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Patents Government The Courts News

Software Patent Sanity on the Way? 157

Posted by ScuttleMonkey
from the moving-at-the-speed-of-a-bureaucracy dept.
Ars Technica is reporting that the traditionally silent US Patent and Trademark Office (USPTO) may be starting to turn things around. It seems that in recent action the USPTO has started to make it much easier to invalidate software patents with some saying that the abolition of such patents may be in the distant future. "Duffy cites four recent cases that illustrate the Patent Office's growing hostility to the patenting of software and other abstract concepts. While the USPTO hasn't formally called for the abolition of software patents, the positions it took in these cases do suggest a growing skepticism. In the first two cases, decided last fall, the United States Court of Appeals for the Federal Circuit (which has jurisdiction over patent appeals) upheld patent rejections by the USPTO. They were not software patent cases, as such. In In Re Nuijten, the court considered a patent related to an algorithm for adding a watermark to a digital media file. The Federal Circuit did not invalidate the claims relating to the watermarking algorithm itself; everyone seemed to agree that the algorithm was patentable. Rather, the decision focused on whether a digital signal could be the subject of a patent claim. The court concluded that it could not. A victory for common sense, perhaps, but hardly a rejection of software patents."
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Software Patent Sanity on the Way?

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  • Somewhat a dupe (Score:4, Informative)

    by Annymouse Cowherd (1037080) on Monday July 28, 2008 @02:07PM (#24372295) Homepage

    A lot of the article is talking about another article that was on slashdot recently.
    http://yro.slashdot.org/article.pl?sid=08/07/24/1458215 [slashdot.org]

  • by moz25 (262020)

    It does appear that consistent negative publicity helps. Too bad that it has taken over a [i]decade[/i] before changes appear.

    It also seems that this long delay is going to lead to a rather messy situation... although possibly less so than it already was :-)

  • by null etc. (524767) on Monday July 28, 2008 @02:10PM (#24372347)
    I can hardly believe that the US government would make a sensible decision that also happens to be in the interest of its citizens.
    • by K. S. Kyosuke (729550) on Monday July 28, 2008 @02:20PM (#24372457)
      That is why I tagged it "toogoodtobetrue". There must be some conspiracy behind it!
      • by Zordak (123132) on Monday July 28, 2008 @04:06PM (#24374103) Homepage Journal

        That is why I tagged it "toogoodtobetrue". There must be some conspiracy behind it!

        There is. It has to do with ensuring that when Microsoft, IBM, HP, and other Big Tech megacorps see inventions from legitimate individual inventors, the megacorps can indiscriminately steal the inventions and then label the inventors "patent trolls" if they get sued. This is not a case of throwing the baby out with the bathwater. This is a case of shoving the baby down the drain and accidentally letting some bathwater slip down with it. And it's been in the works for a long time.

        If you don't believe me, remember that USPTO director John Dudas is a Bush stooge appointed for his loyalty over his qualifications. In the end, this is still about protecting those who make the right donations to the right politicians. Any benefit to you is strictly incidental, and will be canceled out the moment you invent something.

        • by NickFortune (613926) on Monday July 28, 2008 @06:18PM (#24376233) Homepage Journal

          Any benefit to you is strictly incidental, and will be canceled out the moment you invent something.

          Of course, that rather assumes there is any benefit to me as inventor under the current system. If I invent something as things stand, those corporations with established patent thickets can tie me up in legislation until I run out of money. To compete on even terms there, I don't just need to invent something, I need to patent tens of thousands of somethings. That's probably not going to happen, no matter how hard I work.

          On the other hand, if software patents are forbidden, then at least I can't be prevented from trying to exploit on my own idea, even if I do have to allow the big boys to compete.

          As I see it, that has to be an improvement.

        • The point of the patent system is not to benefit the inventor, but to benefit society. Often these activities are functionally equivalent, as rewarding inventors for genuinely innovative and clever inventions encourages similar activity in the future. Unfortunately, and the point you seem to be missing, is that under the current this is increasingly not the case. Granting a long term monopoly on a basic application of existing technology or processes in a newly developed field, or applied to a newly deve
          • by Zordak (123132)

            The point of the patent system is not to benefit the inventor, but to benefit society. Often these activities are functionally equivalent, as rewarding inventors for genuinely innovative and clever inventions encourages similar activity in the future. Unfortunately, and the point you seem to be missing, is that under the current this is increasingly not the case. Granting a long term monopoly on a basic application of existing technology or processes in a newly developed field, or applied to a newly developed technology, (read: software patents) provides absolutely no benefit to society as a whole and as such is in direct opposition to the spirit, if not the letter, that the patent system was founded on.

            I think what bothers you is obviousness (section 103) more than what is statutory subject matter (section 101). I could be wrong. Maybe you really think that there is no way that a software method, no matter how clever or innovative, could ever be proper subject matter for a patent. But at least recognize that there is a difference.

            As for the purpose of patents, you are absolutely right that the purpose is to benefit society (you're wrong that I miss this point; IP is my bread and butter, so I'm pretty

    • Re: (Score:3, Insightful)

      by arth1 (260657)

      I can hardly believe that the US government would make a sensible decision that also happens to be in the interest of its citizens.

      CEOs are citizens too...

    • This is too easy to stop and will probably suffer an ignominous death.

      If it ever gained a little steam outside the right-thinking-patent-repair-club, it's dead in less than 30 seconds.

      Fox News and many other runs a blurb something like... "Sources inside the White House have stated that in difficult economic times like this, it's a terrible idea to introduce more regulations that will surely lead to fewer jobs..." See how easy that is?

      Sadly, this is the state of discourse in American politics.

      BTW, more pa

      • by retchdog (1319261)

        Yes, isn't it amusing how regulating a regulation counts as "more regulation" instead of less?

      • Re: (Score:3, Interesting)

        by Zordak (123132)

        You must think our USPTO registration certificates also invest us with dark powers or something if you think we have that much power. Bush's cronies at the patent office have been working very hard to totally destroy the patent system, and we've been powerless to stop them. Last year, they passed a rule package that was retroactive and so draconian, every single patent attorney who commented on it said, "No, this is a bad idea." They passed it anyway, despite that fact that it was so far reaching that it

        • Re: (Score:3, Insightful)

          If you never plan to invent anything, and want to ensure those who do invent have no recourse when their inventions are blatantly stolen by Big Business, then just lap up whatever those goons at the paten office dish out. But if you think there is any value to having a strong patent system to protect legitimate inventions (like the Framers of the Constitution did)

          Perhaps Big Business has a symbiosis with the patent system, patents prevent anyone without a good legal department from doing anything new or useful, and big business demands specialization and compartmentalization such that "invention" is a job (and cost) on its own instead of a natural byproduct of doing a good job.

        • by bit01 (644603)

          have no recourse when their inventions are blatantly stolen by Big Business

          You're handwaving.

          Patents are just a generic tool, a tool that can be used by both small players and big business, mainly in proportion to their financial power. Patents in no way change the balance of power, except by adding huge overheads to everyone in society.

          For every small entrepreneur helped there are any number of industry monopolies and cartels locking out new players. It is disingenuous to claim that patents protect the l

          • by Zordak (123132)

            Patents are just a generic tool, a tool that can be used by both small players and big business, mainly in proportion to their financial power. Patents in no way change the balance of power, except by adding huge overheads to everyone in society.

            From your .sig, it appears that you either fundamentally misunderstand the theory of intellectual property (which is intentionally geared toward creating artificial scarcity by granting a limited monopoly), or you have a fundamentally socialist view of property. Either way, there is a major gap between us in one or both of understanding and philosophy, and I won't try to bridge it. But for the benefit of anybody else, I would like to point out a couple of issues with this.

            Yes, patents are just a generic t

    • by IMightB (533307) on Monday July 28, 2008 @02:41PM (#24372779) Journal

      I think it was Churchill who said it best "The US can be counted on to do the right thing, only after it has exhausted all other possible options"

      • by peragrin (659227)

        I do love that quote, as it is very true.

        On the other hand at least in the USA all other options are tried, instead of just installing camera's everywhere saying it is for the good of the nation(UK).

        In the USA it takes a long time to do anything let alone do it right. The again when it is done it can be undone just as easily if it wasn't right.

    • Re: (Score:1, Funny)

      Patents and Mental Health:

      1. A patent is a MONOPOLY granted by the state to a particular individual or business, which is then enforced through violence.
      2. All patents are therefore, aggressive acts of violence against a free market: i.e. examples of anti-social behavior (see DSM-IV).
      3. If all patents are expressions of an anti-social personality disorder, then all patents (not just software patents) are fundamentally insane by definition.
      4. Therefore, the sane thing to do would be to abolish all patents im

  • by 3seas (184403) on Monday July 28, 2008 @02:18PM (#24372427) Journal

    .... it is abstact matter with a definable physics supporting its use. [abstractionphysics.net]

    To bad there is not stock to invest in on this overall debate as the outcome is certain. Software patents will become a thing of the past. An embarrassing thing at that.

    • by Anonymous Coward on Monday July 28, 2008 @02:45PM (#24372839)

      More than embarrasing. Costly.

      Like the saying, "Make hay while the sun shines" the fallacy that equates license to property will burn many more fools before we are done. Money in the bank is always decreasing in value. Using that money keeps it alive. Many profited in the domain name business, if they were wise enough to buy and sell them in a short lived market. The coming ICANN changes will soon massively devalue once treasured domains and those foolish enough to be left holding them, but not using them, will lose out.

      The same is true of bogus patents. Fine if you were able to catch the wave of USPOs mistake that sparked the software patent war in the first place, and leverage ivalid patents, but disaster for those caught holding them in the belief that they are tangible property.

      When the correction finally comes (and it will) it will wipe billions off the value of some companies. It couldn't happen to more deserving people of course. And perhaps that's the main reason it hasn't happened already. Software patents always have been, by widely recognised standards including those of UPSO itself, invalid. It's only the propagation of an error that has allowed some to profit meanwhile. The value of a market resulting from an error should not be justification to allow that error to persist.

      • Re: (Score:3, Insightful)

        by nschubach (922175)

        I've said it before and I'll say it again, Software patents should be Copyrights, not patents. Patents belong on physical items. It would be like patenting the method of turning a page in a book.

        If someone can figure out a better way to code the same thing you are doing without using your code, more power to them. That's innovation.

  • Duffy as Troll (Score:5, Insightful)

    by the eric conspiracy (20178) on Monday July 28, 2008 @02:21PM (#24372473)

    The thing that arstechnica is missing is that Duffy is a troll. He is representing amicus in the Bilski case, and is raising the possibility that the USPTO is adopting a position that will invalidate most business process / computer based patents as a FUD attack against any attempt to limit the scope of patentability in this field.

  • Provide the proof! (Score:5, Interesting)

    by srealm (157581) <prez AT goth DOT net> on Monday July 28, 2008 @02:34PM (#24372663) Homepage

    I've always believed that patents should include not just the idea being patented, but also details on how to recreate such an idea (ie. the prototype).

    For physical objects, this means schematics. For drugs and such this means formulas. For software it means source code.

    See how many companies will be willing (or in the case of patent trolls, ABLE) to patent software when they have to pony up a working implementation as part of the patent application (and thus public record).

    I am also against 'secret' or 'partially secret' patents, how is someone supposed to know they are infringing on a patent if they can't get all the details on a patent?

    • by sir_eccles (1235902) on Monday July 28, 2008 @02:46PM (#24372859)

      I can't resist replying to this comment. It is typical of many Slashdot comments particularly in relation to Patent Law.

      I don't know how much the author actually knows about patent law but the comment illustrates a severe lack of understanding.

      Patents must and do include "details on how to recreate such an idea". It's called the "description". While you no longer need to produce a prototype there is generally enough in the description for "someone skilled in the art2 to recreate it. In fact the whole reason you don't have to produce a working model is because you might not have the resources available but you want your idea protected while for example you get funding to set up a factory or what not.

      I really don't know what you mean by a "secret patent". Since 2001 in the US and the rest of the world for approximately forever, pretty much all granted patents have been published twice. Once 18 months after filing and the second time after grant. Just because you don't know about a patent does not make it secret. All the patent databases are available for free online these days.

      • by seifried (12921) on Monday July 28, 2008 @02:54PM (#24372961) Homepage

        http://en.wikipedia.org/wiki/Submarine_patent [wikipedia.org].

        Submarine patent is an informal term for a patent first published and granted long after the initial application was filed. In analogy to a submarine, its presence is unknown to the public; it stays under water, i.e., unpublished, for long periods, then emerges, i.e., granted and published, and surprises the relevant market. This practice was possible previously under the United States patent law, and is now not practical with present patent filings since the U.S. signed the TRIPS agreement of the WTO: since 1995, patent terms (20 years in the U.S.) are measured from the original filing or priority date, and not the date of issuance. A few potential submarine patents may result from pre-1995 filings that have yet to be granted and may remain unpublished until issuance. Submarine patents are considered by many as a procedural lache (a delay in enforcing one's rights, which may cause the rights to be lost).

        • Yes I know, that's why I mentioned the publishing change around 2001. But I don't think any of the patents discussed on Slashdot in recent stories have been actual submarine patents. They have all been ones you just simply didn't know about.
      • I know there have been the oppositte, where the theft of your patent idea becomes a "state secret" and you are hosed.. take a look at this one [patenthawk.com] for an example. Lucent stole this guys idea, and sold it to the military, and he can't touch them
      • Patents must and do include "details on how to recreate such an idea". It's called the "description". While you no longer need to produce a prototype there is generally enough in the description for "someone skilled in the art2 to recreate it.

        The problem is the description is written in verbose, obscure "patent speak" which is not enough to reproduce the patent. Like this nonsense (picked, I might say, pretty much at random from a Google search on computer patents):

        The most recent data is copied from th

  • My Question (Score:5, Insightful)

    by g1zmo (315166) on Monday July 28, 2008 @02:39PM (#24372751) Homepage

    I've asked before and I've never gotten a good answer. How can you patent the act of using something in exactly the manner in which it was designed to be used? A computer is designed to execute an arbitrary series of pre-defined instructions. That's it's only function. Software is just a list of such instructions. How is that patentable? It's not a new invention. It's not an extension of the original device. It's like patenting the act of driving a nail with a hammer, or letting fresh air into a room by opening a window.

    Say a particular calculator is patented, and I patent the act of entering 2+2 on it. Then someone else comes by and patents the act of entering (3+7)/2. Hey, it's an innovative new application of an existing device!

    • Re: (Score:3, Interesting)

      by Yaa 101 (664725)

      Software can be patented but only by the owner of the microcode that make up the instructions of the processor. Of course this is not smart if the owner of the microcode actually want this to be used by their clients, this is why Intel, AMD et al. never patented the instructions of the processor.

      The reason why others were able to patent specific sequences of the instructions have to do with corruption and actively attempts to stifle science by politicians. The patent system is seen by politicians as a good

    • Re:My Question (Score:4, Insightful)

      by j. andrew rogers (774820) on Monday July 28, 2008 @03:14PM (#24373257)

      Your reasoning can be trivially extended to exclude all patentable art. The fact that you built a new widget using tools designed for the purpose of building widgets does not make the widget unpatentable. Patents are mostly about new configurations; the tools used to create those configurations are irrelevant. Consider chemical process patents, which are just algorithms for efficiently producing molecular states, despite the fact that chemistry instructions that define the process are very general and used in millions of different applications.

      • Not Quite... (Score:4, Insightful)

        by maz2331 (1104901) on Monday July 28, 2008 @04:32PM (#24374529)

        The example of the widget's patentability ignores that not all configurations are "novel" and "non-obvoious".

        I like the standard that the Supreme Court put forth in the KSR case. In a nutshell, simply combining already known components and design elements and getting the expected result is not patentable. If, however, the result is not something anyone "skilled in the art" would expect, then it qualifies.

        So, say we design a chemical plant to produce gasoline from coal (which has been done many times before), but happen to run across a tweak to the materials in the pipes that causes the reactions to occur faster than theory predicts, we have a patentable configuration. The addition of a previously unknown catalyst is the patentable idea, not the already-known process.

        Unless the code to be patented does something unexpectedly beneficial, it falls into the same category of "obvious". Just solving a new question with a combination of already-known steps doesn't cut it here.

      • The fact that you built a new widget using tools designed for the purpose of building widgets does not make the widget unpatentable.

        Sure, but in that case what you're building is itself a novel device independent from the tools used to build it. In the case of software the "device" you're "building" is essentially a mental process (an algorithm) automated by a machine. The machine is already patented, and mental processes are not considered patentable. How, then, can the combination of a machine (used as i

      • by g1zmo (315166)

        It's not about using existing tools to create a new widget, it's about using existing tools. Software is not a new widget. It's not a new configuration of an existing widget either, since a general-purpose CPU is, by definition, designed to be configured in a finite number of ways using a pre-defined set of instructions to move from one state to another. Just because I input one particular permutation of instructions doesn't mean I've created a new widget.

        I can patent a birdhouse design, but I can't pate

      • by Nazlfrag (1035012)

        Chemicals themselves, like software or maths should not be patentable. Non-obvious, novel and unique synthesis methods perhaps but not the end products.

        • This is the same reasoning used for algorithm patents e.g. a "sort" in the abstract should not be patentable, but specific and novel mechanism for sorting should be. You are not patenting a sorted list, you are patenting the mechanism and process by which the sorted list was obtained. Many algorithm patents fall under this aegis. The MP3 algorithm patents do not prevent anyone from implementing audio compression, they merely control one mechanism of (not particularly good) audio compression. Algorithm p

    • Re: (Score:3, Interesting)

      by MobyDisk (75490)

      That's an interesting idea, if we can find where it ends. Surely patenting buttons a calculator is senseless. But software is completely open-ended.

      Where would the logic end? If I design a new latch out of 3 screws and a flexible piece of metal, can someone argue against my patent saying that this is exactly the intended use of a screwdriver and a hammer? Or perhaps we could extend this logic to copyrights since the intended use of a pen is to write?

    • "How can you patent the act of using something in exactly the manner in which it was designed to be used?"

      So anything created by a drill, wood crafting tools are not patentable as you are just using tools designed to be used in that manner.

      "Software is just a list of such instructions. How is that patentable? "

      Patents are just a list of instructions. If you can't describe your patent as a list of instructions it is not patentable.

      "Say a particular calculator is patented, and I patent the act of entering 2+2

      • by g1zmo (315166)

        "So anything created by a drill, wood crafting tools are not patentable as you are just using tools designed to be used in that manner."

        I can patent a particular birdhouse design, but I can't patent the method in which I hold the drill and pull the trigger to make a hole in a piece of wood. Just like I shouldn't be able to patent the method in which I tell a computer to perform a series of actions to produce a particular output.

        "No because that is a BS example."

        How is that BS? Computer software and calcul

    • by volpe (58112)

      Then no electronic device should be patentable. They all use basic electronic components (e.g. resistor, capacitor, transistor, inductor) in precisely the way they were designed to be used.

      I can probably make a similar argument about mechanical devices that rely on levers, gears, screws, etc.

      • by nschubach (922175)

        Sure. You can patent a lever design, but you can't patent the steps used to pull the lever. If you came up with a new CPU, you could most definitely patent it because it's using existing electronic devices to form a new machine. Just as you would use a lever to switch gears in your car.

        It's a hard sell though to tell someone that you patented the idea of using that processor and draw a pixel on the screen, using that lever to change gears. You can patent the design and implementation of that device, but

        • by volpe (58112)

          You're missing the point. How many patents are there out there for a new lever design? Zero. The innovation of producing a system that does something useful usually comes from combining basic machine elements (levers, screws (which are a form of lever), gears, etc) in new ways to achieve some result. In other words, the innovation and usefulness comes from *using* these basic components in new ways.

          It's the same with software. The innovation comes from combining basic machine elements (instructions) in new

  • by Anonymous Coward on Monday July 28, 2008 @02:47PM (#24372867)

    Let's say someone finds a new way to cut logs that let you build log cabins almost as easily but many times more sturdily and with better isolation. This would surely be patentable.

    Let's say someone invents a new file system, that lets you access files almost as quickly but with many times the protection against data corruption. Why would this not be patentable?

    My impression is that the case against software patents is really a fight by proxy against patents in general, recognising the growing role that software plays to make anything happen.

    • Re: (Score:2, Interesting)

      by shentino (1139071)

      I wouldn't be all that averse to patents if it weren't for all the damn loopholes that big fat corporations have lobbied for.

      Perhaps this is the side effect of big corporates pressing their luck a little too hard and making it pop, springing a massive leak of backlash.

      Sorta like annoying someone enough that they finally snap, lose their temper, and let you have it.

      • Re: (Score:3, Interesting)

        Or perhaps it is a problem that we have politicians that are easily bribeable. Sure corporations should be to blame for initiating the bribery, but the other side of the equation, those who accept the bribes, are just as guilty, if not even more so.

        I think the only way to get the patent system perfect (or any other endeavor that man engages in to bring order to society) is to either have robots rule us (*insert memes here*), or make it profitable for the politicians to not accept sums of money (or campai
        • by MrKaos (858439)

          or make it profitable for the politicians to not accept sums of money (or campaign donations) to make loopholes

          Herein lies the problem with all our "systems". It's everywhere, and is the linchpin stopping our society from moving forward.

          A tall order.

          indeed.

    • Re: (Score:3, Interesting)

      by pnewhook (788591)

      Because in the first case, the patentable object is an actual thing that does something useful. Software on it's own as a separate entity is not useful as it does not do anything. It needs hardware to actually function and be useful. If it's not useful, it doesn't pass the requirements to be patentable.

      If you want to patent say a new harddrive with software file system that allows fast system access, then as a physical unit the entire thing is patentable, and the patent item just happens to have softwar

      • Re: (Score:2, Interesting)

        by ZenDragon (1205104)
        For the most part, I agree. However, this is the realm for a copyright not a patent. Just because your software does a particular thing shouldn't prevent development of similar software simply by the fact that it does the same thing. Its like patenting the process of driving. You can patent a particular technology used in driving, but not the act of driving itself, so to speak. Maybe that was a bad analogy but any reasonable person would get the point.
        • by pnewhook (788591)

          I agree. I don't believe software patents should exist at all.

          In fact patents in general are a bad idea and serve only to stifle innovation.

    • Let's say someone invents a new file system, that lets you access files almost as quickly but with many times the protection against data corruption. Why would this not be patentable?

      For precisely the same reason that Newton's method for finding roots isn't patentable, even though it's clearly better and faster than just guessing around.

    • by Trojan35 (910785)

      I think it's the threshold of "invention".

      Is a new file system a real invention? Yes, probably. What about patenting adding a 4-letter extension to file names instead of a 3-letter one? Probably not.

      I think everyone disagrees where the line should be drawn, which is why people are frustrated to the point of just wanting to throw it all out the window.

    • I think the real problem is that there are underlying issues with the patent process that people are abusing.

      Software patents are a good thing. What is bad is that some of the BS software patents that get in. The main failing points that I have seen are.

      - BS obvious patents (obvious after the fact is patentable, but these are before).
      - Prior art out the wazoo but hidden.
      - Resubmitting same patent multiple times with slight changes (seriously! you can see them in google if you look hard enough)
      - Submitting t

    • My impression is that the case against software patents is really a fight by proxy against patents in general, recognising the growing role that software plays to make anything happen.

      There are a few differences:

      • Software has approximately zero manufacturing cost and production ramp-up time. You don't need protection for while you get factories up to speed or shop around for capital.
      • Software is protected by copyright. The mechanism of a log cutter isn't.
      • Some software (especially protocols/file formats) derives nearly all of its value from network effects. This greatly amplifies the power of the patent holder, I'd say beyond what is reasonable. (This could also apply to certain physical
    • Re: (Score:3, Insightful)

      by argent (18001)

      Let's say someone finds a new way to cut logs that let you build log cabins almost as easily but many times more sturdily and with better isolation. This would surely be patentable.

      I assume you mean "better insulation". How much do you think it would cost to research such a process to the point where it was patentable? You have to actually cut logs and fit them together... even if you prototype the design in Second Life you're going to have to build it to tell if it actually works.

      Let's try another example:

      • Re: (Score:2, Interesting)

        by bornwaysouth (1138751)
        I think it impractical to define hard and easy. In hindsight, matters are often easy. (Eg. Compare commentators after the race with those before.)

        I do think that inventors should be rewarded, as should those who support them.

        The following idea is not new.

        Dump the patent concept. Replace it with a 5% technology tax.

        A maximum of 1% of the tax may be used to administer the tax. The rest is to be returned to inventors, and to those making the inventions available, and the consequences of using them. So you can
        • by argent (18001)

          I do think that inventors should be rewarded, as should those who support them.

          The purpose of the patent system is not "rewarding the inventors".

          The purpose of the patent system is to encourage research and development. Rewarding the inventors is the method, not the goal.

          Increasing the cost of goods and services 5% doesn't encourage R&D, it reduces the potential profit from inventions by 5%, or reduces the potential market by... anything from 0% to 100%, depending on the marginal benefit and potential m

        • Seems like the free market already does what you want the reward system to do for inventions: rewards financially those inventions that society finds useful.

          So basically you want to replace the infinitely flexible, highly responsive, cellular automata reward-issuer that is the free market with the timely, superior wisdom of a government bureaucracy??

  • by dougmc (70836) <dougmc+slashdot@frenzied.us> on Monday July 28, 2008 @02:52PM (#24372929) Homepage

    everyone seemed to agree that the algorithm was patentable

    That's an odd thing to agree upon, because algorithms are not patentable [umd.edu] (search for `algorithm')

    But methods are. I forget where I read this, but the difference was explained something like this --

    Bob: So, algorithms are not patentable and methods are.
    Lawyer: Right.
    Bob: But what's the difference between an algorithm and a method? Aren't they pretty much the same thing?
    Lawyer: Listen carefully ... algorithms are not patentable, but methods are ...
    Bob: ?

    • Re: (Score:2, Interesting)

      by jmalicki (1764)
      That webpage may state that algorithms are not patentable, but our courts disagree. See, for example, [findlaw.com] [findlaw.com]:

      "The court's analysis did not stop there, however. The Court further stated that mathematical algorithms were not a type of subject matter expressly prohibited by  101; rather, unpatentable types of mathematical algorithms represent laws of nature, natural phenomena and abstract ideas. The proper test for determining whether a claim is unpatentable, the court said, is "whether the clai

      • by dougmc (70836)
        Better reference, from Wikipedia on Algorithm [wikipedia.org] --

        Legal issues

        See also: Software patents for a general overview of the patentability of software, including computer-implemented algorithms.

        Algorithms, by themselves, are not usually patentable. In the United States, a claim consisting solely of simple manipulations of abstract concepts, numbers, or signals do not constitute "processes" (USPTO 2006) and hence algorithms are not patentable (as in Gottschalk v. Benson). However, practical applications of algo

      • The proper test for determining whether a claim is unpatentable, the court said, is "whether the claimed subject matter as a whole is a disembodied mathematical concept

        So, basically, up to the whim of the patent office. There is nothing (that government can recognize, at least) that is not the result of natural laws, or that is not a natural phenomenon. Humans obey the naturalistic laws of the universe, as do the tools we make. It merely falls to the patent office and courts to arbitrarily put these natura

  • by j. andrew rogers (774820) on Monday July 28, 2008 @03:03PM (#24373105)

    The real issue, which most people avoid addressing, is that there is no practical distinction between software patents, chemical process patents, or machinery patents as a necessary consequence of basic theory. The reason this has become an issue at all is because there is increasingly little distinction in practice as well. Consequently, any dividing line is going to be arbitrary and capricious. Note that there is a similar emerging problem with copyright law, which is also premised on a false model of the universe that is starting to become obvious in practice. Yet few people are suggesting we solve this problem by rectifying the law with reality, instead opting to promote an alternative fantasy model of the nature of the universe that will ultimately break when it intersects with reality.

    As every computer geek should know, there is no theoretical distinction between the machine, the program, and the data. At one time there was a practical distinction, but those lines have been blurring for many decades now. Any solution that pretends like these are theoretically distinct classes of thing solves nothing, as the cause of this problem was pretending a theoretical distinction exists where none does in the first place.

    • The real issue, which most people avoid addressing, is that there is no practical distinction between software patents, chemical process patents, or machinery patents as a necessary consequence of basic theory.... As every computer geek should know, there is no theoretical distinction between the machine, the program, and the data.

      There is a practical distinction, though. Sure, in the context of a running program, machine, program and data are all different aspects of the same unit. In the context of a pat

      • What we're left with is an algorithm -- not a method of production, as in a chemical process patent, but a pure mental process -- automated by means of a general-purpose computer. How does an existing device, used as designed, plus an unpatentable mental process possibly qualify for a patent?

        Given a general-purpose robot, everything can be reduced to "a pure mental process -- automated by means of a general-purpose computer". So how are software patents any different from any other kind of patent?

        • Given a general-purpose robot, everything can be reduced to "a pure mental process -- automated by means of a general-purpose computer".

          That's not true. I even pointed out the different between mental processes and chemical processes, but to elaborate: mental processes deal with abstract concepts; any physical changes, e.g. electricity running through circuits, are purely secondary effects valued only to the extent that they represent the abstract concepts. The numbers and/or symbols they represent are the

          • The USPTO already has a policy of rejecting applications involving only abstract concepts; this distinction already exists, it just isn't always enforced. Why should the same process, still involving only abstract concepts but "with a computer!!!", be any different?

            Because AIUI it tends to be "on a computer, with an output", so it does lead to some specific change in the physical world.

            • But the point is to communicate information, which is abstract. The physical changes, as I said, are secondary, having no value beyond that of the abstract concepts they represent. Mental processes often involve physical changes -- it would be hard to imagine one that didn't involve at least neurons firing in the brain, and the creation of patterns of graphite on paper is also very common -- but these changes are not the purpose of the process.

              In the same way the purpose of the algorithm covered by a softwa

  • by hellwig (1325869) on Monday July 28, 2008 @03:05PM (#24373117)
    The problem I see with software patents is that people are patenting the wrong ends of their ideas (they're putting their makeup on their asses in other words).

    Take for example Amazon's one-click checkout. The idea of a one-click checkout should not be patentable. Anyone number of people should be able to accept a single click to check-out, what should be patented is the system behind the checkout. The mechanism for tying in the user's login, prioritizing recently used shipping addresses and payment methods, etc... You need to patent the process or the invention, not an ethereal idea.

    If I invent Widget A that performs task A, and am awarded patent "Widget A for performing Task A", and someone realized widget A will also perform task B without any modifications, they can't patent "Widget A for peforming task B", because I still own the patent for Widget A, which is all that really matters. I own the exclusive rights for Widget A, no one else can reproduce Widget A regardless of what they want use it for. Amazon didn't invent one-clicking (didn't Microsoft patent that recently?), so they can't say no one else can use one-clicking for checking-out.

    It's similar to the patent that the adult-entertainment (read: porno) industry has been fighting for years. Some company patented the idea that videos could be downloaded from the internet. Problem is, since that company did not create the internet nor the http protocol nor the first web-browser, they didn't actually create anything that had to do with the content their patent covered. Improving upon an invention means changing the invention, not mentioning something else the invention could be used for. That's the problem with software patents. People are patenting what existing technology can do, but if they don't own the existing technology, they can't tell other people they can't use it for other things.
    • Anyone number of people should be able to accept a single click to check-out, what should be patented is the system behind the checkout. The mechanism for tying in the user's login, prioritizing recently used shipping addresses and payment methods, etc... You need to patent the process or the invention, not an ethereal idea.

      This is what copyright is for.

  • by Anik315 (585913) <anik@alphaco r . n et> on Monday July 28, 2008 @04:09PM (#24374153)

    I agree with scaling back of software patents with certain reservations. I don't think you should be able to patent abstract concepts such as formulas or even general purpose application software, but you should to make patent claims on certain kinds of software so long as the scope is narrow and there are specific hardware and software specifications.

    Software that nonsuperflously extends the basic functionality of a particular device beyond what it was designed to do should be patentable. The best example of this is custom device drivers and but other novel software extensions might also apply.

    Furthermore internal network architectures should be patentable. If you have a network that you own and operate, and you have a protocol that you use for that network, you should be able to patent your protocols so that third parties can't operate on your network by reverse engineering your protocols.

How often I found where I should be going only by setting out for somewhere else. -- R. Buckminster Fuller

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