Slashdot Log In
Software Patent Sanity on the Way?
Posted by
ScuttleMonkey
on Mon Jul 28, 2008 01:04 PM
from the moving-at-the-speed-of-a-bureaucracy dept.
from the moving-at-the-speed-of-a-bureaucracy dept.
Ars Technica is reporting that the traditionally silent US Patent and Trademark Office (USPTO) may be starting to turn things around. It seems that in recent action the USPTO has started to make it much easier to invalidate software patents with some saying that the abolition of such patents may be in the distant future. "Duffy cites four recent cases that illustrate the Patent Office's growing hostility to the patenting of software and other abstract concepts. While the USPTO hasn't formally called for the abolition of software patents, the positions it took in these cases do suggest a growing skepticism. In the first two cases, decided last fall, the United States Court of Appeals for the Federal Circuit (which has jurisdiction over patent appeals) upheld patent rejections by the USPTO. They were not software patent cases, as such. In In Re Nuijten, the court considered a patent related to an algorithm for adding a watermark to a digital media file. The Federal Circuit did not invalidate the claims relating to the watermarking algorithm itself; everyone seemed to agree that the algorithm was patentable. Rather, the decision focused on whether a digital signal could be the subject of a patent claim. The court concluded that it could not. A victory for common sense, perhaps, but hardly a rejection of software patents."
Related Stories
[+]
Patent Appeals System Under Constitutional Attack 46 comments
Goobermunch sends in a law.com article going into questions about the validity of recent patent rulings (within the past eight years) by the Board of Patent Appeals and Interferences, due to the unconstitutionality of the method for appointing patent and trademark appeals judges. The problem arises because the patent appeals judges were appointed by the Director of the Patent and Trademark Office, rather than the Secretary of Commerce. Under Article 2, Section 2 of the U.S. Constitution, the power to appoint "inferior officers" of the government may be vested in "in the President alone, in the courts of law, or in the heads of departments." The patent appeals judges are likely inferior officers, and therefore must be appointed by the President, the courts, or a department head. Quoting: "The US Patent and Trademark Office may have a major problem on its hands — the possibly unconstitutional appointment of nearly two-thirds of its patent appeals judges. Such a constitutional flaw, if legitimate, could call into question the hundreds of decisions worth billions of dollars in the past eight years. The flaw, discovered by highly regarded intellectual property scholar John Duffy of George Washington University Law School, could also afflict the appointment of nearly half of the agency's trademark appeals judges."
This discussion has been archived.
No new comments can be posted.
The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
Full
Abbreviated
Hidden
Loading... please wait.
Somewhat a dupe (Score:4, Informative)
A lot of the article is talking about another article that was on slashdot recently.
http://yro.slashdot.org/article.pl?sid=08/07/24/1458215 [slashdot.org]
Re:Somewhat a dupe (Score:5, Funny)
Here at Slashdot, we call that "Prior Art."
Parent
Re: (Score:2)
Yeah but to be fair, this is the kind of thing you don't mind hearing about twice.
Keep up the pressure? (Score:2, Insightful)
It does appear that consistent negative publicity helps. Too bad that it has taken over a [i]decade[/i] before changes appear.
It also seems that this long delay is going to lead to a rather messy situation... although possibly less so than it already was :-)
From the US Government? (Score:5, Funny)
Re:From the US Government? (Score:5, Funny)
Parent
Re:From the US Government? (Score:5, Insightful)
That is why I tagged it "toogoodtobetrue". There must be some conspiracy behind it!
There is. It has to do with ensuring that when Microsoft, IBM, HP, and other Big Tech megacorps see inventions from legitimate individual inventors, the megacorps can indiscriminately steal the inventions and then label the inventors "patent trolls" if they get sued. This is not a case of throwing the baby out with the bathwater. This is a case of shoving the baby down the drain and accidentally letting some bathwater slip down with it. And it's been in the works for a long time.
If you don't believe me, remember that USPTO director John Dudas is a Bush stooge appointed for his loyalty over his qualifications. In the end, this is still about protecting those who make the right donations to the right politicians. Any benefit to you is strictly incidental, and will be canceled out the moment you invent something.
Parent
Re:From the US Government? (Score:5, Insightful)
Of course, that rather assumes there is any benefit to me as inventor under the current system. If I invent something as things stand, those corporations with established patent thickets can tie me up in legislation until I run out of money. To compete on even terms there, I don't just need to invent something, I need to patent tens of thousands of somethings. That's probably not going to happen, no matter how hard I work.
On the other hand, if software patents are forbidden, then at least I can't be prevented from trying to exploit on my own idea, even if I do have to allow the big boys to compete.
As I see it, that has to be an improvement.
Parent
Re: (Score:3, Interesting)
tinfoilhatmuch?
Registered patent attorney who has seen how things go.
Re: (Score:3, Insightful)
CEOs are citizens too...
Re: (Score:2)
Re:From the US Government? (Score:5, Insightful)
I think it was Churchill who said it best "The US can be counted on to do the right thing, only after it has exhausted all other possible options"
Parent
Re: (Score:2)
I do love that quote, as it is very true.
On the other hand at least in the USA all other options are tried, instead of just installing camera's everywhere saying it is for the good of the nation(UK).
In the USA it takes a long time to do anything let alone do it right. The again when it is done it can be undone just as easily if it wasn't right.
Re: (Score:3, Interesting)
You must think our USPTO registration certificates also invest us with dark powers or something if you think we have that much power. Bush's cronies at the patent office have been working very hard to totally destroy the patent system, and we've been powerless to stop them. Last year, they passed a rule package that was retroactive and so draconian, every single patent attorney who commented on it said, "No, this is a bad idea." They passed it anyway, despite that fact that it was so far reaching that it
Re: (Score:3, Insightful)
If you never plan to invent anything, and want to ensure those who do invent have no recourse when their inventions are blatantly stolen by Big Business, then just lap up whatever those goons at the paten office dish out. But if you think there is any value to having a strong patent system to protect legitimate inventions (like the Framers of the Constitution did)
Perhaps Big Business has a symbiosis with the patent system, patents prevent anyone without a good legal department from doing anything new or useful, and big business demands specialization and compartmentalization such that "invention" is a job (and cost) on its own instead of a natural byproduct of doing a good job.
Software is not of patentable subject matter.... (Score:4, Insightful)
.... it is abstact matter with a definable physics supporting its use. [abstractionphysics.net]
To bad there is not stock to invest in on this overall debate as the outcome is certain. Software patents will become a thing of the past. An embarrassing thing at that.
Re:Software is not of patentable subject matter... (Score:5, Interesting)
More than embarrasing. Costly.
Like the saying, "Make hay while the sun shines" the fallacy that equates license to property will burn many more fools before we are done. Money in the bank is always decreasing in value. Using that money keeps it alive. Many profited in the domain name business, if they were wise enough to buy and sell them in a short lived market. The coming ICANN changes will soon massively devalue once treasured domains and those foolish enough to be left holding them, but not using them, will lose out.
The same is true of bogus patents. Fine if you were able to catch the wave of USPOs mistake that sparked the software patent war in the first place, and leverage ivalid patents, but disaster for those caught holding them in the belief that they are tangible property.
When the correction finally comes (and it will) it will wipe billions off the value of some companies. It couldn't happen to more deserving people of course. And perhaps that's the main reason it hasn't happened already. Software patents always have been, by widely recognised standards including those of UPSO itself, invalid. It's only the propagation of an error that has allowed some to profit meanwhile. The value of a market resulting from an error should not be justification to allow that error to persist.
Parent
Re: (Score:3, Insightful)
I've said it before and I'll say it again, Software patents should be Copyrights, not patents. Patents belong on physical items. It would be like patenting the method of turning a page in a book.
If someone can figure out a better way to code the same thing you are doing without using your code, more power to them. That's innovation.
Duffy as Troll (Score:5, Insightful)
The thing that arstechnica is missing is that Duffy is a troll. He is representing amicus in the Bilski case, and is raising the possibility that the USPTO is adopting a position that will invalidate most business process / computer based patents as a FUD attack against any attempt to limit the scope of patentability in this field.
Provide the proof! (Score:5, Interesting)
I've always believed that patents should include not just the idea being patented, but also details on how to recreate such an idea (ie. the prototype).
For physical objects, this means schematics. For drugs and such this means formulas. For software it means source code.
See how many companies will be willing (or in the case of patent trolls, ABLE) to patent software when they have to pony up a working implementation as part of the patent application (and thus public record).
I am also against 'secret' or 'partially secret' patents, how is someone supposed to know they are infringing on a patent if they can't get all the details on a patent?
Re:Provide the proof! (Score:5, Informative)
I can't resist replying to this comment. It is typical of many Slashdot comments particularly in relation to Patent Law.
I don't know how much the author actually knows about patent law but the comment illustrates a severe lack of understanding.
Patents must and do include "details on how to recreate such an idea". It's called the "description". While you no longer need to produce a prototype there is generally enough in the description for "someone skilled in the art2 to recreate it. In fact the whole reason you don't have to produce a working model is because you might not have the resources available but you want your idea protected while for example you get funding to set up a factory or what not.
I really don't know what you mean by a "secret patent". Since 2001 in the US and the rest of the world for approximately forever, pretty much all granted patents have been published twice. Once 18 months after filing and the second time after grant. Just because you don't know about a patent does not make it secret. All the patent databases are available for free online these days.
Parent
"secret patent" - aka submarine patent (Score:5, Informative)
http://en.wikipedia.org/wiki/Submarine_patent [wikipedia.org].
Submarine patent is an informal term for a patent first published and granted long after the initial application was filed. In analogy to a submarine, its presence is unknown to the public; it stays under water, i.e., unpublished, for long periods, then emerges, i.e., granted and published, and surprises the relevant market. This practice was possible previously under the United States patent law, and is now not practical with present patent filings since the U.S. signed the TRIPS agreement of the WTO: since 1995, patent terms (20 years in the U.S.) are measured from the original filing or priority date, and not the date of issuance. A few potential submarine patents may result from pre-1995 filings that have yet to be granted and may remain unpublished until issuance. Submarine patents are considered by many as a procedural lache (a delay in enforcing one's rights, which may cause the rights to be lost).
Parent
Re: (Score:2)
My Question (Score:5, Insightful)
I've asked before and I've never gotten a good answer. How can you patent the act of using something in exactly the manner in which it was designed to be used? A computer is designed to execute an arbitrary series of pre-defined instructions. That's it's only function. Software is just a list of such instructions. How is that patentable? It's not a new invention. It's not an extension of the original device. It's like patenting the act of driving a nail with a hammer, or letting fresh air into a room by opening a window.
Say a particular calculator is patented, and I patent the act of entering 2+2 on it. Then someone else comes by and patents the act of entering (3+7)/2. Hey, it's an innovative new application of an existing device!
Re: (Score:3, Interesting)
Software can be patented but only by the owner of the microcode that make up the instructions of the processor. Of course this is not smart if the owner of the microcode actually want this to be used by their clients, this is why Intel, AMD et al. never patented the instructions of the processor.
The reason why others were able to patent specific sequences of the instructions have to do with corruption and actively attempts to stifle science by politicians. The patent system is seen by politicians as a good
Re:My Question (Score:4, Insightful)
Your reasoning can be trivially extended to exclude all patentable art. The fact that you built a new widget using tools designed for the purpose of building widgets does not make the widget unpatentable. Patents are mostly about new configurations; the tools used to create those configurations are irrelevant. Consider chemical process patents, which are just algorithms for efficiently producing molecular states, despite the fact that chemistry instructions that define the process are very general and used in millions of different applications.
Parent
Not Quite... (Score:4, Insightful)
The example of the widget's patentability ignores that not all configurations are "novel" and "non-obvoious".
I like the standard that the Supreme Court put forth in the KSR case. In a nutshell, simply combining already known components and design elements and getting the expected result is not patentable. If, however, the result is not something anyone "skilled in the art" would expect, then it qualifies.
So, say we design a chemical plant to produce gasoline from coal (which has been done many times before), but happen to run across a tweak to the materials in the pipes that causes the reactions to occur faster than theory predicts, we have a patentable configuration. The addition of a previously unknown catalyst is the patentable idea, not the already-known process.
Unless the code to be patented does something unexpectedly beneficial, it falls into the same category of "obvious". Just solving a new question with a combination of already-known steps doesn't cut it here.
Parent
Re: (Score:3, Interesting)
That's an interesting idea, if we can find where it ends. Surely patenting buttons a calculator is senseless. But software is completely open-ended.
Where would the logic end? If I design a new latch out of 3 screws and a flexible piece of metal, can someone argue against my patent saying that this is exactly the intended use of a screwdriver and a hammer? Or perhaps we could extend this logic to copyrights since the intended use of a pen is to write?
What separates software patents from others? (Score:4, Insightful)
Let's say someone finds a new way to cut logs that let you build log cabins almost as easily but many times more sturdily and with better isolation. This would surely be patentable.
Let's say someone invents a new file system, that lets you access files almost as quickly but with many times the protection against data corruption. Why would this not be patentable?
My impression is that the case against software patents is really a fight by proxy against patents in general, recognising the growing role that software plays to make anything happen.
Re: (Score:2, Interesting)
I wouldn't be all that averse to patents if it weren't for all the damn loopholes that big fat corporations have lobbied for.
Perhaps this is the side effect of big corporates pressing their luck a little too hard and making it pop, springing a massive leak of backlash.
Sorta like annoying someone enough that they finally snap, lose their temper, and let you have it.
Re: (Score:3, Interesting)
I think the only way to get the patent system perfect (or any other endeavor that man engages in to bring order to society) is to either have robots rule us (*insert memes here*), or make it profitable for the politicians to not accept sums of money (or campai
Re: (Score:3, Interesting)
Because in the first case, the patentable object is an actual thing that does something useful. Software on it's own as a separate entity is not useful as it does not do anything. It needs hardware to actually function and be useful. If it's not useful, it doesn't pass the requirements to be patentable.
If you want to patent say a new harddrive with software file system that allows fast system access, then as a physical unit the entire thing is patentable, and the patent item just happens to have softwar
Re: (Score:2)
Let's say someone invents a new file system, that lets you access files almost as quickly but with many times the protection against data corruption. Why would this not be patentable?
For precisely the same reason that Newton's method for finding roots isn't patentable, even though it's clearly better and faster than just guessing around.
Re: (Score:2)
I think it's the threshold of "invention".
Is a new file system a real invention? Yes, probably. What about patenting adding a 4-letter extension to file names instead of a 3-letter one? Probably not.
I think everyone disagrees where the line should be drawn, which is why people are frustrated to the point of just wanting to throw it all out the window.
Re: (Score:3, Insightful)
Let's say someone finds a new way to cut logs that let you build log cabins almost as easily but many times more sturdily and with better isolation. This would surely be patentable.
I assume you mean "better insulation". How much do you think it would cost to research such a process to the point where it was patentable? You have to actually cut logs and fit them together... even if you prototype the design in Second Life you're going to have to build it to tell if it actually works.
Let's try another example:
algorithms patentable? (Score:5, Interesting)
That's an odd thing to agree upon, because algorithms are not patentable [umd.edu] (search for `algorithm')
But methods are. I forget where I read this, but the difference was explained something like this --
Bob: So, algorithms are not patentable and methods are. ... algorithms are not patentable, but methods are ...
Lawyer: Right.
Bob: But what's the difference between an algorithm and a method? Aren't they pretty much the same thing?
Lawyer: Listen carefully
Bob: ?
Re: (Score:2, Interesting)
Re: (Score:2)
Still does not address the real issue (Score:4, Interesting)
The real issue, which most people avoid addressing, is that there is no practical distinction between software patents, chemical process patents, or machinery patents as a necessary consequence of basic theory. The reason this has become an issue at all is because there is increasingly little distinction in practice as well. Consequently, any dividing line is going to be arbitrary and capricious. Note that there is a similar emerging problem with copyright law, which is also premised on a false model of the universe that is starting to become obvious in practice. Yet few people are suggesting we solve this problem by rectifying the law with reality, instead opting to promote an alternative fantasy model of the nature of the universe that will ultimately break when it intersects with reality.
As every computer geek should know, there is no theoretical distinction between the machine, the program, and the data. At one time there was a practical distinction, but those lines have been blurring for many decades now. Any solution that pretends like these are theoretically distinct classes of thing solves nothing, as the cause of this problem was pretending a theoretical distinction exists where none does in the first place.
Software Patents Just Need to be Smarter (Score:5, Interesting)
Take for example Amazon's one-click checkout. The idea of a one-click checkout should not be patentable. Anyone number of people should be able to accept a single click to check-out, what should be patented is the system behind the checkout. The mechanism for tying in the user's login, prioritizing recently used shipping addresses and payment methods, etc... You need to patent the process or the invention, not an ethereal idea.
If I invent Widget A that performs task A, and am awarded patent "Widget A for performing Task A", and someone realized widget A will also perform task B without any modifications, they can't patent "Widget A for peforming task B", because I still own the patent for Widget A, which is all that really matters. I own the exclusive rights for Widget A, no one else can reproduce Widget A regardless of what they want use it for. Amazon didn't invent one-clicking (didn't Microsoft patent that recently?), so they can't say no one else can use one-clicking for checking-out.
It's similar to the patent that the adult-entertainment (read: porno) industry has been fighting for years. Some company patented the idea that videos could be downloaded from the internet. Problem is, since that company did not create the internet nor the http protocol nor the first web-browser, they didn't actually create anything that had to do with the content their patent covered. Improving upon an invention means changing the invention, not mentioning something else the invention could be used for. That's the problem with software patents. People are patenting what existing technology can do, but if they don't own the existing technology, they can't tell other people they can't use it for other things.
With some reservations, I agree (Score:3, Interesting)
I agree with scaling back of software patents with certain reservations. I don't think you should be able to patent abstract concepts such as formulas or even general purpose application software, but you should to make patent claims on certain kinds of software so long as the scope is narrow and there are specific hardware and software specifications.
Software that nonsuperflously extends the basic functionality of a particular device beyond what it was designed to do should be patentable. The best example of this is custom device drivers and but other novel software extensions might also apply.
Furthermore internal network architectures should be patentable. If you have a network that you own and operate, and you have a protocol that you use for that network, you should be able to patent your protocols so that third parties can't operate on your network by reverse engineering your protocols.
Re: (Score:2, Informative)
Ack, messed up the link [slashdot.org].
Re:Seems vaguely familar (Score:4, Funny)
Scoring 7 karma in 2 posts after eachother. That is a trick I must surely try.
Parent
Re:Seems vaguely familar (Score:5, Funny)
Indeed, I will probably try this soon. But I'd rather plan this strategy first.
Parent
Re:Seems vaguely familar (Score:5, Funny)
unfortunately, funny posts don't get yo karma. You need one that is informative, like this post.
Parent
Re:Seems vaguely familar (Score:4, Funny)
Sorry, yours is redundant.
Parent
Re: (Score:2, Funny)
Re:Seems vaguely familar (Score:5, Funny)
Yeah, it's definitely werth trying oot.
Parent
Re:Seems vaguely familar (Score:4, Funny)
Ack, messed up my sentence!
Yeah, it's definitely worth trying out.
Parent
Re: (Score:3, Insightful)
Odd. I was under the impression that the USPTO had some degree of control over the USPTO.