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Supreme Court Throws Out Bilski Patent

CmdrTaco posted more than 4 years ago | from the well-isn't-that-special dept.

Patents 232

ciaran_o_riordan writes "The US Supreme Court has finally decided the Bilski case (PDF). We've known that Bilski's patent would get thrown out; that was clear from the open mockery from the judges during last November's hearing. The big question is, since rejecting a particular patent requires providing a general test and explaining why this patent fails that test, how broad will their test be? Will it try to kill the plague of software patents? And is their test designed well enough to stand up to the army of patent lawyers who'll be making a science (and a career) of minimizing and circumventing it? The judges have created a new test, so this will take some reading before any degree of victory can be declared. The important part is pages 5-16 of the PDF, which is the majority opinion. The End Software Patents campaign is already analyzing the decision, and collecting other analyses. Some background is available at Late-comers guide: What is Bilski anyway?" More analysis of the decision is available at Patently-O.

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Get Out My Life, Why Don't Cha, Bilski (4, Funny)

eldavojohn (898314) | more than 4 years ago | (#32717158)

Diana Ross was not available for comment's. Rejoicing software developer's liberally apply apostrophe's in the street's but are they celebrating too soon [groklaw.net] ?

See some more analysis on this case... (0)

Anonymous Coward | more than 4 years ago | (#32717722)

Take a look at http://PatentLawNJ.com/index.php/business-method-patents---bilski-supreme-court-decision

There is no test for patentability now! Machine or transformation is a good one, but not the only one.

Re:Get Out My Life, Why Don't Cha, Bilski (1)

Mister Whirly (964219) | more than 4 years ago | (#32717812)

I know. Where Did Our Love Go for the highest court in the nation?

Apostrophe's (5, Funny)

ceswiedler (165311) | more than 4 years ago | (#32717170)

Dear Mister Language Person: What is the purpose of the apostrophe?

Answer: The apostrophe is used mainly in hand-lettered small business signs to alert the reader than an "S" is coming up at the end of a word, as in: WE DO NOT EXCEPT PERSONAL CHECK'S, or: SUPREME'S THROW OUT BILSKI PATENT. Another important grammar concept to bear in mind when creating hand- lettered small-business signs is that you should put quotation marks around random words for decoration, as in "TRY" OUR HOT DOG'S, or even TRY "OUR" HOT DOG'S.
                -- Dave Barry, "Tips for Writer's"

Neither funny nor accurate (1, Informative)

Kupfernigk (1190345) | more than 4 years ago | (#32717328)

The apostrophe is largely used to show contractions or missing letters. "Supreme" is here an abbreviation for "Supreme court justices". So "Supreme's", though annoying, cannot be said to be grammatically incorrect.

It's also worth looking at the approach of the NYT. I revere the Gray Lady's punctuation standards. If they ever allowed "Supreme's" through (they would not...) they would rightly insist on the apostrophe because they are a newspaper of record which means that in the future someone might read the head line and should not think that Diana Ross had a hand in the decision.

In punctuation, a little learning is a dangerous thing. If you read Lynne Truss's essay on the apostrophe (and it is far from the last word on the subject) you will find out that even greengrocers' apostrophes are not always wrong: they date from an age when new fruit and vegetables were appearing, and their customer needed to know that there was a difference between potato's and asparagus. Later the issue was resolved by adding an e - potatoes - but you still needed to know what the rule was. Whereas, if you knew the "apostrophe rule" you knew that one of those red fruits labelled "tomato's" or one of the yellow fruits labelled "banana's" was a tomato or a banana.

Re:Neither funny nor accurate (2, Funny)

Anonymous Coward | more than 4 years ago | (#32717354)

Damnit, where's our -1, Humorless or -1, Killjoy moderation option's? We could use them right about now...

Re:Neither funny nor accurate (0)

Anonymous Coward | more than 4 years ago | (#32717362)

Can you hear that swooshing sound?

Re:Neither funny nor accurate (1, Offtopic)

Myopic (18616) | more than 4 years ago | (#32717686)

The apostrophe is largely used to show contractions or missing letters. "Supreme" is here an abbreviation for "Supreme court justices". So "Supreme's", though annoying, cannot be said to be grammatically incorrect.

Did you just suggest that "Supreme's" is a contraction of "Supreme court justices"? As in Supreme[ court justice]s? If that's what you mean, I find that preposterous. Contractions are only meaningful when generally accepted. You can't just leave out a few words and call it a contraction.

Re:Neither funny nor accurate (5, Funny)

logjon (1411219) | more than 4 years ago | (#32717764)

You'g. I'o wha'nt.

Re:Neither funny nor accurate (0, Offtopic)

eggy78 (1227698) | more than 4 years ago | (#32717822)

I laughed out loud at this. Now if I could only decode it.

Re:Neither funny nor accurate (1)

dhTardis (1326285) | more than 4 years ago | (#32718474)

I suspect it's "You[ are wron]g. I[ will d]o wha[t I wa]nt." or something similar. The 'g' might be out of "You've got to be kidding", though.

Re:Neither funny nor accurate (4, Funny)

TheThiefMaster (992038) | more than 4 years ago | (#32717930)

So that's how klingon was invented...

Re:Neither funny nor accurate (1)

VGPowerlord (621254) | more than 4 years ago | (#32718482)

You'g. I'o wha'nt.

You are the greatest guy ever and are never wrong. I will do whatever you want.

I'm glad you think that! So, slave, give me $1,000.

Did you understand it? (1)

Kupfernigk (1190345) | more than 4 years ago | (#32717774)

Contractions are only meaningful when generally accepted

Or when the sense is plain. Anybody who has any interest in Bilski would understand this one. At least, I did, and IANAL, though I do follow US patent decisions in a general kind of way.

Headlines have always been a bit of a word game intended to get reader attention, and playing with language is part of that. I submit that it's the people above who think they understand the rules and are allowed to mock people who do not follow their prescriptions who are the "humorless killjoys".

Re:Did you understand it? (0, Offtopic)

cyberfunkr (591238) | more than 4 years ago | (#32717908)

Contractions are only meaningful when generally accepted

Or when the sense is plain.

I understood it perfectly. The Supremes [wikipedia.org] are making a comeback after more than 40 years of hiatus and their first hit, "Bilski Patent", will be thrown out for free download soon.

Right?

Re:Did you understand it? (0, Offtopic)

jd (1658) | more than 4 years ago | (#32718150)

Nonono. It was actually a mistype. The Supremes have patented the Bikini.

Re:Neither funny nor accurate (1)

bennomatic (691188) | more than 4 years ago | (#32718584)

Your post, re-written: D'n.

Re:Neither funny nor accurate (0, Offtopic)

Jay L (74152) | more than 4 years ago | (#32717760)

Kupfernigk wins the subthread.

Re:Neither funny nor accurate (0)

Anonymous Coward | more than 4 years ago | (#32717792)

You're a bigger buzz kill than Buzz Killington.

Re:Neither funny nor accurate (1, Offtopic)

ceswiedler (165311) | more than 4 years ago | (#32718078)

The apostrophe was not there as a contraction. It was there for exactly the reason Dave Barry was making fun of: frequently people insert an apostrophe when they add an S to the end of a word because they're not sure of the rules involved and seem to think it's better to err on the side of the apostrophe.

I think what you've just proven is that a moderate amount of learning is a dangerous thing.

Re:Neither funny nor accurate (0)

Anonymous Coward | more than 4 years ago | (#32718286)

Sadly, kids today have been uneducated in how to read print journalism, and instead subscribe to RSS scraping services to get the most boiled down, easy to digest news.

Growing up, I looked forward to Dave Barry's column each week in the paper, because it was funny, but also because it points out how silly we humans can be with all of our rules. Comedy as a tool, I love it!

Now get off my lawn, hipster!

Re:Neither funny nor accurate (4, Funny)

ichthyoboy (1167379) | more than 4 years ago | (#32718696)

you will find out that even greengrocers' apostrophes are not always wrong: they date from an age when new fruit and vegetables were appearing, and their customer needed to know that there was a difference between potato's and asparagus.

You know, if you cannot tell the difference between potato and asparagus then you might have problems that even an apostrophe cannot solve...

Re:Apostrophe's (0, Offtopic)

jeffmeden (135043) | more than 4 years ago | (#32717344)

For more tip's, be sure to check out this great, informative guide: http://theoatmeal.com/comics/apostrophe [theoatmeal.com]

Re:Apostrophe's (1, Funny)

FooAtWFU (699187) | more than 4 years ago | (#32717488)

The scary part is when you read, TRY OUR "HOT DOGS".

Re:Apostrophe's (0, Offtopic)

ari_j (90255) | more than 4 years ago | (#32717674)

I prefer "HOT DOGS" to HOT "DOGS" - it could be any kind of canine meat used!

Re:Apostrophe's (0, Offtopic)

joeyblades (785896) | more than 4 years ago | (#32718094)

Sheesh... you're just like my kids... How do you know you don't like it if you've never tried it?

Re:Apostrophe's (3, Funny)

Jay L (74152) | more than 4 years ago | (#32717730)

an "S" is coming up at the end of a word

Funny, but incorrect. The grocer's apostrophe can also be used in the middle of a word if that word was originally a compound; for instance, I once saw a convenience store advertising "NEW'SPAPERS".

And the supreme court... (5, Informative)

russotto (537200) | more than 4 years ago | (#32717190)

punted.

Bastards. Bilski is invalid, machine-or-transformation is thrown out, but the court explicitly provides no further guidance either way.

Re:And the supreme court... (2, Interesting)

Anonymous Coward | more than 4 years ago | (#32717392)

Machine-or-transformation is thrown out as the *exclusive* test, which is what the Federal Circuit was doing. In doing so, the Supreme Court has cleared the way for ongoing patenting of business methods (and software, although not stated directly).

Regardless of where you stand on the matter, this case is a major win for a restrained judiciary that does not legislate from the bench. The statute is VERY clear that the concept of patentable subject matter is extremely broad, to include business methods (and software, natch). If you want this to change, you're wasting your time by arguing about it with the USPTO or the courts. Congress defined patentable subject matter as broad, and it is what it is.

The only impact of this decision on business as usual will be some extremely confused examiners now that the machine-or-transformation test isn't the end-all-be-all.

Re:And the supreme court... (3, Informative)

Trepidity (597) | more than 4 years ago | (#32717440)

In practice, it's not clear how much they've cleared the way for business-method patents. Scalia signed the separate Breyer concurrence, which emphasized that the machine-or-transformation test is still the main test to be used, and that huge ranges of supposed business-method patents are absurd and clearly impermissible--- the opinion ended with a list of 4 or 5 such absurd business-method patents, like a dating-system one. So it seems five of the justices (Scalia, Stevens, Breyer, Sotomayor, Ginsburg) have a general presumption against business-method patents, and would probably hold that any specific patent that made it to them was not legit.

(Scalia also didn't join all of the majority/plurality opinion.)

Re:And the supreme court... (2)

Theaetetus (590071) | more than 4 years ago | (#32717676)

In practice, it's not clear how much they've cleared the way for business-method patents. Scalia signed the separate Breyer concurrence, which emphasized that the machine-or-transformation test is still the main test to be used, and that huge ranges of supposed business-method patents are absurd and clearly impermissible--- the opinion ended with a list of 4 or 5 such absurd business-method patents, like a dating-system one.

But the ones he listed as "absurd" had to do with dating, and toilets, and other "absurd" subjects... He didn't say why they were absurd. It was mere dicta.

So it seems five of the justices (Scalia, Stevens, Breyer, Sotomayor, Ginsburg) have a general presumption against business-method patents, and would probably hold that any specific patent that made it to them was not legit.

(Scalia also didn't join all of the majority/plurality opinion.)

Four - Stevens is out now, so, going forward, it's 4-4-2 and the question is where Kagan would sit.

Re:And the supreme court... (2)

Trepidity (597) | more than 4 years ago | (#32718128)

I agree it's mere dicta, but I think it's a clue to Scalia's sentiment on the subject: it's not the kind of laundry list you'd get from someone who generally feels business method patents are valuable. At the very least, it's suggestive of someone who feels that business-method patents have gone too far.

Re:And the supreme court... (2, Interesting)

Theaetetus (590071) | more than 4 years ago | (#32718228)

I agree it's mere dicta, but I think it's a clue to Scalia's sentiment on the subject: it's not the kind of laundry list you'd get from someone who generally feels business method patents are valuable. At the very least, it's suggestive of someone who feels that business-method patents have gone too far.

I don't know... Take the classic "method of exercising a cat" or "method of swinging on a swing" - shouldn't those have been rejected under 35 USC 102 as already known, or at least under 35 USC 103 as obvious? 35 USC 101 is just the barest gatekeeper - both are clearly "methods" and pass 101. Similarly, the absurd things he listed - toilet reservations, notifications of dating status - are clearly "methods" and should pass 101, but perhaps be invalid as neither new nor nonobvious.

I think there are valid criticisms of many business method patents, but I think they are really based around obviousness. It's tough to articulate though, so it's a lot easier to claim that methods of doing business aren't patentable in general, but I think that misstates the law.

Re:And the supreme court... (1)

Trepidity (597) | more than 4 years ago | (#32718800)

I'd actually prefer that approach--- strengthen review for obviousness instead. But I don't really see anyone on the court advocating for that approach. It's possible that Breyer and Scalia would agree that the patents they list are invalid for reasons other than section 101, but the list comes entirely in a discussion of section 101, and they don't mention 102 or 103 at all, so it seems they're thinking of 101 as the bar as they write that list? If they're thinking of a different section, they surely don't say so, or explain why they thought it relevant to mention those kinds of patents in a case entirely about section 101.

I do think it'd be a better overall approach, but any sort of tooth-having obviousness standard would strike down a lot of existing trivial patents in traditional areas. Intel has dozens of patents on really minor variations of existing processes, for example, and I don't see any likelihood of those being challenged in the near future. It's a guess, but I think instead it's more likely that the courts will distinguish business-method patents at least to some extent, because an obvious business-method patent seems more absurd than an obvious hardware patent, if only because the general public can understand it and see the absurdity.

Reminds me of the Foundation (the novel) (1)

Lead Butthead (321013) | more than 4 years ago | (#32718386)

After all that was said has been analyzed; "everything canceled out."

"journalism" (2, Insightful)

Lord Ender (156273) | more than 4 years ago | (#32717194)

How could you write a blurb about the "Bilski patent" without explaining what the Bilski patent actually is? How could the editors pass on such a terrible blurb unmodified?

Re:"journalism" (4, Funny)

ivucica (1001089) | more than 4 years ago | (#32717270)

This is Slashdot. Like 4chan, we have a collective consciousness. No explanation needed. Bilski, what is it? I have a new tagline:

Slashdot. We Know.

Re:"journalism" (1)

jd (1658) | more than 4 years ago | (#32718188)

Given the stuff geeks drink, I think "consciousness" may be incorrect word usage.

Re:"journalism" (2, Informative)

TheRaven64 (641858) | more than 4 years ago | (#32717402)

Because the Bilski patent itself is irrelevant, the important thing is the precedent that may or may not be set by the decision (I can't tell, the link that would answer this is Slashdotted already). For those unaware of this, the submitter helpfully included a link at the end explaining what this case is about.

Re:"journalism" (0, Redundant)

arkane1234 (457605) | more than 4 years ago | (#32717874)

The link didn't work.
So why not stop wasting finger movements and actually say what the Bilski patent is, instead of attempting to sound all knowing.

Re:"journalism" (1)

TheRaven64 (641858) | more than 4 years ago | (#32718060)

Because I have no idea what the Bilski patent is. I don't care. It's not relevant. That's not what the story is about, nor why anyone cares. The point is that it is a test case for the patentability of business models and, indirectly, of software. The patent itself is not important, the important bit is what the ruling says about patentability in general (which, it turns out, seems to be not much making this something of a non-story).

Re:"journalism" (1, Interesting)

Anonymous Coward | more than 4 years ago | (#32717436)

Bilski's been mentioned on here so many times, and really the only important part -- that the decision could kill or have severe implications for all software patents -- is mentioned. Although I'd emphasize that earlier and more clearly in the summary, it's really not that bad. The particulars of the patent are immaterial for a general audience, or even a technical audience (who would presumably have already heard of Bilski). It could be a software patent on modeling rabid ducks for all I know, despite being this case's possible ability to set us all free.

(I am getting ready to form a company and release software I've developed over the past few years. Given the litigious climate, I'm specifically not releasing any already-developed features that would generally be novel, outside the platform. If software patents were invalid, the list of features I'd release would be longer and more interesting; instead, the novel ones will stay locked-up for only me to use.)

Re:"journalism" (1, Troll)

MrNemesis (587188) | more than 4 years ago | (#32718816)

I read slashdot every working weekday (and have done since 2001) and I don't remember seeing anything called "Bilski" in recent memory.

And sentences like "X could have major repercussions for Y" where X is an unknown quantity and Y is an article about which one can be reasonably sure someone would know don't tend to work very well when pointed at the scientific market - doubly so when you can't tell when X is a proper noun or not. Observe the following examples:

"Moojops to be a major player in the fashion wars this summer!"
"Cocktuffington takes Hollywood starlets by storm!"
"Franzibald levels in the Large Hadron Collider CERN team reaching critical levels!"

I daresay the first two might make sense to someone who gives a shit, but I for one think the first sentence of the summary would be better written as "The US Supreme Court has finally decided the Bilski case (PDF), more commonly known as the busines's model patent." Eight extra words and also the extra chance for adding a superfluous apostrophe, a whole lot less kerfuffle. It's common courtesy, not to mention fucking basic journalism, to explain or not obfuscate your terms.

"Interested in a popular search company's competing motive image compression algorithm? Well, in the preceding diurnal cycles the collective of sentient carbon-based non-abhumanoid lifeforms who promulgate behind the hypertext-based site registered at D5908ABA progressed with envisaging a manifestation of the extrapolated logic required to implement a playback-oriented interpreter of aforementioned format which when committed to an unspecified base2 arithmetic engine format required more than pi to the power 6 (but less than the distance from Shrewsbury to Telford when measured in the length of a certain heroic greeks sub-ankle extremity) typewriter dings within the confines of the specified format."

Damn. I should write for Gartner. Or Idle.

Re:"journalism" (2, Insightful)

0racle (667029) | more than 4 years ago | (#32717446)

Google too difficult for you?

Re:"journalism" (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#32717726)

No, operating this stupid Mac is. Why doesn't it ever "just work" like everyone told me it would? I traded in the blue screen of death for the spinning beachball of death. Hey, what an improvement!

Re:"journalism" (0, Troll)

arkane1234 (457605) | more than 4 years ago | (#32717886)

No, reading an article that talks about something vague, and doesn't give a hint on what it is.

If I wanted to google it, I would have googled it instead of reading the article, almighty oracle.

Re:"journalism" (1)

0racle (667029) | more than 4 years ago | (#32718044)

First, there are no journalists here, this is a news aggregator.

Second, This is a topic that has come up more then once on Slashdot, it does not need a blurb about what we are talking about every damn time.

Third, this is supposed to be a site catering to those who are at least a little bit capable, you should not need your hand held through everything. If there is something you don't understand, look it up yourself.

Re:"journalism" (1)

Lord Ender (156273) | more than 4 years ago | (#32718000)

Difficult? No. Needlessly inconvenient? Yes.

There is good writing and there is bad writing. If you need to send your readers off for even the basics, you are a bad writer.

Re:"journalism" (1)

Volante3192 (953645) | more than 4 years ago | (#32718112)

Except this isn't an article, this is a paragraph summary.

Do we also need US Supreme Court defined? Patent? Why it's a Supreme Court case?

The key point here is "Bilski decided by Supreme Court." Anything else is superfluous in the paragraph because this is not about 'what Bilski is.'

Re:"journalism" (0, Troll)

mdielmann (514750) | more than 4 years ago | (#32718830)

If that were the case, why not just say "Supreme Court Hands Down a Decision". After all, what they're deciding on has no relevance at all...
All I've been able to infer is it's a business-process patent, appears to be excessively vague, and may or may not have some relevance to software patents, depending on which armchair quarterback you listen to. Note that the summary only mentions the software portion indirectly, and the other issues at hand not at all.

Re:"journalism" (1)

RoccamOccam (953524) | more than 4 years ago | (#32718828)

Google too difficult for you?

Excuse me, but if you're going to refer to it, don't you think you should provide a description as to what this "Google" thing is?

Fucked-up title (0)

Anonymous Coward | more than 4 years ago | (#32717204)

To: CmdrTaco the english-killer.

The title should be "Supreme Court Throw Out Bilski Patent", not "Supreme's Throw Out Bilski Patent".

Re:Fucked-up title (1)

somersault (912633) | more than 4 years ago | (#32717264)

The title should be "Supreme Court Throws Out Bilski Patent"

FTFY

Re:Fucked-up title (4, Funny)

Low Ranked Craig (1327799) | more than 4 years ago | (#32717438)

Contractions Motherfucker, do you speak them?

Re:Fucked-up title (2, Interesting)

Lunix Nutcase (1092239) | more than 4 years ago | (#32717626)

Except that "Supreme is Throw out Bilski Patent" makes no sense. Also it make no sense if you take the 's as meaning possession either.

Re:Fucked-up title (2, Informative)

mcgrew (92797) | more than 4 years ago | (#32717664)

"Supreme's" is not a contraction. "Supremes" is a popular term for members of the Supreme Court, not a contraction, and the apostrophe is superfluous. BTW, IMB isn't a contraction, either, it's an acronym.

English, motherfucker, can you type it?

Re:Fucked-up title (1, Informative)

Anonymous Coward | more than 4 years ago | (#32718692)

"IMB" is not an acronym. It's an initialism.

I here is my patent idea (3, Insightful)

Rivalz (1431453) | more than 4 years ago | (#32717234)

Let's make a Patent that Patents the system for which Patent Lawyers & Patent Registers Circumvent Common Sense and are awarded Patents. That way anyone who files one of these ridiculous patents are infringing upon my patent. Anyone who defends the patent is also infringing upon my patent.
I'll see you in court Bitches. (That is step 6 of my process)

Re:I here is my patent idea (0)

Anonymous Coward | more than 4 years ago | (#32717284)

I swear I've read about this idea in other Slashdot stories... I think there might be a glitch in the Matrix!

Software Freedom Law Center reaction. (5, Informative)

kfogel (1041) | more than 4 years ago | (#32717240)

The Software Freedom Law Center has a great response [softwarefreedom.org] up. From SFLC chairman Eben Moglen: "The confusion and uncertainty behind today's ruling guarantees that the issues involved in Bilski v. Kappos will have to return to the Supreme Court after much money has been wasted and much innovation obstructed."

(I hope they'll be providing a deeper analysis later on; the above came out like ten minutes after the decision, so obviously it's just based on the summary of the decision.)

-Karl Fogel

Luis Villa's thoughtful response (4, Informative)

TripleDeb (1240154) | more than 4 years ago | (#32717870)

Is also worth reading. [tieguy.org] Basically, while this is not a hands down win for opponents of software (or business method) patents, the upholding of the older cases (Flook, Diehr, etc.) could give some guidance on future cases that may help them rule out abstract ideas and algorithms. Villa also talks a bit about how the lower courts may see this and how he thinks they may be handling future patent cases.

Come on, guys... (4, Funny)

mcgrew (92797) | more than 4 years ago | (#32717246)

Supreme's Throw Out Bilski Patent

How many time's [sic] do I have to sic Bob [angryflower.com] on you?

Re:Come on, guys... (3, Funny)

Anonymous Coward | more than 4 years ago | (#32717314)

I don't read .GIF comics. Please convert your comic to .PNG and resubmit.

Re:Come on, guys... (4, Funny)

Inner_Child (946194) | more than 4 years ago | (#32717368)

I don't read .GIF comics. Please convert your comic to .PNG and resubmit.

Mister Stallman? Is that you?

Re:Come on, guys... (1)

wowbagger (69688) | more than 4 years ago | (#32718314)

Screw Bob the angry flower, I'll sic Butch R Mann [choppingblock.org] on them! Hockey-mask wearing serial killers with emotional issues FTW!

Best. Supreme. Court. Ever. (3, Funny)

random coward (527722) | more than 4 years ago | (#32717272)

This supreme court is stacking up to being the best one ever!

Re:Best. Supreme. Court. Ever. (2, Funny)

sweatyboatman (457800) | more than 4 years ago | (#32717300)

Pardon me, but I believe you accidentally failed to flag your comment as ironic.

uh, taco... (-1, Redundant)

Anonymous Coward | more than 4 years ago | (#32717280)

"Supreme's" ??!?!?! c'mon, taco.

and, to the writer of tfs, they are Supreme Court Justices. Once sitting on the high court, they are referred to as justices, not judges.

No new test (4, Informative)

Theaetetus (590071) | more than 4 years ago | (#32717302)

The judges have created a new test...

No, the judges said that the "machine or transformation" test that the Federal Circuit used to reject Bilski wasn't the exclusive test, but merely an important tool... And then they left it at that, and didn't specify a new test.

The important parts to take away here are that this decision carefully tiptoed away from software, and did affirm that some business methods are patentable.

Re:No new test (2, Funny)

Nerdfest (867930) | more than 4 years ago | (#32718698)

Anything that gives us more unemployed lawyers and fewer unemployed engineers is a step forward.

I don't think they've really created a new test (3, Informative)

Trepidity (597) | more than 4 years ago | (#32717308)

They've basically declined to create a new test. The "majority" opinion, in its strongest parts, which leaned more in favor of business-method patents, only got 4 votes (Scalia didn't join those parts). The main concurring opinion (by Stevens), which leaned more strongly against business-method patents, also only got 4 votes. Scalia joined a separate opinion by Breyer which emphasized the common points between the two opinions, but leaned slightly against business-method patents. It agreed with the majority that the "machine or transformation test" wasn't the sole test, but still thought it was the main useful one. That opinion also ended up with a list of examples of ridiculous business-method patents that are definitely not legit, so it doesn't seem Scalia would actually uphold most specific business-method patents that came across his desk.

Re:I don't think they've really created a new test (1)

Theaetetus (590071) | more than 4 years ago | (#32717404)

They've basically declined to create a new test. The "majority" opinion, in its strongest parts, which leaned more in favor of business-method patents, only got 4 votes (Scalia didn't join those parts). The main concurring opinion (by Stevens), which leaned more strongly against business-method patents, also only got 4 votes. Scalia joined a separate opinion by Breyer which emphasized the common points between the two opinions, but leaned slightly against business-method patents. It agreed with the majority that the "machine or transformation test" wasn't the sole test, but still thought it was the main useful one. That opinion also ended up with a list of examples of ridiculous business-method patents that are definitely not legit, so it doesn't seem Scalia would actually uphold most specific business-method patents that came across his desk.

Two things to bear in mind... First, this was Steven's last opinion, and Kagan seems to be more pro-software.
Second, as you note, Breyer cited some ridiculous patents, but merely called them "dubious", not "definitely not legit". He also didn't go into the "why", and I'd argue that invalidity in several of those may be based on obviousness, rather than subject matter.

Don't let the headline fool you (this IS Slashdot) (5, Interesting)

AtlantaSteve (965777) | more than 4 years ago | (#32717380)

While Bilski lost, the Supreme Court did not throw out software or method patents. The Supreme Court actually re-opened the door just a bit after the Federal Circuit had left it cracked.

The actual majority opinion is only 16 pages long, and really doesn't say much. They more or less like the "machine or transformation" test that the Federal Circuit had come up with... wherein a method patent must tie any abstract ideas to a "particular" machine or transformation of matter, such that the abstract idea may be combined with other machines or transformations not protected by the patent. However, the Supreme Court now says that while this test may get the job done most of the time, it is not necessarily the only possible test (and they don't say what the other tests might include.

Most important for software patent watchers, the Supreme Court completely ignored In re Alappat and the impact of "Beauregard claims" on the Federal Circuit "machine or transformation" test. That older Alappat decision opened the door for patentee to write claims for software as being articles of manufacter. This "Bearegard" format is basically a sneaky trick... saying that you haven't invented software on a hard drive (which should be analyzed as a method), but rather you've invented a hard drive that has software on it (which should NOT be treated as a method). This is how most software still gets in the door, as the PTO gives it a wink and a nudge doesn't treat it as being "software" at all! This was the issue that software patentees were watching mostly closely, and Supreme Court was completely silent and left the status quo untouched.

Nice headline, but it does not reflect the total picture. This opinion is NOT a victory whatsoever for the anti-software patent crowd.

Re:Don't let the headline fool you (this IS Slashd (4, Interesting)

Theaetetus (590071) | more than 4 years ago | (#32717466)

Most important for software patent watchers, the Supreme Court completely ignored In re Alappat and the impact of "Beauregard claims" on the Federal Circuit "machine or transformation" test. That older Alappat decision opened the door for patentee to write claims for software as being articles of manufacter. This "Bearegard" format is basically a sneaky trick... saying that you haven't invented software on a hard drive (which should be analyzed as a method), but rather you've invented a hard drive that has software on it (which should NOT be treated as a method). This is how most software still gets in the door, as the PTO gives it a wink and a nudge doesn't treat it as being "software" at all! This was the issue that software patentees were watching mostly closely, and Supreme Court was completely silent and left the status quo untouched.

While I agree with your other paragraphs, I disagree here for two reasons... Most software claims are not written as Beauregard claims, but as either method or system claims (or both), cause your second clause - that the PTO gives them a wink and a nudge - is incorrect. The PTO most certainly applies the machine-or-transformation test to Beauregard claims, and I've received several application rejections that cite the Fed. Circ's decision in Bilski against them. So, since we still have had to address that test, there's no reason to write a claim as a Beauregard claim when a method or system would work equally well and be arguably broader.

/I am a patent agent; I am not your patent agent; this is not legal advice, etc.

Re:Don't let the headline fool you (this IS Slashd (2, Interesting)

AtlantaSteve (965777) | more than 4 years ago | (#32717902)

Sorry, I didn't mean to imply that the machine-or-transformation test is not at all applicable to Beauregard claims. However, BPAI rulings and District Court decisions over the past year have been all over the map on it. Some view Alappat and Beauregard doctrine as turning a "general-use" computer into a "particular" machine, satisfying that first prong. Others opinions "pierce the veil" so to speak, and consider the particularity of the machine apart from merely having software on it (e.g. Cybersource in California).

Regardless, when you invent software and install it on a general-use computer... in my opinion it's fundamentally disingenuous to say that you have a "particular machine". Even if Beauregard claims offer weaker protection than claims written in method or system form, the fact that a patent issues at all creates a chilling effect because most parties will simply consent to a licensing shakedown rather than spend the $4+ million required to litigate validity or non-infringement. Beauregard is simply terrible doctrine, and it would have been nice for everyone (even those who disagree) to get some finality on its status either way.

Re:Don't let the headline fool you (this IS Slashd (2, Interesting)

Theaetetus (590071) | more than 4 years ago | (#32718170)

Some view Alappat and Beauregard doctrine as turning a "general-use" computer into a "particular" machine, satisfying that first prong. Others opinions "pierce the veil" so to speak, and consider the particularity of the machine apart from merely having software on it (e.g. Cybersource in California).

Regardless, when you invent software and install it on a general-use computer... in my opinion it's fundamentally disingenuous to say that you have a "particular machine".

What's a "general use computer" as opposed to a "particular machine"? The Fed. Circ. ignored that, and SCOTUS unfortunately never addressed it.

Re:Don't let the headline fool you (this IS Slashd (1)

drewhk (1744562) | more than 4 years ago | (#32717732)

A more appropriate name instead of Supreme Court would be Oracle of Delphoi.

Re:Don't let the headline fool you (this IS Slashd (5, Funny)

Myopic (18616) | more than 4 years ago | (#32717784)

not necessarily the only possible test (and they don't say what the other tests might include.

You just made all Lisp programmers very, very nervous.

Re:Don't let the headline fool you (this IS Slashd (1)

jd (1658) | more than 4 years ago | (#32718126)

Since LISP is based on a stack machine, and since being tied to a machine is one of the tests, it would follow LISP programs are always patentable.

Re:Don't let the headline fool you (this IS Slashd (1)

Volante3192 (953645) | more than 4 years ago | (#32718344)

I believe GP was referring to the missing close parenthesis...

Re:Don't let the headline fool you (this IS Slashd (1)

jd (1658) | more than 4 years ago | (#32718862)

Oh, well, in that case the lack of balanced parentheses is a business model and it's doubtful that could be patented.

Re:Don't let the headline fool you (this IS Slashd (3, Interesting)

radtea (464814) | more than 4 years ago | (#32718258)

While Bilski lost, the Supreme Court did not throw out software or method patents.

If anything they suggested software and method patents have a place in "the Information Age", saying: "The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those in the Industrial Age—for example, inventions grounded in a physical or other tangible form. But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. As numerous amicus briefs argue, the machine-or-transformation test would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals."

What they say in the last sentence is actually false: it would not "create uncertainty" but rather almost certainly rule out patentability. This is the court giving a wink and a nudge to the new slavery: ownership of ways of organizing human beings.

Patents in their up-until-recently form were intended as protection for ways of organizaing brute matter, not living things and not in particular not human beings. Patenting business processes and ways of thinking (which in the Age of Functional Programming is transparently all that software is: mathematical functions that can be represented in their entirety as thoughts) is nothing but a "form of tyranny over the human mind."

Business process patents and patents on ways of thinking restrict humans in ways that if they were implemented by any other means would be considered obviously acts of tyranny.

The good thing about the decision is that it suggests the scope of such tyrannical patents is likely to be viewed as narrow, and the minority concurring decision has much stronger language on the meaning of "process" that leaves the door open to sanity and liberty carrying the day in the end.

A step forward (1)

gmuslera (3436) | more than 4 years ago | (#32717412)

too bad we are at the border of the abyss.

My read... (1)

mikeborella (118715) | more than 4 years ago | (#32717422)

Software patents are still good. The court seems to unanimously agree to maintain the status quo that software methods are patentable subject matter.

Business method patents are still good, but just barely. The opinion is split 5-4 in favor of business method patents, but puts some rather vague restrictions on them (e.g., must not be abstract ideas).

Re:My read... (1)

MirthScout (247854) | more than 4 years ago | (#32717688)

Legal does not equal good.

I don't think... (1)

fyngyrz (762201) | more than 4 years ago | (#32717720)

...the word "good" means what you think it means...

Re:My read... (1)

TemporalBeing (803363) | more than 4 years ago | (#32718276)

How is it a "split 5-4 in favor of business method patents"? Every judge agreed just not on the details. A split 5-4 would mean 5 agreed and 4 disagreed, not a unanimous verdict (9:0) - with or without multiple concurring opinions - which is what was handed down.

Re:My read... (1)

mikeborella (118715) | more than 4 years ago | (#32718700)

Steven's concurrence is actually a dissent in part. He goes on for 40+ pages about why business methods should not be patentable under 101, and three other justices joined Stevens. Regardless of whether he label his writing a concurrence or dissent, the opinion is split. There is a 5-4 majority opinion in favor of business method patents.

Practically speaking, this means that the Court is one vote away from making business methods non-patentable.

Opinions are divided (2, Insightful)

Drakkenmensch (1255800) | more than 4 years ago | (#32717426)

Is the real story that Bilski case got thrown out over machine-or-transformation test failure, or that the article contains "Supreme's" in the name?

Okay, but on the internet? (0)

Anonymous Coward | more than 4 years ago | (#32717476)

So, can I continue getting patents by adding "on the internet" to common sense operations?

Claim differentiation (4, Informative)

Theaetetus (590071) | more than 4 years ago | (#32717640)

So, can I continue getting patents by adding "on the internet" to common sense operations?

You misunderstand the point of that phrase. It's a technique called claim differentiation and shows up typically in a dependent claim, the purpose being to expand the independent claim from which it depends. For example, say my independent claim is a new forward error connection scheme that involves receiving packets from a network, processing them using my revolutionary new error correction system and appending some sort of advanced hash to them [note: I personally haven't invented it yet, so please don't criticize me by saying "but error correction and hashes are known". This is just for example], and then transmitting the appended packets over the network. Then, in a dependent claim, I say, "The method of claim 1, wherein the network is the internet." Because the two claims, by definition, cover different things, the addition of the dependent claim means that the networks in the independent claim include the internet, but also include other networks - local networks, private networks, metropolitan area networks, wireless networks, wired networks, token ring networks, etc. It's purely useful in a litigation sense so that someone can't say "well, you were thinking of the internet when you said 'network' so when I do it over my corporate intranet, it's different and I'm not infringing."

Supreme Court (1)

rossdee (243626) | more than 4 years ago | (#32717496)

One moment they are called SCOTUS, next they are the Supreme's

Why not refer to it as "The Supreme Court"

Re:Supreme Court (1)

jd (1658) | more than 4 years ago | (#32718234)

Because much singing and dancing was involved around the issues.

One more decision today (0, Offtopic)

jimbobborg (128330) | more than 4 years ago | (#32717534)

The SCOTUS also threw out the Chicago Gun Ban. So the Second Amendment applies to state and local governments, too.

Re:One more decision today (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#32717878)

It's nice that the Court made a decision, but we've all known that since July 9, 1868 [wikimedia.org] .

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...

Re:One more decision today (0, Offtopic)

rickb928 (945187) | more than 4 years ago | (#32718010)

WE'VE all known that, but we have to keep reminding those who would infringe these rights.

"Patentable process" like "hardcore pornography" (5, Interesting)

NZheretic (23872) | more than 4 years ago | (#32717542)

The patent in question was effectively denied, but the court would not impose further limits on patenting.

No. 08-964. Argued November 9, 2009--Decided June 28, 2010 [supremecourt.gov]

Today, the Court once again declines to impose limitations on the Patent Act that are inconsistent with the Act's text. The patent application here can be rejected under our precedents on the unpatentability of abstract ideas. The Court, therefore, need not define further what constitutes a patentable "process," beyond pointing to the definition of that term provided in 100(b) and looking to the guideposts in Benson, Flook, and Diehr.

Which is about the same as saying ( Justice Potter Stewart, concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964)), [wikipedia.org]

"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

Bilski doesn't invalidate even one software patent (5, Interesting)

FlorianMueller (801981) | more than 4 years ago | (#32717668)

Here are some quotes from my analysis [blogspot.com] (I'm the founder and former director of the NoSoftwarePatents campaign):

  • "Unfortunately, the Supreme Court delivered an opinion that doesn't help the cause of partial or complete abolition of software patents at all."
  • "[T]he court's majority position is about the most liberal reasoning that it could have been. Only a decision to uphold the Bilski patent could have been any less restrictive.
  • "The decision announced today makes it clear that a majority of the Supreme Court wanted to give the abolition of even only a small percentage of all software patents the widest berth possible."
  • "This US decision is even more disappointing when taking into account the global trend." [then mentions political process in New Zealand and court decision in Germany]
  • "The position that software patents should be abolished isn't nearly as popular among judges and politicians as it is in the free and open source software community."
  • The upcoming Defensive Patent License (DPL) is recommended at the end of the blog posting.

Again, here's the full text. [blogspot.com]

No software ruling (1, Informative)

Anonymous Coward | more than 4 years ago | (#32717780)

" This [, the Information]Age puts the possibil ity of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck."

Re:No software ruling (4, Insightful)

MightyMartian (840721) | more than 4 years ago | (#32718464)

" This [, the Information]Age puts the possibil ity of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck."

Translation: Congress, do your fucking job.

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