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(Highly Divided) Federal Circuit Opinion Finds Many Software Patents Ineligible 116

Posted by Soulskill
from the system-and-method-for-bits-and-stuff dept.
ais523 writes "The Federal Circuit has divided CLS Bank vs. Alice Corp., a case about various sorts of patents, including software patents. Although the judges disagreed, to a lesser or greater extent, on the individual parts of the ruling, more than half decided that the patents in question — algorithms for hedging risk — were ineligible patent matter, and that merely adding an 'on a computer'-like clause to an abstract algorithm does not make it patentable. Further coverage is available at Groklaw, or you can read the opinion itself (PDF)."
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(Highly Divided) Federal Circuit Opinion Finds Many Software Patents Ineligible

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  • about (Score:5, Insightful)

    by NEDHead (1651195) on Saturday May 11, 2013 @09:49AM (#43694555)

    time

    • Re:about (Score:5, Informative)

      by Jane Q. Public (1010737) on Saturday May 11, 2013 @03:16PM (#43696727)

      "about time"

      Yes, about time this was RE-affirmed. Because some people seem to have forgotten their history.

      This all took place -- same subject, and in exactly the same way -- about 100 years ago. Musicians were concerned with other people "stealing" their music by copying player piano rolls using stock paper, some glue, and paper punches. (Sound familiar? Gill Gates started this whole software "protectionist" era by suing people for copying his Altair BASIC interpreter that was stored on paper tape.)

      John Philip Sousa, in fact was on the plaintiff end of some of these suits. And the courts decided that the form of the work doesn't matter. It can be on paper rolls, or in a book of sheet music, or whatever. AND, the courts also ruled that it doesn't matter whether it is in a form that controls machines, either. A written work is still nothing more than a written work!

      And so with software. Software is properly governed by copyright, not patents. Where the software represents novel business practices or formulae, those business practices and formulae may be patentable. But according to ages-old court precedent, software itself never should have been.

      • And so with software. Software is properly governed by copyright, not patents. Where the software represents novel business practices or formulae, those business practices and formulae may be patentable. But according to ages-old court precedent, software itself never should have been.

        I was under the impression that patent law does follow this rule and that "software" patents are really just business method patents in the context of software. The problem is that the idea of a "business method" is too broad and too easy to dress up as novel even when it isn't (especially when it applies to software).

        • "I was under the impression that patent law does follow this rule and that "software" patents are really just business method patents in the context of software. The problem is that the idea of a "business method" is too broad and too easy to dress up as novel even when it isn't (especially when it applies to software)."

          Most of them operate that way, but it is my understanding that in some circumstances algorithms can also be patented.

          I agree with you that most business methods should not be patentable, and I don't believe ANY algorithms should be patentable. Ultimately, they're just math.

      • I guess twenty years from now, judges will decide that algorithms won't be patentable just by adding "on the internet"...

      • by Yvanhoe (564877)
        But we are not talking about software here, we are talking about algorithms. Patents cover processes which are abstract entities. I agree with the point you are making but I think it is irrelevant to the current case.
        • "But we are not talking about software here

          Yes we are. Software is just an implementation of algorithms. And an algorithm that isn't implemented in software is... a manual process?

          we are talking about algorithms. Patents cover processes which are abstract entities. I agree with the point you are making but I think it is irrelevant to the current case."

          I only used player piano rolls as an example, but it's an important one. At issue was that courts have ruled that the form of the work, or the media in/on which it appears, is completely immaterial, as is whether it controls a machine.

          "On the internet" is simply a form of algorithm or software. Or a medium in which it appears. Therefore it should make absolutely no diff

  • Does that mean? (Score:3, Interesting)

    by Anonymous Coward on Saturday May 11, 2013 @10:05AM (#43694661)

    ianal, so all rampant speculation here...

    But, if that basically means that using a certain algorithm is not patentable, and doing the required calculations on a computer is not a bright enough idea to make it patentable, then where is the line that makes something patentable? There are so many patented algorithms, this could have gigantic financial implications for many large companies. Or will this be like most such court decisions, that the legal matters are so complicated that this particular decision won't really matter.

    • Re:Does that mean? (Score:5, Interesting)

      by Runaway1956 (1322357) on Saturday May 11, 2013 @10:12AM (#43694717) Homepage Journal

      There is no line. Algorithms were never meant to be patented. If you're using an algorithm, and you don't want other people to know what you're using, then it's a TRADE SECRET. Funny thing though, is that anyone can decompile your software, and uncover your trade secret. So, what happened is, everyone tried to get their not-so-secret secrets to be covered by a patent.

      It's a corruption of the system. Nothing more, nothing less.

      • Re:Does that mean? (Score:5, Informative)

        by Theaetetus (590071) <theaetetus.slash ... m ['ail' in gap]> on Saturday May 11, 2013 @10:52AM (#43694967) Homepage Journal

        There is no line. Algorithms were never meant to be patented.

        35 USC 101: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

        Algorithm: A process or set of rules to be followed in calculations or other problem-solving operations, esp. by a computer.

        I'd say it's pretty clear that algorithms were meant to be patented, provided they were new and useful and met the other conditions of the patent act.

        • by Anonymous Coward

          the difference is that a process is a concrete application,
          an algorithm is an idea. it's the difference between an
          algorithm for calculating polynomials, and the difference engine.
          the issue with software is there is so little invention in taking
          an algorithm and making it a process, so there is logical grounds
          for criticizing "on a computer" patents.

          (ps. the oed dates algorithm in the sense you're using it at 1960.
          it's not clear the algorithms were ment to be patented. the founders
          would not have known the c

        • Re:Does that mean? (Score:5, Interesting)

          by K. S. Kyosuke (729550) on Saturday May 11, 2013 @11:44AM (#43695291)

          35 USC 101: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

          Hm. Hmmm. There's this talk about "machine", "manufacture", and "matter" that makes me think whether "process" meant actually meant "technological process" (including, say, the chemical ones). When exactly was this law written? Before or after Turing? :-) Given the fact that algorithms are essentially very complex equations, one would expect that mathematics would have been mentioned if that were the case.

          • by ceoyoyo (59147)

            Algorithms are not "complex equations" any more than a machine is. You're making the same mistake patent examiners have been making, except in the opposite direction. "On a computer" is irrelevant to the patentability of an algorithm. That means "on a computer" has nothing to do with whether an algorithm deserves a patent, and it also has nothing to do with whether it doesn't deserve a patent.

            Why should, say, the marching cubes algorithm, which transforms bitmap data into polygonal surface data, not be w

            • Re:Does that mean? (Score:5, Interesting)

              by K. S. Kyosuke (729550) on Saturday May 11, 2013 @12:39PM (#43695733)

              Algorithms are not "complex equations" any more than a machine is.

              Oh, but Alonzo Church says they are! And I'd prefer Alonzo Church's words to your words any day.

              Why should, say, the marching cubes algorithm, which transforms bitmap data into polygonal surface data, not be worthy of a patent when the set of instructions for turning bauxite into aluminum is? Because one uses a silicon chip and electricity and the other uses a pressure vessel and electricity?

              I think there are both practical differences (investment levels, for starters: it's quite expensive to experiment with chemical processes, drug manufacture, upscale them, AND comply with medical and industrial regulations, whereas algorithm design is hardly more expensive than any other kind of academic or applied mathematical work) and theoretical differences (example by contradiction: if algorithms indeed *are* patent-worthy, why not the rest of mathematics? And if the rest of mathematics is patent-worthy, why hasn't any country done that yet? Case in point: in my country, anything derivable from math is explicitly ruled out as unpatentable).

              • I think there are both practical differences (investment levels, for starters: it's quite expensive to experiment with chemical processes, drug manufacture, upscale them, AND comply with medical and industrial regulations, whereas algorithm design is hardly more expensive than any other kind of academic or applied mathematical work)

                If patent subject matter eligibility is based on "is this an algorithm or not," then practical concerns such as investment level should be irrelevant. Furthermore, if patents are objectively granted based on innovation regardless of capitalistic influences, then "but it's expensive!" or "we spent a lot of investment money on this!" should be irrelevant. Do you think patents should be awarded only to big companies who spend lots of money on development and who promise their investors great gains, regardless

            • Why should, say, the marching cubes algorithm, which transforms bitmap data into polygonal surface data, not be worthy of a patent when the set of instructions for turning bauxite into aluminum is? Because one uses a silicon chip and electricity and the other uses a pressure vessel and electricity?

              The computer is a general purpose machine that will run whatever program you write for it. That program is copyrightable, and thus already protected. It doens't need any more protection than that.

              The machine you build for processing bauxite has one function. And instructions to build the processing plant are not copyrightable (in the same way recipes are not copyrightable). Therefore, the process is patentable.

              • Why should, say, the marching cubes algorithm, which transforms bitmap data into polygonal surface data, not be worthy of a patent when the set of instructions for turning bauxite into aluminum is? Because one uses a silicon chip and electricity and the other uses a pressure vessel and electricity?

                The computer is a general purpose machine that will run whatever program you write for it. That program is copyrightable, and thus already protected. It doens't need any more protection than that.

                The machine you build for processing bauxite has one function. And instructions to build the processing plant are not copyrightable (in the same way recipes are not copyrightable). Therefore, the process is patentable.

                There is also a notion of relative cost. The machine for turning bauxite into aluminium probably cost millions of dollars and years to develop, which is an investment that needs to be protected. Software costs are often no more than tens of thousands of dollars and took months to develop, possibly even weeks. The relevance of the first investment is probably more than ten years, while the the relevance of the software investment is probably in the order of 2-5 years.

                Also, in the first case there is no incen

            • http://en.wikipedia.org/wiki/Lambda_calculus [wikipedia.org]

              Programs is maths.

            • by rmstar (114746)

              Why should, say, the marching cubes algorithm, which transforms bitmap data into polygonal surface data, not be worthy of a patent when the set of instructions for turning bauxite into aluminum is? Because one uses a silicon chip and electricity and the other uses a pressure vessel and electricity?

              Because I don't want it to be patentable. I find patents ugly, inhuman, and perverse. They make thinking dangerous. When it is about software, particularily so.

              I have a say in this matter, however small it may be,

              • by ceoyoyo (59147)

                It's fine and defensible to oppose (or support) patents, but the "when it is about software, particularly so" is just a geek engaging in irrational thinking. The same way the suit rubbing his hands together in greed because "it's on a computer" is.

                • by rmstar (114746)

                  It's fine and defensible to oppose (or support) patents, but the "when it is about software, particularly so" is just a geek engaging in irrational thinking.

                  No, it is entirely rational to fight something you don't want.

                  The chemists, for example, seem to be ok with a world ruled by lawyers, or where, after having a good idea, you end up owing someone a shipload of money just because someone has a patent on it. The chemists can get it unlubed in the if they are ok with that. It seems they are a spineless bunc

                  • No, it is entirely rational to fight something you don't want.

                    That's not what he said. He said it's irrational to say that your arguments apply any more to software than they do to anything else. That might be what you're getting at with your strange rant against chemists, but it's pretty irrelevant. Whether or not they're spineless, your arguments work equally well for the patents chemists deal with.

                    I'm not sure yet whether I agree or disagree about software being a "special" category. I do disagree with it being special just because it's "just math" because near

                    • by rmstar (114746)

                      you've correctly identified that the straw "greedy suit" is rational to make the "it's on a computer" argument, but the "it's on a computer argument" is still not rational.

                      Rational argument can't happen in isolation. It needs axioms to be based upon, and if you choose axioms properly, "software must be patentable because it makes lawyers rich" can be a perfectly rational and logical argument.

                      No, this is a political issue, and one of values. It is about the choice of axioms.

                      But perhaps this is all too subtle

            • by pepty (1976012)

              Why blame the examiners?

              http://www.uspto.gov/patents/law/exam/101_training_aug2012.pdf [uspto.gov]

              Step 2: If a process, follow the process analysis. Step 3: Does the claim recite an abstract idea, law of nature or natural phenomenon (a judicial exception)? If no, eligible. If yes, proceed. Step 4: Is the claim as a whole directed to a practical application of the abstract idea, law of nature or natural phenomenon? If no, ineligible. If yes, proceed. A man-made tangible embodiment with a real world use is evidence o

              • by ceoyoyo (59147)

                And that has absolutely nothing to do with whether an algorithm deserves a patent. In fact, you've just quoted the guidelines by which algorithms are to be judged worthy or not, implying that some ARE worthy.

          • Re:Does that mean? (Score:4, Informative)

            by the eric conspiracy (20178) on Saturday May 11, 2013 @01:03PM (#43695917)

            Decisions have determined the limits of the statutory classes. Examples of subject matter not patentable under the statute follow:

            A. Printed Matter
            For example, a mere arrangement of printed matter, though seemingly a "manufacture," is rejected as not being within the statutory classes. See In re Miller, 418 F.2d 1392, 164 USPQ 46 (CCPA 1969); Ex parte Gwinn, 112 USPQ 439 (Bd. App. 1955); and In re Jones, 373 F.2d 1007, 153 USPQ 77 (CCPA 1967).

            B. Naturally Occurring Article
            Similarly, a thing occurring in nature, which is substantially unaltered, is not a "manufacture." A shrimp with the head and digestive tract removed is an example. Ex parte Grayson, 51 USPQ 413 (Bd. App. 1941).

            C. Scientific Principle
            A scientific principle, divorced from any tangible structure, can be rejected as not within the statutory classes. O"Reilly v. Morse, 56 U.S. (15 How.) 62 (1854).

            Section C disallows abstract mathematics from being the subject of patents.

          • 35 USC 101: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

            Hm. Hmmm. There's this talk about "machine", "manufacture", and "matter" that makes me think whether "process" meant actually meant "technological process" (including, say, the chemical ones). When exactly was this law written? Before or after Turing? :-) Given the fact that algorithms are essentially very complex equations, one would expect that mathematics would have been mentioned if that were the case.

            Well, the patent act was most recently amendment two years ago, in the America Invents Act. So, almost 50 years after Turing's death. Previously, it has been amended in the 1990s, and substantially in the 1950s, both well after Turing was doing his thing. :-D I think Congress in the 1950s, 1990s, and 2010s, understood processes to include algorithms.

          • by cundare (1141279)
            In this country, the concept of patenting "processes" goes back to Jefferson.
        • by Anonymous Coward

          C'mon not all processes are algorithms. Not all processes are implemented with MATH

          • C'mon not all processes are algorithms. Not all processes are implemented with MATH

            If you argue that not an algorithm is a mathematical process description, then we have a rather weird distinction. You're saying that business methods aren't algorithms, just processes. But any computerised version of that business process is an implementation of the process as a mathematical representation. Does that mean that a business process should be patentable in real life, but a computer implementation isn't covered by patent law because it's "math"? That would mean I can't get people to carry o

        • I'd argue that the spirit of 35 USC 101 refers to physical processes, not abstract ones; at most a practical implementation of an abstract algorithm is what is patentable, not the algorithm itself. The Juducial Exceptions [uspto.gov] explain this further. This was decided by Gottschalk_v._Benson [wikipedia.org], and seems to have been confirmed by the current case.
          • I'd argue that the spirit of 35 USC 101 refers to physical processes, not abstract ones; at most a practical implementation of an abstract algorithm is what is patentable, not the algorithm itself. The Juducial Exceptions [uspto.gov] explain this further. This was decided by Gottschalk_v._Benson [wikipedia.org], and seems to have been confirmed by the current case.

            Except that the recent cases have affirmed or cited positively Diamond v. Diehr [wikipedia.org], which was patenting an algorithm, too:

            1. A method of operating a rubber-molding press for precision molded compounds with the aid of a digital computer, comprising:
            providing said computer with a data base for said press including at least, natural logarithm conversion data (ln), the activation energy constant (C) unique to each batch of said compound being molded, and a constant (x) dependent upon the geometry of the particular mold of the press,
            initiating an interval timer in said computer upon the closure of the press for monitoring the elapsed time of said closure,
            constantly determining the temperature (Z) of the mold at a location closely adjacent to the mold cavity in the press during molding,
            constantly providing the computer with the temperature (Z),
            repetitively performing in the computer, at frequent intervals during each cure, integrations to calculate from the series of temperature determinations the Arrhenius equation for reaction time during the cure, which is ln(v)=CZ+x where v is the total required cure time,
            repetitively comparing in the computer at frequent intervals during the cure each said calculation of the total required cure time calculated with the Arrhenius equation and said elapsed time, and
            opening the press automatically when a said comparison indicates completion of curing.

            The current case also cites Diehr positively.

      • Re:Does that mean? (Score:5, Interesting)

        by gwolf (26339) <gwolf@gwo[ ]org ['lf.' in gap]> on Saturday May 11, 2013 @11:01AM (#43695019) Homepage

        Right — And nowadays, if you *really* want to protect your secret, you don't even have to ship it to your customer: Just offer it as a Web service. No way to decompile that (although it can, of course, be reverse-engineered).
        Given an enough-connected world, trade secret is again tenable for algorithms. Not everything can work depending on a Web service, but it pushes quite far the need.

      • by ceoyoyo (59147)

        Of course algorithms were intended to be patentable. The process for refining aluminum ore efficiently? An algorithm. A lot of machines are just a physical expression of an algorithm too, and the patent on the planetary gear wasn't awarded for the process of making metal gears (although that would be a process, and thus an algorithm, too).

        The problem is that software is a much more flexible medium than wood, metal and chemistry, and it's regarded as nearly magical by so many people, including patent exam

        • Patents cover implementations, not ideas, i.e. algorithms. This is why software patents are written "algorithm x run on a computer". This provides the implementation. The algorithm is NOT patented, you can still freely use the algorithm by hand, on an abacus, etc.

          The Bayer process is not presented as a formal mathematical statement. It's not possible to present it as such because the physics and chemistry behind it is not axiomized. The steps of building a machine to carry out the Bayer process do not invol

          • by dgatwood (11270)

            In fact it is stunningly obvious that such an abstract algorithm be processed on a computer. This obviousness itself is a major problem with software patents.

            That's not really the problem. It was stunningly obvious that the assembly line (Olds patent) would involve people doing the assembly. That, in itself, does not make the patent obvious.

            What makes software algorithms problematic is that there is usually exactly one way to do something, or very nearly so. Therefore, a patent on "a means to do X" usual

            • > Given a mathematical data compression algorithm, for example, apart from performance optimizations by vectorization and other tricks, there's usually exactly one way to implement it that doesn't result in precision loss.

              You aren't going to be able (at least if the patent review process works properly) to get a patent on a pre-existing prior art compression algorithm. It was already patented (maybe the patent has expired as some these go back almost 40 years now), or the material was published. It's fun

            • by terryk29 (2756467)

              I've been wondering if the "obviousness" angle hasn't been emphasized enough, especially to the non-programming world. To rephrase above and earlier comments, if I've been able to sufficiently specify the goal of a computational task, there will be a few or at least one sensical implementation, and any competent* programmer will eventually converge on one. Furthermore, when this implementation is shown to another competent* programmer for review, for the most part they'll mutter "yeah... OK..." and althou

      • This where "hosted services" have an advantage, if you are trying to protect your code. Since the code runs on the server, there is nothing really that can be decompiled by the client, other than the UI portion and the communicated data packets - the rest of the logic can remain server side.

        At the same time, given the rate at which the software industry evolves, anything more than five years old is probably good for a refresh anyhow. If a company hasn't made an effort to keep their software relevant, then t

    • Doesn't matter because programmers don't read patents anyway. Software patents are ignored. The only finanical implications is less work for patent lawyers. The patent office rubber stamps these patents because going through the prior art would be impossible. (Every app published on the app stores is potential prior art. There are over 300,000 programmers producing new prior art every day)
  • A small first step. (Score:3, Interesting)

    by wulfmans (794904) on Saturday May 11, 2013 @10:06AM (#43694681)
    Now how about fixing the rest of the patent system?
  • Bilski (Score:5, Interesting)

    by Etherwalk (681268) on Saturday May 11, 2013 @10:08AM (#43694691)

    It is worth noting that despite the difficulty garnering a majority, this was a case with particularly good reasons to expect patent invalidation. First, it is conceptually similar to the hedging risk patent struck down in Bilski--i.e. in broad brushstrokes, the closest thing to it that the Federal Circuit would have thought about first was struck down. Second, and the real crux of it, is that the computer just wasn't that important. Third, although not addressed by the concurring opinion, it was about as obvious as one can imagine.

  • Most of which are forced by my employer as means to "protect our IP"
    I agree that a lot of patents filed and issued I would not consider a legitimate invention.
    • Why do you consider your opinion relevant? The current patent system presupposes that legitimacy can be objectively determinable by lawyers following a set of rules after all.

      • by dgatwood (11270)

        One of those rules requires that it not be obvious to a person having ordinary skill in the art. Therefore, the opinion of engineers as to whether it is or is not inventive is, or at least should be, relevant.

  • by girlinatrainingbra (2738457) on Saturday May 11, 2013 @10:37AM (#43694883)
    The pdf link gets me to an error message page:
    Error

    Error

    This page can't be displayed. Contact support for additional information. The incident ID is: 0.

    on the court's web page. Is it just for me, or a bad link?

    According to Groklaw, however, one of the judges said

    ``Let's be clear: if all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents,'' Moore wrote.

    Let's hope that Judge Moore is right, and these patents and deemed ineligible for patenting at all.

  • Good! (Score:4, Funny)

    by Murdoch5 (1563847) on Saturday May 11, 2013 @10:48AM (#43694939)
    Patents are the worlds most ridiculous form of protection ever invented. If your a company and you make a great product that it doesn't matter if someone comes to the market with the same product, if your product is better it will win out. Patents are "But Mom", of the business and technology world. Right now some companies are more focused on getting the patents to market then the product they protect. Patents destroy open development and open collaboration and take everything to a closed tangled web of lawyers and judges instead of the open work bench of weekend builders.
    • Re:Good! (Score:5, Insightful)

      by leonardluen (211265) on Saturday May 11, 2013 @11:02AM (#43695029)

      at least patents, unlike copyright, still have reasonable expiration dates.

    • by Anonymous Coward

      Those "weekend builders" are exactly who patents are meant to protect. If one of them spent a decade making The Next Big Thing and couldn't patent it, ConglomoCorp would instantly copy it and the "weekend builder" would be SOL.

      • by greg1104 (461138)

        It costs a lot of money to get a patent and take someone to court for violating it. It isn't a game for a small business to play. The odds your small business will be sued into oblivion by a larger company asserting frivolous patents are far higher than the odds you'll sue one successfully.

        • by Microlith (54737)

          Unless you're a patent troll shell company, and price the licensing fees well below that of actually pursuing the court case.

      • by tibit (1762298)

        If you seriously think that the "weekend builders" win from patents, you're delusional [tinaja.com].

    • Re:Good! (Score:4, Interesting)

      by Monty845 (739787) on Saturday May 11, 2013 @11:13AM (#43695073)
      Suppose I invest $1B in researching a new drug, getting it through FDA approval, and bringing it to market. Then you immediately offer a generic version that is exactly the same composition. Our drugs are functionally identical, there is no way I can offer a superior version because when it comes right down to it, the composition is what valuable, and its easily replicated. How will I make my $1B back when you can offer the drug at a price that never needs to pay back the research investment. Don't get me wrong, the patent system is seriously messed up, but there is a need for patents in some cases.
      • by Murdoch5 (1563847)
        In some cases yes, I'll agree that if you have 1B dollar investment.
        • Re: Good! (Score:4, Interesting)

          by msparker (449164) on Saturday May 11, 2013 @11:39AM (#43695245)

          This is, of course, one of the main arguments for protection against copying, but on the other hand, the fashion industry does not have this kind of protection and there is a lot of innovation there. It is argued that this innovation is in large part a result of the lack of copy protection. The high end must have something new to sell after they are copied. Also, this copying frequently involves some degree of change itself.

          • by Monty845 (739787)
            Right, but value in the fashion industry is more about style, aesthetic, and branding. Very little is about improved utility. People will pay 1000% more for a piece of clothing from a famous designer, but not 1000% more for a branded drug, or branded computer when there is a generic of equal quality and utility available.
      • Suppose I invest $1B in researching a new drug, getting it through FDA approval, and bringing it to market. Then you immediately offer a generic version that is exactly the same composition.

        What happens when two large companies invest $1B to research a new drug, get it through FDA approval, and bring it to market, only to discover that they're the same drug?

      • Suppose I invest $1B in researching a new drug, getting it through FDA approval, and bringing it to market. Then you immediately offer a generic version that is exactly the same composition.

        Except that "you" can't "immediately" offer a generic version. You still have toget all sorts of approval from the FDA.

      • by msauve (701917)
        You patent all the physical/chemical processes you can discover for making the drug, not the drug itself. e.g. You patent the Bessemer process, not the steel which results.

        If you discover the most efficient method, then you have a competitive advantage.
      • If your drug is useful to people (and therefore they buy it) and it's profitable to manufacture (which is true by definition or you wouldn't have a generic competitor), you will eventually make your billion dollar investment back. It will just take longer than you might wish. There is no need for a patent system, broken or otherwise.

    • by meustrus (1588597)

      ...but without any patents, why would people invest money in inventing something that can be easily copied? Evilness aside, drug companies are really the best example for why patents must exist. It takes millions of dollars in research to discover and test a new drug, but the manufacturing cost is usually quite tiny. If a generic drug could come out immediately once you've proved the compound is useful and safe, what financial incentive do you have to spend money on that research in the first place? The ori

      • by micheas (231635)

        Although, it can be argued that patents cause the Medical industry to focus on drugs instead of preventative medicine.

        If you have a drug that treats a condition at a cost of $100/month, and a profit of $40/month and the average usage is 10 years that treatment would generate an average of 48k profit per patient, and if the condition effects one million people a year you are looking at a predictable 4.8 billion a year in profit, with an expected profit of 96 billion during the period of patent protection an

        • by meustrus (1588597)
          I'm not an economist, but somehow I doubt that if the incentives for drug research went away all those people would work on preventive medicine instead. Anyway, at least patents have sane expirations so after the patent is up then the drug costs $30/mo instead of $1000/mo. I'd rather have that than the drug not existing at all.
          • by micheas (231635)

            You're right of course.

            It sort of comes down to what should we give the greatest incentives to people to pursue.

            Right now, Things are very stacked towards research into drugs that suppress a problem without actually curing it.

            People will always do things that they are not being maximally rewarded for economically. However, most people will pursue that path that provides the greatest chance of economic success.

            Personally, I think that we should have more people than David Blech [fiercebiotech.com] Deciding on what our national

  • by meustrus (1588597) <meustrus.gmail@com> on Saturday May 11, 2013 @10:57AM (#43694993)
    It looks to me like the judges are finally deciding not against software patents in general, but patents of the type "doing X, but on a computer" or "doing X, but on a smartphone". The judgement is basically that you cannot patent something that's already patented, or is a natural law, or is an abstract concept not specific to any particular application, just because you describe it in an unusual way or put it in a new context, i.e. "turning a page, but on a touchscreen instead of an actual page" or in this particular case, "hedging risk, but by a computer algorithm instead of by bankers". Also not allowed would be "the browning of grain-based spongy material through local application of heat", also known as "making toast".
    • It looks to me like the judges are finally deciding not against software patents in general, but patents of the type "doing X, but on a computer" or "doing X, but on a smartphone".

      That is a ruling against software patents in general, whether they realized it or not. All software patents reduce to "doing some algorithm, on a computer". All algorithms are natural laws (math). Evaluating an algorithm manually would not be patentable, no matter how complex the algorithm may be; doing the same thing with the assistance of a general-purpose computer (which the patent filer did not invent) should be no different.

  • by MarkvW (1037596) on Saturday May 11, 2013 @11:53AM (#43695359)

    Robotic manufacture is going to go crazy in the next decade and it's going to change everything.

    Software is needed to make that shit work. If software patents can make (profitable) roadblocks to 3d implementation, then robotic manufacture is going to go someplace besides the USA.

    This is so obvious that even the Supreme Court is going to see it. (Congress might need some 'lobbying' to understand it, though.)

    • by tlhIngan (30335)

      Robotic manufacture is going to go crazy in the next decade and it's going to change everything.

      Software is needed to make that shit work. If software patents can make (profitable) roadblocks to 3d implementation, then robotic manufacture is going to go someplace besides the USA.

      This is so obvious that even the Supreme Court is going to see it. (Congress might need some 'lobbying' to understand it, though.)

      Where do you draw the line, though?

      If I make a robot that's completely controlled by software so that

    • by 3seas (184403)

      Hmmm, Slashdot seems to have had a glitch in posting....The above post I believed did not go through.... Maybe the glitch is patentable?

  • when software can be understood in terms of what is not patentable then software will no longer be patented.
    http://abstractionphysics.net/pmwiki/index.php [abstractionphysics.net]

  • ...I wish that the ostensible news items here would avoid links to faux legal sites like Groklaw. Sigh. Why not cite Bill O'Reilly while you're at it? At least the other link here identified the more credible Patently-O blog and, while the Groklaw link reads a bit like a Carol Burnett piece from The Enquirer (maybe I'm dating myself, but anybody with training in IP will recognize the reference), Crouch at least correctly states the legal issues. Anybody who reads the latter would't dream of asserting th

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