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The New Yorker on Business Process Patents 315

Posted by michael
from the bending-is-patented dept.
caledon writes "The New Yorker has a clear, concise, nontechnical essay by its finance columnist James Surowiecki criticizing business process patents: Patent Bending. 'Although we have always had a vibrant patent system, we've managed to strike a balance between the need to encourage innovation and the need to foster competition. As Benjamin Day, Henry Ford, and Sam Walton might attest, American corporations have thrived on innovative ideas and new business methods, without owning them, for two centuries. In the past decade, the balance has been upset.' Makes the argument persuasively."
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The New Yorker on Business Process Patents

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  • by Chris_Jefferson (581445) on Tuesday July 08, 2003 @01:38PM (#6393275) Homepage
    Not really a lot I can say, but seeing as I seem to be first(ish) here, I'll say some stuff anyway :)

    It is nice to see this kind of coverage in the popular media. It no longer seems as ridiculas as it did to imagine a general shake-up of patents, which is good. The article also describes the problem well, with good examples (as opposed to some of the more usually used stupid examples).

    I don't think we should get rid of patents, I don't even think "software patents" are a bad thing (if anyone tries quoting the 'all software is produced by a turing machine, so is all obvious argument, I'll hit them!), but hopefully we can reach a sensible system!

  • When MP3's hit the scene, record companies started to moan about how their profits were being eroded and how Napster (etc) needed to be shut down. The entire userbase of Slashdot (including me) said that there was no legally guaranteed "right to profit" and that if they couldn't make it in the "New Economy", they should get a different business model. "That's how capitalism works" was the libertarian cry.

    Now technology has struck again--people are inventing new ways to make money. Instead of applauding

    • by s20451 (410424) on Tuesday July 08, 2003 @01:46PM (#6393348) Journal

      there was no legally guaranteed "right to profit" and that if they couldn't make it in the "New Economy", they should get a different business model. "That's how capitalism works" was the libertarian cry.

      Heh ... I remember the new economy.

      There's no legally guaranteed right to share music or copy software, either -- quite the opposite. Don't forget that without strong intellectual property laws, the GPL would not exist, and it would be in nobody's interest to share code or ideas for fear that they would get stolen. Beware the law of unintended consequences.

      • by DarkSkiesAhead (562955) on Tuesday July 08, 2003 @02:04PM (#6393575)
        Don't forget that without strong intellectual property laws, the GPL would not exist, and it would be in nobody's interest to share code or ideas for fear that they would get stolen. Beware the law of unintended consequences.
        I don't think people are calling the principle of strong IP laws into question. That's a different issue. The issue is the breadth these laws have been expanded to in recent years. It's one thing to say "my innovation should be protected for a reasonable time." It's another thing to say "my vague idea should be given absolute power in my field for the next 120 years."
      • Don't forget that without strong intellectual property laws, the GPL would not exist

        This is silly. The GPL only needs to exist because of strong (and stupid) "intellectual property" laws. The ideal situation would be where GPL-like responsibilities were the default, and anything else had to be an explicit contract between the author and user.

        That the GPL depends on copyright law to succeed is mrely an example of bypassing the 'system' using the 'system' itself.

        • As the previous poster said, the GPL cannot exist without strong IP laws. The default situation without IP laws is pretty close to the BSD license and not at all close to the GPL.

          Remember, the GPL puts obligations on others that require a law to back them up. An IP law.

          Regards,
          Ross
      • by jbn-o (555068)

        Don't forget that without strong intellectual property laws, the GPL would not exist, and it would be in nobody's interest to share code or ideas for fear that they would get stolen.

        The GNU General Public License depends on copyright law, not "intellectual property" laws (whatever those are). Intellectual property [gnu.org] consists of not one cohesive set of laws but a diverse and sometimes conflicting set of disparate laws that cannot be properly understood if you refer to them as a whole.

        As for being in nob


    • For the most part, you raise a good point... but I think that the regular argument is more along the lines of poor administration of the patent system. I can't argue with people functioning within the framework of the system, I can only complain about the system itself. That's my right and responsibility.
    • I can't disagree with you entirely however I can't agree all together. Some items need to be shared. If some things are not shared innovation will tend to stagnate. Many times the greatest innovation comes after some company shares some piece of information or some design. The problem is that now companies and individuals are trying to make money off anything and everything. If I add a sent to toilet paper I need to patent the idea. We are not talking about any new revolutionary products here. We are
    • Instead of applauding their innovations and acknowledging their right of first use on ideas they made up, ...

      Had the US Patent Office granted Henry Ford a patent for the assembly line, the world would be a very different place indeed. But then again, under the way we are doing things now one of Henry's competitors would patent it and then sue him for using his own idea.

      The core of the problem is that we have a legal system that does not understand nor fully comprehend the impact of its decisions and
    • DEF NewEconomy Control-- (less control)

      Communism capitalism fascism - all the same thing. Fascism is the union of the two preceeding.
      How is protecting the first guy laisez faire (leave it alone)? Protecting the first guy means interfering with everyone else.

      MP3: Profits were not eroded. Plenty of research sucpports this. Control was eroded. RIAA claimed profits because they didn't want to admit loss of control.

      Patents: New control. Therefore they are against the NewEconomy.
    • Now technology has struck again--people are inventing new ways to make money.

      How is a business method a new technology? Come to that, how is any algorithm a new technology?

      In fact, lawmakers have proposed bills that would make things even worse, such as allowing sports "techniques" to be patented. Imagine pitchers paying a royalty every time they threw a forkball.

      If an algorithm is patentable, then the forkball, logically, must be patentable, as must every conceivable dance, as must every way of

    • Instead of applauding their innovations and acknowledging their right of first use on ideas they made up, we are demanding that they share them with us

      So in your world, 'one click shopping' and 'fixed price auctions' are inventions worthy of applause? The Slashdot crowd may be reactionary and leftist but they can usually identify a spade when they see it.

      I'm sure there are pleny of shiny new business models worth of a patent but online DVD rentals is just the next iteration in an evolving economy. Wh
    • by molarmass192 (608071) on Tuesday July 08, 2003 @02:57PM (#6394143) Homepage Journal
      You're obviously confused over the meaning of the word communism [m-w.com]. If we were "whiny little communists" we wouldn't have money and neither would the other guy. In fact, the state would have everything and would distribute goods to people as they needed them. Reality is that there has never been a communist government, rather they were all Marxist [m-w.com] governments with no intention of ever progressing into communism. The unattainable goal of a "communistic society" was just a carrot used to make totalitarian rule more palatable to those they were oppressing. Marx and Engles were social idiots who probably drank way too much absinthe while in Paris to even realize that their crappy papers were based on anything but reality. Back to the subject ...

      Under capitalism [m-w.com], the goal of the state is to promote open competition. You can reconcile this with anti-trust law since it's goal is to restore open competition. However, patent law prevents open competition. It creates state controlled monopolies whose sole purpose is to prevent free market competition. State granted monopolies are a facet of fascism [m-w.com], not capitalism. I don't see how you can call yourself a free market capitalist but still believe in patents.
  • by Trigun (685027) <evil@evilem p i r e.ath.cx> on Tuesday July 08, 2003 @01:41PM (#6393298)
    Previously, there were checks and balances placed in society to prevent the atrocities of the Industrial Revolution from happening again. And life was good.

    As more and more people forgot about the conditions of labor which were impressed upon the workforce, these checks and balances were overlooked and neglected, and big business took over. Like a kid in a candy store, these entities destroyed the system which fostered competition, and made it a tool to oppress the people. Big Business became Government, and further cemented the position as our overlords.

    The current patent system is just a tool used for this purpose.
    • I, for one, welcome our corporate overlords!

      Hail the mighty Gates! Glory to Oppenheim! DISNEY IS MY GOD!!!

      Oh wait...wrong movie...

    • Yeesh, what tripe! I'll bite on this troll...

      Big Business became Government??? I think we had extensive government long before Big Business became such a major force in modern life. And I certainly don't see any signs of the "atrocities of the Industrial Revolution" around. Sure, unemployment's up around 6%, but historically that's a figure to be envied.

      And lest you think the current patent system is a tool to "oppress the people" (whatever the hell that means), recall that many of these bogus patents
    • by e40 (448424) on Tuesday July 08, 2003 @02:34PM (#6393856) Journal
      You have correctly identified republican philosophy: corporations can do no wrong, government should be a small fraction of the size it is today and profit is the almighty.

      OK, you right-wing nuts out there, jump on me. Go ahead. You can't refute the facts... like, Bush, et al would like to get rid of the EPA (and the republicans almost succeeded in gutting their budget a few years ago). Why? Too much government interference in corporate profits. Damn those toxic waste dumping rules!! They could make so much money if they didn't have to cart that crap off to Mexico...

      Regarding dramatically smaller government, read this [nytimes.com]. It's written by a life-long republican, lest you nuts raise the spector of the "liberal media".

      • And you are a moron if you think that the alternatives are any better. Democrats are for pro greedy trial lawyers. why do you think that Trial Lawyers association endorses Democrats? If you want proof, do a research on the battle between the doctors group and trial laywers group regarding the malpractice insurance issue.
        • by e40 (448424) on Tuesday July 08, 2003 @03:57PM (#6394792) Journal
          There are an infinite number of alternatives, in theory. In practice, we have to choose among many evils. You are a moron if you think democrats are more evil than republicans.

          For example, Clinton provided moderates for the federal court nominee process. They were given a hell ride in the Senate. Bush, of the other hand, has nominated extreme right wingers. I call that far more evil a legacy that what Clinton did, because these judges are appointed for life. Thankfully, the dems have been able to stop the most extreme nominees from entering confirmation hearings.

          • by Dirk Pitt (90561) on Tuesday July 08, 2003 @04:39PM (#6395254) Homepage
            'Kind of a circular argument, isn't it? The Republican is bad because he nominated Republicans to the courts. This is bad because Republicans are bad because they nominate Republicans to the courts. My head spins. I'm sure you can come up with a better example of the evils of the GOP.

            Your assumption (which I disagree with) is that Federal judges should all be moderates. Personally, I would say that Clinton's wishy-washy, moderate stance on so many important issues (like Federal court nominations) made him far more evil a choice than the alternatives. He was way too afraid to take any stance that went off-center.

            You ought to take it easy with the name calling and hyper-aggressive criticism. People will more readily listen to you if you keep from discussing matters of polity with the ferocity of a sports fanatic.

  • First Post (Score:3, Funny)

    by Lew Pitcher (68631) on Tuesday July 08, 2003 @01:42PM (#6393306) Homepage
    Patent pending, 2003, All rights reserved
    • Sorry friend, somebody just demonstrated prior art... :)
    • Frist Psot, Patent pending, 2003, All rights reserved

      I'm sure i'm gonna be able to fool a bunch of customers with something similar to First Post.
    • Patent pending, 2003, All rights reserved

      You can't patent the method of First Post! After all, I've already patented the method of Second Post, making your method a clearly derivative work.
      • You *CAN* patent a derivative work. All you have to do is add some "unique" twist to it, and patent it as your own. Patents are very picky about the wording and the order by which things get done. All it takes is a slight modification of those listed in the patent, and you've got a new patent all to yourself.
  • by Nick of NSTime (597712) on Tuesday July 08, 2003 @01:45PM (#6393340)
    I think it makes sense to patent business processes, to a certain extent. If I have a company that manufactures low profit margin widgets, and I have a competitor who manufactures low profit margin widgets, and I devise a business process that streamlines my manufacturing to eke out more profits, I won't want my competitor to have that business process.

    At the same time, I think there are pitfalls. Take Netflix for example: the idea of renting DVDs over the Internet does not seem unique to me. As a matter of fact, I thought of the very same thing in 1997 but couldn't get capital.

    The more I reply to these topics, the more I realize that there is no clear answer, so I begin to wonder why I reply at all.

    • by beavis88 (25983) on Tuesday July 08, 2003 @01:56PM (#6393468)
      Using your example, if you've implemented your new process properly, you should have a BIG leg up on the competition -- even if they do copy your innovation. While you're selling your cheaper-to-produce widget (either undercutting your competition, or reaping higher margins), they are scrambling to work the new business process into their existing assembly lines, figuring out how to pay for it, etc.

      You say that "the idea of renting DVDs over the Internet does not seem unique to me" -- to which I say, a streamlines manufacturing process to produce widgets does not seem unique to me. You're still producing the exact same widget as your competitor, albeit at a lower cost.

      I could see patenting a method of creating a widget with the same functionality, but using different components. But I'd have to drink an awful lot to be convinced of the merits of patents on business processes.

      Black and white solutions rarely work as well as was intended, but this is one place where I think a gray area may be a killer.
    • One big problem I see with patenting business products is how do you ever prove you came up with it? In a competitive industry all the businesses will constantly be looking for ways to streamline their procedures to lower expenses. So what gives you the right to patent something everybody in your industry is working on at the same time? Who gets the patent - the guy who first thought of it, the manager who first approved it, or the company who first implemented it? And if my company has written the proc
    • So what you are saying is that Ford is the only company that should be allowed to use the production line? I am sorry but these are things that need to be shared in order for capitalism to thrive. This promotes competition by bringing companies on equal footing. If everything had a price one company with the money would end up owning everything.
    • > I think it makes sense to patent business processes, to a certain extent. If I have a company that manufactures low profit margin widgets, and I have a competitor who manufactures low profit margin widgets, and I devise a business process that streamlines my manufacturing to eke out more profits, I won't want my competitor to have that business process.

      In the USA the justification for patents [cornell.edu] is "To promote the progress of science and useful arts". It's not clear to me that such raw protectionism p

    • If I have a company that manufactures low profit margin widgets, and I have a competitor who manufactures low profit margin widgets, and I devise a business process that streamlines my manufacturing to eke out more profits, I won't want my competitor to have that business process.

      Of course you don't. That's the point though. Everybody wants to get patents, it protects them. I remember the good old days when companies had to worry about industrial espionage to protect their production methods which were

  • Case Law (Score:5, Interesting)

    by petronivs (633683) on Tuesday July 08, 2003 @01:46PM (#6393347) Journal

    But in July, 1998, the U.S. Court of Appeals for the Federal Circuit did away with that principle.

    I wonder if this case (or a similar one) ever made its way to the Supreme Court. It might help matters, and it would be much more likely than waiting for Congress to do something about the situation. Any action in Congress limiting these kinds of patents would certainly be opposed by entrenched corporations (which might not control Congress yet, but do have substantial influence in it).

    • by Dan Berlin (682091) on Tuesday July 08, 2003 @02:20PM (#6393721)
      Cert. was denied in State Street Bank in 1999.
      That's why it's still good law.
      The Supreme Court has smacked down CAFC on quite a few occasions when they produce completely strange opinions.
      This happens because CAFC seems to have a bunch of judges who think patents are god's gift, and that everything should be patentable under the sun, and a bunch of judges who think that patents should be strictly limited and enforced.
      I find myself agreeing with about half the decisions, and vehemently hating the other half.

      In this case, however, you are correct, and the Supreme Court thought Congress should do something about it.

      Which they did.
      They passed the "Intellectual Property and Communications Omnibus Reform Act of 1999".

      It contains the so-called "First Inventor Defense." This defense provides a first inventor (or "prior user") with a complete defense in patent infringement lawsuits, whenever an inventor of a business method (or prior user) uses the invention but does not patent it.

  • by TWX (665546) on Tuesday July 08, 2003 @01:46PM (#6393350)
    "As Benjamin Day, Henry Ford, and Sam Walton might attest, American corporations have thrived on innovative ideas and new business methods, without owning them, for two centuries."

    Yes, and now every idiot who went through business school wants to get in a piece of the action, despite frequent majoring in "Business" is more like highschool++ rather than serious post-secondary education for many. I'd have a lot more respect for "businessmen" if several of the small businesses that I've worked for didn't ignore their employees when it came time to make technical decisions, and would consider long term effects. These people even have a financial stake in what they're doing, compared to those that control other peoples' money, and they still are screwups. I don't see why we should let any company or business person patent a business plan, when they think that one good idea without heavy technical implementation should be something that they can solely profit on.

    Besides, most of the actually successful business people that I have met don't feel a need to patent business ideas or processes. Of course, these generally are people who liked working in a field and started their own companies because of that, and knew the tech and work, not simply how a spreadsheet worked.
    • How about this? Since business majors are like highschool++ get yourself a business degree in 1 or 2 years (shouldn't be hard for you if idiots can do it in 4 or 5 years), and you can be the one who gets to control other people's money.
      • "get yourself a business degree in 1 or 2 years"

        Some of us have morals.

        What's really scary is where I went to, if you failed out of engineering, you could probably switch over to business. The business school honor roll was filled with people who couldn't hack engineering (at least 15 in the rolls). It's like politics: Anyone who would want to go into the feild should be barred from it.

  • by Jack Wagner (444727) on Tuesday July 08, 2003 @01:50PM (#6393392) Homepage Journal
    As an independent consultant if I don't have the ability to patent my work then I lose my ability to compete in the workplace. There is no way for me to go up against all these major corporations unless I can patent my innovations and leverage that patent in a court of law.

    I've devised many algorithms that could save companies many man hours by speeding up their applications by Olog(n) however I refuse to use them unless I can be certain that they won't simply take the algorithm and use it elsewhere. I'm not talking about reverse engineering code mind you, I'm talking about the actual ideas that go into the code. For instance lets say, hypothetically, that I devise a sort routine that works anywhere from 35 - 40% faster than the quick sort in with all datasets. I would have to be a fool to just give this away after spending months of research on it when my time and my intelligence are the only things I have that I can charge for.

    I think the patent system is pure capitalism at it's best and may the best and brightest and first to market be the guy who wins. Patents are as American as Apple Pie and Baseball as far as I'm concerned.

    • by ip_vjl (410654) on Tuesday July 08, 2003 @02:05PM (#6393583) Homepage
      That's what contracts between you and that company are for. You specify in the contract what rights they have with the work you provide, anything outside of that and they can be sued for damages.

      In your example, if another person independently came up with the same method went to use it on his jobs (without even knowing about you) he'd be infringing on your patent and could be sued. That example has NOTHING to do with you protecting your work from companies with which you do business.

      Sounds like you're looking for the goverment to protect you from your own poorly-written contracts.

    • Nah, your wrong. I am a consultant too.

      Seems to me you get what you have sown.

      The time you spent reasearching is where you make the money. The client is paying for you to develop the sort routine. You wouldnt even own the rights to it, unless the client allowed that in writing. This is a very sticky area; if the client is paying for you to develop a routine and you then sell that routine to someone else your client has every right to sue YOU.

  • I'm torn (Score:5, Insightful)

    by tbase (666607) on Tuesday July 08, 2003 @01:53PM (#6393434)
    This is such a tough issue for me. On the one hand, this post makes a very valid point - businesses with new methods have thrived without the help of patents. But these days, there are so many more businesses where the business model essentially is the product, so why not have some sort of protection? Look at NetFlix. Nobody (including them) could make a go of online rentals, until they came up with a new method. Now if they have no protection, they can be wiped out in a matter of months by a corporate behemoth that has the resources to basically take their business out from under them once they're sure it will work.

    Before you slam me for defending business model patents, understand that I'm just voicing the other side of the coin - and I don't mean that big companies should be protected - this can protect the little guy that can only become big with at least some temporary protection. I agree that there are massive abuses in all areas of patent law, but I don't think wiping out certain types or all of them is the answer. While big corporations may have perverted the patent system into being its bitch, if it's obliterated completely, then only the largest companies with the most resources will profit from innovation, and when that happens, there will be far fewer innovators.
    • Look at NetFlix. Nobody (including them) could make a go of online rentals, until they came up with a new method.

      What "new method"? They charge a monthly subscription and let you keep a limited number of movies indefinitely, instead of a per-movie fee and letting you keep an indefinite number of movies for a limited time. Subscriptions are hardly novel or patent-worthy.

      If NetFlix wants to remain in the lead, it should do so by (a) pushing its first-mover advantage and name recognition, (b) providing supe
      • Yes. There is a lot to be said for the innovater that moves quickly and makes good business decisions. There is also much to be said for competition.
    • by phliar (87116)

      Look at NetFlix. Nobody (including them) could make a go of online rentals, until they came up with a new method.

      You have very little faith in the market, apparently. Just because the entrants so far have been nincompoops doesn't mean we should help some schmoe with a feeble idea make megabucks. Ok, that's just hyperbole. What I'm getting at is: the Netflix idea is not one that's good enough to allow the "inventor" to compete with an established behemoth like Blockbuster. So? The "inventor" should go

  • Persuasively? (Score:4, Insightful)

    by dpille (547949) on Tuesday July 08, 2003 @01:53PM (#6393442)
    Makes the argument persuasively.

    I'm not so sure there's anything persuasive in the article. All it really asks you to do is agree that patentability of fast food is ludicrous.

    You can make a short persuasive analysis and reach the same conclusion, just by hitting those same sort of historic ideals: a patent system was created to 'promote the useful arts' with (among others) limited monopoly justified by getting ideas clearly into the public domain sooner and allowing for further innovation. The first steam engines were patented, from there you get internal combustion.

    A patent for selling auction items at a fixed price, or many of the business method patents we see, however, are dead ends. (Oooh, I know, I'll sell fixed price items at a fixed price!!) By failing to promote further steps on a technological ladder, business method patents don't give back to the public what the patent system was created to do.
    • Very interesting. The really neat bit is that to keep pace with the eponential rate of technology innovation -- the patent term would have to be lowered.

      More specifically, to build on your anecdote of the combustion enginer following the steam engine, why should an inventor wait 20 years to invent the combustion engine when they could do it in a month? And if they can do it in a month and do -- what does that do to the steam engine manufacturer?

      Of course, as the pace of innovation increases, so does compl
  • by Nom du Keyboard (633989) on Tuesday July 08, 2003 @01:54PM (#6393446)
    The mail-order catalogue, the moving assembly line, the decentralized corporation, the frequent-flier mile, the category-killer store--none of these radical ideas were patented.

    Perhaps in the beginning such radical ideas weren't even considered for patenting because they were so radical who ever thought they'd work out so well.

    And afterwards it was too late.

    Most people trying to make a radical idea work are usually too busy to think about patents.

  • the frequent-flier mile

    Wouldn't this have been subject to prior art considerations from S&H Green Stamps. A bonus system for customer loyality rewarding the customer with valuable and/or useful items.

  • Fast Food ... (Score:5, Interesting)

    by Tranvisor (250175) on Tuesday July 08, 2003 @02:00PM (#6393524) Homepage
    For all you people who think that McD's came up with everything, remember that the first fast food place to come up with the drive-thru window was Wendy's. May seem obvious now, but back then it was huge that you could get your food in less then 10 minutes.

    Who knows how long we wouldn't have the drive-thru had McD's stifled all the Wendy's and Burger Kings out there from making their own innovations.
    • by Anonymous Coward
      May seem obvious now, but back then it was huge that you could get your food in less then 10 minutes.

      Thankfully I can now get my 1400 calorie cheeseburgers without even taking the effort to haul my fat ass out of the car these days. Woohoo! Way to go Wendys. I'll take a biggie size triple cheeseburger and fries please!

  • by Alomex (148003) on Tuesday July 08, 2003 @02:00PM (#6393526) Homepage
    The biggest problem is that business patents essentially open up patenting ideas, which you are not supposed to be able to. Over a hundred years ago, you actually needed to build one of your gadgets and bring it to the patent office to be able to patent it. This became unpractical and the USPTO allowed diagrams instead. But now I can walk up to the patent office and patent the idea of using computers for selling sex services over the internet and it would get a green light as a 'business method' patent.

    In reality the hard part of selling sex over the net is coming up with the actual mechanical interface (ick!). That is what is worthy of patent protection.

    Ditto for one-click purchase. This is trivial. What is not trivial is coming and should be patentable is a specific method for tracking state using a cookie with enough security features to make it fool proof.

  • then... VOTE (Score:3, Insightful)

    by *weasel (174362) on Tuesday July 08, 2003 @02:04PM (#6393570)
    call your representatives, amass a constituency who is educated on the issue and bring it up. VOTE out people who aren't responsive and VOTE in people who are.

    heck, run for office and get the thing on the agenda.

    you can't complain about litigation if you don't get involved in the process.

    odds are a staggering percentage of people who read /. don't even vote. i mean, what's great vote turnout anymore? 40%?

    (those who participate are exempted from my rant).
    • Re:then... VOTE (Score:3, Interesting)

      by CrackHappy (625183)
      You have a good point. If you don't like the system, find a way to change it. That takes active participation. Bitching about the political system in an online forum does NOTHING to change it. Getting off your lazy ass and getting down to the voting booth, or working for a political party takes guts, but it gets YOUR agenda taken into account.

      Regardless of what I think of the people running for office, I STILL VOTE, even if it's for NONE OF THE ABOVE.

    • Most people won't do it because it's easier to bitch about it and hope that someone else do it for them.

      I did volunteer work for a state rep when I was majoring in CS. The state rep would ask me about technology related issues and I had great influence on how he votes on technology related issues/bills. He also took me to technology related meetings and conferences and I was able to better understand how things worked in government.

      There are plenty of people on /. who gripe about how government is crook
    • Re:then... VOTE (Score:3, Insightful)

      by Fjord (99230)
      i'm exempt from voting because I'm not a citizen, but I do have to ask the question: who do you vote for? What party or even candiate is against business process patents. This stuff just isn't talked about in primaries and debates.

      And even if there were a candiate that does opposed business proces patents, what do you do if their other issues conflict with your ideas.

      I personally thing low voter turnout is because the two main candiates are so close that it doesn't matter, and no candiate bats 100% on agr
  • No Easy Answers (Score:3, Interesting)

    by rward (48255) on Tuesday July 08, 2003 @02:09PM (#6393628)
    Congress is where the change has to come from because our court system normally avoids deciding cases based on broad public policy concerns where narrower issues can decide matters. Also, the Court of Appeals defers to their precendents and is rarely inclined to overturn them.

    Unfortunately, the patent system is based more on who gets there first with an application for an idea rather than who invents first - although that still is an important factor. As a result, while a method idea may be applicable in many different areas, i.e. algorithms can be used to model financial transactions as well as used in code, he who files first wins. And applications are filed with claims designed to provide as broad protection as possible.

    Patent applications are published after 18 months from the filing date or on the date they are granted, whichever comes first. With a publication before the grant, a party can file an interference with the PTO but they have to KNOW about the filing. Most small concerns do not have time or the money to do this.

    Furthermore, with the way that Congress has extended the terms for copyrights in the last 10 or 15 years something tells me that enacting such legislation would be an uphill fight.

    Alas, if you have what you believe is a novel method or process, write it down, date it, have it notarized, and protect it as soon as you can.
  • by Nom du Keyboard (633989) on Tuesday July 08, 2003 @02:12PM (#6393651)
    And if someone had managed to patent connecting two computers together over the internet to exchange data, would that have been considered a good idea?

    Or how about the idea of digitally compressing music using a computer program to result in much smaller file sizes with minimal loss of quality, and then refused to license the patent for use. (Note: Macrovision has done something similiar when they patented all the ways they could think of to beat their system, and refuse to permit their use.)

    I believe no one should be allowed to patent something in order to prevent its use. Compulsary licensing under fair terms should be enforced, or we all will be worse -- not better -- off from this system intended to foster inovation.

  • ... right after someone patents a legal procedure as a business method. As it is right now, lawyers have a vested interest in more stuff being patentable - more patents means more searches, more filing fees, and more lawsuits, hence more money for lawyers.

    When lawyers have to have their documents scanned for patent violations before filing them, they'll begin to get a taste of what the rest of us have to put up with, and maybe they'll work to prune it back a bit.
  • by Anonymous Coward on Tuesday July 08, 2003 @02:42PM (#6393958)
    The first written evidence of a patent was probably around Aristotle's time (Aristotle's Politics). Here, Hippodamus calls for a system that rewards people who discover useful things for the STATE (whic Aristotle condemns, saying that law should not change so quickly). Honor the creator of a useful thing and we will recieve more usefull things.

    The first "real" patent system probably came about in Venice in the 1400's for corn mill designs, and to Brunelleschi for a marble transportation barge.

    The Venetian law reduces to writing the basics of the modern patent law:

    1. Devices
    2. Registered with and agency
    3. new and useful
    4. not previously made
    5. reduced to perfection
    6. 10 year term

    However, it did give Venetian rebublic the rights to use any invention without paying the inventor.
  • Flint Knapping (Score:3, Interesting)

    by jafac (1449) on Tuesday July 08, 2003 @02:42PM (#6393964) Homepage
    If someone had patented the process of Flint Knapping, we, as a species, would never have made it INTO the Stone Age. Let alone, to the Information Age. It's all about the Information - and if it remains free, we progress. If it's contained, we, as a species are contained.
  • Basic Problem (Score:5, Insightful)

    by Jerf (17166) on Tuesday July 08, 2003 @02:49PM (#6394038) Journal
    I think the basic problem is the patent system is not designed to handle software or business method patents [jerf.org]. It was set up from day one to handle physical objects and processes, and it does that tolerably well. It's possible to look at two processes or objects and make a reasonable determination whether they are the same. The equivalent is not really possible for software or business method patents.

    Remember one of the purposes of patents was not to lock up entire ideas, but lock up one implementation, encouraging others to create other implementations to stimulate market competition. Since the patent system is fundamentally unsound in this domain, and has no reasonable way to determine if two things are the same, the patent system has "defaulted" to the broadest possible interpretation of "same" (as opposed to the narrowest possible, in which case it would be virtually impossible to violate a patent, patents would be nearly worthless, and by extension, the Patent Office would be nearly worthless and powerless, which is the Number One Anathema to a beauracracy). As a result it's not possible to create alternate implementations without automatically infringing.

    Patents do not belong in this domain, they are downright oxymoronic [jerf.org].
  • by PhantomHarlock (189617) on Tuesday July 08, 2003 @02:51PM (#6394073)
    n addition to what's in the article, I have my own observation: the default action now for companies is to run out and get a business method patent - not because they believe it will make them money, but to prevent others from getting the same frivolous patent and suing them. It's become necessary as a means of survival under the current interpretation of the laws. My guess is that's why netflix.com got their patent on DVD rentals. They saw what was happening to Ebay, etc, and didn't want to get buried under that kind of litigation. Pretty sad. I think the law is broken and that ruling needs to be overturned or superceded.
  • by anagama (611277) <obamaisaneocon@nothingchanged.org> on Tuesday July 08, 2003 @03:03PM (#6394215) Homepage
    There are lots of comments about software patents, but that is really a seperate issue. The issue here is with patenting "ideas". Imagine you want to create a service that uses Apache and MySQL to serve some sort of content based on user form input. I'll bet you a quarter you'll find patents describing this process, granted to people who had nothing to do with either software program. Could it be more insane to grant a patent to someone who describes a way to use software? We're not talking about the developer, we're talking about using the software - in essence, these patent whores inhibit the adoption of existing works that they did not create. That's BS.

    And say all you want about prior art invalidating the patent. That's only valid if the small-business person can afford the fight.

  • Don't like 'em (Score:3, Interesting)

    by the eric conspiracy (20178) on Tuesday July 08, 2003 @04:13PM (#6394947)
    Basically I don't like the idea of business process patents. The patent system was devised in order to promote the advancement of technologies; this seems to be a poor fit to the fundamental idea and is bound to damage the patent system by dragging it into inappropriate applications.

    On the other hand I could see a big advantage to the concept of a business process patent - the end of the management fad. If companies patent their processes we won't have pointy-haired bosses coming back from hunting trips with their peers full of jackass ideas based on copying what the other company is doing (neglecting that the other company is totally different). I think that maybe the world would be a much better place if this turns out to be the result of the business process patent. And this isn't as far-fetched as you might think - several years ago I heard a senior manager actually state that business processes spread so rapidly precisely because of the fact that they cannot be patented (which was true at the time).

    Rapid desemination of GOOD ideas is a good thing. The question is how many of these business processes are actually good ideas and can stand the test of time in the marketplace before they are proven and deserve wide adoption?

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