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Supreme Court To Review "Business Method" Patents 181

Posted by kdawson from the bilious-over-bilski dept.
xzvf alerts us to big news on the patent front: the Supreme Court decided today to review the validity of "business method" patents. In particular, the Supremes will look over the "In re: Bilski" case, which we have discussed before. "By agreeing to weigh in on the case, the high court is venturing into controversial terrain. Critics of business-method patents say it was never the intent of the law to protect such things, which in their view are often far closer to abstract concepts or mathematical algorithms rather than physical inventions. Proponents say they are key to promoting innovation in today's knowledge- and service-based economy. ... The court's decision to review the Bilski case caught many observers by surprise. The Bilski patent claims are widely viewed as vulnerable to challenge on a number of grounds, and the sense among some experts was it would make a poor test case. ... The Supreme Court won't hear arguments in Bilski until its next term, which begins in October. A ruling is likely during the first half of 2010."
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Supreme Court To Review "Business Method" Patents More

Supreme Court To Review "Business Method" Patents

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  • It's even spelled correctly elsewhere in the summary. But what else to expect from /. "editor" kdawson?

  • Good News (Score:5, Funny)

    by BabyDuckHat ( 1503839 ) on Monday June 01, 2009 @06:15PM (#28175435)
    I'm confident the interests of the American people will be of the highest priority during deliberations.

    [maniacal laughter followed by gentle sobbing]

  • That's great (Score:2, Insightful)

    by Chandon Seldon ( 43083 )

    What should happen: The Supreme Court rules against business method patents and manages to eliminate software patents entirely at the same time.

    What will happen: The Supreme Court rules in support of business method patents and redefines "prior art" to mean "other US patents that haven't yet expired" at the same time. Lawyers rush to patent levers, gears, buttons (electrical, mechanical, and on clothing), etc.

    • Re:That's great (Score:5, Funny)

      by Anonymous Coward on Monday June 01, 2009 @06:24PM (#28175519)

      U.S Economy collapses finally and utterly, U.S. defederates, patent system abolished, though that is incidental as former U.S. territories plunge into interstate war, americans arrogantly call it WWIII despite the non-involvement and borderline non-interest of most of Europe and Asia. Afterward, religious kooks rule the depopulated midwest, supplied with arms by east and west coasters to fight a proxy war.

      • U.S Economy collapses finally and utterly, U.S. defederates, patent system abolished, though that is incidental as former U.S. territories plunge into interstate war...

        Are you listening, Harry Turtledove? Or is that you?

      • Comment removed (Score:5, Funny)

        by account_deleted ( 4530225 ) on Monday June 01, 2009 @06:52PM (#28175743)
        Comment removed based on user account deletion

        • I'm in (Score:2)

          by XanC ( 644172 )

          Let me know when you're ready to start construction.

        • O RLY? (Score:3, Insightful)

          by hellfire ( 86129 )

          and in one voice, black white and mexicowan get together and as the new confederate battle flag is raised...

          Oh really?

        • Your black neighbors, who have the rights of citizenship thanks to the damned Yankees very much not staying the hell of your lawns, probably won't share your feelings of Dixie solidarity.

          Look, I know y'all love your Stars and Bars, but the war is over. You lost. Deal with it.

          • He said Southerners, but he sounds like a Texan to me. There it might actually happen like that; they were the most "Yeah, State's Rights!" as opposed to "Yeah, State's Rights (because it lets us continue slavery)!" of the Confederates. And people of all races born there feel the same way. My only response to that then is: im in ur republic, yanking up your hideaway.

        • And while this happens we southerners just quietly build a Berlin style wall at the Mason/Dixon and in one voice, black white and mexicowan get together and as the new confederate battle flag is raised on high say "You damned yankees stay the hell off our lawns!".

          We, uh... walk around it?

          Emperor Hadrian on line 3.

      • "A method for collapsing the US Economy finally and utterly causing U.S. territories to plunge into war."

        Does the RIAA have a patent on their model?

      • Re: (Score:2)

        by jcorno ( 889560 )

        Afterward, religious kooks rule the...midwest, supplied with arms by east and west coasters to fight a proxy war.

        Tonight we're going to look into the future, all the way to the year...2000.

    • Re:That's great (Score:5, Insightful)

      by Zordak ( 123132 ) on Monday June 01, 2009 @06:33PM (#28175599) Homepage Journal

      You do realize that this Court will be nearly identical to the one that decided KSR, which raised the bar for obviousness, don't you? And honestly, Bilski was not a well-written decision, even if you agree with the conclusion. In fact, one of the criticisms of Bilski is that it was just a poorly-reasoned knee-jerk reaction to the Supreme Court continuing to smack down on the CAFC. I won't pretend to know exactly how the Supreme Court is going to come down on this, but I guarantee it will not end up with the Supreme Court making section 101 broader than it was pre-Bilski. Still, don't let that get in the way of your complaining.

      [NOTE: If you need to google KSR, CAFC and section 101 before you respond to this post, that's a good clue that you're fighting a battle you don't understand]

      • Re:That's great (Score:5, Funny)

        by Chris Burke ( 6130 ) on Monday June 01, 2009 @06:53PM (#28175765) Homepage

        [NOTE: If you need to google KSR, CAFC and section 101 before you respond to this post, that's a good clue that you're fighting a battle you don't understand]

        Ha, joke's on you! Thanks to Microsoft, I only had to Bing them! So with that out of the way, U R WRNG.

        Anyway, I remember reading on /. about the case that raised the bar for obviousness... And ATT v MS where a Justice said out loud that the court had never held software to be patentable before... So I was very hopeful reading this headline. Thanks for more hope!

      • Since when do slashdotters need to be informed in order to espouse opinions?
      • [NOTE: If you need to google KSR, CAFC and section 101 before you respond to this post, that's a good clue that you're fighting a battle you don't understand]

        This is teh Intarweb, since when do you have to know what you are talking about to share your opinion?

  • Civilised world (Score:5, Insightful)

    by Anonymous Coward on Monday June 01, 2009 @06:24PM (#28175521)

    Canada and the UK have both denied business method and software patents, as have the EC (attempts by that corporate lackey Charlie McCreevy notwithstanding). Now that the civilised world has invalidated these types of patents, wouldn't it make sense for the US to follow?

    • In the long term: yes. In the short term: no.

      I'll reiterate something I've posted before: If the US patent system diverges far enough from the global average of rights when it comes to patents then the US market will become too expensive to both develop for and enter into. So anyone who knows how to game the system better will be given a competetive advantage. If you need to engage in market conditions that differ to much from the global average then that market becomes a high risk one. The result could

      • Re:Civilised world (Score:5, Insightful)

        by AK Marc ( 707885 ) on Monday June 01, 2009 @07:42PM (#28176173)
        If you need to engage in market conditions that differ to much from the global average then that market becomes a high risk one.

        There's a simple reason GM and Chrysler have died (and Ford will declare bankrupcy as well if GM comes out of bankruptcy strong). Protectionism. We've had as much protectionism as possible and not violate every trade agreement signed. We don't standardize crash tests with the world. We don't do emissions with the rest of the world. We don't do lighting requirements with the rest of the world. "We don't have to, we are the US" is the cry from the independent people of the US. And it helped insulate the US market from entrants. We have screwed up CAFE and tariffs on trucks that are so nutty Toyota and others built plants in the US just to get around the protectionism. Yay, we got plants. Oh, but then they weren't in Detroit and put Detroit out of business. Is that a yay or a boo? We do everything we can to not do what any other country on the planet is doing. It's not because we are independent, it's because the Big-3 CEOs paid lots of money to buy Congress and convince them the US way was right, and the rest of the planet was wrong.

        So, our non-insulated market with artificial barriers propped up the big-3 about 10-20 years longer than if we has homogonized all vehicle standards with the EU and Japan, but it could only delay the inevitible. The same is true with IP. That's all we have left as a country, and we can delay our collapse by a few years, but we can't stop it. The only thing that would have saved the Big-3 would have been to fire everyone over 40 and start again. They were too much into what market share and profits they thought they were entitled, they forgot they needed to make a product people wanted. Sure, you can blame the unions and such, but there wasn't a union contract that wasn't signed by the big bosses, and they all thought those terms were good. After all, GM can't fail, right? And so goes our IP. We will grasp at that, rather than let it go and compete evenly. But the more we cling to it, the further it drags us under.

        • Re: (Score:3, Insightful)

          by langelgjm ( 860756 )

          The same is true with IP. That's all we have left as a country, and we can delay our collapse by a few years, but we can't stop it... After all, GM can't fail, right? And so goes our IP. We will grasp at that, rather than let it go and compete evenly. But the more we cling to it, the further it drags us under.

          The problem with that analogy is that IP is not a national industry like the car companies. Because of international agreements like TRIPS, IP is extremely transnational (which in turn is a reflection of the fact that many transnational companies pushed for TRIPS' provisions). Sure, the US benefits greatly from strong IP, because many of our companies sell IP and IP-dependent items around the world. But that's also true of Japan and Western Europe.

          Furthermore, up and coming countries like China are going to

        • The only thing that would have saved the Big-3 would have been to fire everyone over 40 and start again.

          Careful, that doesn't always work. They did that at the moderately well-running shipping company my dad worked for. The result: Within two years they went from 100 trucks and several mills to five trucks (and no, the economy wasn't at fault; they failed during a boom). Essentially they booted everyone with experience and replaced them with a bunch of much cheaper engineers straight out of school. Yeah, th

    • Re: (Score:2)

      by artor3 ( 1344997 )

      Well, we here in the civiliZed world have our own way of doing things, if you hadn't noticed.

    • Re: (Score:2)

      by Tuoqui ( 1091447 )

      Exactly...

      knowledge- and service-based economy

      Translation: We dont actually make anything any more therefore business-methods and software patents are all we can make anymore. Stop shipping the god damn jobs to China or India and make things in North America.

  • As time moves on (Score:4, Funny)

    by moniker127 ( 1290002 ) on Monday June 01, 2009 @06:26PM (#28175531)
    And more and more things become patentable- we may well have a ministry of silly walks.
  • To you, my most esteemed collection of pigeons, please permit me to introduce my cat.

  • Congress? Please? (Score:5, Interesting)

    by Kerrigann ( 1401847 ) on Monday June 01, 2009 @07:14PM (#28175967)

    COPA, Abortion, Gay Marriage, Software Patents, Eminent Domain, Copyright term limits, Privacy Issues/Search and Seizure... does anyone else think that the U.S. has been relying more and more on Judges to make the difficult decisions or clean up the mess left by the legislature?

    I'm sure everyone else can think of more examples.

    More and more the only hope I ever have of bad laws being fixed is that one day it will go before the Supreme Court. I mean, COPA is a "success story", if you can call it that, but just once I want *Congress* to fix these things. :)

    • The SCOTUS eminent domain explanation triggered a wave of statutes that redefined the concept at the state and local level. Gay marriage has been handled in the state courts, but not seriously in the federal courts, at least until the recent filing in federal court of a constitutional challenge to California's Prop 8 ban. However, a great many proponents feel that this is the wrong way to be going about it right now, and that getting Prop 8 overturned via another initiative (currently gathering signatures

      • Re: (Score:2)

        by s73v3r ( 963317 )
        While a ballot initiative would be the better way to end Prop 8, where a majority of the voters would vote against bigotry, there is a great deal of precedent for civil rights issues being handled in the courts instead, where the emotions of the people should be cast aside in favor of what the law states.

        • where a majority of the voters would vote against bigotry

          Wow, a Spinmaster 6000! You must be from the media.

    • Re:Congress? Please? (Score:4, Interesting)

      by compro01 ( 777531 ) on Monday June 01, 2009 @08:51PM (#28176657)

      I would be nice if Congress could send reference questions [wikipedia.org] to the court like we do here in Canada.

      OTOH, I have a feeling it would turn into something like "Ok, so you say that would be blatantly unconstitutional. We'll just pass it anyway and hope we can stack the court before a case on it gets to you."

      • An advisory opinion [wikipedia.org], as it is called in the U.S., is actually unconstitutional.

        • That's why I said "it would be nice if". The constitutional prohibition on it also mentioned in the article I linked.

          OTOH, constitutionality is just an amendment away.

      • The reason is that Congress is supposed to consider Constitutionality itself. BTW, the Constitution doesn't actually give the Courts the authority to decide on the Constitutionality of a law. That is a power that the Supreme Court gave itself. Since many (if not most) of the framers of the Constitution were still alive when the SC made this ruling and I have not come across any references to them complaining about this ruling, it seems that they found it acceptable.
        Personally, I find it terrible that ther

    • does anyone else think that the U.S. has been relying more and more on Judges to make the difficult decisions or clean up the mess left by the legislature?

      That's because judges generally don't have to worry about making decisions that might piss off the religious zealots or super-hippies and cost them the next election.

      • super-hippies

        Would those be hippies who wear capes made out of hemp? Some henna body art, perhaps? Do they have powers, like creating a force-shield of stink?

        • Would those be hippies who wear capes made out of hemp? Some henna body art, perhaps? Do they have powers, like creating a force-shield of stink?

          No, man, they have the ability to find a hookup anywhere and making a bong out of anything. It's pretty amazing. The stink-field is a, like, downside to their awesome power.

  • What's "general purpose" vs. "particular" machine? (Score:5, Interesting)

    by ActusReus ( 1162583 ) on Monday June 01, 2009 @07:18PM (#28176001)

    In the Federal Circuit opinion below, they held that a method patent must be tied to a particular "machine" or involve a "transformation" of some physical article. The "transformation" prong of that test left some interesting loopholes open for software patents, because they held that transforming REPRESENTATIONS of physical articles is good enough. When going through old cases, the court noted that a patent for x-ray medical software was okay because the data represented physical objects (i.e. human bones). However, patents for financial systems weren't patentable because dollars and cents aren't tangible articles.

    However, the most interesting parts of the Federal Circuit's decision was that they almost completely declined to discuss the "machine" prong of the test at that time. It will be interesting to see what (if anything) the SCOTUS does with this. Specifically, the Federal Circuit said that a patent must be tied to a "particular" machine (so that the method could still be practiced on machines other than the one described). However, we don't really know much about what constitutes a "particular" machine. Up until Bilski, the Federal Circuit relied on "In Re Alappat"... which held that loading particular software onto a "general purpose" MAKES it a "particular" computer. The Bilski holding said that Alappat was now reversed... but in the discussion, they only talk about how other parts of that case were wrong.

    So, is a general purpose computer "particular" enough when loaded with specific software, or not? That would be a very interesting question for the SCOTUS to answer.

    Just as an aside... I know this is blasphemy on Slashdot, but not ALL method patents are bad. Method patents traditionally cover things like industrial processes and medical testing, things that actually do require innovation and/or substantial investment in FDA approval. The trick is in writing a rule that filters out crap from patents that actually do make public policy sense. It's harder than you might think to come up with a blanket rule that threads this needle.

    • Re: (Score:2)

      by EzInKy ( 115248 )


      So, is a general purpose computer "particular" enough when loaded with specific software, or not? That would be a very interesting question for the SCOTUS to answer.

      Logically one would think a general purpose computer would become "particular" enough when the loaded software made it only suitable for the specific task. In other words, a dedicated mp3 playing machine would be particular because it is designed for only the purpose of playing mp3s.

    • Re: (Score:2, Interesting)

      by Cassini2 ( 956052 )

      I think a key difference between a software and a non-software patent should be a test to the effect: Can this be implemented with any computer purchased at the local Buy More? If the patent application can be implemented with commodity, off-the-shelf components, then the unique element in the patent must be software. If the unique element is software, then the patent is a software patent. The nice thing about the commodity, off-the-shelf component test, is that it extends nicely into business method pat

    • I know this is blasphemy on Slashdot, but not ALL method patents are bad. Method patents traditionally cover things like industrial processes and medical testing, things that actually do require innovation and/or substantial investment in FDA approval.

      Hmm, still not convinced. I still believe business method patents are bad for society. IP in general stifles innovation. It practically removes any possibility of incremental improvement in other people's work. No matter how hard you try, it is impossible to o

      • Re:What's "general purpose" vs. "particular" machi (Score:5, Insightful)

        by Alsee ( 515537 ) on Tuesday June 02, 2009 @05:22AM (#28179585) Homepage

        >>...not ALL method patents are bad...

        Hmm, still not convinced. I still believe business method patents are bad for society.

        Your "objection" doesn't actually conflict with what he said. He basically said "Not all cars are bad", and you basically replied that you "still believe Humvees are bad". (I first wrote dogs and PitBulls, but changed it to a car analogy :)

        Before all of this business methods patent crap and software patents crap, a "process patent" meant an industrial process that physically transformed a physical object to a different state or thing. A physical process to refine ore into metal, a physical process transform graphite into diamonds. You got a patent for inventing a new physical object, or a new physical process for materially transforming a physical object.

        As far back as 1876 in Cochrane v. Deener the US Supreme Court defined a process patent as:
        an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing.

        US Supreme Court Gottschalk v. Benson 1972:
        Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines.

        The latest Supreme Court patent ruling was 1981 Diamond v. Diehr, which directly quoted and reaffirmed that line above from Gottschalk v. Benson. Diamond v. Diehr also specifically WARNS that "insignificant post-solution activity will not transform an unpatentable principle into a patentable process. To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection.".

        In Parker v Flook 1977 the Supreme Court stated Whether the algorithm was in fact known or unknown at the time of the claimed invention, as one of the 'basic tools of scientific and technological work,' it is treated as though it were a familiar part of the prior art.". For patent purposes, no possible algorithm can ever qualify as novel, no possible algorithm can ever qualify as nonobvious. Software itself is nothing but pure algorithm, no possible software can ever qualify as patent-novel or patent-nonobvious.

        The idea that "process patents" somehow could be extended to anything other than physical processes is exactly where patent law went insane. In the twenty-odd years that the Supreme Court as neglected to oversee this field, the lower courts have gone wildly and flagrantly in violation of those Supreme Court rulings. A "business method patent" is not validly a process patent. A "software patent" is not validly a process patent.

        I am thrilled to see the Supreme Court finally taking up the issue, however I wish it were a slightly different case. The nature of this particular case is such that the Supreme Court could very easily toss out this patent on narrow grounds, without adequately addressing and reiterating the above Supreme Court quotes, failing to address the thousands and thousands of other business method and software patents that have been issued over the last several years.

        -

    • not ALL method patents are bad. Method patents traditionally cover things like industrial processes and medical testing, things that actually do require innovation and/or substantial investment in FDA approval. The trick is in writing a rule that filters out crap from patents that actually do make public policy sense. It's harder than you might think to come up with a blanket rule that threads this needle.

      Maybe we must simply accept that some forms of innovation cannot be encouraged in this manner, due to

    • So, is a general purpose computer "particular" enough when loaded with specific software, or not?

      Well I don't know how the justices will choose to interpret the matter, but if I were hearing this case then I would have to say that "no, it is not" for the following reason:

      If a particular program is loaded onto a "general purpose" machine, a computer in this case, thereby rendering it fit for a particular purpose that does NOT foreclose the possibility that one may install any number of additional programs with separate purposes on the same computer, up to the limits of the storage device, such that some

  • Innovation (Score:5, Insightful)

    by Dracos ( 107777 ) on Monday June 01, 2009 @07:45PM (#28176195)

    Proponents say they are key to promoting innovation

    I laugh every time I read this absurd argument. Patents are not about promoting innovation, they are about protecting intellectual property, even if that term is far younger than the patent concept. They are about creating a limited time micro-monopoly in order to stifle competition.

    Patents aren't bad, but they have been allowed to get out of hand (Bezos, I'm looking at you). Business method, software, and DNA patents are abuses of the patent concept. Furthermore, the pace of technological advancement is faster now than it ever has been, and will only get faster; patent duration must be shortened appropriately.

    • Patents are not about promoting innovation, they are about protecting intellectual property

      In theory, patents and copyrights are about both. Promoting innovation is the goal, and protecting intellectual property for a limited time is the means to achieving that goal. The current implementation might be a bit off (read: very broken), but the goal is supposed to be encouraging inventors and artists to continue inventing and creating art.

    • Re: (Score:2)

      by artor3 ( 1344997 )

      Patents are absolutely about promoting innovation. There's no reason to share a design with other companies unless you can be sure they'll pay you for it. Without patents, they could just take the idea and run. Companies would become reliant on trade secrets, and *that* would stifle innovation.

      Disclaimer: Business method and software patents, as well as a few other types, are an abuse of the system, I hope the court rules against them.

  • Promoting innovation (Score:5, Insightful)

    by aaandre ( 526056 ) on Monday June 01, 2009 @07:46PM (#28176203)

    Similarly to another /.-er's fantasy, I imagine the world when *I* become an overlord and hire my own army of clowns to would slap politicians who say things like:

    "Promoting innovation" - SLAP!

    "For the sake of the children!" - SLAP!

    "Free markets" "The GNP" - SLAP

    "It's the Jews" "It's the communists" "It's the Arabs" "It's teh tehrorists!" - SLAP!

    "For your safety" - SLAP, KICK, SLAP!

    Thanks, Bozo, I needed that.

    • Yeah, well I'd have another set:

      "It's my right to download stuff for free!" - SLAP!

      "Parents should be responsible for their kids at all times and in all places!" - SLAP!

      "The Amero!" "The North American Union" "They're exporting all our jobs!" - SUPER SLAP!!!!!!

      Actually I have no real answer for the other two.
  • Is that what you call it when you go into massive debt to pay others to do your work for you?

    News flash! This is not a model for a real economy, it's a model for an imaginary one.

  • Promote Innovation (Score:5, Insightful)

    by PPH ( 736903 ) on Monday June 01, 2009 @09:41PM (#28177051)
    Because if I think of a better way of running my business, I won't implement it unless the government gives me a patent. I'll just stand here, stamping my little feet, holding my breath until I turn blue. And someone else will use the idea.

  • Economy, the new excuse for broken laws? (Score:3, Funny)

    by noidentity ( 188756 ) on Monday June 01, 2009 @11:17PM (#28177647)

    Proponents say they are key to promoting innovation in today's knowledge- and service-based economy.

    I wonder if "think of the economy!" will find itself alongside the well-worn excuses "think of the children!" and "think of the terrorists!" for ramming broken laws through.

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