6917048
story
Comments: 160 +- Your Rights Online: US Supreme Court Skeptical of Business Method Patents on Tuesday November 10, @08:09AM
Posted
by
kdawson
on Tuesday November 10, @08:09AM
from the feeling-bilski dept.
from the feeling-bilski dept.
background: url(//a.fsdn.com/sd/topics/topicpatents.gif); width:75px; height:54px;
patents
background: url(//a.fsdn.com/sd/topics/topicdoj.gif); width:50px; height:79px;
court
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.
Related Stories
Bilski Patent Case Appealed To Supreme Court 175 comments
Supreme Court Review of Bilski Heats Up 121 comments
Red Hat Files Amicus Brief In Bilski Patent Case 219 comments
Amazon Scores Gift-Delivery Patent 91 comments
"Daddy, Daddy, make
Santa Claus go away!"
"I can't, son;
he's grown too
powerful."
"HO HO HO!"
-- Duck's Breath Mystery Theatre
All trademarks and copyrights on this page are owned by their respective owners. Comments are owned by the Poster. The Rest © 1997-2009 Geeknet, Inc.
Hope (Score:3, Insightful)
Re: (Score:2)
Oh, good. We may yet have some hope.
If you do, you'll owe me some royalties. I have a patent on "hope."
Re: (Score:2)
Not if they invalidate that class of patents, you don't....
Re: (Score:2)
You can't invalidate hope! *lobbies*
Re: (Score:3, Funny)
The current and last three presidential administrations already did!
Someone should patent (Score:5, Funny)
"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: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.
Parent
Re: (Score:3, Informative)
They appeared linked at the oral argument, though. Roberts in particular suggested that if they struck down business-method patents but kept software patents, then companies could just implement their business method in some sort of business software, and patent it that way, rendering the fix pointless.
Re: (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: (Score:2, Informative)
It is? Hmmm. I can not lay my hand on any part of the People's Constitution that grants the United States the power to uphold business interests rather than obey the law. On the contrary the Supreme Law says that power, if it exists, belongs to the State Legislatures.
Re:"You thought we would mess it up?" (Score:5, Informative)
If Congress wants to regulate patents in a way that helps big business, then they can.
Parent
Re: (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: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.
Parent
Re:"You thought we would mess it up?" (Score:5, Informative)
You're equating a passage that limits federal power with one that grants federal power. That is a dangerous slope, particularly in light of the ninth and tenth amendments.
Besides, the purpose of those so-called preambles are different, as evidenced by the language used.
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
The binding statement here is the right of "the People" to bear arms. The preamble can easily be read as a rationale. Note which part stands on it's own as a complete sentence (or more precisely, a complete thought).
The Congress shall have power... 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.
This, which you have termed a preamble, is the actual statement. It stands on its own as a complete sentence, and has the copyright portion tacked onto it. Promoting the progress of Science and useful Arts IS THE ENUMERATED POWER. The ability to grant copyrights and patents is a constitutional vehicle granted to them to carry out their responsibility.
Otherwise it would have been phrased:
The Congress shall have power... to secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries, promoting the Progress of Science and useful Arts.
Or:
The promotion of the Progress of Science and useful Arts being necessary for the general welfare, the Congress shall have power to secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Further note that none of the other powers enumerated in the section contain rationale. If you insist on treating the passage as an explanatory preamble, you must wonder why the framers of the Constitution felt that that one required it. The others didn't.
Parent
Re:"You thought we would mess it up?" (Score:4, Informative)
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
The binding statement here is the right of "the People" to bear arms. The preamble can easily be read as a rationale. Note which part stands on it's own as a complete sentence (or more precisely, a complete thought).
That's kind of an awkward example, because we have extensive written documentation of the exact intent of the specific wording of the 2nd Amd, and the first half is actually more than just an explanatory preamble. When the Bill of Rights was being drafted, everyone agreed that enumerating the right of individuals to bear arms in defense of liberty was essential (seeing as how they had just won a war based on being armed and ready to shoot at their legitimate government) but representatives of various states had additional concerns. Primarily, they were concerned that the individual right to bear arms was useless unless the people were guaranteed the right to form local militias, and the federal government would render individual arms useless by forbidding any cooperation except under auspices of a federal military. That's why the 2nd has two clauses.
In a nutshell, the second amendment says: The people retain the right to own guns and form crowds of armed people to do the things that we sometimes need crowds of armed people for, and they don't need federal permission.
Of course, the clearly delineated intent of the original framers is generally ignored, so... whatever.
Parent
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: (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 disagr
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.
Parent
Re:"You thought we would mess it up?" (Score:5, Informative)
"Alan Gura, the Alexandria, Va., lawyer who masterminded the challenge to the D.C. handgun ban, says the NRA has joined him "ever so grudgingly" only in recent weeks, after years of trying to wreck the litigation and avoid a Second Amendment showdown. At earlier stages, the NRA sought to consolidate its own case, which challenged the D.C. law on a "kitchen sink" array of rationales, with Gura's. In a 2003 filing, Gura called the NRA case "sham litigation" aimed at muddying his Second Amendment claim." [law.com]
Parent
Re: (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
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).
Parent
Re: (Score:3, Insightful)
Blanketing software patents by comparing them to business method patents is comparing apples and oranges
They're both fruits?
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.
Parent
Re:"You thought we would mess it up?" (Score:4, Informative)
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).
The solicitor general's job is to argue the political interests of the USA before the Supreme Court and and be an advocate for a particular position that the court has to rule on. Though the Solicitor General can practice "confession of judgement" (which means to drop a case if he considers the government's official position to be unjust) it's much more normal for the Solicitor General to play devil's advocate and argue the position and let the court create precedent.
Parent
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.
Parent
Re: (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
Re: (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. You
Re: (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 que
I wouldn't count on it... (Score:2, Flamebait)
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.
Parent
Re:I wouldn't count on it... (Score:4, Informative)
You are correct, and most courts act this way on difficult questions. The judges read the briefs and the trial transcripts (or have their clerks read them, really), figure out what they think the answer should be, then go into oral argument usually looking to solidify the position they've decided upon. Often this takes the form of, as you said, hammering on the side they favor to flesh out whatever theory they're currently working out in their heads. You'd be surprised, a lot of answers that seem "bad" have a nugget of a good legal theory, or at least something that brings parts of the theory together.
Of course, harassing attorneys with questions you know they can't answer sufficiently or forcing them to admit to something that makes them uncomfortable is also fun.
Parent
Re: (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.
Parent
Re:I wouldn't count on it... (Score:4, Informative)
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.
That's a big part of the problem. They aren't there to decide if that's the way things ought to be, they are there to determine if the federal government has the constitutional authority to act on an issue. That's all.
Parent
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].
Parent
Re: (Score:2, Troll)
Don't worry: Justice Thomas will change his mind if Justice Scalia changes his first.
good background info (Score:4, Informative)
You're in violation of my patent... (Score:2)
On the concept of "blow-by-blow coverage."
Expect to be hearing from my lawyer.
Re: (Score:3, Funny)
On the concept of "blow-by-blow coverage."
Expect to be hearing from my lawyer.
I know what you mean. My lawyer is a complete whore too.
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."
Re: (Score:3, Interesting)
Jefferson called the Supreme Court a bunch of Oligarchs.
9 Old Men that run the country.
Re: (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: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.
Parent
Re: (Score:2)
Patents are worth only the amount of money you can field to litigate an infringement case over in most cases. A small player will fold if they're actually infringing when presented with a lawyer letter (they can't afford the litigation any more than you can, really...). But, a big player, something with a 10 or more figure market cap, would be in a position, if you're a startup, to mire you down and out-litigate you in most cases. It would be an expensive proposition without any good foreseeable prospect
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."
Parent
Re:Radio? Seriously, are you a Twit? Seriously? (Score:4, Funny)
Seriously, his references includes a less than obscure radio broadcast that many older people might recognize over a modern day cartoon that they won't recognize? Seriously? When 9 individuals comment and 1 brings a reference in that a number of older people would recognize do you always behave like a twit?
What are you "The Second Horseman of Jumped the Shark" or perhaps "The Second Horseman rode by Perez Hilton"? Seriously, realize that you are not always going to be the demographic some comments are aimed at and ...... get the hell off my lawn.
Parent
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?
Parent
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.
Parent
Re: (Score:3, Informative)
Scalia didn’t really ever say: “Mere factual innocence is no reason not to carry out a death sentence properly reached.”
What Scalia did say was:
“There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
Now that might be objectionable, but it is likely factual (“no basis in text, tradition,