e.g. because an open-source competitor designs a better alternative), then the patent will be worthless, the owner will stop paying the maintenance fees, and the invention will enter the public domain ahead of schedule.

Re:Best quote (1)

Antique Geekmeister (740220) | about 5 years ago | (#29034047)

Software patents were created to fill a business opportunity. The absense of that opportunity is not, in itself, necessarily a bad thing because the filing and management and avoidance of infringement of such patents has become amazingly burdensome to developers and to the public.

Worse, many software patents are nonsensical: they act as a barrier to entry to small companies and small scale developers, because larger companies can and do invest in patent portfolios as a basic business practice. The result is that innovation is stifled. Not completely, but I've had software and hardware patent issues go to court, and it was burdensome on me as a developer.

Re:Best quote (0)

Anonymous Coward | about 5 years ago | (#29034167)

So what's a business to do? A common thing to do is keep the algorithm a secret and keep the source closed. The public will never learn about the algorithm.

What good is it to learn of the algorithm if you can't use it? In 28 years, if not a shitload sooner, the algorithm will be public knowledge. Besides, those who are in a position to exploit patent knowledge are often forbidden from reading patents and tainting the fruit of their genius. Patents - ALL patents - are a complete and total fucking waste. You don't want to invent? Fine, fuck off and go home. Your business will be run under by those that operate under the principles of continuous improvement and not continuous cockblocking.

Re:Best quote (1)

AtomicJake (795218) | about 5 years ago | (#29035617)

A general tool of almost any kind, used in a different way, is _not patentable_. It's using the tool for what it was designed for, it does not change the physical construction of the machine nor its number of parts nor its general capabilities.

This is not entirely accurate. Suppose there is a patent on Compound X and the patent discloses the use of Compound X as a floor wax. Now suppose someone discovers that Compound X makes an excellent treatment for baldness, which is entirely nonobvious given its previous use as a floor wax. It is true that the inventor cannot patent Compound X again just because a new use has been discovered. But what the inventor can patent is a method of use of Compound X as a baldness treatment, specifying the dose and treatment regimen. This is true in the US though not true in many other jurisdictions.

I hope that you are not right. First of all: Discoveries are not patentable (as far as I understand the patent system). Second, you cannot patent the "how-to-use" description of compound X, you may create a new product that contains compound X and maybe patent its composition. But then, I know much about patents for software (which should not exist, but practically exist), and nothing about patents used in pharmaceutical products. I am not sure whether they are comparable.

The "actually implemented algorithm" is protected in its specific implementation by copyright, and should not receive the double protection of patent law against writing similar algorithms.

The protection provided by copyright is very narrow: it extends only to the literal source and machine code, not to the algorithm generally. For example: suppose one discovers a new efficient algorithm for simulating fluids. This has many potential applications: special effects, computer games, weather simulation, etc. Now suppose one publishes the algorithm and implements it in a specific program: a computer game. Nothing in copyright law stops everyone in the world from implementing the published algorithm in their own games, weather simulators, special effects software, etc. So long as they don't directly rip off the inventor's code but instead create their own implementation of the idea, they are in the clear.

Yes. And you have built an application around this algorithm fully covered by the copyright. Or you have a library which markets the implementation - fully covered by the copyright. By publishing your new algorithm (e.g. on an international conference), you even get the merits and maketing that you need to establish yourself as an expert, so that's much easier to sell your implementation of this algorithm - compared to maybe other implementations. And, of course, you have a head start, since you may not publish the algorithm before your product is ready.

So what's a business to do? A common thing to do is keep the algorithm a secret and keep the source closed.
The public will never learn about the algorithm.

That is also a possibility: Use your algorithm as a trade secrete inside your application - instead of benefiting from the marketing by publishing it. However, you should not think that other researchers are so dumb to not make the same discovery, if the algorithm is really so much better than others. If your product outperforms all others, people will start looking closer to possible solutions and they will do the same discovery - and they will do it before the typical end of the patent period.

Software patents step in to fill the gap left by copyright.

There is only a perceived gap. You think that a discovery of some mathematics should be patentable. I think it should not. Oddly, you cannot patent mathematics, but somehow lobbyists could get the PTO to patent algorithms (if I write the words "embodied in an apparatus").

A patent on the fluid simulation algorithm protects any implementation of it in any domain. This allows the inventor to sell or license the rights to the highest bidder in each field. In the mean while, the public gets to see the algorithm published as a patent, and they are free to create and patent improvements as well as design around it. When the patent expires, the public is free to use the original idea. If the idea becomes outdated (e.g. because an open-source competitor designs a better alternative), then the patent will be worthless, the owner will stop paying the maintenance fees, and the invention will enter the public domain ahead of schedule.

The above very clearly summarizes why patents on algorithms are so powerful and harmful: Your example algorithm is required in many fields and anybody using it needs to get a license. You may sell me a license - or you may decide to not sell me a license. You may also sell me an exclusive license. You may also decide to give nobody a license. In any case: Either I have to license your algorithm - or I am blocked. Even if I would be capable to design the same algorithm (which is more often the case than otherwise with those patented algorithms that I have seen), I would be at your mercy to get a license. Even worse, I might have discovered the same algorithm independently and not even know about your patent - and you could stop me from using my own discovery.

So, I think a made my points against software patents.

Re:Best quote (1)

geminidomino (614729) | about 5 years ago | (#29036273)

I hope that you are not right. First of all: Discoveries are not patentable (as far as I understand the patent system).

Oh, they are. Right down to patenting OTHER peoples' body parts...

Have you ever tried to write code from a patent? (0)

Anonymous Coward | about 5 years ago | (#29036835)

> So what's a business to do? A common thing to do is keep the algorithm a secret and keep the source closed. The public will never learn about the algorithm.

You say that like the "disclosures" in the patent applications are actually usable to anyone but lawyers. They're all written to satisfy statutory requirements and I've yet to see even one software patent that contained any source code (to be fair, I tend to only look at the absurd ones that make the news, but none of the other random patents I've seen were anywhere near useful and I *am* a coder who, theoretically, should benefit from this).

In other words, the actual patents don't do us any good. If their methods are that great, they'll either present academic papers (which is where most of the software innovation--rather than patents on running auction variants that have existed for 800 years, but are now computerized--seem to appear), or they'll write code that other people license from them.

If the "invention" is so obvious that other people are implementing it without even seeing it (which covers the vast majority of patent infringement I've ever seen--believe me, I don't go looking for ideas in patent applications...), I don't honestly think it was deserving of patent protection in the first place.

Re:Best quote (3, Insightful)

Theaetetus (590071) | about 5 years ago | (#29033343)

A general tool of almost any kind, used in a different way, is _not patentable_.

A hammer isn't patentable? Of course it is. What you're quibbling over - and why this is going to the Supreme Court - is the definition of a "general tool". Is a hammer a general tool, or a specific tool? It can't be used to screw in screws... So, is a screwdriver a general, or a specific tool? Well, it can't be used to hammer in nails... at least not well. Finally, is a computer a general, or a specific tool? It's not very good at hammering or screwing, after all.

I realize this is all semantic bullshiat, but when the original Bilski case said that an algorithm tied to a specific machine is patentable, while one tied to a general machine isn't, you're purely in the semantic bullshiat area.

My take:

The point of this whole argument is to say that we don't want to make algorithms patentable. Specifically, we don't want someone's mental process to be infringement of a patent. If you patented the concept of 2+2=4, then someone reading your patent and understanding that when you add two to two, you get four would be infringing. This is a thoughtcrime, and that's bad. To be more realistic, we similarly don't want it to be an infringement when you read someone's patent on a method of diagnosing a disease and understand the method, or read a patent on a method of running a business and understand the method. Instead, it shouldn't be an infringement until you actually perform the method. But if it only requires mental steps, then understanding it is performing the method...

So that leads us to Bilski: it must be tied to a specific machine. Patenting 2+2=4 makes merely understanding addition a thoughtcrime. However, patenting "using a computer configured to add a first number, equaling two, to a second number, equaling two, to achieve a result, equaling four" could never be infringed by someone thinking through the steps, or even using a pen and paper. It requires a specific machine, so there can be no possibility of a thoughtcrime. You're not patenting the algorithm - you're patenting the computer performing the algorithm. Do it by hand, and you're not infringing. This allows inventors to improve on the design without infringing the patent, and simultaneously allows the inventor to exploit his invention without stifling innovation.

Re:Best quote (3, Insightful)

aztektum (170569) | about 5 years ago | (#29033857)

A patent on a hammer is fine. A patent that says I can't use it to hammer things a certain way is bogus. I paid money for the hammer. I should be able to use it how I see fit and share that knowledge unencumbered.

Re:Best quote (2, Insightful)

Antique Geekmeister (740220) | about 5 years ago | (#29034009)

The hammer itself is patentable. The new use of a hammer, without fundamental modification to the hammer itself, is not. So now that general purpose computers exist. That's part of what Bilski is revealing: the patenting of usages of tools, without modifying the tool itself, is a serious issue that should block the patent.

Re:Best quote (1)

Theaetetus (590071) | about 5 years ago | (#29036611)

The hammer itself is patentable. The new use of a hammer, without fundamental modification to the hammer itself, is not. So now that general purpose computers exist. That's part of what Bilski is revealing: the patenting of usages of tools, without modifying the tool itself, is a serious issue that should block the patent.

Why? 35 USC 101 has the word "process" as one of the categories of statutory inventions. What support do you have for the contention that a new use of something is not patentable?

Re:Best quote (2, Informative)

russotto (537200) | about 5 years ago | (#29033351)

A general tool of almost any kind, used in a different way, is _not patentable_. It's using the tool for what it was designed for, it does not change the physical construction of the machine nor its number of parts nor its general capabilities.

Evidentally you missed the article on Microsoft getting a patent on using XML as a file format for a word processing document, including certain specific new tags. Yep, they extended the eXtensible Markup Language (and not even in a particularly original way) and got a patent on their particular extension.

Re:Best quote (0)

Anonymous Coward | about 5 years ago | (#29033577)

Evidently, you failed to read said article, which stated MS actually received a patent for tagging legible context information within an XML file being used to store a word processing document.

Re:Best quote (3, Interesting)

naasking (94116) | about 5 years ago | (#29033457)

Turing machines don't have interrupts, amongst other things, which is why they are deterministic and mathematically tractable.

Just a correction: our computers aren't Turing machines because they have finite memory, not because they have interrupts. Analyzing arbitrary machine code is tractable on a real Turing machine with infinite memory, it's just that any such analysis may not run within the bounds of current computer memories, and even if it could, its runtime or resource consumption may not make the analysis actually useful.

The difference between theory and practice (2, Informative)

symbolset (646467) | about 5 years ago | (#29034227)

In theory, there is no difference between theory and practice. But, in practice, there is. -- Jan L. A. van de Snepscheut [wikiquote.org]

A Turing machine [wikipedia.org] is a form of thought experiment with utility in many aspects of information science and mathematics. It was never intended as a platform to prove algorithms. That it has uses for algorithms is part of the proof of its general utility - which in the modern day goes far beyond afield of computer science. Typically algorithms are expressed not as Turing Machine code but in a format similar to a mathematical proof, in an actual programming language or as something called "abstract code" which has similarities to actual programming languages but without the distractions of implementation details.

The assumption that a pure algorithm must use a Turing machine as a standard platform is revealed as an error in this way: Turing machines have not only infinite storage, but infinite performance - the time to perform operations is not important to the operation of a Turing machine. For algorithms though efficiency of performance in number of operations, and hence time, is second only (and sometimes not even then) to correctness. Efficient use of resources like memory is an important metric for evaluating fitness of an algorithm. The Turing Machine doesn't consider these metrics because its purpose is not to find fit algorithms, but rather to serve as a generic type of operator for mathematic functions dealing with information.

In his momentous paper "On Computable Numbers, with an Application to the Entscheidungsproblem"[14] (submitted on 28 May 1936), Turing reformulated Kurt Gödel's 1931 results on the limits of proof and computation, replacing Gödel's universal arithmetic-based formal language with what are now called Turing machines, formal and simple devices. He proved that some such machine would be capable of performing any conceivable mathematical problem if it were representable as an algorithm, even if no actual Turing machine would be likely to have practical applications, being much slower than practically realisable alternatives. - op. cit.

Although I agree with both you and the grandparent I feel you've missed some essence of the truth here.

On a completely different note: Determinism has some utility - it doesn't have all utility. Every lawyer and salesman knows that ambiguity can also be a useful tool.

Re:Best quote (1)

itsdapead (734413) | about 5 years ago | (#29035449)

This is the core contention behind the justification of software patents. It incorrectly treats all of the specific coding of any algorithm implementation as irrelevant to the patentable subject-matter, because the algorithm could theoretically be made to run on any Turing architecture.

I just hope that the "software shouldn't be patentable because software is math" brigade eventually come to understand this, and don't throw the pro-patent lobby into the briar patch.

There was a long discussion on Groklaw a while back (following a statement by Knuth [groklaw.net] along these lines) and the argument seems very seductive to some people.

The problem is, this argument is "not even wrong" (try and disprove it and you're arguing math with Knuth and Turing - good luck with that!) However, to use this as an argument as to why software should not be patented, you also need to prove the converse: that everything that should be patentable is not math. I.e. most engines, generators etc. can be represented mathematically as a thermodynamic cycle, which can be used to predict their theoretical limits.

Heck, thermodynamics and information theory are joined at the hip, so a specially trained stunt physicist could probably prove that a Turing machine is equivalent to a Carnot cycle.

Or, speaking of Knuth, if TeX, with all the practical typesetting knowhow it embodies) is "math" then what isn't?

Going down that route just gives the patent industry an incentive to come up with creative ways to patent math or slide a cigarette paper between the "math" and "invention" in software. The copious empirical evidence that software patents just hinder innovation seems a much stronger argument.

Re:Best quote (4, Insightful)

slashqwerty (1099091) | about 5 years ago | (#29032611)

The Accenture brief states:

Machine or transformation test is not a reliable indicator of anything relevant. The standard for patentability should usefulness as set forth in the Constitution, in the patent statute, and by the Court.

But this ignores the constitutional requirement that it promote progress:

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;

Teles AG says:

Further, the global nature of todays economy strongly recommends that the United States patent system be harmonized with robust patent systems of other nations wherever possible.

This is the same argument used in favor of the Sony Bono Copyright Term Extension Act yet at the time the United States was one of very few nations to actually extend copyright to such a length. In this case the U.S. is one of very few nations to support software patents.

Re:Best quote (2, Informative)

Grond (15515) | about 5 years ago | (#29032775)

But this ignores the constitutional requirement that it promote progress:

It is not obvious that business method patents hinder the progress of the useful arts, and merely stating it does not make it so. But if you have a good argument for why business methods are contrary to the constitutional purpose of patents, then by all means compose and submit an amicus curiae brief in support of the Respondent. The due date is October 2nd. You don't have to be an attorney to submit an amicus brief on your own behalf.

In this case the U.S. is one of very few nations to support software patents.

This case is not about software patents. Here are the questions presented in the case:

1. Whether the Federal Circuit erred by holding that a "process" must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing ("machine-or-transformation" test), to be eligible for patenting under 35 U.S.C. 101, despite this Court's precedent declining to limit the broad statutory grant of patent eligibility for "any" new and useful process beyond excluding patents for "laws of nature, physical phenomena, and abstract ideas."

2. Whether the Federal Circuit's "machine-or-transformation" test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect "method[s] of doing or conducting business." 35 U.S.C. 273.

Now it is true that the case has implications for software patents, diagnostic method patents, etc, but concerns about software patents and the like will be, at most, secondary public policy considerations in the Court's decision making process.

That said, the point about international harmonization is that other countries and the EPO have broad definitions of patent eligible subject matter. The EPO, for example, says "European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step" with the further proviso that the invention must be of a technical character. Now, the EPO has a specific exclusion for business methods, but it is just that: a specific exclusion. The test of patentable subject matter remains broad. The argument is that the US should do the same: broad patentable subject matter with (if necessary) specific exclusions as determined by Congress rather than the courts. As it so happens, there are many good arguments that Congress has not yet excluded (and might never exclude) business methods from patent eligibility.

Full Disclosure: I work for the team [hoover.org] that wrote the amicus brief of Dr. Ananda Chakrabarty [hoover.org] (he of the Diamond v. Chakrabarty Supreme Court case that established the patentability of genetically modified organisms).

Re:Best quote (4, Insightful)

jedidiah (1196) | about 5 years ago | (#29032973)

> It is not obvious that business method patents hinder the progress of the useful arts

You declare ownership of a new business process. Because of this you can prevent
EVERYONE ELSE WHO DOES BUSINESS from benefiting from that new process. Alternately
you can FORCE EVERYONE to waste money licensing your process. Alternately, companies
lose the motivation to innovate because they might be sued by some jerk like you.

Every patent allows the patent owner to cause trouble for everyone else for the next 17 years.

It's far better that Dell can't patent build to order rather than being prevented from
inventing it in the first place because a bunch of bogus process patents choked him when
he was a startup.

Software patents are a clear counterexample to your rubbish idea that the other side
of the argument is just making empty claims.

Patents exist to encourage inventors to disclose useful information, not to enable large
corporations to be bridge trolls.

The most frightening idea in all of those amicus briefs is the idea that medical procedures
might be patented. That's about the most horrific and destructive idea you could possibly
come up with. Doctors invent because they take their oath to Hypocrates seriously, not because
they identify with Crassius Maximus.

Re:Best quote (2, Insightful)

Grond (15515) | about 5 years ago | (#29033119)

You declare ownership of a new business process. Because of this you can prevent EVERYONE ELSE WHO DOES BUSINESS from benefiting from that new process.

Suppose someone invents a new mechanical device and patents it. The patentee can now prevent everyone else from making a business out of making, using, selling, offering to sell, or importing the patented device. In that sense, all patents declare ownership over a new business process. Business method patents are just applied economics in the same way that mechanical device patents are applied physics.

Others are also free to design around the patent by inventing their own substitute mechanical device or business method. Theirs may even be a superior device or method, which is better for everyone. And they have an incentive to do so: not only can they avoid infringement or licensing fees, but they can exclude or license to others in turn.

And of course, no one is actually forced to do anything. A patent is only valid if it claims something new, useful, and non-obvious, which means it can't cover anything that others were already doing. No one ever has to change their business in response to a patent: that which infringes if later anticipates if earlier.

Every patent allows the patent owner to cause trouble for everyone else for the next 17 years.

20 years from the date of filing.

The most frightening idea in all of those amicus briefs is the idea that medical procedures might be patented...Doctors invent because they take their oath to Hypocrates seriously, not because they identify with Crassius Maximus.

Medical procedures can already be patented, but practitioners and 'related medical entities' (e.g., the hospital, clinic, etc where the practitioner works) has a defense against infringement. Anyway, lots of doctors invent out of a sense of self interest as well as a desire to help people. I work with medical researchers on a regular basis, and the commercialization of their work is what ultimately funds the labs they work in.

Just FYI, it's "Hippocratic oath," and it's not sworn to Hippocrates but rather to various gods, particularly Apollo.

Re:Best quote (1)

russotto (537200) | about 5 years ago | (#29033277)

And of course, no one is actually forced to do anything. A patent is only valid if it claims something new, useful, and non-obvious, which means it can't cover anything that others were already doing.

Wrong, and you know better. It could be something a lot of people were already doing, but if they had not documented their process in a way the patent office understands as "prior art" (which, as we've learned, is pretty much nothing), the patent can STILL stand. 35 USC 273 states this EXPLICITLY: If I was using a process prior to the patent priority date, I can continue to use it -- but no one else, who was not using it, can do so. So something which is actually common practice can become monopolized by a business method patent (except for those users grandfathered in).

Re:Best quote (1)

Grond (15515) | about 5 years ago | (#29033447)

It could be something a lot of people were already doing, but if they had not documented their process in a way the patent office understands as "prior art" (which, as we've learned, is pretty much nothing), the patent can STILL stand.

The PTO, of course, limits itself to (easily accessible) printed publications, patents, and patent applications because those are all easy to use forms of prior art. But prior use is normally very easy for a defendant in a patent infringement suit to show except when the prior user decided to keep its use secret rather than disclose it in a patent application, printed publication, or through public use. The 'gap' that 35 USC 273 fills was an intentional motivator for the disclosure of otherwise secret business methods.

The 35 USC 273 prior use defense to business method patents is primarily meant to protect those whose prior use was secret. It comes up when Party A invents and uses a method secretly, then Party B invents and uses the method secretly, then Party A files for a patent more than a year later.

Normally Party B could use its prior use to invalidate the patent under 35 USC 102(b) except its use was not public. Party B could also invalidate the patent through disclosure in a printed publication or a patent application but again it chose to keep it secret. Because Party B kept the invention secret Party A gets the patent, although 35 USC 273 gives Party B a defense to patent infringement.

Re:Best quote (1)

russotto (537200) | about 5 years ago | (#29037705)

The PTO, of course, limits itself to (easily accessible) printed publications, patents, and patent applications because those are all easy to use forms of prior art.

There's numerous instances of the PTO not even paying attention to previous patents.

Party B could also invalidate the patent through disclosure in a printed publication or a patent application but again it chose to keep it secret.

There's a large gap between "secret" and "published"; a business method could be widely used without ever being formally disclosed in a printed publication.

In fact, some patent defenders have claimed that a process embodied in publicly available software isn't "published", and thus doesn't count as prior art.

Re:Best quote (1)

guruevi (827432) | about 5 years ago | (#29033407)

In my opinion, the problem is not that people have been patenting business processes but they have been patenting the end result, the very basics (one-click or how to make purchases on the internet) or the very starting point (the mathematics (algorithms) behind it) of processes.

HUGE difference (2, Interesting)

aepervius (535155) | about 5 years ago | (#29033677)

Suppose someone invents a new mechanical device and patents it. The patentee can now prevent everyone else from making a business out of making, using, selling, offering to sell, or importing the patented device. In that sense, all patents declare ownership over a new business process. Business method patents are just applied economics in the same way that mechanical device patents are applied physics.

The huge diference is that you cannot use a TRIVIAL mechanical process and patent it, or even use that patent to leverage money against ESTABLISHED other mechanical industry (Otherwise your mechanical device would not be an innovation but a copy of existing mechanical device). And this is the contention here : A lot of those business process patent are either trivial, already in use for decenny, copy of something existing but-with-computer or just plain mathematical application. You do not have such a problem with mechanical device patent.

Re:HUGE difference (1)

Grond (15515) | about 5 years ago | (#29038671)

The huge diference is that you cannot use a TRIVIAL mechanical process and patent it

The test of patentability is not "non-trivial" but rather new, useful, and nonobvious. In any event, there are lots of 'trivial' patents that aren't business methods. There are, for example, dozens of patents on coffee cup sleeves, toilet paper, plastic cups, etc. For the most part these are small, some would say 'trivial' improvements over the prior art. But as long as they are new, useful, and non-obvious, the fact that they represent only a very small improvement is not important.

A lot of those business process patent are either trivial, already in use for decenny, copy of something existing but-with-computer or just plain mathematical application. You do not have such a problem with mechanical device patent.

If the business method patents really are obvious then they are invalid under 35 USC 103. There is no need to have a specific exclusion of business method patents just become some (or even a lot) of business method patents should not have been granted. That's throwing the baby out with the bathwater.

A better approach is to remove the presumption of validity of all patents, which would make it much easier to invalidate bad patents and reduce the incentive to seek questionably valid patents.

Re:Best quote (1)

Xenographic (557057) | about 5 years ago | (#29036969)

> Medical procedures can already be patented, but practitioners and 'related medical entities' (e.g., the hospital, clinic, etc where the practitioner works) has a defense against infringement.

Assuming you're talking about the defense I think you're talking about, that defense doesn't apply to biotech patents, which makes it something of a trap.

Also, the medical procedures he's probably talking about are a reference to a prior story when the "procedure" was entirely mental with no post-solution activity whatsoever. Those opposed to that patent called it a "patent on medical knowledge" (and I, personally, feel that was an apt description).

Re:Best quote (1)

jedidiah (1196) | about 5 years ago | (#29039277)

> Suppose someone invents a new mechanical device and patents it. The patentee can now prevent everyone else

Yes. This is also a VERY REAL ISSUE.

The fact that a patent confers upon the "inventor" a 17 year license to be a d*ckhead is something that should be seriously considered in all of this.

This is why it should be really hard to get a patent.

The effort in getting a patent should reflect the amount of effort that the information in the patent represents.

Patents should be for the "hard stuff" not stuff that any ditz practicing in the field can come up with.

Otherwise patents contradict their legal justification for existing.

Re:Best quote (0)

Anonymous Coward | about 5 years ago | (#29033441)

I have a feeling that the idea that something must be clearly physical in order to be patentable is not going to survive much longer.

A garbage disposal clearly serves a useful purpose and it was invented. A garbage collection algorithm clearly serves a useful purpose and it was invented.

It doesn't seem logical to offer protections to one of these inventors but not the other.

With that said, my uninformed opinion is that the patent system needs more nuance. I think that the law needs to be amended to reflect the fact that determining compliance with patents on more abstract things is likely to be more expensive than it is for patents on more concrete things.

Of course, it's difficult to express nuance in law, but I think it's better to try than it is to cling to outdated technicalities the way most Slashdotters think we ought to. Things work out best when people make an attempt to accommodate people with interests that oppose their own rather than the more common attitude that you should do whatever it takes to stop the "evil" people.

Re:Best quote (1)

Timothy Brownawell (627747) | about 5 years ago | (#29033363)

But this ignores the constitutional requirement that it promote progress:

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;

Teles AG says:

Do you have a citation for this (that it's "patent laws are only valid if they promote progress" rather than something silly like "patent laws are assumed to promote progress"), that could maybe be added to Wikipedia? It says [wikipedia.org]

For example, the Court has determined that because the purpose of the clause is to stimulate development of the works it protects, its application cannot result in inhibiting such progress. However, there has been a countervailing strain in the courts that has promoted a varying view.

, but doesn't cite anything for either statement.

Hmm, I see a quote here [cellular-news.com] from a "KSR International v. Teleflex Inc., 04-1350" that seems to agree with sanity, ""The results of ordinary innovation are not the subject of exclusive rights under the patent laws," Justice Anthony Kennedy wrote in the court's opinion. "Were it otherwise patents might stifle rather than promote the progress of useful arts."". Do you know of any more, or where wikipedia might have gotten the "varying view" idea?

Re:Best quote (1)

Dhalka226 (559740) | about 5 years ago | (#29033693)

But this ignores the constitutional requirement that it promote progress

Is there such a requirement? Can you point to case law indicating one way or another? I could easily see there being rulings that "[t]o promote the progress of science and useful arts" is merely explanatory, and does not impose any requirements on the patent process.

Re:Best quote (0)

Anonymous Coward | about 5 years ago | (#29032761)

How about the If-this-wasn't-patentable-would-it-still-have-been-invented test. Remember, the goal is progress of science and the useful arts. Indeed, congress has a bad habit of overstepping their bounds in this regard.

35 U.S.C. 273 (4, Informative)

Anonymous Coward | about 5 years ago | (#29032391)

35 U.S.C. 273 refers to business method patents but *does not* specifically allow them. Whether 35 U.S.C. 273 approves of business method patents implicitly is left as an exercise for lawyers writing supreme court briefs...

Re:35 U.S.C. 273 (1)

Bigjeff5 (1143585) | about 5 years ago | (#29033127)

From 35 U.S.C 101:

Whoever invents or discovers any new and useful process... may obtain a patent therefor, subject to the conditions and requirements of this title.

From 35 U.S.C 273:

(a) DEFINITIONS.- For purposes of this section- ...
(3) the term "method" means a method of doing or conducting business...

(3) LIMITATIONS AND QUALIFICATIONS OF DEFENSE.- The defense to infringement under this section is subject to the following:

(A) PATENT.- A person may not assert the defense under this section unless the invention for which the defense is asserted is for a method.

While business methods are not explicitly defined in the patentable inventions code (that's code 101, part of which I posted above), the code itself is very short and doesn't explicitly define anything.

If the criteria you go by regarding what is patentable is whether or not it was specifically defined in the Patent Code, then the lightbulb was not patentable either, because electronic devices are not specifically defined in the Patent Code. See what I'm getting at? We have case law that supports electronic devices, but it can be struck down if determined un-Constitutional.

From the language in code 273, which is specifically for defense to infringement based on an earlier inventor, it seems pretty clear business methods were assumed to be patentable. They went so far as to include specific exclusions for cases when a business method specifically might NOT be patentable. Those exclusions by no means significantly reduce the patentability of business methods.

In other words, if the Bilski decision is determined to infringe over-much on the patentability of business methods, it will be struck down.

This is not a question of whether business methods are patentable, a third grader can read the patent code and see that they are. This is a question of whether or not the Bilski criteria for determining patentability of a business method infringes the U.S. Constitution by excluding a significant portion of business method patents.

Re:35 U.S.C. 273 (0)

Anonymous Coward | about 5 years ago | (#29035491)

I thought you had a pretty good argument until you mentioned the US Constitution. There is no Constitutional issue in Bilski. The case is strictly about statutory interpretation of 35 USC 101 and 35 USC 273.

Re:35 U.S.C. 273 (2, Insightful)

TakeyMcTaker (963277) | about 5 years ago | (#29033325)

Based on the section title, I would say that 35 USC 273 has nothing to do with patents being *allowed*:

http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_273.htm [uspto.gov]
"35 U.S.C. 273 Defense to infringement based on earlier inventor."

This section is defined by the words "defense to infringement", an act that has nothing to do with getting a patent granted. Since proof of this defense shows that prior-art existed for the patent in question, it should actually invalidate any patent that this defense is successfully used against. It looks like it was written to a rare edge-case where the prior-art was put in practice yet not publicly documented, but I would still argue that such a prior implementation would also show the patent's obviousness (if this defense is validated, that means the patent claims in question were obvious to someone other than the patent filer, at least one year before filing). This whole section is written specifically to get businesses out of court who are determined to have "infringed a patent" at least one year BEFORE it was filed, without ever having contacted the filer. I don't see any way any court (or even a prejudiced but reasoned lawyer) could ever construe anything under a title like this to determine what kinds of patents the USPTO should *accept*. Being able to avoid infringement claims is the opposite of being able to have a patent granted.

Re:35 U.S.C. 273 (1)

Xenographic (557057) | about 5 years ago | (#29037099)

> 35 U.S.C. 273 refers to business method patents but *does not* specifically allow them.

The summary probably should've said that the section "explicitly allows for" them, because it mentions defenses against them (which would be unnecessary if those patents didn't exist and weren't presumed to be patentable).

Any misunderstanding probably came from this:

2. Whether the Federal Circuitâ(TM)s âoemachine-or-transformationâ test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect âoemethod[s] of doing or conducting business.â 35 U.S.C. Â 273.

More amicus briefs to come, probably (5, Informative)

Grond (15515) | about 5 years ago | (#29032589)

The 44 amicus curiae briefs that have been filed so far are only those submitted in support of the Petitioners (i.e., the inventors Bilski and Warsaw) or in support of neither party. Amicus briefs in support of the Respondent (i.e., the Patent Office) will be submitted after the Respondent's merits brief is submitted, which will occur on or before September 25. Once the merits brief is submitted, amici have 7 days to submit briefs in support of the Respondent.

While I don't expect there to be quite the same volume of briefs supporting the PTO as the Petitioner, there will probably be at least a few.

Here is the the Supreme Court docket for the case [supremecourtus.gov] .

Full Disclosure: I work for the team [hoover.org] that wrote the brief of Dr. Ananda Chakrabarty [hoover.org] (he of the Diamond v. Chakrabarty Supreme Court case that established the patentability of genetically modified organisms).

Anonymous Coward (3, Interesting)

Anonymous Coward | about 5 years ago | (#29032593)

FYI -- the Bilski patent application is not considered a "software" patent application. Instead, it is considered a pure "business method" (i.e., a method of performing some business-related task that it not necessarily tied to any specific hardware, e.g., a computer).

If the Supreme Court strikes down the patent under 101, this particlar fact pattern and the resultant decision will not necessarily lead to the death of software patents. However, if the Supreme Court determines that that Bilski patent application is patent eligible, then software will be patentable unless Congress eliminates software patents by law. The reason for this is that pure business methods are considered closer to "abstract ideas," which are not patentable, than software patents since software is always used on a machine (i.e., a computer).

The whole case could turn on the 35 U.S.C. 273 issue. The Supreme Court can rely on some very technical rationale for deciding a case, and one of these is called "statutory construction." One such rule is that a statute will be interpreted so as to be internally consistent such that a particular section of the statute shall not be divorced from the rest of the act. 35 U.S.C. 273 refers to a defences to infringement with regard to business methods. It would appear to be internally inconsistent to have a "business method" be nonstatutory under 35 U.S.C. 101 while still provide a defense for someone infringing a business method. If one cannot patent a business method, then one cannot infringe a business method. If one cannot infringe a business method, there is no need for a defense against infringement.

Re:Anonymous Coward (1, Informative)

Darkness404 (1287218) | about 5 years ago | (#29032833)

In the constitution:

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 it can be proven (and I'm sure it can) that software patents do not promote the progress of science and arts, then this line allows them to basically re-work patent law. Business method patents, software patents and other non-tangible or non-applied patents really haven't done a single thing to promote the progress of science and useful arts. So with that one line, they can perhaps argue that it goes against the constitution to implement patent/copyright law that goes against that. However, its effect might be limited by the annoying "necessary and proper" clause.

Re:Anonymous Coward (1)

russotto (537200) | about 5 years ago | (#29033319)

If it can be proven (and I'm sure it can) that software patents do not promote the progress of science and arts, then this line allows them to basically re-work patent law. Business method patents, software patents and other non-tangible or non-applied patents really haven't done a single thing to promote the progress of science and useful arts.

Forget it; this argument is a loser. The courts will defer to Congress on that issue. Of course, Congress didn't explicitly authorize the business method patents (the courts themselves did), so they could strike them down on other grounds (but probably not; it makes too much sense). But not on that one.

Re:Anonymous Coward (1)

Theaetetus (590071) | about 5 years ago | (#29037881)

In the constitution:

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 it can be proven (and I'm sure it can) that software patents do not promote the progress of science and arts, then this line allows them to basically re-work patent law.

People have been claiming they can prove this for twenty years, but no one has. And in the past twenty years, we've had astounding innovation in information technology. You've got a really tough road to climb here.

Plus, as others have pointed out: when it comes down to a fact-dependent issue like this, the Court - which has limited investigatory abilities - will defer to Congress. If Congress legislated business method patents (which they appear to have done so in 35 USC 273), then they must have felt that business method patents promoted the progress of the useful arts. If they don't, then the proper forum to change that is the legislature, not the Court.

Business method patents, software patents and other non-tangible or non-applied patents really haven't done a single thing to promote the progress of science and useful arts

First, [citation needed].
Second, software patents are certainly applied. If you do the same steps as the patent calls for, but with a pen and paper, you're not infringing, because your brain is not a computing device as it is almost always defined in the patent specification. So, if the claims require the process to be performed by a computing device, they're applied and tangible.

Re:Anonymous Coward (1)

amh131 (126681) | about 5 years ago | (#29039287)

I'm not going to argue about the software patents being applied -- I agree, they certainly are! But I will take exception to the notion that my brain isn't a computing device and even if it isn't, then the pencil and paper I'm using *definitely* is. This is the fundamental problem that I have with software patents; there are many, many different ways to create a computing device and it seems like a software patent applies to all of them, including the pencil and paper. Otherwise, avoiding the software patent would be trivial since it would have to enumerate all the exact computing devices to which it applies. There are *many*, *many* different computing devices -- pencil & paper, mechanical, optical, electrical, chemical maybe quantum etc. And those are very, very broad strokes! Is a stack architecture different than a register-to-register? What about MIPs vs Alpha (RIP)? Where do you draw the line?

Re:Anonymous Coward (1)

russotto (537200) | about 5 years ago | (#29033239)

The whole case could turn on the 35 U.S.C. 273 issue. The Supreme Court can rely on some very technical rationale for deciding a case, and one of these is called "statutory construction." One such rule is that a statute will be interpreted so as to be internally consistent such that a particular section of the statute shall not be divorced from the rest of the act. 35 U.S.C. 273 refers to a defences to infringement with regard to business methods. It would appear to be internally inconsistent to have a "business method" be nonstatutory under 35 U.S.C. 101 while still provide a defense for someone infringing a business method. If one cannot patent a business method, then one cannot infringe a business method. If one cannot infringe a business method, there is no need for a defense against infringement.

They could do that. Or they could note that 35 U.S.C. 273 was passed as a response to an earlier, erroneous, court ruling that business methods were patentable, and thus that rule doesn't apply. All depends on what the justices want the final ruling to be.

Re:Anonymous Coward (0)

Anonymous Coward | about 5 years ago | (#29036875)

They could do that. Or they could note that 35 U.S.C. 273 was passed as a response to an earlier, erroneous, court ruling that business methods were patentable, and thus that rule doesn't apply. All depends on what the justices want the final ruling to be.

"They could do that. Or they could note that 35 U.S.C. 273 was passed as a response to an earlier, erroneous, court ruling that business methods were patentable, and thus that rule doesn't apply. All depends on what the justices want the final ruling to be."

Congress has the last say as to what constitutes statutory subject matter. Remember your basic governent/civics class in high school -- Congress make the laws and the courts interpret the laws. The Supreme Court can declare what is patentable or not, but within the confines of what Congress has written in the laws.

In passing 35 USC 273, Congress acceded to that prior decision which stated that business methods were patentable. Congress could have just as easily stated that "business methods are not patentable," but they did not. FYI -- there have been many instances in which Congress has enacted a law in order to overcome a decision by the Supreme Court

The Supreme Court loves to decide cases on technicalities -- it makes the decision that much easier, and it puts the onus on Congress to change the law, if they want. The "technicality" in this case would be that based upon one of the canons of statutory construction, which is that the statutes have to be internally inconsistent. On that basis, they can easily say that the Bilski claims are patetable and easily dispose of the case.

The Supreme Court is not free to ignore the law. Unless they find that particular section of the law is unconstitutional, which really isn't an issue that has been raised by any of the parties, they must abide by it. As such, the Supreme Court cannot simply determine that the "rule doesn't apply." The Supreme Court actually has a lot less flexbility than people think.

Re:Anonymous Coward (1)

russotto (537200) | about 5 years ago | (#29037815)

Congress has the last say as to what constitutes statutory subject matter. Remember your basic governent/civics class in high school -- Congress make the laws and the courts interpret the laws. The Supreme Court can declare what is patentable or not, but within the confines of what Congress has written in the laws.

Here in the real world, the Supreme Court has plenty of wiggle room, which is one reason most Supreme Court decisions are not unanimous.

In passing 35 USC 273, Congress acceded to that prior decision which stated that business methods were patentable.

The Supreme Court could follow that line of reasoning. Or it could follow a line of reasoning which says that because 35 USC 273 does not contain any language explicitly adding business methods to patentable subject matter, that Congress did not intend to modify the meaning of 35 USC 101, so the original meaning of 35 USC 101 stands. Or it could follow a line of reasoning that while the machine-or-transformation test does rule out many business method patents, that some might stand the test, and that therefore 35 USC 273 is not rendered meaningless by the test.

The Supreme Court does like to decide cases on technicalities (sometimes, anyway), but they have a wide choice in _which_ technicalities they choose.

Honestly and genuinely ..... (1)

3seas (184403) | about 5 years ago | (#29032657)

..... Software is NOT a patentable subject matter [abstractionphysics.net]

Imagine some simple algebraic calculation being patentable because the base math numerical system being used is the roman numeral system, which is not simply and directly capable of doing such a calculation.

Now Imagine when software patents will be look back on in hindsight of a corrected navigational mapping software development system.
How are those supporting software patents today, going to be viewed tomorrow? As barbaric?

Re:Honestly and genuinely ..... (1)

ceoyoyo (59147) | about 5 years ago | (#29032801)

I think the problem is that too many obvious software patents have been granted. Suppose Cooley and Tukey had been the first to figure out the fast Fourier transform (they weren't, but suppose they were). Wouldn't they have been deserving of a patent, had they wanted one?

Please tell me... (1, Interesting)

Darkness404 (1287218) | about 5 years ago | (#29032799)

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;

Can someone please tell me how software patents are promoting the progress of science/useful arts? There are -many- countries who don't have software patents yet software still comes out of those countries.

There is not a positive thing that has come out of software patents. The quality of software hasn't improved, patent trolls are numerous, oh and because of software patents there are many incompatibilities in software that lead to many, many problems.

Re:Please tell me... (1)

Grond (15515) | about 5 years ago | (#29032923)

There is not a positive thing that has come out of software patents.

Google was able to rise to dominate search and challenge Microsoft primarily because of its numerous software patents. Without those patents, Microsoft, Altavista, Yahoo, or any other company could have used Page Rank and other algorithms covered by Google's dozens of software patents. Only part of Google's success is its good web design and marketing savvy. A huge part is the fact that it just plain does search better than almost anybody else.

Remember: Microsoft rose to dominance at a time when software was not patentable. That's one of the reasons why Embrace, Extend, Extinguish worked so well: without software patents there was nothing to stop Microsoft from embracing the new inventions of others.

The quality of software hasn't improved

Software quality (as in lack of bugs, bloat, etc) is not something that software patents address, at least not directly. What they address is the invention and commercialization of new features.

patent trolls are numerous

They are not particularly numerous, nor are they particularly unique to software. Only about 3000 patent infringement cases are filed in the US each year, and only about 300 of those go to trial. Trolls are a very small subset of that and hardly numerous. Furthermore, the existence of trolls has more to do with the presumption of patent validity and the inability of the PTO to find every piece of prior art than it does the patent eligibility of software implemented inventions.

because of software patents there are many incompatibilities in software that lead to many, many problems.

That's a very strong claim. Do you have evidence of it?

Can someone please tell me how software patents are promoting the progress of science/useful arts?

Copyright protection of software only extends to the specific implementation (i.e., the literal source and machine code). Patents protect the idea behind the implementation. This is an important distinction.

Say an inventor comes up with a brilliant new algorithm for efficiently and accurately modeling fluids on a computer. There are many possible applications: computer graphics, weather simulation, etc. The inventor would like to maximize his or her profit from the invention. Now, with copyright the inventor could write a program for each and every possible use and form a company to sell copies as copyrighted programs. But that's an awful lot of work for one person, especially if the inventor is a good inventor but a bad business person or doesn't know much about some of the possible application domains.

With software patents, the inventor can patent the invention and then either sell the patent to an established company or license the patent to different companies for different uses: one company gets the rights to use it in computer games, another to use it in weather simulation, etc. This lets each company best use its comparative advantage, which maximizes the benefit to consumers while minimizing inefficiencies.

Now you might say the inventor could keep the invention a trade secret and give it to the companies under a non-disclosure agreement. That's true, but then the public would never find out about the invention. The beauty of patents is that they let inventors and commercializers profit from an invention while still disclosing the invention to the public, which can freely use the invention after the patent expires. This is all true in software just as it is in more traditional fields of invention. Software is not special, and I say that as someone with both bachelor's and master's degrees in computer science.

Full Disclosure: I work for the team [hoover.org] that wrote the amicus brief of Dr. Ananda Chakrabarty [hoover.org] (he of the Diamond v. Chakrabarty Supreme Court case that established the patentability of genetically modified organisms).

Re:Please tell me... (3, Insightful)

jedidiah (1196) | about 5 years ago | (#29033007)

> Say an inventor comes up with a brilliant new algorithm for efficiently and accurately modeling
> fluids on a computer. There are many possible applications: computer graphics, weather simulation,
> etc. The inventor would like to maximize his or her profit from the invention.

This presumes that the crass entrepeneur is the driver of innovation in software.

Usually it's the exact opposite sort of person that drives software or scientific innovation. The
current patent regime threatens to mire this sort of person in a quagmire of pre-existing and largely
trivial patents. Even if this person were a genuine entrepenuer they would have to deal with the legal
minefield of patents and quite likely would be in a very weak position to deal with hostile potential
competitors with large patent portfolios to club him with.

Necessity is the mother of invention, not greed.

Re:Please tell me... (1, Informative)

Grond (15515) | about 5 years ago | (#29033333)

This presumes that the crass entrepeneur is the driver of innovation in software.

The PageRank algorithm on which the Google empire rests was invented by Larry Page and Sergei Brin. They published the algorithm, patented it, and went on to become incredibly successful 'crass entrepreneurs.' Google owns dozens of software patents on key technologies such as its Map-Reduce implementation and AdWords. Few would say that Google is not a driver of innovation in software.

Usually it's the exact opposite sort of person that drives software or scientific innovation.

That's a fairly strong claim. Would you care to provide evidence that innovators are not motivated by financial reward, which is typically either received directly through their own crass entrepreneurship or indirectly through the commercialization of their innovations by others?

Who, in your view, is driving innovation in software? It's not open source: A study of 500 mature, actively-developed open source projects [mit.edu] found that only 1% of them included a new technology and addressed a new market or user need.

Necessity is the mother of invention, not greed.

Then why have a patent system at all?

Re:Please tell me... (3, Insightful)

russotto (537200) | about 5 years ago | (#29033371)

The PageRank algorithm on which the Google empire rests was invented by Larry Page and Sergei Brin. They published the algorithm, patented it, and went on to become incredibly successful 'crass entrepreneurs.' Google owns dozens of software patents on key technologies such as its Map-Reduce implementation and AdWords. Few would say that Google is not a driver of innovation in software.

Google's patented search algorithm is not a driver of innovation in software. They have carved out their own niche in searching, in which they stand alone; no one builds on their work.

And if they really have a patent on MapReduce, that's a bad one too. Distributed software has used the general idea since before Google existed. I haven't read their actual claims, however.

Re:Please tell me... (1)

jedidiah (1196) | about 5 years ago | (#29039323)

> Would you care to provide evidence that innovators are not motivated by financial reward

The two grad students you mentioned.

They "invented first" as part of the academic process and then later created a cash cow.

An painful self-nuke on your part.

Re:Please tell me... (1)

DaveV1.0 (203135) | about 5 years ago | (#29036851)

This presumes that the crass entrepeneur is the driver of innovation in software.
Usually it's the exact opposite sort of person that drives software or scientific innovation.

Please prove that statement.

Please bear in mind that most people who make something are looking to make money from it. Even those that do so for altruistic reasons need to support themselves and thus the ability to earn money via patents and copyrights allow those same people to go on to develop more and better items while supporting themselves on money earned from said patents and copyrights.

Re:Please tell me... (1)

jedidiah (1196) | about 5 years ago | (#29039385)

> Please prove that statement.

Who invented the first home computer?
Who invented the spreadsheet?
Who invented Unix?
Who invented the GUI?
Who invented the Web Browser?

Even the "flagship" example of Google is bogus.

People need stuff. They will make stuff because they need it.

Some problems are really hard or require a great deal of creativity.

Others are essentially stolen (Ford, Edison) or represent the state of the art (Edison).

What a joke it would be if someone went back in time and forced Ford to license a patent on the assembly line.

Re:Please tell me... (1)

stephanruby (542433) | about 5 years ago | (#29033465)

Microsoft rose to dominance at a time when software was not patentable. That's one of the reasons why Embrace, Extend, Extinguish worked so well:

As opposed to now? I've got news for you, most software companies are still very wary of Microsoft. That's one of the reasons there is so much push to develop for the web using open standards, so as not to get extinguished by Microsoft.

That's true, but then the public would never find out about the invention.

That's a pretty absolute assertion you're making. Do you really believe that software patents are the only way knowledge of software inventions gets transferred/created in our society? And do you really believe that the only thing protecting Google or Amazon from being copied by Microsoft and everybody else is their patent portfolio? Somehow, I doubt that. I really doubt that.

This is all true in software just as it is in more traditional fields of invention. Software is not special...

You're speaking to the wrong crowd. Most of us believe patents in general are a very bad idea (not just patents on one-click buttons, and not just patents on math formulas, although there are various degrees of differences even between software patents).

Re:Please tell me... (1)

Grond (15515) | about 5 years ago | (#29038867)

That's a pretty absolute assertion you're making. Do you really believe that software patents are the only way knowledge of software inventions gets transferred/created in our society?

That's not what I asserted. I asserted that if an algorithm is kept a trade secret and the source code closed then the public will never find out about it (barring, of course, illegal disclosure of the trade secret or independent discovery by another party that then discloses it).

And of course software patents are not the only way knowledge of software inventions gets transferred. Open source and academic publications are two other routes. The problem with the former is that open source is not particularly innovative. A study of 500 mature, actively developed open source projects [mit.edu] that only 1% of them contained a new technology and addressed a new market or new user need. Open source is good at providing good, cheap software, but it is not particularly good at innovating.

Academic publication is all well and good, but ultimately someone has to pay for labs and salaries. Software patents step in as a way for academic discoveries to be commercialized. For example, some of the fundamental patents underlying Google are owned by Stanford, which is where Page and Brin invented PageRank and other related technologies. Google pays Stanford a non-trivial royalty for the exclusive license to those patents. Thus, the patents on successfully commercialized technology fund more academic research.

Re:Please tell me... (0)

Anonymous Coward | about 5 years ago | (#29037157)

All very well IF the patent disclosure does actually disclose the necessary enabling methods and supporting information. As someone who has read _thousands_ of patents over the years, I am willing to assert that the disclosure requirement is rarely met to any reasonable degree, and certainly not to the point where the patent document as such provides the advantages proposed in the 'disclose in exchange for protection' deal. If patent authors were actually held to a decent standard of disclosure, the position would be more defensible.

Re:Please tell me... (1)

Xenographic (557057) | about 5 years ago | (#29037173)

> Google was able to rise to dominate search and challenge Microsoft primarily because of its numerous software patents. Without those patents, Microsoft, Altavista, Yahoo, or any other company could have used Page Rank and other algorithms covered by Google's dozens of software patents. Only part of Google's success is its good web design and marketing savvy. A huge part is the fact that it just plain does search better than almost anybody else.

Errr... the difference between idea and execution is a large one that many people seem to forget.

Yes, Microsoft *could* copy PageRank (and do we really know that they haven't? who knows what secret algorithms Bing! uses, except that the execution sucks?), but they can't copy all the Google employees, or the sense of goodwill, or the business savvy in the search arena.

I think that too many people underestimate the value of being able to reduce ideas to practice. I mean, if I gave you Google's patents and some venture capital, but on the other side, I put the Google team (who had to invent new algorithms), who do you think would make the better search engine? I know who I would bet money on...

Re:Please tell me... (0)

Anonymous Coward | about 5 years ago | (#29033001)

> Can someone please tell me how software patents are promoting the progress of science/useful arts?

They don't.

They help lawyers make money and allow businesses to "compete" with each other by suing the guy with the better product out of existence. You might have heard of the way Mattel sued the people who make Bratz dolls and won an enormous judgment against them because an employee who left Mattel designed dolls that look somewhat like his earlier designs, which Mattel owns. Mattel, in effect, has one less competitor. Or, in the case of NPEs (Non-Practicing Entities--AKA Patent Trolls), to sue the people who actually make useful products out of existence.

There was recent research, cited in a previous article, showing that patents are actually harmful to measures of both innovation and social utility according to a model the researchers conducted. As such, it would seem that narrower patents (or no patents) would be the most useful way to promote progress. After all, ideas are cheap these days. The ability to reduce ideas to practice is what counts. But the only thing people care about is money.

I really wish, some day, that people would realize that making complex rules imposes a cost on society. Sometimes, these costs are higher than they're worth. Like with complex taxes that cost us either ridiculous amounts of time or expensive trips to a tax preparer, sometimes the costs aren't worth the benefits and should be reexamined. I often wish that the legislatures had to focus on making the laws simpler, rather than just making up all kinds of even crazier rules to cover for all the crazy rules they've already made.

- IDBIIP

Why is the focus on patentability of processes? (2, Insightful)

Wolfier (94144) | about 5 years ago | (#29033437)

I'd rather see submarine patents be got rid of or patent transferability restricted to get rid of the patent trolls and the "patent holding companies".

At least people who come up with these processes, come up with something. The trolls are just in the business of collecting patents and wait for their chance to cash in.

Re:Why is the focus on patentability of processes? (1)

Grond (15515) | about 5 years ago | (#29033491)

I'd rather see submarine patents be got rid of

Submarine patents are no longer a serious issue. Patents now expire 20 years from the date of filing, so keeping a patent application stuck in the patent office forever is a good way to end up with an expired patent, which is not particularly useful. Furthermore patent applications are now published after 18 months, so the world is put on notice fairly early on in the patent application process.

There may be a few submarines left from the pre-June 8, 1995 days, but as an ongoing problem they are nonexistent.

Re:Why is the focus on patentability of processes? (1)

ActusReus (1162583) | about 5 years ago | (#29035157)

Uh... because the Bilski patent was a process patent, perhaps? You want the Supreme Court to go ahead and address abortion or affirmative action with this case while they're at it?

Ya gotta love (1)

pugugly (152978) | about 5 years ago | (#29034617)

"Chakrabarty (08-964 Chakrabarty.pdf) Brief by Scott Kieff and Richard Epstein argue that patent rights operate "like a beacon in the dark" to start conversations between innovative entities and potential users."

"like a beacon in the dark . . . leading the gullible across an unmapped minefield, held aloft by cannibals intent staking your crippled body to the ground and eating your remains (with or without your being dead first)." might be a better description there - {G}

Pug

A historic perspective (0)

Anonymous Coward | about 5 years ago | (#29035193)

Patents were meant to protect the inventor from someone stealing his/her invention.

Now they're being used by companies that want to increase their earning without increasing their expenses, they do this by killing the competition by abusing the patent law.

What good has ever come from allowing companies to own a patent? They hire inventors, and throw money at building their inventions. Now:

In all honesty, contracts could easily be written such that an inventor binds him-/herself to licensing all invented products while working for the company, to the company, for at least a 15 year period per invention, in return for a monthly paycheck. The actual period could be regulated by a maximum defined in law, probably depending on which market it applies to, to prevent the "for the lifetime of the inventor" loophole.

IOW, the law could simply prescribe that it is illegal for a company to hold a patent, and let the market sort the rest out as a licensing issue. When only an individual person can own what (s)he invented, all of the problems we're seeing goes away, because individual inventors wants to see their invention used for the general benefit of society as much as they want to make a buck.

(As opposed to companies - see second paragraph above.)

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