The New Yorker on Business Process Patents 315
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."
Re:Software? (Score:3, Informative)
Basic mistake here.. a patent is not a copyright.. they are two separate things.
Software should be copyrightable.. not patentable.
Case Law and Congress's answer (Score:4, Informative)
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.
The argument against software patents (Score:5, Informative)
The argument against software patents is made on three grounds:
1. the products of the software industry are so large and complex (because of the lack of physical constraints) that the scale of 'invention' is hundreds times greater than in the physical world.
2. patents are expensive (10k Euro in Europe) and rarely can small businesses or individuals afford to aquire them.
3. even when people overcome point 2, they find that the large patent portfolios of large companies render their patents useless.
Conclusion: large companies purchase patents in order to protect not their inventions, but their competitive advantage. Since innovation comes from smaller teams, patents thus work against innovation.
Software patents exaggerate what is a manageable problem with physical patents, and turn it into a serious problem for smaller designers. Basically patents allow large businesses to collaborate with burocracy to create barriers against the entrance of smaller groups.
This is bad, corrupt, and economically stupid.
End of argument.
Re:an elegant solution (Score:3, Informative)
The view expressed in the parent post (partly) tallies with older understandings of what the patent (and copyright) clause in the US Constitution meant, where it talks about promoting the progress of useful arts. 'Useful arts' were understood to mean anything about how to make useful things. Processes, as a patentable category, were then understood to mean processes for making useful things or doing something to them for practical purposes. The parent poster goes further than many, in wanting to exclude chemicals too, after all they are manufactured products of a different kind, and making them is clearly one of the useful arts, but business methods have hardly been considered inventions till now.
The Federal appeal courts come very close to taking over lawmaking roles that belong to legislators, when they interpret words in the patent act (such as 'process') in isolation from their context and history. They (in this example) inflate the word to cover some unheard-of category, never previously considered to amount to an invention.
Interestingly, one of the early extensions of patent law going specifically beyond 'useful arts' or 'manufactures' occurred in the former Soviet Union, where the law allowed patents for [business] 'rationalization proposals'. I wonder (perhaps too flippantly, considering the seriously repressive results of this sort of legal development) if the US judges realize that they are following a communist example?
About a hundred years ago, an official committee of enquiry into patent law wrote that "the grant of invalid patents is a serious evil insomuch as it tends to the restraint of trade". They meant that honest business people were being harassed and intimidated by the owners of patents that never should have been issued because they were not substantially new. In earlier times, it used to be decided that it was not substantially new just to do something that had already been done, but now to do it in any mechanical way -- the broad idea of mechanising was common currency. IMO it would also be better to consider the broad idea of adapting some existing thing for software, or for the internet, as common currency. Current law surely is not going far enough to protect the business community in the right to do things that should remain open for public use.
Re:Stop software patents, copyright is just fine. (Score:1, Informative)
SO..
how to reconcile that you keep posting this BS in light of being previously corrected on it?