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US Supreme Court Skeptical of Business Method Patents 160

Posted by kdawson
from the feeling-bilski dept.
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.
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US Supreme Court Skeptical of Business Method Patents

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  • Hope (Score:3, Insightful)

    by Anonymous Coward on Tuesday November 10, 2009 @09:12AM (#30044542)
    Oh, good. We may yet have some hope.
    • Oh, good. We may yet have some hope.

      If you do, you'll owe me some royalties. I have a patent on "hope."

    • by sqldr (838964)
      I'm two steps ahead of these guys. I already have a patent on making a patent on making a patent on making a parade of patents in a patent lawsuit, then I patented the process. That makes me good for the next 3 iterations of suggested slashdot patents.
  • by MikeRT (947531) on Tuesday November 10, 2009 @09:18AM (#30044576) Homepage
    the process of creating obfuscated reports about client billing practices intended to hide nickel-and-diming the customer to death. That would be a shot across the bow of lawyers, doctors, contractors and the banking industry in one fell swoop! Imagine the lobbying then to get rid of business method patents!
  • by jkrise (535370) on Tuesday November 10, 2009 @09:21AM (#30044596) Journal

    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.

    • by Aladrin (926209) on Tuesday November 10, 2009 @09:29AM (#30044642)

      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: (Score:3, Informative)

        by Trepidity (597)

        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)

      by John Hasler (414242)

      > 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.

        • by jcarkeys (925469) on Tuesday November 10, 2009 @09:55AM (#30044880) Homepage
          It's kinda clear, actually. Article I, Section 8, Clause 8. "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 [wikipedia.org]".
          If Congress wants to regulate patents in a way that helps big business, then they can.
          • Re: (Score:3, Insightful)

            by Svartalf (2997)

            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: (Score:2, Insightful)

              by spidercoz (947220)
              to which I will reply, nothing this country has done in the last decade "Promotes the progress of Science and useful Arts"
            • 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.

              • by gd2shoe (747932) on Tuesday November 10, 2009 @04:58PM (#30051280) Journal

                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.

                • by Dun Malg (230075) on Tuesday November 10, 2009 @09:34PM (#30054510) Homepage

                  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.

            • 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)

          by Toonol (1057698)
          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.

          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
    • by commodore64_love (1445365) on Tuesday November 10, 2009 @09:38AM (#30044724) Journal

      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.

    • by Anonymous Coward on Tuesday November 10, 2009 @09:54AM (#30044872)

      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).

      • by spidercoz (947220)

        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.

        Software which is based upon centuries worth of mathematics? Just sayin.

      • Re: (Score:3, Insightful)

        Blanketing software patents by comparing them to business method patents is comparing apples and oranges

        They're both fruits?

    • by stephanruby (542433) on Tuesday November 10, 2009 @10:08AM (#30045004)

      (there is an opinion here that software patents help the USA in World Trade.... which seems very dubious to me at any rate).

      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.

    • by kabloom (755503) on Tuesday November 10, 2009 @10:10AM (#30045042) Homepage

      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.

    • 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: (Score:3, Insightful)

        by foniksonik (573572)

        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

      • by DinDaddy (1168147)

        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.

        Arguable. But even if you are right, it would be a pretty temporary devaluing of their stock, which would return to its normal level once it became clear that the value of the software was in its implementation, as well as marketing and integration with their other products, not just the novelty of their coding. I, for one, would take it as a great buying opportunity.

        After all, no one is arguing that copyright on computer code should be abolished with the patents.

        • After all, no one is arguing that copyright on computer code should be abolished with the patents.

          Yeah, but say you write a program in C and someone takes it and rewrites it in C++, or Java to Perl, etc. You have very little copyright protection in that new work. Your best bet is to claim it's a translation or a derivative work, but good luck proving that.

          • Re: (Score:3, Insightful)

            by WNight (23683)

            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

      • 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.

        RSA with a shorter key can be done with paper and pencil. Did you mean that increasing key length makes an unpatentable algorithm patentable? This appears to imply that execution time determines patentability: there exists a value n such that any novel algorithm that requires more than n operations is patentable and any algorithm that requires fewer is not. So what is n?

        • RSA with a shorter key can be done with paper and pencil. Did you mean that increasing key length makes an unpatentable algorithm patentable?

          Currently? No. But this is one way the Supremes could limit a decision that invalidates in-your-head business methods and diagnostic methods while preserving software patents. As for how many calculations would be required? You could still leave the test as "feasible" and let that be a factual question for a jury.

      • by AndersOSU (873247)

        "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.

        Do you think that a (novel) business method for hedging risk in derivatives markets could f

        • Do you think that a (novel) business method for hedging risk in derivatives markets could feasibly performed without a computer? If not, adding that language would invalidate the very decision the court just made.

          The court didn't just make a decision. This is oral arguments. The court's decision won't be out for another couple months. If you're referring to that statement you quoted, that was my hypothetical way to resolve this question.

          Personally, I'd wager that actual implementation of the Bilski method would be a considerably more complicated and computationally intensive piece of software than PGP.

          Oh, yeah? Here's claim 1:

          A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of: (a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumer; (b) identifying market participants for said commodity having a counter- risk position to said consumers; and (c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions

          A "series of transactions" can be as few as one, the fixed rate based upon historical averages is easy to calculate, and the rest is pretty straight forward. Now, sure, when you get up to several thousand transactions and lots of risk positions, it gets compl

      • by cfalcon (779563)

        If some turd law monetized air, arguments to get it out from under the grips of corporations so we didn't have to sign up with a Breathing Carrier or suffocate would all fall under the weight of your same arguments.

    • Re: (Score:3, Interesting)

      by Zordak (123132)

      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

      • by AK Marc (707885)
        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.

        One of the judges already said that software patents are linked because someone could use a program to write a business method. There are a number of flowchart, process and CRM programs out there where you could take a business process and turn it in
        • by Zordak (123132)
          I'm going to have to respectfully disagree. Chief Justice Roberts questioned one of the attorneys about a footnote that brought up software patents, but none of the judges have "said" anything yet, because they haven't issued their ruling yet. There is no compelling reason that they have to address software in this case. The Federal Circuit didn't. They carefully avoided the issue. The Supreme Court could do the same and rule that bare business method patents are invalid without saying a single word ab
    • 1 - Its *not* a "golden opportunity". Bilski's claims don't recite software, don't recite a computer, and don't recite any machine of any kind. They are pure business method claims.

      THAT is why Mr Stewart and the PTO are quite correct to say that this is an "unsuitable vehicle."

      In our legal system, courts decide *CASES*, not *ISSUES*.

      Broad issues are decided by the LEGISLATURE. Specific CASES are decided by the courts, on their specific FACTS.

      That is the SCOTUS will most likely affirm the Federal Circuit'

      • by Anomalyst (742352)

        they are focused on other issues right now

        You keep using that word. I do not think it means what you think it means.

      • by AK Marc (707885)
        In our legal system, courts decide *CASES*, not *ISSUES*.

        For better or worse, out legal system uses the existance of other cases to decide future ones. The Supreme Court does not decide cases at all. They don't hear facts. They almost always accept the findings of fact of the lower court, and solely address the applicaton of law. To many, that means they do not decide the case, but the issues. Were the issues handled right by the lower court? By the legislature? What reasoning did they use for thos
    • by khallow (566160)

      Why the govt. does not want to resolve the mess that is software patents, now that a golden opportunity has been presented?

      It preserves a rent-seeking opportunity for campaign donors.

    • 1. Why the govt. does not want to resolve the mess that is software patents, now
      that a golden opportunity has been presented?

      For a large part of US history the judicial branch has stopped being a co-equal branch of government. Keyword: 'judicial deference'. It's a really big problem for people who enjoy a constitutional republic.

      • by AK Marc (707885)
        For a large part of US history the judicial branch has stopped being a co-equal branch of government.

        You are right in that the Executive and Legislative branches are operating unconstitutionally. They take oaths to uphold the Constitution. Yet I've heard Clinton state that he thought something he was signing was unconstitutional. He signed it because part wasn't, but part was, and he wanted the part that was and was using the courts as a line-item veto. That's unconstitutional. He swore an oath to up
  • There are some justices who are clearly in the tank for big business patents (e.x. Clarence Thomas/Monsanto food patents), and I'm sure the other ones can be bought.
    • by bwcbwc (601780) on Tuesday November 10, 2009 @09:31AM (#30044670)

      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.

      • by Rydia (556444) on Tuesday November 10, 2009 @09:47AM (#30044804)

        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.

    • Re: (Score:3, Insightful)

      by nomadic (141991)
      There are some justices who are clearly in the tank for big business patents (e.x. Clarence Thomas/Monsanto food patents), and I'm sure the other ones can be bought.

      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.
    • by Zordak (123132) on Tuesday November 10, 2009 @11:51AM (#30046316) Homepage Journal

      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.

      • by XxtraLarGe (551297) on Tuesday November 10, 2009 @02:22PM (#30048962) Journal

        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.

      • by slashqwerty (1099091) on Tuesday November 10, 2009 @11:22PM (#30055660)

        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.

        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].

    • There are some justices who are clearly in the tank for big business patents (e.x. Clarence Thomas/Monsanto food patents), and I'm sure the other ones can be bought.

      Please explain how having worked a mere two years as a corporate lawyer in the 1970's indicates that he is in the tank for them? Or do you have some other evidence that he is in the tank for them?

  • good background info (Score:4, Informative)

    by volt4ire (1131825) on Tuesday November 10, 2009 @09:37AM (#30044714) Homepage
    A good source of background info for this case is provided in epside 1 of the Software Freedom Law Center's podcast http://www.softwarefreedom.org/podcast/2008/nov/25/0x01/ [softwarefreedom.org] It puts the case in perspective as to what software patents would be thrown-out under even the most optimistic Bilski rulings (ie: not ending all software patents, as we'd like to see).
  • On the concept of "blow-by-blow coverage."

    Expect to be hearing from my lawyer.

    • Re: (Score:3, Funny)

      by Curunir_wolf (588405)

      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.

  • Software patents ok? (Score:2, Interesting)

    by mikeborella (118715)

    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.

    • by itsdapead (734413)

      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.

      Its too much to hope that this will kill software patents in one swoop.

      Hopefully, even a ruling against "business method" patents will mean that a lot of software patents can be characterized as "implementing a buisness method on a standard computing device" and defeated on the grounds that the implementation could be done by any competent programmer.

      • Hopefully, even a ruling against "business method" patents will mean that a lot of software patents can be characterized as "implementing a buisness method on a standard computing device" and defeated on the grounds that the implementation could be done by any competent programmer.

        That wouldn't defeat the patent. In fact, it's a requirement that the implementation claimed by the patent could be done by any programmer of ordinary skill, with the guidance of just the specification and drawings. Remember, the patent system is about public disclosure - you should be able to read any patent and (if you're skilled in that technology) be able to make or use the claimed device or method.

        • by itsdapead (734413)

          In fact, it's a requirement that the implementation claimed by the patent could be done by any programmer of ordinary skill, with the guidance of just the specification and drawings.

          That's the standard for the level of detail required by the specification. But what if it can be shown that your "programmer of ordinary skill" could have taken a non-technical description of the "business method" and implemented it, using well-established techniques without the full specification?

          Now, as long as there was FUD as to whether or not the method was patentable in itself, that wouldn't necessarily have helped. If that's clarified, it should be much easier to sift out the unpatentable "method" e

  • Email Marketing, So I will demand $0.25 per spam mail sent from every spammer for using my Idea.
    Pyramid Schemes, So when they are caught they will need to pay me royalty for breaking the law.
    Telemarking, They call me they will need to pay for violating my patent.

    Lets just patent all the evil practices so it is just that more expensive to try to lie and cheat.

    • by DJRumpy (1345787)

      I'm guessing I'll be modded down for this, but I am genuinely curious about this. Why are people so against software patents? At their most basic elements, yes they are just basic math, but we are not looking at the most basic elements. The same could be said for art (just a few strokes of a brush at it's most basic level), or Music (just a few basic notes on a scale repeated over and over). The finished product gets you Mozart, and Monet.

      I can see a real need to actually protect works of that sort, and giv

  • Here I was ready to file a business model patent on "Receiving advertising revenue based on news stories that draw the most flames, sometimes resorting to dupes". Somehow I think there might be prior art, but I doubt the patent office would notice ;)

  • by DJRumpy (1345787) on Tuesday November 10, 2009 @12:19PM (#30046732)

    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."

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