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Patents Your Rights Online

SFLC Tells SCOTUS, "Software Patents Are Unjust" 130

Posted by kdawson
from the trollocide-and-more dept.
H4x0r Jim Duggan writes to inform us that the day after Red Hat advised SCOTUS that software should not be patentable, the Software Freedom Law Center filed its amicus brief in the Bilski case. "In this closely-watched case, the Supreme Court will decide whether the Court of Appeals for the Federal Circuit was correct in restricting patentable processes to those 'tied to a particular machine or apparatus,' or which 'transform[s] a particular article into a different state or thing,' a conclusion which if fully implemented could bring to an end the widespread patenting of computer programs. ... This case gives the Supreme Court a chance to reaffirm what its past cases have held for more than a century: that no patent law consistent with the US Constitution can permit the monopolization of abstract ideas." Groklaw is running the usual cogent gloss with the full text of the SFLC's brief.
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SFLC Tells SCOTUS, "Software Patents Are Unjust"

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  • by Timothy Brownawell (627747) <tbrownaw@prjek.net> on Saturday October 03, 2009 @10:37PM (#29632409) Homepage Journal

    The last part, which starts at "II. For Many Software Developers, The Patent System Is Unjust. [endsoftpatents.org]", deals with how software patents have proved to hinder, rather than promote, the progress of the useful arts - which means they have no valid constitutional basis.

    Will this section be worth anything if neither party is actually asking for software patents as a whole to be thrown out? (And why would they ask for that? My understanding is that the patent they're arguing about is about business methods rather than software, and that business method patents as a category are quite a bit hokier than even software patents.)

  • by JimboFBX (1097277) on Saturday October 03, 2009 @10:38PM (#29632411)
    A patent should be defined as a solution to a problem. Define a problem, give it to someone with no prior knowledge of the solution, ask for a solution, then compare the answers (if there are any) to the one the patent came up with. You should be able to present the problem it to peers in a field and determine if it is obvious or not based on their answers (or lack of).
  • by wizardforce (1005805) on Saturday October 03, 2009 @11:17PM (#29632551) Journal

    The sad thing is that you are completely right. The powers that be are stuck in Keynes era economic thinking that speculates the proper allocation of resources results in an overall loss of jobs... It doesn't any more than the loss of the buggie whip industry did but there it is.

  • by petrus4 (213815) on Saturday October 03, 2009 @11:32PM (#29632603) Homepage Journal

    ...it leaves a bitter taste in my mouth.

    I have grown to hate both the SFLC and the FSF, personally. The two organisations have proven themselves as breeding grounds for fanatical trolls (Bradley Kuhn, Stallman, and their followers) who harm the public image of FOSS, and who cause much division and conflict.

    The problem with scenarios like these, is that they give people like Stallman and Kuhn the idea that there is valid justification for their existence. If the Supreme Court ends up making a beneficial decision here, you can be sure that the FSF and SFLC will take full credit for it.

    This could, in turn, have the deeply undesirable outcome of giving the FSF renewed relevance and public favour, at a time when community opposition [boycott-bo...novell.com] to them has never been higher. In terms of his public image, Richard Stallman is potentially on the ropes right now, and I do not want to see him given the opportunity to recover.

    The end of software patents could only be a good thing, yes, but it needs to be a victory for software developers in general; not merely a PR or false moral victory for the FSF.

    The enemy of my enemy, is not my friend.

  • Re:indeed (Score:5, Interesting)

    by plover (150551) * on Sunday October 04, 2009 @12:03AM (#29632701) Homepage Journal

    The patent system was established with the intent to create temporary monopolies for inventors in order to encourage the development and dissemination of that R&D throughout society. The problem is that too often, it's used to destroy competitors.

    OK, let's look at one of the industries most reviled for price gouging in America: pharmaceuticals. They claim to spend anywhere from $100 million to a billion dollars or more to come up with a successful new drug. They patent it. Then, with the required years of development and testing, they get to put it on the market for maybe 12 years or so, without competition, and they charge anywhere from $100/month to $1000/month or more. After 12 years, GenericCo starts selling them for $4/month, so they then have to drop their prices to compete.

    For the moment, let's ignore all the criminal and other misdeeds of big pharma (phony studies "proving" generics are bad, misleading marketing to doctors and politicians including golf trips to St. Andrews, selling pointless medicines for not-serious conditions such as "restless leg", "weak boners", etc.,) and focus on just the patent portion of this.

    If it took them $500 million dollars to create the drug, and they have only 12 years to sell it, they have to make more than $500 million dollars to make the investment worthwhile. Don't forget, for each useful drug they invent, they also invest millions on drugs that don't work, or drugs that are eventually shown to have toxic side effects and must be pulled from the market. And just about every death that occurs while a patient is taking their drug ends up with a lawsuit that must be defended against.

    Without that 12 year period of patent protection, generic drug companies could usually start making cheaper products almost immediately. There would be no reason for pharmaceutical firms to continue to pump a billion dollars into any drug if it's never going to see its return on investment, so innovation would end. The search for a cure for cancer, or of the many chronic conditions such as lupus, muscular dystrophy, etc., would end because there's no profit to be made even if they succeed.

    That's the general argument in favor of patents. As a society, we pay the creative and smart people to keep being creative and smart. Do I want them to stop innovating, and not create the cure for whatever disease I'll come down with in 3-5 years? I certainly hope not!

    The question here is: does this imply the same for software patents? Not even close. The bar to entering the software market is non-existent. Anyone with a computer and internet connection can download a professional quality operating system and developer studio for free, take online courses in everything from programming and calculus to software engineering, and start innovating almost immediately. It costs them almost nothing to produce and deliver their products, and they have limited to no liability to the users of them. In contrast to the hundreds of pharmaceutical firms, there are millions of developers. Innovation is going to happen continually with or without patents. And innovation is global: what is created in Shanghai can be downloaded in Chicago in seconds.

    Even if Bilski is kind of an "end run" around the general issue of patents on software being a bad idea, they should still be prohibited before they make the United States a pariah of developed software.

  • by donaldm (919619) on Sunday October 04, 2009 @12:07AM (#29632711)

    A patent should be defined as a solution to a problem. Define a problem, give it to someone with no prior knowledge of the solution, ask for a solution, then compare the answers (if there are any) to the one the patent came up with. You should be able to present the problem it to peers in a field and determine if it is obvious or not based on their answers (or lack of).

    I can see were you are coming at but what you have said actually reinforces software or any abstract idea as patentable. What is really needed is to define what can and cannot be patentable and that is not going to be easy since patents are defined according to how the law perceives patents and to make things even more difficult it is very easy to misinterpret what is ment in one language to what the translation means in another. It becomes even more difficult when your own language (in my case English) can also be interpreted in different ways in the eyes of the Law.

    To ask a peer to look at whether a patent is obvious or not is commendable but not really practical since it would be just about impossible to get a peer review since money is usually involved and the cost of getting a patent revoked once issued no matter how stupid or trivial can be very expensive.

    I think the best way of getting rid of stupid patents is not to allow abstract ideas or mathematical concepts but to insist on physical results. However when I look at some physical electrical patents (I am an Electrical Engineer) I am appalled, since some of these are actually based on a minor change to an existing system and IMHO this should never be patentable. At least getting rid of software patents could go a long way to fixing what is really a complex issue.

  • Re:indeed (Score:4, Interesting)

    by Theaetetus (590071) <theaetetus...slashdot@@@gmail...com> on Sunday October 04, 2009 @12:37AM (#29632831) Homepage Journal

    The question here is: does this imply the same for software patents? Not even close. The bar to entering the software market is non-existent. Anyone with a computer and internet connection can download a professional quality operating system and developer studio for free, take online courses in everything from programming and calculus to software engineering, and start innovating almost immediately. It costs them almost nothing to produce and deliver their products, and they have limited to no liability to the users of them. In contrast to the hundreds of pharmaceutical firms, there are millions of developers. Innovation is going to happen continually with or without patents. And innovation is global: what is created in Shanghai can be downloaded in Chicago in seconds.

    Even if Bilski is kind of an "end run" around the general issue of patents on software being a bad idea, they should still be prohibited before they make the United States a pariah of developed software.

    And without even addressing your question - which is a good one, and worthy of hours, if not days or months of debate - I ask this: is this a question for a legislative body with power to amend and redraft patent laws, or a question for a judicial body with power to interpret laws as they are currently written? 35 USC 101 allows patenting of processes. Software is processes. Therefore, software is patentable... provided it doesn't fall under one of the narrow judicially-created exceptions. If software shouldn't be patentable - which is a different question than "is software patentable" - then Congress is the one that should amend 35 USC 101 to exclude software, not the Supreme Court. Otherwise, they're merely being activist judges.

  • by Nevyn (5505) * on Sunday October 04, 2009 @12:44AM (#29632863) Homepage Journal

    Who started up a campaign to end software patents? It wasn't Novell, or Red Hat,

    Red Hat has always taken the stance that Software Patents are bad and should die [redhat.com], and I would bet they have done much more to further this goal than the FSF. If only because they are a company, and have much more money.

  • Re:indeed (Score:5, Interesting)

    by drinkypoo (153816) <martin.espinoza@gmail.com> on Sunday October 04, 2009 @01:04AM (#29632951) Homepage Journal

    OK, let's look at one of the industries most reviled for price gouging in America: pharmaceuticals.

    yes, let's. When one of their drugs is about to go generic, or has even just lost its buzz in the media, they make a slightly different version of the same drug, receive FDA approval for the new drug on the basis that it ought to perform similarly to the old drug, and some extremely minimal testing which only must ensure that it is less harmful than a placebo. They then market the new drug as the best treatment for an ailment when in fact they do not really know if the new drug is more or less effective, since the study sample size is not large enough to determine that. Then you get Zyprexa.

    There is no fucking way that big pharma deserves any slack. None. Record profits, just like big oil. No fucking way.

  • Re:indeed (Score:3, Interesting)

    by causality (777677) on Sunday October 04, 2009 @01:17AM (#29633019)

    For the moment, let's ignore all the criminal and other misdeeds of big pharma (phony studies "proving" generics are bad, misleading marketing to doctors and politicians including golf trips to St. Andrews, selling pointless medicines for not-serious conditions such as "restless leg", "weak boners", etc.,) and focus on just the patent portion of this.

    You can decide to disregard that and pretend that it doesn't matter, but really this tells you quite a lot about with whom you are dealing when your focus is the pharmaceutical companies. More on that in a moment...

    Without that 12 year period of patent protection, generic drug companies could usually start making cheaper products almost immediately. There would be no reason for pharmaceutical firms to continue to pump a billion dollars into any drug if it's never going to see its return on investment, so innovation would end. The search for a cure for cancer, or of the many chronic conditions such as lupus, muscular dystrophy, etc., would end because there's no profit to be made even if they succeed.

    There is a single glaring flaw in your reasoning. There is one thing that pharmaceutical companies absolutely cannot do and have no hope of ever accomplishing: they cannot make a profit from healthy people. What are in my layman's opinion (I am not a doctor) designer diseases such as the restless leg syndrome that you mention are one of their responses to this dilemma. Advertisements that market prescriptions to the general public when the necessary medicine is supposed to be the doctor's decision are another response to the same dilemma. Likewise, they have no incentive whatsoever to cure anything, even when it is within their power; in fact they have a strong incentive against doing so. They have plenty of incentive to come up with medicines that you might call ongoing treatments, because they guarantee an ongoing source of income.

    Anything that remotely smells of this kind of motive doesn't deserve the protection of a government monopoly. So, I really don't see how patents are helping this situation. They seem to be protecting the cash cow more than anything else.

  • Re:indeed (Score:4, Interesting)

    by drinkypoo (153816) <martin.espinoza@gmail.com> on Sunday October 04, 2009 @01:53AM (#29633147) Homepage Journal

    Of course, Big Pharma is well known for not playing within the rules, and is certainly not above bribing 75% of Capitol Hill to get their way. But the answer there is to bring them back in line with the rules, not to change the process so they can't make "record profits."

    My point, to which you seem to have twigged only halfway, is very much that they ARE playing within the rules, and that the rules stink. If we have a government where spending more money on lobbying works better, and we permit patents to be used as they are, then the natural consequence is that they will be abused to the detriment of society. Patents are a legal fiction intended to benefit society. QED, if they don't do that, they should be abolished. Humanity will not lose its interest in fighting illness if we stop attaching profit to impeding the process. Much of what big pharma does is in fact harmful to the process of healing illness, simply because they are willing and able to sell ineffective or partially effective products.

    I'm not arguing that we should eliminate capitalism, but that government intervention in the form of patents is half-assed. I don't complain about the size of the profit, I complain about the size of the ill-gotten profit.

  • A constitutional challenge might limit what congress could do in this case however. You can argue that perhaps the courts don't care about the constitution, but a constitutional argument against a provision effectively even kills the options even for congress. The only legitimate alternative is to amend the constitution, or to repeal constitutional review by the U.S. Supreme Court (something give to SCOTUS by law, not by the constitution).

    The one precedent that had SCOTUS establish a constitutional precedent where congress did eventually overturn that rules was with the internal revenue code (aka income taxes). It was overturned due to the fact that a new amendment was passed that explicitly permitted such a law to be enacted. That is a rather drastic step, and one that also requires the confirmation of a majority of the states as well. Certainly a back-door insertion from a minor bill won't get such a constitutional challenge overturned easily.

    Of course that is also one reason why SCOTUS is very hesitant to give out constitutional challenges to laws, such as in Eldred_v._Ashcroft [wikipedia.org] when a constitutional challenge was presented to copyright law passed by congress over the interpretation of the copyright clause. A similar argument could be made in this particular patent case under review as it also presents a constitutional challenge, and IMHO the constitutional arguments are actually weaker than in Eldred.

  • by Anci3nt of Days (1615945) on Sunday October 04, 2009 @06:47PM (#29639191)
    This constitutional argument completely ignores the requirement that to gain patent protection, one must disclose a working embodiment of the invention - that is they must publish how their invention works. To exclude the public from exploiting a software invention by patent does not preclude the public from understanding how the invention works, talking about it, experimenting with the ideas or even ultimately deriving a new invention based on the original that is sufficiently novel.

What is mind? No matter. What is matter? Never mind. -- Thomas Hewitt Key, 1799-1875

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