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Courts May Revisit Software Patents
Posted by
CmdrTaco
on Mon Feb 18, 2008 10:50 AM
from the yeah-that'll-happen dept.
from the yeah-that'll-happen dept.
An anonymous reader writes "It looks like the courts may finally be gearing up to overturn the ruling that opened the floodgates for both software and business model patents. It's been nearly ten years since the US courts decided that business methods were patentable and that most software could be patentable — and we've all seen what's happened since then. With all the efforts to fix the patent system lately, it appears that the court that originally made that decision may be regretting it, and has agreed to hear a new case that could overturn that ruling and restore some sanity to the patent system."
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Bah. (Score:5, Insightful)
I predict this will get quietly swept under the rug...again.
No bets (Score:5, Interesting)
a new case that could overturn that ruling and restore some sanity to the patent system
No bets here, lawyers enjoy the complexity and confusion too much to make this any better. Congress just needs to change the law. In a business like computers which is evolving so quickly, say a 2 year patent then it expires. And you can only sue if you produce a competing product with it and have been harmed.
You need to stop patent trolls dead. Like RAID and bugs. Let innovation back into this business.
Worthy of discussion... (Score:5, Informative)
Carefully-placed regrets (Score:5, Interesting)
- A rethink to head off not only having their wrists smacked but having the USSC start reviewing their cases much more often (complete with reversals) or
- A chance to put together a really solid and detailed ruling to give the USSC a reason to agree with them.
We won't know which they pick until this summer.The PTO seems to want a bright-line test (Score:5, Interesting)
Interesting stuff.
Good Software Patents Can Lead to Good Outcomes (Score:5, Insightful)
Since then we've seen the emergence of Google as a powerful challenger to Microsoft. This is one example among many of a company whose entire existence, much less its massive success, is dependent upon a patent (# 6285999, in Google's case). If Google had not been able to patent its major innovation, then Microsoft could easily have co-opted the idea, and it would have dominated search as well as operating systems and office suites. Recall that most of Microsoft's meteoric rise took place during a time when software was not patentable. The absence of software patents is precisely what makes "embrace, extend, extinguish" possible. Software patents give the original innovator the power to stop that strategy in its tracks.
I believe that what Slashdot readers truly dislike are bad patents, not software patents per se. Software just has more bad patents than it should because of the way the PTO treated them. Until the courts basically forced the PTO to accept software patents, the PTO did not hire computer scientists as patent examiners. Even now, the PTO has a massive backlog of software patent applications, and as a result computer related applications have by far the longest median time to issuance (roughly 44 months!). The PTO tends to err on the side of issuance, and so we end up with a flood of terrible software patents.
How to fix this? The simplest way is to eliminate the presumption that patents are valid, which requires a patent challenger to prove invalidity by clear and convincing evidence (a standard almost as high as beyond a reasonable doubt). Instead, we should recognize that many patents are not valid and end the presumption of validity. That way, bad patents can be more easily challenged, and patent trolls will think twice before bringing spurious suits.
Re:Good Software Patents Can Lead to Good Outcomes (Score:5, Insightful)
Patents are supposed to cover a *specific implementation* of an idea. Which is fine, but in software, there are ALWAYS multiple ways to do things. So should a software patent cover the *functionality* of the software, or the the *implementation* (which would amount to the source code, and maybe some of non-standard elements of the interface).
I say they should only be able to patent the source code/interface. Which, of course, they wouldn't/can't do, since it's already covered by copyright laws.
So, no, Google shouldn't be allowed to patent their PageRank system.
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Re:if you can't patent maths (Score:5, Insightful)
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Re:if you can't patent maths (Score:5, Insightful)
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Re:if you can't patent maths (Score:5, Insightful)
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Re:if you can't patent maths (Score:5, Insightful)
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Re:Math vs software (Score:5, Interesting)
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Re:if you can't patent maths (Score:5, Insightful)
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You can't patent information, period. (Score:5, Insightful)
Patents are meant to cover a particular implementation in physical terms of a theoretical idea, and right now, they are often being used to try and cover the theory as well.
For example, my own pet hobby is working on a new way to factor large numbers. Let's say that my redneck republican self gets insanely lucky and bumbles into an algorithm that actually factors something in polynomial time, or even close enough to it so that RSA and the like are untenable. Since my approach depends on treating factor as a decision problem, it follows that if I did get really lucky and struck gold, that, it would be applicable to a wide range of other problems. Under today's law, patenting that would basically give me the right to apply that mathematical breakthrough for my own ends, when clearly, its in the interest of society that as many people should be allowed to exploit it. Basically, I would be allowed to charge money for any sort of an implementation of a combinatorial problem, which is absurd. Yes, I might theoretically build a billion dollar enterprise to milk this concept for all its worth, I would ultimately though screw everyone else with whom such a breakthrough might be useful, and damage the overall economy that many millions of times more.
Really, the dividing line is one of information and knowledge versus an actual real world device. As Jefferson so adroitly pointed out, information does not lose its value when it is copied. If I know something, and give that information to you, we both know something, and that doesn't hurt me that you know it. It does mean that I can't build some sort of an empire at your expense, but, given that we already went through the Catholic attempt, and then the various State attempts, to monopolize information, with disasterous results all the way around (and not a single success in 2000 years!), it is obvious that a social framework which allows information monopolies works to the disadvantage of mankind.
Quite ironically, those people whose livelihoods depend on information having value are the ones most arguing that information ought to be free. Patents are, in theory, today, supposed to protect IT workers and their inventions, but most GOOD IT workers these days remember that computer science as a field advanced even more before today's patent nuttiness. If we did anything, it would be to allow the shared discovery and utilitization of new techniques, but protect, if desired, commercial and open implementations. So, for example, if Microsoft invents a new GUI dongle, or on the flip side, someone invents a browser plugin, then, it would be better for everyone if you simply could not be sued for making your own implementation of that idea. That gives us a world where everyone's products can advance, we have IT for our customers and ourselves and leave the lawyers out, and everyone is happy.
It is really only the idiots at Wall Street, that have handed us the internet boom mess, the present mortgage mess and the previous S & L mess, that want to maximize every asset as much as possible with silly things like patents and create yet another bubble that will burst and screw the rest of us up. But really, Windows doesn't need any patents any more than Linux does. The value of both of those products is predicated on their overall customer experience, not some silly mining like claim staked out in Washington DC!
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Re:if you can't patent maths (Score:5, Funny)
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Re:It'll never happen... (Score:5, Insightful)
And how about the lawyers of companies who have been hit severely by the current situation?
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Re:It'll never happen... (Score:5, Insightful)
Saying that all lawyers support patent laws is a bit like saying that all programmers support buggy software because it gives them more work.
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Re:It'll never happen... (Score:5, Funny)
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Re:It'll never happen... (Score:5, Funny)
So you're claiming prior art?
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Re:It'll never happen... (Score:5, Insightful)
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Re:It'll never happen... (Score:5, Insightful)
Why is software so special that it's the only thing that I know of covered by both copyright and extensive patents?
(Is it really so surprising that the union of copyright and patent law produces a mess? They were never designed to cover the same domain.)
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Re:It'll never happen... (Score:5, Insightful)
Patents do not stop that. Getting a patent is cheap enough, but defending it against a large competitor? You'd be forced into bankcruptcy in weeks.
There's a reason why large companies like patents so much - so they can use them as bargaining chips when they get sued for using other peopple patents (or simply countersue, if necessary). The small inventor has no foothold in this process and would just get steamrollered if they tried.
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Re:Hurrah! Information will be free (Score:5, Interesting)
Any CS person will tell you that when it comes to software, there's more than one way to skin a cat - probably thousands. But software/business patents let you find one, and squash the rest.
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Re:Hurrah! Information will be free (Score:5, Informative)
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Re:Hurrah! Information will be free (Score:5, Funny)
Prepare to be sued.
P.S.: "Fiiiiive triiiiilioooons, two hundreeeed thir..."
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