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Easy Fix For Software Patents Found In US Patent Act

Soulskill posted more than 2 years ago | from the hidden-where-nobody-would-look dept.

Patents 172

WebMink writes "What if there was an easy, inexpensive way to bring software patents under control, that did not involve Congress, which applied retrospectively to all patents and which was already part of the U.S. Patent Act? Stanford law professor Mark Lemley thinks he's found it. He asserts that the current runaway destruction being caused by software patents is just like previous problems with U.S. patent law, and that Congress included language in the Patent Act of 1952 that can be invoked over software patents just like it fixed the earlier problems. All it will take is a future defendant in a patent trial using his read of a crucial section of the Patent Act in their defense to establish case law. Can it really be that easy?"

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Betteridge's Law (1, Offtopic)

Apocryphon (1849660) | more than 2 years ago | (#41334877)

No.

Re:Betteridge's Law (0)

Anonymous Coward | more than 2 years ago | (#41334919)

Only applies when headline ends with a question mark.

Re:Betteridge's Law (2, Funny)

t4ng* (1092951) | more than 2 years ago | (#41335489)

The url *does* have a question mark after the headline!

Re:Betteridge's Law (5, Insightful)

NeutronCowboy (896098) | more than 2 years ago | (#41334945)

Or, to elaborate a little further: this isn't a puzzle, an Indiana Jones movie, or even science, where there's an Aha! moment, and suddenly a century of mystery is conclusively revealed. It's the law, open to interpretation by at least 3 people, if not 15 or even 200. There is no final truth in the law, there's only your own power to convince someone else that your words carry more weight. If what Lemley says is true, and even if he does win it, I can also guarantee you that the law will be changed to fix whatever loop hole he found.

I have zero faith that he can convince a judge or a jury that he's right, and I have even less faith that congress critters won't change the law to fix his interpretation.

Re:Betteridge's Law (2, Insightful)

Anonymous Coward | more than 2 years ago | (#41335027)

It's not actually a loophole. Patents are supposed to cover a specific approach to solving a problem, not the ability to solve a problem at all.

Re:Betteridge's Law (4, Informative)

jamstar7 (694492) | more than 2 years ago | (#41335279)

Give the bankrolls a couple minutes, they'll fix this. Easy fix. Trust me.

Re:Betteridge's Law (5, Insightful)

GodInHell (258915) | more than 2 years ago | (#41335161)

Actually, that's not at all true. In my practice there have a couple of times where I've found a case that leads me to a statute that none of the attorneys or the judge involved in the case knew existed. In one case I read the statute to the court and opposing counsel nonsuited (voluntarily dismissed) his own suit.

Practicing law is fun BECAUSE it is complicated and too big a field of knowledge for any one person to know everything - you learn over time, get better, find the tools that work for you and find new ways to apply them. But sometimes, you just need to sit down and plow through a 50 page statute to find the tool you need. We've got a half-dozen competing content filtering software tools that are supposed to make the job easier, but there's just no replacement for starting with the written law.

Anyway, I'm not saying this guy has found a "we win" button, but its good to see the academics turning their attention back to solving problems that actually happen in court /today/.

Re:Betteridge's Law (3, Interesting)

NeutronCowboy (896098) | more than 2 years ago | (#41335347)

Finding a case that leads to a statute is a bit different than simply interpreting a very well known law. But I grant your point that the body of law is so vast that it is not possible for someone to know everything, which makes it entirely possible to have an Aha moment. I just don't see this particular interpretation to be novel. It reminds me more of Eben Moglen's approach to fixing copyright by arguing that the current copyright system provides for essentially infinite copyright, which is unconstitutional. Pretty much everyone knew that that was the case in practicality, but he still got roundly shot down before the Supreme Court.

Re:Betteridge's Law (2)

NeutronCowboy (896098) | more than 2 years ago | (#41335525)

Err, make that Lawrence Lessig. That's what I get for not actually reading the Google search results.

Re:Betteridge's Law (0)

Anonymous Coward | more than 2 years ago | (#41335961)

No, lessig made a free speech argument before the court that got shot down. The close of "Free Culture" (the book he wrote about it) discusses how he should have made the infinity -1 is still infinite argument.

Good point (2)

voss (52565) | more than 2 years ago | (#41335391)

Im sure judges are getting tired of all these patent suits and would happily hang their hat on whatever point of law that would produce the most productive and expeditious result consistent with due process. If a court can narrow the application of a law in a way that reduces their workload, you bet they will.

Re:Good point (2)

Type44Q (1233630) | more than 2 years ago | (#41335619)

Im sure judges are getting tired of all these patent suits...

Replace "patent suits" with "briefcases full of cash." Nope, I don't think they're getting tired, yet...! :p

Judges (0)

Anonymous Coward | more than 2 years ago | (#41335725)

Every judge that has heard a patent case and not noticed this part of the law should be impeached for dereliction of duty. There is no excuse for a judge not to know the law that she is enforcing. Ignorance of the law is no excuse.

Re:Judges (5, Informative)

Anonymous Coward | more than 2 years ago | (#41336101)

I don't think you understand courts and judges. Judges aren't sheriffs. They don't enforce the law. They're more like referees in that they make sure both sides play fair in the court of law. It's up to the lawyers to present and support their case, a judge simple decides who made their case. If a lawyer chooses the wrong cases from previous trials to support his argument (essentially, he fails to support his argument), then he loses - more specifically, his client loses.

People give lawyers and judges a hard time, but they're the one preserving our liberties. We don't give them enough credit. The people who should be blamed for our problems are the idiots who write the laws. Lately that's been private interests and lobbyists and not our representatives.

Re:Judges (1)

hoggoth (414195) | more than 2 years ago | (#41336625)

THIS

Even if a judge knows a better argument a lawyer could be making he cannot step in and help. It's up to the lawyers to present their case as best they can.

Re:Betteridge's Law (2)

pr0t0 (216378) | more than 2 years ago | (#41335753)

It's good to see that an actual attorney is weighing in on this. It provides, at least for me, a better perspective on where the profession stands.

If ever my life, my family, or my livelihood is on the line in a courtroom; I will try to remember that my attorney is "having fun".

Re:Betteridge's Law (0)

Anonymous Coward | more than 2 years ago | (#41335879)

plz to take stick out of backside, k thx.

seriously, would you rather have an attorney who's in it for the money, and only the money, or one who finds legal research -- which is frequently left to the paralegals and students of the world -- interesting and enjoyable, with the money a nice reward for a rather intensive career? "fun" is much higher on my list of good responses to "why are you practicing law?", certainly much higher than "profit." and I'm sure the OP meant "I enjoy the challenge inherent to..." not "I find it entertaining when my client pays me and the other lawyer and I just go get lunch and flip a coin for who gets this one."

Re:Betteridge's Law (3, Insightful)

GodInHell (258915) | more than 2 years ago | (#41336695)

Would you rather hire an engineer who genuinely enjoys their work, so much so that they spend much of their free time pursuing their love of design and engineering work (i.e. free practice and training) or one that only ever looks at a problem when he's paid to do so and stops as soon as he finds an answer? I very rarely stop thinking about my cases, even when I've been off the clock for hours, I'm still mulling over the issues and trying to find better arguments. For me, its a passion.

Re:Betteridge's Law (4, Insightful)

Zadaz (950521) | more than 2 years ago | (#41335843)

Practicing law is fun BECAUSE it is complicated and too big a field of knowledge for any one person to know everything

I can't tell you how sad this makes me. Law's only purpose is to serve the people. If the people can't understand it then we're fucked.

Re:Betteridge's Law (4, Insightful)

sootman (158191) | more than 2 years ago | (#41336289)

> Practicing law is fun BECAUSE it is
> complicated and too big a field of
> knowledge for any one person to
> know everything...

Yes, FUN! And it's not like anything important is at stake. Not like anyone's life ever got ruined because of cases like you described. No one ever went to jail, lost their job, their business, their family, all their savings, etc., because no one playing was aware of the law that could have freed them. FUN, I tell you!

And it's not like the deck is stacked against the little guy in the first place, or that big companies with big war chests win solely because they have more money to throw at a problem. Or win by attrition. Or that they bought unjust laws in the first place. Yes, it's just LOADS and LOADS of FUN!

Re:Betteridge's Law (4, Insightful)

Anonymous Coward | more than 2 years ago | (#41336839)

Just because a job is important doesn't mean that those who do it aren't allowed to enjoy themselves.

Re:Betteridge's Law (1)

tobiah (308208) | more than 2 years ago | (#41336847)

This is something about law I don't understand, which is how the hierarchy is determined. When a new law is in conflict with an old law, which one takes precedence? Sometimes the new law will specifically address the old one, but with so many out there it must be easy to miss some (like this one). Was there a newer law dismissing this 1952 law? Here it seems like modern practice is in conflict with old law, but that still seems to win out as often as not.

Re:Betteridge's Law (0)

Anonymous Coward | more than 2 years ago | (#41335121)

That only applies if it's in the headline, dipshit.

Oh, wait... are you trying to discredit that godawfully annoying meme by humorous misapplication of it? Oh. Oh, my. Sorry, sorry, please, do carry on. I'll stay out of your way, then.

Quick, lets patent the fix and license it. (4, Funny)

BMOC (2478408) | more than 2 years ago | (#41334897)

... we'll generate enough cash to... oh wait ... so many people in power don't want to fix the patent system... nevermind.

It does not matter (5, Insightful)

blind biker (1066130) | more than 2 years ago | (#41334925)

The letter of the law doesn't matter. The spirit of the law doesn't matter. The constitution of the USA doesn't matter.

Do you have money? Power? That matters. And as long as the powers to be want software patents, that's what you'll have, the way it is right now.

Re:It does not matter (1)

lunk (80231) | more than 2 years ago | (#41334957)

....And eventually the fuedal system failed.

Re:It does not matter (3, Insightful)

redneckmother (1664119) | more than 2 years ago | (#41335111)

....And eventually the fuedal system failed.

"I'm not sure about that," said the Serf.

Re:It does not matter (1)

Anonymous Coward | more than 2 years ago | (#41335183)

....And eventually the feudal system failed.

And the education system shortly thereafter...

Re:It does not matter (5, Insightful)

dpilot (134227) | more than 2 years ago | (#41335315)

Funny thing about the feudal system... From the historical perspective, rather than the feudal system failing, it has been implementations of the feudal system failing. In the words of The Who, "Meet the new Boss, same as the old Boss." One dynasty falls, another takes it's place. Even if the new dynasty begins with non-feudal hopes and aspirations, it generally falls into the feudal mold within a few generations. Then the new dynasty itself becomes the old dynasty, that falls to a newer dynasty.

It's really a failing of traditional human nature - we all want to do well by our family - or tribe. That is well and good, until it becomes barriers to the success of others. Like it or not, my family or tribe may not be the best-suited for a given role or position, but if they have that station due to dynastic or influences of oligopoly when others are more capable, then society suffers and becomes weaker.

Re:It does not matter (2)

gbjbaanb (229885) | more than 2 years ago | (#41336529)

The medieval world failed mainly because of the black death. So many peasants died that the lords, relatively safe in their relatively clean manors, had no-one to bring food and taxes to. As the peasantry migrated away from villages that had been decimated by plague, the entire feudal "I own your ass" system could no longer be enforced.

The ancient English system failed mainly because the Normans came in an kicked arse. And the Roman system failed when the barbarian hordes came and kicked arse (and, of course, succeeded because the Roman state became too soft and corrupt to defend itself). In every case, there will be enough people defending the status quo that changing the system becomes very difficult - not always the people benefiting from being in power either, plenty of 'peasants' fear and dislike change.

The interesting thing is that practically no-one has ever overthrown a bad system themselves, its always left to external factors to make the change - plague, power vacuum, or migrating hordes of invaders due to food supply problems.

The best you can hope for is to pop up, make enough of a fuss, and after the authorities have carted away your broken body, other people rise up in your name.

Re:It does not matter (0)

Hatta (162192) | more than 2 years ago | (#41335327)

It did? I think we just changed aristocracies. Wealth distribution in the middle ages was pretty similar to the inequality we see today. And back then serfs spent less of their time working for their lords than we do today. They actually got to keep a higher percentage of their production than wage slaves do today.

The feudal system didn't fail, it just modernized.

Re:It does not matter (5, Insightful)

plover (150551) | more than 2 years ago | (#41335547)

There's a big difference. Almost all of the "serfs" today (at least the ones living in America) have shelter, food, clothing, running water, heat, electricity, lighting, TV sets, refrigeration, cell phones, cheap and fast transportation, medical services, borders secure from invasion, and on a level far surpassing the living standards of even the kings of the middle ages.

Sure there's inequity. The balance of wealth distribution is today skewed beyond understanding. I don't have a four-Lamborghini garage, or a stable of race horses; I have a ten-year-old Ford truck and a couple of dogs. But when you start worrying about how bad we have it in comparison to the 1%, or whine about money spent on taxes, try to also compare yourself to the 99% from 150 or more years ago. We live better today than every single human ever prior to 1850.

Re:It does not matter (0)

Anonymous Coward | more than 2 years ago | (#41335453)

It failed due to supply and demand. The black death caused a lack of population to work the land. if your master not treat you well then you could run away and get better conditions someplace else.

Re:It does not matter (1)

Type44Q (1233630) | more than 2 years ago | (#41335653)

....And eventually the fuedal system failed.

Nope; the rulers just wised up and now rule by proxy (parliamentary system), from behind their curtain.

Re:It does not matter (1)

Compaqt (1758360) | more than 2 years ago | (#41335145)

What's puzzling to me is why Samsung chose a jury trial. Why would they do that, since juries are famously dumb.

Re:It does not matter (1)

Nerdfest (867930) | more than 2 years ago | (#41335211)

Overestimating the intelligence of the public, something Apple, and most other American companies learned not to do a very long time ago.

Re:It does not matter (1)

squiggleslash (241428) | more than 2 years ago | (#41336293)

My guess? They didn't want the decision to be Judge Koh's.

Re:It does not matter (1)

Anonymous Coward | more than 2 years ago | (#41335217)

In other words, a government big enough to give you everything you want is necessarily big enough to take everything you have -- from your god-given right to self-ownership to your god-given right to free association (natural human right if you prefer).

Re:It does not matter (1)

Type44Q (1233630) | more than 2 years ago | (#41335671)

Mod parent up.

Seriously. (1)

aussersterne (212916) | more than 2 years ago | (#41335357)

All it has to do is win in court with an argument that by all appearances to this layperson has failed already many times in patent cases.

"All it has to do to win is not lose yet again" seems tautological to me. But I'm not a lawyer.

I'd love it if the lawyers here responded that this was in fact under the subtleties of the existing law an entirely new tack that is likely to be a winner in an actual case and establish the given precedent.

I would love it even more if it actually happened. But this (again:) layperson wouldn't be likely to bet on such an outcome within our current system using actual betting dollars.

Re:It does not matter (5, Interesting)

eepok (545733) | more than 2 years ago | (#41335437)

This is not insightful. It's ignorant of history, truth, and completely hyperbolic.

The truth is that the US judicial system has been *the* floodgate that opens to change from status quo rather consistently. Civil rights, women's rights, rights to contraception and inter-racial marriage. The three branches of our government all have their flaws, but the one that has consistently had less to do with bribes and pressure has always been the judicial.

Defeatism is surrender to the cause you hate. Apathy is just short of volunteering for that cause you hate.

Re:It does not matter (0)

Anonymous Coward | more than 2 years ago | (#41336121)

Mod parent up, immediately.

Re:It does not matter (1)

jazman_777 (44742) | more than 2 years ago | (#41335973)

Or in the words of Sollozzo in The Godfather, trying to get Corleone to help him out with access to "all those judges and politicians you keep in your pockets like so many nickels and dimes."

He is wrong. (-1, Offtopic)

Stumbles (602007) | more than 2 years ago | (#41334937)

His flaw is the assumption that software which is nothing more than math falls in the realm patents. It doesn't. Any Darwinian monkey would know this.

Re:He is wrong. (2, Informative)

Anonymous Coward | more than 2 years ago | (#41335051)

His flaw is the assumption that software which is nothing more than math falls in the realm patents. It doesn't. Any Darwinian monkey would know this.

No, his awareness is that, however silly it may be, the courts have to this point declined to declare math implemented in a software algorithm as unpatentable. Given that reality, he outlines a possible approach to mitigating the resulting damage.

Your assumption is that common sense matter in a court of law. It does not.

Re:He is wrong. (1)

KermodeBear (738243) | more than 2 years ago | (#41335417)

Your assumption is that common sense matter in a court of law. It does not.

This is one of the most important things one can understand about the law system. My father started to study law and attended law school, something to occupy himself with in his older years. He regularly blew my mind by telling me about court decisions that not only bypassed common sense, but also morality, and kept going into the realm of truly messed up.

The court room has nothing to do with the real world, real experiences, common sense, morality, or anything a sane person might recognize. It's a separate world with its own strange rules, and the only way we mere mundane mortals can tap into it is through our spirit shaman lawyers.

Re:He is wrong. (2, Insightful)

Anonymous Coward | more than 2 years ago | (#41335117)

Software is Algorithms. Algorithms are methods of achieving a goal. Patents are for novel non-obvious devices or methods.

The claim that software shouldn't be patentable because "it's just math" isn't very strong. By a similar argument all patents could be invalidated because physics is just math and machines are simply applying physical algorithms. Furthermore the "physical things are different from virtual things" meme is going to hold society back in the long run so we may as well start getting rid of it now.

What needs to be reformed in software patents is the distinction between abstract algorithms and applied algorithms (so you can't patent "merge sort", but you could patent a particular formulation of a recursive merge sort).

Re:He is wrong. (3, Informative)

TheRealMindChild (743925) | more than 2 years ago | (#41335587)

Copyright already solves this problem. If I copy the exact way you do it, copyright grants you protection (like writing the same paragraph as you in my thesis). If I come up with a different way to accomplish the same thing (as in, found a way to copy documents that isn't the same way a Xerox machine works), I should be allowed to. I can't see anything other than personal agenda to disagree with this

Re:He is wrong. (1)

drewco (1631735) | more than 2 years ago | (#41336309)

Copyright doesn't solve the problem because they would simply protect the "text" and not the actual invention itself, which is why patents are used for software (in conjunction with copyright).

Re:He is wrong. (1)

parkinglot777 (2563877) | more than 2 years ago | (#41335707)

Software is Algorithms.

Huh? I can't agree that software is algorithms. Software is an implementation of algorithms, not algorithms. You cannot patent algorithms, but you can patent their implementation...

Re:He is wrong. (1)

mark-t (151149) | more than 2 years ago | (#41336253)

Ah... but the point being raised here is that you currently *CAN* patent algorithms... as long as the algorithms are considered sufficiently complex to be allegedly "non-obvious". That's the crux of the problem.

Re:He is wrong. (1)

Anonymous Coward | more than 2 years ago | (#41336179)

...because physics is just math ...

No, it's not. Mathematical language is used to describe physical ideas and theories much as English or French are used to describe news events.

Re:He is wrong. (3, Insightful)

mark-t (151149) | more than 2 years ago | (#41336229)

Except physics isn't math. We can model physics with mathematics, but that doesn't mean they are literally the same thing.

Conversely, algorithms *ARE* math. This is entirely provable (a good text on the theoretical foundations of computer science might even describe such a proof), but probably not readily comprehensible to people who do not have a very thorough understanding of mathematics and mathematical proofs (which is, I'm afraid to say, most people... including even a lot of computer professionals).

Re:He is wrong. (1)

erroneus (253617) | more than 2 years ago | (#41336757)

Wait? Aren't methods no longer patentable? Well, business method patents anyway. But a method, a way of doing something, should be equally disallowed. And in the case of software, it's still a method... a way of doing something... as directed by a set of instructions readable by a computer/processor device.

Re:He is wrong. (0)

Dog-Cow (21281) | more than 2 years ago | (#41335231)

The parent post isn't Offtopic (current mod as I write my own comment), it's simply false. And the poster is a fucking idiot. Clearly he hasn't even reached the intelligence of a Darwinian Monkey.

Re:He is wrong. (1)

gstoddart (321705) | more than 2 years ago | (#41335407)

His flaw is the assumption that software which is nothing more than math falls in the realm patents. It doesn't. Any Darwinian monkey would know this.

You know, I've worked in the software industry for a long time.

As much as what computers do is expressible in math and formal logic, the actual act of doing most forms of writing of software (unless it's strictly doing math) is actually nothing at all like math in my mind.

Sure, it's logic and problem solving. But breaking the problem up into manageable chunks and object classes often seems more analagous to modelling real things than math ... and when you abstract away how you actually implement things, "a container which holds things" and modelling the functionality an object class incorporates isn't what I'd call rigid mathematical concepts.

As much as the final code is essentially a manifestation of math, to me the actual process bears no resemblance to math. Largely because things tend to be done as a representation of something which is more based off how a real, physical thing would behave.

Re:He is wrong. (2)

shugah (881805) | more than 2 years ago | (#41336103)

What would a non-Darwinian monkey be?

At any rate, you're wrong. While some functions of software are functionally mathematical/algorithmic in nature (sorting, searching, recursion, iteration, encryption, compression, etc.) most software developers would be hard pressed to describe or express their work as a whole in mathematical terms. Requirements definition, human factors / usability, prototyping, supported interfaces, etc. are approached from a form and function perspective, not a mathematical perspective.

This should work, in theory (0)

Anonymous Coward | more than 2 years ago | (#41334947)

but good luck with the jury.

Re:This should work, in theory (0)

Anonymous Coward | more than 2 years ago | (#41335369)

This is a legal point, not a factual point. The jury is irrelevant. This will be decided by judges.

Retrospectively? (3, Insightful)

Radak (126696) | more than 2 years ago | (#41334969)

Pretty sure submitter meant retroactively.

Re:Retrospectively? (5, Funny)

witchman (214735) | more than 2 years ago | (#41334991)

I'm sure that, in retrospect, he did.

Re:Retrospectively? (-1)

Anonymous Coward | more than 2 years ago | (#41335455)

I'm sure that, in retroact, he did.
BTFY

The Professor's Article is as Inaccessible as Law (2, Interesting)

Anonymous Coward | more than 2 years ago | (#41334999)

It's relieving to hear somebody may have found an existing law which would end the patent debacle, but the problem remains that the law is not clear to the average person. Even this paper hoping to clarify what the law says just looks like 57 pages of MSWord to me, and I feel at the whim of the high powered attourneys and politically charged judges to interpret it.

Herman Cain may not have been a quality pick for president, but I'm beginning to think his mantra of "simplify the law so the public understands it" has something to it.

On a computer (1)

maroberts (15852) | more than 2 years ago | (#41335005)

but only the particular means of implementing that goal described by the patentee and equivalents thereof.

The problem is that the means of implementing that goal is described in the vague term "on a computer". Sometimes it expands this into the various components of a computer, but I suspect it's still enough to walk round the functional claiming defense mentioned.

Re:On a computer (1)

Anonymous Coward | more than 2 years ago | (#41335355)

Actually, it could restrict the patent claims. Means plus function patents tend to be limited to the specific implementation disclosed, regardless of the broad language of the claims. Thus "on a computer" would mean the specific computer described in the specification. i.e a specific architecture and/or OS. Failing to describe a specific computer could be regarded as not fully teaching the invention, which is grounds for invalidation.

This cant work either (3, Funny)

JustNiz (692889) | more than 2 years ago | (#41335013)

He said:
>> If courts would faithfully apply the 1952 Act, limiting those claims to the actual algorithms the patentees disclosed and their equivalents,

Clearly the authors were thinking non-obvious stuff with complexity such as a Fourier Transform would be patentable but how about just parts of it? What is the smallest/simplest functional thing that could constitute an algorithm?

If this gets enacted as case law the obvious next step is that Apple will patent the 'for' loop and Microsoft will licence the 'if' statement.

Re:smallest/simplest functional thing (1)

TaoPhoenix (980487) | more than 2 years ago | (#41335213)

It can get pretty small.

It just needs to be somewhere few people have looked at. You can define an algorithm for any two numerical values added together. We keep thrashing into the Obvious problem because nobody/one lonely guy in the Midwest USA/ thinks of stuff like adding the Weight Watcher Point Count of your fridge contents with the number of times you ordered takeout to get your average ranking of a recreational gamer/nerd/techie.

See how fun it gets? It's not obvious - but once you hear it you can't "unhear it" so then it sounds obvious 7 minutes later. It doesn't even have to work. It's just an algorithm.

Re:This cant work either (0)

Anonymous Coward | more than 2 years ago | (#41335323)

Math can't be patented. The argument among many is of course that software is only a bunch of math. The counter argument is it is a process performed by a machine and therefore is patent-able. The argument is that you can patent the process that performs a function, but not the function. You could therefore patent algorithm f that compresses data, but not the end result (compressed data). So I guess you can patent iOS software that performs the function pinch to zoom, but you can't patent pinch to zoom.

I'll be standing by, hopeful but not optimistic.

Re:This cant work either (0)

Anonymous Coward | more than 2 years ago | (#41335359)

...

If this gets enacted as case law the obvious next step is that Apple will patent the 'for' loop and Microsoft will licence the 'if' statement.

Gee, I thought I'd argue "prior art", but then again a box with rounded corners has no prior art....

Re:This cant work either (1)

sumdumass (711423) | more than 2 years ago | (#41336805)

But would Prior Art include the reference implementation "on a phone" which seems to be the standard for at least one of those companies to claim new and novel instead of repeating and obvious.

Re:This cant work either (2)

gtirloni (1531285) | more than 2 years ago | (#41335379)

Haven't they? I demand a refund on my licensing fees!

Re:This cant work either (1)

cfulton (543949) | more than 2 years ago | (#41335399)

From the complete PDF:

This is a problem that is unique to software. We wouldn’t permit in any other area of technology the sorts of claims that appear in thousands of different software patents. Pharmaceutical inventors don’t claim “an arrangement of atoms that cures cancer,” asserting their patent against any chemical, whatever its form, that achieves that purpose. Indeed, the whole idea seems ludicrous. Pharmaceutical patent owners invent a drug, and it is the drug that they are entitled to patent. But in software, as we will see, claims of just that form are everywhere.

And I think he makes a good point. The problem being that we can already copyright the code. So, if patents can be applied at all then they must be applied to the purpose of the code.

If this gets enacted as case law the obvious next step is that Apple will patent the 'for' loop and Microsoft will licence the 'if' statement.

I don't believe that you could patent a 'for' loop or 'if' statement since they would have to be considered prior art in the public domain. But, it does seam that according to this guy you could patent c# because it is a specific way to achieve the function of a 'binary file derived from a human readable algorithm that can be run as a functional computer program."

Re:This cant work either (1)

w_dragon (1802458) | more than 2 years ago | (#41336435)

Pharmaceutical inventors don’t claim “an arrangement of atoms that cures cancer,”

Excuse me for a moment, need to fill out a patent application form...

Re:This cant work either (1)

shugah (881805) | more than 2 years ago | (#41336689)

You can't patent a "for" loop or "if" construct as these ARE algorithms. As for C#, you could probably copyright the language (and even that was called into question in the Oracle v. Google case) but a computer language is not an invention or an idea, rather it is a means to express an invention or idea.

Re:This cant work either (0)

Anonymous Coward | more than 2 years ago | (#41335429)

That seems a little hopeless. Did you forget prior art? This, if adopted, will probably only be applied when the patents are examined for litigation.

I also doubt they were thinking of Fourier Transforms or other mathematical algorithms, either, since patenting them or their parts would preempt nature. However, something that might be patentable would be a specific implementation of a DSP device that makes use of Fourier Transforms. Remember, reality exists outside of our senses and understanding, and these formulas are just our descriptions of its relationships. Patent law I think makes very clear that these types of things are not patentable.

Re:This cant work either (1)

swillden (191260) | more than 2 years ago | (#41335501)

If this gets enacted as case law the obvious next step is that Apple will patent the 'for' loop and Microsoft will licence the 'if' statement.

Wouldn't work, for at least two reasons.

First, the patent would have to cover use of an algorithm to accomplish a specific task, and patents that try to cover basic operations like "iteration" would be as successful as patents on "moving objects from one place to another" -- they would be too broad to be accepted (by courts, at least -- the PTO seems to accept everything).

Second, prior art for such basic algorithms as conditional branching is both plentiful and as old as you like -- at least back to the dawn of computer programming, and arguably far older than that.

What is the smallest/simplest functional thing that could constitute an algorithm?

Read the article (it's long, but I found it quite interesting). The author isn't proposing to allow algorithms to be patented -- that clearly isn't permitted at present, and shouldn't be, for a multitude of reasons. Instead, he's saying that under his interpretation of the current federal patent law, patents that say (or imply) something like "a computer programmed to do X" don't cover any software that can do X. Rather, they only cover the specific algorithms and processes the "inventor" used to do X. A competitor who creates a program to do X but who uses different algorithms is not infringing. To give a concrete example, if Samsung used a different algorithm for tracking the finger motion in its "swipe to unlock" implementation, then Apple's patent would be inapplicable. Apple's patent would still be valid, it just wouldn't apply.

This approach would be particularly devastating to patent trolls, because if the patent only covers the particular approach to implementation used by the inventor, but the inventor never actually implemented it, then clearly the patent covers nothing.

I think it's a very interesting idea. It depends entirely on the courts being willing to interpret some subtleties of the current federal law in a very particular way, and one which -- to my non-lawyerly eyes -- seems like a bit of a stretch, though. It will be interesting to see what other patent expert, and ultimately, judges, think of it, but it's certainly got merit. The result wouldn't be to invalidate software patents, but it would make it very, very easy for competitors to sidestep them. Maybe too easy. I haven't quite finished reading the author's section of possible objections to his theory; maybe he addresses that.

Re:This cant work either (0)

Anonymous Coward | more than 2 years ago | (#41336021)

not possible under this regime... while most programmers think of "for" and "if" as intrinsic operations, they are actually algorithmic specifications of a generalized computational structure -- Haskell's "monad" is as close to that structure as most people will ever come, and this is where you start to run into things like the typed lambda calculus.

Wow! (-1)

Anonymous Coward | more than 2 years ago | (#41335031)

All those cases with all those billion dollar companies and their million dollar patent attorneys. Yet, in all this time no one else saw the easy answer right there in front of them since 1952?

Hmmm.... (2)

Ghjnut (1843450) | more than 2 years ago | (#41335057)

No

Retrospectively? (0)

kiriath (2670145) | more than 2 years ago | (#41335089)

Surely you mean retroactively old boy?

Re:Retrospectively? (1)

kiriath (2670145) | more than 2 years ago | (#41335247)

Sorry, didn't see the duplicate post above. o.o

Easier solution (-1)

Anonymous Coward | more than 2 years ago | (#41335131)

Install teh Linux!!!!onehundredeleven!!!!

Sounds like a good idea ... (5, Insightful)

gstoddart (321705) | more than 2 years ago | (#41335137)

I do tend to agree that software patents have become about patenting the idea of implementing something and has become divorced from the specific implementation.

You can patent how you implemented something, but not the notion of doing it in the first place.

The infamous "One-click" patent, which as far as I'm concerned amounts to "a method and system for doing one of the operations of a system is capable of doing, but with a single button click by using already configured information" only they've added "when buying stuff".

Because there's a lot of things which people have implemented behind a single button which can easily gather several bits of data, assemble them, and take an action. In fact, it's damned near the Von Neumann model of "input, processing, and output".

We've had buttons before. We've bought stuff before. We've even bought stuff online before and have transaction processing which handles it. We've even allowed you to log into a system and be recognized as a distinct user for which we have information stored.

But as soon as a web-site presents you with a single button next to an item, and clicking it causes it to use the information already known about you (shipping address, credit card info) to process a transaction and initiate shipping ... well, clearly we have performed magic and nobody else could have possibly come up with this idea on their own.

The real problem... (5, Insightful)

JustNiz (692889) | more than 2 years ago | (#41335167)

While the US legal system is such that entities can drag even blatantly bogus lawsuits out for years, so winning against individuals and smaller businesses just by attrition of legal costs, fine-tweaking the definition of bogusness wont have even the slightest effect.

Re:The real problem... (-1)

Anonymous Coward | more than 2 years ago | (#41335287)

The real problem is that people aren't installing teh Linux!!!!onehundredeleventhousandonehundredelevenhundredelevendoteleven!!!eleven111

Re:The real problem... (1)

jamstar7 (694492) | more than 2 years ago | (#41335387)

Too bad it's too late to patent 'litigate to annihilate lawsuits'. Oh, wait, it's a business process, unpatentable...

Re:The real problem... (1)

fustakrakich (1673220) | more than 2 years ago | (#41335585)

...fine-tweaking the definition of bogusness wont have even the slightest effect.

see sig?

If a twenty year patent on software is so bad, why isn't a hundred year copyright even worse?

Re:The real problem... (5, Interesting)

swillden (191260) | more than 2 years ago | (#41335607)

While the US legal system is such that entities can drag even blatantly bogus lawsuits out for years, so winning against individuals and smaller businesses just by attrition of legal costs, fine-tweaking the definition of bogusness wont have even the slightest effect.

I disagree.

In particular, if the courts were to adopt the proposed interpretation, the effect on patent trolls would be devastating. Defendants would be able to make a motion for summary dismissal on the grounds that the patent is a functional patent which under the 112(f) rule must be interpreted in reference to the details of the inventor's implementation, and since the inventor has no implementation there is no possibility of determining the boundaries of the patent and therefore the question is moot. And the motion would succeed. This would reduce such trials from years to weeks, because there would be no justification for a lengthy discover phase.

Even in non-troll cases, it would eliminate the need for most of the lengthy discovery that goes on now, because the defendant could easily argue that all of its internal documentation is simply irrelevant, since the case can be decided by examining the software implementations and determining if they're sufficiently similar. This would still result in trials dominated by detailed arguments from technical experts, so they'd still be expensive, but the cost would be a tiny fraction of what it is now, and it would take far, far less time without all of the extensive (and expensive) discovery.

Perhaps even better, it would encourage inventors (or their lawyers) to write patents which are very specific and narrow, specifically in order to avoid the sorts of broad functional claims which would invoke the author's interpretation of 112(f). Long-term, that would probably be the most important and most beneficial change to the status quo.

Would it be a panacea? Clearly not. But it would make the situation vastly better than it is now -- except from the perspective of patent plaintiffs pushing very broad patents.

Not so sure (2)

inglorion_on_the_net (1965514) | more than 2 years ago | (#41335317)

Here is the crucial quote from the abstract:

Most software patents today are written in functional terms. If courts would faithfully apply the 1952 Act, limiting those claims to the actual algorithms the patentees disclosed and their equivalents, they could prevent overclaiming by software patentees and solve much of the patent thicket problem that besets software innovation.

I'm not sure this would fix the problem. Sometimes, the fact that the algorithm is patented is the problem. Think about it: if a patent didn't cover the idea of generating a sorted sequence from a potentially unsorted one, but only covered quicksort and its equivalents, would that still be a problem? I'd say it's better than covering any implementation of any sorting algorithm, but I'm not sure the resulting situation is really where we want to be.

Re:Not so sure (0)

Anonymous Coward | more than 2 years ago | (#41335461)

if you could prove that you invented the quicksort, then a being granted patent on its implementation would be fair.

Re:Not so sure (0)

Anonymous Coward | more than 2 years ago | (#41336095)

and your name would probably have a couple of initial R's.

there was a heady period from 1945 to 1969 where you could get patents on things like that, and he did -- last I looked, he even had the patent on radix sort, which, given the implementation, should have been trivial.

Re:Not so sure (0)

Anonymous Coward | more than 2 years ago | (#41335473)

I think that this is where the author's ideas come in. You are describing the function. Quicksort is a function, and you can encapsulate what it does in a way that everyone understands (English sentences). What you are allowed to patent is the METHOD, not the function itself. The problem is that once it becomes a software issue most laymen (including judges) are not really able to decide where the line is. A judge with real understanding of the issues (like the Google/Oracle judge) are rare.

Re:Not so sure (2)

wvmarle (1070040) | more than 2 years ago | (#41335729)

Here is the crucial quote from the abstract:

Most software patents today are written in functional terms. If courts would faithfully apply the 1952 Act, limiting those claims to the actual algorithms the patentees disclosed and their equivalents, they could prevent overclaiming by software patentees and solve much of the patent thicket problem that besets software innovation.

I'm not sure this would fix the problem. Sometimes, the fact that the algorithm is patented is the problem.

The MP3 patents come to mind there. And, related, video compression patents.

And, in a way, this is exactly where I think a software patent is defendable. They did not just patent the idea of "compressing digital sound" but a very specific way of doing this. This company spent a lot of effort in developing this method of compression, and then patented it. Sounds pretty much like a "machine" to me.

Those patents are also not exactly a problem. As in: everyone can do mp3 decompression, you just may have to pay for a patent license. Also everyone can develop a new method of sound compression (e.g. ogg) and they're not running foul of the MP3 patent.

This is what patents were designed to do: encourage people to build new technologies, that they subsequently get a temporary monopoly on. Someone had a great idea on how to compress sound, they worked it out, and got their patent. In time it'll come into the public domain, and everyone can use it without restrictions.

Yes I hear you all, "20 years is too long because computing moves so fast". Then please go ahead and build a better technology and make the still patented one obsolete, get yourself a patent on it, and start making money. That's exactly how it's supposed to work. Or if this mp3 tech is really so good that you can't come up with something better, suck it up and pay your license fees. Intel definitely has many patents on their chip manufacturing tech, which is also moving fast, so very likely they have still valid patents on several generations of already obsolete tech.

Troublesome are the patents that cover an idea rather than an implementation, such as the infamous one-click patent. That's about the function of the button, not the implementation of the button. So everyone who wants to implement such a one-click purchase system, runs foul of the patent, even if they develop their own algorithms to do this.

Re:Not so sure (1)

tomhath (637240) | more than 2 years ago | (#41335731)

If I understand what you're saying, you could patent an implementation of quicksort written in C++ and compiled in Visual Studio. But I could write quicksort in Python and your patent doesn't apply (because quicksort is an algorithm - recursive partition sort).

Re:Not so sure (1)

gbjbaanb (229885) | more than 2 years ago | (#41336819)

I think the important part is this bit that explains it best:

When Congress rewrote the Patent Act in 1952, it adopted a compromise position: patentees could write their claim language in functional terms, but when they did so the patent would not cover the goal itself, but only the particular means of implementing that goal

so I can patent the concept of clicking once, but if someone else comes along and implements their own way of buying shit when someone clicks a button once, Amazon cannot own them - as Amazon's patent cannot cover the goal (of 1-click buying), nor cover all implementations. So they could still sue you if you stole their code and implemented it exactly as they did, but not if you did it a slightly different way - eg, if Amazon's done it in Python with blue "buy now" button, and you did it in PHP with a big red button... you'd be fine.

I think discussing this in terms of algorithms isn't too productive as they can't be patented anyway (as I understand it) but Apple's bounce-back could not be patented as Google could implement the same effect differently. Apple cannot hold a patent on the goal of indicating to a user the end of a list, just their way of implementing it - so I couldn't write the same thing in objective-C and steal the classes and/or code that makes this bounce happen. But Google can happily implement it using an entirely different set of software code.

Its like the old mousetrap thing - if mousetraps were software, someone would have patented " a means of catching mice using a device that traps mice" (on a smartphone :-) ) and that would be it for all would-be mousetrap inventors. But the patent office currently has a thousand mousetrap patents, each one achieving the same goal - of catching mice - but each one using a different means (ie software implementation).

Just for clarity. (5, Informative)

cfulton (543949) | more than 2 years ago | (#41335549)

Here is the language he is basing his entire argument on from the Patent Act of 1952 section 112(f)

An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

Just one problem... (0)

Anonymous Coward | more than 2 years ago | (#41335637)

... his interpretation of the patent law is copyrighted.

It's good to see... (1)

Balial (39889) | more than 2 years ago | (#41335667)

It's good to see, and a pleasure to read, rational discourse on patents who knows what the fuck they're talking about. Almost every single article about patents is so for wrong, calling it a straw-man argument is a joke. Let's have more articles like this on /., please.

A Nanotechnology Analogy (1)

BoRegardless (721219) | more than 2 years ago | (#41335739)

If an inventor claimed to own the function of nanoparticles altering the abosorption of wavelengths of light to increase the efficiency of a solar cell, then he could keep everyone else from using nano-particles to do that regardless of material or structure.

Hence, I can see the logic of the 1952 patent law structure in that you can patent a specific new structure leading to a good end result, but you can't patent "the release of radiation" from a light bulb type structure.

Tightening up enablement and written description (5, Informative)

Grond (15515) | more than 2 years ago | (#41335761)

What this boils down to is tightening up the enablement and written description requirements of 112 of the Patent Act, specifically with regard to the way functional claims are judged. This is not a particularly new idea, and quite a few people (including those that could be called 'pro-patent') have been saying for years that this is a reasonable way to address problems with lots of different kinds of patents, including software patents, that doesn't involve technology-specific changes to the law. I certainly have mentioned it on Slashdot many times (e.g. this comment from 2010 [slashdot.org] ).

One issue is that the use of functional claiming has been in pretty steep decline [patentlyo.com] for a few decades now. So I'm not sure just how many software patents this approach will catch, but it could be that software patents are one of the last holdouts for functional claiming. Alternatively, the courts could begin to interpret software patents as using functional claiming even when they don't use the traditional "means-for" construction. This is already done in some cases (i.e. "means for" is not a necessary magic phrase), but it could become more common.

The bottom line is that this is a call to restrict patenting to only that which the inventor actually discovered and actually described in such "full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains to make and use the same." In other words, to enforce the statute as written.

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