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The Death of Nearly All Software Patents? 731

Posted by kdawson
from the we-can-only-hope dept.
An anonymous reader writes "The Patent and Trademark Office has now made clear that its newly developed position on patentable subject matter will invalidate many and perhaps most software patents, including pioneering patent claims to such innovators as Google, Inc. In a series of cases including In re Nuijten, In re Comiskey and In re Bilski, the Patent and Trademark Office has argued in favor of imposing new restrictions on the scope of patentable subject matter set forth by Congress in article 101 of the Patent Act. In the most recent of these three — the currently pending en banc Bilski appeal — the Office takes the position that process inventions generally are unpatentable unless they 'result in a physical transformation of an article' or are 'tied to a particular machine.'"
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The Death of Nearly All Software Patents?

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  • by Pennidren (1211474) on Thursday July 24, 2008 @11:26AM (#24319215)
    Invalidation of software patents was patented by me back in 2003.
  • by RandoX (828285) on Thursday July 24, 2008 @11:27AM (#24319227)

    Sounds like the machine that these patents are going to be tied to is the Titanic.

  • by tensop (1232374) on Thursday July 24, 2008 @11:28AM (#24319243)
    Someone should jump the gun and patent the idea that software cannot be patented. Then sue the trademark office for patent infringement.
    • Re:Patent Pending (Score:4, Insightful)

      by Presto Vivace (882157) <marshall@prestovivace.biz> on Thursday July 24, 2008 @11:33AM (#24319347) Homepage Journal
      Actually I assume that this ruling will be litigated.
      • Re: (Score:3, Funny)

        by rah1420 (234198)

        Ah, good. We can then get patent lawyers and lawyers in the room at the same time. Too bad we can't patent that as a cure for insomnia. Or can we? I'm so confused....

      • Re:Patent Pending (Score:5, Insightful)

        by phoenixwade (997892) on Thursday July 24, 2008 @12:46PM (#24320609)

        Actually I assume that this ruling will be litigated.

        Yeah, that's a "well, Duh!" comment - there is too much money involved here for it not to be litigated.

        If this interpretation is upheld in litigation, you can bet that congress will get involved and fix it so that software patents are retroactively reinstated.

        I'd like to see big money lose over the interests of the people, but I doubt our system could ever allow that.

        • Re:Patent Pending (Score:5, Insightful)

          by afidel (530433) on Thursday July 24, 2008 @01:53PM (#24322041)
          Actually with all the patent trolls big money is starting to realize that software patents are doing way more harm than good, even if you have a large warchest of patents a patent-troll can still cause you a large amount of cash and time. It's a bad situation for big money since they have no leverage against the patents trolls as the trolls only goal is to extort a jackpot out of big money.
  • About damn time! (Score:4, Insightful)

    by neowolf (173735) on Thursday July 24, 2008 @11:28AM (#24319255)

    The subject says it all.

    • by SleptThroughClass (1127287) on Thursday July 24, 2008 @11:31AM (#24319307) Journal
      This calls for a Kermit full-waving "YAAAaaaaaaaaaaaaaaaay!"
      • Re:About damn time! (Score:5, Informative)

        by tambo (310170) on Thursday July 24, 2008 @12:28PM (#24320309)

        This calls for a Kermit full-waving "YAAAaaaaaaaaaaaaaaaay!"

        Err... not so fast.

        The PTO is an administrative body, not a legal body. It has no authority to state, "these types of inventions are patentable, and these aren't." It cannot impose new substantive requirements on inventions, including "physicality."

        The PTO has taken this position a dozen times in the past - and it has been repeatedly rejected by the federal courts. The federal judges must be tired of having to explain to the PTO that "physicality" is not, and never was, a requirement of patentability.

        So what we have here, once again, is the PTO exceeding its authority. The federal court has already hammered the PTO once this year for this (relating to its imposed requirements on continuation rules.) Expect this to occur again when the federal court decides In re Bilski.

        Look, guys - nothing's gonna change. IT is one of the only consistently thriving segments of the U.S. economy, and the drivers of that market - Intel, IBM, Microsoft, Apple, Google, Yahoo, Adobe, eBay - all utilize and support software patents. If anything, they're pinning an increasing emphasis and reliance on software patenting. And they all have great lobbyists, so expect Congress to step in with new patent legislation if it looks like software patents are in jeopardy. (They've done it before, folks. Consider 35 USC 103(b) [uspto.gov] for a specific instance where Congress changed the law to support biotech patenting.)

        - David Stein

        • by colmore (56499) on Thursday July 24, 2008 @12:49PM (#24320651) Journal

          Here's an idea. Write (or type and print out) a letter to your senators and representatives and to Mr. Obama (and I guess McCain if you think he's got a snowball's chance) and tell them how important you think this is.

          If you work in the tech sector, tell them that too. Super double extra bonus points if you hold a legit patent. Or heck, if you hold an illegitimate patent for defensive reasons.

          Emails don't count.

        • Re:About damn time! (Score:5, Informative)

          by Foofoobar (318279) on Thursday July 24, 2008 @12:49PM (#24320655)
          Correction. IBM is on your lists for supporting software patents. They do not believe in them. They believe the patent process needs overhauled and should support the open source model and a companies should make money off services, support and hardware (unless they can patent software tied to hardware or patent hardware innovations).

          IBM has also started a patent fund with other companies to make sure nobody gets sued for broadly affected patents and work with others to find prior art and prior invention on modern software patents. IBM would like to see everything move towards a software services and support model mainly because they are in the forefront and most of the patents they are now putting through are hardware patents.
          • Re:About damn time! (Score:5, Informative)

            by tambo (310170) on Thursday July 24, 2008 @03:40PM (#24324129)

            IBM is on your lists for supporting software patents. They do not believe in them.

            Wrong. [ffii.org] IBM is an ardent supporter of patents, and has consistently argued in favor of them. And an increasing share of its business is based on software patents.

            Rather, IBM's position is that it is against bad patents: those that are not adequately examined, and that issue despite invalidating prior art. IBM supports software patents just as ardently as electrical patents... so long as the patented invention is novel, non-obvious, adequately described, etc.

            (And, really, who could oppose that position? Even though better examination lead to a higher rejection rate, they also lead to greater certainty in the validity of issued patents. In fact, the only opponent of this position is the USPTO itself, which throttles the amount of time and resources that an examiner can throw at an application in the interest of "productivity." I'll let you draw your own conclusions about that.)

            ...and most of the patents they are now putting through are hardware patents.

            Also wrong (same article as above.) IBM's software patenting efforts have grown over the last decade.

            - David Stein

        • by Just Some Guy (3352) <kirk+slashdot@strauser.com> on Thursday July 24, 2008 @12:49PM (#24320657) Homepage Journal

          IT is one of the only consistently thriving segments of the U.S. economy, and the drivers of that market - Intel, IBM, Microsoft, Apple, Google, Yahoo, Adobe, eBay - all utilize and support software patents.

          You couldn't be more wrong. IT is being crippled by software patents, because you can be sued for writing the most obvious things that some jackass already registered. Those companies pretty much hate software patents. Do you think Microsoft really wants Joe Troll in Texas coming after them for 20 billion dollars because he patented spreadsheets? No! They see them as an evil that they have to put up with so that they don't get run out of business by the people gaming the system.

          American companies, or at least the intelligent ones, hate software patents because they're only useful against American companies. They don't do jack against the 95% of the world's population that doesn't live here, but give that 95% one hell of a big stick to beat us down with.

        • Re:About damn time! (Score:5, Informative)

          by Anonymous Coward on Thursday July 24, 2008 @01:36PM (#24321673)

          So what we have here, once again, is the PTO exceeding its authority.

          It's almost like you didn't RTFA at all. The decisions in question, In re Nuijten, In re Comiskey and In re Bilski, are all CAFC decisions not PTO decisions. And in case you haven't heard, the CAFC does have authority to state, "these types of inventions are patentable, and these aren't." They rejected rehearing en banc of Nuijten. Additionally, I doubt the rehearing of Bilski will come out the way you seem to believe it will.

          Additionally, the major players in the IP market, are increasingly getting patents for defensive purposes and pushing for patent reform (See the Patent Reform Act of 2007).

          So, if you haven't been following recent developments both in the CAFC and SCOTUS, and by the tone of your comments you obviously haven't been, the trend is clearly away from stronger patent rights, especially in the field of software patents.

          Now it is entirely possible that the system will not change and inane and overly broad software patents will continue to come flowing out of the PTO.. However, the trend is certainly in the opposite direction.

    • by b4thyme (1120461) on Thursday July 24, 2008 @11:38AM (#24319425)
      And millions of patent troll voices cried out in terror and were suddenly silenced...
  • Good (Score:5, Insightful)

    by Lord Apathy (584315) on Thursday July 24, 2008 @11:29AM (#24319265)

    Thus is a good thing. Patenting software is like patenting a math equation. I can understand software copyrights but not a freaking patent. I wonder how this will affect the cases that where already in court.

    Now if we can only get some sense in patents regarding biology. By the way my patent on the biological reproductive process in humans will go into affect today. So all you with kids prepare to cough up.

    • Re:Good (Score:5, Insightful)

      by Chris Burke (6130) on Thursday July 24, 2008 @11:34AM (#24319365) Homepage

      Patenting software is like patenting a math equation.

      It's not even "like", it is patenting math. Software is math. Someone might say that everything can be reduced to math, but the fact is that a ball tossed in the air may follow a parabola, but the ball isn't math, it is just described by math. Whereas software is math, as surely as "y = ax^2 + bx + c" is math. One is a human-readable representation of a pure mathematical concept, and software is a machine-readable representation of a pure mathematical concept. You can't patent the human-readable form of math, you should not be able to patent the machine-readable form of the exact same math.

      You can patent the machine that is capable of reading and acting on the mathematical operations described by the software. But not the software itself, because that is, literally, no metaphor at all, patenting math.

      • Re:Good (Score:5, Informative)

        by Khalid (31037) on Thursday July 24, 2008 @11:54AM (#24319725) Homepage

        You are completly right, there is even a mathematical foundation for this, it's called the Curry-Howard correspondence : http://en.wikipedia.org/wiki/Curry_Howard [wikipedia.org]; which says : "The Curry-Howard correspondence is the direct relationship between computer programs and mathematical proofs. Also known as Curry-Howard isomorphism, proofs-as-programs correspondence and formulae-as-types correspondence, it refers to the generalization of a syntactic analogy between systems of formal logic and computational calculi that was first discovered by the American mathematician Haskell Curry and logician William Alvin Howard."

      • Re:Good (Score:5, Insightful)

        by Klaus_1250 (987230) on Thursday July 24, 2008 @11:55AM (#24319749)

        By that same logic, doesn't that void patenting genes as well, as Genes are natures version of software?

        • Re: (Score:3, Interesting)

          by Ares (5306)

          Ahh but therein lies the difference. There's actually something being physically manipulated when it comes to gene patents: the DNA sequence itself. Of course, that's the result, and the specific process to create that gene is the patentable piece if I'm understanding this correctly, not the gene itself. IOW, if John Q. Researcher files a patent for building the gene "top-down", its legitimate, and if Jane P. Researcher files a patent for the same gene building it from the bottom up, that too is legitimate,

        • Re:Good (Score:5, Interesting)

          by saterdaies (842986) on Thursday July 24, 2008 @12:37PM (#24320471)

          Traditionally, you cannot patent discoveries. Discoveries aren't something new or novel that you created. You just found something that already existed. For instance, if you discoverd Klausonium - a new element awesome for everything from T-Shirts to nuclear weapons - you couldn't patent it because its existence isn't owed to you; it existed before you found and it would continue to exist whether you tell people about it or not.

          Likewise, gene sequences shouldn't be patentable because they are discoveries. The European Patent Convention expressly forbids patents on discoveries. US patent law is slightly more vague allowing patents on "new. . .compositions of matter". One could argue that a gene sequence is a composition of matter, but it certainly is not new.

          Well, I'm done thinking. Good luck with Klausonium. Hope you can be first to market :-).

          • Re:Good (Score:4, Interesting)

            by Sniper98G (1078397) on Thursday July 24, 2008 @01:14PM (#24321183)

            But there is a difference between finding a gene that exists in nature and manufacturing one that nature never created.

            Sure it's kind of an open and shut case when you're talking about parts of genes that already exist. The problem is that people now have the capability to make genes from scratch.

            Why shouldn't someone be able to patent a gene they made that lets you grow five noses?

            • Re:Good (Score:4, Informative)

              by ThosLives (686517) on Thursday July 24, 2008 @01:48PM (#24321901) Journal

              I think that most of this could be solved if they re-wrote section 101 to say "you have patent the process or mechanism, not the result."

              The "result" is the problem that people scream about today, not the process. The reason patents are out of hand isn't because people are patenting a specific set of bars, wheels, levers, and computers to paint the side of a barn red, they are patenting "A red side of a barn."

              Now, to be sure, there are many patents which truly are in the original spirit of patents - a new way to obtain some result. That's the key thing that seems to be missed by many in the discussion. Make patents the means, not the result, and be done with it.

      • Re:Good (Score:4, Insightful)

        by johannesg (664142) on Thursday July 24, 2008 @12:18PM (#24320109)

        You know, this argument always comes up and I firmly believe it is rubbish. Software is NOT math, and the fact that computer science gets linked to math courses in almost every university is actually harmful (because it scares off people who might otherwise have become very good computer scientists, and because it propogates this "software is math" fallacy).

        Granted, math is a tool used in software engineering to achieve certain effects. That does not turn software into math. And you can use math to describe (some) software. That also does not turn software into math.

        The essential difference is this: software is an engineering discipline, while mathematics is a science. Therefore they cannot possibly be the same thing. And until I see a proper software science, I will not buy into the "software is math" fallacy, and neither should anyone else.

        Hans

        • Re:Good (Score:5, Insightful)

          by aproposofwhat (1019098) on Thursday July 24, 2008 @12:34PM (#24320417)

          Hans,

          At the level at which you (possibly as a software engineer) deal with it, the mathematics behind the software is normally so abstracted as to be almost invisible.

          That does not change the fact that at the most basic level all computer programs are just mathematics - a Turing machine manipulating program and data.

          And mathematics isn't a science at all - it is a logical discipline, where (all useful) theorems are either true or not true, unlike science where hypotheses are there to be shot down, but so long as they work better than existing hypotheses they are held to be contingently true.

          Fact is, it is possible to prove the correctness or otherwise of a computer program, so it's mathematics.

          Bri.

        • Re:Good (Score:5, Informative)

          by CrazedWalrus (901897) on Thursday July 24, 2008 @12:36PM (#24320449) Journal

          I used to agree with what you're saying, but that was before I realized a few things:

          1. Computer Science != Programming

          Computer science is more about research, not about writing accounting and billing programs. The mistake colleges make is not mixing computer science with math, it's making the assumption that all programmers must be computer scientists.

          2. You can only get away with being a programmer while sucking at math because of the many layers of abstractions that have been built on top of the math. The math is still at the bottom, but we now have higher-level, more right-brained ways of expressing that math.

          An example might be SQL and relational databases. SQL is a very English-like language that is interpreted into relational algebra by the database engine. You don't really need to thoroughly understand all of the relational algebra to write basic SQL, but there it is nevertheless.

        • Re:Good (Score:4, Informative)

          by cduffy (652) <charles+slashdot@dyfis.net> on Thursday July 24, 2008 @12:40PM (#24320519)

          And you can use math to describe (some) software.

          Not some software; all software. That's not a very convenient way to describe it, to be sure -- but when you get under the hood and look at what the CPU is doing, it's all -- completely -- 100% math.

        • Re:Good (Score:4, Interesting)

          by fumblebruschi (831320) on Thursday July 24, 2008 @12:40PM (#24320529)
          Mathematics is not a science. Science employs inductive reasoning, while mathematics employs deductive reasoning. That's why my university had a "Department of Math and Science".

          Software is not "an engineering discipline." The process of writing software is an engineering discipline. Software itself is a self-consistent logical construct following a strict syntax -- in other words, it's math.
    • Re:Good (Score:4, Funny)

      by denis-The-menace (471988) on Thursday July 24, 2008 @11:34AM (#24319373)

      I agree with you but now I'll have to find a new sig! Damn!

    • Re:Good (Score:5, Informative)

      by thermian (1267986) on Thursday July 24, 2008 @11:44AM (#24319547)

      During my phd I created a dynamically resizing matrix like structure for representing gene networks of arbitrary size.
      Shortly after this I found that something effectively identical had been granted a patent in the US.

      The patent didn't effect me at all, so I wasn't concerned on that front. What shocked me was that a patent had been granted for it at all.

      The design was useful for me, because it reduced memory usage by around 96%, but in no way was it something that should have been granted a patent.

      I imagine that patent will cause some researchers problems unless reforms prevent its usage. I've not heard of it being used offensively yet, I assume the holder will be waiting for a chance to get some serious settlement cash.

      • Re:Good (Score:5, Insightful)

        by Mouse42 (765369) on Thursday July 24, 2008 @12:01PM (#24319875)

        From my experience with watching how the companies I work for treat patents, they aren't used offensively. They are used to:

        A) Show proof of innovation to venture capitalists, stock holders and management
        B) Ensure they will have the right to use that process, so some other guy won't use a patent offensively against them.

        I would say the patent you're discussing falls under A.

        However, that certainly doesn't stop a patent troll from buying the company who has the patent and then using it offensively.

      • Re:Good (Score:5, Insightful)

        by Jerf (17166) on Thursday July 24, 2008 @12:14PM (#24320067) Journal

        I've frequently wished that the very fact that a patent troll can sue twenty other people for violating their patent was considered ipso facto proof that the patent couldn't have been all that innovative, by the very fact that several other people coming up with the same solution ought to be the very definition of "obvious to someone skilled in the arts".

        Certainly when we're talking about students coming up with "patented material" that should be strong evidence that it's not that hard.

        (This is a summary of the argument, there are details and nuances, etc. But I think the root idea is sound.)

      • Re:Good (Score:5, Funny)

        by paeanblack (191171) on Thursday July 24, 2008 @12:21PM (#24320169)

        The patent didn't effect me at all...

        Another universe-destroying causality violation narrowly avoided...

        Whew!

    • Not good (Score:5, Insightful)

      by 5pp000 (873881) on Thursday July 24, 2008 @11:45AM (#24319557)

      I don't agree. Once again, patent policy is being set by people who obviously don't understand the technology, and so, having lurched from one extreme to the other back in the 1980s, we're now going to lurch to a new extreme that is also not going to make sense. If you read TFA closely to the end, you'll see that somehow two connected computers constitutes a "particular machine", where one does not. This doesn't make any sense, and is going to result in an arbitrary selection of which patents are valid and which aren't.

      I understand that many people feel that software patents are so broken they should be thrown out. I don't agree. I think the problem with software patents is that the PTO never has had adequate expertise concerning prior art in the industry, and largely as a consequence, the bar for obviousness has been set about two orders of magnitude too low.

      • Re:Not good (Score:5, Insightful)

        by malkavian (9512) on Thursday July 24, 2008 @12:00PM (#24319845) Homepage

        Bear in mind obsolescence and market saturation times as well.
        Patents were developed with a long time to market and market saturation time (i.e. several years to ramp up production, then about 10-15 years to get a market using this as almost a standard), which ate up about half of the patent time. So you had about the same time again to enjoy the benefits of a stable market before the floodgates were opened, and everyone could make it.

        In the software world, a technique can have the development time of hours. Market saturation can happen in weeks/months.

        If software were to be patentable in its current form, I'd say 5 years would be a good ballpark figure. Like all things, this would have to be hashed out sensibly, so it'll likely never be implemented in a workable form.

      • Re:Not good (Score:5, Insightful)

        by betterunixthanunix (980855) on Thursday July 24, 2008 @12:06PM (#24319941)
        The problem with software patents is that they are too easy to unwittingly violate. Even a very specific sounding patent could wind up being violated, just because it is easy to unknowingly embed one system in another. This is where the mathematical roots of CS show through. Worse, the existence of prior art may not be so easy to determine -- the prior art may itself be embedded in a larger system, hidden from view.
      • by DamnStupidElf (649844) <Fingolfin@linuxmail.org> on Thursday July 24, 2008 @12:18PM (#24320127)

        Do you not agree that software is equivalent to mathematical formulas, or do you think that software patents (an arbitrary subset of mathematics) should be patentable for some reason?

        In the latter case, do you believe that, say, Andrew Wiles proof of Fermat's last theorem could be translated to a typed lisp expression (or any equivalent in some other language) and patented as a method of proving a certain fact about integers, and then authors of any proofs using Fermat's last theorem as a lemma could be sued for violating the patent? What about the four-coloring theorem which requires a programmatic proof? In short, what criteria would you use to distinguish unpatentable mathematics from patentable software?

      • Re:Not good (Score:5, Insightful)

        by SpinyNorman (33776) on Thursday July 24, 2008 @12:51PM (#24320713)

        I understand that many people feel that software patents are so broken they should be thrown out.

        The purpose of patents is meant to be to encourage innovation by protecting investment in innovation, but by that standard the concept of software patents is indeed broken.

        Software is not like other fields where innovation occurs relatively infrequently and often at considerable cost of time and money. In the software field, there are two contradictory forces at play that capture the essence of the field:

        1) Writing software is an inherently creative / innovative process. Every day you are innovating - sometimes coming up with a design takes longer than others, but innovation is essentially a daily and cheap process.

        2) Software inherently requires reuse. As the realities of design patterns (formalized or not) and libraries attest, even programming languages themselves, software is inherently about applying a limited set of tools and approaches to solving the unique task at hand.

        Consequently, and correspondingly:

        1) Software doesn't need patent protection because innovation is not an optional investment - it is a fundamental daily practice part of the field.

        2) Software is hampered by protecting "innovation" (i.e. other's software designs) since it is the nature of software that at a certain level of abstraction there are only so many ways of doing things and so many types of functionality that are needed (design patterns and libraries). If software patents are allowed it is inevitable that other software developers, on a daily basis, will need to keep redesigning the wheel, since all software needs wheels. Look at the GNU compiler set as an example - there are only so many types of code optimization techniques that make sense, and due to the patent office having allowed these "wheels" to be patented, every compiler designer, GNU team included, need to find less optimal and obvious ways of doing optimization than the obvious approaches that suggest themselves though the normal discipline of software design.

    • Re:Good (Score:4, Funny)

      by ColdWetDog (752185) * on Thursday July 24, 2008 @12:02PM (#24319879) Homepage

      By the way my patent on the biological reproductive process in humans will go into affect today.

      "Ah, Mr. Lord Apathy, sir? There's this big guy in flowing white robes in the waiting room. He's got thunderbolts sticking out at odd angles and he has some sort of weird glowing mist around him. He wants to talk to you and is muttering something about 'prior art'.

      Should I let him in?"

    • Re: (Score:3, Funny)

      by jalet (36114)

      > By the way my patent on the biological reproductive process in humans will go into affect today.
      > So all you with kids prepare to cough up.

      Well, you're on /. so nobody will pay you a dime, unless you've also patented the stimulation of self genital organs with one's hand.

  • Good idea! (Score:4, Funny)

    by Orleron (835910) on Thursday July 24, 2008 @11:29AM (#24319277) Homepage
    They should patent it.
  • Hooray (Score:3, Interesting)

    by ZwJGR (1014973) on Thursday July 24, 2008 @11:31AM (#24319311)

    Good news at last!
    Common sense prevails.
    Hopefully patent trolls will not be able to lobby against such changes; as for once, I daresay that certain major corporations are likely to be somewhat supportive, the current patent mess is as much a pain for them as for everyone else.

    These restrictions bring patents back in line with their original intention, and hopefully will help reduce the excessive (patent) litigation so prevalent in the US...

  • by mark-t (151149) <markt@@@lynx...bc...ca> on Thursday July 24, 2008 @11:32AM (#24319317) Journal

    I don't care who's reporting it or how reliable the source, the news that software patents would be invalidated, at least to me, and I'm sure a great many others, is something that is far in excess of too good to be true, so I'm gonna wait and see what happens.

    I really wish I could believe that this were possible, but I think too many people with very deep pocket and friends in the right places would get screwed over by this sort of thing to ever allow it to happen.

  • by pushing-robot (1037830) on Thursday July 24, 2008 @11:33AM (#24319341)

    suddenoutbreakofcommonsense, but holyfreakingshit conveys my feelings better.

    I haven't finished reading TFA yet, but this seems huge if it pans out — not only would software patents be invalidated, but essentially all "business process" patents would get tossed out as well.

  • Does compression of data count as "physical transformation" (IMO it's not, but I wonder what the USPTO thinks about it)?

    And if this turns out well, does that mean that the MP3 and MPEG4 formats will no longer be patent encumbered?

  • Mixed Blessings (Score:5, Insightful)

    by danaris (525051) <danaris&mac,com> on Thursday July 24, 2008 @11:36AM (#24319397) Homepage

    First of all, can I just say, WOO HOO! This has been far too long in coming!

    If this is what it sounds like (and no, I didn't RTFA; way too many links that look like they're probably rich in legalese!), it could pull the rug out from under many patent trolls, and allow a lot more innovation to come back into the US software world.

    However, precisely because it has been so long in coming, it could mean a major shakeup of a number of things. One important example is listed right in the summary: Google's PageRank patent. With that invalidated, other search engines can legally use PageRank, without giving Google a dime, which could give them the same searching power as Google.

    I can't even begin to speculate what the fallout of this would end up including, but I think it's important not to underestimate it. However, even if there are some short-term negative consequences, I think most of us here will agree that in the long term, at least, this is a big win for everyone (well, everyone but the patent trolls, that is!).

    Dan Aris

    • Re:Mixed Blessings (Score:5, Informative)

      by Qzukk (229616) on Thursday July 24, 2008 @11:47AM (#24319587) Journal

      other search engines can legally use PageRank

      That's where Google's pal "Trade Secret" comes in, after all, it's not like they list the algorithm they use to rank pages on their front page. Their patent reads more like "PageRank exists [uspto.gov] and we use it to order results from most relevant to least relevant and then display those results with links to the user, doing so is hereby patented" i.e. business process at its finest, with not a word that can be used to actually implement PageRank.

    • by JSBiff (87824) on Thursday July 24, 2008 @11:54AM (#24319727) Journal

      You've got to decide whether software patents are good or bad. If it's good for Google to patent the idea of page ranking, then software patents, in general, must be a good idea. If software patents are a bad idea, then allowing Google to have a software patent on the PageRank algorithm is a bad idea.

        In the future, if software patents are basically denied altogether, Trade Secret law will used to protect this sort of thing. Unfortunately for the many companies like Google, who've already been awarded patents, the algorithms are already disclosed. Which is why you will probably see some sort of transition period where currently existing software patents aren't just immediately invalidated, but I suspect will be grandfathered in - a basic principle of fairness is you can't change the rules after someone has already upheld their end of the bargain - the patent bargain is that you publically disclose your 'secrets', so that other people can *eventually* use them, but get legal protection on those secrets for a limited time. Telling people who've made disclosure that suddenly they get no protection on their disclosured algorithms is something I don't think is gonna pass - there will be too much resistance from companies on legislators to get protection for this sort of thing.

      Personally, I think search engine competition is a good thing. I think competition in general is a good thing. My only concern with outright gutting of the patent system, is that now much knowledge that would have been disclosed in patents, will now remain locked up as trade secrets and NOT eventually become generally available to practitioners of software engineering, and so will, long-term, hold back the progress of computer science. Of course, we all know that right now, patent trolls are holding back the progress of computer science even more. Sort of a lose-lose situation. I guess gutting software patents is, really, probably the lesser of two evils here.

  • Yahoo vs Microsoft (Score:4, Interesting)

    by AftanGustur (7715) on Thursday July 24, 2008 @11:40AM (#24319455) Homepage
    If this invalidates most business patents as well (since they do not transform an physical object) as required.

    The famous Overture's PPC patent which microsoft is trying to accuire through Yahoo should become invalid as well, resulting in "interesting times" to say the least.

  • quick (Score:5, Interesting)

    by Tom (822) on Thursday July 24, 2008 @11:41AM (#24319475) Homepage Journal

    Hope this gets done quickly, because the EU and other players are pushing for software patents and one of the main arguments is "harmonisation with the global (read: US) systems".

    And I'm very keen on finding out what their next pseudo-argument is gonna be.

  • by HaeMaker (221642) on Thursday July 24, 2008 @11:44AM (#24319539) Homepage

    They are holding patentable when there are two computers involved. So, any networking code may still be patentable since it is a system of multiple computers. This may help to invalidate non-network software. Fraunhofer, I'm looking at you...

  • Retroactive? (Score:5, Insightful)

    by rumblin'rabbit (711865) on Thursday July 24, 2008 @11:44AM (#24319543) Journal
    The article uses the workd "invalidate", which sounds to me like it would cancel existing patents. My question is - would this new set of criteria be retroactive, or would it apply only to new applications?

    The PTO changing the rules to cancel previously approved patents would generate massive legal problems. In particular, companies have spent billions of dollars to register patents, only for the PTO to say "Oops, just kidding. Jokes on you."

    No matter where you stand on software patents (and I'm against them if they can be restricted sensibly, BTW), that's no way to run a patent office.
    • Re:Retroactive? (Score:4, Insightful)

      by pavera (320634) on Thursday July 24, 2008 @11:56AM (#24319765) Homepage Journal

      I doubt it would immediately invalidate existing patents, however, it would certainly open the door to A LOT of patent challenges, and certainly greatly reduce the value of people's patent portfolios. If you implement page rank, and Google sues you, you have a clear cut defense now it appears. In your case you can argue that page rank is not patentable material, and it appears you would win based on these recent decisions.

      It would certainly take the bite out of the patent trolls, as soon as they sue, their patents would be invalidated by this rule, and they'd lose.

      In short, I don't think it would invalidate any patents immediately, but it would greatly reduce the ability of companies to leverage their software patent portfolios against competitors (think Microsoft's patent threats against Linux...)

    • Re:Retroactive? (Score:5, Insightful)

      by DragonWriter (970822) on Thursday July 24, 2008 @12:08PM (#24319967)

      The article uses the workd "invalidate", which sounds to me like it would cancel existing patents. My question is - would this new set of criteria be retroactive, or would it apply only to new applications?

      Changes to the scope of matters to which patent protection applies would affect existing patents, since those patents would no longer relate to patentable subject matter and thus could not be enforced in court.

      The PTO changing the rules to cancel previously approved patents would generate massive legal problems.

      The PTO is not changing the rules, the PTO is arguing to the courts that the law has been incorrectly applied (including by the PTO) in the past, and that the law should be correctly applied now and in the future. Since patent rights are not inherent rights, but privileges granted by law, there is no basis for protecting them other than the laws passed by Congress authorizing and limiting them. If those laws are incorrectly applied to restrict freedoms of others in ways that the law does not authorize, it is a violation of the Constitutional rights of every person affected (specifically, its a deprivation of liberty without [procedural] due process).

      In particular, companies have spent billions of dollars to register patents, only for the PTO to say "Oops, just kidding. Jokes on you."

      If the PTO is correct, those companies spent billions of dollars to exploit a misapplication of the law to which from which they were not entitled to benefit but did, in fact, benefit. Since they will neither be recompensed for the expenditures nor forced to disgorge their already-realized ill-gotten gains, I don't see the particular problem here.

      This seems to be a fairly routine controversy over what the law means and how it should be applied vs. how it has been applied, not some kind of unusual power grab that you are characterizing it as.

  • If this is actually true and at least the frivolous software patents are going to be removed, what about those who have been sued by the patent owners and lost? Will they be entitled to receive anything back from the patent owners as the patents are now invalidated? I know if I lost out hundreds of thousands of dollars to one of these BS patents, I would want my money back. Hell, if I lost $5, I'd want it back. I only read part of TFA, so maybe I'm missing something. Patent discussions are boring :o
  • by SanityInAnarchy (655584) <ninja@slaphack.com> on Thursday July 24, 2008 @11:49AM (#24319617) Journal

    That blog seems to want software patents to continue -- not surprising, really, given that it's a "patent law blog", and lawyers are the ones with the most to win from the cottage industry of software patents.

    While I doubt this ruling will stand, I hope it does. Google has an enormous amount of manpower to throw at this kind of problem, most of it highly intelligent. The only way this hurts Google is if a competitor is able to implement PageRank (and other features) so much better than Google that people start to switch -- and I doubt Google will be standing still as this happens.

    The fact is, software patents have had an overwhelmingly detrimental effect.

    Does anyone really believe that, for instance, h.264 would never have been invented, were it not for patents? It would either have been open, or some interested party would have paid for the development.

    As it is, while it's relatively cheap to obtain the computing power needed to, say, transcode a large library of video to h.264, the licensing cost can end up being something like $2500 per machine used in this capacity. And because of the longevity of patents, it seems unlikely that it will expire before a better encoding option surfaces.

    Yeah -- ever wonder why YouTube took so long to convert everything to hi-def, when they have the computing resources of Google available? I think we know now.

    I can imagine software patents being a good thing, but not in their current form. Getting rid of the 15-year-monopoly on an ephemeral idea or a mathematical function can only be a good thing for society as a whole.

  • by gmuslera (3436) on Thursday July 24, 2008 @11:50AM (#24319655) Homepage Journal
    how much particular? What about i.e. iPhone? There are a lot of patents around it, probably several related with software. If "tied" means "no way you can implement a similar algorithm if is in a different hardware" should be mostly ok.

    This could be the silver bullet needed to kill all patent trolls.
  • by realinvalidname (529939) on Thursday July 24, 2008 @11:52AM (#24319699) Homepage
    Those parties materially impacted by this policy, for good or ill, will presumably need to get out their checkbooks and start making contributions to candidates who will legislate/administrate in whatever manner suits the contributors.
  • What I see happening (Score:4, Interesting)

    by Ares (5306) on Thursday July 24, 2008 @12:01PM (#24319859) Homepage

    Somehow I've got the feeling that if this goes through, there will be a lot of patent attorneys making a lot of money writing clauses into software patent applications along the lines of:

    "whereby said process causes an electron to move from transistor a to transistor b"

    since way down at a quantum level, the bit state of a block of memory is a physical process.

    Alternatively, I'm sure there will be a lot of "software appliance" patents showing up under the argument that once its an "appliance", its no longer a general purpose computer.

  • by pushing-robot (1037830) on Thursday July 24, 2008 @12:03PM (#24319901)

    ...is for companies to employ a "physical object" provision in their patent filings. Google's PageRank patent, for example, may change from:

    "A computer implemented method of scoring a plurality of linked documents"

    to:

    "A computer implemented method of scoring a plurality of linked documents with possible applications as a shower curtain"

  • Mixed feelings... (Score:5, Interesting)

    by flajann (658201) <[flajann] [at] [linuxbloke.com]> on Thursday July 24, 2008 @12:10PM (#24319999) Homepage Journal
    Well, before I got my software patent, I was firmly against them.

    Then I got one, and was paid good money for it (sold it to the company I was working for).

    And now it may become invalidated. Hmmm... While some software patents are ridiculous, such as the XOR algorithm and the "one-click" purchase of Amazon, others that involved true ingenuity and shrewdness perhaps should remain? If the same intellectual "energy" goes into creating an algorithm as it does, say, a widget, should it not be awarded *some* protection?

    I am really mixed on this because of all the abuse software patents have seen. At the same time, when the whole notion of patents was drafted, that was no such thing as "software" Now, we have software running everywhere, including controlling such machines as the car you drive.

    I know I will be hissed and booed, but perhaps there is *some* place for *some* software patents.

    But in today's high seas of corporatism, many patents are abused anyway, and not just software ones. Big corporations will use their patents as "head whackers" where one corp will sue and counter-sue over patents just to gain market advantage, as opposed to exploiting the market for a patent. It's a fine distinction, one I am not sure about.

  • by bzipitidoo (647217) <bzipitidoo@yahoo.com> on Thursday July 24, 2008 @12:23PM (#24320213) Journal

    I suppose the author, Mr. Duffy, thinks he wrote a fair and balanced article. He mentions several times how valuable certain patents are, and that this change "threatens" many patents and will "destabilize" patenting. There is no mention of the gains to society, this seems to be purely a lawyer's outlook on the immediate consequences to patent attorneys and their clients. Clients will lose a lot of patents, oh no!

    There's no mention of how this will greatly help everyone against patent trolling. The closest he gets is a mention that this is "cause for celebration among those ... philosophically opposed to property rights in innovation", as if there are no real benefits to be had, as if that's a point that is of no interest to any except a few theologians of some obscure religion, He writes that this is a departure from over 2 centuries of tradition. We think otherwise. The tradition of patenting is over 200 years, yes, but the tradition of patenting software is perhaps only 30 years old, not 200. And the "system is supposed to be designed to encourage ... the innovative", but there is nothing about the means or any studies about the system's effectiveness. Are we supposed to take it for granted that because the system was designed to accomplish a purpose, it does so? Apparently we are supposed to take that view. How else could a "contraction of patent eligibility" be seen as "very troubling"? To the contrary!

    He concludes that figuring out answers to these "fascinating questions" will keep patent attorneys employed. I would add gainfully to the front of employed, but I'm doubtful that these questions are "fascinating", any more than a "debate" over the merits of Young Earth Creationism vs Old Earth Creationism is interesting. We know the answers already, it's that some don't like the answers and have tried to create debate and controversy out of nothing.

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