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New USPTO Test Could Limit Software-Based Patents 123

Posted by timothy
from the counting-but-on-fingers dept.
bizwriter writes "The high tech industry has been waiting for a Supreme Court decision in the Bilski case to decide fundamental questions, like when you can patent software. But there's a new test from the Board of Patent Appeals and Interferences (PDF) that just became precedential, meaning that it offers new grounds on which the US Patent and Trademark Office can deny patents on machines that use mathematical algorithms."
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New USPTO Test Could Limit Software-Based Patents

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  • I've been waiting for something like this.
    • by adamchou (993073)
      Apparently, the patent office [abajournal.com] is on a streak of common sense recently...
      • Re: (Score:3, Interesting)

        by ppanon (16583)
        More likely, they could tell which way the wind was going to blow and decided to try to stay ahead of the curve and in control of the decision making process. They held off as long as possible to keep the cash from applications coming in. However, now that the writing is on the wall, they're trying to avoid the court setting a major precedent restricting their processes - never mind that it was a (bad) court decision that allowed business and software patents in the first place. It's almost like they were a
      • by vegiVamp (518171)
        Don't worry, they'll get over it as soon as the corporate money stops flowing.
  • by cosm (1072588) <thecosm3 AT gmail DOT com> on Tuesday December 22, 2009 @12:25PM (#30524766)
    Sure, the patent office has it rough, sorting a gajillion [technical term] applicants all wanting a patent for their "unique idea", with the majority really just wanting a foothold for litigation riches. Don't get me wrong, there are definitely honest attempts at securing one's interests and not getting your own pride and joy "unique idea" stolen, but I'll be damned if the USTPO hasn't awarded some of the dumbest, most wide-ranging generalizations to companies that patent spam thousands upon thousands a year. The latter mentioned issue has been going on long before the dawn of the digital, so I feel its too late to correct the problem in the current system.
    • by reebmmm (939463) on Tuesday December 22, 2009 @12:39PM (#30524954)

      ...with the majority really just wanting a foothold for litigation riches.

      Contrary to this popular belief, lots of patent applicants want a patent to start their business and many others want to have a portfolio for defensive purposes. I'll also throw this out there, most of the patent applicants are not the same party that ends up litigating the patent. Many inventors and most companies cannot finance patent litigation. Even if they can finance the litigation, they're too risk adverse to monetize it this way. There is a lot of risk in patent litigation. It's much easier to take a lowball license fee than it is to risk/pay for 1) reexamination and 2) actual litigation.

      The most notorious group of patent litigators are usually companies that have acquired the patent for a nominal amount from the original inventors either through a bankruptcy, auction, or, occasionally, via a firesale when a company is in dire straights. Once they have it, they have little or no emotional attachment to the invention and there is little life left in the patent (term is about to expire) so they don't worry about making broad sweeping allegations of infringement for fear of invalidating the patent. They also don't fear invalidating the patent because they don't have any incentive to use it defensively since they have no products of their own.

      Finally, I'll note that only the tiniest minority of patents ever see the light of day. Most collect dust on someone's shelf.

      • by rolfwind (528248) on Tuesday December 22, 2009 @12:59PM (#30525196)

        and many others want to have a portfolio for defensive purposes.

        This alone speaks to the brokeness of the system.

        • and many others want to have a portfolio for defensive purposes.

          This alone speaks to the brokeness of the system.

          I dunno, I can see how you could argue that "defensive patents" are in some way the purpose of the system. Instead of all of these technology companies making their knowledge trade secrets, they sign cross-licensing agreements so that both companies involved can use the other's research to make their own products better.

          • Re: (Score:3, Insightful)

            by arose (644256)

            Instead of all of these technology companies making their knowledge trade secrets, they sign cross-licensing agreements so that both companies involved can use the other's research to make their own products better.

            Cartel much?

          • by mea37 (1201159)

            That's not what "defensive patent" means.

            A defensive patent is one you don't actively license or enforce, but that you keep in reserve so that you can sue anyone who happens to have infringed it. You keep this threat in your back pocket in case someone sues you (particularly over IP issues). If you licensed it or used it against someone who hadn't sued you first, it would lose its defensive value.

            It is an abuse of the system, and arguably a system that encourages it is broken (though I'm not convinced tha

            • A little off topic, but patents are also written in such a manner that it is difficult to figure out what they actually cover. They're written in lawyer speak, which engineers who need to interpret them don't readily understand. They're written in insanely broad ways to cover as much ground as possible, including the kitchen sink (and therefore say nothing at all).

              And it is not uncommon for some of them to use odd language for things so that they're hard to search for. So instead of a patent for binocula

      • by Halo1 (136547)

        Finally, I'll note that only the tiniest minority of patents ever see the light of day. Most collect dust on someone's shelf.

        And all money invested in drafting those patents, applying for them, reviewing them and renewing them is a massive waste of both private and government resources that could have been spent on actually useful stuff.

        • by nschubach (922175)

          government resources that could have been spent on actually useful stuff.

          Where have you been?

          • Re: (Score:3, Insightful)

            by Halo1 (136547)

            government resources that could have been spent on actually useful stuff.

            Where have you been?

            In a world that's not ruled by Faux News.

      • Re: (Score:2, Funny)

        Quick and easy patent reform: Make the law such that:

        1. Only individuals and not corporations may apply for patents.
        2. Only the actual inventor can apply for and be granted the patent.
        3. Patents cannot be sold, only licensed.
        • by reebmmm (939463) on Tuesday December 22, 2009 @01:43PM (#30525698)

          This is a silly proposal.

          Only individuals and not corporations may apply for patents.

          Only the actual inventor can apply for and be granted the patent.

          Well, in the US (unlike the rest of the world), patents are filed in the name of inventor. However, since patents and patent applications are like any personal property, they can be sold. The law really doesn't limit to whom a seller (the individual inventors) may sell his or her patents, but see my point below.

          Patents cannot be sold, only licensed.

          This wouldn't change a thing. You can structure a license to effectively be a "sale" without calling it a sale. [As an aside, there is a line of cases that distinguish between a license and a "sale of substantially all the rights" (aka an assignment)]. If there is some limit on what part of the whole you're allowed to license then people that intend to "sell" the patent will go right up to that line.

          Also, this doesn't make much sense in the real world.

          First, if you're a company that employs the inventor, you're going to be pretty annoyed when that inventor walks and takes the invention with him to your competitor.

          Second, it also doesn't make sense if you're selling your business, going into bankruptcy, trying to use the patent as collateral for a loan, etc.

          Finally, there are probably all kinds of weird tax issues with the license-only, no sale provisions.

      • Many inventors and most companies cannot finance patent litigation. Even if they can finance the litigation, they're too risk adverse to monetize it this way. There is a lot of risk in patent litigation. It's much easier to take a lowball license fee than it is to risk/pay for 1) reexamination and 2) actual litigation.

        That's because the nobody would kill a pig before it grows up. Why wasting money suing a little company having hard time meeting its payroll; wait until it gets big funding or IPO or wait until a big guy stepping on the patent, and then plenty of lawyers will work for you on contingent fee basis.

        • by Gabrill (556503)

          Veal, on the other hand . . . Lots of small companies are snapped up wholesale on the value of their IP. A buyout offer is often the first step in forced acquisition, followed by litigation on any pretext.

      • by CityZen (464761)

        I think patent law should be modified to disallow patent trolling. Patent holders should be required to license patents for reasonable fees, or else lose the patents.
        Of course, the key issue is determining what a "reasonable" fee should be, but I imagine that someone smart enough can come up with a reasonable formula.

        • by Gabrill (556503)

          No, "someone" can't. Reasonable is such a subjective term, and varies based on market demand. Also, you are proposing regulated pricing, AKA socialism, and bucking the free market.

          • by CityZen (464761)

            > Also, you are proposing regulated pricing, AKA socialism, and bucking the free market.

            No, not at all. The formula could very well be market-based. In fact, you may have hit upon the solution: a market (like the stock market) for patent licenses. Of course, this brings up a host of new issues to solve, but then, what's life for?

        • "Reasonable fees" are going to be nearly impossible to determine.

          The sentiment is right though. You need to make some effort at using the patent and not sitting on it. I'm not sure how you'd prove someone was trying sufficiently, but you could scale the damage awards based on "actual" damage done. This doesn't really fix the issue though as these things are all so dependent on markets and other factors that are not realistically evaluated.

          • by CityZen (464761)

            I don't think that patent holders should be allowed to escape licensing by claiming that they will bring a product to market themselves. Perhaps they can be given a time window in which to do so. If they are not satisfied with this, then they always have the option of not patenting.

            As I wrote in another article, patents & copyrights should serve 2 purposes:
            -encourage innovation & creativity by providing a limited period to profit from it.
            -add to the public domain after said period expires.

            The seco

      • Re: (Score:1, Troll)

        Of all the intellectual property concepts, patents are fundamentally the most repugnant.

        Whereas trade secrets do no impose any burdens on others, and whereas copyrights at least only apply to actually produced works after the fact, patents are censorship of ideas in other people's heads.

        It is fundamentally repugnant to allow some random stranger on the other side of the country to dictate to me what I can and cannot do with the ideas I get in my own head, even for a limited time. It is a form of thought

    • by Opportunist (166417) on Tuesday December 22, 2009 @12:49PM (#30525068)

      I'll be damned if the USTPO hasn't awarded some of the dumbest, most wide-ranging generalizations

      In Australia John Keogh managed to patent the wheel [ipmenu.com]. It was later struck down (probably because of prior art, dunno for sure...), but it was issued.

      • by Gabrill (556503)

        Way to reply completely out of context! Australia has NOTHING to do with the USPTO. Not that plenty of wheel applications haven't gone up before the United States Patent and Trademark Office.

  • Probably ANY algorithm can be reworked to be a mathematical formula. (I wouldn't want to have to maintain the thing, but it could run.)

    • Re:Everything? (Score:5, Insightful)

      by Nadaka (224565) on Tuesday December 22, 2009 @12:48PM (#30525064)

      Probably? Reworked? All algorithms are already mathematical formulas.

      • Technically, all algorithms can be expressed in terms of a mathematical formula, but they are not, in and of themselves, mathematical formulae per se. Specifically, all can be expressed in terms of lambda calculus.

        • by Nadaka (224565)

          You can describe a mathematical formula in almost any language. It is still a mathematical formula even if not defined rigorously in a formal proof.

          • Here's a perfectly valid algorithm stolen from Wikipedia's article on algorithms:


            TEST 1: IF today's date is NOT Friday THEN done ELSE TEST 2:
            TEST 2: IF the document is NOT located at 'D:/My Documents' THEN display 'document not found' error message ELSE TEST 3:
            TEST 3: IF there is NO paper in the printer THEN display 'out of paper' error message ELSE print the document.

            How does this meet the definition of a mathematical for

            • by Sir_Lewk (967686)

              Here is a perfectly valid mathematical formula, paraphrased from wikipedia:

              aye squared plus bee squared equals see squared

              How does this not meet the definition of mathematical formula, as written?

              Notation is meaningless, math is math.

            • Re: (Score:1, Informative)

              by Anonymous Coward

              because you can substitute anything for those variables, i.e.

              today's date = a
              friday = 10
              and using Dirichlet functions you can define this algebraically.

            • by lurcher (88082)

              And could you be so kind as to provide the "definition of a mathematical formula" which makes your statement true please?

      • by Tablizer (95088)

        I probably should have said, "in theory". There may be some cases that are too difficult or expensive to bother to convert in practice.

      • Contradictory? (Score:3, Interesting)

        by hackingbear (988354)
        In my observation of software patents, those that are really mathematical in nature like a new compressing algorithm, 3-D rendering algorithm, etc are actually the ones that are most genuine, non-obvious, creative. Come on, if those are trivial, can you come up with one that beats the existing ones now? On the other hand, the low quality / troll patents, like those involving UI or famous EOLA browser plugin patent, are usually non-mathematical in the the usual sense. You could argue it is still math, but ev
        • by Nadaka (224565)

          More or less, I agree with this. But then, I generally think that 95% (insert some random percent close to 100) of patents are worthless crap that should not be patentable anyway.

          • So perhaps we can just mandate mathematical (that includes algorithmic) genuity and solve it all?
      • There may be a theoretical equivalence between algorithms and mathematical formulas, but how useful is it?

        I once saw Edsgar Dijkstra give a talk on proving program correctness via mathematical proof. It took him an hour--he was a great speaker so at least it was fun--to prove the correctness of a routine to compute factorials, and no one had ever heard of the theorem he finally used to nail the thing down.

        During the Q&A session, Niklaus Wirth asked, "So, where did you get the rabbit you just pulle
    • by lurcher (88082)

      Well, ignoring the fact that it can be proved through the normal Turing machine proof. It can be also be shown in practice that it can be reduced to a set of logic equations. Use VHDL to describe a processor and memory and any i/o required. Add the VHDL to describe the stored program containing the instructions to run on the processor to implement the algorithm. Then synthesise the resultant VHDL to a FPGA target, and you have reduced the algorithm and the machine to implement it to a set of pure matematica

    • by Madsy (1049678)
      All algorithms can be described by lambda calculus: Wikipedia:Lamda_calculus [wikipedia.org]
    • by sjames (1099)

      Probably ANY algorithm can be reworked to be a mathematical formula. (I wouldn't want to have to maintain the thing, but it could run.)

      s/Probably/Provably/.

      Any algorithm can be expressed in lambda calculus. The rest is simple mechanical and interchangeable details needed to apply it.

      • Any algorithm can be expressed in lambda calculus. The rest is simple mechanical and interchangeable details needed to apply it.

        It would be worth it to take down business process patents as well, for they are merely algorithms.

        I'm pretty sure most machines could also be so represented, though.

  • Precedential... or Presidential? Ha!
  • That's always been the law. Look up basic patent law. Those criteria have been fundamental since the patent system's inception. I suppose it takes a judge that's actually read the law to be able to rephrase it so that other judges can be reminded of what the law has stated for centuries. Perhaps now more patent judges will make rulings actually based on patent law. Glad to hear of the "development", but it's always been the case.
    • by mea37 (1201159)

      Hmm... the judicial branch's actions involve interpreting the law rather than writing new law? What a shock.

      • Hmm... the judicial branch's actions involve interpreting the law rather than writing new law? What a shock.

        Why would that come as a shock? And furthermore, how is that relevant to what I said? Let me spell out the relationships here for you. There are two steps that come before interpreting: 1. reading 2. comprehending What I said is that it's obvious that either one or both of these steps has been overlooked by the majority of patent judges when it comes to software. What I said was that in order to interpret the law you must first KNOW what law has been written. And while I understand that there are a lo

  • by MBCook (132727) <foobarsoft@foobarsoft.com> on Tuesday December 22, 2009 @12:53PM (#30525122) Homepage

    For those curious, you can find the patent here [patentstorm.us]. Looks like a generic recommendation engine.

    My question is, if this was decided in August, why is it only precedent now?

    It that normal? Was it time for an appeal?

  • Lawyering (Score:4, Insightful)

    by burnin1965 (535071) on Tuesday December 22, 2009 @01:20PM (#30525432) Homepage

    Definitely a move in the right direction to address the now prophetic "untold consequences" foreseen by Judge Archer and Judge Nies in their dissenting opinion in In Re Alappat, No. 92-1381 (Fed. Cir. July 29, 1994) [gwu.edu].

    Unfortunately, as with the majority decision in the 1994 Tektronix appeals case, the tests provided to determine patent-ability of software algorithms continues to leave the door wide open to incessant lawyering [mit.edu] not for the purpose of upholding the constitution and promoting "the Progress of Science and useful Arts" [archives.gov].

    No, instead we will continue to waste investment resources to stifle competition in the name of profit margins and monopolies.

    Most people likely will not read the dissenting opinion so I'll quote the conclusion from the dissenting opinion here with emphasis added so others can see the prophecy for themselves:

    The majority's holding is dangerous in the following way. First, it reasons that one can obtain a patent for a discovery in mathematics as long as some structure is formally recited on the face of the claim. Under this aspect of the holding, many of the requirements for patentability other than "newness," such as nonobviousness, make no sense and cannot be meaningfully applied. Thus, mathematical patents will be easier to obtain than other patents. Moreover, the patent law will now engage in the charade wherein claims directed to a particular method of calculating numbers (for use in a computer) are unpatentable, but claims directed to a computer (performing a particular method of calculating numbers) are patentable. (Mercifully, the majority leaves open the possibility that a claim reciting structure on its face can still be rejected under 101. The majority says that this will happen where the claim reciting structure on its face is merely a "guise" for a claim to a mathematical process. Although the majority finds that Alappat's claim to a rasterizer is clearly not a "guise" for a discovery of a mathematical process, the majority does not describe in detail how one distinguishes in general a "true" apparatus claim from an apparatus claim in "guise." Presumably, the way this is done is to determine what is the invention or discovery for which the patent applicant seeks an award of patent, and then to determine whether that discovery is the kind the statute was enacted to protect, as this dissenting opinion does.)

    Second, the majority accepts the argument that all digital electronic circuitry is statutory subject matter when it performs a mathematical operation, and it is all equivalent when the particular mathematical operation is the same. Under this aspect, the mathematical patents will create an enormous scope of technological exclusivity. The lack of meaningful examination and the breadth of exclusive rights conferred by patents for discoveries of bare mathematical operations are repugnant to Congress's careful statutory scheme for the promotion of the useful arts.

    As the player piano playing new music is not the stuff of patent law, neither is the mathematics that is Alappat's "rasterizer." And the Supreme Court has in its decisions required it so. Alappat's claimed discovery is outside 35 U.S.C. 101, and for this reason I would affirm the board's rejection. I dissent from the majority's decision on the merits to the contrary.

  • by AP31R0N (723649) on Tuesday December 22, 2009 @01:22PM (#30525454)

    Please don't mod me a troll for asking an honest question. IANaIPL. If i had the answer i wouldn't be asking.

    Why allow software to be patented instead of copyrighted?

    - Patents should be for THINGS (concrete stuff).
    - Copyright should cover TEXT (abstract stuff).

    It make sense to me that you should be able to protect the way YOU managed to execute some process, but not the idea of being able to DO the process at all. It seems to me that software companies are trying to patent vehicle direction input devices (as a concept) rather than just 'our particular design for a steering wheel'(a specific implementation).

    Seems to me that these systems should exist to prevent others from stealing your specific work, the result of *your* labor; not to prevent others from engaging in the same line of business. Which seems to be the point of much of software patenting.

    And why allow it to be patented instead of having it copyrighted?

    Am i missing something?

    Tangent/Rant:

    If the intent of copyright and patenting is to encourage innovation, i think it has failed. i have tons of doodles and outlines for things i'd like to see on the market or share. But when i look at what would be involved... i'd rather do anything else. Wash dishes, scoop the litter box or watch TV... than hire a lawyer and go through the years of waiting, piles of paper work and enormous expense of dealing with the nightmare of IP. Even if i do it all and do it all correctly it could still be taken from me by a better paid lawyer.

    • Writing code is creating a 'thing', and falls under patent law.
      Copying that program and selling it falls under copyright law.

      of course, software falling under patent law is pure bullshit, not only for all the reasons that dozens of posts on this thread will mention, but also because nobody is actually disclosing usable source code in their patents. A patent is supposed to explain an exact method for doing something, not just vague hand waving and hints about how something is done.

      I would have far le
      • by reebmmm (939463)

        I would have far less of a problem with software patents if they actually disclosed fully functional source code with the patent

        Some patents do include source code. But the law has pretty much made this non-essential. This has happened for the same reason that most electronic patents no longer include the diagrams with elaborate gating, switches, etc. Courts and the PTO have more or less made the enablement requirement assume that one of ordinary skill (including reasonably skilled programmers) could put t

    • by PhxBlue (562201)

      Why allow software to be patented instead of copyrighted?

      Copyright doesn't fit software any better than it would a mathematical proof, since they're essentially the same thing. Software is a means to solve a problem -- I daresay if someone comes up with a unique way of solving a particular problem, they should be granted a patent. But that doesn't mean that someone should be given a patent on every way of solving a particular problem.

    • by Grond (15515) on Tuesday December 22, 2009 @03:41PM (#30527606) Homepage

      It turns out that there are lots of responses to your criticisms and questions. I will go over a few of the main ones.

      First, patents are for 'concrete stuff.' The patent statute makes this quite clear. "The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." 35 USC 112 [cornell.edu] (emphasis added). Furthermore, "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains...to make and use the same." Id (emphasis added).

      Now, a common rejoinder here is that many patents have very broadly written claims and weak specifications. This has not gone unnoticed, and there is a trend in Federal Circuit decisions to tighten down the requirement that the claims indeed be fully supported by the specification, which will tend to result in narrower claims and more detailed specifications. Furthermore, many broad claims that get through prosecution end up being invalidated on reexamination or during litigation; broad claims are easier to invalidate than narrower claims. Personally I support eliminating the strong presumption of validity for patents, which would make all patents easier to invalidate.

      Second, copyright is not for 'abstract stuff.' Quite the opposite, in fact: copyright protects the concrete expression of an abstract idea. In software this has been interpreted quite narrowly; as long as the source code, object code, and UI elements have not been copied or derived from, one is generally free to duplicate what a program does. This is because copyright explicitly does not cover the functional aspects of a work, only the creative, non-functional aspects. "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 USC 102(b) [cornell.edu].

      Thus, if only copyright were available for software and not patents, there would be at least two major gaps in protection. First, functional aspects of a program could not be protected. All technical innovations would be up for grabs. Second, copyright does not protect against independent implementation, so even the creative aspects would not be protected against clean-room reverse-engineering.

      This is all without really getting into the fact that copyright is free and automatic whereas patents are expensive and must be applied for, that a copyright in one country is generally a copyright worldwide whereas patents are territorially limited, that patents have a limited duration whereas copyright is practically forever, or that patents can be invalidated due to obviousness whereas there is no clear equivalent to that doctrine in copyright. All of these and more are reasons why copyright in software cannot simply substitute for patents.

      Now one can argue that the patent system has its faults as implemented (and I would agree) or that it doesn't encourage innovation (and I would generally disagree) or even that all software should be open source by statute (and I would certainly disagree), but on at least a theoretical level the different kinds of intellectual property serve different, complementary purposes.

      • by AP31R0N (723649)

        Thanks! That clears up quite a bit. i can't mod you here so i'll see if i can mod you elsewhere.

    • by reebmmm (939463) on Tuesday December 22, 2009 @03:52PM (#30527842)

      IAaIPL with a pretty big lawfirm, so I'll take a crack at this:

      Why allow software to be patented instead of copyrighted?

      There is no "instead." Currently you can obtain both: one for "original work of authorship fixed in a tangible medium of expression" (i.e., copyright), and one for the "new, useful, non-obvious" "process, machine, manufacture, or composition of matter, or any new and useful improvement thereof" (i.e., patent).

      Patents should be for THINGS (concrete stuff).

      Well, I'm sure that one make the concrete industry happy, but I don't think it is a logical policy distinction.

      Snark aside, there are a few easily articulated reasons. First, it really depends on what you mean by "concrete stuff" and "things." There are lots of "things" that aren't concrete (we usually say "tangible"). But interpreting what you mean by "concrete" from your subsequent bullet, I'll tell you that your conception of the dichotomy between patents and copyrights is almost 100% inverted. Patents are essentially stakes in the ground around an idea whereas copyright is the protection of the actual expression of an idea. As it relates to software, it's the difference between the idea for the code and the code itself.

      Second, the statutory classes include non-concrete things such as processes. This is the "because the law says so" argument.

      Third, it's not just tangible things because it's very difficult to draw the line between "concrete stuff" and the not-so-concrete stuff. If you look at the claims at issue in this case, they're not just the algorithm. It's a computer programmed to do the algorithm.

      Think about it like this: a lever and a fulcrum are essentially the mechanical expression of using a physics equation for leverage. If you were the first person to think of how to apply the leverage equation to lift things, that would be quite an advance--I have assumed away the obviousness issues since the inventor is the first person to ever think of it and focused only on whether it would be patentable at all.

      Copyright should cover TEXT (abstract stuff).

      It's not the "abstract stuff" that is covered at all. It is the actual expression of the abstract stuff that is covered. You do not get a copyright for your incorrect ideas about intellectual property, only the expression of it.

      Seems to me that these systems should exist to prevent others from stealing your specific work, the result of *your* labor; not to prevent others from engaging in the same line of business. Which seems to be the point of much of software patenting.

      If you've ever been involved in a copyright dispute, you'd recognize how little protection that actually offers you. Furthermore, if you've ever been involved in a major software development project, the amount of time actually writing a specific piece of code is diminishingly small compared to the other time, effort and energy expended to get to that point: design, plan, etc.

      Viewed in this lens, protecting only the expression is not a lot of protection since it's easy to copy the idea without copying the code.

      i have tons of doodles and outlines for things i'd like to see on the market or share.

      Your individual experience says little about whether patenting and copyrighting advances or encourages innovation. Patents and copyrights offer some additional incentives. Those incentives are not enough for you, clearly. You are not along, there is a whole world of trade secrets for innovations that would be under-rewarded via patents and copyrights.

      But your argument is really a push for MORE benefits; not less. You would be unmotivated to contribute to innovation under the current system. The absence of that system would not provide MORE innovation from you.

    • Re: (Score:3, Insightful)

      by mea37 (1201159)

      Attempting to define a patent in overly-broad terms is not unique to software. The PTO just doesn't seem to be very good at defining it in the context of software yet.

      I think copyright protection for software is a poor fit. Copyright is a good fit for creative/expressive content (or at least, it would be if it weren't so messed up in its current legal form); but program code is functional in nature, and I don't think copyright works very well for that.

      The application of copyright to software is IMO a prag

    • by Yvanhoe (564877)
      [quote]Am i missing something?[/quote] You are proposing to put rules that make sense in the patent process. There is a rule against that.
  • Is the claim limited so as to not encompass substantially all practical applications of the mathematical algorithm5 either “in all fields” of use of the algorithm or even in “only one field?”6

    if (claim) !(( practical algorithm application) (( fields) || (fields x 1))) then no patent

    Neither are easy to read - but I think the idea is you cant patent a mathematical formula by itself

  • by russotto (537200) on Tuesday December 22, 2009 @02:32PM (#30526400) Journal

    This patent used the common tricks of "An ordinary computer implementing 'insert unpatentable material here'" and "A computer-readable medium containing code implementing 'insert unpatentable material here'", and while the board rejected both, it did so with very nitpicky analysis (particularly in the second case).

    What the board should have done is categorically rejected them, particularly the second one. A claim like "A computer-readable medium containing X" should be no more valid than a claim of "A human-readable medium containing X". And the latter case would make the patent applications themselves patentable, which is obviously absurd.

  • Ok, I feel really stupid reading that thing.
    It's in a form of legalese which is something that always makes my mind retreat to the dark recesses of my brain to hide in fear.

    Can someone please provide a normal-speak (or even geek-speak) version of that mess, maybe with an example or two?

    I'd certainly appreciate that, and I'm sure a lot of other readers would as well.
    • Re: (Score:3, Interesting)

      by Dachannien (617929)

      Essentially, the Supreme Court and the court under it (the Court of Appeals for the Federal Circuit, aka "CAFC" or "Federal Circuit", and its predecessor, the Court of Customs and Patent Appeals, or "CCPA") have over the years reached the legal decision that there are exceptions to the law which says what things are patentable.

      That particular law, 35 USC 101, says that new and useful processes, machines, articles of manufacture, and compositions of matter are patentable. So, a trash compactor, being a mach

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