Supreme Court Throws Out Bilski Patent 232
ciaran_o_riordan writes "The US Supreme Court has finally decided the Bilski case (PDF). We've known that Bilski's patent would get thrown out; that was clear from the open mockery from the judges during last November's hearing. The big question is, since rejecting a particular patent requires providing a general test and explaining why this patent fails that test, how broad will their test be? Will it try to kill the plague of software patents? And is their test designed well enough to stand up to the army of patent lawyers who'll be making a science (and a career) of minimizing and circumventing it? The judges have created a new test, so this will take some reading before any degree of victory can be declared. The important part is pages 5-16 of the PDF, which is the majority opinion. The End Software Patents campaign is already analyzing the decision, and collecting other analyses. Some background is available at Late-comers guide: What is Bilski anyway?"
More analysis of the decision is available at Patently-O.
And the supreme court... (Score:5, Informative)
punted.
Bastards. Bilski is invalid, machine-or-transformation is thrown out, but the court explicitly provides no further guidance either way.
Software Freedom Law Center reaction. (Score:5, Informative)
The Software Freedom Law Center has a great response [softwarefreedom.org] up. From SFLC chairman Eben Moglen: "The confusion and uncertainty behind today's ruling guarantees that the issues involved in Bilski v. Kappos will have to return to the Supreme Court after much money has been wasted and much innovation obstructed."
(I hope they'll be providing a deeper analysis later on; the above came out like ten minutes after the decision, so obviously it's just based on the summary of the decision.)
-Karl Fogel
No new test (Score:5, Informative)
The judges have created a new test...
No, the judges said that the "machine or transformation" test that the Federal Circuit used to reject Bilski wasn't the exclusive test, but merely an important tool... And then they left it at that, and didn't specify a new test.
The important parts to take away here are that this decision carefully tiptoed away from software, and did affirm that some business methods are patentable.
I don't think they've really created a new test (Score:4, Informative)
They've basically declined to create a new test. The "majority" opinion, in its strongest parts, which leaned more in favor of business-method patents, only got 4 votes (Scalia didn't join those parts). The main concurring opinion (by Stevens), which leaned more strongly against business-method patents, also only got 4 votes. Scalia joined a separate opinion by Breyer which emphasized the common points between the two opinions, but leaned slightly against business-method patents. It agreed with the majority that the "machine or transformation test" wasn't the sole test, but still thought it was the main useful one. That opinion also ended up with a list of examples of ridiculous business-method patents that are definitely not legit, so it doesn't seem Scalia would actually uphold most specific business-method patents that came across his desk.
Neither funny nor accurate (Score:1, Informative)
It's also worth looking at the approach of the NYT. I revere the Gray Lady's punctuation standards. If they ever allowed "Supreme's" through (they would not...) they would rightly insist on the apostrophe because they are a newspaper of record which means that in the future someone might read the head line and should not think that Diana Ross had a hand in the decision.
In punctuation, a little learning is a dangerous thing. If you read Lynne Truss's essay on the apostrophe (and it is far from the last word on the subject) you will find out that even greengrocers' apostrophes are not always wrong: they date from an age when new fruit and vegetables were appearing, and their customer needed to know that there was a difference between potato's and asparagus. Later the issue was resolved by adding an e - potatoes - but you still needed to know what the rule was. Whereas, if you knew the "apostrophe rule" you knew that one of those red fruits labelled "tomato's" or one of the yellow fruits labelled "banana's" was a tomato or a banana.
Re:"journalism" (Score:3, Informative)
Re:And the supreme court... (Score:4, Informative)
In practice, it's not clear how much they've cleared the way for business-method patents. Scalia signed the separate Breyer concurrence, which emphasized that the machine-or-transformation test is still the main test to be used, and that huge ranges of supposed business-method patents are absurd and clearly impermissible--- the opinion ended with a list of 4 or 5 such absurd business-method patents, like a dating-system one. So it seems five of the justices (Scalia, Stevens, Breyer, Sotomayor, Ginsburg) have a general presumption against business-method patents, and would probably hold that any specific patent that made it to them was not legit.
(Scalia also didn't join all of the majority/plurality opinion.)
Claim differentiation (Score:5, Informative)
So, can I continue getting patents by adding "on the internet" to common sense operations?
You misunderstand the point of that phrase. It's a technique called claim differentiation and shows up typically in a dependent claim, the purpose being to expand the independent claim from which it depends. For example, say my independent claim is a new forward error connection scheme that involves receiving packets from a network, processing them using my revolutionary new error correction system and appending some sort of advanced hash to them [note: I personally haven't invented it yet, so please don't criticize me by saying "but error correction and hashes are known". This is just for example], and then transmitting the appended packets over the network. Then, in a dependent claim, I say, "The method of claim 1, wherein the network is the internet." Because the two claims, by definition, cover different things, the addition of the dependent claim means that the networks in the independent claim include the internet, but also include other networks - local networks, private networks, metropolitan area networks, wireless networks, wired networks, token ring networks, etc. It's purely useful in a litigation sense so that someone can't say "well, you were thinking of the internet when you said 'network' so when I do it over my corporate intranet, it's different and I'm not infringing."
Re:Fucked-up title (Score:3, Informative)
"Supreme's" is not a contraction. "Supremes" is a popular term for members of the Supreme Court, not a contraction, and the apostrophe is superfluous. BTW, IMB isn't a contraction, either, it's an acronym.
English, motherfucker, can you type it?
No software ruling (Score:1, Informative)
Luis Villa's thoughtful response (Score:4, Informative)
Re:Fucked-up title (Score:1, Informative)
"IMB" is not an acronym. It's an initialism.
Re:"journalism" (Score:2, Informative)
WASHINGTON — The Supreme Court on Monday refused to weigh in on whether software, online-shopping techniques and medical diagnostic tests can be patented, saying only that inventors' request for protection of a method of hedging weather-related risk in energy prices cannot be granted.
The high court unanimously agreed with a lower court ruling that threw out Bernard Bilski and Rand Warsaw's patent, a decision many said could endanger patents in an increasingly high-tech world. But the high court said they did not need to make a broad sweeping decision about patents to dispose of Bilski and Warsaw's case.
"The patent application here can be rejected under our precedents on the unpatentability of abstract ideas," Justice Anthony Kennedy wrote for the court. "The court, therefore, need not define further what constitutes a patentable process."
This is a better background than anything else I've found. Tried to submit a general patent for software that determines energy prices against weather. Thrown out for being too abstract.
Job done. :)
Re:Fucked-up title (Score:3, Informative)
Yes it is, and if you search for that phrase you will see that it is short for Supreme court justices, where the apostrophe stands for court justice. I have seen this contraction before and thought it strange until I had it explained to me. You will find that many newspapers and such use it. For example: https://www.lectlaw.com/files/exp20.htm [lectlaw.com]
Supremes is also used, but I've never been able to figure out what Diana Ross had to do with the Supreme Court.
So, sorry to be a pendant, but to answer your question, yes, I do type English, and apparently I understand it better than you. CmdrTaco is using correct grammer and spelling.