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Supreme Court Weakens Patents 331

Posted by CmdrTaco
from the any-lawyers-on-the-plane dept.
ajakk writes "The U.S. Supreme Court, in a unanimous opinion, overturned the decades old test for determine whether a patent is obvious. The Court ruled that the Court had looked at obviousness in a "narrow, rigid manner." This should allow patents to be more easily invalidated because they are obvious."
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Supreme Court Weakens Patents

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  • by Harmonious Botch (921977) * on Monday April 30, 2007 @11:41AM (#18928195) Homepage Journal
    Now that one click is not patentable...
    • Next step (Score:5, Insightful)

      by Mateo_LeFou (859634) on Monday April 30, 2007 @12:04PM (#18928479) Homepage
      Stop allowing patents on what is *obviously not patentable, e.g. mathematical algorithms and software
      • Re: (Score:2, Insightful)

        by alienw (585907)
        I still don't understand what makes algorithms and software OBVIOUSLY not patentable. Also, stop misusing the word "mathematical". I am not a proponent of software patents; I just don't see what makes software patents so different from other patents, and I haven't seen a single logical argument against software patents that doesn't involve circular reasoning.
        • Re:Next step (Score:5, Interesting)

          by cpt kangarooski (3773) on Monday April 30, 2007 @12:18PM (#18928621) Homepage
          I'm opposed to software patents, but not for reasons of obviousness. Rather, given that the purpose of patents is to spur inventors to invent, disclose the workings of their inventions, to bring those inventions to market, and to have the least burden on the public in terms of what they can't do, I think that software patents are inappropriate. There are other incentives to do these things besides the incentive of a patent. In the case of software and business methods, I think those other incentives are quite strong; strong enough that those fields would continue to thrive without patents (as they did until fairly recently, when patents came onto the scene in those fields) and that they'd actually do better, in fact, without the chilling effect on the market that the patents cause.

          If someday those other incentives diminish, we might want to have patents there again. Certainly we should keep an eye on this. But for now, I think that we'd see much more invention, disclosure, and bringing-to-market without the burden of patents than we have now.

          Does this argument satisfy you? Better still, would you agree with it?
          • Re:Next step (Score:4, Interesting)

            by jimstapleton (999106) on Monday April 30, 2007 @12:33PM (#18928721) Journal
            I have no qualms with software patents per-se. However a better way to handle them I believe, would be to say, that provided the provider recieves no financial recompensation direct (i.e. sales) or indirect (i.e. support), that a software patent cannot be used against a software provider.

            That doesn't negate any /copyright/ restrictions (i.e. you can simply steal someone's software, it doesn't leagalize piracy), but for example, a sub-pixel rendering patent could not be used against a free (as in beer) piece of sub-pixel rendering software. Now if a company got ahold of this software, and tried selling it or a set of software containing it - then that company could be held responsible, and could be required to pay royalties.

            The idea is - if it can be created/distributed at such "minimal" effort that no cost is required, then it the patent is of questionable novelty.
            • Re:Next step (Score:4, Insightful)

              by Red Flayer (890720) on Monday April 30, 2007 @01:16PM (#18929301) Journal

              That doesn't negate any /copyright/ restrictions (i.e. you can simply steal someone's software, it doesn't leagalize piracy), but for example, a sub-pixel rendering patent could not be used against a free (as in beer) piece of sub-pixel rendering software.
              Hmm. The problem I see is that one can't copyright an algorithm, so by extension there would be no restriction on wholesale "theft" of software. So any patented software out there would be completely vulnerable to pirated copies under a different trademark.

              Plenty of people see this as the best-case scenario, since "information wants to be free". However, in practice, this would mean that there is almost zero financial incentive to produce new innovative, software outside of the service revenue model.

              I think it's tough to find a balance between "promoting the useful arts" and restricting innovation via patent lockdown, but allowing free-as-in-beer use of patented materials destroys the entire patent system for software, since there is almost no unit cost to redistribute software. Is annhiliating the patent system for software desirable? I don't know, but I do know that I don't wish to discuss it on Slashdot (been burnt one too many times).

              Sorry to be so long-winded, but I feel that what you're advocating would result in the wholesale destruction of the patent system...

              One last thing...

              The idea is - if it can be created/distributed at such "minimal" effort that no cost is required, then it the patent is of questionable novelty.
              So what you're saying is that anything produced digitally is not novel?
              • Re: (Score:3, Insightful)

                by dgatwood (11270)

                Hmm. The problem I see is that one can't copyright an algorithm, so by extension there would be no restriction on wholesale "theft" of software. So any patented software out there would be completely vulnerable to pirated copies under a different trademark.

                No. That would still be a very large copyright violation, just as it is now. In fact, AFAIK, wholesale copyright infringement does not cause you to infringe the patents because you are not creating an implementation of the patent.

                • Re: (Score:3, Interesting)

                  by Red Flayer (890720)
                  What about backwards engineering a software product and implementing the same (patented) algorithms via different language? Still a copyright violation, or no?
                  • That's usually covered in the EULA.

                    So it's either a violation of contract (and possibly copyright), if the person RE'd it after purchase, or it's definetly copyright if they pirated it to RE it.

                    I don't remember *ever* not seeing a "don't reverse engineer" this clause on a EULA for software.
        • Re:Next step (Score:5, Insightful)

          by oliverthered (187439) <olivertheredNO@SPAMhotmail.com> on Monday April 30, 2007 @12:27PM (#18928681) Journal
          algorithms and software (just a bunch of algorithms ) are just representations of a mental process.
          As soon as you allow them to be patented you make thought itself against the law.
          • Re: (Score:3, Insightful)

            by PCM2 (4486)

            algorithms and software (just a bunch of algorithms ) are just representations of a mental process. As soon as you allow them to be patented you make thought itself against the law.

            If I've got an RS-232 cable plugged into a computer and its nothing more than few lengths of copper wire, then I run a piece of software on the computer and now there's electrical current on pins 2, 8, and 11 of the cable, I'd say that's caused a change in the physical world. It's not just a "mental process," any more than a

          • Re:Next step (Score:5, Insightful)

            by TooManyNames (711346) on Monday April 30, 2007 @03:16PM (#18931571)
            I'm not really sure what you're getting at here. Algorithms are no more representations of a mental process than heat engines or ASIC chips. Algorithms do require a precise interpretation of mental processes, but then again so did every invention ever conceived. In fact, algorithms developed to leverage the way a computer works may have almost nothing to do with the corresponding mental process.

            For example, take a simple algorithm which decides the next best move in a chess game... do you really think that the standard mental process is to recursively examine the next several moves and potential counter moves for a given board layout. Similarly, is the typical mental process for using language based off of some well-defined CFG?

            Algorithms are designed according to the availability of several functional units not offered by the human brain. Software based off of mathematical algorithms exploit the availability of an ALU and/or FPU. Hardware might even be developed to accelerate frequent, specific tasks required by software (such as designing an accelerator to perform matrix multiplications) in which case the software is optimized according to the availability of such hardware.

            The truth is that, despite some superficial similarities, both the underlying design and functionality of a brain and computer are quite different and serve different purposes. To argue that there is no difference in the way each is used (which is what you are saying when you claim that software really isn't any different from thought) is to ignore the very structure of a computer.

        • by Mateo_LeFou (859634) on Monday April 30, 2007 @12:45PM (#18928879) Homepage
          Over 90% of software innovations are incremental steps on the existing set of best practices and commonly-used abstractions. If this base is screwed up by a bunch of patents, they defeat their purpose and hamper, rather than encourage, innovation.

          If you live in America, you won't have to go far for an example. If you live elsewhere, then go to America and then you won't have to go far for an example.
        • Re:Next Step (Score:5, Insightful)

          by Lockejaw (955650) on Monday April 30, 2007 @12:48PM (#18928897)
          Suppose Alice patents the FOO algorithm. If Bob wants to use it in a piece of software he's selling, he obviously needs a license from Alice to use it. But since "exclusive Right to their respective Writings and Discoveries" has been taken to include non-commercial use, what else can't Bob do? Can he implement it in free (gratis) software? Can he use the algorithm in code he writes, but doesn't distribute? Can he perform the algorithm himself? Can he be paid to do so?

          Since, as a sibling post stated, an algorithm is just a thought process, it's not really something to which exclusive rights should be granted.

          Most of the software patents we see these days don't play by the rules as it is. Either they don't do the full disclosure that is supposedly required (really, doesn't it seem odd that a product can be both patented and a trade secret?), are trivial or obvious combinations of existing things, have a large body of prior art, or some combination of the three. Software patents that do follow those rules are essentially patents on algorithms (i.e. sets of instructions on how to perform some task or calculation).

          The proper domains for proprietary software are trade secret for closed source code and copyright for open source code.
          • by hachete (473378)
            I think software patents work like this.

            An algorithm turns a general purpose machine into one for a particular purpose. This is no different from patenting the Spinning Jenny. So, in principle, I agree with software patents. However, I think the *implementation* of patents should be tightened, particularly wrt full-disclosure. If you patent an algorithm or a method, then you must fully disclose the code, or at least a reference implementation. Something which is patented cannot be a trade secret. And I agre
          • Re: (Score:3, Interesting)

            by reebmmm (939463)
            IAALBNYL (I am a lawyer, but not your lawyer), so let me dissect your analysis here.

            First, while I'm not entirely sure your first paragraph's point, I can guess that you are upset that the entire idea of the FOO algorithm can be protected. This isn't an entirely coherent with respect to any of the intellectual property regimes anywhere. First, to the extent that a patent may apply, a patent would cover it only to the extent that it is a "process, machine, manufacture, or composition." The problem with res
        • I'm of the opinion that software patents are not necessarily horribly bad or wrong, at least not moreso than any other kind of patent, but it's just that the way they have been implemented currently is so far from ideal that we'd be better off eliminating patent protection from software entirely than sticking with it.

          What has traditionally been patentable are particular methods of solving problems. E.g., the sewing machine we're familiar with today (with two interlocking threads, one in a bobbin, etc.) is one way of solving the "how do we attach two pieces of material together" problem. It's (or rather, was) a novel solution to the problem, it was non-obvious, and it was particular. That's an example of a pretty good, justifiable patent. (Also because it's not easy to protect by other means -- once you see a sewing machine and take one apart, you realize immediately how it works and it's trivial to re-implement it, but if you hadn't ever seen one it's not obvious that two running threads is the way to do it, hence why it took so long to be invented.)

          I'm not sure that there is a good argument for preventing people from patenting the solutions to problems, where the form of the solution happens to be microcode, in the same way that the form of the solution to the sewing-machine problem was milled pieces of steel.

          But the problem arises when judges and patent examiners aren't skilled and selective about what's patentable. It's much easier, with software-based inventions, to get overbroad patents that negatively impact invention; rather than patenting a particular solution, what gets patented are entire classes of mathematical functions, or all possible software implementations (solutions) of a given problem. That would be like getting a patent, not on a particular sewing machine design, but on all sewing machines generally, or even "any machine for attaching two or more pieces of fabric together."

          The problem, in my opinion, with software patents isn't with the fact that they're software -- in my mind, software ought to be patented, and it ought not be protected under Copyright (unless we're willing to define it completely as "speech" with all the freedoms that entails) -- but that they're typically of very poor quality, shoddily researched, and overbroad.

          For this reason, I think the Europeans have done a good thing in just avoiding the issue entirely, because the cost of overbroad patents on innovation is far worse than no patents of a particular type at all. (I think this is trivially obvious but there are a lot of historical examples where overbroad patents have been problematic and basically stymied development that was otherwise ongoing -- the old internal-combustion patents are a prime example.)

          We have the legal framework to deal with software, but unfortunately we just haven't used it correctly, and until we're willing to do it correctly -- and that means we're going to need to apply a lot more resources to the task of ensuring that patents are novel, non-obvious, narrow in scope, and deserving of protection -- they're a lot more trouble than they're worth.
          • by g2devi (898503) on Monday April 30, 2007 @01:50PM (#18930009)
            > The problem, in my opinion, with software patents isn't with the fact that they're software -- in my mind, software ought to
            > be patented, ... -- but that they're typically of very poor quality, shoddily researched, and overbroad.

            It's more fundamental than that. I understand that you're trying to find a middle ground, but there is none (at least none that is "obvious":-]). It's a

            Here are four things to consider:

            (1) How many people actually look at patent to come up with ideas? If no-one does, then how is it helping with innovation? What exactly is the purpose of software patents other than a way for lawyers and patent trolls to get paid for disrupting innovation?

            (2) If I independently discover/reinvent the patent, then why should why should I have to pay someone else for the privilege of using *my* idea? Reinvention has nothing to do with obviousness. Sometimes the time is right for non-obvious inventions. Examples of this indepentent invention/rediscovery include quantum mechanics, light bulb, telephone, combustion engine, airplane, television, transistor, and integrated circuit. See http://goliath.ecnext.com/coms2/summary_0199-61065 42_ITM [ecnext.com] for a fuller description.

            (3) Relating to (2), suppose you allow independent reinvention as an exception. What happens if I want to tell people about *my* idea for free? I can't (and may get sued if I do). Free speach and society loses.

            (4) Software patents are supposed to protect "the little guy" but since big corps can afford to have millions of patents, it's almost certain that they have something that "the little guy" violates (or may potentially violate) and force "the little guy" to cross-license, enabling the big corps to "steal" (if you believe patents are IP) the idea. Even if "the little guy" doesn't violate any patents, it's possible for the big corps to drag the case out in court until "the little guy" is bankrupt (e.g. just look at how long SCO dragged the case out against another big corp), making it virtually impossible for "the little guy" to enforce the patent but very easy for big corps to freeze out competition.

            So basically, even when you have legitimate innovation, software patents serve no good purpose and are harmful. If you have a legitimate innovation then trade secrets are a better alternative that doesn't mess with any of the above problems.

            Software patents are a lot like DRM and both are like making a bed with an elastic sheet that's too small for the bed. It looks possible to have "perfect software patents" or "perfect DRM" or "to make the bed", and you may be able to tie down three of the sides, but as soon as you try to tied down the forth side either one of the other three sides come loose or the whole thing falls apart.
        • Re:Next step (Score:4, Insightful)

          by Chris Burke (6130) on Monday April 30, 2007 @01:01PM (#18929019) Homepage
          Math is not patentable. Software is nothing but a computer-understandable representation of math. A software patent however does not involve such a computer-understandable representation, it merely covers the idea. The idea behind software is pure math. Therefore a software patent is a patent on math, and should not be granted.

          That may seem circular, but math not being patentable is a matter of law. Not to mention a good idea, since math is the fundamental language of the universe, it is the language by which we describe all scientific progress. To patent math is to patent the foundation of science, and will cripple progress. Just like software patents are crippling progress.

          Have you ever seen a patent on a math book? Of course not, math isn't patentable. Yet suddenly when you encode that math in a computer language, it is patentable? Hell, with a program like Maple the content of the math book could be "computer readable", so does Maple mean math textbooks can be patented?
          • Proof? (Score:3, Insightful)

            by PCM2 (4486)

            Math is not patentable. Software is nothing but a computer-understandable representation of math.

            Can you show us a plausible proof for that assertion?

            By your logic, running a warehouse is nothing more than a human-understandable representation of the motion of molecules.

        • copyright (Score:5, Insightful)

          by zogger (617870) on Monday April 30, 2007 @01:11PM (#18929223) Homepage Journal
          Software is typed up stuff, written in a language or languages, and as such, is more akin to written books or articles or say like musical scores, and should only be allowed copyright, not patents. Patents should be restricted to tangible products. In addition, the software industry itself has insisted and got granted immunity from normal consumer warranties, which is clearly evidence they don't see their own typed up stuff as a "normal product". It's *special*.

          They shouldn't have it both ways when no other industry can claim that. If it is patentable, it should come with a minimum implied normal warranty (suitable for use, no glaring and or dangerous defects, etc). No warranty should mean no patent, copyright only.

          I hope that is linear enough to answer your question.
          • Nah (Score:3, Interesting)

            by PCM2 (4486)

            Software is typed up stuff, written in a language or languages, and as such, is more akin to written books or articles or say like musical scores, and should only be allowed copyright, not patents.

            The test for what can be protected under copyright is not "typed up stuff." Recipes, for example, cannot be copyrighted. Recipe books can be copyrighted -- which might include copious explanatory text, photos, and all sorts of other things -- but a list of ingredients and steps of how to put an individual meal

        • by omeomi (675045)
          I still don't understand what makes algorithms and software OBVIOUSLY not patentable.

          I think one problem with software patents is that many companies have patented technology, that while it may not be a 100% obvious technology, is something that another entity could come up with completely on their own, without even knowing that somebody else has patented the idea. I have no problem with a patent preventing someone from steeling a technology, but I find it very disturbing when companies apply for patents
          • when companies apply for patents just to keep others from using a technology
            Isn't that exactly what patents are for? You come up with an idea, explain what it is and get a temporary monopoly. One might argue that given the rate at which technology advances, it might be best to shorten the monopoly period.
        • According to United States law, you can't patent algorithms for the same reason that you can't patent blueprints, i.e., patents apply to useful inventions, to things that work in the world, as opposed to abstract ideas.

          To get a sense of the distinction, it may be helpful to think about the Supreme Court's *other* big patent ruling today, i.e., Microsoft v. Alcatel-Lucent. In this case, both companies admitted that Windows infringes on Lucent's speech recognition patents. Normally, these patents would not a
        • Re: (Score:2, Interesting)

          I still don't understand what makes algorithms and software OBVIOUSLY not patentable.

          Some algorithms (like RSA) are really smart and clever and do deserve patent protection (the length of protection can and should be discussed). But bloody silly algorithms like 'one click' and all the avalanche of pathetic patents on well-used and obvious programming techniques should rightly now be shown the door.
        • by pnewhook (788591)

          I still don't understand what makes algorithms and software OBVIOUSLY not patentable.

          Because on their own they are simply not useful (patent law specifies that an invention be useful). Software on its own cannot do anything, it is just an algorithm or bunch of text. IT doesn't do anything. It is only useful when it is actually added to something else (like hardware).

          So you can patent software if it constitutes a required and necessary part of an overall invention, and that invention passes the usefullnes

        • Re: (Score:3, Insightful)

          by Ngarrang (1023425)

          I still don't understand what makes algorithms and software OBVIOUSLY not patentable. Also, stop misusing the word "mathematical". I am not a proponent of software patents; I just don't see what makes software patents so different from other patents, and I haven't seen a single logical argument against software patents that doesn't involve circular reasoning.

          If you give 100 programmers the same task, two of them are bound to create similar or The SAME algorithm to solve the problem. This is what makes software patents so strange. It would be like someone getting a patent on the doubly-linked list. Adding that second link is an obvious extension of a single-linked list.

          And, there are only so many ways to do something correctly. The One-Click ordering sequence is a natural progression from the shopping cart metaphor. "Why make someone follow ALL of the p

          • Re: (Score:3, Insightful)

            by PCM2 (4486)

            The average 5-year old is smart enough to figure this out.

            So really, the problem is not necessarily software patents, but the fact that there doesn't seem to be an effective standard for obviousness for software patents. Which I guess is what the Supreme Court hopes to rectify?

  • The whole opinion (Score:4, Informative)

    by Anonymous Coward on Monday April 30, 2007 @11:44AM (#18928221)
    • by ari_j (90255)
      In case anyone else is as confused as I was when I saw two AC comments in a row, both +4 Informative at the time I am writing this with links to different Supreme Court opinions: Both opinions are referred to in TFA. The article mentions the opinion linked to from this comment [slashdot.org] first and to the parent of the comment you are reading second. The first is KSR v. Teleflex; the second is Microsoft v. AT&T. Please don't mod either of them redundant, and enjoy. :)
  • by Anonymous Coward on Monday April 30, 2007 @11:44AM (#18928227)
  • by arivanov (12034) on Monday April 30, 2007 @11:45AM (#18928233) Homepage
    I think the tagline logo for patents should now be changed. All you can eat is over.
    • Re: (Score:2, Interesting)

      by ClamIAm (926466)
      Personally, I feel the icon is still valid. Mostly because we still allow patents on things that don't actually cost anything to manufacture, such as software and "business methods".
      • Re: (Score:3, Insightful)

        by liliafan (454080) *

        Personally, I feel the icon is still valid. Mostly because we still allow patents on things that don't actually cost anything to manufacture, such as software and "business methods".

        Okay firstly I will point out I don't agree with software patents, they are destructive to innovation, however, how can you possibly say software doesn't cost anything to manufacture?

        There is lots of costs involved in software development, nothing in this world is free, even from the view of some geek sat at home hacking away at his favorite opensource application, there is time involved, there is development environments, there is debuggers, there is electricity to run the system. So that is a minor exam

        • Re: (Score:2, Insightful)

          by Forseti (192792)

          how can you possibly say software doesn't cost anything to manufacture? There is lots of costs involved in software development [...]

          Not design; manufacture. Designing a chair costs money, making replicas of that chair at a factory in order to sell them also costs money. Designing software costs money, but once that's done, there is no additional cost to manufacture, unless you count the box, CD and jewelcase, which are no longer needed. Selling one copy or one billion copies costs the same, and someone

          • Aren't you talking about distribution, and not manufacturing? Making physical copies of software certainly requires money to manufacture,(equipment, raw materials, labor, etc.) but distibuting digital copies of software would not involve the same costs...
          • by Skye16 (685048)
            Well, it *does* cost money to pay the electric bill, and the computer that *makes* the copy (even if it is only digital). The computer is a one-time cost, and the electric bill is a recurring cost; miniscule, agreed, but still a cost.
          • by liliafan (454080) *
            Boxes cost, media costs, replication to media costs, even if you just download, bandwidth costs. Nothing is for free.
      • things that don't actually cost anything to manufacture, such as software
        I need some really tedious file reformatting and data entry programs writing. How nice of you to offer to do it for nothing while I nip out for a pint or ten.
  • Finally... (Score:2, Interesting)

    by tshillig (1095223)
    Isn't this exactly what we wanted to happen? What kind of repurcussions is this going to have on patent-crazy companies like Microsoft?
    • Re: (Score:3, Informative)

      Accoding to TFA, MS was one of the companies that filed an amicus brief
      in favor
      of the ruling. They see themselves, apparently, as victims of excess patent litigation.
    • Isn't this exactly what we wanted to happen? What kind of repurcussions is this going to have on patent-crazy companies like Microsoft?

      This is one of the reasons why it's good to RTFA ... Microsoft was actually the appellant in this case -- the losing party who pushed the case to the USSC, and just won -- they were fighting AT&T, who claimed that U.S. patents basically could be enforced extraterritorially.

      The whole issue was whether Microsoft, a U.S. corporation, was responsible for violating AT&T's U.S. patents (which are not, by and large, enforceable elsewhere, for instance in Europe and Asia -- there's no patent equivalent to the Berne Convention on copyright, really) if they only ever violated them in places where AT&T's patents didn't apply (outside the U.S.).

      So if Microsoft went and sold AT&T-patent-encumbered software, but only in Europe, AT&T wanted to sue them for patent infringement here in the U.S. This was obviously a Bad Thing, and would have been a major expansion of patentholder's rights.

      The WSJ article [wsj.com] about it today was pretty good. (I think that link should work, since it has the "googlenews_wsj" in the URL to bypass their 'Free Preview' bullshit.)

      So in this case, Microsoft was actually the good guy.
      • Re: (Score:3, Informative)

        by optimus2861 (760680)

        This is one of the reasons why it's good to RTFA ... Microsoft was actually the appellant in this case -- the losing party who pushed the case to the USSC, and just won -- they were fighting AT&T, who claimed that U.S. patents basically could be enforced extraterritorially.

        Actually, TFA isn't about the Microsoft/AT&T patent case, it's about another patent case, KSR International v. Teleflex, in which Microsoft came down on the side of KSR, who were challenging a Teleflex patent on adjustable gas p

      • While I don't disagree with parent at all, it is worth noting that there are actually two cases in TFA, both about patents, and both decided on the same day.

        The first one was Teleflex Inc. vs KSR International Inc. MS was an interested bystander in this ( as were Intel, Cisco, Time Warner, Viacom Inc., Micron Technology Inc., General Motors Corp., Ford Motor Co. and DaimlerChrysler AG. )
        The second case was Microsoft vs AT&T on the subject of patents on exports.

        It's not quite clear to me which o
    • by Etherwalk (681268) on Monday April 30, 2007 @12:02PM (#18928461)
      The major tech companies wanted the patent reform--they tend to be victims of spurious patent cases. Microsoft, CISCO, Intel, Etc... (And Time Warner) are more concerned about protecting themselves from being sued by a patent squatter than they are about most of their own patents. Also, this lets them hijack other people's ideas more easily.

      The major drug companies didn't want the reform, because patents are their life blood. It will get harder for them to patent obvious changes to medicine, such as combining multiple medications in one pill. (Though in some cases they'd still get away with it, I'd imagine, if they can demonstrate that there's some kind of real innovation going on in the time-delay mechanism or something. Or at least they'll argue that...)
      • In fact in the case of MS, Intel, and Cisco, I think most of their patent chest is defensive rather than offensive...
        -nB
    • Well some of their patents will get denied. Actually I think this will actually Help Microsoft. A lot of times they makes these patents not as much to stop competition. But to stop someone else making the patent first and then suing Microsoft. Microsoft has been playing a Patent War that contains both Offensive and Defensive Patents. Some of them they will use to oppress competition others they use to protect themeless from others who would make the patent and shove it in their face. These new rules w
    • It's very difficult to tell from the article. I haven't read the summary yet, but even that will probably be a bit vague. The courts help narrow the scope of patent code, but they rarely spell everything out enough to remove all ambiguity.
    • by vidarh (309115)
      Yes it's a good thing, but RTFA. Microsoft was one of a group of companies that wanted SCOTUS to make this decision. Obvious patents cost Microsoft far more in litigation than what they can expect to lose in licensing revenue.
  • Vonage (Score:2, Insightful)

    by Caffeinate (1031648)
    So does this mean that the scourge of the telecom industry may manage to survive?
    • Re: (Score:2, Informative)

      by maczealot (864883)
      IANAL, but this does seem to suggest that Vonage's lawbots could file something regarding the obviousness of Verizon's patents.

      Here are the patents Verizon has, just a cursory reading makes them seem REALLY obvious imho(but then again I am a Vonage customer):
      Patent Uno [uspto.gov] Patent Dos [uspto.gov] Patent Tres [uspto.gov]
  • IANAL (Score:2, Interesting)

    by Short Circuit (52384) *
    I'm not a lawyer, but wouldn't ex post facto prevent this from being used to overturn patents already in place? Or does that only apply to congressional law?
    • by jcr (53032)
      wouldn't ex post facto prevent this from being used to overturn patents already in place?

      It would probably keep litigants who lost a patent suit from challenging the patent again, which is bad news for RIM. For current litigation though, defendants in patent infringement actions are likely to have a much easier time of it than they did before this decision.

      -jcr

      • by tricorn (199664)

        No, the law hasn't changed, only the interpretation of it. Plenty of now-obvious patents could now be challenged again.

        In addition, even if it was a change in the law, there's nothing that says that can't happen. See, for example, the extension of copyright terms to works already in existence.

    • Re:IANAL (Score:5, Insightful)

      by Anonymous Coward on Monday April 30, 2007 @12:03PM (#18928469)
      No. Patents can be re-examined at any time with this ruling in mind. This will apply to every flimsy patent issued because of a bad CAFC ruling made years ago. This is the first time SCOTUS has weighed in on this topic since the Graham v. Deere case that established the rules for Obviousness. By calling for more re-examinations (poor patent office might get overrun), these old patents can and should be overturned. The screaming you hear is the big pharma who are going to lose their butts on this. The people who are happy, well believe it or not, they are the software folks (and patent examiners, who will like being able to reject patents without nearly as much effort as before).

      Also, people can use this case as precedent to have patents that they are being sued with overturned, showing that they do not have the strength to overcome obviousness over prior art. (Basically, SCOTUS just re-defined obviousness in prior art. Now that prior art has changed, patents can be overturned on prior art they previously were not able to be.)
    • Re: (Score:3, Informative)

      by Anonymous Coward
      "I'm not a lawyer, but wouldn't ex post facto prevent this from being used to overturn patents already in place? Or does that only apply to congressional law?"

      No. In a highly technical sense, ex post facto laws as used in the U.S. constitution refer only to laws that affect criminal punishment, either by increasing the punishment for a crime or defining a new crime. There is no per se constitutional prohibition against ex post civil laws, although some retroactive laws might violate due process.

      In a more ge
    • by ChronosWS (706209)
      The purpose of the ex post facto clause in the US Constitution generally is applied to laws passed by Congress, stating essentially that you cannot make something illegal after the fact. Thus, if it was legal to sell cars a year ago, Congress cannot today pass a law saying that selling cars a year ago was illegal and then put you in jail for having broken a law which didn't exist at the time you committed the act. However, they could pass a law saying that selling cars NOW is illegal, and you'd have to st
    • by udippel (562132)
      No. I still have to read the gory details, but in any case: There is no new law here, but the Supreme Court has helped the lower courts with their definition of 'obvious'.
      At least, next time someone starts to sue for infringement, it is easier to get the patent revoked for obviousness.
      And the USPTO will sweat about getting the new stand into their guidelines and procedures.

      Still, the Supreme Court has not taken any decision about software patents; only on obviousness. In the end it was them who forced the U
  • The first point is interesting, reading in part...

    Until expressed as a com-
    puter-readable "copy," e.g., on a CD-ROM, Windows--indeed any
    software detached from an activating medium--remains uncom-
    binable. It cannot be inserted into a CD-ROM drive or downloaded
    from the Internet; it cannot be installed or executed on a computer.
    Abstract software code is an idea without physical embodiment, and
    as such, it does not match 271(f)'s categorization: "components"
    amenable to "combination." Windows abstracted from a tangible copy
    no doubt is information--a detailed set of instructions--and thus
    might be compared to a blueprint (or anything else containing design
    information). A blueprint may contain precise instructions for the
    construction and combination of the components of a patented device,
    but it is not itself a combinable component.
    What exactly is this "Windows in the abstract" separate from "a copy of Windows"? Do they mean that if I copy a software program that incorporates a patented invention, until that copy is converted into a deliverable form it's actually not an implementation of the patented invention. So, for example, software distributed as source code can't violate a patent until it's compiled?

    Microsoft may have laid up a whole heap of trouble for themselves here.
    • by RingDev (879105)
      "So, for example, software distributed as source code can't violate a patent until it's compiled?"

      That was my reading of it, but IANAL.

      -Rick
    • by NeutronCowboy (896098) on Monday April 30, 2007 @12:17PM (#18928617)
      Interesting... it sounds like they are saying that code itself - i.e. the stuff you get on a printout, on a t-shirt, anything that isn't part of an executable - is not patentable because it is a set of instructions, rather than a device.

      If that's true, all I can say is... Wow. All software patents will basically have to be revisited, because on the face of it, it sounds like software cannot be patented anymore.

      Am I missing something here? Or can I start the happy software-patents-are-dead dance?
      • by mhall119 (1035984)
        That is why most software patents contain language like "Methods and apparatus to ...", followed by what the software will do. You can't patent 2+2=4, but you can patent an apparatus and methods that would compute 2+2=4. The problem I have with software patents is that they are patenting the results, and not the process and mechanisms to achieve the results. My example above would cover any implementation of a calculator, without having to actually "innovate" a calculator, meaning you don't have to figur
      • by mike2R (721965)
        Unfortunately I think you may be over interpreting the decision - IANAL and haven't finished the opinion yet. The key phrases seem to me:

        While reading 271(f) to exclude from coverage foreign-made copies of software may create a "loophole" in favor of software makers, the Court is not persuaded that dynamic judicial interpretation of 271(f) is in order; the "loophole" is properly left for Congress to consider, and to close if it finds such action warranted. Section 271(f) was a direct response to a gap in

      • If that's true, all I can say is... Wow. All software patents will basically have to be revisited, because on the face of it, it sounds like software cannot be patented anymore.
        This has always been true - you cannot patent algorithms, just devices. However, software running on a computer is a device, and this ruling does not change that. Therefore, it will only change a few corner cases, where the software is not "combined with a device" (installed or executed) in the US.
    • So, for example, software distributed as source code can't violate a patent until it's compiled?

      Actually the Supreme Court took it one step farther - patents are not enforceable on software until it is combined with (installed on) a device that can run the software.

      You cannot patent algorithms, just devices - this has been true since the beginning. The Supreme Court has never ruled that software is patentable, just that a device implemented using software is just as patentable as one implemented using hardware. It has long been believed that source code would not be considered a device, but just a de

      • by morganew (194299) *
        Minor correction here, but important. The USPTO allows patents on a Method [uspto.gov] of doing something. This is how people get software patents; the software itself isn't patented, it's the method for doing the activity the software does.

        This is different than the EU, which allows for "Computer Impelemented Invention" [epo.org] or CII. This is an invention as executed by a device. Though in reality, CII patents have been granted when there was no device at the time of filing, so that's even a misnomer.

        Regardless, the ruli

    • Software per se is not patentable. It is considered an abstract idea in the realm of algorithms and natural phenomenon. How people get around this is to patent that same software on a physical medium that is then used to produce some kind of tangible or usable result.
    • by deblau (68023)
      If I have the source code of Windows in my head, that's "Windows in the abstract". In order to install it on a computer, I have to make a tangible representation of that source code (i.e., I have to write it down). This is the master disc. As far as I can tell, when the court talks about copying, they mean physical copies.

      The quoted language says that my 'idea' of Windows can't be a component of a patented item. A blueprint may tell how to build something, but only the piece once built may be a compon

  • by Red Flayer (890720) on Monday April 30, 2007 @11:58AM (#18928405) Journal

    ``Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress,'' Justice Anthony Kennedy wrote for the court.
    I'd like to reword that a bit:

    "Granting patent protection to advances that would occur in the ordinary course without real innovation is the progress of retards"
    Seriously, though, maybe it's just the nature of the patent-related articles I see on Slashdot, but the real quote seems like the most concise statement on obviousness I've read.

    The good news is that this court apparently recognizes the original purpose of patents.

    The bad news is that this blindingly obvious quote was selected for inclusion in the article because the patent system has been viewed as a driver-of-revenue instead of a driver-of-innovation for so long.
  • IANAL, but this ruling seems so clear and unabiguous, I've got to believe it will put a dramatic damper in patent troll activity. The decision (I've only read the summary) seems to be fairly even-handed. The old teaching-suggestion-motivation test might be a reasonable test to use in some cases, but not at the expense of common sense.

    I think the justices 'got it'.

    from the ruling:
    Inventions usually rely upon building blocks long since uncovered, and claimed discoveries almost necessarily will be combinatio
  • TFA doesn't give much details. I tried reading the ruling, but I just don't have enough background knowledge for it to be clear.

    Can someone give concise, easy-to-understand answers to these questions:

    1. What was the old, "rigid" definition of obvious?

    2. What does this decision change about that definition?

    • Re: (Score:3, Informative)

      by blckbllr (242654)
      Porcupine8,

      I'll try to address the first question, and then return later to address the second question, unless someone finishes the opinion before me.

      KSR International Co. v. Teleflex Inc., isn't so much about "obviousness" per se, but about the "teaching-suggestion-motivation" prong of the obviousness inquiry. According to the Manual of Patent Examination and Procedure, an Examiner can establish a prima facie case of "obviouness" by showing that:

      "First, there must be some suggestion or motivation, either
    • by udippel (562132)
      We will have to see. There is new case law to be established. At first glance, this part of the second decision sounds quite orthogonal to what we have had to read before:

      When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but
    • Re: (Score:3, Informative)

      It seems that this question was answered, but only with examples in the MPEP which is more legal-speak, and because you "don't have enough background knowledge" I'll put it into plain english for you

      Essentially when rejecting a patent application an examiner could combine two different peices of prior art in the form of patents, PGPubs, Non-patent literature, etc. to come up with a rejection. In order to properly combine these pieces of art properly the examiner had to show exactly why it would be obvious (
      • I see. So they haven't really changed the definition of obvious necessarily, they've just shifted the burden of proof from the patent office proving it's obvious to the inventor/attorney proving it's non-obvious. And they're saying in this case that they didn't prove it was non-obvious. So if what counts as obvious isn't really so much what changed, that explains why I was so confused, because that's what I was looking for.

        But, of course, this could lead to a slightly different definition of what counts a

  • by Anonymous Coward
    The US is relying on IP to carry the current standard of living forward. The US does not export or make much of anything any more. IP is a growing percentage of the US exports and "ownership". The US can not maintain its economy on hard physical goods any longer and IP is the only alternative means of money producing items.

    If you want serious change, you have to understand the motivation that put many of these laws into place and keeping these laws tough. That is why there is resistence. Take any compa
  • by $RANDOMLUSER (804576) on Monday April 30, 2007 @12:22PM (#18928659)

    Companies that are frequent targets of patent-infringement claims urged the Supreme Court to overturn the Federal Circuit test. The group included Intel, Cisco, Microsoft, Time Warner Inc., Viacom Inc., Micron Technology Inc. and automakers General Motors Corp., Ford Motor Co. and DaimlerChrysler AG.
    And what, pray tell, is Time Warner getting patent infringement suits over? Or patenting themselves for that matter?
  • by Dunbal (464142)
    Thanks to the Supreme Court, now I'll never be able to get my patent for using written tokens to represent phonetic sounds approved. Hey, wait a second... the Supreme Court just denied me potential profit. I guess I will now file a MAFIAA type lawsuit against them for lost potential income and claim that they've put "thousands of people" out of work by this decision...!
  • by boxless (35756) on Monday April 30, 2007 @12:39PM (#18928815)
    At the end of the full ruling is this little chestnut:

    We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, 8, cl. 8.
  • I would think Vonage has a shot at overturning the verdict against them now. Good, and hopefully they'll file anti-trust against Verizon.
  • by UnknowingFool (672806) on Monday April 30, 2007 @01:24PM (#18929495)

    I thought this part had the most impact on software patents:

    Third, the court [Federal Court of Appeals] erred in concluding that a patent claim cannot be proved obvious merely by showing that the combination of elements was obvious to try. When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp.

    After all, there are only so many ways to code 1 + 1 = 2. Many tech companies like IBM, MS, Sun, etc have huge portfolios of patents mostly for defensive purposes. With this ruling, it would seem that some of their patents are unenforceable.

  • by pcause (209643) on Monday April 30, 2007 @01:58PM (#18930127)
    The Supreme Court didn't weaken patents,and have instead brought some sanity to system that is broken. The Patent Office isn't capable of doing prior art, applicants don't do a good job and there are tons of filings for incremental and OBVIOUS changes and so-called processes being granted. The rules from the Patent Court didn't work for software, since so many advances just get shipped and aren't written about until much later or more likely never.

    There are companies that did a lot of innovative work in the 90's that are gone and there is no record of their technology, but they had things we see being patented today as "inventions". These innovations are obvious and were implemented, but no one remembers and there are no articles, and hence no "prior art" or way to show obviousness.

    I am a supporter of software patents, but we need to have patents granted for true innovation. Taking an idea from the web and making it work on mobile is engineering and not innovation, but you would never know that from a lot of patent filings. Putting P2P technology in a STB (a computer) and making it "easy to use" isn't invention, but engineering.

    Too much stuff is filed that is incremental and obvious so that people can show "protectable IP" to the VCs and therefor raise money. The Patent office can't figure out the stuff and so grants it. A mess that this ruling will hopefully put us on the path to fixing.
  • by Arguendo (931986) on Monday April 30, 2007 @02:55PM (#18931205)

    I am a patent litigator (meaning I mostly kill patents; I don't create them), and this of course is big news in my practice today, and will be very helpful in several on-going cases.

    Here's my take: the case allows lawyers to tell a story about the prior art that makes sense. Previously, the Federal Circuit had shut you down if you couldn't point out explicit prior art for every little detail of the patent that you wanted to invalidate. That's exactly what they did in the case under review. The defendant pointed out that all of the basic problems had been solved in other patents, but the Federal Circuit responded that they hadn't been solved with the intent of solving the particular problem the patent said it was trying to solve. Well, so what? We should be able to assume (and argue) that ordinary engineers have a little common sense and creativity in determining how to use previous inventions. We shouldn't have to show the courts that there was an exact road-map for an idiot to follow and arrive at the precise "invention" at issue. That's the big help in this case.

    So from my point of view, here are the two big advances from KSR today:

    • "A person of ordinary skill is also a person of ordinary creativity, not an automaton." (Page 17)
      This should be obvious, but it will help that the Supreme Court said it. It will be quoted a lot because it shows that we can assume that the ordinary engineer can make simple inferences and doesn't need his hand held.
    • "When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense." (Also page 17.)
      This is the Supreme Court's long-winded way of boosting the "obvious to try" argument. The Federal Circuit has for a long time rejected the argument that it would have been "obvious to try," instead saying that it needs to be "obvious to do". (For example, it may be obvious to try to build a time machine, but that doesn't mean the invention of a time machine would be obvious.) But I read this opinion as saying that "obvious to try" goes a long way towards showing that it was "obvious to do". In other words, if it was obvious to try and the trying used predictable methods and yielded a predictable result, then the whole thing was likely obvious. So this will help as well.

    Finally, it is going to be interesting to see how the PTO itself deals with this opinion. If an examiner comes back to you and says, "no I think this is obvious," it's very difficult to "prove" otherwise, especially early in a product's life cycle when you don't have market data to show how successful it might be, etc. At least under the previous test, the examiner would have to point out all the explicit references in the prior art. Now they apparently just have to point out the basic elements, and then say, "in their opinion," a person of ordinary skill and creativity would have been able use these elements to make the invention. How do you argue with that? "No, I don't think ordinary people are that creative"?

    So, you fix one problem and possibly create another. The opinion shifts the debate to help prove obviousness, but it doesn't solve the underlying problem of what obviousness means. So it goes.

    • Re: (Score:3, Interesting)

      by marcop (205587)
      If I may use an example... would a Post-It-Note be patentable under this ruling, or would it be easily invalidated by this ruling? I have heard companies use the analogy of paper and glue are obvious but putting them together is patentable to defend their patents which to me (an engineer) seems obvious.

      Disclaimer: no I am not seeking free legal advice on a Post-It-Note style invention. I don't work in a field even remotely related to paper products. My company has a corporate legal department and also us
  • by mavenguy (126559) on Monday April 30, 2007 @03:29PM (#18931751)
    I just read the syllabus (technically not legally binding; the actual opinion is, but there's almost no effective difference) of the opinion, and the SCOTUS basically shot down decades of Court of Appeals for the Federal Circuit and predecessor Court of Customs and Patent Appeals case law, bringing back the previously SCOTUS decided Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 17-18 as the solid basis for determining obviousness. Assuming the CAFC doesn't try to weasel out of this like they originally did around Graham [cornell.edu] ( or around Benson [cornell.edu] for software) this will have a potentially huge impact in the scope of claims issued by the PTO, or if a patent even issues in the first place. Much will depend on how PTO management interprets the decision and what guidelines are given to examiners, at least in short run until some appeals hit the CAFC.

    Once again the SCOTUS has reigned in the CAFC which, as the most frequent appellate decider of patent law, gets to decide what the patent law is for years at a time, with only the relatively infrequent SCOTUS decisions permitting correction. Today is one of those infrequent occurances.

I tell them to turn to the study of mathematics, for it is only there that they might escape the lusts of the flesh. -- Thomas Mann, "The Magic Mountain"

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