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US Supreme Court Skeptical of Business Method Patents

kdawson posted more than 4 years ago | from the feeling-bilski dept.

Patents 160

Trepidity writes "The US Supreme Court held oral argument Monday in Bilski, a business-methods patent case that might also have important implications for software patents (We have previously discussed the case several times). The tone of the argument appears to be good news, as the justices were very skeptical of the broad patentability claims. They even brought up a parade of absurd hypothetical patents quite similar to the ones Slashdotters tend to mention in these kinds of debates. Roberts surmised that 'buy low, sell high' might be a patentable business method, Sotomayor wondered if speed-dating could be patentable, Breyer questioned whether a professor could patent a lesson plan that kept his students from falling asleep, and Scalia brought up the old-time radio soap opera Lorenzo Jones, featuring a hare-brained inventor with delusions of getting rich." Patently O has good blow-by-blow coverage of the day's proceedings. Official argument transcripts will be up soon, they say.

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Hope (3, Insightful)

Anonymous Coward | more than 4 years ago | (#30044542)

Oh, good. We may yet have some hope.

Re:Hope (1)

gyrogeerloose (849181) | more than 4 years ago | (#30044822)

Oh, good. We may yet have some hope.

If you do, you'll owe me some royalties. I have a patent on "hope."

Re:Hope (1)

Svartalf (2997) | more than 4 years ago | (#30044914)

Not if they invalidate that class of patents, you don't....

Re:Hope (1)

Canazza (1428553) | more than 4 years ago | (#30044994)

You can't invalidate hope! *lobbies*

Re:Hope (2, Funny)

kimvette (919543) | more than 4 years ago | (#30046804)

The current and last three presidential administrations already did!

Re:Hope (0)

Anonymous Coward | more than 4 years ago | (#30046318)

Don't hold your breath.My royalty suit is still hung up in litigation on my "(X) and Change" improvement patent. I'll let you know if we ever see anything from it.

Re:Hope (1)

sqldr (838964) | more than 4 years ago | (#30047764)

I'm two steps ahead of these guys. I already have a patent on making a patent on making a patent on making a parade of patents in a patent lawsuit, then I patented the process. That makes me good for the next 3 iterations of suggested slashdot patents.

So, You'd like to patent your business model? (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#30044548)

How competitive of you....

The US (0, Troll)

Anonymous Coward | more than 4 years ago | (#30044556)

The US, the worlds largest quasi capitalism. Why won't anybody understand that patents and capitalism don't mix?

I patent the discussion of patents (0)

MeNotU (1362683) | more than 4 years ago | (#30044566)

It's a solid business method!

Re:I patent the discussion of patents (0)

noundi (1044080) | more than 4 years ago | (#30044572)

I patent patenting for profit!

Re:I patent the discussion of patents (1)

Lord Lode (1290856) | more than 4 years ago | (#30045440)

I patent replying to /. posts!

Re:I patent the discussion of patents (1)

noundi (1044080) | more than 4 years ago | (#30046864)

Sorry you're infringing on my patent, unless your patent is for non-profit purposes in which case I'm ok with it.

Let freedom ring! (1)

duckintheface (710137) | more than 4 years ago | (#30044574)

I think Thomas Jefferson patented the idea of Liberty .... didn't he?

Re:Let freedom ring! (2, Interesting)

commodore64_love (1445365) | more than 4 years ago | (#30044674)

Jefferson called the Supreme Court a bunch of Oligarchs.

9 Old Men that run the country.

Re:Let freedom ring! (0)

Anonymous Coward | more than 4 years ago | (#30044726)

Jefferson called the Supreme Court a bunch of Oligarchs.

He also used to call his neighbor Archie a honky.

Re:Let freedom ring! (0, Troll)

binarylarry (1338699) | more than 4 years ago | (#30045832)

Yeah well, he had a bad case of jungle fever.

Re:Let freedom ring! (1)

KevinKnSC (744603) | more than 4 years ago | (#30047018)

Except for Jefferson it would have been six or seven old men that run the country.

Re:Let freedom ring! (1)

ravenshrike (808508) | more than 4 years ago | (#30047172)

He swiped it from Locke.

Someone should patent (4, Funny)

MikeRT (947531) | more than 4 years ago | (#30044576)

the process of creating obfuscated reports about client billing practices intended to hide nickel-and-diming the customer to death. That would be a shot across the bow of lawyers, doctors, contractors and the banking industry in one fell swoop! Imagine the lobbying then to get rid of business method patents!

Re:Someone should patent (1)

Ozlanthos (1172125) | more than 4 years ago | (#30046480)

Don't forget health care!

-Oz

"You thought we would mess it up?" (5, Insightful)

jkrise (535370) | more than 4 years ago | (#30044596)

I enjoyed this bit of the exchanges the most:

**************
MR. STEWART: Well, first of all the only ruling that we're -- backtrack a bit,
to say, we oppose, sir, in this case because we recognize that there are
difficult problems out there in terms of patentability of software innovations
and medical diagnostics.

JUSTICE KENNEDY: You thought we -- you thought we would mess it up.

MR. STEWART: I didn't think --

(Laughter.)

MR. STEWART: We didn't think the Court would mess it up. We thought that this
case would provide an unsuitable vehicle for resolving the hard questions
because the case doesn't involve computer software or medical diagnostic
techniques, and therefore, we thought the Court would arrive at the position
that I think, at least some members are feeling that you have arrived at, that
you will decide this case, and most of the hard questions remain unresolved.
And, frankly, we think that's true.
*******************

Can someone explain to me:

1. Why the govt. does not want to resolve the mess that is software patents, now
that a golden opportunity has been presented?

2. Why is it the job of the govt. deputy solicitor to uphold the political
interests of the US of A rather than the legality of the issue at hand? (there
is an opinion here that software patents help the USA in World Trade.... which
seems very dubious to me at any rate).

3. How is it technically feasible, if at all, to make a ruling on the Business
Methods case without influencing whether software can or cannot be patented?

I think the govt. (read deputy solicitor) seems very worried that many lawyers
and patent powerhouses would come crashing down as a result of this ruling.

Re:"You thought we would mess it up?" (4, Interesting)

Aladrin (926209) | more than 4 years ago | (#30044642)

1) Who says they don't? They may have more immediate issues to attend to, however. Of course, they may also not feel they are a 'mess', as you do.

2) Sometimes people worry about more than just their immediate job. Even if his job is only to worry about the legal aspects, that doesn't mean he -has- to ignore all the political and economic aspects of the issue.

3) Software patents are not business method patents, no matter how they were born. They have become separate issues. It's possible they could be linked and come down together, but it's also possible that the link will sever and software patents will have to be dealt with separately.

Re:"You thought we would mess it up?" (2, Insightful)

John Hasler (414242) | more than 4 years ago | (#30044650)

> Why is it the job of the govt. deputy solicitor to uphold the ...
> interests of the US of A...

Because that is his job.

Re:"You thought we would mess it up?" (1, Informative)

commodore64_love (1445365) | more than 4 years ago | (#30044766)

It is? Hmmm. I can not lay my hand on any part of the People's Constitution that grants the United States the power to uphold business interests rather than obey the law. On the contrary the Supreme Law says that power, if it exists, belongs to the State Legislatures.

Re:"You thought we would mess it up?" (4, Informative)

jcarkeys (925469) | more than 4 years ago | (#30044880)

It's kinda clear, actually. Article I, Section 8, Clause 8. "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 [wikipedia.org] ".
If Congress wants to regulate patents in a way that helps big business, then they can.

Re:"You thought we would mess it up?" (2, Insightful)

Svartalf (2997) | more than 4 years ago | (#30045060)

So long as it "Promotes the progress of Science and useful Arts", to which, I will respond that it largely doesn't these days the way it's being done.

Re:"You thought we would mess it up?" (1, Insightful)

spidercoz (947220) | more than 4 years ago | (#30045788)

to which I will reply, nothing this country has done in the last decade "Promotes the progress of Science and useful Arts"

Re:"You thought we would mess it up?" (-1, Troll)

Anonymous Coward | more than 4 years ago | (#30046450)

that's bullshit and you know it

Re:"You thought we would mess it up?" (1, Offtopic)

spidercoz (947220) | more than 4 years ago | (#30047178)

First, no, that's why I said what I said. Second, wtf? I go trolling intentionally and get modded insightful. I state an honest, if cynical, opinion and get trolled? I'm starting to hate this site, it's dominated by fucking morons. Yes, THAT was a troll. Do your worst, assholes.

Re:"You thought we would mess it up?" (4, Insightful)

Theaetetus (590071) | more than 4 years ago | (#30046814)

So long as it "Promotes the progress of Science and useful Arts", to which, I will respond that it largely doesn't these days the way it's being done.

To which I will counter that the preamble should be read as non-limiting, just as it was in DC v. Heller.

Preambles in the Constitution (2, Interesting)

tepples (727027) | more than 4 years ago | (#30046874)

So long as it "Promotes the progress of Science and useful Arts", to which, I will respond that it largely doesn't these days the way it's being done.

The Supreme Court has traditionally interpreted preambles like "promote the general Welfare" and "promote the Progress of Science and useful Arts" as illustrative and not limitative, much like the list of purposes in the fair use statute (17 USC 107), and deferred to the Congress on their interpretation. Or at least that's the impression I got from the Court's opinion in Eldred v. Ashcroft.

Re:Preambles in the Constitution (1)

Dishevel (1105119) | more than 4 years ago | (#30047390)

Or even my personal favorite. A well regulated militia .... :)

Re:"You thought we would mess it up?" (0)

Anonymous Coward | more than 4 years ago | (#30046056)

It is? Hmmm. I can not lay my hand on any part of the People's Constitution that grants the United States the power to uphold business interests rather than obey the law. On the contrary the Supreme Law says that power, if it exists, belongs to the State Legislatures.

The office of the Solicitor General was set up by Congress, as a sub-division of the Attorney General. This was sometime in the late 1800. Which office is set up again, by Congress. Back in 1789.

I think it's a bit late to argue that the United States doesn't have the right to representation in the courts, but if you want to make your case, go right ahead.

Now if you want to argue that the position taken is wrong, you can do that anytime, just send your Congresspeople and the President a letter. Your concerns will be addressed in due time.

Re:"You thought we would mess it up?" (5, Interesting)

commodore64_love (1445365) | more than 4 years ago | (#30044724)

I think you read too much into that exchange. A short while ago the Washington D.C. gun ban fell after having stood for over 3 decades. Why did it take so long? Because the pro-gun lobby was waiting for a case that was favorable to their cause. They didn't want to bring just any case - they wanted the "perfect" case where they could be certain of the outcome (i.e. SCOTUS sides with the gun owner).

I think Mr. Stewart is following the same thought process when he says, "We thought that this case would provide an unsuitable vehicle..." He would have rather waited for a later case where the outcome would be in his favor (pro-patent rights). Instead he got this one.

Re:"You thought we would mess it up?" (0, Flamebait)

nomadic (141991) | more than 4 years ago | (#30045744)

I think you read too much into that exchange. A short while ago the Washington D.C. gun ban fell after having stood for over 3 decades. Why did it take so long? Because the pro-gun lobby was waiting for a case that was favorable to their cause. They didn't want to bring just any case - they wanted the "perfect" case where they could be certain of the outcome (i.e. SCOTUS sides with the gun owner).

The NRA was petrified about Heller and didn't want to go for it because they thought the risks were too great. It took a non-gun-owning lawyer to actually start the case, and the NRA tried to torpedo it. Of course they took credit for it after it passed.

Re:"You thought we would mess it up?" (1)

bendodge (998616) | more than 4 years ago | (#30046274)

That's a pretty big claim. Let's have some citations, please.

Re:"You thought we would mess it up?" (4, Informative)

nomadic (141991) | more than 4 years ago | (#30046508)

Re:"You thought we would mess it up?" (2, Insightful)

BenEnglishAtHome (449670) | more than 4 years ago | (#30046712)

I'm not home and can't refer to my research at the moment or I'd be happy to do it for you, but feel free to do some googling for yourself. You won't have to search long to find the cites you seek.

If you dig deep enough, you'll find a lovely quote that accuses the NRA of not wanting to move forward until they can find a "minority lesbian female combat-disabled vet with HIV" complainant. Clued-in gun owners all over the U.S. got tired a long time ago with NRA foot-dragging in these matters. After all, the NRA only stays in the lobbying business as long as these questions remain up in the air.

Re:"You thought we would mess it up?" (5, Insightful)

Anonymous Coward | more than 4 years ago | (#30044872)

The discussion has digressed into the mess of software patents which is purely a distraction from the arguement.

Some software patents are really business method patents (how someone navigates this page, or which button they press). Some software patents *may be* technological patents and should be measured as such. Blanketing software patents by comparing them to business method patents is comparing apples and oranges. Whether or not the non-business-method software patents (technological patents in software) should be allowed is a completely separate issue but people tend to discuss them under one arguement when it is really two arguements. If your software algorithm can pass the test of patent-eligibility then it should be patentable. I am not saying it is even possible to have something in software that is patentable but with more of our world moving into the realm of invention through transformation of data I am not going to say it is impossible either. Ask yourself this, would you consider a device that allows the teleportation of objects to be a patentable invention? Would you feel the same way if 100% of the actual work was driven by the software running the system? Which is the technology, the arrangement of hardware that made it possible (based on a hundred years of prior art) or the computation done by the software that drives it.... just sayin.

    The patent system was invented to promote the technology and arts. It is not about business methods. If Bilski loses, its set the tone for the invalidation of all business patents, thousands of patents could be invalidated. This is why this is even a case to begin with (many companies stand to lose a lot if Bilski loses).

Re:"You thought we would mess it up?" (1)

spidercoz (947220) | more than 4 years ago | (#30045842)

Which is the technology, the arrangement of hardware that made it possible (based on a hundred years of prior art) or the computation done by the software that drives it.... just sayin.

Software which is based upon centuries worth of mathematics? Just sayin.

Re:"You thought we would mess it up?" (3, Insightful)

stephanruby (542433) | more than 4 years ago | (#30045004)

(there is an opinion here that software patents help the USA in World Trade.... which seems very dubious to me at any rate).

Software patents are like buried land mines. They may slow us down and cripple us, but as long as they slow down and cripple our competitors even more than they do us -- that's what really counts.

Re:"You thought we would mess it up?" (1, Interesting)

Anonymous Coward | more than 4 years ago | (#30045032)

1) There's a belief that we're screwed as an economy if we invalidate software and medical procedure patents. We don't manufacture a lot of stuff in this country anymore. I hold that there will be problems by this decision if it invalidates a whole range of patents- but that we need to just go ahead and pull the bandage and get it over with. It'll hurt, yes. But in the long-run, we need to do it now.

2) Many people in the government aren't doing their jobs these days. Seriously. It's more about politics than what needs to be done.

3) If you keep the Circuit Court decision, you can mostly do that. Not that it's really applicable- adding a machine test doesn't really change the patentability of mathematical, business processes, or of nature itself. Putting it on a specific computer shouldn't magically make it patentable if it would otherwise not be without it.

The government is protecting what it thinks is part of it's constituency. The "IP" law firms and the businesses that use them to patent all sorts of tripe.

Re:"You thought we would mess it up?" (3, Informative)

kabloom (755503) | more than 4 years ago | (#30045042)

2. Why is it the job of the govt. deputy solicitor to uphold the political interests of the US of A rather than the legality of the issue at hand? (there is an opinion here that software patents help the USA in World Trade.... which seems very dubious to me at any rate).

The solicitor general's job is to argue the political interests of the USA before the Supreme Court and and be an advocate for a particular position that the court has to rule on. Though the Solicitor General can practice "confession of judgement" (which means to drop a case if he considers the government's official position to be unjust) it's much more normal for the Solicitor General to play devil's advocate and argue the position and let the court create precedent.

Re:"You thought we would mess it up?" (3, Insightful)

Theaetetus (590071) | more than 4 years ago | (#30045416)

Can someone explain to me:

1. Why the govt. does not want to resolve the mess that is software patents, now that a golden opportunity has been presented?

The Bilski application was on a method of managing risk in derivative markets. While it could be done in software, there was nothing in the claims that even mentioned a computer or software. So this isn't a "golden opportunity", even on the Government's side. It'd be as golden as an application on a method of diagnosing a disease as the deciding case for software... It's kind of apples and oranges, and there are many other applications that are more central to the issue of software.

2. Why is it the job of the govt. deputy solicitor to uphold the political interests of the US of A rather than the legality of the issue at hand? (there is an opinion here that software patents help the USA in World Trade.... which seems very dubious to me at any rate).

Once a case gets to the supreme court, legality isn't the question - whatever they decide is the law, so you aren't going to go waving a statute at them and telling them they're ignoring the legality of the issue. Instead, they're making a politically-influenced interpretation of Congress' intent in drafting the Patent Act.

3. How is it technically feasible, if at all, to make a ruling on the Business Methods case without influencing whether software can or cannot be patented?

"This decision shall be interpreted as applying solely to those methods and processes that may be feasibly performed without a computer."

And to forestall your answer "but all software could be performed with a pen, paper, and slide rule", the relevant word is feasible. Go decode a PGP message with a pen, paper and slide rule and come back when you're finished to describe how any software can feasibly be done manually.

I think the govt. (read deputy solicitor) seems very worried that many lawyers and patent powerhouses would come crashing down as a result of this ruling.

I think the government is more concerned that Google, Microsoft, Apple, Cisco, Citrix, IBM, etc., etc., would come crashing down as a result of this ruling. Their stock prices certainly would, since your proposed course of action would eliminate billions of dollars of intellectual property rights in a puff.

Re:"You thought we would mess it up?" (2, Insightful)

foniksonik (573572) | more than 4 years ago | (#30046542)

I think the government is more concerned that Google, Microsoft, Apple, Cisco, Citrix, IBM, etc., etc., would come crashing down as a result of this ruling. Their stock prices certainly would, since your proposed course of action would eliminate billions of dollars of intellectual property rights in a puff.

Actually it's the perceived value of their intellectual property rights that would disappear - and which would disappear for all of their competitors at the same time. Now the stock market would certainly freak out as they hate FUD and flee from it with money in hand to businesses with less FUD, but after the shake out value would return to those companies who have a sound business model and management.

Companies which only exist because of patents would have to create a real business out of their technology, methods, or service - aka offer real market value and would be punished until they are able to do so.

Sure it would be painful - but in the end everyone will be better off - meaning that the majority will be better off.

Re:"You thought we would mess it up?" (1)

DinDaddy (1168147) | more than 4 years ago | (#30046646)

I think the government is more concerned that Google, Microsoft, Apple, Cisco, Citrix, IBM, etc., etc., would come crashing down as a result of this ruling. Their stock prices certainly would, since your proposed course of action would eliminate billions of dollars of intellectual property rights in a puff.

Arguable. But even if you are right, it would be a pretty temporary devaluing of their stock, which would return to its normal level once it became clear that the value of the software was in its implementation, as well as marketing and integration with their other products, not just the novelty of their coding. I, for one, would take it as a great buying opportunity.

After all, no one is arguing that copyright on computer code should be abolished with the patents.

Re:"You thought we would mess it up?" (1)

Theaetetus (590071) | more than 4 years ago | (#30046724)

After all, no one is arguing that copyright on computer code should be abolished with the patents.

Yeah, but say you write a program in C and someone takes it and rewrites it in C++, or Java to Perl, etc. You have very little copyright protection in that new work. Your best bet is to claim it's a translation or a derivative work, but good luck proving that.

Does number of steps make something patentable? (1)

tepples (727027) | more than 4 years ago | (#30047020)

And to forestall your answer "but all software could be performed with a pen, paper, and slide rule", the relevant word is feasible. Go decode a PGP message with a pen, paper and slide rule and come back when you're finished to describe how any software can feasibly be done manually.

RSA with a shorter key can be done with paper and pencil. Did you mean that increasing key length makes an unpatentable algorithm patentable? This appears to imply that execution time determines patentability: there exists a value n such that any novel algorithm that requires more than n operations is patentable and any algorithm that requires fewer is not. So what is n?

Re:Does number of steps make something patentable? (1)

Theaetetus (590071) | more than 4 years ago | (#30047194)

RSA with a shorter key can be done with paper and pencil. Did you mean that increasing key length makes an unpatentable algorithm patentable?

Currently? No. But this is one way the Supremes could limit a decision that invalidates in-your-head business methods and diagnostic methods while preserving software patents. As for how many calculations would be required? You could still leave the test as "feasible" and let that be a factual question for a jury.

Re:"You thought we would mess it up?" (1)

rwv (1636355) | more than 4 years ago | (#30045790)

3. How is it technically feasible, if at all, to make a ruling on the Business Methods case without influencing whether software can or cannot be patented?

People want software patents that are unspecific to be impossible to get. I think less people would object to specific implementations with published source code so that when the patent expires the full functionality goes public domain. In my opinion, let Microsoft choose to patent Windows and ship a copy of the source code to the patent office or rely on "trade secrets" to protect them. I know Coca-Cola relies on trade secrets for the recipe for their flagship product and this has worked well for decades.

But without published sources, I can't begin to imagine how Company A can claim Company B has "infringed" on their patent by "implementing a method to purchase a product through an internet connection utilizing a Single-Click action", because there are dozens of ways of implementing this (Java or Perl? Cookies or Server-side Database? Credit or Debit charge? Fat (like AOL) or Thin (via Firefox) Client?).

Re:"You thought we would mess it up?" (2, Interesting)

Zordak (123132) | more than 4 years ago | (#30046012)

1. Why the govt. does not want to resolve the mess that is software patents, now that a golden opportunity has been presented?

This case isn't really suitable because the Bilski claims didn't have any software. They were pure business method claims. My guess is that the Court would say the question of software patents is not an actual case or controversy here, so it can't be decided.

3. How is it technically feasible, if at all, to make a ruling on the Business Methods case without influencing whether software can or cannot be patented?

Again, because there was no software in Bilski. The Court can very easily say that these kinds of pure business method patents without any ties to anything physical---not even a piece of software on a computer---are not valid without touching the question of whether they would be valid if embodied in computer software. And you would still see thousands of patents invalidated, because since 1998's State Street decision, we have had thousands and thousands of pure business method patents issue. Note however that this doesn't automatically make those patent go away. I recently defended a case where the patent claims were almost certainly invalid under the Federal Circuit's Bilski decision, which is still good law until the Supreme Court rules. The plaintiffs admitted that they had Bilski problems, but they still sued because the patent is valid until a court says otherwise. We ended up settling to make the troll go away because even with the Bilski problems, it was cheaper than getting through a summary judgment motion.

Re:"You thought we would mess it up?" (1)

Absolut187 (816431) | more than 4 years ago | (#30046840)

1 - Its *not* a "golden opportunity". Bilski's claims don't recite software, don't recite a computer, and don't recite any machine of any kind. They are pure business method claims.

THAT is why Mr Stewart and the PTO are quite correct to say that this is an "unsuitable vehicle."

In our legal system, courts decide *CASES*, not *ISSUES*.

Broad issues are decided by the LEGISLATURE. Specific CASES are decided by the courts, on their specific FACTS.

That is the SCOTUS will most likely affirm the Federal Circuit's test without saying anything about software.

2 - Same answer

3 - This decision will most certainly influence software patent eligibility, but both sides will have ammo. Software patentee can say "look, they didn't eviscerate software patents". The other side can say "look, they didn't expressly uphold software patents".

Thats how this game is played, until Congress steps in and clears things up.

But they are focused on other issues right now.

Re:"You thought we would mess it up?" (1)

khallow (566160) | more than 4 years ago | (#30047002)

Why the govt. does not want to resolve the mess that is software patents, now that a golden opportunity has been presented?

It preserves a rent-seeking opportunity for campaign donors.

I wouldn't count on it... (1, Flamebait)

XxtraLarGe (551297) | more than 4 years ago | (#30044608)

There are some justices who are clearly in the tank for big business patents (e.x. Clarence Thomas/Monsanto food patents), and I'm sure the other ones can be bought.

Re:I wouldn't count on it... (4, Interesting)

bwcbwc (601780) | more than 4 years ago | (#30044670)

Regardless of whether they're "in the tank", I've noticed that this court tends to ask the most skeptical questions of the side they are considering ruling in favor of, at least when reported in the "anti-patent" media like Slashdot. It's more that they're trying to pin down the scope of their ruling rather than actually skeptical of the proposed arguments. Sometimes I think part of it is a cruel sense of humor toward the lawyers arguing before the court.

Re:I wouldn't count on it... (3, Informative)

Rydia (556444) | more than 4 years ago | (#30044804)

You are correct, and most courts act this way on difficult questions. The judges read the briefs and the trial transcripts (or have their clerks read them, really), figure out what they think the answer should be, then go into oral argument usually looking to solidify the position they've decided upon. Often this takes the form of, as you said, hammering on the side they favor to flesh out whatever theory they're currently working out in their heads. You'd be surprised, a lot of answers that seem "bad" have a nugget of a good legal theory, or at least something that brings parts of the theory together.

Of course, harassing attorneys with questions you know they can't answer sufficiently or forcing them to admit to something that makes them uncomfortable is also fun.

Re:I wouldn't count on it... (1)

mysidia (191772) | more than 4 years ago | (#30044694)

It's within a judge's prerogative to change their mind. What makes you think Clarence Thomas won't?

Re:I wouldn't count on it... (1, Troll)

dkleinsc (563838) | more than 4 years ago | (#30044750)

Don't worry: Justice Thomas will change his mind if Justice Scalia changes his first.

Re:I wouldn't count on it... (2, Insightful)

nomadic (141991) | more than 4 years ago | (#30045840)

There are some justices who are clearly in the tank for big business patents (e.x. Clarence Thomas/Monsanto food patents), and I'm sure the other ones can be bought.

Do you have any evidence at all to suggest any justice of the Supreme Court is taking a bribe? Because that would be the biggest legal news in years.

Re:I wouldn't count on it... (4, Insightful)

Zordak (123132) | more than 4 years ago | (#30046316)

How, exactly, is Justice Thomas "in the tank" for big business, and how, exactly, can "other ones ... be bought"? There are of course the all-important campaign contributions. No, wait, federal judges are appointed for life. Scratch that. Well, Big Biz could lobby Congress to reduce their pay if they don't stay in line. Except that would be patently unconstitutional under Article III. But still, they need to kiss the right behinds to climb the ladder. Except they're already on the Supreme Court, so there's really nowhere to go. So are you suggesting that Monsanto and other big business interests outright bribe certain justices? Well now, I'm interested in what evidence you have to support this theory, because we have here the makings of one of the biggest scandals we've ever seen. Also, we have some pretty stupid justices who would jeapordize their careers and legacies for the sake of whatever bribe the baddies are willing to offer.

I often disagree with Supreme Court justices, but for better or worse, it's hard for me to find a reason for them deciding the way they do except they really believe that's the way things ought to be. Our clever little Constitution did a pretty good job of removing all other incentives. Now, they may be cozy with the interests they've sided with through the years, because we all love to be buddies with like-minded people, but nobody owns them. If Justice Thomas decided he wanted to put the smack down on Monsanto, there's nothing Monsanto could do to stop him.

Re:I wouldn't count on it... (1)

Attila Dimedici (1036002) | more than 4 years ago | (#30046372)

There are some justices who are clearly in the tank for big business patents (e.x. Clarence Thomas/Monsanto food patents), and I'm sure the other ones can be bought.

Please explain how having worked a mere two years as a corporate lawyer in the 1970's indicates that he is in the tank for them? Or do you have some other evidence that he is in the tank for them?

Re:I wouldn't count on it... (1)

AvitarX (172628) | more than 4 years ago | (#30046422)

I don't think this is true of Thomas.

I think he believes this country should go back to more a wild west might makes right type of system. I think he truly feels this though, not that he is in anyone's pocket.

Damn. This sucks. (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#30044634)

I'm not joking guys. We really planned on making our money on patenting our business model. We figured the big corporate bastards have made it impossible for tiny businesses like ours to make money and stay in business any other way so we'd patent our business model to protect ourselves from the giant behemoths. What will happen if you can't patent a business model is the behemoths who were in the same niche but slightly less profitable will look over and see you making money hand over fist and decide to copy your homework. What can you do? You're tiny. You're toast! But wait! I have a business model patent! You have to *buy* me! That means I get one last pay-check before you cut me loose!

They take that away and now we're defenseless in front of gigantic corporations who have the resources to just wholesale copy our model.

Re:Damn. This sucks. (2, Interesting)

tolan-b (230077) | more than 4 years ago | (#30044676)

Even if you had a business method patent the chances are you'd still be defenceless in front of gigantic corporations who have the resources to just kick your arse up and down the legal system until you ran out of money.

Re:Damn. This sucks. (4, Insightful)

mysidia (191772) | more than 4 years ago | (#30044686)

They'll copy your model anyways, if you're small, you can't afford that many business patents (getting a patent is expensive, and litigating patents is also expensive and will put you out of business, unless you are successful against corporate army of lawyers).

Patents nowadays are very much for lawyers and large corporations BY lawyers and large corporations. They provide very little / no effective protection to the little guy.

Re:Damn. This sucks. (1)

Svartalf (2997) | more than 4 years ago | (#30045114)

Patents are worth only the amount of money you can field to litigate an infringement case over in most cases. A small player will fold if they're actually infringing when presented with a lawyer letter (they can't afford the litigation any more than you can, really...). But, a big player, something with a 10 or more figure market cap, would be in a position, if you're a startup, to mire you down and out-litigate you in most cases. It would be an expensive proposition without any good foreseeable prospects- you might win one against them, you might not. If you do, can you out-last the appeals?
 

Re:Damn. This sucks. (1)

shentino (1139071) | more than 4 years ago | (#30046114)

And this is surprising how?

Big guys bullying little guys is a common thread in ALL fields, not just patents.

Might makes right no matter what the arena.

Re:Damn. This sucks. (1)

mysidia (191772) | more than 4 years ago | (#30046204)

It's not. Parent poster was saying They take that away and now we're defenseless in front of gigantic corporations

But the truth is, little guys are defenseless even with patent law.

Re:Damn. This sucks. (5, Insightful)

noundi (1044080) | more than 4 years ago | (#30044864)

I'm not joking guys. We really planned on making our money on patenting our business model. We figured the big corporate bastards have made it impossible for tiny businesses like ours to make money and stay in business any other way so we'd patent our business model to protect ourselves from the giant behemoths. What will happen if you can't patent a business model is the behemoths who were in the same niche but slightly less profitable will look over and see you making money hand over fist and decide to copy your homework. What can you do? You're tiny. You're toast! But wait! I have a business model patent! You have to *buy* me! That means I get one last pay-check before you cut me loose!

They take that away and now we're defenseless in front of gigantic corporations who have the resources to just wholesale copy our model.

And what if the big corporations go on patenting sprees and start patenting anything imaginable? Just like all patenting has come down to. Any idiot realises that patenting was never created to benefit "the small players." Really, conspiracy aside, but how much influence does small businesses contra large businesses have on politics and politicians? Do you think there is one single top politician who doesn't own stock in one or many large corporations? And it doesn't have to be a plot or a cartel, you can be a very honest politician but when that opportunity comes along the temptation to make a few extra hundred thousand can become too much. Also it does help if you can pretend you're doing it for "the small players."

Re:Damn. This sucks. (0, Flamebait)

Coren22 (1625475) | more than 4 years ago | (#30045514)

And what if the big corporations go on patenting sprees and start patenting anything imaginable?

What if this is already occurring? Have you been asleep for a long time?

Re:Damn. This sucks. (1)

noundi (1044080) | more than 4 years ago | (#30045814)

And what if the big corporations go on patenting sprees and start patenting anything imaginable? Just like all patenting has come down to.

Wow, you didn't even read further than my first sentence. There has to be some award for this.

Re:Damn. This sucks. (1)

Coren22 (1625475) | more than 4 years ago | (#30046908)

I read the entire post, I just thought I would poke fun at the first line.

Re:Damn. This sucks. (1)

noundi (1044080) | more than 4 years ago | (#30047206)

That doesn't make sense.

Re:Damn. This sucks. (1)

Theaetetus (590071) | more than 4 years ago | (#30045528)

And what if the big corporations go on patenting sprees and start patenting anything imaginable?

Well, first they have to invent it, which means it has to be new and nonobvious - so no patenting "filing a patent" or "earning money". And if they do invent something, they have to disclose it to the world and teach us all how to do it. And if they've really done something new and nonobvious and it's actually valuable and innovative, why shouldn't they have a limited period to exploit that invention? Particularly when, by it's very definition, it's limited, and 20 years later, everyone gets to do this new, nonobvious, and valuable method?

I think most of the people who complain about the patent system, whether they realize it or not, are primarily concerned about the "new and nonobvious" part, rather than subject matter eligibility. We don't like it when someone gets a patent on a method of swinging on a swing, or investing in a hedge fund, or tickling a cat. But that's because those have either been done before, or are so freaking obvious that it's removing something from the public domain if you grant a patent on them... and that's a question of novelty and obviousness, not subject matter.

Re:Damn. This sucks. (1)

noundi (1044080) | more than 4 years ago | (#30045860)

And what if the big corporations go on patenting sprees and start patenting anything imaginable?

Well, first they have to invent it, which means it has to be new and nonobvious - so no patenting "filing a patent" or "earning money". And if they do invent something, they have to disclose it to the world and teach us all how to do it. And if they've really done something new and nonobvious and it's actually valuable and innovative, why shouldn't they have a limited period to exploit that invention? Particularly when, by it's very definition, it's limited, and 20 years later, everyone gets to do this new, nonobvious, and valuable method?

I think most of the people who complain about the patent system, whether they realize it or not, are primarily concerned about the "new and nonobvious" part, rather than subject matter eligibility. We don't like it when someone gets a patent on a method of swinging on a swing, or investing in a hedge fund, or tickling a cat. But that's because those have either been done before, or are so freaking obvious that it's removing something from the public domain if you grant a patent on them... and that's a question of novelty and obviousness, not subject matter.

Quit your trolling. You can patent general easy-to-think-of ideas which would then cover any real innovations. This is constantly being done today.

Radio? (0, Offtopic)

The Second Horseman (121958) | more than 4 years ago | (#30044690)

Seriously, Scalia's "pop culture" reference is a radio show that went off the air in the mid 50's? Seriously? When he's talking about cars, does he compare everything to a 1954 DeSoto?

Don't they have law clerks that can help them line up snappy references? For example, "Professor Farnsworth" comes to mind. Sure, it's obscure, but not much more than his reference.

Re:Radio? Seriously, are you a Twit? Seriously? (4, Funny)

Anonymous Coward | more than 4 years ago | (#30044782)

Seriously, his references includes a less than obscure radio broadcast that many older people might recognize over a modern day cartoon that they won't recognize? Seriously? When 9 individuals comment and 1 brings a reference in that a number of older people would recognize do you always behave like a twit?

What are you "The Second Horseman of Jumped the Shark" or perhaps "The Second Horseman rode by Perez Hilton"? Seriously, realize that you are not always going to be the demographic some comments are aimed at and ...... get the hell off my lawn.

Re:Radio? (4, Insightful)

DNS-and-BIND (461968) | more than 4 years ago | (#30044792)

He's a Supreme Court justice. He doesn't talk about cars, and to make any pop culture reference at all is notable. What are you saying, because he doesn't watch TV that he's some kind of out-of-touch weirdo freak?

When talking of references, whenever anyone says "Professor Farnsworth" I think of the inventor of TV, not the funny cartoon character. But anyone who thinks different from you is weird and wrong, eh?

Re:Radio? (1)

rwv (1636355) | more than 4 years ago | (#30045880)

When talking of references, whenever anyone says "Professor Farnsworth" I think of the inventor of TV

I learn something new everyday. [wikipedia.org] Thank you!

Re:Radio? (4, Interesting)

Hatta (162192) | more than 4 years ago | (#30045896)

What are you saying, because he doesn't watch TV that he's some kind of out-of-touch weirdo freak?

No, when Scalia says things like "factual innocence is no reason not to carry out a death sentence properly reached" and argues that torture is not punishment and therefore not forbidden by the 8th amendment, THAT's when I say that he's some kind of out-of-touch weirdo freak.

Re:Radio? (3, Informative)

Anonymous Coward | more than 4 years ago | (#30047120)

Scalia didn’t really ever say: “Mere factual innocence is no reason not to carry out a death sentence properly reached.”

What Scalia did say was:
“There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”

Now that might be objectionable, but it is likely factual (“no basis in text, tradition, or even in contemporary practice”) and what is worse, that he stated fact or that the majority agreed?

Re:Radio? (1)

sorak (246725) | more than 4 years ago | (#30046258)

So why is Warehouse 13 any more weird than futurama? </ducks>

Re:Radio? (1)

GameboyRMH (1153867) | more than 4 years ago | (#30045710)

When he's talking about cars, does he compare everything to a 1954 DeSoto?

I hear he's a fan of those new Packards we've been hearing so much about...

good background info (4, Informative)

volt4ire (1131825) | more than 4 years ago | (#30044714)

A good source of background info for this case is provided in epside 1 of the Software Freedom Law Center's podcast http://www.softwarefreedom.org/podcast/2008/nov/25/0x01/ [softwarefreedom.org] It puts the case in perspective as to what software patents would be thrown-out under even the most optimistic Bilski rulings (ie: not ending all software patents, as we'd like to see).

You can't always tell (1, Informative)

Anonymous Coward | more than 4 years ago | (#30044762)

The judges will ask questions and it may seem that they are favoring one side or the other. That isn't always the case. The judge's question may give a lawyer a chance to cover up a hole in his case that the judge saw but the lawyer missed.

You're in violation of my patent... (1)

Stupendoussteve (891822) | more than 4 years ago | (#30045194)

On the concept of "blow-by-blow coverage."

Expect to be hearing from my lawyer.

Re:You're in violation of my patent... (2, Funny)

Curunir_wolf (588405) | more than 4 years ago | (#30045412)

On the concept of "blow-by-blow coverage."

Expect to be hearing from my lawyer.

I know what you mean. My lawyer is a complete whore too.

Software patents ok? (2, Interesting)

mikeborella (118715) | more than 4 years ago | (#30045220)

My read is that the justices seem to be ok with software patents in principle but are leery of business method patents that are not tied to a device or that do not incorporate some form of technology.

They seemed to struggle with how much of a "machine" needs to be added to an abstract business method before it becomes patentable subject matter.

In other news, Roberts appears to be confused about the difference between patentable subject matter and obviousness.

Re:Software patents ok? (1)

itsdapead (734413) | more than 4 years ago | (#30046530)

My read is that the justices seem to be ok with software patents in principle but are leery of business method patents that are not tied to a device or that do not incorporate some form of technology.

Its too much to hope that this will kill software patents in one swoop.

Hopefully, even a ruling against "business method" patents will mean that a lot of software patents can be characterized as "implementing a buisness method on a standard computing device" and defeated on the grounds that the implementation could be done by any competent programmer.

Re:Software patents ok? (1)

Theaetetus (590071) | more than 4 years ago | (#30046786)

Hopefully, even a ruling against "business method" patents will mean that a lot of software patents can be characterized as "implementing a buisness method on a standard computing device" and defeated on the grounds that the implementation could be done by any competent programmer.

That wouldn't defeat the patent. In fact, it's a requirement that the implementation claimed by the patent could be done by any programmer of ordinary skill, with the guidance of just the specification and drawings. Remember, the patent system is about public disclosure - you should be able to read any patent and (if you're skilled in that technology) be able to make or use the claimed device or method.

I will patent the following. (1)

jellomizer (103300) | more than 4 years ago | (#30045582)

Email Marketing, So I will demand $0.25 per spam mail sent from every spammer for using my Idea.
Pyramid Schemes, So when they are caught they will need to pay me royalty for breaking the law.
Telemarking, They call me they will need to pay for violating my patent.

Lets just patent all the evil practices so it is just that more expensive to try to lie and cheat.

Re:I will patent the following. (0)

Anonymous Coward | more than 4 years ago | (#30046626)

If you do that, then one of THEM will likely patent "random acts of kindness", or "performing a public service", and promptly countersue. Could get rather ugly.

Analysis re swpats, and html transcript (1)

H4x0r Jim Duggan (757476) | more than 4 years ago | (#30045678)

The End Software Patents campaign has posted:

Re:Analysis re swpats, and html transcript (1)

DJRumpy (1345787) | more than 4 years ago | (#30046940)

I'm guessing I'll be modded down for this, but I am genuinely curious about this. Why are people so against software patents? At their most basic elements, yes they are just basic math, but we are not looking at the most basic elements. The same could be said for art (just a few strokes of a brush at it's most basic level), or Music (just a few basic notes on a scale repeated over and over). The finished product gets you Mozart, and Monet.

I can see a real need to actually protect works of that sort, and give the artist/creator/designer return value for them (at least with proper limits anyway, which is a whole other discussion).

Lets face it. Linux is great, and I think it's amazing that a generally random group of people could just collaborate out of the blue and create an entire OS (and a good one at that), but there are obviously things that pay to play software offers that free variants don't. I actually think competition among pay software is one of the primary reasons it advances like it does. If it was free, I don't think it would be as advanced as it is today.

Not trying to start a flame war here, but why are folks so opposed to patenting a finished product that happens to be software?

Re:Analysis re swpats, and html transcript (1)

Vorlath (921561) | more than 4 years ago | (#30047794)

You have copyright for that. Patents are a whole different ballgame. They give you a MONOPOLY! You could forbid everyone else to use certain combination of notes if music patents were allowed. It'd be like paying a fee to use the word "and" followed by the word "the". The very building blocks of what you need to use for every day composing, whether in literature, music, or software programming are at stake.

Only thing is that in the programming world, only programmers understand this basic limitation imposed on us. The very building blocks used for composing software is limited to us. But with reserved words, data types and objects, we don't see this in the same way every time. Every programmer will view it in their own heads using their own interpretations and abstractions. But have a patent on just ONE of those views and the other programmers will not see the infringing code. There is NO WAY to check for patents on software. Not only that, but when necessity requires, programmers will solve the problem if it's at all possible in the vast majority of cases. It's a myth that software is clever or non-obvious to other programmers. That defies the very definition of a programmer who's job it is to come up with non-obvious solutions.

Re:Analysis re swpats, and html transcript (1)

DJRumpy (1345787) | more than 4 years ago | (#30048068)

Thank you. Very clear and after reading that, something I would definitely agree with. I often interchange the two without thinking about it.

It makes binding a patent to a physical transformative technology right in my mind.

There goes my scheme (1)

Midnight Thunder (17205) | more than 4 years ago | (#30046098)

Here I was ready to file a business model patent on "Receiving advertising revenue based on news stories that draw the most flames, sometimes resorting to dupes". Somehow I think there might be prior art, but I doubt the patent office would notice ;)

Comments following TFA (2, Interesting)

DJRumpy (1345787) | more than 4 years ago | (#30046732)

There was one I found very interesting, from someone who was apparently present

"Oh you woulda loved where that sht was going. After several places in this part of the discussion there was a noticable shift in the audience as the ramifications of the fact that at least 2 justices were, from the mannerisms they were definitely using, and exasperation they were expressing, pretty fin pissed about software. And when I say "pretty fin pissed" well, you're just going to have to trust me if you weren't there. Some of the other justices on the other hand were just chillin in their chair, all bouncing around n stuff, not engaged hardly what so ever."

Patenting speed dating (1)

dbirnbau (640779) | more than 4 years ago | (#30047458)

"......Sotomayor wondered if speed-dating could be patentable, Breyer questioned whether a professor could patent a lesson plan that kept his students from falling asleep....." Uh hate to break it to Supremies, but there's a lot of patents already issued on both dating methods and teaching methods. Honest. You should get on your clerks case for not being able to find something anyone at all familiar with the patent system could find in about 5 minutes.
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