US Supreme Court Skeptical of Business Method Patents 160
Trepidity writes "The US Supreme Court held oral argument Monday in Bilski, a business-methods patent case that might also have important implications for software patents (We have previously discussed the case several times). The tone of the argument appears to be good news, as the justices were very skeptical of the broad patentability claims. They even brought up a parade of absurd hypothetical patents quite similar to the ones Slashdotters tend to mention in these kinds of debates. Roberts surmised that 'buy low, sell high' might be a patentable business method, Sotomayor wondered if speed-dating could be patentable, Breyer questioned whether a professor could patent a lesson plan that kept his students from falling asleep, and Scalia brought up the old-time radio soap opera Lorenzo Jones, featuring a hare-brained inventor with delusions of getting rich." Patently O has good blow-by-blow coverage of the day's proceedings. Official argument transcripts will be up soon, they say.
Hope (Score:3, Insightful)
"You thought we would mess it up?" (Score:5, Insightful)
I enjoyed this bit of the exchanges the most:
**************
MR. STEWART: Well, first of all the only ruling that we're -- backtrack a bit,
to say, we oppose, sir, in this case because we recognize that there are
difficult problems out there in terms of patentability of software innovations
and medical diagnostics.
JUSTICE KENNEDY: You thought we -- you thought we would mess it up.
MR. STEWART: I didn't think --
(Laughter.)
MR. STEWART: We didn't think the Court would mess it up. We thought that this
case would provide an unsuitable vehicle for resolving the hard questions
because the case doesn't involve computer software or medical diagnostic
techniques, and therefore, we thought the Court would arrive at the position
that I think, at least some members are feeling that you have arrived at, that
you will decide this case, and most of the hard questions remain unresolved.
And, frankly, we think that's true.
*******************
Can someone explain to me:
1. Why the govt. does not want to resolve the mess that is software patents, now
that a golden opportunity has been presented?
2. Why is it the job of the govt. deputy solicitor to uphold the political
interests of the US of A rather than the legality of the issue at hand? (there
is an opinion here that software patents help the USA in World Trade.... which
seems very dubious to me at any rate).
3. How is it technically feasible, if at all, to make a ruling on the Business
Methods case without influencing whether software can or cannot be patented?
I think the govt. (read deputy solicitor) seems very worried that many lawyers
and patent powerhouses would come crashing down as a result of this ruling.
Re:"You thought we would mess it up?" (Score:3, Insightful)
> Why is it the job of the govt. deputy solicitor to uphold the ...
> interests of the US of A...
Because that is his job.
Re:Damn. This sucks. (Score:4, Insightful)
They'll copy your model anyways, if you're small, you can't afford that many business patents (getting a patent is expensive, and litigating patents is also expensive and will put you out of business, unless you are successful against corporate army of lawyers).
Patents nowadays are very much for lawyers and large corporations BY lawyers and large corporations. They provide very little / no effective protection to the little guy.
Re:Radio? (Score:5, Insightful)
When talking of references, whenever anyone says "Professor Farnsworth" I think of the inventor of TV, not the funny cartoon character. But anyone who thinks different from you is weird and wrong, eh?
Re:Damn. This sucks. (Score:5, Insightful)
I'm not joking guys. We really planned on making our money on patenting our business model. We figured the big corporate bastards have made it impossible for tiny businesses like ours to make money and stay in business any other way so we'd patent our business model to protect ourselves from the giant behemoths. What will happen if you can't patent a business model is the behemoths who were in the same niche but slightly less profitable will look over and see you making money hand over fist and decide to copy your homework. What can you do? You're tiny. You're toast! But wait! I have a business model patent! You have to *buy* me! That means I get one last pay-check before you cut me loose!
They take that away and now we're defenseless in front of gigantic corporations who have the resources to just wholesale copy our model.
And what if the big corporations go on patenting sprees and start patenting anything imaginable? Just like all patenting has come down to. Any idiot realises that patenting was never created to benefit "the small players." Really, conspiracy aside, but how much influence does small businesses contra large businesses have on politics and politicians? Do you think there is one single top politician who doesn't own stock in one or many large corporations? And it doesn't have to be a plot or a cartel, you can be a very honest politician but when that opportunity comes along the temptation to make a few extra hundred thousand can become too much. Also it does help if you can pretend you're doing it for "the small players."
Re:"You thought we would mess it up?" (Score:5, Insightful)
The discussion has digressed into the mess of software patents which is purely a distraction from the arguement.
Some software patents are really business method patents (how someone navigates this page, or which button they press). Some software patents *may be* technological patents and should be measured as such. Blanketing software patents by comparing them to business method patents is comparing apples and oranges. Whether or not the non-business-method software patents (technological patents in software) should be allowed is a completely separate issue but people tend to discuss them under one arguement when it is really two arguements. If your software algorithm can pass the test of patent-eligibility then it should be patentable. I am not saying it is even possible to have something in software that is patentable but with more of our world moving into the realm of invention through transformation of data I am not going to say it is impossible either. Ask yourself this, would you consider a device that allows the teleportation of objects to be a patentable invention? Would you feel the same way if 100% of the actual work was driven by the software running the system? Which is the technology, the arrangement of hardware that made it possible (based on a hundred years of prior art) or the computation done by the software that drives it.... just sayin.
The patent system was invented to promote the technology and arts. It is not about business methods. If Bilski loses, its set the tone for the invalidation of all business patents, thousands of patents could be invalidated. This is why this is even a case to begin with (many companies stand to lose a lot if Bilski loses).
Re:"You thought we would mess it up?" (Score:4, Insightful)
Software patents are like buried land mines. They may slow us down and cripple us, but as long as they slow down and cripple our competitors even more than they do us -- that's what really counts.
Re:"You thought we would mess it up?" (Score:3, Insightful)
So long as it "Promotes the progress of Science and useful Arts", to which, I will respond that it largely doesn't these days the way it's being done.
Re:"You thought we would mess it up?" (Score:4, Insightful)
Can someone explain to me:
1. Why the govt. does not want to resolve the mess that is software patents, now that a golden opportunity has been presented?
The Bilski application was on a method of managing risk in derivative markets. While it could be done in software, there was nothing in the claims that even mentioned a computer or software. So this isn't a "golden opportunity", even on the Government's side. It'd be as golden as an application on a method of diagnosing a disease as the deciding case for software... It's kind of apples and oranges, and there are many other applications that are more central to the issue of software.
2. Why is it the job of the govt. deputy solicitor to uphold the political interests of the US of A rather than the legality of the issue at hand? (there is an opinion here that software patents help the USA in World Trade.... which seems very dubious to me at any rate).
Once a case gets to the supreme court, legality isn't the question - whatever they decide is the law, so you aren't going to go waving a statute at them and telling them they're ignoring the legality of the issue. Instead, they're making a politically-influenced interpretation of Congress' intent in drafting the Patent Act.
3. How is it technically feasible, if at all, to make a ruling on the Business Methods case without influencing whether software can or cannot be patented?
"This decision shall be interpreted as applying solely to those methods and processes that may be feasibly performed without a computer."
And to forestall your answer "but all software could be performed with a pen, paper, and slide rule", the relevant word is feasible. Go decode a PGP message with a pen, paper and slide rule and come back when you're finished to describe how any software can feasibly be done manually.
I think the govt. (read deputy solicitor) seems very worried that many lawyers and patent powerhouses would come crashing down as a result of this ruling.
I think the government is more concerned that Google, Microsoft, Apple, Cisco, Citrix, IBM, etc., etc., would come crashing down as a result of this ruling. Their stock prices certainly would, since your proposed course of action would eliminate billions of dollars of intellectual property rights in a puff.
Re:"You thought we would mess it up?" (Score:2, Insightful)
Re:I wouldn't count on it... (Score:3, Insightful)
Do you have any evidence at all to suggest any justice of the Supreme Court is taking a bribe? Because that would be the biggest legal news in years.
Re:I wouldn't count on it... (Score:5, Insightful)
How, exactly, is Justice Thomas "in the tank" for big business, and how, exactly, can "other ones ... be bought"? There are of course the all-important campaign contributions. No, wait, federal judges are appointed for life. Scratch that. Well, Big Biz could lobby Congress to reduce their pay if they don't stay in line. Except that would be patently unconstitutional under Article III. But still, they need to kiss the right behinds to climb the ladder. Except they're already on the Supreme Court, so there's really nowhere to go. So are you suggesting that Monsanto and other big business interests outright bribe certain justices? Well now, I'm interested in what evidence you have to support this theory, because we have here the makings of one of the biggest scandals we've ever seen. Also, we have some pretty stupid justices who would jeapordize their careers and legacies for the sake of whatever bribe the baddies are willing to offer.
I often disagree with Supreme Court justices, but for better or worse, it's hard for me to find a reason for them deciding the way they do except they really believe that's the way things ought to be. Our clever little Constitution did a pretty good job of removing all other incentives. Now, they may be cozy with the interests they've sided with through the years, because we all love to be buddies with like-minded people, but nobody owns them. If Justice Thomas decided he wanted to put the smack down on Monsanto, there's nothing Monsanto could do to stop him.
Re:"You thought we would mess it up?" (Score:3, Insightful)
I think the government is more concerned that Google, Microsoft, Apple, Cisco, Citrix, IBM, etc., etc., would come crashing down as a result of this ruling. Their stock prices certainly would, since your proposed course of action would eliminate billions of dollars of intellectual property rights in a puff.
Actually it's the perceived value of their intellectual property rights that would disappear - and which would disappear for all of their competitors at the same time. Now the stock market would certainly freak out as they hate FUD and flee from it with money in hand to businesses with less FUD, but after the shake out value would return to those companies who have a sound business model and management.
Companies which only exist because of patents would have to create a real business out of their technology, methods, or service - aka offer real market value and would be punished until they are able to do so.
Sure it would be painful - but in the end everyone will be better off - meaning that the majority will be better off.
Re:"You thought we would mess it up?" (Score:3, Insightful)
I'm not home and can't refer to my research at the moment or I'd be happy to do it for you, but feel free to do some googling for yourself. You won't have to search long to find the cites you seek.
If you dig deep enough, you'll find a lovely quote that accuses the NRA of not wanting to move forward until they can find a "minority lesbian female combat-disabled vet with HIV" complainant. Clued-in gun owners all over the U.S. got tired a long time ago with NRA foot-dragging in these matters. After all, the NRA only stays in the lobbying business as long as these questions remain up in the air.
Re:"You thought we would mess it up?" (Score:5, Insightful)
So long as it "Promotes the progress of Science and useful Arts", to which, I will respond that it largely doesn't these days the way it's being done.
To which I will counter that the preamble should be read as non-limiting, just as it was in DC v. Heller.
Re:"You thought we would mess it up?" (Score:3, Insightful)
The solicitor is arguing that the law DOES allow for business method patents. He may be wrong, but he's not trying to break the law. He's trying to get the Supreme Court to clarify that the law does indeed allow them. His opponent is doing the opposite. That's how it's supposed to work.
Some people legitimately and honestly disagree with slashdot; it doesn't mean they're fraudulent and evil... it just means they aren't quite as smart as us. Well, at least that's what I like to believe.
Re:"You thought we would mess it up?" (Score:3, Insightful)
Who fucking cares? Why should you own something just because you were the first to do it? What a retarded thing to base government monopolies on.
It's like saying you can't run a construction business because all you can compete on is the quality of your work... "My competition can build roofs, and walls, everything I can!? How will I ever survive without a way to lockout all competition and force customers to deal with me?"
So write your damn program the way you'd attach drywall and get on with business. Your competition might copy you but that's business. You came out with a red widget, now everyone wants red. Red wasn't your invention, neither was painting, you just applied known techniques in a new area and made some easy money. Congrats.
The problem is people who want this easy money to be guaranteed for life...
Re:"You thought we would mess it up?" (Score:3, Insightful)
Blanketing software patents by comparing them to business method patents is comparing apples and oranges
They're both fruits?