Supreme Court Review of Bilski Heats Up 121
I Don't Believe in Imaginary Property writes "The Supreme Court's review of In Re Bilski (discussed here numerous times) 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."
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.
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.
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...
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).
Re:Best quote (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 behalf.
In this case the U.S. is one of very few nations to support software patents.
This case is not about software patents. Here are the questions presented in the case:
1. Whether the Federal Circuit erred by holding that a "process" must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing ("machine-or-transformation" test), to be eligible for patenting under 35 U.S.C. 101, despite this Court's precedent declining to limit the broad statutory grant of patent eligibility for "any" new and useful process beyond excluding patents for "laws of nature, physical phenomena, and abstract ideas."
2. Whether the Federal Circuit's "machine-or-transformation" test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect "method[s] of doing or conducting business." 35 U.S.C. 273.
Now it is true that the case has implications for software patents, diagnostic method patents, etc, but concerns about software patents and the like will be, at most, secondary public policy considerations in the Court's decision making process.
That said, the point about international harmonization is that other countries and the EPO have broad definitions of patent eligible subject matter. The EPO, for example, says "European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step" with the further proviso that the invention must be of a technical character. Now, the EPO has a specific exclusion for business methods, but it is just that: a specific exclusion. The test of patentable subject matter remains broad. The argument is that the US should do the same: broad patentable subject matter with (if necessary) specific exclusions as determined by Congress rather than the courts. As it so happens, there are many good arguments that Congress has not yet excluded (and might never exclude) business methods from patent eligibility.
Full Disclosure: I work for the team [hoover.org] that wrote the amicus brief of Dr. Ananda Chakrabarty [hoover.org] (he of the Diamond v. Chakrabarty Supreme Court case that established the patentability of genetically modified organisms).
Re:Anonymous Coward (Score:2, Informative)
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. However, its effect might be limited by the annoying "necessary and proper" clause.
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.
Re:Best quote (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 previous use as a floor wax. It is true that the inventor cannot patent Compound X again just because a new use has been discovered. But what the inventor can patent is a method of use of Compound X as a baldness treatment, specifying the dose and treatment regimen. This is true in the US though not true in many other jurisdictions.
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.
The protection provided by copyright is very narrow: it extends only to the literal source and machine code, not to the algorithm generally. For example: suppose one discovers a new efficient algorithm for simulating fluids. This has many potential applications: special effects, computer games, weather simulation, etc. Now suppose one publishes the algorithm and implements it in a specific program: a computer game. Nothing in copyright law stops everyone in the world from implementing the published algorithm in their own games, weather simulators, special effects software, etc. So long as they don't directly rip off the inventor's code but instead create their own implementation of the idea, they are in the clear.
So what's a business to do? A common thing to do is keep the algorithm a secret and keep the source closed. The public will never learn about the algorithm.
Software patents step in to fill the gap left by copyright. A patent on the fluid simulation algorithm protects any implementation of it in any domain. This allows the inventor to sell or license the rights to the highest bidder in each field. In the mean while, the public gets to see the algorithm published as a patent, and they are free to create and patent improvements as well as design around it. When the patent expires, the public is free to use the original idea. If the idea becomes outdated (e.g. because an open-source competitor designs a better alternative), then the patent will be worthless, the owner will stop paying the maintenance fees, and the invention will enter the public domain ahead of schedule.
Re:Please tell me... (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 person that drives software or scientific innovation.
That's a fairly strong claim. Would you care to provide evidence that innovators are not motivated by financial reward, which is typically either received directly through their own crass entrepreneurship or indirectly through the commercialization of their innovations by others?
Who, in your view, is driving innovation in software? It's not open source: A study of 500 mature, actively-developed open source projects [mit.edu] found that only 1% of them included a new technology and addressed a new market or user need.
Necessity is the mother of invention, not greed.
Then why have a patent system at all?
Re:Best quote (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 a patent on their particular extension.
The difference between theory and practice (Score:2, Informative)
In theory, there is no difference between theory and practice. But, in practice, there is. -- Jan L. A. van de Snepscheut [wikiquote.org]
A Turing machine [wikipedia.org] is a form of thought experiment with utility in many aspects of information science and mathematics. It was never intended as a platform to prove algorithms. That it has uses for algorithms is part of the proof of its general utility - which in the modern day goes far beyond afield of computer science. Typically algorithms are expressed not as Turing Machine code but in a format similar to a mathematical proof, in an actual programming language or as something called "abstract code" which has similarities to actual programming languages but without the distractions of implementation details.
The assumption that a pure algorithm must use a Turing machine as a standard platform is revealed as an error in this way: Turing machines have not only infinite storage, but infinite performance - the time to perform operations is not important to the operation of a Turing machine. For algorithms though efficiency of performance in number of operations, and hence time, is second only (and sometimes not even then) to correctness. Efficient use of resources like memory is an important metric for evaluating fitness of an algorithm. The Turing Machine doesn't consider these metrics because its purpose is not to find fit algorithms, but rather to serve as a generic type of operator for mathematic functions dealing with information.
In his momentous paper "On Computable Numbers, with an Application to the Entscheidungsproblem"[14] (submitted on 28 May 1936), Turing reformulated Kurt Gödel's 1931 results on the limits of proof and computation, replacing Gödel's universal arithmetic-based formal language with what are now called Turing machines, formal and simple devices. He proved that some such machine would be capable of performing any conceivable mathematical problem if it were representable as an algorithm, even if no actual Turing machine would be likely to have practical applications, being much slower than practically realisable alternatives. - op. cit.
Although I agree with both you and the grandparent I feel you've missed some essence of the truth here.
On a completely different note: Determinism has some utility - it doesn't have all utility. Every lawyer and salesman knows that ambiguity can also be a useful tool.
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.