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Supreme Court Review of Bilski Heats Up 121

Posted by kdawson
from the do-patent-leather-shoes-really-reflect dept.
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."
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Supreme Court Review of Bilski Heats Up

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  • by H4x0r Jim Duggan (757476) on Tuesday August 11, 2009 @08:35PM (#29032221) Homepage Journal

    I'm documenting this here: swpat.org/wiki/Bilski [swpat.org]. All help appreciated.

    • Re: (Score:3, Insightful)

      by SlashWombat (1227578)
      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
      • by testadicazzo (567430) on Wednesday August 12, 2009 @05:27AM (#29035115) Homepage

        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.

        • Incorrect (Score:3, Insightful)

          by geekoid (135745)

          "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

      • by TaoPhoenix (980487) <TaoPhoenix@yahoo.com> on Wednesday August 12, 2009 @07:59AM (#29036149) Journal

        Copyright protects Novel ideas. Patents protect the Automatic Author machine that produces Novel ideas.

        • by Tacvek (948259)

          Copyright does not protect ideas. Copyrights protect a particular expression of an idea. Nothing protects ideas themselves.

      • Re: (Score:3, Interesting)

        by DJRumpy (1345787)
        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.

        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
        • by Tacvek (948259)

          I'm not entirely sure patents serve any valid purpose anymore. Look at the term of a granted patent. In this era of rapid innovation a term that long can only hamper innovation. Now only 100 years ago (a small number of patent terms ago) innovation occurred at a much slower rate, and terms of that size may have made sense. But now, I'm just not so sure.

          Many of the patents I have seen filed recently are of the type that would have been invented even without the possibility of patent protection. Indeed often

  • by unity100 (970058) on Tuesday August 11, 2009 @08:40PM (#29032279) Homepage Journal

    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.

    • Re: (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"?

      • by unity100 (970058)

        these are not ordinary people who just use ie because it was there. i told, 'developers'. the very people who apple, google, microsoft et al are trying to lure to their stuff so that their stuff can gain momentum.

  • 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.
  • Best quote (Score:5, Interesting)

    by Anonymous Coward on Tuesday August 11, 2009 @08:53PM (#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.

    • Re:Best quote (Score:5, Interesting)

      by radtea (464814) on Tuesday August 11, 2009 @09:02PM (#29032445)

      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.

      • Re:Best quote (Score:5, Informative)

        by Antique Geekmeister (740220) on Tuesday August 11, 2009 @11:13PM (#29033105)

        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: (Score:2, Informative)

          by Grond (15515)

          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_. 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.

            I hope that you are not right. First of all: Discoveries are not patentable (as far as I understand the patent system). Second, you cannot patent the "how-to-use" description of compound X, you may create a new product that contains compound X and maybe patent its composition. But then, I know much about patents for software (which should not exist, but practically exist), and nothing about patents used in pharmaceutical products. I am not sure whether they are comparable.

            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.

            Yes. And you have built an app

            • I hope that you are not right. First of all: Discoveries are not patentable (as far as I understand the patent system).

              Oh, they are. Right down to patenting OTHER peoples' body parts...

        • Re: (Score:3, Insightful)

          by Theaetetus (590071)

          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)

            by aztektum (170569) on Wednesday August 12, 2009 @01:25AM (#29033857)

            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: (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.

            • 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.

              Why? 35 USC 101 has the word "process" as one of the categories of statutory inventions. What support do you have for the contention that a new use of something is not patentable?

        • Re: (Score:3, Informative)

          by russotto (537200)

          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

      • Re:Best quote (Score:4, Interesting)

        by naasking (94116) <naasking&gmail,com> on Wednesday August 12, 2009 @12:16AM (#29033457) Homepage

        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.

        • 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" whic

        • by radtea (464814)

          Just a correction: our computers aren't Turing machines because they have finite memory, not because they have interrupts.

          Finite memory is part of the "amongst other things" referred to in my original comment. That this is one reason why our computers are not Turing machines does not exclude other reasons. In particular, if you had a computer with infinite memory and interrupts, it would still not be a Turing machine, and would be able to do things (respond to real-world, real-time inputs) that no Turing

          • by naasking (94116)

            If you disagree with this, then please show me where in the formal definition of a Turing machine interrupts can be made to happen. I don't see it.

            This is a myth. The lambda calculus and Turing machines are equivalent. Functional Reactive Programming is how the lambda calculus would handle interactive input. A corresponding mechanism can therefore be derived for Turing machines.

      • by itsdapead (734413)

        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.

        I just hope that the "software shouldn't be patentable because software is math" brigade eventually come to understand this, and don't throw the pro-patent lobby into the briar patch.

        There was a long discussion on Groklaw a while back (following a statement by Knuth [groklaw.net] along these lines) and the argument seems very seductive to some people.

        The problem is, this argument is "not even wrong" (try and disprove it and you're arguing math with Knuth and Turing - good luck with that!) However, to use this as an arg

    • Re:Best quote (Score:5, Insightful)

      by slashqwerty (1099091) on Tuesday August 11, 2009 @09:38PM (#29032611)
      The Accenture brief states:

      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.

      • Re: (Score:3, Informative)

        by Grond (15515)

        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)

          by jedidiah (1196) on Tuesday August 11, 2009 @10:46PM (#29032973) Homepage

          > 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: (Score:3, Insightful)

            by Grond (15515)

            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

            • by russotto (537200)

              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

              • by Grond (15515)

                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

                • by russotto (537200)

                  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.

                  There's numerous instances of the PTO not even paying attention to previous patents.

                  Party B could also invalidate the patent through disclosure in a printed publication or a patent application but again it chose to keep it secret.

                  There's a large gap between "secret" and "published"; a business method could be widely used without ever being forma

            • by guruevi (827432)

              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)

              by aepervius (535155)
              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
              • by Grond (15515)

                The huge diference is that you cannot use a TRIVIAL mechanical process and patent it

                The test of patentability is not "non-trivial" but rather new, useful, and nonobvious. In any event, there are lots of 'trivial' patents that aren't business methods. There are, for example, dozens of patents on coffee cup sleeves, toilet paper, plastic cups, etc. For the most part these are small, some would say 'trivial' improvements over the prior art. But as long as they are new, useful, and non-obvious, the fact that

            • > 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.

              Assuming you're talking about the defense I think you're talking about, that defense doesn't apply to biotech patents, which makes it something of a trap.

              Also, the medical procedures he's probably talking about are a reference to a prior story when the "procedure" was entirely mental with no post-solution activity

            • by jedidiah (1196)

              > Suppose someone invents a new mechanical device and patents it. The patentee can now prevent everyone else

              Yes. This is also a VERY REAL ISSUE.

              The fact that a patent confers upon the "inventor" a 17 year license to be a d*ckhead is something that should be seriously considered in all of this.

              This is why it should be really hard to get a patent.

              The effort in getting a patent should reflect the amount of effort that the information in the patent represents.

              Patents should be for the "hard stuff" not stuff

              • by Bigjeff5 (1143585)

                This is why it should be really hard to get a patent.

                The effort in getting a patent should reflect the amount of effort that the information in the patent represents.

                Patents should be for the "hard stuff" not stuff that any ditz practicing in the field can come up with.

                Here's the rub:

                Joe Blow inventor has an epiphany, and invents a super cheap, easy method of turning lead into gold. This would revolutionize industry and economy as we know it.

                However, because the patent process has been made extremely difficult, it now requires millions of dollars and teams of lawyers in order to get a patent pushed through. The only way he can gather the funds is to start using his invention. Company X finds out about it, realizes what is so simple (but at the same time unique, non-obv

          • by jedidiah (1196)

            In some cases, it's far better to force everyone to "re-invent the wheel"
            rather than allowing for first implementors to stiffle progress by suing
            anyone that recreates or improves upon their ideas.

            Imagine what you were computing with 17 years ago. (assuming you were at all)

          • Doctors invent because they take their oath to Hypocrates seriously, not because they identify with Crassius Maximus.

            No they take their oath to Hippocrates. http://en.wikipedia.org/wiki/Hippocrates [wikipedia.org]

      • 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.

      • by Dhalka226 (559740)

        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 rhizome (115711)

      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.

      "Novartis (08-964tsacNovartisCorporation.pdf) A process of diagnosis should be patentable."

      You sure you want to go down that road?

  • 35 U.S.C. 273 (Score:4, Informative)

    by Anonymous Coward on Tuesday August 11, 2009 @08:55PM (#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...

    • by Bigjeff5 (1143585)

      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)

      by TakeyMcTaker (963277)

      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

    • > 35 U.S.C. 273 refers to business method patents but *does not* specifically allow them.

      The summary probably should've said that the section "explicitly allows for" them, because it mentions defenses against them (which would be unnecessary if those patents didn't exist and weren't presumed to be patentable).

      Any misunderstanding probably came from this:

      2. Whether the Federal Circuitâ(TM)s âoemachine-or-transformationâ test for patent eligibility, which effectively forecloses meaningful pa

  • by Grond (15515) on Tuesday August 11, 2009 @09:35PM (#29032589) Homepage

    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)

    by Anonymous Coward on Tuesday August 11, 2009 @09:35PM (#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.

    • Re: (Score:2, Informative)

      by Darkness404 (1287218)
      In the constitution:

      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.

      • by russotto (537200)

        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

      • In the constitution:

        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.

        People have been claiming they can prove this for twenty years, but no one has. And in the past twenty years, we've had astounding innovation in information technology. You've got a really tough road to climb here.

        Plus, as others have pointed out: when it comes down to a fact-dependent issue like this, the Court - which has limited investigatory abilities - will defer to Congress. If Congress legislated business method patents (which they appear to have done so in 35 USC 273), then they must have felt that

        • by amh131 (126681)

          I'm not going to argue about the software patents being applied -- I agree, they certainly are! But I will take exception to the notion that my brain isn't a computing device and even if it isn't, then the pencil and paper I'm using *definitely* is. This is the fundamental problem that I have with software patents; there are many, many different ways to create a computing device and it seems like a software patent applies to all of them, including the pencil and paper. Otherwise, avoiding the software pa

          • But I will take exception to the notion that my brain isn't a computing device and even if it isn't, then the pencil and paper I'm using *definitely* is.

            I figured someone would trip up on that. I specifically said, "... your brain is not a computing device as it is almost always defined in the patent specification." (emphasis added).

            Under patent law, the inventor is his or her own lexicographer. Though the claim may say "computing device" and someone might interpret "computing device" as "any device that can be used for computing", including a pen and paper and the human brain, you have to go to the specification. The inventor is allowed to define "computi

    • by russotto (537200)

      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

  • ..... Software is NOT a patentable subject matter [abstractionphysics.net]

    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?

    • by ceoyoyo (59147)

      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)

    by Darkness404 (1287218)

    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.

    • by Grond (15515)

      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

      • by jedidiah (1196) on Tuesday August 11, 2009 @10:53PM (#29033007) Homepage

        > 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: (Score:2, Informative)

          by Grond (15515)

          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

          • by russotto (537200) on Wednesday August 12, 2009 @12:00AM (#29033371) Journal

            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.

          • by jedidiah (1196)

            > Would you care to provide evidence that innovators are not motivated by financial reward

            The two grad students you mentioned.

            They "invented first" as part of the academic process and then later created a cash cow.

            An painful self-nuke on your part.

        • by DaveV1.0 (203135)

          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.

          Please prove that statement.

          Please bear in mind that most people who make something are looking to make money from it. Even those that do so for altruistic reasons need to support themselves and thus the ability to earn money via patents and copyrights allow those same people to go on to develop more and better items while supporting t

          • by jedidiah (1196)

            > Please prove that statement.

            Who invented the first home computer?
            Who invented the spreadsheet?
            Who invented Unix?
            Who invented the GUI?
            Who invented the Web Browser?

            Even the "flagship" example of Google is bogus.

            People need stuff. They will make stuff because they need it.

            Some problems are really hard or require a great deal of creativity.

            Others are essentially stolen (Ford, Edison) or represent the state of the art (Edison).

            What a joke it would be if someone went back in time and forced Ford to license a

            • by DaveV1.0 (203135)

              Seems to me, you need a lesson in the History of Modern Digital Computing.

              Who invented the first home computer?

              That would be Apple, a couple of guys working out of a garage who promptly sold them as kits (those entrepreneurial bastards!), followed by RadioShack (those corporate bastards!). But, would the "home" computer exist without the personal computer, which was invented by DEC (those corporate bastards!) in the early 1970s?

              Who invented the spreadsheet?

              Software Arts Inc.(those corporate bastards!), s

      • 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

        • by Grond (15515)

          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?

          That's not what I asserted. I asserted that if an algorithm is kept a trade secret and the source code closed then the public will never find out about it (barring, of course, illegal disclosure of the trade secret or independent discovery by another party that then discloses it).

          And of course software patents are not the onl

      • > 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 anybody else.

        Errr... the difference between idea and execution is a larg

      • by Alsee (515537)

        Say an inventor comes up with a brilliant new algorithm

        You're begging the question.

        "Say a Brain Surgeon comes up with a brilliant new tail fin for rockets."
        That does not mean rocket science is brain surgery, and it certainly does not make rockets into brains.

        But more to the point, the Supreme Court has explicitly and repeatedly ruled out the notion of inventing/patenting algorithms:

        algorithm, or mathematical formula, is like a law of nature, which cannot be the subject of a patent

        and

        the Court made it clear

  • by Wolfier (94144) on Wednesday August 12, 2009 @12:12AM (#29033437)

    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.

    • by Grond (15515)

      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,

    • Uh... because the Bilski patent was a process patent, perhaps? You want the Supreme Court to go ahead and address abortion or affirmative action with this case while they're at it?
  • "Chakrabarty (08-964 Chakrabarty.pdf) Brief by Scott Kieff and Richard Epstein argue that patent rights operate "like a beacon in the dark" to start conversations between innovative entities and potential users."

    "like a beacon in the dark . . . leading the gullible across an unmapped minefield, held aloft by cannibals intent staking your crippled body to the ground and eating your remains (with or without your being dead first)." might be a better description there - {G}

    Pug

  • Anyone else notice in TFA that one of the briefs was filed by:
    Austin IP Law Ass'n

"Mach was the greatest intellectual fraud in the last ten years." "What about X?" "I said `intellectual'." ;login, 9/1990

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