An anonymous reader writes "The landmark ruling of a few months ago that limited patents to inventions which include a machine or which transform physical matter has been appealed up to the Supreme Court. 'On the one side of this controversy... are those... who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods. On the other side are consumer advocacy groups and free-market devotees who worry that patent monopolies could tie up methods of creative thought processes, including teaching, judging, creative writing, making medical judgments, or picking juries (some current, real examples of claims).' The Bilski decision has already had an impact on potential software and biotech patents, in addition to the obvious limitations on business method patents. The petition (PDF) argues that the 'machine-or-transformation' test conflicts with the broad language of the patent statute and with congressional intent. It's entirely within the Supreme Court's discretion to take the case or not, but for now it looks like the issue is far from decided."
that would still let them sit on it for the time period allowed. What they need is for people to prove they can actually make or do whatever the patent is for, or at least have some sort of progress made. I could patent teleporters and ion cannons if I wanted and then just sit on it but I shouldn't be allowed to unless I show some sort of proof that I've already started building one of those devices or at least have research that led to a blueprint that I'm pretty sure will work.
I could patent teleporters and ion cannons if I wanted and then just sit on it but I shouldn't be allowed to unless I show some sort of proof that I've already started building one of those devices or at least have research that led to a blueprint that I'm pretty sure will work.
You already can't patent something unless you can show that you've either built it or have done sufficient research that would allow someone with proper manufacturing capabilities to build it. It's right there in the statute, 35 USC 112.
Well...fine. Just look for some of the ones on cold fusion then...
The only patents out there on cold fusion are either in the software industry, or are methods of fusing two materials while cold, such as paper and ink in a printing process.
Seriously, there are other legitimate criticisms of the patent office, but saying that it's possible to patent something you don't know how to make isn't one of them.
So if I invent a whole new replacement for the transistor that can reduce the scale in the same way the original transistor improved on the vacuum tube, but I have no capacity to fabricate it in any useful way, I should derive no benefit? Bit harsh, don't you think?
Personally, I think a lot of the problem is simply that we have no clear way to identify obvious patents. Patents on trivial things (like the patent on Elliptic Curve implementations that basically boils down to representing sign with a bit, rat
So if I invent a whole new replacement for the transistor that can reduce the scale in the same way the original transistor improved on the vacuum tube, but I have no capacity to fabricate it in any useful way, I should derive no benefit?
Ideas are cheap, it's all the details that have to be worked out during implementation that are the important part (plus the other important part, working out all the extra details that make mass production feasible).
So if I invent a whole new replacement for the transistor that can reduce the scale in the same way the original transistor improved on the vacuum tube, but I have no capacity to fabricate it in any useful way, I should derive no benefit? Bit harsh, don't you think?
I'm pretty sure you can patent it, even if you don't have the manufacturing center to produce it. Your patent would have to include exact instructions for someone that does have the manufacturing center, though. Of course, without any kind of production ability, I'd be surprised if you'd be able to figure out all of the details in the first place.
What you can't patent is "a transistor that is one tenth the size of normal transistors" without giving any details about how you would create such a device.
I'm not holding my breath but I'm hopeful that the Supreme Court will take this opportunity to sound the death knell for silly patent applications (and granted patents) like Bilski. As a bonus I hope they put the kibosh on software patents. I know it would make the lives of many software engineers much better and it would definitely kickstart innovation in the software industry.
Unfortunately (it's not what you meant, but...) I fear the SCOTUS right now--regardless of whether it is conservative or liberal--is most importantly pro-BUSINESS. And that means they may very well smack down Bilski HARD.
On the one side of this controversy... are those... who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods.
However R&D isn't cheap You could spend millions on R&D for a invention. If a Company cant have a guarantee that their R&D dollars will pay off then they won't have R&D. Patents insure that your invention give you the completive advantage for a time to make up the loss revenue in R&D.
Patents mean that you might not be legally allowed to use the results of your R&D without paying off someone else first. They also don't ensure that the results of your R&D will actually be useful or sellable. The only mean that others can't directly copy your results, but copying something physical takes long enough that you'd probably have a substantial first-mover advantage anyway.
So in a world with no Patents there will be much less R&D and less innovation. Or people will hold onto their new ideas much longer as not having a mechanism to properly sell their ideas along.
Patents have historically resulted in some area of technology being made "off limits" to further development for a couple decades, I believe that Against Intellectual Monopoly has a good account of this happening with the steam engine.
Patents mean that you might not be legally allowed to use the results of your R&D without paying off someone else first. They also don't ensure that the results of your R&D will actually be useful or sellable. The only mean that others can't directly copy your results, but copying something physical takes long enough that you'd probably have a substantial first-mover advantage anyway.
To provide a vague but true example, I recently worked for a startup that developed a product independently for something that was fairly obvious (applying existing technology to a different industry), and during a patent search it was discovered that to bring their product to market would violate several patents (all of them software).
After trying to re-design the product to steer clear of patent issues, the product never achieved its potential before the money ran out. Had we taken the direct route, we would have been done and sold a million units by now.
The problem with process and method patents is that they patent the goal rather than how the goal was achieved. With a typical mechanical patent, you first state your goal and then patent the 'way' to achieve the goal. If someone wants to achieve the same goal they can, so long as they use a different 'way' to get there. A process patent frequently focuses on the goal rather than the way.
For example, I should be able to implement a way of creating a PDF compatible file without violating any patents... assuming I used different code to achive the same result. This being the case, there is little reason to patent software, as it's trivial to change code and arrive at the same result.
Or, say I want to encode an MPEG compliant file, so long as I don't use the same code as someone else, I should be able to create my own implementation without being in violation of any patents or copyrights.
Patents have historically resulted in some area of technology being made "off limits" to further development for a couple decades, I believe that Against Intellectual Monopoly has a good account of this happening with the steam engine.
Best example is probably the Selden patent [wikipedia.org] on the gasoline-powered automobile. In defending the patent, they tried to keep Ford out of the market. Ford won, and the rest as they say is history. If Ford had lost, a lot of his inventions we now take for granted (assembly line, interchangeable parts, etc.) wouldn't have been invented until much later.
In this particular case, Ford won the patent suit on the grounds that the specific implementation covered by the patent (a Brayton engine) was not the implementation used by Ford (an Otto engine). IMHO that's how the patent system should work. You should not be able to patent a general concept (e.g. a gasoline-powered automobile). You should only be able to patent a specific implementation. If someone else comes up with something that does the same thing but with a different implementation, it has to be allowed to compete with your invention so technology can progress. Otherwise you get patent trolls holding entire segments of industry hostage to their royalties and stunting technological progress.
Who said anything about patents being bad? The words "information" and "business process" do not jive with what the patent system was intended to be used for. Nor do they happen to cost millions or billions in R&D.
The messed up part about all of this is that it's all caused by an early misinterpretation of technology by courts. There was a case that came up where a patent was filed for a device (a rubberizer, IIRC?) that used computer control to accomplish its innovative task. The judge correctly assessed that the invention as a whole was innovative and granted patent protection.
Unfortunately, the court cases that followed cited that case as precedent for software patents. The judges didn't understand the difference and started granting exceptions carte blanche. Thus we ended up in the screwed up system we have now with no oversight over what is a valid patent and what is not.
Even more messed up is that patent law is okay. It says that patents should be non-obvious, it says that they should have no prior art, etc., etc., etc. Yet technology patents regularly get shoved through the system without any of these checks or balances applied.
The bozos who are defending this messed up violation of the law as legit are nothing more than charlatans who couldn't make an honest living if they tried. Last I checked, many of them even helped tank the world economy in recent news.
Software patents are extremely important to certain businesses, most of all the telecoms industry, which manages to keep prices rising in an area where their half-life should be 12-18 months.
If there were no software patents, it would be much harder to maintain the telecoms cartels, the high prices, and the jobs and profits they generate. So for many people, software patents are very, very useful.
Of course the overall effect is to slow down progress in communications, keep costs artificially high, penalize emerging industries, and punish the competitiveness of regions like the USA and Europe, which allow the cartels to continue.
However, the times are changing and I've written [ipocracy.com] about why the growing power of the Internet as a non-political force in politics will cause the end of software patents.
It's worth noting that software patents will also be reviewed in Europe by the European Patent Office's Extended Board of Appeal (EBA), the closest thing we have to SCOTUS with respect to patents in Europe. Sure, the EPO is a fiefdom of the patent industry and EBA its chief priesthood, but reexamining the cosy arrangements that allowed software patents to exist so far is very significant.
I think we are seeing the swing of the pendulum back towards sanity and the understanding that when it comes to the digital economy, any barrier to trade and competition - and the essence of a patent is to prevent competition - is harmful.
If there were no software patents, it would be much harder to maintain the telecoms cartels, the high prices, and the jobs and profits they generate. So for many people, software patents are very, very useful.
The telecom cartels primarily exist because of the massive infrastructure requirements to be a 'real' telecom. Its very little to do with software patents.
Actually, you might be slightly wrong - AT&T had all the patents and used them to be huge infrastructure in a monopolistic way. The break up of AT&T helped, but you still needed a lot of infrastructure to compete with them. It was patents that built the infrastructure barrier to entry that you speak of.
This "infrastructure is expensive" argument is 20 years out of date. Newsflash: no-one puts down cables any more unless they're for IP. There are many, many ways to build cheap and extremely competitive telecoms networks that would end the cartels overnight. They don't mostly happen because patents block innovation wherever it is a threat. I remind you that telecoms has become a software industry, top to bottom, and every "invention" of that industry is heavily protected by software patents.
Spectrum "regulation" are just the side effect of a powerful cartel that has friends in government - a good way to raise the cost to unbearable levels for newcomers and tax the consumer. Again, it's patents that prevent more efficient use of spectrum and those "expensive" lines you talk about.
It is all about keeping out competitors that would disrupt the cozy price-fixed market.
Try to start a VoIP telecoms provider, and see what happens. Read about Vonage, if you forget your recent history. Now tell me again, seriously, that telecoms cartels have "nothing to do with patents".
Patents are the core of the telecoms stack and the reason your mobile phone bill rises year on year.
Yes, to truly re-create competition in the telecoms industry, we need a powerful competition authority, and we need much better policies for spectrum use, but most of all, we need the end of software patents.
I think he talking about things like VOIP. In theory you could, for no additional cost over what you already pay for high speed Internet do all of your telephony over your computer, or use a system like Vonage to create a "phone" system that piggie backs off of your Internet. The problem is that patents prevent or limit this kind of thing. Vonage, IIRC, paid a fairly large settlement to Verizon for patent infringement and now has to pay royalties to operate. This is almost certainly increasing their ove
The problem with Vonage - and all current VOIP implementations - is they fail the basic requirements that the wired telecom providers are required to support. Things like 48 hours without electric power. 911 that actually works with emergency services. And literally a hundred other requirements, all things that are really good for people that need basic voice connectivity.
Sure, VOIP implementations are cheap. But in comparison to what? I can use Yahoo Messenger for free. How is Vonage cheaper than that? Neither Vonage or Yahoo are paying for the infrastructure to connect me to the network. The $30-a-month POTS service is doing exactly that. What would Vonage charge if they had to pay to supply their customers with network connectivity?
Sorry, but this has a lot more to do with tariffs and regulations than patents. Sadly, it takes some serious wakeup calls before people understand the difference between the POTS network in the US and "phone service" supplied by the likes of Vonage. A 24 hour power outage might be a good start. Having a 2 year old dial 911 and not be able to recite the address might be another.
The decision is very risky as the quality of the decision of the Circuit Court was very high.
Not only that, but it wasn't just any court - it was the Court of Appeals for the Federal Circuit, i.e., people who actually like patents in general. If even they don't like software and business method patents, it seems pretty unlikely that the Supreme Court is going to change the decision.
People seldom consider the implications of abolishing software patents.
Sure, there are a lot of good arguments against granting artificial monopolies on computer software--and many of them ARE good arguments. However, categorically denying patent protection to software creates some logical difficulties.
Most computer aficionados are familiar with the idea that software and hardware are logically equivalent. We CAN build specialized hardware to do what we would have our software do.
It would seem a bit anomalous, therefore, to allow a patent on specialized hardware that embodies precisely the same inventive character as its patent ineligible software counterpart.
So, in my opinion, the real issue we are seeking to resolve here is more subtle and obscure than we are admitting. Certainly, affording computer software a unique status as patent ineligible subject matter is not the most complete solution.
I think that's what the court was getting at in Bilski. They were searching for some kind of logical test rather than an unexplainable, static, and inflexible prohibition on a certain class of invention.
I'm not saying the court was right--I'm trying to shed a little more light on the playing field.
It would seem a bit anomalous, therefore, to allow a patent on specialized hardware that embodies precisely the same inventive character as its patent ineligible software counterpart.
Actually, from my point of view not at all. I think this may be exactly where the line should be drawn. There are very clear differences between a hardware embodiment and a software one. The most important one is that a software one is much more end user modifiable. The hardware is a fixed product which can't be modified.
So, the thing we really want to come out of this is a further limitation of software and business method patenting than the lower court case arrived at. But this is going to be a really big fight, with deep pockets on both sides. And it's going to be years before there's an outcome, if they take it.
If the Supreme Court doesn't accept it, I suppose we have a chance to bring yet another case and try for more limitation of software patenting.
What really bothers me is that our only viable path to do this right now is the courts. We've not been able to establish a legislative campaign.
What really bothers me is that our only viable path to do this right now is the courts. We've not been able to establish a legislative campaign.
I would normally be quite bothered by trying to get my way using the courts, when the legislature isn't in agreement. It seems like judicial activism of a sort.
But I'm coming to the conclusion that the House and Senate are basically ruled by external money on issues like this. That makes judicial "activism", especially in a case like this, a lot more palatable. I
Political activism can work. It did in Europe. Campaign contributions are all very well, but if you want to be re-elected, you do need to give your voters at least some of what they want.
Software only became patentable after Microsoft vs Stac
No. This is all garbled.
It was our friends at IBM that brought the case which made software patentable. Microsoft only started having a significant patent portfolio after Stac sued them.
Well, if the Supreme Court doesn't take it, Bilski is upheld, which is a good start.
If the Supreme Court does take it, and upholds it, it's a better start.
And if SCOTUS does hear it, it won't drag out for years. They move through cases very fast compared to other courts out there. You file briefs and you get 30 minutes to present your case. That's basically it.
(disclaimer: there can be exceptions, but I honestly wouldn't expect this to take longer than a month even at the extreme)
There are no ways in which software patents can help anyone but patent lawyers. Since American patents are only binding in America, they put domestic companies at a competitive disadvantage with the rest of the world. Anyone can open an American office and start filing patents to be used against us, but good luck to an American company that wants to file patents in China to protect their claims.
Anyone can open an American office and start filing patents to be used against us, but good luck to an American company that wants to file patents in China to protect their claims.
Yeah, if only there were some sort of Cooperative Treaty about Patents that would grant substantively similar rights in all the signing countries. They should probably hold a Convention in Paris to discuss it, and maybe set up some sort of Bureau in Switzerland to be an International registry.
... atents can help anyone but patent lawyers. Since American patents are only binding in America, they put domestic companies at a competitive disadvantage with the rest of the world....
I'm not sure that's right. Consider this sequence:
1. America allows software patents.
2. America leans on European countries to allow them, and eventually succeeds.
3. SCOTUS invalidates software patents as non-Constitutional.
4. To be compatible with EU, which now has software patents, US signs a treaty allowing software patents, which, being a treaty, I believe, carries same weight as other parts of our Constitution. Now whole world has software patents, just because the U.S. temporarily did in the beginning.
On the one side of this controversy... are those... who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods.
Yeah, because turning innovation into a minefield is a really good way to encourage it, as is connecting rewards to high speed paperwork-fu rather than marketplace superiority (or even novelty; see IIRC radio and steam engine, the "inventors" were those who first combined other people's ideas in a paperwork filing).
Many people seem to mistake "protecting innovation" with the business of licensing ideas... Meaning, one seems to mean that you actually developed something.. The other means you thought of something. Big difference...
IMHO, being able to patent parts of the human genome is stupid. You didn't INVENT anything. Now if you designed a replacement gene that does something new, sure you can have a patent on it. But that would have to exclude cures for things. Say you figured out the gene for color-blindness. Chances are you figured it out or at least verified it against the normal gene. No patent for you. But if you invented a gene that gave a person really great night vision, yeah I'd give you a patent for that.
But most patents on "creation" of genetic material are really derived from southern hemisphere based plants and animals. Knowing that, I sure wouldnt grant a patent on plundered genetic knowledge.
I specifically wrote a paper on this very topic. I refused to publish it due to, lets say, chilling effects. It's been downhill since Chakrabarty winning that supreme court judgment, and I expect "ownership" to go even lower. I could also cite cases of a Canadian Rapeseed farmewr who lost his farm due to Roundup Re
The answers below are how standard patent rulings would take place, not my decision or want.
1. What if you 'invented' it by looking at a creature with really great night vision, and then copy and pasted it over?
Regardless. If you made it, its an invention. If you found it, a discovery. Both are patentable.
2. What if someone was born with really great night vision, and you just copy and pasted it from them?
Yep. Look at the Ashkenazi Jew lady who had expressions of breast cancer.. Now every Ashkenazi Jew who takes a BRCA-1 test pays a royalty. Non-Jews dont.
3. What if someone was born with really great night vision AFTER you patented it -- are they in violation of your patent?
Most likely. And the worst case: Patent companies have unproportionately large legal bases to enact lawsuits towards. If you are a peon, you will lose, either by 20+ year trial, or directly. Note that 17 years is length of patent.
4. What if the children of the people you modified with night vision inherit the gene? Do they owe royalties?
There was probably a contract that included offspring in the original document. They will likely owe royalties. If they do not pay, the company will probably try a copyright suit along with a patent suit, because you knowingly infringed on copyright. Since it's knowingly, fees are upwards 35000$-250000$. Thank the copyright system.
Except I hold the patent for "Apparatus and method for targeting and destroying holders of overly broad BS patents with cruise missiles." I've also put in for "Apparatus and method for hitting holders of overly broad BS patents with flying shoes."
The Supreme Court has been generally narrowing the scope of patent law over the past few years. My guess is that they won't take the case, and if they do the odds are that they will uphold Bilski, or possibly narrow the scope of patentable material even further.
If you need a patent for your business method in order for it to be profitable, it's a failed process. The only practical used for business process patents is patent trolling.
It is said that the lonely eagle flies to the mountain peaks while the lowly ant crawls the ground, but cannot the soul of the ant soar as high as the eagle?
They would at best be put back in the position they would have been in had the USPTO refused their application in the first place. I don't think that means you get your application fee back. It certainly doesn't mean you get your patent attorney fees back, and that is by far the biggest part of the cost of applying for a patent.
What I'm interested in is the position where people have been paying royalties for a patent that is subsequently declared invalid.
What patent laws really need (Score:4, Interesting)
is a use or lose clause.
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Re:What patent laws really need (Score:5, Informative)
I could patent teleporters and ion cannons if I wanted and then just sit on it but I shouldn't be allowed to unless I show some sort of proof that I've already started building one of those devices or at least have research that led to a blueprint that I'm pretty sure will work.
You already can't patent something unless you can show that you've either built it or have done sufficient research that would allow someone with proper manufacturing capabilities to build it. It's right there in the statute, 35 USC 112.
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Bah, apparently that one actually works.
Well...fine. Just look for some of the ones on cold fusion then...
The only patents out there on cold fusion are either in the software industry, or are methods of fusing two materials while cold, such as paper and ink in a printing process.
Seriously, there are other legitimate criticisms of the patent office, but saying that it's possible to patent something you don't know how to make isn't one of them.
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So if I invent a whole new replacement for the transistor that can reduce the scale in the same way the original transistor improved on the vacuum tube, but I have no capacity to fabricate it in any useful way, I should derive no benefit? Bit harsh, don't you think?
Personally, I think a lot of the problem is simply that we have no clear way to identify obvious patents. Patents on trivial things (like the patent on Elliptic Curve implementations that basically boils down to representing sign with a bit, rat
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So if I invent a whole new replacement for the transistor that can reduce the scale in the same way the original transistor improved on the vacuum tube, but I have no capacity to fabricate it in any useful way, I should derive no benefit?
Ideas are cheap, it's all the details that have to be worked out during implementation that are the important part (plus the other important part, working out all the extra details that make mass production feasible).
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So if I invent a whole new replacement for the transistor that can reduce the scale in the same way the original transistor improved on the vacuum tube, but I have no capacity to fabricate it in any useful way, I should derive no benefit? Bit harsh, don't you think?
I'm pretty sure you can patent it, even if you don't have the manufacturing center to produce it. Your patent would have to include exact instructions for someone that does have the manufacturing center, though. Of course, without any kind of production ability, I'd be surprised if you'd be able to figure out all of the details in the first place.
What you can't patent is "a transistor that is one tenth the size of normal transistors" without giving any details about how you would create such a device.
I hope the SCOTUS smacks it down HARD (Score:2, Interesting)
Re:I hope the SCOTUS smacks it down HARD (Score:5, Informative)
Correction: you want SCOTUS to uphold the Bilski ruling.
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Unfortunately (Score:2)
Riiiigghht (Score:5, Funny)
My bullshit detector just exploded.
Re:Riiiigghht (Score:5, Informative)
However R&D isn't cheap You could spend millions on R&D for a invention. If a Company cant have a guarantee that their R&D dollars will pay off then they won't have R&D. Patents insure that your invention give you the completive advantage for a time to make up the loss revenue in R&D.
Patents mean that you might not be legally allowed to use the results of your R&D without paying off someone else first. They also don't ensure that the results of your R&D will actually be useful or sellable. The only mean that others can't directly copy your results, but copying something physical takes long enough that you'd probably have a substantial first-mover advantage anyway.
So in a world with no Patents there will be much less R&D and less innovation. Or people will hold onto their new ideas much longer as not having a mechanism to properly sell their ideas along.
Patents have historically resulted in some area of technology being made "off limits" to further development for a couple decades, I believe that Against Intellectual Monopoly has a good account of this happening with the steam engine.
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Re:Riiiigghht (Score:5, Interesting)
Patents mean that you might not be legally allowed to use the results of your R&D without paying off someone else first. They also don't ensure that the results of your R&D will actually be useful or sellable. The only mean that others can't directly copy your results, but copying something physical takes long enough that you'd probably have a substantial first-mover advantage anyway.
To provide a vague but true example, I recently worked for a startup that developed a product independently for something that was fairly obvious (applying existing technology to a different industry), and during a patent search it was discovered that to bring their product to market would violate several patents (all of them software).
After trying to re-design the product to steer clear of patent issues, the product never achieved its potential before the money ran out. Had we taken the direct route, we would have been done and sold a million units by now.
The problem with process and method patents is that they patent the goal rather than how the goal was achieved. With a typical mechanical patent, you first state your goal and then patent the 'way' to achieve the goal. If someone wants to achieve the same goal they can, so long as they use a different 'way' to get there. A process patent frequently focuses on the goal rather than the way.
For example, I should be able to implement a way of creating a PDF compatible file without violating any patents... assuming I used different code to achive the same result. This being the case, there is little reason to patent software, as it's trivial to change code and arrive at the same result.
Or, say I want to encode an MPEG compliant file, so long as I don't use the same code as someone else, I should be able to create my own implementation without being in violation of any patents or copyrights.
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Re:Riiiigghht (Score:5, Informative)
Best example is probably the Selden patent [wikipedia.org] on the gasoline-powered automobile. In defending the patent, they tried to keep Ford out of the market. Ford won, and the rest as they say is history. If Ford had lost, a lot of his inventions we now take for granted (assembly line, interchangeable parts, etc.) wouldn't have been invented until much later.
In this particular case, Ford won the patent suit on the grounds that the specific implementation covered by the patent (a Brayton engine) was not the implementation used by Ford (an Otto engine). IMHO that's how the patent system should work. You should not be able to patent a general concept (e.g. a gasoline-powered automobile). You should only be able to patent a specific implementation. If someone else comes up with something that does the same thing but with a different implementation, it has to be allowed to compete with your invention so technology can progress. Otherwise you get patent trolls holding entire segments of industry hostage to their royalties and stunting technological progress.
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Re:Riiiigghht (Score:5, Insightful)
Who said anything about patents being bad? The words "information" and "business process" do not jive with what the patent system was intended to be used for. Nor do they happen to cost millions or billions in R&D.
The messed up part about all of this is that it's all caused by an early misinterpretation of technology by courts. There was a case that came up where a patent was filed for a device (a rubberizer, IIRC?) that used computer control to accomplish its innovative task. The judge correctly assessed that the invention as a whole was innovative and granted patent protection.
Unfortunately, the court cases that followed cited that case as precedent for software patents. The judges didn't understand the difference and started granting exceptions carte blanche. Thus we ended up in the screwed up system we have now with no oversight over what is a valid patent and what is not.
Even more messed up is that patent law is okay. It says that patents should be non-obvious, it says that they should have no prior art, etc., etc., etc. Yet technology patents regularly get shoved through the system without any of these checks or balances applied.
The bozos who are defending this messed up violation of the law as legit are nothing more than charlatans who couldn't make an honest living if they tried. Last I checked, many of them even helped tank the world economy in recent news.
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Bilski (Score:3, Insightful)
Software patents are useless. [stopsoftwarepatents.org] Period.
The decision is very risky as the quality of the decision of the Circuit Court was very high.
They will make Bilski fail again.
Software patents are *not* useless - just harmful (Score:5, Interesting)
Software patents are extremely important to certain businesses, most of all the telecoms industry, which manages to keep prices rising in an area where their half-life should be 12-18 months.
If there were no software patents, it would be much harder to maintain the telecoms cartels, the high prices, and the jobs and profits they generate. So for many people, software patents are very, very useful.
Of course the overall effect is to slow down progress in communications, keep costs artificially high, penalize emerging industries, and punish the competitiveness of regions like the USA and Europe, which allow the cartels to continue.
However, the times are changing and I've written [ipocracy.com] about why the growing power of the Internet as a non-political force in politics will cause the end of software patents.
It's worth noting that software patents will also be reviewed in Europe by the European Patent Office's Extended Board of Appeal (EBA), the closest thing we have to SCOTUS with respect to patents in Europe. Sure, the EPO is a fiefdom of the patent industry and EBA its chief priesthood, but reexamining the cosy arrangements that allowed software patents to exist so far is very significant.
I think we are seeing the swing of the pendulum back towards sanity and the understanding that when it comes to the digital economy, any barrier to trade and competition - and the essence of a patent is to prevent competition - is harmful.
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If there were no software patents, it would be much harder to maintain the telecoms cartels, the high prices, and the jobs and profits they generate. So for many people, software patents are very, very useful.
The telecom cartels primarily exist because of the massive infrastructure requirements to be a 'real' telecom. Its very little to do with software patents.
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Actually, you might be slightly wrong - AT&T had all the patents and used them to be huge infrastructure in a monopolistic way. The break up of AT&T helped, but you still needed a lot of infrastructure to compete with them. It was patents that built the infrastructure barrier to entry that you speak of.
Re:Software patents are *not* useless - just harmf (Score:5, Informative)
This "infrastructure is expensive" argument is 20 years out of date. Newsflash: no-one puts down cables any more unless they're for IP. There are many, many ways to build cheap and extremely competitive telecoms networks that would end the cartels overnight. They don't mostly happen because patents block innovation wherever it is a threat. I remind you that telecoms has become a software industry, top to bottom, and every "invention" of that industry is heavily protected by software patents.
Spectrum "regulation" are just the side effect of a powerful cartel that has friends in government - a good way to raise the cost to unbearable levels for newcomers and tax the consumer. Again, it's patents that prevent more efficient use of spectrum and those "expensive" lines you talk about.
It is all about keeping out competitors that would disrupt the cozy price-fixed market.
Try to start a VoIP telecoms provider, and see what happens. Read about Vonage, if you forget your recent history. Now tell me again, seriously, that telecoms cartels have "nothing to do with patents".
Patents are the core of the telecoms stack and the reason your mobile phone bill rises year on year.
Yes, to truly re-create competition in the telecoms industry, we need a powerful competition authority, and we need much better policies for spectrum use, but most of all, we need the end of software patents.
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Re: (Score:3, Interesting)
I think he talking about things like VOIP. In theory you could, for no additional cost over what you already pay for high speed Internet do all of your telephony over your computer, or use a system like Vonage to create a "phone" system that piggie backs off of your Internet. The problem is that patents prevent or limit this kind of thing. Vonage, IIRC, paid a fairly large settlement to Verizon for patent infringement and now has to pay royalties to operate. This is almost certainly increasing their ove
Re:Software patents are *not* useless - just harmf (Score:4, Insightful)
The problem with Vonage - and all current VOIP implementations - is they fail the basic requirements that the wired telecom providers are required to support. Things like 48 hours without electric power. 911 that actually works with emergency services. And literally a hundred other requirements, all things that are really good for people that need basic voice connectivity.
Sure, VOIP implementations are cheap. But in comparison to what? I can use Yahoo Messenger for free. How is Vonage cheaper than that? Neither Vonage or Yahoo are paying for the infrastructure to connect me to the network. The $30-a-month POTS service is doing exactly that. What would Vonage charge if they had to pay to supply their customers with network connectivity?
Sorry, but this has a lot more to do with tariffs and regulations than patents. Sadly, it takes some serious wakeup calls before people understand the difference between the POTS network in the US and "phone service" supplied by the likes of Vonage. A 24 hour power outage might be a good start. Having a 2 year old dial 911 and not be able to recite the address might be another.
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The decision is very risky as the quality of the decision of the Circuit Court was very high.
Not only that, but it wasn't just any court - it was the Court of Appeals for the Federal Circuit, i.e., people who actually like patents in general. If even they don't like software and business method patents, it seems pretty unlikely that the Supreme Court is going to change the decision.
Re:Bilski (Score:4, Insightful)
Sure, there are a lot of good arguments against granting artificial monopolies on computer software--and many of them ARE good arguments. However, categorically denying patent protection to software creates some logical difficulties.
Most computer aficionados are familiar with the idea that software and hardware are logically equivalent. We CAN build specialized hardware to do what we would have our software do.
It would seem a bit anomalous, therefore, to allow a patent on specialized hardware that embodies precisely the same inventive character as its patent ineligible software counterpart.
So, in my opinion, the real issue we are seeking to resolve here is more subtle and obscure than we are admitting. Certainly, affording computer software a unique status as patent ineligible subject matter is not the most complete solution.
I think that's what the court was getting at in Bilski. They were searching for some kind of logical test rather than an unexplainable, static, and inflexible prohibition on a certain class of invention.
I'm not saying the court was right--I'm trying to shed a little more light on the playing field.
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Actually, from my point of view not at all. I think this may be exactly where the line should be drawn. There are very clear differences between a hardware embodiment and a software one. The most important one is that a software one is much more end user modifiable. The hardware is a fixed product which can't be modified.
Oh Boy (Score:5, Insightful)
If the Supreme Court doesn't accept it, I suppose we have a chance to bring yet another case and try for more limitation of software patenting.
What really bothers me is that our only viable path to do this right now is the courts. We've not been able to establish a legislative campaign.
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I would normally be quite bothered by trying to get my way using the courts, when the legislature isn't in agreement. It seems like judicial activism of a sort.
But I'm coming to the conclusion that the House and Senate are basically ruled by external money on issues like this. That makes judicial "activism", especially in a case like this, a lot more palatable. I
Re: (Score:3, Interesting)
Software only became patentable after Microsoft vs Stac, so this could be seen as just reversing a previous bit of judicial activism.
Great point. OTOH, the Congress could have written software patents out of the law if they really wanted to. But no argument on your point.
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As indeed the European Parliament did.
Political activism can work. It did in Europe. Campaign contributions are all very well, but if you want to be re-elected, you do need to give your voters at least some of what they want.
Re:Oh Boy (Score:4, Informative)
No. This is all garbled.
It was our friends at IBM that brought the case which made software patentable. Microsoft only started having a significant patent portfolio after Stac sued them.
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Re:Oh Boy (Score:5, Informative)
Well, if the Supreme Court doesn't take it, Bilski is upheld, which is a good start.
If the Supreme Court does take it, and upholds it, it's a better start.
And if SCOTUS does hear it, it won't drag out for years. They move through cases very fast compared to other courts out there. You file briefs and you get 30 minutes to present your case. That's basically it.
(disclaimer: there can be exceptions, but I honestly wouldn't expect this to take longer than a month even at the extreme)
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PLEASE uphold it! (Score:5, Insightful)
There are no ways in which software patents can help anyone but patent lawyers. Since American patents are only binding in America, they put domestic companies at a competitive disadvantage with the rest of the world. Anyone can open an American office and start filing patents to be used against us, but good luck to an American company that wants to file patents in China to protect their claims.
Re:PLEASE uphold it! (Score:5, Insightful)
Anyone can open an American office and start filing patents to be used against us, but good luck to an American company that wants to file patents in China to protect their claims.
Yeah, if only there were some sort of Cooperative Treaty about Patents that would grant substantively similar rights in all the signing countries. They should probably hold a Convention in Paris to discuss it, and maybe set up some sort of Bureau in Switzerland to be an International registry.
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Yeah, if only there were some sort of Cooperative Treaty about Patents that would grant substantively similar rights in all the signing countries.
You mean like the Patent Cooperation Treaty? http://en.wikipedia.org/wiki/Patent_Cooperation_Treaty [wikipedia.org]
Re:PLEASE uphold it! (Score:5, Funny)
I claim:
1. A method of telling a joke containing sarcastic witticism, the method comprising:
providing an obvious allusion to factual events in a farcical manner;
delaying until a reader locates the reference material referred to by the obvious allusion; and
posting a message in the form of a patent claim, the message substituted for a standard "whoosh" post.
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Re:PLEASE uphold it! (Score:5, Interesting)
... atents can help anyone but patent lawyers. Since American patents are only binding in America, they put domestic companies at a competitive disadvantage with the rest of the world. ...
I'm not sure that's right. Consider this sequence:
1. America allows software patents.
2. America leans on European countries to allow them, and eventually succeeds.
3. SCOTUS invalidates software patents as non-Constitutional.
4. To be compatible with EU, which now has software patents, US signs a treaty allowing software patents, which, being a treaty, I believe, carries same weight as other parts of our Constitution. Now whole world has software patents, just because the U.S. temporarily did in the beginning.
5. ???
6. Profit!
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Re:PLEASE uphold it! (Score:4, Insightful)
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Um, yeah... (Score:2)
On the one side of this controversy... are those... who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods.
Yeah, because turning innovation into a minefield is a really good way to encourage it, as is connecting rewards to high speed paperwork-fu rather than marketplace superiority (or even novelty; see IIRC radio and steam engine, the "inventors" were those who first combined other people's ideas in a paperwork filing).
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Many people seem to mistake "protecting innovation" with the business of licensing ideas... Meaning, one seems to mean that you actually developed something.. The other means you thought of something. Big difference...
Kill off Human Genome Patents (Score:2, Insightful)
IMHO, being able to patent parts of the human genome is stupid. You didn't INVENT anything. Now if you designed a replacement gene that does something new, sure you can have a patent on it. But that would have to exclude cures for things. Say you figured out the gene for color-blindness. Chances are you figured it out or at least verified it against the normal gene. No patent for you. But if you invented a gene that gave a person really great night vision, yeah I'd give you a patent for that.
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But most patents on "creation" of genetic material are really derived from southern hemisphere based plants and animals. Knowing that, I sure wouldnt grant a patent on plundered genetic knowledge.
I specifically wrote a paper on this very topic. I refused to publish it due to, lets say, chilling effects. It's been downhill since Chakrabarty winning that supreme court judgment, and I expect "ownership" to go even lower. I could also cite cases of a Canadian Rapeseed farmewr who lost his farm due to Roundup Re
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But if you invented a gene that gave a person really great night vision, yeah I'd give you a patent for that.
What if you 'invented' it by looking at a creature with really great night vision, and then copy and pasted it over?
What if someone was born with really great night vision, and you just copy and pasted it from them?
What if someone was born with really great night vision AFTER you patented it -- are they in violation of your patent?
What if the children of the people you modified with night vision inhe
Re:Kill off Human Genome Patents (Score:4, Interesting)
The answers below are how standard patent rulings would take place, not my decision or want.
1. What if you 'invented' it by looking at a creature with really great night vision, and then copy and pasted it over?
Regardless. If you made it, its an invention. If you found it, a discovery. Both are patentable.
2. What if someone was born with really great night vision, and you just copy and pasted it from them?
Yep. Look at the Ashkenazi Jew lady who had expressions of breast cancer.. Now every Ashkenazi Jew who takes a BRCA-1 test pays a royalty. Non-Jews dont.
3. What if someone was born with really great night vision AFTER you patented it -- are they in violation of your patent?
Most likely. And the worst case: Patent companies have unproportionately large legal bases to enact lawsuits towards. If you are a peon, you will lose, either by 20+ year trial, or directly. Note that 17 years is length of patent.
4. What if the children of the people you modified with night vision inherit the gene? Do they owe royalties?
There was probably a contract that included offspring in the original document. They will likely owe royalties. If they do not pay, the company will probably try a copyright suit along with a patent suit, because you knowingly infringed on copyright. Since it's knowingly, fees are upwards 35000$-250000$. Thank the copyright system.
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Mwahahahaha!! (Score:2)
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Except I hold the patent for "Apparatus and method for targeting and destroying holders of overly broad BS patents with cruise missiles." I've also put in for "Apparatus and method for hitting holders of overly broad BS patents with flying shoes."
If the efficiency of the new business process (Score:2)
If the new business process isn't efficient enough to pay for it's development, then should it actually be used?
Waste of Time For Bilski Opponents (Score:3, Insightful)
The Supreme Court has been generally narrowing the scope of patent law over the past few years. My guess is that they won't take the case, and if they do the odds are that they will uphold Bilski, or possibly narrow the scope of patentable material even further.
Business process patents are stupid... (Score:3, Insightful)
If you need a patent for your business method in order for it to be profitable, it's a failed process. The only practical used for business process patents is patent trolling.
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It is said that the lonely eagle flies to the mountain peaks while the lowly ant crawls the ground, but cannot the soul of the ant soar as high as the eagle?
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They would at best be put back in the position they would have been in had the USPTO refused their application in the first place. I don't think that means you get your application fee back. It certainly doesn't mean you get your patent attorney fees back, and that is by far the biggest part of the cost of applying for a patent.
What I'm interested in is the position where people have been paying royalties for a patent that is subsequently declared invalid.