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The Post-Bilski Era Gets Underway
Posted by
kdawson
on Sat Dec 20, 2008 02:29 PM
from the method-in-their-madness-but-no-apparatus dept.
from the method-in-their-madness-but-no-apparatus dept.
bfwebster writes "A set of pharmaceutical process patents for 'evaluating and improving the safety of immunization schedules' (Classen v. Biogen et al.; see US Patents 6,420,139; 6,638,379; 5,728,385; 5,723,283) were held to be invalid due to unpatentability. The decision was appealed to the US Court of Appeals for the Federal Circuit, but was upheld with a terse citation to In re Bilski (which decision we discussed here). Here's the entire text of the appeals decision: 'In light of our decision in In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc), we affirm the district court's grant of summary judgment that these claims are invalid under 35 U.S.C. 101. Dr. Classen's claims are neither "tied to a particular machine or apparatus" nor do they "transform a particular article into a different state or thing." Bilski, 545 F.3d at 954. Therefore we affirm.' It will be interesting to see what happens when these same standards start getting applied to software-related patents."
Related Stories
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Federal Circuit Appeals Court Limits Business-Method Patents 73 comments
Zordak writes "The Court of Appeals for the Federal Circuit has just issued its much-anticipated opinion in In Re Bilski [PDF]. This was a re-visit of the State Street issue of what constitutes patentable subject matter (including whether software and business methods are patentable). In summary, the court has affirmed and strengthened the 'machine-or-transformation' test, upholding the patent office's rejection of claims on a method for hedging risk in the field of commodities trading. Although the court refused to exclude software patents categorically, it is likely that the reasoning of this decision will be used to reject many software patents (note that some of the dissenting judges would have completely overturned State Street and tossed out all software and business method patents). Although not as sweeping as some had hoped for, it is certain that this decision, along with the Supreme Court's KSR decision last year, will lay a difficult mine field for those who want to patent software and business methods."
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Bilski Patent Case Appealed To Supreme Court 175 comments
An anonymous reader writes "The landmark ruling of a few months ago that limited patents to inventions which include a machine or which transform physical matter has been appealed up to the Supreme Court. 'On the one side of this controversy... are those... who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods. On the other side are consumer advocacy groups and free-market devotees who worry that patent monopolies could tie up methods of creative thought processes, including teaching, judging, creative writing, making medical judgments, or picking juries (some current, real examples of claims).' The Bilski decision has already had an impact on potential software and biotech patents, in addition to the obvious limitations on business method patents. The petition (PDF) argues that the 'machine-or-transformation' test conflicts with the broad language of the patent statute and with congressional intent. It's entirely within the Supreme Court's discretion to take the case or not, but for now it looks like the issue is far from decided."
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Supreme Court To Review "Business Method" Patents 181 comments
xzvf alerts us to big news on the patent front: the Supreme Court decided today to review the validity of "business method" patents. In particular, the Supremes will look over the "In re: Bilski" case, which we have discussed before. "By agreeing to weigh in on the case, the high court is venturing into controversial terrain. Critics of business-method patents say it was never the intent of the law to protect such things, which in their view are often far closer to abstract concepts or mathematical algorithms rather than physical inventions. Proponents say they are key to promoting innovation in today's knowledge- and service-based economy. ... The court's decision to review the Bilski case caught many observers by surprise. The Bilski patent claims are widely viewed as vulnerable to challenge on a number of grounds, and the sense among some experts was it would make a poor test case. ... The Supreme Court won't hear arguments in Bilski until its next term, which begins in October. A ruling is likely during the first half of 2010."
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News: Judge Invalidates Software Patent, Citing Bilski 252 comments
bfwebster writes "US District Court Judge Andrew Gilford (Central District of California) granted a summary judgment motion in DealerTrack v. Huber et al., finding DealerTrack's patent (US 7,181,427) — for an automated credit application processing system — invalid due to the recent In re Bilski court decision that requires a patent to either involve 'transformation' or 'a specific machine.' According to Judge Gilford's ruling, DealerTrack 'appears to concede that the claims of the '427 Patent do not meet the "transformation" prong of the Bilski test.' He then applied the 'specific machine' test and noted that, post-Bilski the Board of Patent Appeals and Interferences has ruled several times that 'claims reciting the use of general purpose processors or computers do not satisfy the [Bilski] test.' Judge Gilford analyzes the claims of the '427 patent, notes that they state that the 'machine' involved could be a 'dumb terminal' and a 'personal computer,' and then concludes: 'None of the claims of the '427 Patent require the use of a "particular machine," and the patent is thus invalid under Bilski.' DealerTrack apparently plans to appeal the ruling. Interesting times ahead."
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Link doesn't work... (Score:2)
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News for lawyers, Stuff that matters. (Score:5, Interesting)
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As a rule of thumb, when a judge answers you with a single paragraph of "go away," you were stupid to even bring the case and pushing it is likely to lead only to heartbreak (and paying attorneys' fees) for you and your client.
I heartily recommend a diet of Groklaw [groklaw.net], to teach you as a technologist WTF the lawyers mean.
In other words... (Score:5, Informative)
It's a virtual invention and gets no protection. Patents after Bilski pretty much have to be tied to a particular machine or change something in meat-space.
Parent
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Unless It Hits KSR (Score:4, Interesting)
It still will need to pass the hurdle of "obviousness" under KSR, which basically lays down a standard of using commonly known components in accordance with known techniques and getting the predictable result is highly likely to be "obvious" and thus fail patentability.
What I found interesting in this case is that the courts have told the patent attorneys in this case that the Bilski ruling actually means what it says, and that trying to game their way around it will result in summary execution of thier case.
The rules have fundamentally changed.
Parent
It's really not a huge change (Score:5, Informative)
There are only a small amount of applications this effects and it's very easy to overcome, although I unfortunately can't go into much more depth than that.
Re:It's really not a huge change (Score:4, Interesting)
What about a business processes such as Amazon's 1-Click. Surely this will be next now that there is a precedent.
Parent
Re: (Score:3, Interesting)
There are only a small amount of applications this effects and it's very easy to overcome, although I unfortunately can't go into much more depth than that.
I don't think you meant anything controversial but there's just something about that line that makes me grumpy. It sort of implies that the inner machinations of the patent system aren't meant for regular people to understand. It plays to the feeling, common around here, that the only thing that regular people, the kind that might start small software shops, need to know about software patents is that they can kill your business if your competitors are big.
I know that's not what you meant, it's probably you
That sidesteps the issue. (Score:4, Insightful)
If the current Bilski ruling does not change this effectively, then reasonable people will continue to push until it is changed. In other words, our goal (no joke or exaggeration) is to put you out of a job.
Parent
Not so (Score:5, Interesting)
Industry argued that the paper rolls should be patentable, because they constituted physical items that controlled a physical machine. The courts ruled (quite properly, in my opinion) that the physical form of the music is irrelevant; it might be possible, for example, to make a machine that could read music directly off the paper it was written on. Does that make it fundamentally a "different" product or work from the original? The answer was unequivocally "NO".
The same holds for written vs. compiled software: there is no fundamental difference between the results of software that is run in realtime by an interpreter (which reads the source code directly), and the results produced by the same program when compiled. If the interpreter and compiler are constructed properly, the output is identical. Therefore there is no legal (or moral, or ethical, or logical) difference. For all practical purposes they are the SAME.
It is precisely because industry has managed, after all this time, to finally get the courts to be sympathetic to the position that software should be patentable that we are having all these troubles. During the long period when it was understood and accepted that software was a copyright issue rather than a patent issue, such problems seldom arose. Now they are everywhere. Also, software patents have a chilling effect on innovation; we have seen this time and again, even some really egregious examples. It is clear by now that software patents have very little if any societal benefit, in proportion to the harm that they cause.
Parent
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The same holds for written vs. compiled software: there is no fundamental difference between the results of software that is run in realtime by an interpreter (which reads the source code directly), and the results produced by the same program when compiled. If the interpreter and compiler are constructed properly, the output is identical. Therefore there is no legal (or moral, or ethical, or logical) difference. For all practical purposes they are the SAME.
That is where we disagree. While there are isomorphisms between source code and instructions running through a state machine, I hold that the instructions + state machine form its own patentable process. The source code, and even the binary code, is copyrightable, as you say. But the algorithms and approach are almost by definition a methodology, and when they run on a machine to accomplish some purpose they are a novel invention.
The problem with music is that it is very difficult to prove that it accomp
However, (Score:2)
Not at all. (Score:2)
As an honest businessperson (i.e., not one to try to use dishonest or coercive methods to take over the market), I welcome the challenge. As long as you are also an honest busin
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I see no evidence this is true and plenty of evidence that innovation is coming fast and furious without any need for government intervention by creating more monopolies.
Innovation is coming fast and furious in an environment where government intervention *has* created monopolies. There's tons of research on the effects of patents (much on the results of the Bayh-Dole Act), which has drawn the uncomfortable conclusion that patents absolutely ARE still a very relevant tool in fostering innovation. Believe me, I don't want it to be that way either... but I spent an entire quarter studying this stuff ;-) and patents do what they say they do.
The problem is that they do *other
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All in a day's work for CaptainPatent
Boy #1: "Engineers!"
Boy #2: "Scientists!"
Girl #1: "Artists!"
Girl #2: "Inventors!"
Boy #3: "Lawyers!"
*everyone gives boy #3 dirty looks*
Boy #3: "Uhh... Heart!"
Irrelevant. (Score:2)
Software patents, sadly, play by different rules than everything else. I'd imagine that software patents would still be granted and enforced, especially since they could just tie the process to the PC and meet the court's requirements. Meh.
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A computer is not a "specific machine". A washing machine, Westinghouse Model 293DQ, is. So, unless your software runs on only one make and model of computer, it isn't patentable.
Re:Irrelevant. (Score:4, Interesting)
Parent
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Yes, but only if that is its ONLY function.
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The spreadsheet application can only do spreadsheets.
To the contrary, I bet most spreadsheets today are turing-complete, meaning they can conceivably simulate any computer program.
It's not called general purpose computer for nothing, you know.
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Actually, the Wikipedia page for Bilski quotes the court as having said:
"We leave to future cases the elaboration of the precise contours of machine implementation, as well as the answers to particular questions, such as whether or when recitation of a computer suffices to tie a process claim to a particular machine."
So I think the question remains open.
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And that's the LESS-silly dodge.
Many software patents also claim the media that contains the software as a patentable device.
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Oops, have to reply to my own post. Not only would the software need to run on only one make and model of computer, it would have to be included with every instance of that computer. Think embedded firmware.
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But the case doesn't really prove anything [flywheelblog.com], at least, not until SCOTUS denies to hear it/agrees with the ruling. But even then, it could just be that patent writers have to be a bit more creative about the wording of their patents.
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The whole point of In re Bilski is that this court, which had several years ago expanded the definition of what was patentable and lead to the mess the USPTO is now in, has now stated that they were wrong in doing so and that they were now adhering to an earlier definition that did not expand upon those decissions that SCOTUS had handed down. Software was not originally patentable (believe me, I've been programming since 1968). If they adhere to an earlier definition, it follows that it is not patentable.
Pack-in game? (Score:2)
Not only would the software need to run on only one make and model of computer, it would have to be included with every instance of that computer.
So in other words, Nintendo could make one of its games eligible for a patent by including it as a pack-in with one of its consoles. Is this correct?
Software patents - not holding my breath (Score:2)
âoeWe leave to future cases the elaboration of the precise contours of machine implementation, as well as the answers to particular questions, such as whether or when recitation of a computer suffices to tie a process claim to a particular machine.â
Direct citation from Bilski's case.
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The real problem with these things is that they describe what is generally considered to be "what is being done" rather than "how it is done."
If a patent were granted for "A method of lighting homes using electricity", it covers a lot more ground than "a method of lighting homes using electrically-heated coiled metal in a vacuum"
In general, it's better to say someone has limited monopoly on "this thing they built" than it is to do so for "this idea they had", even if they built a thing based on the idea.
The Post-Bikini Era Gets Underway (Score:3, Funny)
Ooops. That says "post-Bilski" not "post-Bikini".
Darn. And I was looking forward to visiting the bikini-free beach this summer. :-|
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Be careful for what you wish for. The alternative may be far worse.
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Outlaw nudity for anyone over 150 (years or pounds).
Discriminazi (Score:2)
Outlaw nudity for anyone over 150 (years or pounds).
That might be sex discrimination. I would imagine that as a group, men over 150 pounds tend to be healthier than women over 150 pounds, if only because men are taller. Even Olympic swimmer Michael Phelps weighs about 200 pounds, largely because of his muscle.
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Sadly, the post-bikini era still remains but a dream for most nerds.
Patenting the scientific method? (Score:2)
I've just glanced briefly at the first patent listed (6,420,139), and at its first couple of claims, and to me it seems they could be summarized as "apply the scientific method to immunization schedules".
While I'm not actually opposed to all patents, even software patents, I do think there are a lot of crap patent applications being submitted (with many of them being granted), and my initial impression is certainly that this is likely to be one of them.
This case is nonprecedential (Score:2)
Here's the claim:
1. A method of determining whether an immunization schedule affects the incidence or severity of a chronic immune-mediated disorder in a treatment group of mammals, relative to a control group of mammals, which comprises:
immunizing mammals in the treatment group of mammals with one or more doses of one or more immunogens, according to said immunization schedule, and
comparing the incidence, prevalence, frequency or severity of said chronic immune-mediated disorder or the level of a marker of such a disorder, in the treatment group, with that in the control group.
As discussed here [patentlyo.com], it's difficult to see why immunization of animals is not transformative.
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Wow... so they want to patent the usual way of conducting medical research?
1. Come up with an intervention
2. Try that intervention on animals
3. Collect data on what happens
4. Analyze data and publish results
The tiny conspiracy theorist in me thinks that someone wants to be able to quash rigorous scientific research on the long-term effects of vaccines.
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Somebody should clue the USPTO about that though, so that they can take down or appropriately modify this page. [uspto.gov] Maybe just a footnote that says "the requirement for novelty shall not be used to keep well-connected parasites from getting a free rid
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Re:What about post-9-11 era? (Score:4, Insightful)
Hey, since that is a transformative act, why not patent it? Then you can prevent anyone else from trying to "punish jews."
While you're at it, why not extend the patent to *ALL* hate crimes? And WAR? Be nice if hate crimes and war were impractical because of potential patent violations.
And you could patent stupidity. We could all use an outbreak of common sense.
Parent
Re: (Score:3, Funny)
And you could patent stupidity.
I'm quite certain that'd be one case in which prior art would not go unnoticed.
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Maybe the examiner is a practitioner? :-)
There's been lots of evidence of that over the last decade.
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Hey, since that is a transformative act, why not patent it?
Sorry, prior art. Look up Genghis Khan v Asia.
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Prior art, already published, and even taught in a class a few decades ago by one Tom J. Billman (now a guest of the Federal Bureau of Prisons).
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