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Courts May Revisit Software Patents
Posted by
CmdrTaco
on Mon Feb 18, 2008 09:50 AM
from the yeah-that'll-happen dept.
from the yeah-that'll-happen dept.
An anonymous reader writes "It looks like the courts may finally be gearing up to overturn the ruling that opened the floodgates for both software and business model patents. It's been nearly ten years since the US courts decided that business methods were patentable and that most software could be patentable — and we've all seen what's happened since then. With all the efforts to fix the patent system lately, it appears that the court that originally made that decision may be regretting it, and has agreed to hear a new case that could overturn that ruling and restore some sanity to the patent system."
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Submission: Software Patents May Be A Thing Of The Past! by Anonymous Coward
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Time To Abolish Software Patents? 259 comments
gnujoshua writes "Has the time come to abolish software patents? Fortune columnist Roger Parloff reports on a new campaign called End Software Patents, which he views as 'attempting to ride a wave of corporate and judicial disenchantment with aspects of the current patent system.' Ryan Paul of Ars Technica writes that the purpose of the campaign is to 'educate the public and encourage grass-roots patent reform activism in order to promote effective legislative solutions to the software patent problem.' The campaign site is informative and targets many types of readers, and it includes a scholarship contest with a top prize of $10,000.00. We've recently discussed the potential legal re-examination of software patents."
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Supreme Court Review of Bilski Heats Up 121 comments
I Don't Believe in Imaginary Property writes "The Supreme Court's review of In Re Bilski (discussed here numerous times) is heating up, having attracted no less than 44 friend-of-the-court briefs from almost everyone with a stake in the patent system. Patently-O provides a nice summary of who is arguing against Bilski. The two questions before the Supreme Court are whether or not a process must satisfy the particular machine or transformation test, and whether this test improperly excludes many business methods in spite of the wording of 35 U.S.C. 273, which specifically allows business-method patents. So far, the case has attracted legal filings from nearly every large company or group whose patents might be threatened. You can read briefs from Yahoo, IBM, Borland, Dolby Labs, the BSA, and many others, even one from some guy claiming to speak on behalf of the State of Oregon."
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It'll never happen... (Score:4, Insightful)
Re:It'll never happen... (Score:5, Insightful)
And how about the lawyers of companies who have been hit severely by the current situation?
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Lawyers absolutely will try (Score:5, Insightful)
For example, the recent KSR v. Teleflex case changed the rules on obviousness. That created lots of work. Suddenly there were new arguments to make in seeking new patents. There were also new arguments to make in invalidating old patents. Lots and lots of work.
The only way us patent lawyers would actually loose is if patents were outlawed.
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Re:Lawyers absolutely will try (Score:5, Insightful)
Yes, that's what we're all hoping. Software patents were a terrible, stupid idea. The hope is that the court will overturn the ruling that allowed them, and that patent lawyers can go back to just buggering up the hardware side of things.
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sotware patents (Score:5, Insightful)
I guess that many programmers will be anti patent for a number of reasons:
You left out the biggest reasons to oppose software patents, they stifle innovation and they lockout others who come up with something innovative.
FalconParent
Re:sotware patents (Score:4, Insightful)
This arguing that creators of software or engineering or other have to jump through extra hoops just so they don't step where someone else may have stepped once before is stupid. That adds NO value to the economy and NO value to economics in general. THIS is why engineers and software designers get pissed off about patents! There is no value added.
The whole point is to create a level playing field where someone who invents something truly revolutionary can make money off it without some "big company" copying the idea. As soon as no one is copying from anyone, patents should go away, and in NONE of these cases is anyone actually saying "he stole that idea from me", it's only "I thought of it first... he didn't know about me thinking about it first... he didn't copy my idea... hell, I didn't even do shit with my idea but file a piece of paper on it... but still i should get a pile of cash for all of HIS hard work since he managed to make a real fucking working ass product out of it that was actually useful while all i did was sit on my ass!".
d
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Re:It'll never happen... (Score:5, Insightful)
Saying that all lawyers support patent laws is a bit like saying that all programmers support buggy software because it gives them more work.
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Re:It'll never happen... (Score:5, Funny)
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Re:It'll never happen... (Score:5, Funny)
So you're claiming prior art?
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Re:It'll never happen... (Score:5, Insightful)
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Re:It'll never happen... (Score:4, Insightful)
Oddly enough, I have never seen or heard of a peer-reviewed study which has supported the idea that you can encourage innovation by stifling competition. It seems to be counterintuitive to me, but IP-proponents repeat it like a mantra. Can someone point a reference to such a study?
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Re:It'll never happen... (Score:5, Interesting)
Governments and the courts have utterly failed in their duty to reign this behavior in, and if they don't start soon, we're going to see the ultimate meltdown. Arms races are fundamentally unstable propositions, and at some point someone who really counts, like Microsoft, is going to pull the trigger and the whole thing is going to explode in a terrible conflagaration. At that point governments will have to do something, but only after billions of dollars are tied up in ludicrous lawsuits and the consumer is screwed in the process.
The solutions aren't going to be easy for some, particularly those who have made a business plan out of extortion (SCO didn't invent this, after all). Patent terms need to be shortened, software and process patents need to be thrown out, and patent offices need more resources to identify bad patents and prior art.
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Re:It'll never happen... (Score:5, Interesting)
A patent is a set of exclusive rights granted by a state to an inventor or his assignee for a fixed period of time in exchange for a disclosure of an invention.
Patents, from the beginning, were a compromise so that people who would invest in new developments would disclose the work of those developments (for public good) while being able to turn a profit from them in the short term (a motivation for inventing) through an exclusive monopoly.
Vested interests do not write the law, for it is the individual who has the most vested interest in the government. I think you mean to say "sociopathic capitalists write the law".
For patents to benefit society, the term of the monopoly must be greater than that required to recoup investment expenses, but shorter than the portion of an invention's life span where it is valuable to the people. In a government that exists for the benefit of the people, the shortest patent term is the most desirable. That's how our government was set up -- unfortunately, the world is more and more getting exactly what it deserves, as a few have learned that people will sell their freedom for remarkably little.
People can't own their ideas because they were never wholly their ideas. All that we invent is the summation of all that has come before us, perhaps with something new thrown into the mix. Your ideas belong just as much to your teachers, your parents, your peers, and the generations that came before you, as they do to you. In the long term community ownership is the only system that makes sense for such a creation.
In the short term, a man's got to eat. In the long term, society as a whole must reap the rewards for what it has sown. Only a parasite keeps that from society, and like any parasite feasting on a host, society becomes sick when that happens.
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Re:It'll never happen... (Score:4, Insightful)
What is badly needed is some sort of patent reform that prevents non-specific or non-original patents. You should be able to patent a thing. You shouldn't be able to patent the idea of doing whatever that thing does.
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Re:It'll never happen... (Score:5, Insightful)
Why is software so special that it's the only thing that I know of covered by both copyright and extensive patents?
(Is it really so surprising that the union of copyright and patent law produces a mess? They were never designed to cover the same domain.)
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Re:It'll never happen... (Score:5, Insightful)
I see this meme often on Slashdot but it isn't true. For example, you can copyright in the look of a new Ford as well as patent some aspect of its design.
In the case of software, I believe the double protection is not required; in fact, it actively hinders innovation. Even so, this does not change the fact that the protection of software by both patents and copyright is not unique to software.
I'd actually like to see a review of copyright law on software too. I don't think compiled binaries should be afforded the same copyright protection as an open-source piece of software. Here's why. If I buy Harry Potter, I am free not only to read the book but also to analyse its meaning, appreciate the style of writing the author uses etc. The value of the book to society is not just tied up in the entertainment of reading it. There's a lot more society can gain from the work through the study of it.
With a binary there is only the freedom to run the program. Its value to society may be great but it's never as much as having the source code to go with the program. With free software you are free not only to run the program, but to study it and modify it for your own use. You are even free to distribute copies of the modified software.
With a binary even the freedom to run the software is not guaranteed. What happens when the platform for which the software was written disappears? What do you do with your binary then? Unless the platform is popular enough to have an emulator, you're shit out of luck.
I would like to see copyright law reformed so that binary only software gets a much shorter copyright protection period of say ten years. Open-source software gets a longer protection period of maybe 35 years.
I think this reflects the relative value of the software. There would still be a strong incentive for the Microsoft's of the world to continue to produce software, however, it would reward people willing to open up the code to study and improvement much more.
Simon
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Re:It'll never happen... (Score:4, Informative)
This is a trivially falsifiable assertion, and it does not do anyone's credibility any good that it is repeated so often.
It is the general case for patents, e.g. chemical process patents, that the new abstract process/algorithm (the part valuable to a third party) is protected by patent and specific reduction to practice is protected by copyright (which may or may not have any practical value). In some other venerable patent areas, these are largely independent works, though in some cases the reduction to practice may be licensed as well. One argument that can be made for algorithm patents is that they are structurally indistinguishable in both theory and practice from an chemical process patents -- swap "bits" for "molecules". Software receives no special protection like you assert above, the algorithm/process and implementation protected by patent and copyright respectively, much like it is for everything else.
Of course, the elephant in the room that everything is an algorithm and that there is no mathematical difference between bits, molecules, hardware, software, or data. It is a distinction with no theoretical difference and people keep trying to patch up the law so that we can pretend a distinction exists in the face of clear evidence to the contrary; copyright has a similar issue, by the way. It has led to absurdities such as an algorithm on Intel x86 not being patentable in Europe but the same algorithm on a Xilinx Vertex-5 is -- the distinction between the two is arbitrary and capricious. The problem is not algorithm patents (and much of what we are talking about here is business process patents, not algorithm patents per se) but that so many patents are frivolous, but that is not a problem unique to any particular field of patentability. The two biggest problems are really frivolous patents being rubberstamped, and theoretically inconsistent treatment in a few narrow areas that are then bleeding over into other areas as the inconsistency becomes obvious in real cases. The only way to actually fix these inconsistencies is by adopting an all or nothing policy; I have no particular opinion on which way that goes.
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Re:It'll never happen... (Score:5, Insightful)
Patents do not stop that. Getting a patent is cheap enough, but defending it against a large competitor? You'd be forced into bankcruptcy in weeks.
There's a reason why large companies like patents so much - so they can use them as bargaining chips when they get sued for using other peopple patents (or simply countersue, if necessary). The small inventor has no foothold in this process and would just get steamrollered if they tried.
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Bah. (Score:5, Insightful)
I predict this will get quietly swept under the rug...again.
They may be ignorant,but at least they're arrogant (Score:3, Informative)
I'll admit I'm generalizing here, but anybody who ever thought lawyers, judges and legislators were actually intelligent rather than just clever, plausible and glib need look no further than the way the courts have dealt with hardware and software matters. The smug, bone-deep ignorance is as blatantly obvious as an elephant's...um...trunk.
If you need further evidence, consider some of the laws that have been enacted or are under consideration as a result. You get the impression these people think a computer is some kind of magic fetish that actually produces results.
No bets (Score:5, Interesting)
a new case that could overturn that ruling and restore some sanity to the patent system
No bets here, lawyers enjoy the complexity and confusion too much to make this any better. Congress just needs to change the law. In a business like computers which is evolving so quickly, say a 2 year patent then it expires. And you can only sue if you produce a competing product with it and have been harmed.
You need to stop patent trolls dead. Like RAID and bugs. Let innovation back into this business.
Worthy of discussion... (Score:5, Informative)
Carefully-placed regrets (Score:5, Interesting)
- A rethink to head off not only having their wrists smacked but having the USSC start reviewing their cases much more often (complete with reversals) or
- A chance to put together a really solid and detailed ruling to give the USSC a reason to agree with them.
We won't know which they pick until this summer.The PTO seems to want a bright-line test (Score:5, Interesting)
Interesting stuff.
Good Software Patents Can Lead to Good Outcomes (Score:5, Insightful)
Since then we've seen the emergence of Google as a powerful challenger to Microsoft. This is one example among many of a company whose entire existence, much less its massive success, is dependent upon a patent (# 6285999, in Google's case). If Google had not been able to patent its major innovation, then Microsoft could easily have co-opted the idea, and it would have dominated search as well as operating systems and office suites. Recall that most of Microsoft's meteoric rise took place during a time when software was not patentable. The absence of software patents is precisely what makes "embrace, extend, extinguish" possible. Software patents give the original innovator the power to stop that strategy in its tracks.
I believe that what Slashdot readers truly dislike are bad patents, not software patents per se. Software just has more bad patents than it should because of the way the PTO treated them. Until the courts basically forced the PTO to accept software patents, the PTO did not hire computer scientists as patent examiners. Even now, the PTO has a massive backlog of software patent applications, and as a result computer related applications have by far the longest median time to issuance (roughly 44 months!). The PTO tends to err on the side of issuance, and so we end up with a flood of terrible software patents.
How to fix this? The simplest way is to eliminate the presumption that patents are valid, which requires a patent challenger to prove invalidity by clear and convincing evidence (a standard almost as high as beyond a reasonable doubt). Instead, we should recognize that many patents are not valid and end the presumption of validity. That way, bad patents can be more easily challenged, and patent trolls will think twice before bringing spurious suits.
Re:Good Software Patents Can Lead to Good Outcomes (Score:5, Insightful)
Patents are supposed to cover a *specific implementation* of an idea. Which is fine, but in software, there are ALWAYS multiple ways to do things. So should a software patent cover the *functionality* of the software, or the the *implementation* (which would amount to the source code, and maybe some of non-standard elements of the interface).
I say they should only be able to patent the source code/interface. Which, of course, they wouldn't/can't do, since it's already covered by copyright laws.
So, no, Google shouldn't be allowed to patent their PageRank system.
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Re:Good Software Patents Can Lead to Good Outcomes (Score:4, Informative)
Living in Washington, D.C., I know quite a few people who work in the patent office. They are, generally, quite competent people. Many of them have fairly scientific minds and are technically savvy. And many of them like their jobs, and think it's quite neat that they get to learn about things on the forefront of technology.
However, they also know that they are judged by the Powers That Be not based on whether or not they make the "right" decision, but rather on whether or not they process enough applications when compared to the "average" examiner. If one decision requires relatively little paperwork, and the other requires a mountain of paperwork, taking up lots of time, followed by an inevitable challenge (or even lawsuit) by the aggrieved party, well, some examiners are simply going to start rubber-stamping everything in front of them. They're under enormous pressure to increase the rate at which they process applications, and the only way to do that is accept more, and reject less.
It becomes a vicious circle - examiners know they're judged based on whether or not they process enough applications. Therefore, some such examiners, in order to look "the best", are going to start blazing through applications, approving them all, to improve their numbers. This, of course, raises the "average", forcing everyone else to spend less time examining, and to make the easy decision.
Changing the presumption of validity would simply make the "easy" decision a "reject", and while I think it's better to reject them offhand (and have a review) than accept everything by default (leading to patent trolls and settlements rather than reexamination of a patent), it still doesn't solve the problem.
Patent examiners need to be reviewed based on the quality of their work, not just the speed by which they process it.
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Re:if you can't patent maths (Score:5, Insightful)
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Re:if you can't patent maths (Score:5, Insightful)
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Re:if you can't patent maths (Score:5, Insightful)
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Re: (Score:3, Insightful)
Re: (Score:3, Informative)
Re:if you can't patent maths (Score:5, Insightful)
The problem is that nearly all algorithms are obvious to one with ordinary skill in the art once you tell them what the inputs and outputs are. That's why patents on software are stupid. The only exceptions are those in which ordinary skill in the general art of computing are insufficient to understand what is meant by the description of the input or output.
For example, someone with ordinary skill in the art won't understand what a discrete cosine transform is, so describing a JPEG decoder as "an algorithm that generates a pixel array from a compressed image consisting of a series of XnY blocks (where X and Y are usually 8 or 16) in the form of a discrete cosine transform block compressed with Huffman codes" will mostly result in blank stares. However given that description and a notion of the order of these blocks, someone with average skill in the more specific art of image compression could readily write a JPEG decompression algorithm. It would take a while because the individual components are pretty complex, but the simplest complete description of the inputs and outputs is sufficient to completely define the entire algorithm.
For simpler software patents, this goes without saying. "An algorithm that takes as its inputs a click on a particular item in an HTML page and a stored representation of the user's credit card information on a server and generates as a result an order for the displayed product charged to that user's credit card" is a perfect example. Anybody who has ever written the simplest web app could do this in five minutes. Maybe they couldn't do it securely in five minutes, but the amount of thought that goes into taking those inputs and generating the output is negligible.
The only patents that should be allowed are those in which the a complete description of the inputs and outputs is insufficient to give someone with typical skill in the very narrow field of writing similar software enough information to write the software. For example, as someone who is getting annoyed at camcorders that do image stabilization based on what percentage of the image changes, I thought about "an algorithm that takes information from accelerometers and an image from a CCD and generates a motion-smoothed output". That patent might be acceptable under these rules because the process for manipulating the incoming data into a reasonable set of output data is not obvious, and indeed, there are many different smoothing techniques that one could come up with to muck with the accelerometer data and distinguish between jitter and a pan/tilt. On the other hand, it should only cover the use of a specific smoothing algorithm for that purpose, not the general process of smoothing, nor the definition of that smoothing algorithm for other purposes.
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Re:if you can't patent maths (Score:5, Insightful)
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Math vs software (Score:3, Insightful)
Software is just a subset of math, just as drugs is a subset of chemical compounds. Your analogy make it sound like math is at a totally different level of abstraction than software. It isn't.
Or maybe we need a car analogy to make it perfectly clear
Re:Math vs software (Score:5, Interesting)
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Re:Math vs software (Score:4, Informative)
Drug companies have HUMONGOUS profit margins. They can have a lot of their revenue taken away, still have a lot of money to do R&D, and still make a healthy profit.
You do know what Economics 101 says about companies that make a lot of profit, don't you? According to the Law of Supply & Demand, it means that they don't have enough competition.
Companies with "enough" competition will _barely_ break even (since they are forced to price their products to fight the competition), and they will still have to spend enough on R&D to keep up with the competition or they will be rendered obsolete. That kind of situation is what's best for the consumers, not so good for the owners of the companies.
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Re: (Score:3, Funny)
oh wait, is it still 2008? nm
Re:if you can't patent maths (Score:4, Interesting)
I know, copyright laws are also under fire, but still, I think that using patents to protect code is a cure worse than the disease. And it's too drastic and largely unnecessary.
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Re:if you can't patent maths (Score:5, Insightful)
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You can't patent information, period. (Score:5, Insightful)
Patents are meant to cover a particular implementation in physical terms of a theoretical idea, and right now, they are often being used to try and cover the theory as well.
For example, my own pet hobby is working on a new way to factor large numbers. Let's say that my redneck republican self gets insanely lucky and bumbles into an algorithm that actually factors something in polynomial time, or even close enough to it so that RSA and the like are untenable. Since my approach depends on treating factor as a decision problem, it follows that if I did get really lucky and struck gold, that, it would be applicable to a wide range of other problems. Under today's law, patenting that would basically give me the right to apply that mathematical breakthrough for my own ends, when clearly, its in the interest of society that as many people should be allowed to exploit it. Basically, I would be allowed to charge money for any sort of an implementation of a combinatorial problem, which is absurd. Yes, I might theoretically build a billion dollar enterprise to milk this concept for all its worth, I would ultimately though screw everyone else with whom such a breakthrough might be useful, and damage the overall economy that many millions of times more.
Really, the dividing line is one of information and knowledge versus an actual real world device. As Jefferson so adroitly pointed out, information does not lose its value when it is copied. If I know something, and give that information to you, we both know something, and that doesn't hurt me that you know it. It does mean that I can't build some sort of an empire at your expense, but, given that we already went through the Catholic attempt, and then the various State attempts, to monopolize information, with disasterous results all the way around (and not a single success in 2000 years!), it is obvious that a social framework which allows information monopolies works to the disadvantage of mankind.
Quite ironically, those people whose livelihoods depend on information having value are the ones most arguing that information ought to be free. Patents are, in theory, today, supposed to protect IT workers and their inventions, but most GOOD IT workers these days remember that computer science as a field advanced even more before today's patent nuttiness. If we did anything, it would be to allow the shared discovery and utilitization of new techniques, but protect, if desired, commercial and open implementations. So, for example, if Microsoft invents a new GUI dongle, or on the flip side, someone invents a browser plugin, then, it would be better for everyone if you simply could not be sued for making your own implementation of that idea. That gives us a world where everyone's products can advance, we have IT for our customers and ourselves and leave the lawyers out, and everyone is happy.
It is really only the idiots at Wall Street, that have handed us the internet boom mess, the present mortgage mess and the previous S & L mess, that want to maximize every asset as much as possible with silly things like patents and create yet another bubble that will burst and screw the rest of us up. But really, Windows doesn't need any patents any more than Linux does. The value of both of those products is predicated on their overall customer experience, not some silly mining like claim staked out in Washington DC!
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Re:You can't patent information, period. (Score:4, Insightful)
It seems the question at hand is where a line should be drawn, not that there shouldn't be a line at all.
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Re: (Score:3, Interesting)
I bet lots of things in math can be done this way, you don't have to giv
Re:if you can't patent maths (Score:5, Funny)
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Re:Hurrah! Information will be free (Score:5, Interesting)
Any CS person will tell you that when it comes to software, there's more than one way to skin a cat - probably thousands. But software/business patents let you find one, and squash the rest.
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Re:Hurrah! Information will be free (Score:5, Informative)
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Re:Hurrah! Information will be free (Score:4, Funny)
Prepare to be sued.
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Re:Hurrah! Information will be free (Score:5, Funny)
Prepare to be sued.
P.S.: "Fiiiiive triiiiilioooons, two hundreeeed thir..."
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Re: (Score:3, Funny)