Software Patent Sanity on the Way? 157
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."
Keep up the pressure? (Score:2, Insightful)
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 :-)
Software is not of patentable subject matter.... (Score:4, Insightful)
.... 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.
Duffy as Troll (Score:5, Insightful)
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.
Re:From the US Government? (Score:3, Insightful)
CEOs are citizens too...
My Question (Score:5, Insightful)
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:From the US Government? (Score:5, Insightful)
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"
What separates software patents from others? (Score:4, Insightful)
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:USPTO doesn't make legislation (Score:3, Insightful)
Odd. I was under the impression that the USPTO had some degree of control over the USPTO.
Re:My Question (Score:4, Insightful)
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.
Re:From the US Government? (Score:5, Insightful)
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.
Not Quite... (Score:4, Insightful)
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.
Re:What separates software patents from others? (Score:3, Insightful)
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: Let's say someone patents an idea (putting adhesive strips on a piece of soft plastic to hold it against a curved monitor screen on a fish-finder to protect it), then later sees someone using van-der-waal forces to hold a flat piece of soft plastic against a flat touch screen, and files a modified patent that eliminates all the claims of his original patent (because the first few claims made a big point of the difficulty of attaching he plastic to the curved screen, and the use of adhesive strips) and replaces them with a patent for this handheld screen protector, then starts going after people who had been making these things long before he filed his amended patent?
The thing about software patents is that most of them are more like the second case than the first. They're overly broad, are based on simple and obvious ideas, and are frequently re-interpreted to apply to problems that nobody had even thought of when the original patent was filed.
If software patents were restricted to completed systems with comparable levels of research and development costs as your examples, I suspect there would be a good deal fewer objections to software patents. Some people might have the kind of hidden agenda you're talking about, but most people wouldn't care. The problem is that they're not, and most of them seem to be about things that are routinely implemented hundreds of times a day by people who have no idea that they're creating a "patentable invention".
I don't know how to come up with rules that would allow your "hard problems" patents without leaving the floodgates open. I'm not a lawyer. I don't play one on TV.
You got any ideas?
Re:Software is not of patentable subject matter... (Score:3, Insightful)
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.
Re:Think of the Patent Attorneys! (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.
Re:From the US Government? (Score:5, Insightful)
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.