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Canada's Federal Court of Appeal To Rule On Business Methods

Soulskill posted more than 3 years ago | from the must-need-a-distraction-from-the-maple-leafs dept.

Canada 34

ciaran_o_riordan writes "After last month's unfortunate ruling by Canada's Federal Court that Amazon's 1-click shopping idea could be patented, the Commissioner of Patents and the Attorney General of Canada have filed notice (PDF) to Amazon.com, Inc. (respondent) that an 'appeal will be heard by the [Federal Court of Appeal] at a time and place fixed by the Judicial Administrator,' probably Ottawa. This case, called Canada's Bilski, has been in the works since Amazon filed their patent application all the way back in 1998. Just like Bilski, the object of this case is what subject matter is and isn't patentable — a question which will create crucial case law, making participation in this case important. Anyone looking for more background, particularly those interested in helping to prepare an amicus brief for this case, is welcome at ESP's wiki page."

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34 comments

Blame canada! (-1, Troll)

Anonymous Coward | more than 3 years ago | (#34361512)

For all from Canadia, I apologize, but you are IN THE WRONG. Your country is what is causing this country's problems. Any takers? Amen.

Oh !!! (1)

unity100 (970058) | more than 3 years ago | (#34361544)

Just another case which proves that software patents actually can work !!!!

Americans. You think the USA is bad? (0)

Anonymous Coward | more than 3 years ago | (#34361546)

Move up here! We are going down the shit-hole at twice the rate of you guys.

Re:Americans. You think the USA is bad? (2, Informative)

SilverHatHacker (1381259) | more than 3 years ago | (#34361580)

Oh, it's not that bad. We have better donuts up here. And better maple syrup.

Re:Americans. You think the USA is bad? (0)

Anonymous Coward | more than 3 years ago | (#34361626)

Can you send me some please?

Re:Americans. You think the USA is bad? (1)

Mashiki (184564) | more than 3 years ago | (#34361854)

Don't forget poutine and beaver tails.

Re:Americans. You think the USA is bad? (1)

PolygamousRanchKid (1290638) | more than 3 years ago | (#34361924)

Don't forget poutine

Oh, french fries in a heavy gray, topped with cheese. Now that's real healthy! On the other hand, on a business trip to Montreal, one of the locals explained that if you were a fur trapper, hiking it up to the Hudson Bay in the winter, that fat was burned off really fast.

and beaver tails.

Whenever I chase beaver tails, it always gets me into trouble.

Re:Americans. You think the USA is bad? (1)

JonySuede (1908576) | more than 3 years ago | (#34362032)

When I am in Montreal I personally chase camel toes; but hey! each to is own.

Re:Americans. You think the USA is bad? (1)

Mashiki (184564) | more than 3 years ago | (#34362258)

If you're using cheese you're doing it wrong. Proper poutine is made using curds, and like the child poster under you. When you're in the middle of no where, you burn through those calories and fat very quick. In the 3mo I was in the middle of no where, I was easily burning through nearly 3800cal/day and still losing weight.

Re:Americans. You think the USA is bad? (1)

Silvermistshadow (1943284) | more than 3 years ago | (#34362566)

You even have those bacon-flavored chips that Lays refuses to sell down here. Bunch of racists (and by that I mean Lays. We want bacon-flavored chips without having to take a six hour trip both ways, dammit!).

Re:Americans. You think the USA is bad? (1)

Cwix (1671282) | more than 3 years ago | (#34362660)

They have bacon flavored potato chips? Is there a petition I can sign or something?

Re:Americans. You think the USA is bad? (1)

VanGarrett (1269030) | more than 3 years ago | (#34362918)

The milk comes in bags, too. Wrap your head around that one.

Re:Americans. You think the USA is bad? (1)

JustOK (667959) | more than 3 years ago | (#34363394)

it's not in bags, those are reprocessed cow's udders.

It's just so broken... (5, Insightful)

PerformanceDude (1798324) | more than 3 years ago | (#34361620)

Software and business methods should not be patentable - if for no other reason that most software patents are written by lawyers and therefore incomprehensible. Time and time again we are required in software contracts to warrant that we do not infringe on third party rights including patents. It is an impossible warranty to give as it is impossible to know if you do. There are so many software patents granted in so many esoteric minute little areas that for any remotely complex software you could spend a lifetime searching and trying to figure out if you did infringe on someone's patent. And the odds are very high that somehow you do. So you sign the contract knowing full well that you most likely are in breach, but the odds of you getting sued are sufficiently low to take the risk. How software and business method patents could possibly encourage innovation is beyond me.

Re:It's just so broken... (2, Informative)

tomhudson (43916) | more than 3 years ago | (#34361816)

Especially not patents on stuff that's an inevitable result.

1. IF the person is not logged in, then they have to log in to pay for something/

2. IF the person is logged in, if they don't have payment info on hand, request it.

3 IF the person is logged in and their payment info is on hand, just let them buy it.

There's no "creativity" in what's an obvious step - and actually easier to implement than a shopping cart.

-- Barbie

Re:It's just so broken... (2, Insightful)

AchilleTalon (540925) | more than 3 years ago | (#34361920)

Well, you are wrong, it encourages innovation in many ways, just think about how the lawyers are innovative finding new stuff to patent.

Re:It's just so broken... (1)

JonySuede (1908576) | more than 3 years ago | (#34362064)

you should be moderated way higher than you are, This phares is insidhgtfull as hell :

So you sign the contract knowing full well that you most likely are in breach, but the odds of you getting sued are sufficiently low to take the risk. How software and business method patents could possibly encourage innovation is beyond me.

Re:It's just so broken... (2, Insightful)

VanGarrett (1269030) | more than 3 years ago | (#34362942)

It encourages innovation by, in a legal sense, forcing developers to come up with new ways to accomplish given tasks.

Granted, this theory, while good, falls short of the goal. There may be a thousand different routes you can take to get to Disneyland from your house, but only one of them will be the fastest, and most of them will be ridiculous. If lawyers and law makers understood this sort of logic, then we'd be in a much better place, now.

Re:It's just so broken... (0)

Anonymous Coward | more than 3 years ago | (#34363036)

Agree. Moreover, I feel like between copyright (which has some uglier aspects that need fixing) and business secrets, software and business methods have sufficient protection to innovators.

Re:It's just so broken... (2, Interesting)

WidgetGuy (1233314) | more than 3 years ago | (#34363172)

Software and business methods should not be patentable - if for no other reason that most software patents are written by lawyers and therefore incomprehensible.

Almost all patents are written by (patent) lawyers. I do know one guy who received two "method" patents and wrote each one himself. But, that's the exception to the rule. Patents appear to be incomprehensible by design. Call it job security for patent lawyers. If we apply your criteria to all patents, we'd have very few patents (and fewer patent lawyers). Good luck with that.

Time and time again we are required in software contracts to warrant that we do not infringe on third party rights including patents. It is an impossible warranty to give as it is impossible to know if you do. There are so many software patents granted in so many esoteric minute little areas that for any remotely complex software you could spend a lifetime searching and trying to figure out if you did infringe on someone's patent. And the odds are very high that somehow you do. So you sign the contract knowing full well that you most likely are in breach, but the odds of you getting sued are sufficiently low to take the risk.

The courts are fully aware of how it would be impossible for any individual to have complete knowledge of all patents that exist in his or her area of expertise. It's highly unlikely a suit would be brought against you for that reason alone. Then there is also the fact that the plaintiff (whomever asked you to sign that type of document) probably would not win unless they could prove you did, in fact, know about the particular patent(s) they are being sued for infringing when you signed that document.

How software and business method patents could possibly encourage innovation is beyond me.

They encourage innovation for the same reason Industrial Age patents encouraged innovation: they give the "ingenious little guy/company" very powerful protection from greedy people (or bigger companies) with a lot of money who've never had an original idea in their lives. I suggest you study (Wikipedia articles) the history of patents in the development of telephony or radio and TV broadcasting. It would be compelling fiction -- if it were fiction.

The problem is not that the Patent Act is too broadly written. It was intentionally too broadly written. Better to have a bad patent issued from time to time than to reject a good patent (do that enough times and patents become meaningless). The PTO appeals process and, if necessary, the Federal courts are there to "sort things out" in the end.

The USPTO is a conservative institution by design. It is always difficult for these types of institutions to keep up with fundamental changes in society and the economy. The transition from the Agricultural Age to the Industrial Age (took about 300 years) and from the Industrial Age to the Information Age (took about 30 years) were (and continue to be) all difficult transitions for the USPTO.

Right now, the problem is not that software patents are being issued, it's that really, really bad software patents are being issued. This will only be fixed when Congress decides it's time to provide better training for current patent examiners and to hire more examiners with backgrounds in Information Age technologies.

Re:It's just so broken... (1)

Theaetetus (590071) | more than 3 years ago | (#34365774)

Software and business methods should not be patentable - if for no other reason that most software patents are written by lawyers and therefore incomprehensible.

If that's your sole reason, then why should anything be patentable? Machines? Nope, those patents are written by lawyers. Pharmaceutical compounds? Nope, written by lawyers.

Really, it seems that your complaint is that you can't understand it. Should we abolish software because many people can't read assembly?

Time and time again we are required in software contracts to warrant that we do not infringe on third party rights including patents. It is an impossible warranty to give as it is impossible to know if you do. There are so many software patents granted in so many esoteric minute little areas that for any remotely complex software you could spend a lifetime searching and trying to figure out if you did infringe on someone's patent. And the odds are very high that somehow you do. So you sign the contract knowing full well that you most likely are in breach, but the odds of you getting sued are sufficiently low to take the risk. How software and business method patents could possibly encourage innovation is beyond me.

Again, the same holds true in every industry. If your complaint is about all patents, then argue that. By only complaining about software and business methods, your arguments are inherently inconsistent.

Re:It's just so broken... (1)

scamper_22 (1073470) | more than 3 years ago | (#34369190)

Just what is the difference between 'hardware' patents and software patents or even business methods?

I understand people who are against all patents.
I understand people who are patents in all industries.

I don't get people who seem to think a patent on an innovation on say a new engine is valid... whereas software patents are not.
I remember a while ago, I saw an ad for the Toyota Prius... and it bragged it had over 1000 patents. Hands up if you think GM, Ford, Honda... in their regular day to day product development would not have found 99% of the 'innovation' in those Toyota patents. Yet, they suck it up and find a way around it or pay the license fees. In general, this is how hardware patents work. The hardware industry is just used to licensing and dealing with patents. Hardware patents are often just as ridiculous as software patents.

I have a brother who is a patent agent (mechanical)... and he reads patents every day that are 'obvious' and petty. His job of course is to get the patent though. And yes... most patents (software or hardware) are written by people with a legal AND technical background.
Believe it or not, those evaluating the patent at the patent office are also technically trained. It's just damn hard to play that game in a 'common sense' manner.

Software, coming from a different legacy... a lot of it university oriented or not sold directly is not used to this. So they complain. The other big part is the low-barrier to entry in software. So you can start a business in software and have to deal with all these issues like patents and licensing. The barrier to entry in say the automobile industry is much higher. So few people without a full legal and patent team are going to be entering the business. Lastly of course is that software is a new field... so areas are hot for innovation. So there's lots of patent activity. Read up on the history of the automobile when it was fresh... and you'll see the same patent craziness there.

There are loads of problems with patents in general (too obvious, hard to know if you're infringing....) but I just don't get people who say software patents are less valid than hardware patents. Do us all a favor.... get a mechanical engineering degree, and then go read some hardware patents...you'll run into all the same issues you see in software. It's just really hard within a legal framework to determine 'obviousness'.

Anonymous Coward (2, Informative)

Anonymous Coward | more than 3 years ago | (#34361722)

Relax guys, it's only happened at the First Instance Court. These kinds of decisions need to be taken by the Supreme Court before having full effect. In time, it will get there and we will know the state of the Law, for now just be patient.

What? Now one can patent ideas as as well? (2, Funny)

bogaboga (793279) | more than 3 years ago | (#34362022)

"...After last month's unfortunate ruling by Canada's Federal Court that Amazon's 1-click shopping idea could be patented..."

It's been my understanding that the only things that are patentable are 'methods' but not 'ideas'. So are we in the regime that supports the notion of patenting ideas?

If that's the case, I better file a patent application for the idea of having the computer 'read my mind' then enable the typing of my thoughts. This can be useful in saving folks what has come to be known as carpal tunnel syndrome.

How about that?

Phelan: a change in the customer is sufficient (2, Interesting)

goldfndr (97724) | more than 3 years ago | (#34362078)

Something enabling the typing of your thoughts would be patentable according to Phelan:

Tangibility is not an issue. The “physical effect”, transformation or change of character resides in the customer manipulating their computer and creating an order. It matters not that the “goods” ordered are not physically changed.

Per Phelan, you are changed.

Not a problem (2, Funny)

east coast (590680) | more than 3 years ago | (#34362086)

The Canadians have the situation in hand [youtube.com] .

While they're at it... (1)

fishexe (168879) | more than 3 years ago | (#34362098)

...can they rule on what is and isn't "obvious" and what is and isn't "prior art"? These terms clearly don't have the same meaning in the world of business method patents that they do in patents for physical devices, let alone common language.

why the editorial? (3, Insightful)

numbscholar (1939936) | more than 3 years ago | (#34362188)

I'm not trying to be a troll or anything, honestly I'm new to Slashdot, but why would they report a court ruling as "unfortunate"? I honestly don't know enough about the issue yet to have an informed opinion, but it seems the poster or Slashdot wants for me to have the preconception that this is not a good thing.

Re:why the editorial? (0)

Anonymous Coward | more than 3 years ago | (#34362354)

They're called groupthink guidelines, and are included every few articles so we know how to think. Without them, there'd be chaos and arguing.

Re:why the editorial? (0)

Anonymous Coward | more than 3 years ago | (#34363398)

The "groupthink" is by the copyright middlemen and their shills actually. They like to pretend that slashdot does not have a diversity of opinions because it suits their agenda.

Re:why the editorial? (1)

Haedrian (1676506) | more than 3 years ago | (#34363224)

The general consensus about /. users is that software patents ruin the economy and are an immensly stupid idea.

So the editor is basically speaking the majority consensus. That said, I doubt anyone wants to have one click shopping patented - except of course Amazon.

Re:why the editorial? (1)

vegiVamp (518171) | more than 3 years ago | (#34373386)

You are mistaken: quite a few people want one-click shopping patented - Amazon was just the first to think of it.

Re:why the editorial? (1)

Haedrian (1676506) | more than 2 years ago | (#34373498)

Only because they want to deny the other people use of one-click shopping.

What I meant is "I doubt anyone wants Amazon to have the one-click shopping patent"

If there was no patent, everyone could have one-click shopping and be happy.

Re:why the editorial? (1)

Theaetetus (590071) | more than 3 years ago | (#34365792)

I'm not trying to be a troll or anything, honestly I'm new to Slashdot, but why would they report a court ruling as "unfortunate"? I honestly don't know enough about the issue yet to have an informed opinion, but it seems the poster or Slashdot wants for me to have the preconception that this is not a good thing.

Ciaran, the article poster, runs the "End Software Patents" wiki. Although a nice guy, he clearly has a bias in this area. Take the summary with a grain of salt.

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