Federal Circuit Appeals Court Limits Business-Method Patents 73
Zordak writes "The Court of Appeals for the Federal Circuit has just issued its much-anticipated opinion in In Re Bilski [PDF]. This was a re-visit of the State Street issue of what constitutes patentable subject matter (including whether software and business methods are patentable). In summary, the court has affirmed and strengthened the 'machine-or-transformation' test, upholding the patent office's rejection of claims on a method for hedging risk in the field of commodities trading. Although the court refused to exclude software patents categorically, it is likely that the reasoning of this decision will be used to reject many software patents (note that some of the dissenting judges would have completely overturned State Street and tossed out all software and business method patents). Although not as sweeping as some had hoped for, it is certain that this decision, along with the Supreme Court's KSR decision last year, will lay a difficult mine field for those who want to patent software and business methods."
Re:Patent Office (Score:3, Insightful)
Re:Champagne bottles popping at Groklaw (Score:3, Insightful)
It's important to pick the right battles, that's for sure-- but this one already has years, and lots of money spent on it. Maybe it's not the right time for them to pursue it, we'll agree, but there's a lot invested here-- including those patents that summarily become invalidated should it be tested again. Only SCOTUS has the final say beyond a new law-- that's the thing to fear most. Big guns will cry in a bad economy, and get sympathetic ears. That frightens the hell out of me.
Re: I'm a Democrat .. (Score:5, Insightful)
$10 he's a free-loader .. give a man $700 billion he's a captain of industry ...
Those two are not mutual exclusive...
Re:To patent something... (Score:2, Insightful)
"but the substance needs to be there and in the right form for approval"
Franz Kafka tried to sue you for infringement of his humor.
Re:Champagne bottles popping at Groklaw (Score:4, Insightful)
We agree on 35 USC 101.
Then there's:The Congress shall have power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
And there's the perversion in IP law that SCOTUS might have to deal with. That's what I fear: new legislation, and the IP battle of titans to get software patents more deeply entrenched, or other business 'theory' concepts established in any way.
Given the course of events.... (Score:3, Insightful)
...it seems the patent office SHOULD have rejected the claim for "a method to hedging risk in the field of commodities trading" because it was non-useful.
Re:A Poor Piece of Jurisprudence (Score:3, Insightful)
I just finished reading the ruling, and I just was about to post many of the same points you just did. I completely agree with your analysis of this victory-for-confusion ruling. It's amusing to be in such complete agreement on the analysis, and be so diametrically opposed with your "I would also call into question the requirement for a physical tie-in of any kind..." followup.
The Supreme Court RULE, repeatedly stated and reaffirmed by the Supreme Court and repeated and reaffirmed in this ruling, is "Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines".
Transformation and reduction of an article to a different state or thing is a physical transformation of a physical article.
This ruling was self contradictory when it arbitrarily cited a purely mathematical "transformation" of purely mathematical data as an example of patentable process.
Of course, I would also call into question the requirement for a physical tie-in of any kind. So long as the business method or software patent is limited to a specific, useful application (and is new, nonobvious, etc), I see no reason why we shouldn't encourage the development of such inventions.
A 100 digit number may be novel and non-obvious and useful for some specific application. I *do* see reason why we should not "encourage the development of such inventions". A number is not an invention. Math is not an invention. The Supreme Court has stated that any algorithm "is treated as though it were a familiar part of the prior art" for patent purposes. Math is not a patentable "invention". An information algorithm is not a patentable "invention". All software is pure algorithm. Software is nothing but a stylized way of writing math. Any possible software is in fact a pure math function taking in one set of numbers, mathematically calculating on those numbers, and returning a set of answer numbers. Any possible software must be treated as though it were a familiar part of the prior art for patent purposes, by the Supreme Court's ruling. And the Supreme Court also explicitly warned that insignificant post-solution activity will not transform an unpatentable principle into a patentable process".
The transformation of information is a mathematical process. You can't patent math.
Any software can be (slowly) "run" entirely mentally. In fact is it a standard part of debugging and analysis for programmers to "run" software in their head, to follow and check exactly what it is doing by carrying it out yourself entirely mentally. It is ludicrous to suggest that some sequence of thoughts could be a patent violation. That thinking certain thoughts could be thought-crime. Absurd to suggest that mentally preforming some "information process" could be patentable. And there is absolutely nothing non-obvious about using a old ordinary computer simply to speed up that information processing. A computer was once new and patentable, but using a computer for it's obvious and intended purpose of speeding up generic non-patentable math is not patentable.
If you have some new non-obvious physical device you can get a patent for that object. If you some new non-obvious physical process for physically transforming a physical article to a different state or thing, then you can get a process patent on the physical act of preforming that physical transformation.
I'm a programmer. I am protected by copyright. Extending patents to cover math is entirely broken. As a programmer I neither want not need broken double-coverage.
The Supreme Court laid out the rule, process patents are for the transformation of articles. Articles are physical objects. That means physical transformation processes.
So, from both sides of the debate we agree that this ruling is a mes. It raises more questions than it answers, and where it does answer questions those answers are ambiguous and contradictory.
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Re:Fund the US Patent office independently (Score:3, Insightful)