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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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  • It does not matter (Score:5, Insightful)

    by blind biker (1066130) on Friday September 14, 2012 @10:00AM (#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 NeutronCowboy (896098) on Friday September 14, 2012 @10:01AM (#41334945)

    Or, to elaborate a little further: this isn't a puzzle, an Indiana Jones movie, or even science, where there's an Aha! moment, and suddenly a century of mystery is conclusively revealed. It's the law, open to interpretation by at least 3 people, if not 15 or even 200. There is no final truth in the law, there's only your own power to convince someone else that your words carry more weight. If what Lemley says is true, and even if he does win it, I can also guarantee you that the law will be changed to fix whatever loop hole he found.

    I have zero faith that he can convince a judge or a jury that he's right, and I have even less faith that congress critters won't change the law to fix his interpretation.

  • Retrospectively? (Score:4, Insightful)

    by Radak (126696) on Friday September 14, 2012 @10:04AM (#41334969) Journal

    Pretty sure submitter meant retroactively.

  • by Anonymous Coward on Friday September 14, 2012 @10:11AM (#41335027)
    It's not actually a loophole. Patents are supposed to cover a specific approach to solving a problem, not the ability to solve a problem at all.
  • by redneckmother (1664119) on Friday September 14, 2012 @10:19AM (#41335111) Journal

    ....And eventually the fuedal system failed.

    "I'm not sure about that," said the Serf.

  • Re:He is wrong. (Score:2, Insightful)

    by Anonymous Coward on Friday September 14, 2012 @10:19AM (#41335117)

    Software is Algorithms. Algorithms are methods of achieving a goal. Patents are for novel non-obvious devices or methods.

    The claim that software shouldn't be patentable because "it's just math" isn't very strong. By a similar argument all patents could be invalidated because physics is just math and machines are simply applying physical algorithms. Furthermore the "physical things are different from virtual things" meme is going to hold society back in the long run so we may as well start getting rid of it now.

    What needs to be reformed in software patents is the distinction between abstract algorithms and applied algorithms (so you can't patent "merge sort", but you could patent a particular formulation of a recursive merge sort).

  • by gstoddart (321705) on Friday September 14, 2012 @10:20AM (#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 GodInHell (258915) on Friday September 14, 2012 @10:23AM (#41335161) Homepage
    Actually, that's not at all true. In my practice there have a couple of times where I've found a case that leads me to a statute that none of the attorneys or the judge involved in the case knew existed. In one case I read the statute to the court and opposing counsel nonsuited (voluntarily dismissed) his own suit.

    Practicing law is fun BECAUSE it is complicated and too big a field of knowledge for any one person to know everything - you learn over time, get better, find the tools that work for you and find new ways to apply them. But sometimes, you just need to sit down and plow through a 50 page statute to find the tool you need. We've got a half-dozen competing content filtering software tools that are supposed to make the job easier, but there's just no replacement for starting with the written law.

    Anyway, I'm not saying this guy has found a "we win" button, but its good to see the academics turning their attention back to solving problems that actually happen in court /today/.
  • by JustNiz (692889) on Friday September 14, 2012 @10:23AM (#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 dpilot (134227) on Friday September 14, 2012 @10:36AM (#41335315) Homepage Journal

    Funny thing about the feudal system... From the historical perspective, rather than the feudal system failing, it has been implementations of the feudal system failing. In the words of The Who, "Meet the new Boss, same as the old Boss." One dynasty falls, another takes it's place. Even if the new dynasty begins with non-feudal hopes and aspirations, it generally falls into the feudal mold within a few generations. Then the new dynasty itself becomes the old dynasty, that falls to a newer dynasty.

    It's really a failing of traditional human nature - we all want to do well by our family - or tribe. That is well and good, until it becomes barriers to the success of others. Like it or not, my family or tribe may not be the best-suited for a given role or position, but if they have that station due to dynastic or influences of oligopoly when others are more capable, then society suffers and becomes weaker.

  • by plover (150551) * on Friday September 14, 2012 @10:59AM (#41335547) Homepage Journal

    There's a big difference. Almost all of the "serfs" today (at least the ones living in America) have shelter, food, clothing, running water, heat, electricity, lighting, TV sets, refrigeration, cell phones, cheap and fast transportation, medical services, borders secure from invasion, and on a level far surpassing the living standards of even the kings of the middle ages.

    Sure there's inequity. The balance of wealth distribution is today skewed beyond understanding. I don't have a four-Lamborghini garage, or a stable of race horses; I have a ten-year-old Ford truck and a couple of dogs. But when you start worrying about how bad we have it in comparison to the 1%, or whine about money spent on taxes, try to also compare yourself to the 99% from 150 or more years ago. We live better today than every single human ever prior to 1850.

  • by Zadaz (950521) on Friday September 14, 2012 @11:17AM (#41335843)

    Practicing law is fun BECAUSE it is complicated and too big a field of knowledge for any one person to know everything

    I can't tell you how sad this makes me. Law's only purpose is to serve the people. If the people can't understand it then we're fucked.

  • Re:He is wrong. (Score:4, Insightful)

    by mark-t (151149) <markt@ l y n x.bc.ca> on Friday September 14, 2012 @11:43AM (#41336229) Journal

    Except physics isn't math. We can model physics with mathematics, but that doesn't mean they are literally the same thing.

    Conversely, algorithms *ARE* math. This is entirely provable (a good text on the theoretical foundations of computer science might even describe such a proof), but probably not readily comprehensible to people who do not have a very thorough understanding of mathematics and mathematical proofs (which is, I'm afraid to say, most people... including even a lot of computer professionals).

  • by sootman (158191) on Friday September 14, 2012 @11:47AM (#41336289) Homepage Journal

    > Practicing law is fun BECAUSE it is
    > complicated and too big a field of
    > knowledge for any one person to
    > know everything...

    Yes, FUN! And it's not like anything important is at stake. Not like anyone's life ever got ruined because of cases like you described. No one ever went to jail, lost their job, their business, their family, all their savings, etc., because no one playing was aware of the law that could have freed them. FUN, I tell you!

    And it's not like the deck is stacked against the little guy in the first place, or that big companies with big war chests win solely because they have more money to throw at a problem. Or win by attrition. Or that they bought unjust laws in the first place. Yes, it's just LOADS and LOADS of FUN!

  • by GodInHell (258915) on Friday September 14, 2012 @12:15PM (#41336695) Homepage
    Would you rather hire an engineer who genuinely enjoys their work, so much so that they spend much of their free time pursuing their love of design and engineering work (i.e. free practice and training) or one that only ever looks at a problem when he's paid to do so and stops as soon as he finds an answer? I very rarely stop thinking about my cases, even when I've been off the clock for hours, I'm still mulling over the issues and trying to find better arguments. For me, its a passion.
  • by Anonymous Coward on Friday September 14, 2012 @12:24PM (#41336839)

    Just because a job is important doesn't mean that those who do it aren't allowed to enjoy themselves.

  • by NotSanguine (1917456) on Friday September 14, 2012 @12:46PM (#41337175) Journal

    > Practicing law is fun BECAUSE it is > complicated and too big a field of > knowledge for any one person to > know everything...

    Yes, FUN! And it's not like anything important is at stake. Not like anyone's life ever got ruined because of cases like you described. No one ever went to jail, lost their job, their business, their family, all their savings, etc., because no one playing was aware of the law that could have freed them. FUN, I tell you!

    And it's not like the deck is stacked against the little guy in the first place, or that big companies with big war chests win solely because they have more money to throw at a problem. Or win by attrition. Or that they bought unjust laws in the first place. Yes, it's just LOADS and LOADS of FUN!

    Yes, that's why people who have *careers* choose the field that they do. Because they enjoy doing the serious business of whatever field that happens to be. For me, that's IT. I have *fun* doing IT because it allows me to explore new technologies and creatively design and implement solutions for real problems and situations.

    When the GP said that this guy is having fun, I knew immediately what he (she?) was talking about. I work harder and better because I have *fun* doing what I'm paid to do. Is it all fun? No. If it was all fun and games, they wouldn't call it a job -- and you wouldn't get paid for it either.

    Is it possible that you folks who don't understand what it means to have a fulfilling and yes, fun, career? That would really be sad.

    I'd much rather have a lawyer who enjoys his work and is energized to go the extra mile because it gives them pleasure (read: has fun) to do the best job they can.

    A successful career is about much more than money. If you can't understand how that's supposed to work, I pity you.

  • by Shotgun (30919) on Friday September 14, 2012 @01:49PM (#41338191)

    What do you call it when the crumbs are a five course feast that can't be consumed? When the crumbs you throw out would be fought over by those with less means?

    My father grew up with two pairs of pants. His mother had to wash them in a creek, and only had time to wash once a week. If you fell down in the mud and got dirty, you had to wear them the rest of the week. This was in south west Virginia.

    I've got clothes that I've forgotten about. I've got pants I don't wear because I simply don't like them. I throw things in the washing machine and close the door to the room dedicated to it at my convenience.

    Are the crumbs so bad? If you think so, you need to get over yourself.

"Why can't we ever attempt to solve a problem in this country without having a 'War' on it?" -- Rich Thomson, talk.politics.misc

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