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.
Re:"You thought we would mess it up?" (Score:5, Interesting)
1) Who says they don't? They may have more immediate issues to attend to, however. Of course, they may also not feel they are a 'mess', as you do.
2) Sometimes people worry about more than just their immediate job. Even if his job is only to worry about the legal aspects, that doesn't mean he -has- to ignore all the political and economic aspects of the issue.
3) Software patents are not business method patents, no matter how they were born. They have become separate issues. It's possible they could be linked and come down together, but it's also possible that the link will sever and software patents will have to be dealt with separately.
Re:I wouldn't count on it... (Score:5, Interesting)
Regardless of whether they're "in the tank", I've noticed that this court tends to ask the most skeptical questions of the side they are considering ruling in favor of, at least when reported in the "anti-patent" media like Slashdot. It's more that they're trying to pin down the scope of their ruling rather than actually skeptical of the proposed arguments. Sometimes I think part of it is a cruel sense of humor toward the lawyers arguing before the court.
Re:Let freedom ring! (Score:3, Interesting)
Jefferson called the Supreme Court a bunch of Oligarchs.
9 Old Men that run the country.
Re:Damn. This sucks. (Score:3, Interesting)
Even if you had a business method patent the chances are you'd still be defenceless in front of gigantic corporations who have the resources to just kick your arse up and down the legal system until you ran out of money.
Re:"You thought we would mess it up?" (Score:5, Interesting)
I think you read too much into that exchange. A short while ago the Washington D.C. gun ban fell after having stood for over 3 decades. Why did it take so long? Because the pro-gun lobby was waiting for a case that was favorable to their cause. They didn't want to bring just any case - they wanted the "perfect" case where they could be certain of the outcome (i.e. SCOTUS sides with the gun owner).
I think Mr. Stewart is following the same thought process when he says, "We thought that this case would provide an unsuitable vehicle..." He would have rather waited for a later case where the outcome would be in his favor (pro-patent rights). Instead he got this one.
Re:"You thought we would mess it up?" (Score:1, Interesting)
1) There's a belief that we're screwed as an economy if we invalidate software and medical procedure patents. We don't manufacture a lot of stuff in this country anymore. I hold that there will be problems by this decision if it invalidates a whole range of patents- but that we need to just go ahead and pull the bandage and get it over with. It'll hurt, yes. But in the long-run, we need to do it now.
2) Many people in the government aren't doing their jobs these days. Seriously. It's more about politics than what needs to be done.
3) If you keep the Circuit Court decision, you can mostly do that. Not that it's really applicable- adding a machine test doesn't really change the patentability of mathematical, business processes, or of nature itself. Putting it on a specific computer shouldn't magically make it patentable if it would otherwise not be without it.
The government is protecting what it thinks is part of it's constituency. The "IP" law firms and the businesses that use them to patent all sorts of tripe.
Software patents ok? (Score:2, Interesting)
My read is that the justices seem to be ok with software patents in principle but are leery of business method patents that are not tied to a device or that do not incorporate some form of technology.
They seemed to struggle with how much of a "machine" needs to be added to an abstract business method before it becomes patentable subject matter.
In other news, Roberts appears to be confused about the difference between patentable subject matter and obviousness.
Re:Radio? (Score:5, Interesting)
What are you saying, because he doesn't watch TV that he's some kind of out-of-touch weirdo freak?
No, when Scalia says things like "factual innocence is no reason not to carry out a death sentence properly reached" and argues that torture is not punishment and therefore not forbidden by the 8th amendment, THAT's when I say that he's some kind of out-of-touch weirdo freak.
Re:"You thought we would mess it up?" (Score:3, Interesting)
1. Why the govt. does not want to resolve the mess that is software patents, now that a golden opportunity has been presented?
This case isn't really suitable because the Bilski claims didn't have any software. They were pure business method claims. My guess is that the Court would say the question of software patents is not an actual case or controversy here, so it can't be decided.
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?
Again, because there was no software in Bilski. The Court can very easily say that these kinds of pure business method patents without any ties to anything physical---not even a piece of software on a computer---are not valid without touching the question of whether they would be valid if embodied in computer software. And you would still see thousands of patents invalidated, because since 1998's State Street decision, we have had thousands and thousands of pure business method patents issue. Note however that this doesn't automatically make those patent go away. I recently defended a case where the patent claims were almost certainly invalid under the Federal Circuit's Bilski decision, which is still good law until the Supreme Court rules. The plaintiffs admitted that they had Bilski problems, but they still sued because the patent is valid until a court says otherwise. We ended up settling to make the troll go away because even with the Bilski problems, it was cheaper than getting through a summary judgment motion.
Comments following TFA (Score:3, Interesting)
There was one I found very interesting, from someone who was apparently present
"Oh you woulda loved where that sht was going. After several places in this part of the discussion there was a noticable shift in the audience as the ramifications of the fact that at least 2 justices were, from the mannerisms they were definitely using, and exasperation they were expressing, pretty fin pissed about software. And when I say "pretty fin pissed" well, you're just going to have to trust me if you weren't there. Some of the other justices on the other hand were just chillin in their chair, all bouncing around n stuff, not engaged hardly what so ever."
Preambles in the Constitution (Score:3, Interesting)
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.
The Supreme Court has traditionally interpreted preambles like "promote the general Welfare" and "promote the Progress of Science and useful Arts" as illustrative and not limitative, much like the list of purposes in the fair use statute (17 USC 107), and deferred to the Congress on their interpretation. Or at least that's the impression I got from the Court's opinion in Eldred v. Ashcroft.
Re:I wouldn't count on it... (Score:1, Interesting)
Not in patent cases, recently. If you read the transcripts of the KSR v. teleflex case, for example, the justices started early on the anti-patent bandwagon, and never let up, and then, in the final decision, they were 9-0 anti-patent.
I really think they are going to rule the same way here. It will 9-0 against this business method patent, and perhaps rule even more broadly. Though, the respondent, the US Govt, specifically didn't want a broad ruling, so who knows.
Re:I wouldn't count on it... (Score:4, Interesting)
I can't speak for this case but one week before issuing a ruling in Eldred v Ashcroft [wikipedia.org], Thomas accepted a seven figure deal with HarperCollins to publish his memoirs. HarperCollins is owned by News Corp which submitted an Amicus Curie brief in that very case. Oddly enough, Thomas ruled in News Corp's favor.
Most of the other justices have their memoirs published by independent academic institutions such as Harvard University Press but Thomas saw fit to sign a deal with a huge corporation just days before issuing a landmark ruling in their favor. Perhaps Thomas did it because HarperCollins was offering an order of magnitude more than his colleagues were getting for their memoirs, but that just screams of corruption to me.
This happened almost seven years ago. It seems the articles have faded from the internet. All I can find on it now is this Slashdot thread [slashdot.org]. I read the article it references back in 2003 and another one from Fox (yes Fox!) which said basically the same thing. Even though that thread was written in 2003 it is worth noting Thomas's memoirs were in fact published by Harper in 2007 [amazon.com].