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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 H4x0r Jim Duggan (757476) on Saturday October 03, 2009 @11:17PM (#29632329) Homepage Journal

        The brief can be split roughly in three. There's the "Interest Of [endsoftpatents.org]
        Amicus Curiae" section, which is a long description of FSF, to inform the Supreme Court why they should be interested in reading the brief. Then there's the Argument, which has the remaining two parts. The first [endsoftpatents.org] is about the previous rulings which indicate that software has already been explicitly excluded by the Supreme Court. 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.

    • Re: (Score:2, Funny)

      by Anonymous Coward

      I read the brief, and the best part: the car analogy.

    • Re: (Score:3, Interesting)

      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.)

      • Will this section be worth anything if neither party is actually asking for software patents as a whole to be thrown out?

        Yes. The court's job is to decide on the point of law and it's not limited to following the request of either party.

        The last paragraph of FSF's Interests of Amicus Curiae [endsoftpatents.org] notes: Notwithstanding the contrary assertion at sec. I.C.3 (pages 36-44) of Respondentâ(TM)s brief, the Foundation submits respectfully that this case is an appropriate one to address patenting eligibility of comp

        • by Quothz (683368) on Sunday October 04, 2009 @02:53AM (#29633145) Journal

          Will this section be worth anything if neither party is actually asking for software patents as a whole to be thrown out?

          Yes. The court's job is to decide on the point of law and it's not limited to following the request of either party.

          That's true, but they are limited to ruling on the case at hand. SCOTUS has long held that the Constitution limits them to declaratory judgments, that is rulings that involve an actual dispute before them. SCOTUS will not rule that software patents are unconstitutional because they don't promote science and the useful arts in a case about business method patents.

          They may, however, rule that machine-independent patents fail that test. However, I suspect they won't, since it's a stupid argument--Congress, not the courts, is given the discretion to choose how to promote science and the useful arts. They may well strike down machine-independent patents, but I highly, highly doubt they'd second-guess Congress based on such a subjective criterion as whether it promotes good stuff, or at least explicitly.

          Mind you, even if SCOTUS does lay the smackdown on machine-independent patents, we'll still be in for round two: Whether a compatable computer is a specific-enough machine for patents to stick to it. Unless they rule very broadly, which would be very untypical of SCOTUS, that question will have to go through a full judicial vetting before the question of software patents is settled.

          • by H4x0r Jim Duggan (757476) on Sunday October 04, 2009 @04:38AM (#29633517) Homepage Journal

            This isn't so much a business methods case as it is a case of Bilski's patent. The CAFC rejected Bilski's patent and installed a test, and some of the patents that will fail that test are what we call software patents.

            There's no "business methods" line that the CAFC or SCOTUS have to stay within, and FSF's request is just for upholding of the CAFC's test and a clarification about when a computer (such as is used by Bilski's patented system) is or isn't a "particular machine".

            I take your points, but I still see this as by far the biggest chance we're getting this decade to fix this problem.

  • by JimboFBX (1097277) on Saturday October 03, 2009 @11:38PM (#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).
    • Re: (Score:3, Interesting)

      by donaldm (919619)

      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

      • by Teancum (67324)

        One of the problems facing both software and electrical engineers is the fact that ultimately all software and nearly all logic circuits can be expressed as either software or hardware. You can take nearly any logic circuit and express that as a computer algorithm, and you can take any program (yes, even something so bloated like Microsoft Windows) and express that as a whole bunch of discrete logic gates and even give pre-1980's part numbers for the whole thing. No, I'm not suggesting anybody would want

        • by Tweenk (1274968)

          One of the problems facing both software and electrical engineers is the fact that ultimately all software and nearly all logic circuits can be expressed as either software or hardware.

          For me the case is clear. You could only patent process technology and physical layout techniques, while the logic would be unpatentable. I think it's fair game. Moreover you can still keep designs confidential, like companies do with software source code.

    • by wvmarle (1070040)

      Ask any inventor and they will tell you that finding the problem is the main part of the invention. When you have found the problem, finding the solution is the easy part. That doesn't make a solution less patentable though. The old solution may have worked fine in most situations, and you found where it doesn't work and found a solution for that. Or you found a better way to do the normal stuff.

      For example, the problem of attaching two pieces of wood. The easiest way is to use some twine or rope to tie it

    • Re: (Score:3, Insightful)

      by Teancum (67324)

      A patent was originally defined as legal protection granted to an individual for creating a device that does something unique and useful. A temporary monopoly was granted by the government to allow that inventor who created that unique and original device to recoup the R&D costs associated with creating that device in the first place, noting that R&D for something genuinely original often has dead end roads when trying to get something to work and is generally quite expensive to perform. Once some

      • by Bigjeff5 (1143585)

        A temporary monopoly was granted by the government to allow that inventor who created that unique and original device to recoup the R&D costs associated with creating that device in the first place, noting that R&D for something genuinely original often has dead end roads when trying to get something to work and is generally quite expensive to perform.

        It's actually much simpler than that, though what you said certainly applies. The temporary monopoly is a reward for being clever. We want clever people making clever things, and we also want them to share how to make that clever thing with everybody else, so how do we encourage that? We tell them that for X number of years they are the only ones allowed to make the item they invented. They can produce and sell the item themselves, license their right to produce and sell to someone else, or both.

        Persona

        • Re: (Score:2, Insightful)

          by Anonymous Coward

          We want clever people making clever things, and we also want them to share how to make that clever thing with everybody else, so how do we encourage that?

          For software, that's really easy: let reality run its course so that the inventor is first to market.

          In 1800 that didn't work very well, because of the nature of the inventions. Without inventions, the inventor had to keep a secret, snail mail investors who took a 4 week journey to come see it in the lab, get the money together using the archaic financ

        • by ctmurray (1475885)
          Thanks for this explanation and I wish I had mod points. Patents can spur creative people to invent around them, often coming up with better solutions.

          What you pointed out were the consequences of being an asshole with your licensing terms - a competing format was developed and hardly anybody uses GIF today (which uses LZW, as you pointed out). You can be fairly certain that the developers of PNG looked long and hard at LZW before they were able to come up with something better. You look at similar technologies, like mpeg3 and mpeg4, both of which have patents on them, both of which have the exact same potential problems as LZW, and yet together they include the two most popular and ubiquitous digital audio formats out there - mp3 and AAC. They are simply compression algorithms, just like LZW, they are also licensed just like LZW, yet the patent owners handled it much better than the LZW owners did.

        • by Teancum (67324)

          BTW, if MP3s and MPEG-4 are so wonderful, why is Ogg Theora and Vorbis being created and gaining "market share" of the video and audio markets... respectively?

          Particularly for open source development, but also for purely commercial applications, I have strongly discouraged any clients from ever using MPEG-4 for any application unless there are specific contract requirements that demand the use of that data standard. The licensing terms from those few patent holders who are allowing a license for that stand

        • People had to take time and effort to reinvent the wheel (image format), because the inventor was extorting people who used the original wheel. If Unisys had either been unable to legally lock down that format, or if they had been intelligent with their licensing demands, a majority of that time and effort would have been spent inventing more interesting software. This is a classic example of the broken window fallacy.

          And you can't consistently argue on the one hand that LZW's being locked down encouraged d

  • by crypTeX (643412) on Saturday October 03, 2009 @11:48PM (#29632449)
    This is one where I believe that no amount of logic and reasonable precedent will matter. The court will simply not invalidate the basis of an existing industry and it has nothing to do with corruption. No quantity of shine can alter the fundamental nature of this complaint. It won't happen, don't get excited.
    • Re: (Score:3, Interesting)

      by wizardforce (1005805)

      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.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Except that there is no "industry" at stake here other than patent troll companies that buy vague ideas that were wrongfully patented by a faulty system then go about suing valid industries that are trying to do their job at innovating. To clarify that, the only ones that are going to lose out here are those are actively gaming the system.

      Actual companies in the field will NOT be negatively affected by having all their software patents invalidated simply because nobody else will have software patents to sue

      • "...and with reduced costs since they won't be paying for massive amounts of useless god awful patents."

        Or the lawyers that go with them...

    • by Runaway1956 (1322357) * on Sunday October 04, 2009 @12:24AM (#29632579) Homepage Journal

      Which industry are you speaking of? Patent trolling? Seriously - those people and corporations with a marketable product will continue to sell their product, until someone comes out with a better product. No industry is going to fail, aside from the patent troll industry. A few lawyers may have to search for a slightly more ethical specialty, like ambulance chasing.

      • by wizardforce (1005805) on Sunday October 04, 2009 @12:31AM (#29632601) Journal

        The industry won't fail. This is true, however things will change. Any corporation dependant on the current patent system to destroy its competition will fight tooth and nail to keep it and frankly, considering what happened with anti-trust charges against MS I wouldn't count on software patents being invalidated by SCOTUS.

        • The problem is that patents are potentially harmful to all software industry. Companis get patenst to be in a position to trade if attacked. But that only work if the one attacking you have any need for your patents, if you are attacked by patent trolls, there is no remedy but paying their extortion money. The bigger and richer your company is the more likely it is you get attacked. All software industry would be much better off without patents,

      • by smchris (464899)

        "No industry is going to fail, aside from the patent troll industry."

        You say that like it's a small thing. What _do_ we manufacture in the U.S. these days? Patent trolls have been a growth industry. Cry for the underemployed lawyer, can't you?

    • Re: (Score:3, Insightful)

      by shentino (1139071)

      Then that would imply that SCOTUS is a pack of wusses afraid to bankrupt the mafia.

    • by eddeye (85134) on Sunday October 04, 2009 @01:07AM (#29632717)

      The court will simply not invalidate the basis of an existing industry and it has nothing to do with corruption.

      Bingo. The Court won't make a decision that far-reaching. Roberts pushes for narrow decisions. They'll leave broad policy matters such as software patents per se to Congress. Even if they did miraculously invalidate software patents entirely based on the current statutes, what would happen? Congress would pass a bill yesterday explicitly authorizing them.

      I suspect the Court will broaden the holding of Bilski. Bilski was based on 30 year old rules from a different technological era. The Court didn't accept this case just to affirm the lower decision. Nor will they formulate a stricter rule for the reasons stated above.

      Nothing the Court decides is likely to affect software much. Bilski is aimed at egregious business method patents, nothing more. Software patents are just as accepted as before - the PTO simply requires reciting a machine somewhere in the claims. Something like "doing X" becomes "doing X on a processor". That's it.

      If you want fundamental changes to the system, you'll have to petition Congress to amend the patent act. Trying to force it through the courts is a waste of time and resources.

      Yes I am a patent attorney.

    • by alexo (9335)

      This is one where I believe that no amount of logic and reasonable precedent will matter. The court will simply not invalidate the basis of an existing industry and it has nothing to do with corruption. No quantity of shine can alter the fundamental nature of this complaint. It won't happen, don't get excited.

      I'll take it one step forward and assert that any change that intends to shift the current balance of power between the "haves" and the "have nots" toward the letter will either never happen or will ha

  • indeed (Score:5, Insightful)

    by wizardforce (1005805) on Saturday October 03, 2009 @11:56PM (#29632477) Journal

    I would go further to speculate that the patent system as it is harms technological advancement [cato-at-liberty.org] more than it encourages it in most industries. 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. The court costs and inequality of enforcement associated with the system defeat most of its purpose as specified in the US constitution. Software patents are only the tip of a very large iceberg.

    • Re:indeed (Score:5, Interesting)

      by plover (150551) * on Sunday October 04, 2009 @01:03AM (#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.

      • I never mentioned the pharmaceutical industry, I just said *most* industries are not stimulated by patents. It is however, quite possible that patents are sub-optimal even in the two industries that CATO mentions as seeing a benefit from patents (drug and chemical industries). I think that with all we have learned about economics that we could develop a better system than our 200+ year old patent system to encourage worth while R&D.

      • Re:indeed (Score:4, Interesting)

        by Theaetetus (590071) <theaetetus DOT slashdot AT gmail DOT com> on Sunday October 04, 2009 @01:37AM (#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.

        • You're absolutely right.The SCotUS should have just interpreted the question of segregation as it was written, not decided that it was entirely unacceptable as a whole and thus needed to be thrown out...

        • Re:indeed (Score:5, Informative)

          by plover (150551) * on Sunday October 04, 2009 @02:26AM (#29633059) Homepage Journal

          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.

          First, the phrase "activist judges" was created as a political hot-button codeword to try to sway people emotionally instead of rationally. It's a ploy to discredit the work of the legal system using fear and anger instead of logic and reason. It has no place in a legal debate.

          And in the case of patents, your argument is not correct. 35 USC 146 clearly states that the U.S. Court of Appeals for the Federal Circuit is to make the decision in case of a disagreement with a ruling of the Board of Patent Appeals. Congress explicitly granted the courts (whether they be "activists" or not) the power to decide these cases. And Bilski is one such case.

          Because our legal system is based on precedent, not just on written law, a case such as Bilski can have a ripple effect on other similar decisions. Sometimes I'd rather have a system like the Swiss courts, where each case is tried on its own merits and judged only against the law, not against how the courts ruled on your neighbor's case. But we have what we have.

          35 USC 101 is very simple, and says on its face: "subject to the conditions and requirements of this title." That means that it's not simply "processes are patentable", but you have to go through the entire document to make that determination. Reading further, in MPEP 2106.01, you can see some of those requirements that are relevant:

          "Since a computer program is merely a set of instructions capable of being executed by a computer, the computer program itself is not a process and USPTO personnel should treat a claim for a computer program, without the computer-readable medium needed to realize the computer program's functionality, as nonstatutory functional descriptive material. When a computer program is claimed in a process where the computer is executing the computer program's instructions, USPTO personnel should treat the claim as a process claim. ** When a computer program is recited in conjunction with a physical structure, such as a computer memory, USPTO personnel should treat the claim as a product claim. **"

          They specifically state here that a program is nonstatutory (not patentable) unless the program is supporting a patentable process. In the case of Bilski, the program is supporting their process. The real question is still if Bilski's business method patent is valid.

        • What? (Score:2, Insightful)

          by benjamindees (441808)

          The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States...

          Notice how the Supreme Court has jurisdiction over Constitutional questions, in addition to just being able to "interpret laws"?

          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;

          And notice that the scope of patentability is a Constitutional issue?

          35 USC 101 allows patenting of processes

          US code doesn't allow patenting of business processes unless the US Constitution allows patenting of business processes.

        • Wait...if software is *just* math, should it be patentable?
      • Re: (Score:2, Insightful)

        by Adaeniel (1315637)

        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.

        You forgot about academic research. There are people out there that want to solve a problem purely to solve a problem.

        • So... researchers solve problems just because they want to solve the problem? Not because they are paid for by universities? "Oh sure, I'll somehow make the quarter-million dollars I'll need for the research for this project, then spend it on the highly-specialized machinery necessary to do the experiments to figure out this vaccine. Out of the goodness of my heart. Down with copyright law!"

          You forget, sir, that most academics are capitalists.

          • They may be capitalists but they must be very bad ones as most, emphatically not all, could easily be making more money outside of academia.
        • Reminds me of an argument I recently had with a lefty. He thought government should do everything that business doesn't have the foresight to do. What's funny is that he was flaming religion just half an hour earlier -- organizations of people that are neither motivated by civics nor (barring Catholics) profits. People do so many things for so many reasons, some of them crazy and some of them brilliant. But talk politics with them and suddenly dollars are the only motivation that anyone has. Yeeeah, ri

      • Re:indeed (Score:5, Interesting)

        by drinkypoo (153816) <martin.espinoza@gmail.com> on Sunday October 04, 2009 @02:04AM (#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: (Score:3, Insightful)

          by plover (150551) *

          Record profits == capitalism in action. It's more American than apple pie.

          I don't begrudge someone the right to make money, at least not when they play within the boundaries of the system. If 50,000 tone-deaf idiots want to give Britney Spears $100 each to hear her sing into an Auto-tune system for an hour, then Britney wins at capitalism.

          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 t

          • Re:indeed (Score:4, Interesting)

            by drinkypoo (153816) <martin.espinoza@gmail.com> on Sunday October 04, 2009 @02:53AM (#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.

            • Wouldn't a better solution be to outlaw lobbying? Ignoring the political and legal feasibility of such a task, it would cause good laws to emerge from the ensuing political wreckage.

              Wouldn't that be great?

              • One of the problems I see is where software overlaps hardware ... For instance, JPEG (or for that matter, MPEG) Are covered by patents. Although the engines can be described in Actual hardware, they are generally described in software. As computer hardware gets faster, more machines will be described in software before they are implemented in hardware, yet, as I see it, these inventions are worthy of protection via the patent system. (However ... The JPEG patents are held by several different people/organis
                • by Tweenk (1274968)

                  As computer hardware gets faster, more machines will be described in software before they are implemented in hardware, yet, as I see it, these inventions are worthy of protection via the patent system.

                  We must cease seeing ICs as hardware, they're actually a combination of hardware and software. Fabrication technology and the physical layout of a given chip might deserve patent protection; IC logic doesn't, because it is software.

              • by drinkypoo (153816)

                As you point out, this is basically invisible. I do have some ideas on lobbying reform, though. One: All interactions regarding public policy must take place in the representative's (congressman's, whatever I should be saying — the terminology is contradictory and thus stupid but we're stuck with it for now) office. Two: all such conversations will be recorded and the recordings published as soon as is possible within the confines of national security, but with a time limit not to exceed... something

          • Re: (Score:1, Insightful)

            by Anonymous Coward

            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."

            Actually, it should be. Pretty much nothing could be further from the truth that obscene profits are more American than apple pie. The founders feared this. They feared it for reasons we are seeing played out right now: too much wealth concentrated in too few hands is capable of distorting our political system to the point where it doesn't matter what We the People want.

            None of the founders were more wealthy than what we'd call upper middle class. Many died quote poor (Thomas Jefferson, for one). NONE

        • and your problem with this practice is what exactly?

          The generic drug is available. Your friendly doctor should prescribe the generic version for you.

        • by rgigger (637061)

          I have heard this narrative many many times and I am not doubting it's accuracy. But what I don't understand about it is: If it's such a big problem, can't the entire Medical industry just keep using the old stuff? Especially now that it's gone generic? With so much on the line is the entire industry unable to make decisions based on the medical efficacy of a drug and not based on pure marketing? Let the pharmaceutical company go make their stupid one off variant that is still patentable while doctors

          • by drinkypoo (153816)

            I have heard this narrative many many times and I am not doubting it's accuracy. But what I don't understand about it is: If it's such a big problem, can't the entire Medical industry just keep using the old stuff? Especially now that it's gone generic?

            There are two problems with this. One is bogus medical journals; Elsevier got busted publishing an entire bogus journal for Merck. So big pharma is actually being permitted to publish misinformation as if it were peer-reviewed, which makes it difficult to impossible for medical professionals to know if they are getting good information. The other biggest problem is that the control of generics into most countries is tightly controlled; they are denied on a variety of bogus bases. So in many cases, it is sim

      • Re: (Score:3, Interesting)

        by causality (777677)

        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

      • 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.

        I thought the $x to develop the drug already included the cost of rejecting drugs that don't work, as well as an actuarial estimate of liability (e.g. cost of such insurance if not

      • 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.

        Okay

      • I think it's typical, even human nature, to assume that "barriers to entry" in an industry with which you are not as familiar are necessarily much higher than those in your own industry.

        The fact of the matter is that good education is expensive, competent programmers are few and far between, and the Mt. Dew and Cheetos required to support them for the period of time required to make truly significant breakthroughs in computer science don't come free.

        And in saying this I by no means want to argue the philoso

      • 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.

        I think that's the core of the issue. Creating software or writing articles neither requires extensive clinical testing nor expensive equipment (these days). However regarding pharmaceuticals you need to keep in mind that the principle of excluding everyone who can't pay for medicaments means killing people. Furthermore pharma like any other business will not stop at recovering their costs. They will go all the way and they will patent trivial changes to their pharmaceuticals to extend their monopoly (see P [cnn.com]

      • I agree with your statements on software, but I disagree with your statements concerning innovation in health care without patents. Here is a case in point: China. For 5,000 years, they developed a highly success philosophy of medicine that is still practiced today, without patents. We don't see them seeking patents on plants or molecules to support their industry (or least we didn't until they joined the WTO). And besides, the statement "patents encourage innovation" [dklevine.com] is *still* an assumption. There are
      • It might be practical for the system to self-regulate by connecting maximum lifetime patent royalties to reported technology R&D costs. Any R&D costs incurred by a company would be fair game to attribute to individual patents, but they would need to be attributed at the time of filing. Once an R&D dollar was attributed to a patent, it couldn't be reattributed to another patent. Falsifying R&D costs would be both easy to audit and a crime.

        For drug companies, 30x R&D costs (including all t

    • i think it is analogous to copyright's original good intentions. you know, the monopolies being temporary to encourage growth, and the abuse that followed. i think both are quite flawed and no longer serve the interest of the public, the other party in these "social contracts".
  • ...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 de

    • by Trepidity (597) <delirium-slashdo ... g ['ish' in gap]> on Sunday October 04, 2009 @12:41AM (#29632625)

      But it would show that there is valid justification for their existence. Who started up a campaign to end software patents? It wasn't Novell, or Red Hat, or the Open Source Initiative; it was these folks [endsoftpatents.org]. The FSF is willing to take unpopular hardline pro-freedom positions long before they become politically correct enough for the "respectable" FOSS groups to hop on the bandwagon.

      Sort of analogous to how I think there's a good reason for the existence of folks like Dennis Kucinich, Ron Paul, and other people pursuing principled but somewhat inflexible positions. I might not want them as president of the world, but I like them being around.

      • by petrus4 (213815)

        But it would show that there is valid justification for their existence. Who started up a campaign to end software patents? It wasn't Novell, or Red Hat, or the Open Source Initiative; it was these folks. The FSF is willing to take unpopular hardline pro-freedom

        If the FSF were themselves willing to accept the role of fringe legal attack dog, (and that *alone*) I'd be more than happy to recognise their part of the overall FOSS ecosystem on that basis.

        The problem is that they're not. Stallman wants everyone to think the way he does.

        We need to get rid of the cultic element, more than anything else. If they can legally help FOSS developers in an overall sense, and do it in a constructive way, that I have no issue with.

        It is their hate, their fear, and their paranoia

        • by causality (777677)

          The problem is that they're not. Stallman wants everyone to think the way he does.

          The moment he has gains the ability to force me to think in any particular way, that's the moment I will worry about this.

          It is their hate, their fear, and their paranoia which need to go. I don't have a problem with Bradley Kuhn at all because he can be of legal benefit in protecting FOSS; I have a problem with him because he behaves like a rabid rottweiler/human hybrid, who apparently will not rest until everyone else on th

          • by petrus4 (213815)

            Neither Richard Stallman or Bradley Kuhn can use force to make you to listen to them, nor are they seeking a means of doing so;

            They've actually proven that they *do* want said means. They proved that with the alterations made to version 3 of the GPL, as well as having spoken about wanting Novell (as a single entity) being banned from distributing software licensed with the GPL.

            Your response to this will likely be to launch into a diversionary argument about how that was completely justified. That, however, is irrelevant.

            The simple fact is that in those two individuals' minds, following the legal letter of the GPL by itself isn't

            • How can that force anyone to do what they want? Are you forced to use GPLv3? That doesn't give them any power, you can continue to use GPLv2.

          • by alexo (9335)

            Stallman wants everyone to think the way he does.

            The moment he has gains the ability to force me to think in any particular way, that's the moment I will worry about this.

            No you won't. He won't allow you to.

      • by unity (1740)
        "Sort of analogous to how I think there's a good reason for the existence of folks like Dennis Kucinich, Ron Paul, and other people pursuing principled but somewhat inflexible positions. I might not want them as president of the world, but I like them being around."

        Then again, where has electing people that aren't adherents to principled inflexible positions gotten us? Maybe principles do matter after all....
      • by Nevyn (5505) * on Sunday October 04, 2009 @01:44AM (#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.

        • by roju (193642)

          Except that the FSF and Stallman likely inspired that view in Red Hat.

  • Can't business method patents fit into similar arguments? I have never heard an explanation why business method patents are allowed in the first place, so I suppose until I do I can't evaluate how good the reasoning is, but being abstract I see no reason for them to be patentable.

    (I realize I could go search for the answer, but I assume more people would be enlightened if someone explains this instead).
    • by plover (150551) * on Sunday October 04, 2009 @01:17AM (#29632751) Homepage Journal

      Bilski is an abstract business method patent, and that's exactly why it's been thrown out by the court of appeals. Yes, they patented software to do the computations, but in the end it's a process more than just software.

      (Their process is that of selling a lot of people "fixed cost" subscriptions to a service that can have a variable cost, such as heating fuel in the winter, and then using the leverage of that large group of people to drive down the sellers' bids on the fuel, and making a profit on the difference.)

      We're all expecting/hoping that if Bilski is thrown out because it doesn't meet the "tangible transformation of a thing" test that the software component will also be thrown out for the same reason.

      Software patents in general kind of just happened by accident. If I recall correctly the first software patent was for a chemical process that used a computer to operate valves to moderate the reaction, and from there the lawyers have just ignored the chemistry part and decided "software is patentable." It's never been challenged like this before, so we're all crossing our fingers and hoping they die and stay dead.

  • Glimmer of hope (Score:1, Insightful)

    by Anonymous Coward

    There is a faint (very faint) glimmer of hope that this will be the beginning of the end of stupid software patents. I have a bad feeling though, that.....

    This is not the end. Its not even the beginning of the end. But it is perhaps end of the beginning. -Sir Winston Leonard Spencer Churchill

  • I suppose it's a good thing we have prior art on the abstract idea of self ("I think therefore I am")...

    • by gnupun (752725)
      A patent is not abstract "I think therefore I am". It is a how-to guide for professionals in the field to recreate the invention.

      Since RedHat does not invent anything, software patents are unjust because due to the protection they offer to inventors, OSS coders cannot copycat the invention and include it the RedHat distro, thereby driving RedHat's profits down. With software patents gone, RedHat can make money without doing much work by implementing various patented algorithms into products included in th

  • No matter what excuse you use for doing something right, or wrong, the hard reality of the matter will always be what it is tested against.
    Doing things wrong will result in problems.
    Doing things right will remove problems.

    The excuse used, either way, can often be nothing more than political babel.

    Software is simply and provably not of patentable subject matter and it never was patentable when tested against hard reality.
    And regardless that some seem to have a hard time accepting hard reality.

    The hard and pr

  • Too much money pushing in the other direction. Hate to sound cynical but freedom in any form is about money and neither redhat or sflc have enough of it to affect patent reform as it relates to software.
  • Am I the only one who doesn't think that software patents are universally bad? It seems to me like software is an algorithm which solves a specific problem. Take as an example, the relational database. The very concept of applying relational algebra to the organization of physical data was a pretty big step, which IMO, deserves more than a copyright. Simply arguing that software is just math is as absurd as saying that fancy new electronic device is simply the patenting the existence of the appropriate laws
  • 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.

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