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Supreme Court To Review Software Patents

Soulskill posted about 10 months ago | from the put-on-your-game-face dept.

Patents 115

New submitter chrylis writes "SCOTUSblog is reporting that the U.S. Supreme Court has accepted an appeal in Alice v. CLS Bank, a case in which the Federal Circuit ruled haphazardly that the particular patents in question were invalid but did not address the issue of software patents generally. 'The case will provide a new test of the Patent Act’s most basic provision — Section 101, which broadly outlines what kinds of inventions are patentable. One of the long-standing exceptions to the types of inventions mentioned in that section is that an abstract idea can never be patented. That issue arises frequently these days, especially with rapidly developing technology in computer software. The EFF wrote a summary of the issues in the case when it was before the Federal Circuit this spring. The case files are also available."

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fuck yes (-1)

Anonymous Coward | about 10 months ago | (#45620805)

nt

Re:fuck yes (-1, Flamebait)

larry bagina (561269) | about 10 months ago | (#45620911)

I think you're overestimating the current supreme court. They're punters (literally) in that they prefer to punt on any issue before them. Usually copouts include lack of standing and defering to other branches of government. Ever seen a movie where a couple well hung stubs double penetrate a woman while her small-dicked cuckold husband watches helplessly? (Don't lie -- the NSA knows). Well, the woman is us, getting fucked by congress and the president while the supreme court does nothing.

Re:fuck yes (0, Insightful)

Anonymous Coward | about 10 months ago | (#45621355)

I think you're overestimating the current supreme court.

I'll just ignore your asinine analogy and reply to your first sentence ...

This court may very well be swayed by political leanings in this case. But that sway may be to uphold the ruling. There are many more businesses that are negatively affected by these shit patents than there are businesses that benefit from them. A conservative court may surprise us by being pro all businesses instead of just a handful.

Watch this closely as it may become a talking point for the 2014 midterm elections.

Re:fuck yes (4, Interesting)

icebike (68054) | about 10 months ago | (#45622039)

Contrary to Judge Moore's worries (second link in the article) this would open the floodgates of development of software, and revitalize the industry. SCOTUS has had years of watching the mess this made in industry, and the endless litigation over trivial ideas.

They may well overrule CLS Bank.

No longer could a company sit on a minor IDEA, cast into code, and then patented simply because it was code. They would have to continue to innovate, and perhaps market a product instead of launching lawsuit after lawsuit. Look around at the software patents that are holding back progress on a number of fronts. Just try to come up with a new Codec (like VP8) and watch the trolls band together (MPEG LA) to create a patent pool to go after your product.

I suggest the Audio and Video industries alone would make more progress in the first 4 years after striking down software patents than they have for the last 20 years.

Moore worry that no research on new computerized functions would take place because they couldn't be patented is about as well founded as saying no one would invent a new recipe for Chicken Soup because it couldn't be patented.

Re:fuck yes (0)

Anonymous Coward | about 10 months ago | (#45622669)

...and watch the trolls band together (MPEG LA)

Regardless of your stance on software patents, you can't say that MPEG-LA are patent trolls. The patents licensed by MPEG-LA are from companies that actually make products who basically banded together to eliminate the hell that separate licensing would have created. The only way that MPEG-LA would have been considered a troll is if they had purchased the patents from the inventors, but that hasn't happened.

The MPEG-LA is a acknowledgement of the fact that building an AV codec is a patent minefield that's impossible to traverse without licensing. It's a symptom of a flawed system, but it's not a troll.

Re:fuck yes (3, Insightful)

icebike (68054) | about 10 months ago | (#45622917)

Really? Because as soon as VP8 was hinted at, and before it was actually released, MPEG LA immediately put out a call to form patent pool to attack it [videojs.com] . BEFORE its specs were even released.

Does that sound like a group of people simply seeking an easier way to cross-license? Or does it seem like a Troll?

It took the US DOJ looking into MPEG LA's practices [techeye.net] before they backed down.

Re:fuck yes (1)

Bengie (1121981) | about 10 months ago | (#45624499)

MPEG-LA said that it is impossible to ever create any kind of video codec that won't run afoul of their patents. They claim to have patented an infinite number of ideas.

Re:fuck yes (1)

davester666 (731373) | about 10 months ago | (#45624903)

they have a patent on '...using a display'.

Software patent = Business method patent (1)

currently_awake (1248758) | about 10 months ago | (#45623019)

A business method patent is a patent on how a person can run around doing "something", not on a machine. A software patent is how a computer can run around doing "something", the computer itself isn't part of the patent. Any patent that consists of "take this person/thing that already exists, and tell it to do the following." is nothing but artwork and should be covered under copyright.

Re:fuck yes (0)

Anonymous Coward | about 10 months ago | (#45621005)

nt

An what if the supreme court fucks us all and decides that yes software patents can be issued ?

Re:fuck yes (1)

dugancent (2616577) | about 10 months ago | (#45621613)

Then we are right back to where we currently are.

Re:fuck yes (1)

icebike (68054) | about 10 months ago | (#45622063)

Exactly. We are already fucked, so why worry about this?

There is at least a better than even chance that the SC has had enough of the endless litigation and trolling for patents protecting Ideas simply by virtue of them having been done by a computer program.

Energy Department Announces $10 Million to Advance (-1)

Anonymous Coward | about 10 months ago | (#45620811)

As part of cutting energy waste and doubling energy productivity by 2030, the Energy Department today announced nearly $10 million to support research, development, and manufacturing of solid-state lighting (SSL) technologies across the country. This funding will help accelerate the development of high-quality light-emitting diode (LED) and organic light-emitting diode (OLED) products with the potential to reduce lighting energy use for American families and businesses by one half and enhance U.S. global competitiveness.

Great... (3, Insightful)

supremebob (574732) | about 10 months ago | (#45620821)

I'm so glad that the fate of software patents in the US is being left up to a bunch of old geezers who probably can't figure out how to publish their legal opinions online without the help of their IT department.

Re:Great... (4, Insightful)

jonnythan (79727) | about 10 months ago | (#45620939)

If these guys were experts in software patents, they wouldn't need anyone to testify.

Judges are not experts in anything except law. That's why they listen to other people make the case and explain the intricacies as the law applies to the subject. They do their research and they ask tough questions. That's their job.

Re:Great... (2, Insightful)

jfengel (409917) | about 10 months ago | (#45621013)

And then they vote according to whichever way their ideological predisposition leads them. After that, they direct the clerks to figure out how to justify it, which sometimes requires some stretching but always seems to be possible, especially when you can bury it in a few dozen pages of dense legal text.

I respect their learning, I really do, but they're called on to answer the cases for which there isn't a straightforward answer. (If there were, the lower courts would have it, and they wouldn't take the case.) They seem to serve, effectively, as tiebreakers, and they generally seem to do so according to their preconceptions rather than by finding novel insights. They don't have to have the most intelligent word, merely the final one.

Re:Great... (4, Interesting)

JDG1980 (2438906) | about 10 months ago | (#45621105)

And then they vote according to whichever way their ideological predisposition leads them.

That's true for a wide variety of Supreme Court decisions, but doesn't actually seem to be the case in patent law. It's not unusual to see, for example, Antonin Scalia and Ruth Bader Ginsburg on the same side of a patent ruling, which almost never happens on the kind of politically charged cases that make front-page national news.

Re:Great... (0)

Anonymous Coward | about 10 months ago | (#45621893)

You're right, the traditional lines tend to break down on this sort of issue and they go with the result they believe is the most fair.

Then again, I suppose that's what they're doing all the other times, too, it's just that we have highly polarized ideals with radically different ideas of "fair" on other issues.

Re:Great... (4, Informative)

Xtifr (1323) | about 10 months ago | (#45622391)

You're confusing ideologies. Someone's position on the right or left is not going to have any bearing on their ideological positions about patents, because patents aren't a right/left issue. It's a different type of ideology. A more idiosyncratic ideology. But an ideology nonetheless.

(Actually, I shouldn't say left/right, because dem/rep doesn't break down that way, but I'm simplifying for the sake of clarity.)

That said, because this isn't tied to their political allegiances, they may all be more inclined to listen to the arguments rather than pre-emptively voting with their preconceptions. Not guaranteed, but much more likely than in some cases.

Re:Great... (1)

Albanach (527650) | about 10 months ago | (#45621135)

And then they vote according to whichever way their ideological predisposition leads them.

Because everyone expected cases like Obamacare, or Myriad Genetics to come out the way they did given five of the nine current justices are Republican appointees?

Many of the justices do have ideological predispositions as to matters of law, but that simply places a demand on those arguing before the court to frame their argument to the audience. For example, arguing a statutory basis for your case in front of a textualist like Scalia.

Re:Great... (4, Interesting)

Aighearach (97333) | about 10 months ago | (#45621327)

The ideological dispositions in the legal community do not line up at all with political ones. On patents, the SCOTUS is fairly strongly on the side of rejecting patents on existing practices "on a computer." They refuse to throw out process and software patents categorically, but OTOH they don't really see any process patents they like.

In the case here, the U.S. Court of Appeals for the Federal Circuit agreed the patent was invalid, but couldn't find a majority on a single theory of why. So the SCOTUS is going to be writing a new test for when software patents are valid. Based on past rulings by this court, a clear rule will almost certainly invalidate a lot of existing patents that are currently seen as being in gray areas.

Re:Great... (0)

Anonymous Coward | about 10 months ago | (#45622719)

And then they vote according to whichever way their ideological predisposition leads them.

Compared to the congressional decision making process (compare campaign contributions on either side of the issue), I'll take an ideological predisposition every time.

Ideologies, at least, sometimes favor the underprivileged.

Re:Great... (0)

Anonymous Coward | about 10 months ago | (#45624557)

Judges are not experts in anything except law.

If you don't understand something, you should not be making decisions on it. How can you correctly apply a law to a subject if you don't understand the subject? Almost all subjects can be easily understood. My job requires understanding, implementing, and improving ideas from many different subjects. I don't see how it's that hard to understand biology or physics or whatever. What I lack is interest to be creative in those subjects, but explain to me how they work, that's easy to understand.

Re:Great... (1)

Anonymous Coward | about 10 months ago | (#45620981)

That's not the main problem. The main one is that they are bribed.

Re:Great... (0)

MickyTheIdiot (1032226) | about 10 months ago | (#45621595)

I think this is majorly unfair moderation. There is a perfectly good argument that Thomas was "paid off" in the Monsanto cases. It's damn obvious that they don't care about conflict of interest issues any more. It's a hyperbolic point calling it a bribe, but it does get some of the shallow minds thinking when the word gets used.

Selectivity (2, Informative)

Okian Warrior (537106) | about 10 months ago | (#45621011)

I'm so glad that the fate of software patents in the US is being left up to a bunch of old geezers who probably can't figure out how to publish their legal opinions online without the help of their IT department.

Don't worry - they'll render a decision that only affects the narrowest possible circumstances, "leaving the subject open" to further litigation on other slight differences in scope.

The supremes [youtube.com] don't actually rule on the big issues any more - in modern times, it's all subtle refinements and clarifications.

Re:Selectivity (0)

interkin3tic (1469267) | about 10 months ago | (#45621191)

Doesn't that kind of make sense? I mean, no one likes activist judges. I suspect that's because an activist judge is just a judge doing something you don't like, but if they're as inactive as possible...

Re:Selectivity (1)

Xtifr (1323) | about 10 months ago | (#45622973)

It's win-win for me. I have a prediction on file with the James Randi Foundation saying that the Supremes will agree to hear a software patent case this year (done, now), and that they will decide it on overly narrow grounds. If I'm right, I'm one step closer to winning the million dollar prize for my psychic powers, and if I'm wrong, well, my day job gets that much easier. :)

Re:Great... (1)

Aighearach (97333) | about 10 months ago | (#45621177)

It is great news the SCOTUS is taking this up, they've been slowing knocking back the patent excesses, at least at the level of legal precedent. Forcing the lower courts into line is taking time, but the more these lower courts resist, the more reform the SCOTUS will be forced into.

Re:Great... (2)

interkin3tic (1469267) | about 10 months ago | (#45621183)

Is there an ideal body you'd like the decision to be left up to? I mean, power corrupts, so any body with any say over something like this is going to be a little corrupted. Among the top of the three branches, the supreme court is probably the least fucked up at the moment. I'd prefer the EFF to be left in charge of the decision, but I'd wager that if they WERE in a position to have that power, they wouldn't be the same EFF we have right now, I think it would be full of industry lobbyists, or intentionally incompetent people, much like you see in the regulatory bodies and in the patent office specifically.

Actually, as long as we're wishing, I wish that I was the one in charge of making the decision. My qualifications mainly include wasting time on slashdo and being not an old geezert. I trust I have your support for replacing the supreme court?

Re:Great... (1)

ATMAvatar (648864) | about 10 months ago | (#45624241)

Among the top of the three branches, the supreme court is probably the least fucked up at the moment.

Citizens United shows that they're still a contender.

more credit (5, Insightful)

dlenmn (145080) | about 10 months ago | (#45621303)

I'd give them somewhat more credit than that. They definitely made the right call in Molecular Pathology v. Myriad Genetics (ruling that genes couldn't be patented), even though they had no knowledge about biology.

The fact that they're willing to hear this case makes me somewhat optimistic; if they truly didn't understand or care about software patents, they wouldn't have gotten involved. The worst they can do is maintain the status quo, which is what would happen if they didn't intervene.

Re:more credit (2, Interesting)

dlenmn (145080) | about 10 months ago | (#45621447)

I should add that this is definitely the best shot we have at dealing with software patents.

It's clear that, because of corporate interests, the legislative branch won't really fix things. (Although it sounds like a few congresscritters have their heads screwed on straight, they're definitely in the minority.)

The executive branch doesn't have the authority to fix things, and it probably wouldn't even if it could. (See the current FFC chair.)

The judicial branch is the least corruptible branch of the federal government; the important judges have life appointments, so they don't have to run for reelection, and they're not total morons either -- unlike many politicians. (Say what you will about lawyers and law school, but graduating from Harvard, Yale, or Columbia law school is a valid not-a-total-moron test.)

Here's to hoping...

Re:Great... (4, Insightful)

VortexCortex (1117377) | about 10 months ago | (#45621843)

I'm so glad that the fate of software patents in the US is being left up to a bunch of old geezers who probably can't figure out how to publish their legal opinions online without the help of their IT department.

Indeed. I could agree to leave such important things to old troglodytes as long as they were also scientists: "Let us apply the law in this manner provisionally, and re-examine to test the hypothesis of its benefit after N years; We must test a decision to see, and also consider the null hypothesis, for laws that provide no benefit only tax our legal system. Let us rely not on case-law, but on observational evidence of intent to do malice or good."

Sadly no such individuals exist in this reality. The quantum waveform has collapsed into the worst possible configuration: Scientists beg for funds while stodgy old farts rule the world. Note that there is ZERO evidence that patents and copyrights are actually "beneficial for society", we have only evidence that such protections are not required for innovation and profit in the markets that have no copyright or design patents: The automotive and fashion industries. Software Patents? HA! Prove Patents themselves aren't harmful first. It seems we need a medicine that not even The Doctor can prescribe.

Expect... (2, Interesting)

Hatta (162192) | about 10 months ago | (#45620845)

Expect the narrowest possible ruling, one which applies only to the case in front of the Supreme Court and maintains the status quo for all other software patents.

Re:Expect... (1, Insightful)

SirGarlon (845873) | about 10 months ago | (#45620885)

Expect yet another 5-4 ruling in favor of big business.

Re:Expect... (3, Interesting)

surmak (1238244) | about 10 months ago | (#45620937)

Expect yet another 5-4 ruling in favor of big business.

Which big business? Where are big businesses interests on both sides of this issue.

Re:Expect... (1)

Albanach (527650) | about 10 months ago | (#45621141)

Like we got in Myriad Genetics?

Re:Expect... (1)

SQLGuru (980662) | about 10 months ago | (#45621207)

The bigger of the two businesses (cash payout)......

Re:Expect... (0)

Anonymous Coward | about 10 months ago | (#45620947)

But.... Both parties are big businesses???

Re:Expect... (4, Interesting)

melikamp (631205) | about 10 months ago | (#45621365)

I'd expect this much if anything. SCOTUS cannot fix the software patents. It is not even clear what a "software patent" is. IANAL, but the way I understand the patent law, there is absolutely no difference. If you have a gizmo that does A, B, and C, then you can patent it, and how exactly it meets these claims in terms of technology is irrelevant. The patent law itself is oppressive: it infringes on our right to free expression, while providing no discernible benefit to the public. Only the lawmakers can fix this clusterfuck, and they can do so trivially, by gradually shrinking the protection term, giving the manufacturers some time to adapt. But they, of course, lack the will to do so, since they respect the opinions of plutocrats way more than those of the general public.

RMS also advocates a way to get to the same goal in discrete steps, by making patents unenforceable in certain fields (like the medical field or the general purpose computing field). The precedents exist: the surgeons are allowed to ignore patents while curing people. This is much better than defining "software patents" within the law, since any such definition will probably be circumvented by technological means. Rent-seekers could simply inject enough non-software payload into a device and patent it anyway.

Re:Expect... (4, Informative)

Dynedain (141758) | about 10 months ago | (#45621625)

If you have a gizmo that does A, B, and C, then you can patent it, and how exactly it meets these claims in terms of technology is irrelevant.

Actually how a gizmo does A,B,C is critically important for a patent. As another device can do A,B,C, but in a different way, and it would not violate the patent.

The overall problem with software patents is they define the What (A,B,C) but not the How. So any implementation that accomplishes goals A,B,C is suddenly in violation.

Re:Expect... (1)

melikamp (631205) | about 10 months ago | (#45621883)

Actually how a gizmo does A,B,C is critically important for a patent. As another device can do A,B,C, but in a different way, and it would not violate the patent.

This is irrelevant to my argument, as I am saying that technology has no impact on patentability. It does, of course, affect the patent.

The overall problem with software patents is they define the What (A,B,C) but not the How.

Yeah they do. How? With an algorithm that takes this and gives you that. In short, with a computer. Any software that can do the same is, well, functionally the same. It is entirely consistent that we cannot write around patents, and so the problem is with their very existence. They just do more harm when it comes to software, since the latter is almost always built on top of the older software, and even a "simple" by today's standards program can have thousands of patentable algorithms in it. The kind of harm they do is the same, though, regardless of the technology involved: innovation is taxed or prevented, monopolies distort the free market, and our freedom of expression is abridged.

Re:Expect... (1)

suutar (1860506) | about 10 months ago | (#45622963)

'Sorting a list' should not be patentable; it's an idea, not a method. 'Sorting a list using bubblesort' is a method, but patenting it should not prevent someone else from sorting a list using quicksort.

Re:Expect... (1)

Theaetetus (590071) | about 10 months ago | (#45623613)

'Sorting a list' should not be patentable; it's an idea, not a method. 'Sorting a list using bubblesort' is a method, but patenting it should not prevent someone else from sorting a list using quicksort.

This is correct. The problem is that in arguing against patents, most people look at the title "methods for sorting data" or the abstract "Disclosed herein are methods for sorting data", rather than the claims, which are the only part with any legal weight. A patent claim for a bubble sort likely wouldn't be infringed by a quick sort, and, if it's broad enough that the quick sort would infringe, then there's likely anticipatory prior art in the general art of "searching" that would invalidate it.

Re:Expect... (1)

gnupun (752725) | about 10 months ago | (#45623749)

The patent law itself is oppressive: it infringes on our right to free expression, while providing no discernible benefit to the public.

Preventing you from lifting other people's work without compensation is not oppression. "Free expression" is limited to what was already yours, it does not apply to the ideas conceived by others. Patent law is kinda okay, except for all the idiots who want to take it down.

Re:Expect... (0)

Anonymous Coward | about 10 months ago | (#45623989)

If Person A designs a machine, and the design is made public in one way or another, and then Person B (independently of Person A) builds a machine (or writes a program) based on the design, Person B has not stolen anything from Person A. Person A is not deprived of the design or their own ability to also build a corresponding machine. The building of Person B's machine didn't involve Person A. Person B has done nothing to Person A that he would be morally or economically required to 'compensate' Person A (or anyone else) for. When Person B has completed the machine, Person B is richer and no one is poorer. Punishing Person B for building the machine (or even just preventing him from doing so) is morally and economically absurd.

Re:Expect... (1)

gnupun (752725) | about 10 months ago | (#45624281)

If Person A designs a machine, and the design is made public in one way or another, and then Person B (independently of Person A) builds a machine (or writes a program) based on the design, Person B has not stolen anything from Person A.

Whether or not the design was stolen depends on whether A willingly made the design public. If not, it is theft.

Person A is not deprived of the design or their own ability to also build a corresponding machine. Person B has done nothing to Person A that he would be morally or economically required to 'compensate' Person A (or anyone else) for. When Person B has completed the machine, Person B is richer and no one is poorer.

You are really wrong in many of these statements. You need to study business and economics (the basics, not in detail) to understand that more the suppliers for a product, lower the demand per supplier, and therefore lower the selling price and profit. Where there's copycat B, there's bound to be other copycats C, D, E, etc. With so many suppliers of this machine, there will be a price war such that all suppliers will have to reduce their product prices or else go out of business. So, B having access to A's blueprints has caused A to reduce his selling price and profit. Another fact is B is making income off a design he did not create -- so B's a leech and a thief.

Punishing Person B for building the machine (or even just preventing him from doing so) is morally and economically absurd.

B's copycat machine may reduce A's profits or even bankrupt him, since he (A) has to expend time, energy and money to create the design, whereas B simply acquired the design for no cost. Since B has caused A economic harm, he is likely to be punished.

Obviousness (5, Insightful)

Jayfield (2317990) | about 10 months ago | (#45620895)

IAAPA (I am a patent agent)- My take on the matter is that software patents pass the threshold for patent eligibility, but not for patentability, which is quite different. Most software-implemented subject matter is certainly patent-eligible, but ought to be struck down under 35 U.S.C. 103 (non-obviousness). Courts have said that 101 is a threshold inquiry, and in my opinion I don't see why slashdotters would have a problem with striking down software patents not because as a class of subject matter they are ineligible, but because the vast majority are obvious.

Re:Obviousness (3, Insightful)

phantomfive (622387) | about 10 months ago | (#45621045)

In the 60s and 70s, various companies were developing high-availability software (process pairs, redundant storage, transactions, ACID, etc). Each of them thought they had developed something unique, and as a result tried to hide it from their competitors.

As a result, progress in the field went a lot slower than it had to, with plenty of reproduced effort. That was in the days before software was eligible for patent, so there is definitely a case to be made that (non-obvious) software patents can be helpful.

Re:Obviousness (3, Insightful)

skarphace (812333) | about 10 months ago | (#45621129)

Is it still non-obvious when two groups of people come up with the same software?

Re:Obviousness (2)

phantomfive (622387) | about 10 months ago | (#45621339)

Is it still non-obvious when two groups of people come up with the same software?

It really depends on how long they have to work on it before they figure it out.

My point is, we need to balance the benefits of patents (disclosure) with the detriments (short term artificial monopoly). I don't think this is particularly controversial, the real question comes with asking how to balance them. I don't claim to know the answer, and probably no one knows for sure, but setting the level of patentability at a certain level of non-obviousness (with non-obvious being raised to a higher level than it is now) seems like a reasonable thing to try.

Re:Obviousness (2)

queazocotal (915608) | about 10 months ago | (#45621917)

Patents are to trade the private good of being able to exploit your idea as a monopoly for the public good of releasing that idea to the world after a time.

One very obvious point is that If it would take longer to research and find a patented idea than for a skilled engineer in the field, facing the same problem to reinvent that patent - there is no public good in having the idea released after a time.

I would go so far as to say that no patent should ever be given for any invention where it is reinvent-able by someone unfamiliar with the patent who is skilled in the field and facing the same problem in under about a month of lab time.

Re:Obviousness (3, Informative)

firewrought (36952) | about 10 months ago | (#45622011)

We need to balance the benefits of patents (disclosure) with the detriments (short term artificial monopoly).

Have you read modern patents? They consist of dense legalese that's of no practical value to technologists. And twenty years is not "short term" in computing... our industry proceeds much faster than that.

Re:Obviousness (0)

Anonymous Coward | about 10 months ago | (#45621997)

That's been my key problem with the system as it is.. and solution too.

As it is, the defendant can argue that they don't infringe, or that the patent is obvious, which is rather difficult. If they fail, they get to pay up, triple if it's proven they knew about the patent. Thing is, if they didn't know, that's a failure of the system, as the whole point of patents is that it's published and known. To promote "the useful arts". Why should the defendant be punished for putting in all the hard work (patent holders always say it's hard) _again_, just because the first guy didn't do his job and promote his technology? He shouldn't.

So, the way it _should_ work, is if the patent holder can prove willful infringement, they get the money. Otherwise, if there's still infringement, holdership should be split.

That'd cut down on stupid patents and stupid lawsuits in no time.

Re:Obviousness (2)

InsightfulPlusTwo (3416699) | about 10 months ago | (#45622219)

It can be non-obvious. Both Newton and Leibnitz developed calculus around the same time (https://en.wikipedia.org/wiki/Leibniz%E2%80%93Newton_calculus_controversy). More recently, Diffie-Hellman key exchange was independently but secretly developed by Ellis, Cocks and Williamson around the same time, but secretly because they were working for British intelligence (https://en.wikipedia.org/wiki/Diffie%E2%80%93Hellman_key_exchange). Do you think those things are obvious?

Re:Obviousness (3, Insightful)

bob_super (3391281) | about 10 months ago | (#45621257)

Bad example.
They all got what they wanted through longer effort.
Under software patents, the first would get there a hair before the others, and somehow believe that the others owe it money because he got there first. It works when your trireme gets to a new land first, because there only one land. But if the others were going to get there and didn't copy you, then there is no reason to claim that they should owe you money for doing something first.

There should be a test, not for obviousness, but for "natural result of the engineering process under the current environment".

Re:Obviousness (1)

phantomfive (622387) | about 10 months ago | (#45621493)

I await your analysis of how much effort (and money) would have been saved/lost in the patent/no-patent scenarios.

You are basing your above comment on data, right? You aren't just guessing on what would happen, are you? A guess wouldn't be very useful, I wouldn't think.....

Re:Obviousness (1, Interesting)

bob_super (3391281) | about 10 months ago | (#45621655)

I said: "natural result of the engineering process under the current environment"
A lot of companies design the exact same features using the exact same components (hardware or software)

You're not "inventing" anything when you're the first one to assemble stuff if other companies are independently right behind (as requested by their customers, and pushed by their suppliers). Per the patent office, you did something non-trivial and therefore deserve a patent. So you can charge them for "using your invention".
It's not a question of effort/money saved, it about the actual need to discriminate "invention" vs "complex implementation".

"invention" should be rewarded, not "I did something first". That's why my tax dollars are supposed to pay for expert patent reviewers, not rubber-stampers.

Re:Obviousness (1)

phantomfive (622387) | about 10 months ago | (#45621817)

I know what you said. I responded by saying you have no data. Clearly you don't and are just guessing. Good job.

Re:Obviousness (2)

bob_super (3391281) | about 10 months ago | (#45622283)

I apologize for only having experience.
Let me hire a graduate student to write it down so that it becomes "data".

Re:Obviousness (1)

phantomfive (622387) | about 10 months ago | (#45622967)

Hopefully it would be a graduate student who knows more than you. Your anecdotal evidence is not data.

Re:Obviousness (1)

bob_super (3391281) | about 10 months ago | (#45623799)

Your cluelessness about the electronics industry is not data either.
Competitors using similar processes and components (physical or virtual) to provide similar products to their customers is how most of it works. Kinda natural when the user wants familiar interfaces, standards-based specs, and as little lock-in as possible.

it also explains all these news items about engineers just jumping around between companies, especially in Silicon Valley. Do you believe that they unlearn everything as soon as they walk into their new office? They just try to market $new_thing before their old company markets $other_new_thing, and my point is that there usually is no "invention" involved, only incremental progress as allowed by $new_chip. In my data-free opinion (which was my point if you recall), that shouldn't be patentable.

Re:Obviousness (1)

phantomfive (622387) | about 10 months ago | (#45623839)

Transaction Processing by Jim Gray and Andreas Reuter p571 (1993 edition) is what I am citing.

Re:Obviousness (1)

bob_super (3391281) | about 10 months ago | (#45624101)

> progress in the field went a lot slower than it had to

Had to? By which benchmark of the necessity of progress? Were the companies not making profits and the engineers starving on the street? Were the customers dying as code lay unwritten by people busy reinventing the wheel?
Let's have Lawyers guide us to this perfect world of companies who happily share, pay royalties, and progress will skyrocket! No-one will ever abuse the system to stall competitors or discourage new entrants.
Because anecdotal opinion written 20 years ago about behavior in the market 20 years earlier is relevant to today's situation.

> with plenty of reproduced effort

Which often leads to someone just doing it better than someone else.
If everyone settles for "I have to use his solution, because designing mine won't save me from paying under his patent, costing us more", then the inefficiencies of the patent holder's method are not addressed.

> a case to be made that (non-obvious) software patents can be helpful.

I agree as long as innovation, not just implementation speed, is demonstrated.

I'm repeating myself. Over and out.

Re:Obviousness (0)

Anonymous Coward | about 10 months ago | (#45622271)

> You are basing your above comment on data, right? You aren't just guessing on what would happen, are you? A guess wouldn't be very useful, I wouldn't think.....
So why are you doing it?
You're opinion that progress went slower than is should have has no data to back it up. So fuck off and troll elsewhere.

Re:Obviousness (0)

Anonymous Coward | about 10 months ago | (#45622577)

Why is this even a question? Who cares how much money it would save?

Re:Obviousness (2, Insightful)

Anonymous Coward | about 10 months ago | (#45621401)

Bell Labs got a patent on the setuid bit in Unix way back when (filed 1972, granted 1979) by describing a hardware implementation of it. They then released the patent to the public domain.

Neither of those things would happen today.

Re:Obviousness (3, Insightful)

ZombieBraintrust (1685608) | about 10 months ago | (#45622079)

Software developer's don't read patents. Software patents are only read by lawyers. These patents are legal self gratification.

Re:Obviousness (1)

Anonymous Coward | about 10 months ago | (#45621545)

IAACP (computer programmer). My take on software patents is that they're completely invalid and should not be patentable in any way. Why?

1) Software is nothing by itself. It cannot run without hardware, and that hardware can be patented. If the software is an essential component of a hardware system (like "firmware" is), then it can be included in the hardware's patent. But the patent should be on the device, the hardware. The hardware's inventor should be the patent holder.

2) Software written for general-purpose hardware is still reliant on that general-purpose hardware. The hardware is capable of performing the function defined by the software, thus it's the software instructing the hardware, and the hardware performing the task. The hardware's inventor should be the patent holder.

3) If software is written for general-purpose hardware, and multiple types of general-purpose hardware are capable of running the software with minor adjustments (like recompiling for a different CPU architecture), then the software is doing something obvious. Multiple different devices already are capable of doing this task. It is obvious and unpatentable.

These three points all support the unpatentablility of software, without resorting to theoretical "software is math" arguments. Software isn't just math, it's a proof. Not a mathematical one, but a proof of the hardware that runs it. The hardware is patentable by the same rules any other physical device is patentable. The software is not patentable.

This should be obvious to anyone that knows both how computers work and how patents work.

Obviousness is not obvious (2)

Press2ToContinue (2424598) | about 10 months ago | (#45621909)

I would love to agree with you, because to me they are all obvious. But the problem lies in the test itself - it is not at all measurable. It is based entirely on opinion, and thus it varies based on the particular "expert" testimony. And what is obvious this year may not have been obvious last year, and that makes it un-pin-downable to me. To me it is a losing battle to try to strike down patent by patent on obviousness. They can go either way, and so it is a never-ending battle, and the lawyers get richer. The only realistic way to approach obviousness is to argue its fallibility, bias-proneness, and slippery-slopedness in general, and strike it down as an untennable test, which must be either replaced with an unbiased, independently-reproducible test, or the system must be revoked as a whole as unfair.

And since you are obliviously experience and open-minded about this, what do you think of that approach?

Re:Obviousness is not obvious (2)

Theaetetus (590071) | about 10 months ago | (#45624263)

I would love to agree with you, because to me they are all obvious. But the problem lies in the test itself - it is not at all measurable. It is based entirely on opinion, and thus it varies based on the particular "expert" testimony. And what is obvious this year may not have been obvious last year, and that makes it un-pin-downable to me.

Yes, but "obvious" doesn't mean legally what you think it means: it's a legal conclusion, like "guilty", with a specific definition. Just like we say someone is guilty or a patent is obvious, legally, it's not true unless the government has proven beyond a reasonable doubt or without a clear error, respectively, that the person actually committed the crime or the inventor didn't invent something obvious.

And there actually is an objective test for obviousness (and I'm happy to talk about why or why not it's a good one) that is crafted to avoid hindsight: specifically, the USPTO can show that a patent is obvious is every element of a claim is taught or suggested by one or more pieces of prior art, alone or in combination. So, if your patent claims A+B+C+D, and one piece of prior art shows A+B, another shows C, and a third shows D, the patent claim is obvious. But if the art just shows A, B, and C, but no D, then it's not, even if you think that D is stupid obvious. The test, however, rules out that conclusion, if you can't actually show that anyone had ever thought of D before - maybe you think it's stupid obvious only because you read the patent? If D was never mentioned before elsewhere, maybe it's not obvious, even if in hindsight it looks simple. Maybe the solution is brilliant in its elegance and simplicity.

Re:Obviousness (0)

Anonymous Coward | about 10 months ago | (#45622109)

Blah blah blah. I'm tired of patent lawyers saying that it all boils down to a test of obviousness.

It's impossible to create a meaningful legal rule about what obviousness is. What constitutes obviousness will always be the purview of the USPTO as a practical matter. And because the USPTO clearly sucks at that in almost everybody's opinion, the only way for the courts to clamp down on the software patent explosion is to tweak the rules for eligibility.

That's the ugly truth. Live with it. Embrace it. I know it scares the crap out of you, because you want the widest possible eligibility, which offers you the most professional freedom, monetarily and intellectually. And, yes, in a sense the court is overstepping the boundary between court and agency in the patent process. Too bad.

Obviousness is tough (3, Interesting)

Theaetetus (590071) | about 10 months ago | (#45623653)

IAAPA (I am a patent agent)- My take on the matter is that software patents pass the threshold for patent eligibility, but not for patentability, which is quite different. Most software-implemented subject matter is certainly patent-eligible, but ought to be struck down under 35 U.S.C. 103 (non-obviousness). Courts have said that 101 is a threshold inquiry, and in my opinion I don't see why slashdotters would have a problem with striking down software patents not because as a class of subject matter they are ineligible, but because the vast majority are obvious.

IAAPatent Attorney, and I think you're absolutely right - many of these claims that get struck down under 101 should really have been struck down under 35 USC 102 (novelty) or 103 (obviousness), but that requires searching for prior art and making a prima facie case, and as you know, that's haaaaaaard. It's a lot easier to simply say "I'm sure there's art out there for it... but rather than look for it, I'll just wave my hands and say 'abracadbr- er, abstract idea' and then I can dismiss this case, and the outcome is correct, even if the process is backwards." And, because many Slashdotters are pragmatic engineerin' folks, they frequently care about the outcome more than the process: as long as Mr. Bilski doesn't get his hedge fund patent, then who cares whether it's rejected under 101, 102, 103, 112, or some other high-falutin' number?

But the problem is, part of pragmatism is predictability: if we can't tell ahead of time whether some patent is statutorily valid or invalid, then, pragmatically, how do you make business decisions? It'd be like writing a program, having the compiler tell you it won't run, but never being given any clues or indications as to where your error was. The result is the same - the program crashed - but it doesn't give you any ability to write proper programs in the future, or predict ahead of time whether a program will fail or not.

Re:Obviousness is tough (1)

martin-boundary (547041) | about 10 months ago | (#45625221)

Your analogy is nearly right. Except that Slashdotters also realize that languages can and should evolve, and programs should be written in the best language for the task that limits unnecessary ancillary issues.

If your program crashes because it failed a particular rule of C++, then it may be a waste of time to debug the exact circumstances of the crash. It may be better to realize that rewriting it in Python will prevent this whole class of problems and a bunch of others, and is the way to go. Similarly, sometimes it can be better to throw out, and replace, the existing patent laws with more useful ones, rather than worrying about the precise reason why some particular case fails in court, while trying to patch a complex system of case law one trial at a time.

Re:Obviousness (1)

russotto (537200) | about 10 months ago | (#45624349)

Beauregard claims ought to be thrown out on patentability grounds, but I don't think this case is about them.

"Unpatentable set of instructions stored on patentable but non-novel machine-readable medium" should remain unpatentable.

Re:Obviousness (1)

martin-boundary (547041) | about 10 months ago | (#45625195)

IANAPA (I Am Not A Patent Agent) and I disagree. It's a slippery slope to allow software but argue that "most" is too obvious to be patentable. We should be marking a clear line between mathematical ideas, in particular logical arguments, which software is an embodiment of, and concrete inventions, which software is only a meta language for, but requires a specific chain of circumstances - a compiler into machine language, a machine which can understand the language, and some peripherals to output the results in a form that can influence the physical world.

To use a legal analogy, software is no different from an argument written by a lawyer, intended for a particular purpose, and following the rules of a particular system of laws. While every such document is slightly different to suit the circumstances, and many such documtents contain a lot of cleverness and originality, it makes no sense to patent the writings of lawyers, and neither does it make any sense to patent the writings of programmers for the same reason.

Some background (5, Informative)

UnknowingFool (672806) | about 10 months ago | (#45620913)

The case involves Alice Corporation who holds four patents originating in the 1990s of which was for "a computerized system for creating and exchanging financial instruments such as derivatives." These patents were challenged by CLS Bank International in 2007. The district court ruled summarily for CLS in that none of patents were valid. The Federal Circuit initially reversed the lower court; however, the full panel (en banc) voted 7 out of 10 to affirm the district court but also issued 5 separate concurring and dissenting opinions.

This confusion was noted by the Electronic Frontier Foundation in its amicus brief:

" . . . the Federal Circuit has failed to implement a workable standard—or, frankly, any standard at all—as to what computer- and Internet-implemented inventions are patentable. The resulting legal instability has driven up the already-ballooning costs of patent litigation . . ."

In my opinion, it appears that main patent simply added "on the computer" to an existing process, namely in an business transaction between two parties, there is a third party that ensures that payment is made and is facilitated. The computer made the transaction faster and more automated as noted by Judge Lourie in his opinion.

“simply appending generic computer functionality to lend speed or efficiency to the performance of an otherwise abstract concept does not meaningfully limit claim scope for purposes of patent eligibility."

Re:Some background (2, Interesting)

s.petry (762400) | about 10 months ago | (#45621175)

In my opinion, it appears that main patent simply added "on the computer" to an existing process, namely in an business transaction between two parties, there is a third party that ensures that payment is made and is facilitated. The computer made the transaction faster and more automated as noted by Judge Lourie in his opinion.

That is the heart of the Business Process patent laws. It's not about "invention", it's about 'ownership' of ideas. I can extend any patent you own, as long as I pay you royalty for your idea. This is one of the main reasons these laws are so bad!

You patent "2+2=4"

I come back and patent (2+2=4) - 1 = 3, acknowledge your original patent and will give you 50% of what I make on my extension of your patent.

Now anyone that uses "2+4=4" can be sued, but also anyone using my extension can be sued. The best part is that we make enough money to sue anyone that uses a result of 4 or 3 and put them out of business for potential violation of our patents.

Nobody should be amazed at how these patents have fucked up both the economy and IT industry as a whole. We gave the same exact arguments when Bush the first was trying to pass the patent laws, and they were passed regardless of what experts said. (Follow the money on that one).

What is amazing, is that it has taken this long to make it to the Supreme Court for ruling.

Re:Some background (0)

Anonymous Coward | about 10 months ago | (#45621297)

Now anyone that uses "2+4=4" can be sued

As well they should be

Re:Some background (0)

Anonymous Coward | about 10 months ago | (#45621421)

Now anyone that uses "2+4=4" can be sued

As well they should be

You mean I can sue my math teacher? WooHoo! I'm going to get $1,000!! I'll be rich!!!

Re:Some background (0)

Anonymous Coward | about 10 months ago | (#45621827)

Not that I disagree with your points. But it's also true that the money and time expended on software relies on patents. For if you can't slap 'zomg! on a computer.' onto everything, then companies would be remarkably unwise to pursue general computing. For you can quite readily state 'zomg! this exact way as transistors.' and receive the patent without question about legitimacy.

But even stating it as a copyright is an issue. For if we discard patents, then we are still stating that the equation '2+2=4' is under similar protection. Not for existing, but for being stated as '2+2=4.' Such that everyone else must state '1+1+2=4' or go under the gun. And with the notion of copyrights for translations, you better be damned sure your compiler won't opimally translate it as '2+2=4' or you'll have violated things again.

Fundamentally, the demand -- and so, the income -- of software developers depends on having at least one of copyrights or patents applied to software. But, by doing so in an ever growing thicket of 'new and improved, with 25% more bits!' then we are faced with redefining 'programmer' as 'software lawyer.'

Did I imagine this ... (1)

Anonymous Coward | about 10 months ago | (#45620969)

Back in the day, wasn't software ONLY subject to copyright? Meaning, it was treated like any other creative product?

Re:Did I imagine this ... (2)

Rob Riggs (6418) | about 10 months ago | (#45621279)

IANAL. Source code is the copyrightable creative expression of a software engineer that may infringe on process patents once compiled and run on a computer.

I miss Groklaw for stuff like this. (5, Insightful)

sconeu (64226) | about 10 months ago | (#45620987)

Fuck you very much, NSA.

Re:I miss Groklaw for stuff like this. (1)

Teun (17872) | about 10 months ago | (#45621029)

+1

Re:I miss Groklaw for stuff like this. (1)

interkin3tic (1469267) | about 10 months ago | (#45621231)

Hey man, fuck you too, terrorist lover!

Sincerely,
The NSA

PS: Your mother is going to be shocked when she sees the porn you've been watching. She's still on hotmail, right?

Re:I miss Groklaw for stuff like this. (-1)

Anonymous Coward | about 10 months ago | (#45621585)

She's still on hotmail, right?

More like hottail. Heh heh... Amirite?

Re:I miss Groklaw for stuff like this. (0)

Anonymous Coward | about 10 months ago | (#45624677)

Life is full of hardships and reverses. She was tired of running Groklaw and wanted to do something else with her life. The martyr routine at the end was not impressive.

But this is the same crowd who blames prosecutors and MIT for the death of Aaron Swartz.

I'm not holding my breath (3, Interesting)

rsilvergun (571051) | about 10 months ago | (#45621015)

the current Supreme Court doesn't have a good track record of siding with the 'Little Guy' (*cough*Cittzen's United *cough* Voters Rights Act*). Maybe it's just the libtard in me but I don't have high hopes were going to see an entire class of 'property' invalidated... :(

Re:I'm not holding my breath (2)

UnknowingFool (672806) | about 10 months ago | (#45621063)

Well in this case many businesses large and small are affected. The larger ones can afford to amass a portfolio for defensive purposes. The smaller ones cannot. However the mutually assured destruction strategy is only a deterrent for companies that actually make products. It is less effective against patent trolls.

Re:I'm not holding my breath (1)

Aighearach (97333) | about 10 months ago | (#45621451)

In this actual case, the banks probably don't have a defensive patent portfolio to defend against computer patents.

Re:I'm not holding my breath (1)

bob_super (3391281) | about 10 months ago | (#45621325)

> I don't have high hopes were going to see an entire class of 'property' invalidated...

Have my virtual mod points, for you understand our supreme court's fundamentals well.

Re:I'm not holding my breath (1, Insightful)

Aighearach (97333) | about 10 months ago | (#45621435)

The Voters Rights Act had nothing to do with siding against the little guy! The Court had told Congress before, about a decade ago, that it needed to revisit the issue, and re-examine which areas still had a problem and if there were areas that could have relaxed rules. Congress refused to revisit the issue at all. Congress could have, for example, funded a new study, determined that the sames problems existed in the same places, and renew the old list. But that never happened. Congress refused to take any actual steps to look at where the problem still was, so the Court had no choice but to rule that the current list had to be rejected as dated. You can't just pass different rules for different states forever; if the rules are different, it has to be for real reasons.

It is pretty sad that Congress couldn't even rubber stamp a new study.

Re:I'm not holding my breath (1)

lord_mike (567148) | about 10 months ago | (#45624935)

This court also has a history of being skeptical of the scope of patent protection, having dealt several anti-patent rulings in the last few years. Of course, all of that means nothing, since past performance is no guarantee of future results. They could just as easily reverse the trend this time. What is important is to fund out which side has hired Paul Clement, since the conservative justices love him and pretty much do whatever he wants, most of the time.

Computer devices are literally prototype systems (1)

erroneus (253617) | about 10 months ago | (#45621481)

The devices we commonly call computers literally translate abstract into action. The computer is the invention, not the abstract instructions.

mo2d 0p (-1)

Anonymous Coward | about 10 months ago | (#45621823)

OF AMERICA irc

Hollywood history (1)

EmperorOfCanada (1332175) | about 10 months ago | (#45623917)

A bit of Hollywood history is that the movie industry was born from the movie people wanting to get away from the abusive patents that gave control to this new and expanding industry to a few east coast barons.

So we can see what happens when you have an industry that is "protected" by patents and the identical industry that isn't.

People argue that without patents nobody would invent anything. But in a rapidly expanding and growing industry people aren't inventing for the sake of inventing but solving problems that are completely obvious in their solution the moment any halfway decent engineer stumbles upon them.

The EFF are losers who always lose (0)

Anonymous Coward | about 10 months ago | (#45624093)

if i was paranoid i'd think they were being funded by the opposition to lose on purpose.

Transatlantic Trade and Investment Partnership (2)

manu0601 (2221348) | about 10 months ago | (#45624365)

USA and EU will probably have to harmonize patent law for the Transatlantic Trade and Investment Partnership [wikipedia.org] . It should normally be legislator's job, but sometimes it does not work, and ourt have to do the job.

For instance, EU countries signed a treaty in 1974 saying that computer programs are not patentable, and as a result they all have this provision in state laws. That did not prevent patent offices to grant software patent in EU, that just makes them difficult to enforce.

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