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."
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.
Re:Yeaaa. and we independent developers get to see (Score:1, Insightful)
and no court can make innumerable developers who can make or break a new web/it tech your friend by force.
No, but the "default" choice is often a more powerful cohersive mechanism than the court system. How many people still have "Tom" as a friend on Myspace, or use Internet Explorer "because it's there"?
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.
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.
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.
Re:Best quote (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 mechanical device patents are applied physics.
Others are also free to design around the patent by inventing their own substitute mechanical device or business method. Theirs may even be a superior device or method, which is better for everyone. And they have an incentive to do so: not only can they avoid infringement or licensing fees, but they can exclude or license to others in turn.
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. No one ever has to change their business in response to a patent: that which infringes if later anticipates if earlier.
Every patent allows the patent owner to cause trouble for everyone else for the next 17 years.
20 years from the date of filing.
The most frightening idea in all of those amicus briefs is the idea that medical procedures might be patented...Doctors invent because they take their oath to Hypocrates seriously, not because they identify with Crassius Maximus.
Medical procedures can already be patented, but practitioners and 'related medical entities' (e.g., the hospital, clinic, etc where the practitioner works) has a defense against infringement. Anyway, lots of doctors invent out of a sense of self interest as well as a desire to help people. I work with medical researchers on a regular basis, and the commercialization of their work is what ultimately funds the labs they work in.
Just FYI, it's "Hippocratic oath," and it's not sworn to Hippocrates but rather to various gods, particularly Apollo.
Re:35 U.S.C. 273 (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 is successfully used against. It looks like it was written to a rare edge-case where the prior-art was put in practice yet not publicly documented, but I would still argue that such a prior implementation would also show the patent's obviousness (if this defense is validated, that means the patent claims in question were obvious to someone other than the patent filer, at least one year before filing). This whole section is written specifically to get businesses out of court who are determined to have "infringed a patent" at least one year BEFORE it was filed, without ever having contacted the filer. I don't see any way any court (or even a prejudiced but reasoned lawyer) could ever construe anything under a title like this to determine what kinds of patents the USPTO should *accept*. Being able to avoid infringement claims is the opposite of being able to have a patent granted.
Re:Best quote (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, but when the original Bilski case said that an algorithm tied to a specific machine is patentable, while one tied to a general machine isn't, you're purely in the semantic bullshiat area.
My take:
The point of this whole argument is to say that we don't want to make algorithms patentable. Specifically, we don't want someone's mental process to be infringement of a patent. If you patented the concept of 2+2=4, then someone reading your patent and understanding that when you add two to two, you get four would be infringing. This is a thoughtcrime, and that's bad. To be more realistic, we similarly don't want it to be an infringement when you read someone's patent on a method of diagnosing a disease and understand the method, or read a patent on a method of running a business and understand the method. Instead, it shouldn't be an infringement until you actually perform the method. But if it only requires mental steps, then understanding it is performing the method...
So that leads us to Bilski: it must be tied to a specific machine. Patenting 2+2=4 makes merely understanding addition a thoughtcrime. However, patenting "using a computer configured to add a first number, equaling two, to a second number, equaling two, to achieve a result, equaling four" could never be infringed by someone thinking through the steps, or even using a pen and paper. It requires a specific machine, so there can be no possibility of a thoughtcrime. You're not patenting the algorithm - you're patenting the computer performing the algorithm. Do it by hand, and you're not infringing. This allows inventors to improve on the design without infringing the patent, and simultaneously allows the inventor to exploit his invention without stifling innovation.
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.
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.
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.
Re:Best quote (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:A wiki for Bilski and other swpat issues (Score:3, Insightful)
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 develop,
Yes, it should not allow for the patent of ideas. This is counter to what patents are for, and undermines there value immensely.