The Death of Nearly All Software Patents? 731
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.'"
Hooray (Score:3, Interesting)
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...
Yahoo vs Microsoft (Score:4, Interesting)
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)
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.
So how will this affect the real-world today? (Score:2, Interesting)
Re:What about compression algorithms? (Score:2, Interesting)
Doubtful that it's counted as physical. Compression is probably one of the closest types of software 'patents' to a pure mathematical algorithm.
Re:Good (Score:1, Interesting)
You could just as well argue that nothing is patenteable, as a patent contains the human-readable method for doing something, and software is a machine-readable method for doing something. :)
Analogies... everybody has one and they all stink
What I see happening (Score:4, Interesting)
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.
Re:Good (Score:5, Interesting)
I even wonder if the Curry-Howard correspondence can't be used in court to invalidate "ALL" software patents as this a theoretical which equats any progam and (algorithm) to a mathematical formula. I wonder if this has been already tried in court !!
Mixed feelings... (Score:5, Interesting)
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.
Re:Good (Score:3, Interesting)
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, despite having the exact same result. *
* This of course assumes that John didn't patent building it either way in the first place.
Re:Good (Score:3, Interesting)
Re:What about compression algorithms? (Score:3, Interesting)
I actually don't mind the purely mathematical or purely algorithmic patents. Phil Katz patented some efficient string matching algorithms [wikipedia.org] that became a well-known compression program. He was a pioneer who pushed the field of CS. If Burrows and Wheeler [wikipedia.org] wanted to patent their algorithm and license it as a compression technology, then awesome. And if the Fraunhofer institute found an efficient lossy way of compressing DCT using psychoacoustic modeling [wikipedia.org] and licensed it, that's good for everyone.
The problem with software patents are with the system itself: ...over the internet [ebay.com] or running an escrow service...over the internet [paypal.com] or even buying something from a catalog...in a particular number of mouse clicks [amazon.com] Those are not patentable. Those are absurd.
1) They are too long. You could renew a software patent for a period of time that is actually longer than the home computer has even existed. That's not reasonable.
2) The patents on things that are NOT algorithmic. Like adding "over a network" to regular everyday things and claiming that is patentable. Running an auction
This foolishness is a recent development too. I doubt anyone has a patent on ordering from a mail order catalog...with a particular number of pen strokes . But for some brain-dead reason, adding "network" or "internet" makes it non-obvious.
Re:Good (Score:1, Interesting)
It is also used to convince another company that you are a 'player' in that field and 'safe' to do business with. It gives your client a warm fuzzy feeling to know that you have a patent(s) in the field and have some defense against a patent troll.
My company (and myself) have patents on things that surely seemed obvious to me, but since competitors have obvious patents, we had to have some also.
We'll see if the new limits actually are put into effect. I'll believe it when I see it.
Isn't it amazing that laws are ruled on by people that used to be lawyers and often help perpetuate the system that lawyers benefit from? Not.
Re:Good (Score:5, Interesting)
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:5, Interesting)
Your not patenting the patent; you are patenting the physical machine.
That is flatly incorrect.
A machine patent claims a particular configuration and interrelation of components: "an A connected to a B and applying pressure to a C..." etc.
And the components don't even need to be particularly stated: a general reference to a "fastener" or a "fastening means" can cover anything that holds part A to part B (a bolt, a nail, a clip, tape, a piece of rope, glue...)
Even in the machine arts, the focus of the patent is the operative principle: the concept of using force, pressure, torque, etc. in a particular way to achieve a particular result. Any machine operating according to that concept is covered by the patent. Of course, that principle may be described with an example, such as a particular combination of parts. And the patentee may find it convenient to describe his own embodiment - the particular components that he chose. But the patent claims, which define the scope of the patent, can be very broad and generic - even in machine patents.
This point is so poorly misunderstood here at Slashdot that I'll write it again: For all types of patents, the defining limitation is the operative concept. So it has ever been.
- David Stein
Re:Good (Score:2, Interesting)
But it's not.
saying software is math is like saying a car engine is physics.
Math, can represent what is happening, and it can be used to determine what will happen, but software isn't math.
Re:Good (Score:4, Interesting)
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:3, Interesting)
Nobody questions the idea to patent a design. But what we have with software patents is companies trying to patent a speedometer displaying the speed in a half-arc, a manual transmission with the well known H-Pattern for the gears or that headlights are mounted at the front of the car.
Computers and computer software are still a fairly new field with lots of "obvious" things not being invented yet. The examples above are of course not patentable (anymore) since they have been in wide use for years now, but we're with computers now where we were with cars a century ago. Can you imagine what the car industry would have looked like if those things had been patented by the first one who happened to use them?
Maybe patents in the CS field will make sense in a century, when all the obvious things have been discovered. Right now, they'd just serve as tools to avoid competition by making sure you can decide what competitor may use what technology.
Re:Good (Score:4, Interesting)
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:About damn time! (Score:2, Interesting)
Re:Good (Score:2, Interesting)
You can also patent novel applications of things which exist in nature and methods for producing, refining, and testing for them. You cannot patent proteins which are found in every human liver on the planet, but you could certainly patent (novel, non-obvious) methods for extracting, synthesizing, and purifying them. You could also patent variants of these proteins which are not found in nature but have important medical properties or even the same effective properties as those found in nature. You might even go so far as to patent all the feasible methods for isolating some important biological compound and thereby obtain a lock on the market for valuable experimental ingredients.
If I recall correctly from what I have been told, such is the case for the polymerase derived from Thermus aquaticus, which results in a lot of expenses for many labs. These labs could easily synthesize the polymerase themselves, but they must buy it from a licensed distributor (at much greater cost) for any official experiments that will gather data for publication. If they don't, then they could get slapped with a suit for infringement because they performed a reaction whose ingredients were obtained by violating a process patent.
As far as the analogue with computer programs goes, by this standard, you could patent the use of a particular algorithm for a certain purpose. The DEFLATE algorithm itself cannot be patented, but as long as it's novel and non-obvious, you could patent the use of it to filter for spam or whatever other (novel, non-obvious) purpose you like.
Re:This violates my patent (Score:5, Interesting)
That's intended as a strawman argument, right?
I think that we could probably go on with additional reasons for a week....
Re:About damn time! (Score:3, Interesting)
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...
You didn't RTFA, which is about (1) the position taken by the PTO in a case before the CAFC, and (2) the trend of the PTO's decisions in prior cases before the CAFC.
As for the CAFC's opinions: In re Nuijten was a specific question about a particular claim style in the software arts (the "electromagnetic signal" claim); In re Comiskey was not even a software case - it was purely a business-method case involving an arbitration of a legal dispute by a human arbitrator; and In re Bilski has not yet been decided.
I doubt the rehearing of Bilski will come out the way you seem to believe it will.
Wait and see. In the meantime, don't forget that this is the same court that decided State Street Bank, which - well, you know what that's about, right?
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).
Patents are used for all sorts of purposes in industry. Litigation is only one scenario, where company A believes it has a valid patent covering company B's product, but company B refuses to settle.
Here are some other uses of patents (besides litigation and defense) that are a daily part of technology businesses:
Keep in mind that these activities are all pretty invisible - they involve mostly private communication among firms. It's impossible to gauge this from the outside.
Of course, companies seem to believe in the value of patents - they keep applying for them, in greater numbers every year. ...the trend is clearly away from stronger patent rights, especially in the field of software patents.
Generally we are in a phase of contraction of patent rights, yes. The patent system is cyclic - inventors' rights tend to fluctuate with the political climate. But the pendulum always swings back.
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.
The system has been changing through a series of small tweaks. Most of those cut against the rights of inventors, but by and large, patenting is the same game it was a decade ago (State Street Bank came about in 2008.)
Part of the reason why the system changes only in small increments is that the CAFC and Supreme Court tend to issue very narrow, limited decisions on patent law issues. They don't make huge, sweeping changes - they appreciate that the system is very complex, and that rapid change could be disastrous.
- David Stein
Re:This violates my patent (Score:1, Interesting)
Two problems with your post:
First, all patents are lists of instructions. They're not just ideas: they are indepth descriptions and diagrams to describe how something operates. You don't patent a product, you patent how the product operates.
Second, of course patents are anticompetitive. Like all forms of intellectual property patents are government sanctioned monopolies granted to the creator in exchange for those instructions. The creator benefits from the exclusive rights to commercialize the item, but they cannot prevent competitors from viewing those instructions immediately gaining the benefit of whatever R&D was involved. If a competitor finds a way to do it better then they can submit their own patent application and market their own product. Westinghouse found a way to patent market their own lightbulbs despite Edison's patent because they were able to read the patent and determine a way to accomplish the same product in a different way.
There are problems with software patents and patents in general. The first problem is this ability to patent something as an idea with no intention of productizing it. I think to combat this the initial patent application should contain a much shorter duration unless the applicant either markets a product or licenses the patent to another company which is marketing a product. This would severely reduce submarine patents as the applicant can't just sit on the patent waiting for someone to accidentally trip it.
The second problem I have with software patents is that, in my opinion, the software patent should require the actual compilable and verifyable source code of the implementation of the patented algorithm.
You can argue that copyright is more appropriate for software, but I don't think that is the case. Copyright lasts a LOT longer and has amorphous rules regarding infringement. The source code itself perhaps can be covered by copyright, but the binary itself should not.
Re:Patent Pending (Score:4, Interesting)
Sure they do. Earlier this year, in Tafas v. Dudas, GlaxoSmithKline sued the USPTO over its new "continuation rules package" that imposed new procedural requirements on certain patent applications. The CAFC not only heard the case, but came down loud and hard against the USPTO, finding that it had exceeded its authority. Although cast in procedural language, the new rules effectively altered the landscape of patentable inventions - a substantive change that only Congress was authorized to make.
Now, that was for a set of rules that were facially procedural. The USPTO's position here is not even facially procedural - it is a completely substantive decree that they will regard a whole swath of inventions as unpatentable.
The CAFC will definitely hear this case, and I've got some safe money on a USPTO smackdown.
- David Stein