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Bilski Patent Case Appealed To Supreme Court 175

Posted by kdawson
from the settling-it-once-and-for-all dept.
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."
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Bilski Patent Case Appealed To Supreme Court

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  • Correction: you want SCOTUS to uphold the Bilski ruling.

  • Re:Oh Boy (Score:5, Informative)

    by Volante3192 (953645) on Tuesday February 03, 2009 @02:49PM (#26714437)

    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)

  • by vux984 (928602) on Tuesday February 03, 2009 @02:58PM (#26714619)

    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.

  • 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.

  • Re:PLEASE uphold it! (Score:3, Informative)

    by Rageon (522706) on Tuesday February 03, 2009 @03:16PM (#26714949)

    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:Riiiigghht (Score:5, Informative)

    by Timothy Brownawell (627747) <tbrownaw@prjek.net> on Tuesday February 03, 2009 @03:23PM (#26715095) Homepage Journal

    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.

  • 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.

  • Re:what happens if.. (Score:3, Informative)

    by jonbryce (703250) on Tuesday February 03, 2009 @03:54PM (#26715651) Homepage

    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.

  • by pieterh (196118) on Tuesday February 03, 2009 @04:00PM (#26715737) Homepage

    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.

  • Re:Oh Boy (Score:4, Informative)

    by Bruce Perens (3872) * <bruce@perens.com> on Tuesday February 03, 2009 @04:23PM (#26716187) Homepage Journal

    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.

  • Re:Riiiigghht (Score:5, Informative)

    by Solandri (704621) on Tuesday February 03, 2009 @06:52PM (#26718417)

    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.

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