Supreme Court Skeptical of Computer-Based Patents 192
walterbyrd (182728) writes "The case, Alice Corp. v. CLS Bank International, poses huge risks for both sides. If the court upholds the patent or rules only narrowly against it without affecting most others, the problem of too many patents — and patent lawsuits — will continue. In that case, Justice Stephen Breyer said, future competition could move from price and quality to 'who has the best patent lawyer.'"
Re:It's not software patents (Score:5, Informative)
The biggest problem here isn't the question of software patents. It's patents on things that are obvious, or are an obvious progression from something that's already common (eg. taking the manual process of balancing a checkbook and having a computer perform the exact same steps). It's just that software is the field where it's taken root the most, I think because people treat computers as some sort of magic that transforms the ordinary into something extraordinary.
The most straightforward way to deal with it might be to take computers out of the picture. Start by asking the question "If we replaced the computer with a trained monkey who could slavishly follow instructions, would this be patentable?". If the answer is "Yes.", then the patent's valid. If the answer's "No.", then the burden should be on the patent-holder to explain why the application of a computer to this problem is so non-intuitive, so non-obvious, that someone familiar with the problem and computers would not think of letting a computer handle the chore. And "Because nobody's done it before." is not a valid response. Someone always has to be the first one to try to solve a problem.
Sure, but that's not the question being asked. Specifically, there are three relevant statutes here:
35 USC 101 states that processes, machines, compositions of matter, and articles of manufacture are patent eligible, provided that the claimed invention meets the other requirements.
35 USC 102 states that the claimed invention must be new - i.e. "nobody's done it before."
35 USC 103 states that the claimed invention must be nonobvious - i.e "so non-intuitive, so non-obvious, that someone familiar with the problem" would not come up with the solution.
But these are three different statutes, with different tests. 102 and 103 require prior art evidence - "is this new? What about this, where it was done exactly that way last year?"; or "isn't this obvious because it's just a combination of two known things that, even though they haven't been done together before, they'd be trivial to combine?"
The test for 101, however, is the issue here, and there really isn't a good test. Specifically, the fight is over what it means for a "process" to fit within the patent eligible range: say you actually solve the black hole information paradox and write an application claiming a method for retrieving information from a black hole. It's certainly never been done before, and I doubt anyone would call it obvious... but is it patent eligible? No, under the current understanding, because it's directed to a natural phenomenon.
See, novelty and obviousness are different questions. This is just about that strange first one, where something can be absolutely non-intuitive and genius, but not eligible, like Einstein's general relativity; or something can be in the field of patent eligible subject matter - like a process for putting butter on toast - but be totally old and well known and invalid under 102.
Now, that doesn't mean we throw our hands up and say "patent trolls win". It's just that 101 isn't the right tool to defeat them. If they're claiming something that's already common "but on a computer", well - computers are well known, the checkbook balancing is well known... first, we should be able to show that they've been done together before and therefore it's invalid under 102. Second, even if we can't, since both are well known, and combining them is trivial, then the combination is obvious under 103.
See, there's no need to make a grand sweeping rule that all software is forever ineligible, regardless of how revolutionary and world-changing it is... instead, we just want to get rid of stupid obvious patents, so let's start focusing on when things are stupid and obvious, not just whether they're done on a computer or not.
not quite nothing (Score:5, Informative)
which has nothing at all to say about patents
Article One, section 8, clause 8
The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
Re:The best the SCOTUS could do is wipe software p (Score:4, Informative)
Re:It's not software patents (Score:5, Informative)
Actually, you know, in the 19th century, the patent lawsuits were flying even more vigorously than they are now. In fact, in the field, it got so bad that it was impossible to create the device.
No, it wasn't a matter of licensing, but a matter that you couldn't build it because the patents were so broad and even worse, they overlapped! And no one was licensing to competitors, so everyone was suing everyone else. And yes, we had NPEs (non-practicing entities, aka trolls) as well.
The device? The sewing machine. Everyone was suing everyone else, and patents were granted that were overlapping. So if you managed to license one, someone else with the exact same thing would sue you. Heck, the only real difference was back then, the inventors held onto their patents and did a lot of the suing.
The end of the 19th century nearly brought a halt to the sewing machine. Until the companies got together and simply bought up every patent around from everyone. Literally buying the peace.