I Don't Believe in Imaginary Property writes "The Supreme Court's review of In Re Bilski (discussedherenumeroustimes) is heating up, having attracted no less than 44 friend-of-the-court briefs from almost everyone with a stake in the patent system. Patently-O provides a nice summary of who is arguing against Bilski. The two questions before the Supreme Court are whether or not a process must satisfy the particular machine or transformation test, and whether this test improperly excludes many business methods in spite of the wording of 35 U.S.C. 273, which specifically allows business-method patents. So far, the case has attracted legal filings from nearly every large company or group whose patents might be threatened. You can read briefs from Yahoo, IBM, Borland, Dolby Labs, the BSA, and many others, even one from some guy claiming to speak on behalf of the State of Oregon."
I was always under the impression that patents were to protect novel ideas that were unlikely to be obvious to anyone that was working in the field. This I find acceptable usage of patents! However, many patents that are granted by the USPTO are NOT novel. The problem with business and software patents is that they are either obvious but have been applied to computing, or they are well known but no-one has applied for the patent before, since it was "obvious". The obvious fix is that any patent that is gran
I was always under the impression that patents were to protect novel ideas that were unlikely to be obvious to anyone that was working in the field. This I find acceptable usage of patents!
You have always been mistaken. The purpose of the patent system is to encourage investment into research and development, and thus encourage and promote human progress and invention. Allowing ideas to be patented slows innovation, while allowing the patent of an invention which has required much time, effort, and or money to develop, provides a financial incentive for for R&D, and thus encourages innovation.
Thus patents should protect inventions which require a significant amount of research and development, not ideas. To quote Thomas Jefferson [let.rug.nl]:
It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.
If you wish to correct your ignorance, I can suggest the book "Math you can't use" as an excellent text on the subject.
A) You can build on a patent, i.e. innovate B) After about 20 years* anyone can make it.
The only thing it slows is distribution of the product because the holder can control who can make it. IT doesn't NOT IN ANY WAY prevent new products based on it from being patented.
"Thus patents should protect inventions which require a significant amount of research and development, not ideas. No, and Yes.
No, it should not protect products based on how much it costs to de
Agreed. Any patent that can be duplicated just from hearing about the idea, is to my mind 'obvious' and should not be patentable. There are also rulings that allow for reverse engineering and in some cases, the courts even went so far to state that reverse engineering is desirable to innovation, and market competition.
Patents are out of control when you can patent "A system for categorizing information in a 'database like' structure for easy retrieval at a later date'". No
who's the enemy of innovation, open source, new participative pluralist internet culture and freedom, and who is a friend.
the verdict of the masses are silent, but irreversible. and no court can make innumerable developers who can make or break a new web/it tech your friend by force.
As techies./-ers would expect an outcome that reflects logic and reason. Remember, of the scum-sucking leaches that are lawyers the supreme court represents the elite.
Better to be a forum troll, than a patent-troll any day of the week.
The office has been sending out quite a few 101 rejections based on the district courts decision. This is something that both the Office and the Bar want clearly resolved as the Bar has been very creative in the past few years in claiming what is essentially software only claims.
by Anonymous Coward
on Tuesday August 11, @07:53PM (#29032377)
I think the brief submitted by Mark Lemley et. al sums up my opinion the best.
The distinction on patentable subject matter should be based on the distinction between applied and abstract inventions.
It doesn't get much simpler than that in my mind. If you are patenting an applied method, applied algorithm (read: implementation), applied design (blueprints or machines) etc. then sure, you should be able to patent it. Barring prior art, public domain, etc. But if all you have is an idea, too bad- do something with it. I guess the thing that surprised me was, when I was taught about patents back in high school that is essentially what they told me the criteria was all along. Then I grew up & found out how twisted it really is, and then IP and software patents got into the mix, and because the politicians & courts had no clue what they were talking about, managed to hose the whole thing.
I think the best quote is: a general purpose computer should be considered a "particular machine."
This is the core contention behind the justification of software patents. It incorrectly treats all of the specific coding of any algorithm implementation as irrelevant to the patentable subject-matter, because the algorithm could theoretically be made to run on any Turing architecture.
Anyone who has ever actually implemented an algorithm, much less anyone who has invented one, knows that this is nonsense: algorithms are not implementations, and to be "useful" an algorithm has to be properly implemented in a specific language and, frequently, on a specific machine or limited range of machines, because real computers are not Turing machines. Turing machines don't have interrupts, amongst other things, which is why they are deterministic and mathematically tractable.
A general tool of almost any kind, used in a different way, is _not patentable_. It's using the tool for what it was designed for, it does not change the physical construction of the machine nor its number of parts nor its general capabilities.
The "actually implemented algorithm" is protected in its specific implementation by copyright, and should not receive the double protection of patent law against writing similar algorithms.
A general tool of almost any kind, used in a different way, is _not patentable_. It's using the tool for what it was designed for, it does not change the physical construction of the machine nor its number of parts nor its general capabilities.
This is not entirely accurate. Suppose there is a patent on Compound X and the patent discloses the use of Compound X as a floor wax. Now suppose someone discovers that Compound X makes an excellent treatment for baldness, which is entirely nonobvious given its prev
Software patents were created to fill a business opportunity. The absense of that opportunity is not, in itself, necessarily a bad thing because the filing and management and avoidance of infringement of such patents has become amazingly burdensome to developers and to the public.
Worse, many software patents are nonsensical: they act as a barrier to entry to small companies and small scale developers, because larger companies can and do invest in patent portfolios as a basic business practice. The result is
A general tool of almost any kind, used in a different way, is _not patentable_.
A hammer isn't patentable? Of course it is. What you're quibbling over - and why this is going to the Supreme Court - is the definition of a "general tool". Is a hammer a general tool, or a specific tool? It can't be used to screw in screws... So, is a screwdriver a general, or a specific tool? Well, it can't be used to hammer in nails... at least not well. Finally, is a computer a general, or a specific tool? It's not very good at hammering or screwing, after all.
A patent on a hammer is fine. A patent that says I can't use it to hammer things a certain way is bogus. I paid money for the hammer. I should be able to use it how I see fit and share that knowledge unencumbered.
The hammer itself is patentable. The new use of a hammer, without fundamental modification to the hammer itself, is not. So now that general purpose computers exist. That's part of what Bilski is revealing: the patenting of usages of tools, without modifying the tool itself, is a serious issue that should block the patent.
A general tool of almost any kind, used in a different way, is _not patentable_. It's using the tool for what it was designed for, it does not change the physical construction of the machine nor its number of parts nor its general capabilities.
Evidentally you missed the article on Microsoft getting a patent on using XML as a file format for a word processing document, including certain specific new tags. Yep, they extended the eXtensible Markup Language (and not even in a particularly original way) and got
Turing machines don't have interrupts, amongst other things, which is why they are deterministic and mathematically tractable.
Just a correction: our computers aren't Turing machines because they have finite memory, not because they have interrupts. Analyzing arbitrary machine code is tractable on a real Turing machine with infinite memory, it's just that any such analysis may not run within the bounds of current computer memories, and even if it could, its runtime or resource consumption may not make the analysis actually useful.
Machine or transformation test is not a reliable indicator of anything relevant. The standard for patentability should usefulness as set forth in the Constitution, in the patent statute, and by the Court.
But this ignores the constitutional requirement that it promote progress:
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
Teles AG says:
Further, the global nature of todays economy strongly recommends that the United States patent system be harmonized with robust patent systems of other nations wherever possible.
This is the same argument used in favor of the Sony Bono Copyright Term Extension Act yet at the time the United States was one of very few nations to actually extend copyright to such a length. In this case the U.S. is one of very few nations to support software patents.
But this ignores the constitutional requirement that it promote progress:
It is not obvious that business method patents hinder the progress of the useful arts, and merely stating it does not make it so. But if you have a good argument for why business methods are contrary to the constitutional purpose of patents, then by all means compose and submit an amicus curiae brief in support of the Respondent. The due date is October 2nd. You don't have to be an attorney to submit an amicus brief on your own behal
> It is not obvious that business method patents hinder the progress of the useful arts
You declare ownership of a new business process. Because of this you can prevent EVERYONE ELSE WHO DOES BUSINESS from benefiting from that new process. Alternately you can FORCE EVERYONE to waste money licensing your process. Alternately, companies lose the motivation to innovate because they might be sued by some jerk like you.
Every patent allows the patent owner to cause trouble for everyone else for the next 17 years.
It's far better that Dell can't patent build to order rather than being prevented from inventing it in the first place because a bunch of bogus process patents choked him when he was a startup.
Software patents are a clear counterexample to your rubbish idea that the other side of the argument is just making empty claims.
Patents exist to encourage inventors to disclose useful information, not to enable large corporations to be bridge trolls.
The most frightening idea in all of those amicus briefs is the idea that medical procedures might be patented. That's about the most horrific and destructive idea you could possibly come up with. Doctors invent because they take their oath to Hypocrates seriously, not because they identify with Crassius Maximus.
You declare ownership of a new business process. Because of this you can prevent EVERYONE ELSE WHO DOES BUSINESS from benefiting from that new process.
Suppose someone invents a new mechanical device and patents it. The patentee can now prevent everyone else from making a business out of making, using, selling, offering to sell, or importing the patented device. In that sense, all patents declare ownership over a new business process. Business method patents are just applied economics in the same way that
And of course, no one is actually forced to do anything. A patent is only valid if it claims something new, useful, and non-obvious, which means it can't cover anything that others were already doing.
Wrong, and you know better. It could be something a lot of people were already doing, but if they had not documented their process in a way the patent office understands as "prior art" (which, as we've learned, is pretty much nothing), the patent can STILL stand. 35 USC 273 states this EXPLICITLY: If I was
It could be something a lot of people were already doing, but if they had not documented their process in a way the patent office understands as "prior art" (which, as we've learned, is pretty much nothing), the patent can STILL stand.
The PTO, of course, limits itself to (easily accessible) printed publications, patents, and patent applications because those are all easy to use forms of prior art. But prior use is normally very easy for a defendant in a patent infringement suit to show except when the prio
In my opinion, the problem is not that people have been patenting business processes but they have been patenting the end result, the very basics (one-click or how to make purchases on the internet) or the very starting point (the mathematics (algorithms) behind it) of processes.
Suppose someone invents a new mechanical device and patents it. The patentee can now prevent everyone else from making a business out of making, using, selling, offering to sell, or importing the patented device. In that sense, all patents declare ownership over a new business process. Business method patents are just applied economics in the same way that mechanical device patents are applied physics.
The huge diference is that you cannot use a TRIVIAL mechanical process and patent it, or even use that p
But this ignores the constitutional requirement that it promote progress:
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
Teles AG says:
Do you have a citation for this (that it's "patent laws are only valid if they promote progress" rather than something silly like "patent laws are assumed to promote progress"), that could maybe be added to Wikipedia? It says [wikipedia.org]
For example, the Court has determined that because the purpose of the clause is to stimulate development of the works it protects, its application cannot result in inhibiting such progress. However, there has been a countervailing strain in the courts that has promoted a varying view.
But this ignores the constitutional requirement that it promote progress
Is there such a requirement? Can you point to case law indicating one way or another? I could easily see there being rulings that "[t]o promote the progress of science and useful arts" is merely explanatory, and does not impose any requirements on the patent process.
by Anonymous Coward
on Tuesday August 11, @07:55PM (#29032391)
35 U.S.C. 273 refers to business method patents but *does not* specifically allow them. Whether 35 U.S.C. 273 approves of business method patents implicitly is left as an exercise for lawyers writing supreme court briefs...
Whoever invents or discovers any new and useful process... may obtain a patent therefor, subject to the conditions and requirements of this title.
From 35 U.S.C 273:
(a) DEFINITIONS.- For purposes of this section-... (3) the term "method" means a method of doing or conducting business...
(3) LIMITATIONS AND QUALIFICATIONS OF DEFENSE.- The defense to infringement under this section is subject to the following:
(A) PATENT.- A person may not assert the defense under this section unless the invention for which the defense is asserted is for a method.
While business methods are not explicitly defined in the patentable inventions code (that's code 101, part of which I posted above), the code itself is very short and doesn't explicitly define anything.
If the criteria you go by regarding what is patentable is whether or not it was specifically defined in the Patent Code, then the lightbulb was not patentable either, because electronic devices are not specifically defined in the Patent Code. See what I'm getting at? We h
This section is defined by the words "defense to infringement", an act that has nothing to do with getting a patent granted. Since proof of this defense shows that prior-art existed for the patent in question, it should actually invalidate any patent that this defense
The 44 amicus curiae briefs that have been filed so far are only those submitted in support of the Petitioners (i.e., the inventors Bilski and Warsaw) or in support of neither party. Amicus briefs in support of the Respondent (i.e., the Patent Office) will be submitted after the Respondent's merits brief is submitted, which will occur on or before September 25. Once the merits brief is submitted, amici have 7 days to submit briefs in support of the Respondent.
While I don't expect there to be quite the same volume of briefs supporting the PTO as the Petitioner, there will probably be at least a few.
Full Disclosure: I work for the team [hoover.org] that wrote the brief of Dr. Ananda Chakrabarty [hoover.org] (he of the Diamond v. Chakrabarty Supreme Court case that established the patentability of genetically modified organisms).
by Anonymous Coward
on Tuesday August 11, @08:35PM (#29032593)
FYI -- the Bilski patent application is not considered a "software" patent application. Instead, it is considered a pure "business method" (i.e., a method of performing some business-related task that it not necessarily tied to any specific hardware, e.g., a computer).
If the Supreme Court strikes down the patent under 101, this particlar fact pattern and the resultant decision will not necessarily lead to the death of software patents. However, if the Supreme Court determines that that Bilski patent application is patent eligible, then software will be patentable unless Congress eliminates software patents by law. The reason for this is that pure business methods are considered closer to "abstract ideas," which are not patentable, than software patents since software is always used on a machine (i.e., a computer).
The whole case could turn on the 35 U.S.C. 273 issue. The Supreme Court can rely on some very technical rationale for deciding a case, and one of these is called "statutory construction." One such rule is that a statute will be interpreted so as to be internally consistent such that a particular section of the statute shall not be divorced from the rest of the act. 35 U.S.C. 273 refers to a defences to infringement with regard to business methods. It would appear to be internally inconsistent to have a "business method" be nonstatutory under 35 U.S.C. 101 while still provide a defense for someone infringing a business method. If one cannot patent a business method, then one cannot infringe a business method. If one cannot infringe a business method, there is no need for a defense against infringement.
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
If it can be proven (and I'm sure it can) that software patents do not promote the progress of science and arts, then this line allows them to basically re-work patent law. Business method patents, software patents and other non-tangible or non-applied patents really haven't done a single thing to promote the progress of science and useful arts. So with that one line, they can perhaps argue that it goes against the constitution to implement patent/copyright law that goes against that.
If it can be proven (and I'm sure it can) that software patents do not promote the progress of science and arts, then this line allows them to basically re-work patent law. Business method patents, software patents and other non-tangible or non-applied patents really haven't done a single thing to promote the progress of science and useful arts.
Forget it; this argument is a loser. The courts will defer to Congress on that issue. Of course, Congress didn't explicitly authorize the business method patents
The whole case could turn on the 35 U.S.C. 273 issue. The Supreme Court can rely on some very technical rationale for deciding a case, and one of these is called "statutory construction." One such rule is that a statute will be interpreted so as to be internally consistent such that a particular section of the statute shall not be divorced from the rest of the act. 35 U.S.C. 273 refers to a defences to infringement with regard to business methods. It would appear to be internally inconsistent to have a "bus
Imagine some simple algebraic calculation being patentable because the base math numerical system being used is the roman numeral system, which is not simply and directly capable of doing such a calculation.
Now Imagine when software patents will be look back on in hindsight of a corrected navigational mapping software development system. How are those supporting software patents today, going to be viewed tomorrow? As barbaric?
I think the problem is that too many obvious software patents have been granted. Suppose Cooley and Tukey had been the first to figure out the fast Fourier transform (they weren't, but suppose they were). Wouldn't they have been deserving of a patent, had they wanted one?
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
Can someone please tell me how software patents are promoting the progress of science/useful arts? There are -many- countries who don't have software patents yet software still comes out of those countries.
There is not a positive thing that has come out of software patents. The quality of software hasn't improved, patent trolls are numerous, oh and because of software patents there are many incompatibilities in software that lead to many, many problems.
There is not a positive thing that has come out of software patents.
Google was able to rise to dominate search and challenge Microsoft primarily because of its numerous software patents. Without those patents, Microsoft, Altavista, Yahoo, or any other company could have used Page Rank and other algorithms covered by Google's dozens of software patents. Only part of Google's success is its good web design and marketing savvy. A huge part is the fact that it just plain does search better than almost anybod
> Say an inventor comes up with a brilliant new algorithm for efficiently and accurately modeling > fluids on a computer. There are many possible applications: computer graphics, weather simulation, > etc. The inventor would like to maximize his or her profit from the invention.
This presumes that the crass entrepeneur is the driver of innovation in software.
Usually it's the exact opposite sort of person that drives software or scientific innovation. The current patent regime threatens to mire this sort of person in a quagmire of pre-existing and largely trivial patents. Even if this person were a genuine entrepenuer they would have to deal with the legal minefield of patents and quite likely would be in a very weak position to deal with hostile potential competitors with large patent portfolios to club him with.
This presumes that the crass entrepeneur is the driver of innovation in software.
The PageRank algorithm on which the Google empire rests was invented by Larry Page and Sergei Brin. They published the algorithm, patented it, and went on to become incredibly successful 'crass entrepreneurs.' Google owns dozens of software patents on key technologies such as its Map-Reduce implementation and AdWords. Few would say that Google is not a driver of innovation in software.
The PageRank algorithm on which the Google empire rests was invented by Larry Page and Sergei Brin. They published the algorithm, patented it, and went on to become incredibly successful 'crass entrepreneurs.' Google owns dozens of software patents on key technologies such as its Map-Reduce implementation and AdWords. Few would say that Google is not a driver of innovation in software.
Google's patented search algorithm is not a driver of innovation in software. They have carved out their own niche in searching, in which they stand alone; no one builds on their work.
And if they really have a patent on MapReduce, that's a bad one too. Distributed software has used the general idea since before Google existed. I haven't read their actual claims, however.
Microsoft rose to dominance at a time when software was not patentable. That's one of the reasons why Embrace, Extend, Extinguish worked so well:
As opposed to now? I've got news for you, most software companies are still very wary of Microsoft. That's one of the reasons there is so much push to develop for the web using open standards, so as not to get extinguished by Microsoft.
That's true, but then the public would never find out about the invention.
That's a pretty absolute assertion you're making. Do you really believe that software patents are the only way knowledge of software inventions gets transferred/created in our society? And do you really believe that the only thing protecting Google or Amazon from being copie
I'd rather see submarine patents be got rid of or patent transferability restricted to get rid of the patent trolls and the "patent holding companies".
At least people who come up with these processes, come up with something. The trolls are just in the business of collecting patents and wait for their chance to cash in.
Submarine patents are no longer a serious issue. Patents now expire 20 years from the date of filing, so keeping a patent application stuck in the patent office forever is a good way to end up with an expired patent, which is not particularly useful. Furthermore patent applications are now published after 18 months, so the world is put on notice fairly early on in the patent application process.
There may be a few submarines left from the pre-June 8, 1995 days,
A wiki for Bilski and other swpat issues (Score:5, Informative)
I'm documenting this here: swpat.org/wiki/Bilski [swpat.org]. All help appreciated.
Re: (Score:3, Insightful)
Re:A wiki for Bilski and other swpat issues (Score:5, Informative)
You have always been mistaken. The purpose of the patent system is to encourage investment into research and development, and thus encourage and promote human progress and invention. Allowing ideas to be patented slows innovation, while allowing the patent of an invention which has required much time, effort, and or money to develop, provides a financial incentive for for R&D, and thus encourages innovation.
Thus patents should protect inventions which require a significant amount of research and development, not ideas. To quote Thomas Jefferson [let.rug.nl]:
If you wish to correct your ignorance, I can suggest the book "Math you can't use" as an excellent text on the subject.
Parent
Incorrect (Score:3, Insightful)
"Allowing ideas to be patented slows innovation,"
A) You can build on a patent, i.e. innovate
B) After about 20 years* anyone can make it.
The only thing it slows is distribution of the product because the holder can control who can make it. IT doesn't NOT IN ANY WAY prevent new products based on it from being patented.
"Thus patents should protect inventions which require a significant amount of research and development, not ideas.
No, and Yes.
No, it should not protect products based on how much it costs to de
Re:Novel Ideas (Score:4, Funny)
Copyright protects Novel ideas. Patents protect the Automatic Author machine that produces Novel ideas.
Parent
Re: (Score:3, Interesting)
Is Reverse Engineering Legal [chillingeffects.org]
Patents are out of control when you can patent "A system for categorizing information in a 'database like' structure for easy retrieval at a later date'". No
Yeaaa. and we independent developers get to see (Score:5, Insightful)
who's the enemy of innovation, open source, new participative pluralist internet culture and freedom, and who is a friend.
the verdict of the masses are silent, but irreversible. and no court can make innumerable developers who can make or break a new web/it tech your friend by force.
Don't hold your breath (Score:2, Insightful)
Better to be a forum troll, than a patent-troll any day of the week.
USPTO has already been taking Bilski into account (Score:5, Informative)
The office has been sending out quite a few 101 rejections based on the district courts decision. This is something that both the Office and the Bar want clearly resolved as the Bar has been very creative in the past few years in claiming what is essentially software only claims.
Parent
Re:Don't hold your breath (Score:5, Funny)
Better to be a forum troll, than a patent-troll any day of the week.
Yeah, who needs yachts to drive on their oceans of money and naked women when we have strangers getting upset over what we think about Linux distros?
Parent
Re:Don't hold your breath (Score:5, Funny)
Better to be a forum troll, than a patent-troll any day of the week.
Yeah, who needs yachts to drive on their oceans of money and naked women when we have strangers getting upset over what we think about Linux distros?
Don't do that. Besides not being very nice, it's quite the waste because you'll just end up having to buy more naked women to drive over.
Parent
Re:Don't hold your breath (Score:5, Funny)
Or as my dad says
" Son, there is no point in being a racist. Most folks are total assholes and will happily give you a reason to hate them personally!"
And I have found no truer words were ever spoken.
Parent
Best quote (Score:5, Interesting)
I think the brief submitted by Mark Lemley et. al sums up my opinion the best.
The distinction on patentable subject matter should be based on the distinction between applied and abstract inventions.
It doesn't get much simpler than that in my mind. If you are patenting an applied method, applied algorithm (read: implementation), applied design (blueprints or machines) etc. then sure, you should be able to patent it. Barring prior art, public domain, etc.
But if all you have is an idea, too bad- do something with it.
I guess the thing that surprised me was, when I was taught about patents back in high school that is essentially what they told me the criteria was all along. Then I grew up & found out how twisted it really is, and then IP and software patents got into the mix, and because the politicians & courts had no clue what they were talking about, managed to hose the whole thing.
Re:Best quote (Score:5, Interesting)
I think the best quote is: a general purpose computer should be considered a "particular machine."
This is the core contention behind the justification of software patents. It incorrectly treats all of the specific coding of any algorithm implementation as irrelevant to the patentable subject-matter, because the algorithm could theoretically be made to run on any Turing architecture.
Anyone who has ever actually implemented an algorithm, much less anyone who has invented one, knows that this is nonsense: algorithms are not implementations, and to be "useful" an algorithm has to be properly implemented in a specific language and, frequently, on a specific machine or limited range of machines, because real computers are not Turing machines. Turing machines don't have interrupts, amongst other things, which is why they are deterministic and mathematically tractable.
Parent
Re:Best quote (Score:5, Informative)
A general tool of almost any kind, used in a different way, is _not patentable_. It's using the tool for what it was designed for, it does not change the physical construction of the machine nor its number of parts nor its general capabilities.
The "actually implemented algorithm" is protected in its specific implementation by copyright, and should not receive the double protection of patent law against writing similar algorithms.
Parent
Re: (Score:2, Informative)
A general tool of almost any kind, used in a different way, is _not patentable_. It's using the tool for what it was designed for, it does not change the physical construction of the machine nor its number of parts nor its general capabilities.
This is not entirely accurate. Suppose there is a patent on Compound X and the patent discloses the use of Compound X as a floor wax. Now suppose someone discovers that Compound X makes an excellent treatment for baldness, which is entirely nonobvious given its prev
Re: (Score:2)
Software patents were created to fill a business opportunity. The absense of that opportunity is not, in itself, necessarily a bad thing because the filing and management and avoidance of infringement of such patents has become amazingly burdensome to developers and to the public.
Worse, many software patents are nonsensical: they act as a barrier to entry to small companies and small scale developers, because larger companies can and do invest in patent portfolios as a basic business practice. The result is
Re: (Score:3, Insightful)
A general tool of almost any kind, used in a different way, is _not patentable_.
A hammer isn't patentable? Of course it is. What you're quibbling over - and why this is going to the Supreme Court - is the definition of a "general tool". Is a hammer a general tool, or a specific tool? It can't be used to screw in screws... So, is a screwdriver a general, or a specific tool? Well, it can't be used to hammer in nails... at least not well. Finally, is a computer a general, or a specific tool? It's not very good at hammering or screwing, after all.
I realize this is all semantic bullshiat,
Re:Best quote (Score:4, Insightful)
A patent on a hammer is fine. A patent that says I can't use it to hammer things a certain way is bogus. I paid money for the hammer. I should be able to use it how I see fit and share that knowledge unencumbered.
Parent
Re: (Score:3, Insightful)
The hammer itself is patentable. The new use of a hammer, without fundamental modification to the hammer itself, is not. So now that general purpose computers exist. That's part of what Bilski is revealing: the patenting of usages of tools, without modifying the tool itself, is a serious issue that should block the patent.
Re: (Score:3, Informative)
Evidentally you missed the article on Microsoft getting a patent on using XML as a file format for a word processing document, including certain specific new tags. Yep, they extended the eXtensible Markup Language (and not even in a particularly original way) and got
Re:Best quote (Score:4, Interesting)
Turing machines don't have interrupts, amongst other things, which is why they are deterministic and mathematically tractable.
Just a correction: our computers aren't Turing machines because they have finite memory, not because they have interrupts. Analyzing arbitrary machine code is tractable on a real Turing machine with infinite memory, it's just that any such analysis may not run within the bounds of current computer memories, and even if it could, its runtime or resource consumption may not make the analysis actually useful.
Parent
Re:Best quote (Score:5, Insightful)
But this ignores the constitutional requirement that it promote progress:
Teles AG says:
This is the same argument used in favor of the Sony Bono Copyright Term Extension Act yet at the time the United States was one of very few nations to actually extend copyright to such a length. In this case the U.S. is one of very few nations to support software patents.
Parent
Re: (Score:3, Informative)
But this ignores the constitutional requirement that it promote progress:
It is not obvious that business method patents hinder the progress of the useful arts, and merely stating it does not make it so. But if you have a good argument for why business methods are contrary to the constitutional purpose of patents, then by all means compose and submit an amicus curiae brief in support of the Respondent. The due date is October 2nd. You don't have to be an attorney to submit an amicus brief on your own behal
Re:Best quote (Score:5, Insightful)
> It is not obvious that business method patents hinder the progress of the useful arts
You declare ownership of a new business process. Because of this you can prevent
EVERYONE ELSE WHO DOES BUSINESS from benefiting from that new process. Alternately
you can FORCE EVERYONE to waste money licensing your process. Alternately, companies
lose the motivation to innovate because they might be sued by some jerk like you.
Every patent allows the patent owner to cause trouble for everyone else for the next 17 years.
It's far better that Dell can't patent build to order rather than being prevented from
inventing it in the first place because a bunch of bogus process patents choked him when
he was a startup.
Software patents are a clear counterexample to your rubbish idea that the other side
of the argument is just making empty claims.
Patents exist to encourage inventors to disclose useful information, not to enable large
corporations to be bridge trolls.
The most frightening idea in all of those amicus briefs is the idea that medical procedures
might be patented. That's about the most horrific and destructive idea you could possibly
come up with. Doctors invent because they take their oath to Hypocrates seriously, not because
they identify with Crassius Maximus.
Parent
Re: (Score:3, Insightful)
You declare ownership of a new business process. Because of this you can prevent EVERYONE ELSE WHO DOES BUSINESS from benefiting from that new process.
Suppose someone invents a new mechanical device and patents it. The patentee can now prevent everyone else from making a business out of making, using, selling, offering to sell, or importing the patented device. In that sense, all patents declare ownership over a new business process. Business method patents are just applied economics in the same way that
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Wrong, and you know better. It could be something a lot of people were already doing, but if they had not documented their process in a way the patent office understands as "prior art" (which, as we've learned, is pretty much nothing), the patent can STILL stand. 35 USC 273 states this EXPLICITLY: If I was
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It could be something a lot of people were already doing, but if they had not documented their process in a way the patent office understands as "prior art" (which, as we've learned, is pretty much nothing), the patent can STILL stand.
The PTO, of course, limits itself to (easily accessible) printed publications, patents, and patent applications because those are all easy to use forms of prior art. But prior use is normally very easy for a defendant in a patent infringement suit to show except when the prio
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In my opinion, the problem is not that people have been patenting business processes but they have been patenting the end result, the very basics (one-click or how to make purchases on the internet) or the very starting point (the mathematics (algorithms) behind it) of processes.
HUGE difference (Score:3, Interesting)
The huge diference is that you cannot use a TRIVIAL mechanical process and patent it, or even use that p
Re: (Score:2)
But this ignores the constitutional requirement that it promote progress:
Teles AG says:
Do you have a citation for this (that it's "patent laws are only valid if they promote progress" rather than something silly like "patent laws are assumed to promote progress"), that could maybe be added to Wikipedia? It says [wikipedia.org]
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Is there such a requirement? Can you point to case law indicating one way or another? I could easily see there being rulings that "[t]o promote the progress of science and useful arts" is merely explanatory, and does not impose any requirements on the patent process.
35 U.S.C. 273 (Score:4, Informative)
35 U.S.C. 273 refers to business method patents but *does not* specifically allow them. Whether 35 U.S.C. 273 approves of business method patents implicitly is left as an exercise for lawyers writing supreme court briefs...
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From 35 U.S.C 101:
Whoever invents or discovers any new and useful process... may obtain a patent therefor, subject to the conditions and requirements of this title.
From 35 U.S.C 273:
(a) DEFINITIONS.- For purposes of this section- ...
(3) the term "method" means a method of doing or conducting business...
(3) LIMITATIONS AND QUALIFICATIONS OF DEFENSE.- The defense to infringement under this section is subject to the following:
(A) PATENT.- A person may not assert the defense under this section unless the invention for which the defense is asserted is for a method.
While business methods are not explicitly defined in the patentable inventions code (that's code 101, part of which I posted above), the code itself is very short and doesn't explicitly define anything.
If the criteria you go by regarding what is patentable is whether or not it was specifically defined in the Patent Code, then the lightbulb was not patentable either, because electronic devices are not specifically defined in the Patent Code. See what I'm getting at? We h
Re: (Score:2, Insightful)
Based on the section title, I would say that 35 USC 273 has nothing to do with patents being *allowed*:
http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_273.htm [uspto.gov]
"35 U.S.C. 273 Defense to infringement based on earlier inventor."
This section is defined by the words "defense to infringement", an act that has nothing to do with getting a patent granted. Since proof of this defense shows that prior-art existed for the patent in question, it should actually invalidate any patent that this defense
More amicus briefs to come, probably (Score:5, Informative)
The 44 amicus curiae briefs that have been filed so far are only those submitted in support of the Petitioners (i.e., the inventors Bilski and Warsaw) or in support of neither party. Amicus briefs in support of the Respondent (i.e., the Patent Office) will be submitted after the Respondent's merits brief is submitted, which will occur on or before September 25. Once the merits brief is submitted, amici have 7 days to submit briefs in support of the Respondent.
While I don't expect there to be quite the same volume of briefs supporting the PTO as the Petitioner, there will probably be at least a few.
Here is the the Supreme Court docket for the case [supremecourtus.gov].
Full Disclosure: I work for the team [hoover.org] that wrote the brief of Dr. Ananda Chakrabarty [hoover.org] (he of the Diamond v. Chakrabarty Supreme Court case that established the patentability of genetically modified organisms).
Anonymous Coward (Score:3, Interesting)
FYI -- the Bilski patent application is not considered a "software" patent application. Instead, it is considered a pure "business method" (i.e., a method of performing some business-related task that it not necessarily tied to any specific hardware, e.g., a computer).
If the Supreme Court strikes down the patent under 101, this particlar fact pattern and the resultant decision will not necessarily lead to the death of software patents. However, if the Supreme Court determines that that Bilski patent application is patent eligible, then software will be patentable unless Congress eliminates software patents by law. The reason for this is that pure business methods are considered closer to "abstract ideas," which are not patentable, than software patents since software is always used on a machine (i.e., a computer).
The whole case could turn on the 35 U.S.C. 273 issue. The Supreme Court can rely on some very technical rationale for deciding a case, and one of these is called "statutory construction." One such rule is that a statute will be interpreted so as to be internally consistent such that a particular section of the statute shall not be divorced from the rest of the act. 35 U.S.C. 273 refers to a defences to infringement with regard to business methods. It would appear to be internally inconsistent to have a "business method" be nonstatutory under 35 U.S.C. 101 while still provide a defense for someone infringing a business method. If one cannot patent a business method, then one cannot infringe a business method. If one cannot infringe a business method, there is no need for a defense against infringement.
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To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
If it can be proven (and I'm sure it can) that software patents do not promote the progress of science and arts, then this line allows them to basically re-work patent law. Business method patents, software patents and other non-tangible or non-applied patents really haven't done a single thing to promote the progress of science and useful arts. So with that one line, they can perhaps argue that it goes against the constitution to implement patent/copyright law that goes against that.
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Forget it; this argument is a loser. The courts will defer to Congress on that issue. Of course, Congress didn't explicitly authorize the business method patents
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Honestly and genuinely ..... (Score:2)
Imagine some simple algebraic calculation being patentable because the base math numerical system being used is the roman numeral system, which is not simply and directly capable of doing such a calculation.
Now Imagine when software patents will be look back on in hindsight of a corrected navigational mapping software development system.
How are those supporting software patents today, going to be viewed tomorrow? As barbaric?
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I think the problem is that too many obvious software patents have been granted. Suppose Cooley and Tukey had been the first to figure out the fast Fourier transform (they weren't, but suppose they were). Wouldn't they have been deserving of a patent, had they wanted one?
Please tell me... (Score:2, Interesting)
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
Can someone please tell me how software patents are promoting the progress of science/useful arts? There are -many- countries who don't have software patents yet software still comes out of those countries.
There is not a positive thing that has come out of software patents. The quality of software hasn't improved, patent trolls are numerous, oh and because of software patents there are many incompatibilities in software that lead to many, many problems.
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There is not a positive thing that has come out of software patents.
Google was able to rise to dominate search and challenge Microsoft primarily because of its numerous software patents. Without those patents, Microsoft, Altavista, Yahoo, or any other company could have used Page Rank and other algorithms covered by Google's dozens of software patents. Only part of Google's success is its good web design and marketing savvy. A huge part is the fact that it just plain does search better than almost anybod
Re:Please tell me... (Score:4, Insightful)
> Say an inventor comes up with a brilliant new algorithm for efficiently and accurately modeling
> fluids on a computer. There are many possible applications: computer graphics, weather simulation,
> etc. The inventor would like to maximize his or her profit from the invention.
This presumes that the crass entrepeneur is the driver of innovation in software.
Usually it's the exact opposite sort of person that drives software or scientific innovation. The
current patent regime threatens to mire this sort of person in a quagmire of pre-existing and largely
trivial patents. Even if this person were a genuine entrepenuer they would have to deal with the legal
minefield of patents and quite likely would be in a very weak position to deal with hostile potential
competitors with large patent portfolios to club him with.
Necessity is the mother of invention, not greed.
Parent
Re: (Score:2, Informative)
This presumes that the crass entrepeneur is the driver of innovation in software.
The PageRank algorithm on which the Google empire rests was invented by Larry Page and Sergei Brin. They published the algorithm, patented it, and went on to become incredibly successful 'crass entrepreneurs.' Google owns dozens of software patents on key technologies such as its Map-Reduce implementation and AdWords. Few would say that Google is not a driver of innovation in software.
Usually it's the exact opposite sort of
Re:Please tell me... (Score:4, Insightful)
Google's patented search algorithm is not a driver of innovation in software. They have carved out their own niche in searching, in which they stand alone; no one builds on their work.
And if they really have a patent on MapReduce, that's a bad one too. Distributed software has used the general idea since before Google existed. I haven't read their actual claims, however.
Parent
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Microsoft rose to dominance at a time when software was not patentable. That's one of the reasons why Embrace, Extend, Extinguish worked so well:
As opposed to now? I've got news for you, most software companies are still very wary of Microsoft. That's one of the reasons there is so much push to develop for the web using open standards, so as not to get extinguished by Microsoft.
That's true, but then the public would never find out about the invention.
That's a pretty absolute assertion you're making. Do you really believe that software patents are the only way knowledge of software inventions gets transferred/created in our society? And do you really believe that the only thing protecting Google or Amazon from being copie
Why is the focus on patentability of processes? (Score:3, Insightful)
I'd rather see submarine patents be got rid of or patent transferability restricted to get rid of the patent trolls and the "patent holding companies".
At least people who come up with these processes, come up with something. The trolls are just in the business of collecting patents and wait for their chance to cash in.
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I'd rather see submarine patents be got rid of
Submarine patents are no longer a serious issue. Patents now expire 20 years from the date of filing, so keeping a patent application stuck in the patent office forever is a good way to end up with an expired patent, which is not particularly useful. Furthermore patent applications are now published after 18 months, so the world is put on notice fairly early on in the patent application process.
There may be a few submarines left from the pre-June 8, 1995 days,