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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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  • by nobodylocalhost (1343981) on Tuesday February 03, 2009 @02:29PM (#26714099)

    is a use or lose clause.

    • Re: (Score:2, Interesting)

      by ILuvRamen (1026668)
      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.

        • And how are things in your world where people don't try to flaunt the law and the patent office is so overstaffed and underworked that everything submitted is given a thorough going over?

          http://www.google.com/patents?vid=USPAT5041044 [google.com]

          • Bah, apparently that one actually works.

            Well...fine. Just look for some of the ones on cold fusion then...

            • Re: (Score:3, Informative)

              by Theaetetus (590071)

              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.

        • In theory, you're right.

          However in theory, theory and practice are the same, but in practice, they aren't. The large number of "wouldn't it be cool if" patents and existing devices with an internet hung on the side is testament to that.

    • 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

      • Re: (Score:3, Insightful)

        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).

      • Re: (Score:3, Insightful)

        by Dragonslicer (991472)

        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.

        • by Falstius (963333)

          Even if you get the patent without doing the actual fabrication, it should have to be relatively specific. So the group that actually does the fabrication and fills in all of the details you left out can just apply for their own patent and site you as prior art. And they'll patent all of the hardware needed to actually perform the process.

          • So the group that actually does the fabrication and fills in all of the details you left out can just apply for their own patent and site you as prior art.

            True, but if whoever does the fabrication has to fill in that many details, your patent wasn't really complete in the first place.

    • by fugue (4373)
      Yup. I was working on a project that greatly enhanced a certain medical diagnosis (made it quick, accurate, non-invasive, cheap, etc). The inventor (I was merely the coder) ended up selling the patent to the company whose device we made obsolete, and they just buried it. Not a very good feeling, but it happens all the time.
    • by jonwil (467024)

      No, whats needed is a requirement to demonstrate what you want to patent. You must show that what you want to patentable is buildable by ANYONE with sufficient money and equipment and parts and skills (i.e. someone skilled in the relavent art)
      For example, if you want to patent an encryption algorithim, you have to show code, pseudo code, flow chart or otherwise showing enough for this algorithim to be implemented by anyone knowing enough about programming/encryption.
      If its a new widget that can make jet eng

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

      • by Anonymous Coward

        As a patent attorney, I need to be careful in voicing my opinion on this, but I do hope that the net result of Bilski stands. It would turn back the tide against the idiocy that started with State Street. The non-machine based patents have gotten out of hand. I am a geek and computer nut/engineer first, and I want to see business method patent that contain no real manifestation of the method rendered useless. Otherwise, taken to the extreme, screenwriters could start patenting movie storylines. (When I

      • by defile39 (592628)
        Also, SCOTUS likely won't grant cert if most believe the en banc ruling should stand. Perhaps restate further by saying, "I hope that SCOTUS doesn't touch it!"
        • by Dan Ost (415913)

          I hope they do touch it. I hope they uphold the ruling and create a clear test for patentability that is difficult to game or circumvent.

          But I'll settle for them not touching it, I suppose.

    • 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.
  • Riiiigghht (Score:5, Funny)

    by AKAImBatman (238306) * <akaimbatman@gmai[ ]om ['l.c' in gap]> on Tuesday February 03, 2009 @02:34PM (#26714183) Homepage Journal

    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.

    My bullshit detector just exploded.

  • Bilski (Score:3, Insightful)

    by Elektroschock (659467) on Tuesday February 03, 2009 @02:35PM (#26714193)

    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.

    • by pieterh (196118) on Tuesday February 03, 2009 @02:51PM (#26714473) Homepage

      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.

      • Re: (Score:3, Informative)

        by vux984 (928602)

        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.

        • by zappepcs (820751)

          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.

      • by jonbryce (703250)

        Telecoms cartels have nothing to do with patents. They arise because of either spectrum licences in the case of wireless communications, or the fact that you can't put new cables down without government permission, and even if you do get that, it is prohibitively expensive to do so.

        • 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.

          • 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 thought they mostly didn't happen because local (or sometimes state?) governments sell monopoly rights on physically laying the cables (supposedly to reduce the time the streets are torn up, or something)?

            • Re: (Score:3, Interesting)

              by DrgnDancer (137700)

              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

              • by cdrguru (88047) on Tuesday February 03, 2009 @07:51PM (#26719053) Homepage

                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.

                • Yeah, I wasn't necessarily agreeing with what the GP was talking about. He's got points, but there's more to it than he is letting on. I was just trying to clarify what he meant.

                • Having a 2 year old dial 911 and not be able to recite the address might be another.

                  Tragically, similar events have happened [canada.com].

          • This "infrastructure is expensive" argument is 20 years out of date.

            I would not call it out of date, just needs a little tweaking.

            Your example was that Vonage was trying to connect to an existing POTS network using technology patented by Verizon. Vonage continues to exist by signing a two-year contract with VoIP inc. which will provide the POTS access. I assume that VoIP paid the required royalties and/or have the infrastructure available to provide the needed service to Vonage.

            While Vonage may have provi

    • by langelgjm (860756)

      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)

      by CubanCorona (759226) on Tuesday February 03, 2009 @03:10PM (#26714835)
      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.
      • 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.

        AIUI, anything "legitimately" patentable must center around causing some sort of physical change, so that sort of hardware wouldn't count. The only thing that counts is something where the main point is turning some physical input into a different physical output, and it doesn't really matter whether parts of this involve software or not. (But it obviously can't be all software, because software is re-purposable and non-physical.)

      • by jonbryce (703250)

        If you can do something with a standard PC and software, you aren't going to want to produce custom made hardware to do the same task. If you can't, then whatever peripheral you have to attach to your PC is potentially patentable.

      • Re: (Score:3, Insightful)

        by rtfa-troll (1340807)

        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.

      • by cdrguru (88047)

        You do understand that very nearly all interesting software patents can be upheld then? All it takes is the building of the "One-Click Interpreter" device that connects as a network front-end before a server which then actually implements the "Amazon One-Click". This can be done without any software, programming or anything else other than just hardwired interconnections between logic devices.

        Things like this can be built today and could have been built in the 1970s, although it would have been larger and

  • Oh Boy (Score:5, Insightful)

    by Bruce Perens (3872) * <bruce@perens.com> on Tuesday February 03, 2009 @02:36PM (#26714203) Homepage Journal
    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

      • Re: (Score:2, Interesting)

        by the_womble (580291)

        Software only became patentable after Microsoft vs Stac, so this could be seen as just reversing a previous bit of judicial activism.

        • Re: (Score:3, Interesting)

          by DoofusOfDeath (636671)

          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.

          • Re: (Score:3, Interesting)

            by jonbryce (703250)

            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)

          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: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)

      • > If the Supreme Court does take it, and upholds it, it's a better start.

        The Supreme Court doesn't grant cert for no reason. They just don't usually hear cases they don't want to modify in some way.

        So if they grant certiorari, there's a better than even chance that they want to reverse it (which would be bad). I had a professor who tracked statistics of all kinds with respect to all the Supreme Court justices and I seem to recall him giving something like 2-1 odds for a reversal of some kind based on y

  • PLEASE uphold it! (Score:5, Insightful)

    by Just Some Guy (3352) <kirk+slashdot@strauser.com> on Tuesday February 03, 2009 @02:36PM (#26714209) Homepage Journal

    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.

    • by Theaetetus (590071) <theaetetus DOT slashdot AT gmail DOT com> on Tuesday February 03, 2009 @02:46PM (#26714369) Homepage Journal

      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.

      • Re: (Score:3, Informative)

        by Rageon (522706)

        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]

        • by Anonymous Coward on Tuesday February 03, 2009 @03:22PM (#26715077)

          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.

          • 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.

            hehe. Zing!

    • Re:PLEASE uphold it! (Score:5, Interesting)

      by DoofusOfDeath (636671) on Tuesday February 03, 2009 @02:51PM (#26714467)

      ... 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!

      • by LandDolphin (1202876) on Tuesday February 03, 2009 @03:15PM (#26714937)
        5. Rest of the world drops software patents too.
      • by Holi (250190)

        what makes you think treaties carry the same weight as the Constitution. You really think you can use a treaty to make an end run around the amendment process. I am sorry, but those sections that go against the Constitution either invalidate the treaty or are held as unenforceable.

      • 3. SCOTUS invalidates software patents as non-Constitutional.

        This case is not determining whether software patents are constitutional. It is a case to interpret the current patent law statute. 35 U.S.C. 101 to be exact.

        The patent in Bilski isn't even a software patent.

  • 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).

    • by tgatliff (311583)

      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...

    • by mdf356 (774923)

      The U.S. has a first-to-invent system, so the speed of your paperwork is irrelevant unless it takes you more than a year.

      You want to complain about most of the rest of the world; almost all other countries use a first-to-file system, which is easier to adjudicate but can be unfair to slow paperwork-fu.

  • 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

    • by vux984 (928602)

      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

      • by Creepy Crawler (680178) on Tuesday February 03, 2009 @03:21PM (#26715045)

        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.

      • by jonbryce (703250)

        If there is already an established method of copying and pasting genes across, and I believe there is, then copying and pasting the night vision gene would be "obvious".

        • IIRC most GE is copy-pasting from one species to another (not people usually).

          Polymerase Chain Reaction + A virus or something

      • by russotto (537200)

        What if the children of the people you modified with night vision inherit the gene? Do they owe royalties?

        We can do it like Plant Breeding Rights -- they don't get to reproduce without your permission.

        Or, we can do it sensibly, and say that if you patent a part of a self-reproducing device (or organism), you lose patent protection in as much as that device or organisms normal reproductive methods are concerned.

    • by jonbryce (703250)

      But if you invent some sort of treatment for someone who has the Colour Blindness gene, using your research of the differences between the colour blind gene and the normal gene, that treatment might be patentable, provided it isn't obvious.

  • You cannot defeat me, for I hold the patent for "Apparatus and method for overturning absurdly overbroad bullshit patents"!
    • 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 new business process isn't efficient enough to pay for it's development, then should it actually be used?

  • by the eric conspiracy (20178) on Tuesday February 03, 2009 @03:05PM (#26714759)

    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.

    • by naasking (94116)

      Actually, they narrowed patent law back in the 70s, it's just the lower courts ignored their guidelines for years until the Supreme Court started overruling them.

      • by russotto (537200)

        Actually, they narrowed patent law back in the 70s, it's just the lower courts ignored their guidelines for years until the Supreme Court started overruling them.

        I haven't seen one in patent law, but there's a few similar cases where the Supreme Court rhetorically rips the lower court judges new assholes for doing that. Always fun reading.

  • by ivan256 (17499) on Tuesday February 03, 2009 @03:10PM (#26714827)

    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.

  • So the argument is that without patents, we will have a SHORTAGE of people trying to find new ways to make money on the internet?

    Not only is that (ahem) patently ridiculous, but if it were true it would be a positive thing.

  • I have to ask. What happens if this does get ruled in our favor and business method/software patents are ruled invalid? What happens to the companies that have invested millions into their software patent portfolios? Do they have to just suck up that cost? Does the USPTO refund their money? Does the USPTO get sued? (I'm not tolling here, I'm genuinely interested in the aftermath of such a landmark ruling.)
    • Re: (Score:3, Informative)

      by jonbryce (703250)

      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.

  • Patents give an unnatural degree of control over an abstract idea or principle. While such a system may promote some degree of innovation, it must be used with care, and at present is used rampantly, wantonly and without concern for knock-on effects through either the economy or the rest of life in general.

  • I read the title as "Bikini Patent Case Appealed To Supreme Court".

    It's been a long day at work.

  • A "business method patent" is bullshit. You create a new model of business as a necessity to do business. Digital downloads, for example, are an untapped way to make money... and then Apple creates iTunes. The consumer wants your product; your "business method" is a way to make them get the product from you, not from a competitor. As the inventor is the consumer, there is ALWAYS pressure to come up with new business methods!
  • My theory is that we should scrap the current system and replace it with this:

    If you have an idea that you can show would have been economically feasible to do for the past 20 years, and yet no one did it, you can own it for the next 20 years.

    I think someone at one point patented selling advertising on menus, right? Or is that a legend? Anyway, pretend it's the truth.

    I don't know when someone thought of this, but I'll bet that when they did it was something people could have made money off of for 20 years

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