Beta
×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

We are sorry to see you leave - Beta is different and we value the time you took to try it out. Before you decide to go, please take a look at some value-adds for Beta and learn more about it. Thank you for reading Slashdot, and for making the site better!

Red Hat Assistant General Counsel Analyses Supreme Court's Patent Ruling

samzenpus posted about 5 months ago | from the break-it-down dept.

Red Hat Software 43

ectoman (594315) writes The U.S. Supreme Court issued a groundbreaking decision concerning software patents, claiming that abstract ideas are not by themselves patentable. The ruling was a cause for celebration among those opposed to software patent abuse, like Red Hat's Vice President and Assistant General Counsel, Rob Tiller. Here, Tiller analyzes and offers some context for the Court's ruling, which "uses the traditional common law methodology of comparing one case to previous similar cases and harmonizing with those most similar."

Sorry! There are no comments related to the filter you selected.

finally (2, Insightful)

Anonymous Coward | about 5 months ago | (#47293327)

One step in the right direction!

Re:finally (2)

Concerned Onlooker (473481) | about 5 months ago | (#47296163)

Maybe someday we'll be able to say One Click in the right direction.

Re:finally (1)

Duggeek (1015705) | about 5 months ago | (#47300437)

If we're to fully plagarize Neil Armstrong, let's do it right.

That's one small click for man, one giant drag-and-drop for mankind.

I don't know if that's how we're going to celebrate the first crack in the shell of software patents, but yes, it is a step in the right direction.

What is even more important (0)

Jorge666 (3709467) | about 5 months ago | (#47293367)

Are NSA backdoors patentable or not? Considering, large number of them in M$ OS or well known networking gear, it's something to think about in terms of collecting royalties.

good news -- bad news (0)

Noah Haders (3621429) | about 5 months ago | (#47293391)

celebrate now, but this sort of thing can have unintended consequences... such as when the layoffs start? that will blow chunks.

Re:good news -- bad news (2)

dimeglio (456244) | about 5 months ago | (#47293523)

Layoffs? Perhaps for lawyers.

Re:good news -- bad news (0)

Anonymous Coward | about 5 months ago | (#47293599)

Let's analyses this before jumping to unintended conclusions.

Re:good news -- bad news (2)

FatdogHaiku (978357) | about 5 months ago | (#47293809)

Let's analyses this before jumping to unintended conclusions.

I'm sorry, my English parser just blew up so I will have to get back to you...

Patent the invention (4, Interesting)

tomhath (637240) | about 5 months ago | (#47293419)

As I read it, this says an invention is patentable - but implementing the invention on a computer doesn't necessarily add anything. That seems to be very good news for all those silly patents that only claim "on a computer" or "on the internet".

Re:Patent the invention (4, Insightful)

Trepidity (597) | about 5 months ago | (#47293513)

Yes, despite the tech press's focus on the impact on software patents, imo this is really a case about business-method patents, and that's where it'll have the main impact. The test case in the decision is about someone who tried to patent the idea of intermediated financial settlement, by essentially adding the words "on a computer" to it. The court more or less just clarified that: 1) the basic idea of settling contracts through an intermediary is not patentable; and 2) merely doing it on a computer does not transform the nonpatentable idea into a "machine for intermediated financial settlement" that constitutes an invention.

What the court didn't comment on in this case is whether a patent making specific software-implementation claims would be valid. Their problem with this patent was precisely that it didn't claim any specific technical implementation as constituting the invention, only the really general idea of "this method... on a computer".

Re:Patent the invention (5, Informative)

harperska (1376103) | about 5 months ago | (#47293825)

This case was specifically about whether adding "on a computer" would make something patentable that is otherwise not, but it does have wide implications beyond software patents, including possibly business-method patents.

The things that are by their very existence unpatentable are abstract ideas, and things preexisting in nature (possibly among other things that I am not remembering). This ruling was actually more wide reaching than the red hat article suggested, because it establishes tests specifically to be used in the future and not making it so narrow as they like to do, so that the ruling would only apply to the case at hand.

This ruling doesn't just apply to software patents. The common law rule now is that if anything is not already patentable such as an idea or thing of nature, you can't patent a method based on that thing if the steps of that method are themselves well known or obvious to the industry to which they apply. In this case, an abstract idea combined with an implementation on a generic computer is considered unpatentable, and the precedent cited was from Mayo v. Prometheus where a biological function (i.e. naturally occurring) combined with a common medical procedure to measure that function was considered unpatentable by the same logic. Since Clarence Thomas relied so heavily on Mayo for this decision, that rule now seems to apply not only to stupid software patents, but anything in any industry that seems obvious to those in that industry.

In a way, they did comment on whether specific software-implementation claims would be patentable by pointing out that this claim specifically did not further the state of computing technology, suggesting that software that was truly innovative that did advance the technology and didn't just use methods "well known" and "long in use" may themselves be patentable. Otherwise, why point out that this particular software was specifically unpatentable because it was "well known" and "long in use"?

Interestingly enough, Sotomayor wrote her concurring opinion specifically to make a statement about how she thinks business methods are themselves unpatentable. I don't think concurring opinions have any common law teeth like the primary opinion does, so we don't have any specific precedent regarding business method patents. But we do know how 3 of the justices feel about them (since Ginsburg and Breyer joined Sotomayor's concurring opinion).

Re:Patent the invention (0)

Anonymous Coward | about 5 months ago | (#47294171)

> The common law rule now is that if anything is not already patentable such as an idea or thing of nature, you can't patent a method based on that thing if the steps of that method are themselves well known or obvious to the industry to which they apply

You are absolutely wrong. No patent law is common law, it is all statutory law. The court harkened back to prior common law in their discussion, but the US is primarily a statutory jurisdiction.

>already patentable such as an idea or thing of nature

S101 already does not allow for naturally occurring discoveries or abstract ideas, this has always been the law.

>you can't patent a method based on that thing if the steps of that method are themselves well known or obvious

You are confusing 101 and 103. Section 103 is obviousness, S101 has nothing to do with what is obvious and what is not. All technologies are some kind of combination or prior knowledge or improvements on it.

I suggest you actually read the case and the surrounding law.

Re: Patent the invention (0)

Anonymous Coward | about 5 months ago | (#47295745)

Um, no. The US is a common law system (with LA also incorporation parts of civil law). With that said, it would be usual for a court to apply "common law" in circumstances where the is a long history of statutory laws on the book. However, the common law concept of precidence still applies, which is the important part here -- all courts in the US are bound to follow the logic used in this rules.

Re:Patent the invention (0)

Anonymous Coward | about 5 months ago | (#47294153)

>Yes, despite the tech press's focus on the impact on software patents, imo this is really a case about business-method patents, and that's where it'll have the main impact.

You are absolutely correct, this is a business method with a computer add-on. It isn't really a software patent. Humans can execute the trading scheme described in the patent. Worse, the court is confused about what software is, they imply that implementing the software algorithm in hardware is patentable when the software version of the exact same algorithm might not be.

This decision really just cuts off the Business Method + Computer patents. It doesn't say anything useful about actual software claims that involve a non-human executable algorithm (I mean those executable practically only on computer).

Re:Patent the invention (1)

speedplane (552872) | about 5 months ago | (#47295939)

I entirely agree that something that is otherwise not eligible for patent protection should not become patentable because someone adds "on a computer". However, the reason that it should not be patentable is because it would be obvious to do just about anything on a computer. If we are being honest with ourselves, adding "on a computer" to some otherwise abstract concept does indeed make the concept much less abstract.

At last? (3, Interesting)

ArcadeMan (2766669) | about 5 months ago | (#47293465)

Is it really the end of all the ridiculous lawsuits between Apple, Google and Microsoft?

Re:At last? (1)

lister king of smeg (2481612) | about 5 months ago | (#47293537)

Is it really the end of all the ridiculous lawsuits between Apple, Google and Microsoft?

More interestingly is will this be used as the final kill shot in the SCO zombies vs Linux legal battle.

Re:At last? (1)

NoNonAlphaCharsHere (2201864) | about 5 months ago | (#47293811)

More interestingly is will this be used as the final kill shot in the SCO zombies vs Linux legal battle.

Then again, if Darl had had more BRAINZZZZZ!! to begin with...

Re:At last? (1)

dimeglio (456244) | about 5 months ago | (#47293559)

It depends on what does the SC means by "abstract ideas." If they means:

Abstract ideas are concepts that need to be visualized, as they cannot be illustrated through concrete (real) examples. In a simple way, explaining the progression of logic in a (computer) program will be possible only if the reader can correctly visualize (imagine) it in his mind.

Then the implementation of an idea to a specific purpose makes it non-abstract and therefore can be patented. So it's not really the end of all software patents. Otherwise, further litigation might be required to establish a sound definition.

Re:At last? (0)

Anonymous Coward | about 5 months ago | (#47294475)

Still doesn't make software real. It remains abstract mathematics, written down for interpretation.

Hopefully at last.

This is NOT a land breaking ruling (5, Informative)

Stan92057 (737634) | about 5 months ago | (#47293477)

This is NOT a land breaking ruling, why in gods good name would the poster say this?? Fact: Abstract Ideas were Never patentable. It has always been the law, so the headline is totally wrong. The main number 1 problem that needs to be cleaned up is the Patent Office they are creating this unnecessary lawsuits, wasted billions because they haven't an idea what an Abstract Idea is? I just don't believe that they are that stupid. This is all IMO but the fact remains Abstract Ideas were never patentable.

Re:This is NOT a land breaking ruling (4, Informative)

harperska (1376103) | about 5 months ago | (#47293853)

It is a landmark because even though abstract ideas were never patentable, it was never established that joining abstract ideas to generic implementations was also not patentable. Previous law suggested that an implementation, even if it seems obvious, was transformative enough to make an abstract idea patentable. This case clarifies that once and for all.

Re:This is NOT a land breaking ruling (0)

Anonymous Coward | about 5 months ago | (#47296027)

This isn't about even generic implementations though, This case was purely about abstract ideas with NO IMPLEMENTATION (generic or otherwise). hence it is a ruling that really does nothing more than confirm what was already law and really has very little effect on the current slew of software patents except for those that have no implementation but they should have already been invalid anyway.

Re:This is NOT a land breaking ruling (1)

Theaetetus (590071) | about 5 months ago | (#47294017)

The main number 1 problem that needs to be cleaned up is the Patent Office they are creating this unnecessary lawsuits, wasted billions because they haven't an idea what an Abstract Idea is? I just don't believe that they are that stupid.

Since Thomas' opinion also declined to define what an "abstract idea" is, can you really blame the patent office? What is an abstract idea anyway, legally? Right now, we just have this "I know it when I see it" definition that didn't work well for obscenity either.

Re:This is NOT a land breaking ruling (1)

CurryCamel (2265886) | about 5 months ago | (#47294187)

IMHO, all patents patent an abstract idea to some extent. There is always an element of "we can do X to achieve Y" in any invention, and that is in my definition an "abstract idea". If there is no abstract idea behind a patent, then the invention most likely is "obvious", and not patentable.

Even if they started demand a working prototype/demo at the patent office would concrete implementations of "abstract ideas" be patented.

The problem is that the entire system is a quagmire, and it doesn't get any better by people yelling that "software patents are evil" - that's just missing the point.

This entire debate is a red herring.

His ANALyses? (-1)

Anonymous Coward | about 5 months ago | (#47293499)

What the fuck is that? The word is, analysis. Jay will see you get your fucking parting gift, numbnutz!

Misspelling (0)

Anonymous Coward | about 5 months ago | (#47293545)

It's "analyzes".

Software Patents Are Just Wrong (5, Interesting)

Marlin Schwanke (3574769) | about 5 months ago | (#47293617)

If software patents were around back in the 80's then IBM would have patented the hell out of the PC and its BIOS. Only IBM would be making them to this day and they'd cost $5000 for a base model. Only major corporations and well heeled geeks would own them. The Internet would likely still be DarpaNet and I could go on and on. If anyone recollects, IBM's BIOS was reverse engineered, legally, as it was only copied by copyright, as is reasonable and proper. The people that read the code described it and people who had never seen the IBM code wrote their own code to behave similarly, again, all very reasonable and legal. The processor your code runs on is the invention. Your code is your art or writing that makes the processor sing. If I can make my code sing a similar song without copying yours then that's as should be. Code should be copyright-able as are words in a book. Just because you write a clever whodunit does not mean that no one can ever write another!

Re:Software Patents Are Just Wrong (1)

Marlin Schwanke (3574769) | about 5 months ago | (#47293911)

Oops... "as it was only copied by copyright" should have read "as it was only protected by copyright". Sorry.

Re:Software Patents Are Just Wrong (2)

iggymanz (596061) | about 5 months ago | (#47294099)

ask anyone who codes on multiple machine architectures, Intel's sucks. There are many boot PROM far superior to brain dead BIOS. It would have been a better world had alternative machine than IBM's PC become the standard, and we could have had real operating system for them instead of DOS and the crippleware windows that descended from it.

history says otherwise. IBM is a top patent holder (3, Interesting)

raymorris (2726007) | about 5 months ago | (#47294245)

Your prediction might have been reasonable in 1972. Now, we know what did happen. IBM did in fact get over 50,000 patents, making them one of the top patent holders in the world. Yet, none of your postdictions was true.

Most certainly the patent office needs to train their examiners better in applying the law to the types of inventions they see today (and non-inventions). For example, the law says that a mechanism can be patented. It doesn't say that the result of that mechanism can be patented. It says it must be a new invention. As this case made clear, an old invention being done on a computer doesn't magically become a new invention. It's still an old invention. USPTO needs to train their people on that. Still, many of IBM's 50,000 patents are for new ways of doing things that happened to be done in software. Manufacturers of competing systems had to find new ways of doing those things, or license the patents.

Re:history says otherwise. IBM is a top patent hol (2)

MobyDisk (75490) | about 5 months ago | (#47297627)

I'm confused when you say "none of your postdictions was true." What Marlin wrote is an accurate statement of what happened. I'm also confused about what 50,000 patents you are referring to and how they relate to his statement about the IBM PC BIOS..

IBM did not patent the PC BIOS. The lack of patents allowed IBM PC clones to be possible. That proliferation rapidly expanded the PC industry. This is commonly seen as an example of why software patents should not be allowed.

never been to Walmart? (1)

raymorris (2726007) | about 5 months ago | (#47298437)

> I'm confused when you say "none of your postdictions was true." What Marlin wrote is an accurate statement of what happened.

Really, this happened?:

>> the PC and its BIOS. Only IBM would be making them to this day and they'd cost $5000 for a base model.
>> Only major corporations and well heeled geeks would own them.
>> The Internet would likely still be Darpanet go on

I'm pretty sure you can get a PC from Walmart for under $300, and that we're using the internet right now. So no, what he said did not happen.

IBM had a number of patents on the BIOS, such as the way it loaded BIOS modules from adapter cards. Compaq and some other manufacturers found a different way of accomplishing the task in order to steer around the patents. Other manufacturers used IBM's BIOS and paid for it.

Re:never been to Walmart? (1)

MobyDisk (75490) | about 5 months ago | (#47300413)

Thanks. That's the clarification I was missing. I have always been under the impression there were no patents on that stuff. Still, I wonder if they had patented the software with the density that it is patented today. if Compaq would have been able to do that.

Re:Software Patents Are Just Wrong (1)

Pinhedd (1661735) | about 5 months ago | (#47294365)

The core elements of PC firmware don't do anything particularly fancy, it's just software that tests components and configures the platform in a way that exposes a consistent interface and an interface itself is not patentable. Most of the heavy lifting is performed by the hardware (which is covered by other patents) and is accessed using documented methods (which is an interface, not patentable). It's unlikely that there would be sufficient novel material in the original IBM PC BIOS to warrant or defend a patent, and it would be rather simple to work around any tricks; as you mentioned, it was reimplemented from IBM's documentation and clean-room reverse engineering.

There are some patents for components that are not elements of the platform interface, such as securing access to, reprogramming, and validating the firmware code.

Re:Software Patents Are Just Wrong (1)

westlake (615356) | about 5 months ago | (#47295631)

If software patents were around back in the 80's then IBM would have patented the hell out of the PC and its BIOS. Only IBM would be making them to this day and they'd cost $5000 for a base model

IBM needed product on retail shelves at a price point that would appeal to small business.

The IBM PC hardware platform was almost entirely exposed and unprotected COTS technology --- leaving the generic MS-DOS PC on track to take a significant share of the market before the cloning of the IBM PC BIOS.

The crude prototype they designed barely worked when Lowe demonstrated it to the committee in August [1980], but he presented a detailed business plan that proposed that the new computer have an open architecture, use non-proprietary components and software, and be sold through retail stores, all contrary to IBM tradition.

The many Apple II owners on the team influenced its decision to design the computer with an open architecture and publish technical information so others could build expansion slot peripherals.

Because of the [use of] off-the-shelf parts only the system unit and keyboard had unique IBM industrial design elements, and the IBM copyright appeared in only the ROM BIOS and on the company logo.

IBM Personal Computer [wikipedia.org]

Code should be copyright-able as are words in a book. Just because you write a clever whodunit does not mean that no one can ever write another!

It does mean your work will be reviewed at a higher level of abstraction than a patent. "If it looks like his duck, quacks like his duck and swims like his duck, it probably is his duck."

Re:Software Patents Are Just Wrong (1)

speedplane (552872) | about 5 months ago | (#47295971)

IBM has more patents than any company in the world. Indeed, they patented just about everything they thought up. And now they receive an untold amount of licensing fees from just about every other major computing company, and life goes on. Take a look at the following report below, listing all of the major patent holders. #2 is Samsung, #3 Canon, #4 Sony, #5 LG. http://www.ipo.org/wp-content/... [ipo.org]

Re:Software Patents Are Just Wrong (1)

VanessaE (970834) | about 5 months ago | (#47297353)

If software patents were around back in the 80's

They were. Commodore used a character set which contained an inverse-video duplicate set to avoid a software patent on the use of exclusive-OR to draw a cursor. Specifically, some drafting company back in the late 70's patented the idea of using XOR to draw a crosshairs, so in the VIC20, C64, and others, the cursor was implemented by periodically alternating the target location between the character located there and its counterpart in the inverse-video half of the character set. Apple avoided this patent by alternating between the character on the screen and a little checkerboard cursor.

Re:Software Patents Are Just Wrong (1)

MobyDisk (75490) | about 5 months ago | (#47297645)

Yet more proof why software patents are horrible. XOR is a basic mathematical operation and every 10-year-old kid writing graphics in BASIC thought of doing that. It is a good thing those patents were not well-enforced.

Submitter doesn't understand SCOTUS (0, Interesting)

Anonymous Coward | about 5 months ago | (#47294639)

"claiming that abstract ideas are not by themselves patentable"

No, that's not at all what SCOTUS said. SCOTUS said that the abstract ideas presented in the specific patents at issue were not patentable.

Patent trolls abound (0)

Anonymous Coward | about 5 months ago | (#47297135)

I know of a case that had a patent claim on logging. I kid you not. They are just looking for deep pockets to get $$$

Who defines 'patentability' anyway? (1)

Duggeek (1015705) | about 5 months ago | (#47300467)

So far, it's the patent owners and warchest protectors that seem to be driving the definition of what can and cannot be patented in the digital realm. This should be reversed; there should be an international (or universal) standard definition that a applicant must fulfill before it can even be considered for legal protection.

Just spit-balling here, but maybe it should be a rule of threes; a project must demonstrate it leverages the three parts of digital technology: the hardware, the software and the network. Among each of those, there must be three distinct techniques being used to separate it from common operations and, in each technique, three uncommon modules that can be considered proprietary in nature and therefore be protected as "trade secrets". So, in total, we have a basis for patentability that covers the basic facets of digital products, requires them to define how they set themselves apart and lastly requires that the applicant specify what makes their work unique at the code and/or API level; requiring nine points of uniqueness in each digital facet. No 'black box' definitions either; all patents must encompass and explain the concept that makes the patent... well, patentable.

This not only provides a structure for burden-of-proof arguments, (currently non-existent, apart from the ruling described in OP) but also creates the need for distinguishing one's work to set it apart from what platform developers and shared-library contributors can claim as prior art or common practice. More importantly, it eschews the petty bickering of single-factor patents; things like "swipe to unlock" or "presentation as a square tile with 10% rounded corners" or "putting a virtual button in the corner of the screen to select a program" sort of nonsense.

a huge win for open source (0)

Anonymous Coward | about 5 months ago | (#47323643)

This is a big move in the positive direction. Finally, it seems we are coming to our senses to try and dig our way out of software patent abuse. Unfortunately, there are piles of software patents that huge companies like Microsoft have already filed and have been granted, that Microsoft uses to bully smaller companies. But, if we can stop the bleeding, we actually have a chance at eliminating this awful flaw in the system, which is allowing companies like Microsoft be non-competitive yet extract fees and fines and secret deals with other small companies to secretly squeeze royalties out of them. Just look at the stack of software patent deals that Microsoft has signed with its Android competitors. There is an obvious pattern to its behavior.

Check for New Comments
Slashdot Login

Need an Account?

Forgot your password?