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Easy Fix For Software Patents Found In US Patent Act 172

Posted by Soulskill
from the hidden-where-nobody-would-look dept.
WebMink writes "What if there was an easy, inexpensive way to bring software patents under control, that did not involve Congress, which applied retrospectively to all patents and which was already part of the U.S. Patent Act? Stanford law professor Mark Lemley thinks he's found it. He asserts that the current runaway destruction being caused by software patents is just like previous problems with U.S. patent law, and that Congress included language in the Patent Act of 1952 that can be invoked over software patents just like it fixed the earlier problems. All it will take is a future defendant in a patent trial using his read of a crucial section of the Patent Act in their defense to establish case law. Can it really be that easy?"
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Easy Fix For Software Patents Found In US Patent Act

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  • by BMOC (2478408) on Friday September 14, 2012 @10:57AM (#41334897)
    ... we'll generate enough cash to... oh wait ... so many people in power don't want to fix the patent system... nevermind.
  • It does not matter (Score:5, Insightful)

    by blind biker (1066130) on Friday September 14, 2012 @11:00AM (#41334925) Journal

    The letter of the law doesn't matter. The spirit of the law doesn't matter. The constitution of the USA doesn't matter.

    Do you have money? Power? That matters. And as long as the powers to be want software patents, that's what you'll have, the way it is right now.

    • by Compaqt (1758360)

      What's puzzling to me is why Samsung chose a jury trial. Why would they do that, since juries are famously dumb.

      • by Nerdfest (867930)

        Overestimating the intelligence of the public, something Apple, and most other American companies learned not to do a very long time ago.

    • All it has to do is win in court with an argument that by all appearances to this layperson has failed already many times in patent cases.

      "All it has to do to win is not lose yet again" seems tautological to me. But I'm not a lawyer.

      I'd love it if the lawyers here responded that this was in fact under the subtleties of the existing law an entirely new tack that is likely to be a winner in an actual case and establish the given precedent.

      I would love it even more if it actually happened. But this (again:) la

    • by eepok (545733) on Friday September 14, 2012 @11:47AM (#41335437) Homepage

      This is not insightful. It's ignorant of history, truth, and completely hyperbolic.

      The truth is that the US judicial system has been *the* floodgate that opens to change from status quo rather consistently. Civil rights, women's rights, rights to contraception and inter-racial marriage. The three branches of our government all have their flaws, but the one that has consistently had less to do with bribes and pressure has always been the judicial.

      Defeatism is surrender to the cause you hate. Apathy is just short of volunteering for that cause you hate.

      • This is not insightful. It's ignorant of history, truth, and completely hyperbolic.

        DIPYO? It might not be insightful, but the only way you could say I'm "ignorant of truth" is if you were sleeping under a rock for the last three decades.

    • by jazman_777 (44742)
      Or in the words of Sollozzo in The Godfather, trying to get Corleone to help him out with access to "all those judges and politicians you keep in your pockets like so many nickels and dimes."
  • Retrospectively? (Score:4, Insightful)

    by Radak (126696) on Friday September 14, 2012 @11:04AM (#41334969) Journal

    Pretty sure submitter meant retroactively.

  • by Anonymous Coward

    It's relieving to hear somebody may have found an existing law which would end the patent debacle, but the problem remains that the law is not clear to the average person. Even this paper hoping to clarify what the law says just looks like 57 pages of MSWord to me, and I feel at the whim of the high powered attourneys and politically charged judges to interpret it.

    Herman Cain may not have been a quality pick for president, but I'm beginning to think his mantra of "simplify the law so the public understands

  • by JustNiz (692889) on Friday September 14, 2012 @11:09AM (#41335013)

    He said:
    >> If courts would faithfully apply the 1952 Act, limiting those claims to the actual algorithms the patentees disclosed and their equivalents,

    Clearly the authors were thinking non-obvious stuff with complexity such as a Fourier Transform would be patentable but how about just parts of it? What is the smallest/simplest functional thing that could constitute an algorithm?

    If this gets enacted as case law the obvious next step is that Apple will patent the 'for' loop and Microsoft will licence the 'if' statement.

    • It can get pretty small.

      It just needs to be somewhere few people have looked at. You can define an algorithm for any two numerical values added together. We keep thrashing into the Obvious problem because nobody/one lonely guy in the Midwest USA/ thinks of stuff like adding the Weight Watcher Point Count of your fridge contents with the number of times you ordered takeout to get your average ranking of a recreational gamer/nerd/techie.

      See how fun it gets? It's not obvious - but once you hear it you can't "u

    • by gtirloni (1531285)
      Haven't they? I demand a refund on my licensing fees!
    • by cfulton (543949)
      From the complete PDF:

      This is a problem that is unique to software. We wouldn’t permit in any other area of technology the sorts of claims that appear in thousands of different software patents. Pharmaceutical inventors don’t claim “an arrangement of atoms that cures cancer,” asserting their patent against any chemical, whatever its form, that achieves that purpose. Indeed, the whole idea seems ludicrous. Pharmaceutical patent owners invent a drug, and it is the drug that they are entitled to patent. But in software, as we will see, claims of just that form are everywhere.

      And I think he makes a good point. The problem being that we can already copyright the code. So, if patents can be applied at all then they must be applied to the purpose of the code.

      If this gets enacted as case law the obvious next step is that Apple will patent the 'for' loop and Microsoft will licence the 'if' statement.

      I don't believe that you could patent a 'for' loop or 'if' statement since they would have to be considered prior art in the public domain. But, it does seam that according to this guy you could patent c# because it is a specific way to achieve the function of a 'binary file derived from a human reada

      • by w_dragon (1802458)

        Pharmaceutical inventors don’t claim “an arrangement of atoms that cures cancer,”

        Excuse me for a moment, need to fill out a patent application form...

      • by shugah (881805)
        You can't patent a "for" loop or "if" construct as these ARE algorithms. As for C#, you could probably copyright the language (and even that was called into question in the Oracle v. Google case) but a computer language is not an invention or an idea, rather it is a means to express an invention or idea.
    • by swillden (191260)

      If this gets enacted as case law the obvious next step is that Apple will patent the 'for' loop and Microsoft will licence the 'if' statement.

      Wouldn't work, for at least two reasons.

      First, the patent would have to cover use of an algorithm to accomplish a specific task, and patents that try to cover basic operations like "iteration" would be as successful as patents on "moving objects from one place to another" -- they would be too broad to be accepted (by courts, at least -- the PTO seems to accept everything).

      Second, prior art for such basic algorithms as conditional branching is both plentiful and as old as you like -- at least back to the

  • No
  • by gstoddart (321705) on Friday September 14, 2012 @11:20AM (#41335137) Homepage

    I do tend to agree that software patents have become about patenting the idea of implementing something and has become divorced from the specific implementation.

    You can patent how you implemented something, but not the notion of doing it in the first place.

    The infamous "One-click" patent, which as far as I'm concerned amounts to "a method and system for doing one of the operations of a system is capable of doing, but with a single button click by using already configured information" only they've added "when buying stuff".

    Because there's a lot of things which people have implemented behind a single button which can easily gather several bits of data, assemble them, and take an action. In fact, it's damned near the Von Neumann model of "input, processing, and output".

    We've had buttons before. We've bought stuff before. We've even bought stuff online before and have transaction processing which handles it. We've even allowed you to log into a system and be recognized as a distinct user for which we have information stored.

    But as soon as a web-site presents you with a single button next to an item, and clicking it causes it to use the information already known about you (shipping address, credit card info) to process a transaction and initiate shipping ... well, clearly we have performed magic and nobody else could have possibly come up with this idea on their own.

    • by pspahn (1175617)

      I'm still unsure about this one and would love to know what is allowed and what isn't.

      Can the patent be circumvented by including an additional click to confirm the order? Isn't that what B&N did?

  • by JustNiz (692889) on Friday September 14, 2012 @11:23AM (#41335167)

    While the US legal system is such that entities can drag even blatantly bogus lawsuits out for years, so winning against individuals and smaller businesses just by attrition of legal costs, fine-tweaking the definition of bogusness wont have even the slightest effect.

    • by jamstar7 (694492)
      Too bad it's too late to patent 'litigate to annihilate lawsuits'. Oh, wait, it's a business process, unpatentable...
    • by swillden (191260) <shawn-ds@willden.org> on Friday September 14, 2012 @12:03PM (#41335607) Homepage Journal

      While the US legal system is such that entities can drag even blatantly bogus lawsuits out for years, so winning against individuals and smaller businesses just by attrition of legal costs, fine-tweaking the definition of bogusness wont have even the slightest effect.

      I disagree.

      In particular, if the courts were to adopt the proposed interpretation, the effect on patent trolls would be devastating. Defendants would be able to make a motion for summary dismissal on the grounds that the patent is a functional patent which under the 112(f) rule must be interpreted in reference to the details of the inventor's implementation, and since the inventor has no implementation there is no possibility of determining the boundaries of the patent and therefore the question is moot. And the motion would succeed. This would reduce such trials from years to weeks, because there would be no justification for a lengthy discover phase.

      Even in non-troll cases, it would eliminate the need for most of the lengthy discovery that goes on now, because the defendant could easily argue that all of its internal documentation is simply irrelevant, since the case can be decided by examining the software implementations and determining if they're sufficiently similar. This would still result in trials dominated by detailed arguments from technical experts, so they'd still be expensive, but the cost would be a tiny fraction of what it is now, and it would take far, far less time without all of the extensive (and expensive) discovery.

      Perhaps even better, it would encourage inventors (or their lawyers) to write patents which are very specific and narrow, specifically in order to avoid the sorts of broad functional claims which would invoke the author's interpretation of 112(f). Long-term, that would probably be the most important and most beneficial change to the status quo.

      Would it be a panacea? Clearly not. But it would make the situation vastly better than it is now -- except from the perspective of patent plaintiffs pushing very broad patents.

    • Look, the super rich have been working very hard for generations now, in order to shield themselves (and us) from liability, should we choose to take advantage of it. A well constructed net of anonymous offshore holding and operating companies can make this kind of litigation into a long, very expensive game of Whack-a-mole. It is their gift, the legacy the super rich have left to us. And it's totally legal. Think TOR for business.
  • by inglorion_on_the_net (1965514) on Friday September 14, 2012 @11:36AM (#41335317) Homepage

    Here is the crucial quote from the abstract:

    Most software patents today are written in functional terms. If courts would faithfully apply the 1952 Act, limiting those claims to the actual algorithms the patentees disclosed and their equivalents, they could prevent overclaiming by software patentees and solve much of the patent thicket problem that besets software innovation.

    I'm not sure this would fix the problem. Sometimes, the fact that the algorithm is patented is the problem. Think about it: if a patent didn't cover the idea of generating a sorted sequence from a potentially unsorted one, but only covered quicksort and its equivalents, would that still be a problem? I'd say it's better than covering any implementation of any sorting algorithm, but I'm not sure the resulting situation is really where we want to be.

    • by wvmarle (1070040)

      Here is the crucial quote from the abstract:

      Most software patents today are written in functional terms. If courts would faithfully apply the 1952 Act, limiting those claims to the actual algorithms the patentees disclosed and their equivalents, they could prevent overclaiming by software patentees and solve much of the patent thicket problem that besets software innovation.

      I'm not sure this would fix the problem. Sometimes, the fact that the algorithm is patented is the problem.

      The MP3 patents come to mind there. And, related, video compression patents.

      And, in a way, this is exactly where I think a software patent is defendable. They did not just patent the idea of "compressing digital sound" but a very specific way of doing this. This company spent a lot of effort in developing this method of compression, and then patented it. Sounds pretty much like a "machine" to me.

      Those patents are also not exactly a problem. As in: everyone can do mp3 decompression, you just may have to pay

    • by tomhath (637240)
      If I understand what you're saying, you could patent an implementation of quicksort written in C++ and compiled in Visual Studio. But I could write quicksort in Python and your patent doesn't apply (because quicksort is an algorithm - recursive partition sort).
    • by gbjbaanb (229885)

      I think the important part is this bit that explains it best:

      When Congress rewrote the Patent Act in 1952, it adopted a compromise position: patentees could write their claim language in functional terms, but when they did so the patent would not cover the goal itself, but only the particular means of implementing that goal

      so I can patent the concept of clicking once, but if someone else comes along and implements their own way of buying shit when someone clicks a button once, Amazon cannot own them - as Amazon's patent cannot cover the goal (of 1-click buying), nor cover all implementations. So they could still sue you if you stole their code and implemented it exactly as they did, but not if you did it a slightly different way - eg, if Amazon's done it in Python w

    • Exactly. The "real problem" with software patents is that they exist at all. There is no problem in the real world to which software patents are the solution. Patents are supposed to encourage innovation, and in software they simply aren't needed. Innovation in software was going along at a tremendous pace before software patents came into existence, it would continue going along at a tremendous pace without them, and their only effect on innovation is to slow it down.

  • Just for clarity. (Score:5, Informative)

    by cfulton (543949) on Friday September 14, 2012 @11:59AM (#41335549)
    Here is the language he is basing his entire argument on from the Patent Act of 1952 section 112(f)

    An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

    • by pipedwho (1174327)

      There are so many aspects of the patent act that are presently ignored. Along with the watering down of the "obviousness" clause, ignoring this clause is one of the reasons overly broad 'bad' patents get through in the first place.

      This clause basically says that you can claim a desired end result in your patent, but if that function is not described in full necessary detail to implement it, then the claim is limited in scope by pre-existing design documentation, specifications or reference implementation.

      It

  • If an inventor claimed to own the function of nanoparticles altering the abosorption of wavelengths of light to increase the efficiency of a solar cell, then he could keep everyone else from using nano-particles to do that regardless of material or structure.

    Hence, I can see the logic of the 1952 patent law structure in that you can patent a specific new structure leading to a good end result, but you can't patent "the release of radiation" from a light bulb type structure.

  • by Grond (15515) on Friday September 14, 2012 @12:12PM (#41335761) Homepage

    What this boils down to is tightening up the enablement and written description requirements of 112 of the Patent Act, specifically with regard to the way functional claims are judged. This is not a particularly new idea, and quite a few people (including those that could be called 'pro-patent') have been saying for years that this is a reasonable way to address problems with lots of different kinds of patents, including software patents, that doesn't involve technology-specific changes to the law. I certainly have mentioned it on Slashdot many times (e.g. this comment from 2010 [slashdot.org]).

    One issue is that the use of functional claiming has been in pretty steep decline [patentlyo.com] for a few decades now. So I'm not sure just how many software patents this approach will catch, but it could be that software patents are one of the last holdouts for functional claiming. Alternatively, the courts could begin to interpret software patents as using functional claiming even when they don't use the traditional "means-for" construction. This is already done in some cases (i.e. "means for" is not a necessary magic phrase), but it could become more common.

    The bottom line is that this is a call to restrict patenting to only that which the inventor actually discovered and actually described 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." In other words, to enforce the statute as written.

  • Any time I see a phrase like this in a legal setting, I cringe.

    I realize that "formal proof" in law means "something that convinces a judge/jury", but there is a formal meaning in computer science for equivalence of algorithms. You can't prove two arbitrary algorithms equivalent, because that would enable a solution to the Halting Problem.

    You can sometimes prove that two particular algorithms are functionally identical (e.g. different methods of sorting), but if their implementations differ (bubble/merge/h

    • by pipedwho (1174327)

      That phrase is not interpreted as "algorithms or an equivalent algorithm based on algorithmic reduction", but as "algorithms or other specified constructions that describe the process". It is merely referring in general to mathematical algorithms, while also allowing other formal method/process descriptions that don't quite meet the legal definition of "algorithm".

  • Since when did we need a lawyer to write source code ?

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