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."
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.
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.
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.
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.
HUGE difference (Score:3, Interesting)
The huge diference is that you cannot use a TRIVIAL mechanical process and patent it, or even use that patent to leverage money against ESTABLISHED other mechanical industry (Otherwise your mechanical device would not be an innovation but a copy of existing mechanical device). And this is the contention here : A lot of those business process patent are either trivial, already in use for decenny, copy of something existing but-with-computer or just plain mathematical application. You do not have such a problem with mechanical device patent.
Re:A wiki for Bilski and other swpat issues (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'". Note I totally made that up, but as far as I know such patents exist or are applied for on a regular basis. At some point, someone needs to step in and put on the Sanity Brakes.