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"Bilski" Case May End Business Method Patents 101

hey sends us to a blog at NYTimes outlining the upcoming appeal of the case known as "re Bilski," which could spell the end of patents on methods of doing business later this year. One patent expert is quoted: "I think this is the unraveling of business method patents... I think there is a process we are going to go through to get there and the Supreme Court is going to be the one that decides it." But another expert thinks the case is unlikely to bring down the whole class of patents: "Definitions of business method patents always end up being circular. You can't really ban something unless you can define it and no one is offering a definition we can use."
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"Bilski" Case May End Business Method Patents

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  • How about (Score:3, Interesting)

    by geekoid ( 135745 ) <dadinportland&yahoo,com> on Thursday March 06, 2008 @11:52AM (#22663564) Homepage Journal
    defining it be necessary for a patent?

    Or it doesn't fit the current definition of what is patentable, therefore not patentable.

    • Re:How about (Score:4, Insightful)

      by $RANDOMLUSER ( 804576 ) on Thursday March 06, 2008 @12:13PM (#22663782)
      Obviously the things being patented are defined. The quote means they can't define what a "business method patent" is. It's kind of like that old quote about porn - "I can't define it, but I know it when I see it".
      • Re:How about (Score:5, Informative)

        by Anonymous Coward on Thursday March 06, 2008 @12:39PM (#22664134)
        The EU's patentability rules [epo.org] already disallow business model patents. To quote the relevant parts:

        (2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

        ...

        (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

        Circular definition or not, the system has held up pretty well since it was introduced in 1973, most (all?) member states already had similar restrictions before the rules were unified.
        • Agreed about EU. Same for Russia - business methods that do not qualify for patent protection may qualify for protection under trade secret or unfair competition law - outside US, for instance, in Russia. According to Russian Patents blog ( http://russianpatentsblog.patentsfromru.com/ [patentsfromru.com] ), no specific provision of Russian patent law prohibits the patenting of business methods as a general rule, but Article 4, paragraph 3 of the Russian Patent Law does prohibit the patenting of (1) business administration and
      • Re:How about (Score:4, Insightful)

        by $random_var ( 919061 ) on Thursday March 06, 2008 @01:03PM (#22664482)

        Obviously the things being patented are defined.
        The problem is certainly not localized to business method patents - but it is definitely a problem. The original intent of the patent system was to award a limited monopoly in exchange for a complete description of how to duplicate a specific implementation of an idea, so after the monopoly expired just about anybody could make use of that description. However, today, just about every patent filing is buried in legalese and is described in vague terms that intentionally cover as much litigatable ground as possible, while failing to provide enough information to effectively duplicated the implementation.
      • by Moraelin ( 679338 ) on Thursday March 06, 2008 @01:03PM (#22664484) Journal
        How about this, very pragmatical definition:

        1. if it's something that one or more humans must do, you can't patent it. (I.e., no patenting "you show the ticket to the doorman".)

        2. if the same process could realistically be done by a finite and small number of humans, and your programs/modules/robots/whatever just automate a human's role there, you can't patent it. (I.e., no patenting "you input your ticket's number to the program.")

        3. If a nearly identical process -- i.e., serves the same practical purpose and the essential steps are the same, or minor variations of the same step -- is already in use with humans or in any other form or medium, you can't slap a "in software" or "with computers" on it and patent the same bloody thing _again_.

        The above, btw, comes from someone who actually likes patents as a general idea. I'm all for rewarding people who research new stuff, create new technologies, and/or invent new products. By all means, we need more of that stuff, and it's only fair to reward the people who invested massive money and manpower into researching it. In fact, at the risk of allienating a good chunk of slashdotters, I'm even for more of that in software. If that's what it takes to get more people into researching brand new stuff, I'm all for it.

        I _am_ however, dismayed by the joke that most patents actually end up being. I think it's time to revert to the original idea of rewarding technological progress, and weed out the chaff that doesn't do anything towards that end. Starting with the rehashes of an existing technique, only with "in software" or "with a computer" slapped upon it.
        • Re: (Score:3, Insightful)

          by Anpheus ( 908711 )
          Ah, so we shouldn't have -any- patents, because humans can be quite ingenious.
        • by Iron Condor ( 964856 ) on Thursday March 06, 2008 @02:41PM (#22665904)

          The above, btw, comes from someone who actually likes patents as a general idea. I'm all for rewarding people who research new stuff, create new technologies, and/or invent new products. By all means, we need more of that stuff, and it's only fair to reward the people who invested massive money and manpower into researching it.

          Up to here, I agree. If you put in a good day's worth of work, you should get a good day's worth of pay out of it. Heck, if you can negotiate a decent deal, you can get two or even three days pay out of your one day's work.

          But if you want to get paid next year, you should have to work next year. My plumber has to. My dentist has to. My lawyer has to. My barber has to. Why should YOU get to retire on the one good day of work you put in ten years ago?

          In fact, at the risk of allienating a good chunk of slashdotters, I'm even for more of that in software. If that's what it takes to get more people into researching brand new stuff, I'm all for it.

          As we can see in the real world, the opposite happens: If people can have one clever idea in their entire life and then expect never to have to work again because of that one clever idea, then they are expressly NOT interested in ever having a second clever idea. Ever.

          99.9% of patents[1] are granted not to people who think of it as a reward for contributing to the good of society, but to lazy parasites who imagine they should get paid in perpetuity because they figured out one trivial and obvious thing that they managed to obscure enough to squeeze it through the patent system.

          Thereby not only removing themselves from the innovative pool, but also everybody else who is working anywhere in the vicinity of the same field (and who cannot innovate in this direction any more because it's now patented). Patents are the greatest impediment to human innovation ever invented.

          [1] You are hereby challenged to sift through the ~two hundred thousand (and rising) patents issued in the US alone every year and produce ONE per year for the last five years that actually protects some truly new, innovative technology that actually improves humanity in some fashion as to warrant paying the inventor for the rest of his life (which is what a patent amounts to, these days) -- as opposed to being yet another utter triviality with the term "on the internet" slapped onto the end.

          • by djp928 ( 516044 )
            Up to here, I agree. If you put in a good day's worth of work, you should get a good day's worth of pay out of it. Heck, if you can negotiate a decent deal, you can get two or even three days pay out of your one day's work.

            But if you want to get paid next year, you should have to work next year. My plumber has to. My dentist has to. My lawyer has to. My barber has to. Why should YOU get to retire on the one good day of work you put in ten years ago?


            This whole argument assumes you're working for an establish
            • by dgatwood ( 11270 )

              And frankly, I'm tired of the "I have to work, so you should have to work too!" argument. It smacks of Marxist "everybody is equal, and if they're not, we'll damn well cripple those who excel in order to make everybody equal!" bullshit. If somebody is willing to still pay money for something you produced ten years ago, you damn well *should* still be able to collect that money. It also implies that inventors and creators get one lucky break and then live in the lap of luxury their entire lives after that, w

            • What if you're the guy with a lab in his basement, or a computer farm in his garage, and you come up with something new and novel? Who is going to pay you for it?

              Back to the Strawman, Part II. How are you going to go back in time to reinvent what you already invented after you are paid ex post from the patent for work you already by definition did prior to the grant of patent? I call my invention the "Flush Capetenter", it flushes stupid patent idea submissions down the toilet.

              We should also immediately use all new archeology evidence of prior technology or methods as prior art. Perhaps the patent office needs to subscribe to archeology journals and magazines, what

            • And frankly, I'm tired of the "I have to work, so you should have to work too!" argument. It smacks of Marxist "everybody is equal, and if they're not, we'll damn well cripple those who excel in order to make everybody equal!" bullshit.

              I don't think anyone objects to you not working. What people object to is your having a government enforced monopoly that lets you finance your leisure by raising prices for the rest of us.

              Nothing particularly Marxist about that; it's basic free market economics. You're

          • by JSBiff ( 87824 ) on Thursday March 06, 2008 @04:42PM (#22667780) Journal
            The problem with the mentality that you shouldn't get paid next year for the work you did this year is that it can take *years* of research to develop something. I was just reading a write-up posted on the wall in my University's Physics building today, about how it took Edison and his assistants 18 *years* of labor every day to perfect the Alkaline Battery. When he started, while the basic concept of a battery had been around for awhile, he had to do a ton of basic materials science / chemistry research, then further engineering efforts once he found suitable materials, to find the best physical design for the battery. 18 years. Granted, not every 'invention' takes 18 years, but you need to keep in mind, when discussing patents, that the patent system needs to take into account that it could take a very long time to recoup the investment someone makes in an invention.

            Another example of this is pharmaceutical patents. It can take years of research to develop a candidate for a new drug, then years of safety and efficacy testing before it receives FDA approval. All that makes it *very* expensive to bring a new drug to market. I think we can all see that, at least some drugs, have improved human health greatly, and so we should give the companies doing that R&D a chance to make back their money, and it very well might take years to make back the money.

            I mean, if you did 10 or 18 years of R&D to create a new invention, it might easily take you 20 or 30 years to make back the money you invested in that (especially when you consider that, after spending all that time/money on R&D, you know have to spend a ton more money for manufacturing/distribution/marketting, and it just might take a few years for your product to be 'accepted' in the marketplace to the point where it begins to make any money at all.
            • I mean, if you did 10 or 18 years of R&D to create a new invention, it might easily take you 20 or 30 years to make back the money you invested in that

              Yeah, but then again, so what?

              I mean, my family has been working on antigravity [1] since the early 1800's. Does that mean that if I get it working I'm entitled to a two hundred year patent? I mean this development has taken generations and consumed the entire lives of hard working people who died in poverty. How can you put a price on that? Should

      • by geekoid ( 135745 )
        Yes, and if you can't define what a "business method patent" is, it shouldn't be patentable. Probably copyright, but not patent.

        I can't get a "mYhneyd butrdb Patent".

        We can limit patents to 'Physical Things that can be built'. Business method patents aren't physical things.
  • by zappepcs ( 820751 ) on Thursday March 06, 2008 @11:52AM (#22663566) Journal

    "Definitions of business method patents always end up being circular. You can't really ban something unless you can define it and no one is offering a definition we can use."
    If I'm not missing something, it should take about 48 hours of concentrated blog reading to find a couple of REALLY good definitions of what should not be given a patent.

    What gives?
    • by theM_xl ( 760570 ) on Thursday March 06, 2008 @12:02PM (#22663678)
      I'm no more a lawyer than you are, but I don't think common sense is allowed when it comes to law. Though there are also those who claim common sense is patented, and the cost of a license is prohibitive _
      • Well common sense does meet the "non-obviousness" and "novelty" requirements...

        yeesh, that could be trouble. I just hope that "prior art" saves us.
        • Yes, I believe I may have seen a blank canvass hanging in a museum right next to the blank canvass with a dot in the middle. Perhaps copies of these can be hung in the Patent Office? By definition the Patent Office is not checking 100% of all Prior Art, so perhaps a court injunction can be slapped on them to shut them down completely? A little copy + paste of every single court injunction alleging patent infringement against "Compnay X" can be resubmitted with "USPTO" inserted where "Compnay X" was inserted
    • by samkass ( 174571 )
      If I'm not missing something, it should take about 48 hours of concentrated blog reading to find a couple of REALLY good definitions of what should not be given a patent.

      I'd go so far as to say dozens. Maybe a hundred. I think that's part of the problem.
      • Well, since so many patents seem to fail on the few criteria that are available (e.g., novelty and non-obviousness) that there more problems than just redefining what can be patented.

    • Re: (Score:3, Interesting)

      by Yvanhoe ( 564877 )
      How about defining things explicitly authorized instead ? Here in Europe, one of the very strong arguments of patent opponents is the regulation stating that mathematical formulas are public domain by default, being discovered, not invented. And for most law makers, an algorithm is similar to a formula. The loophole that many European companies use is that they patent a "machine running an algorithm X", the machine being a computer. I am not aware of any case in Europe where a software company has been atta
    • by Moraelin ( 679338 ) on Thursday March 06, 2008 @02:04PM (#22665356) Journal
      Well, the problem with law and what created legalese, is that you need to be painstakingly precise in defaining _exactly_ what is allowed and what isn't. Because otherwise someone _will_ use any inexactity to their own end, to shaft someone else. Natural language is vague, and lots of things that look clear when said or written in a blog, leave loopholes that you could drive a bus through.

      That's really why legalese evolved, and why contracts and laws are so verbose and use funny jargon.

      E.g., let's say I aggree to sell you a "Wii, original box" for your money. What if I only send you the cardboard box, without a Wii in it. There actually was an auction on ebay doing exactly that, albeit with a PS2 back when it was launched and there were massive shortages. Ok, so let's clarify that a bit as "Wii in its original packaging". Does it say it has to be a working Wii? It doesn't. Ok, let's clarify that too. Does it say in how much time I have to send it to you? I don't think so. So if you don't get it until 2018, hey, I still didn't break my word. So let's clarify that one too. Did I say I was going to include a wiimote and the cables and everything? Well, nope. If I'm an arsehole, I might send it to you without anything except the box, just so you pay more buying everything that's missing separately. Did we stipulate any penalties for breaking that contract? No? Well, then I might break it anyway, and what are you going to do about it? Did I say where it would be delivered? I'm delivering it to the top of Mt Everest then. Feel free to drop by and get it from there, any time you wish. Etc.

      As a private person you don't actually have to worry about most of that, because someone made some laws against that. But that means, essentially: someone else wrote a ton of legalese, so you don't have to. But it's there.

      But companies don't get that break, and neither do courts and lawmakers. There you really have to define _everything_ in painstaking detail.

      If you just say "thou shalt not steal", you'll get people arguing that they only borrowed it without your knowledge. Or conversely, what happens if I lent you a book and you forgot to bring it back in time? Can I claim that you're a thief and throw you in jail? So you end up having to write many pages as to exactly what is a theft, what isn't, and what steps to take to distinguish between them.

      There you go. For vague everyday use you have a very simple concept: "thou shalt not steal." It doesn't get any clearer. But for a law it doesn't even _start_ to be enough.
      • Re: (Score:1, Interesting)

        by Anonymous Coward
        Sort of, but you mistake the real reason for the prevalence of "legalese" - poor writing skills amongst lawyers (aside from "terms of art", see below). There is nothing about the practice of law which requires "legalese", or even makes its use a good idea.

        In fact, contrary to what many believe, more words do not result in a more precise definition - they only create new opportunities for interpretations of the contract terms which may not have been intended by the parties to the contract at the time of for
      • by Pearson ( 953531 )
        Ah. So it's just like Assembly Language.
      • by asc99c ( 938635 )
        When I bought my last house, it came with a stack of old documents dating back to its building in 1885. It was quite interesting seeing the different styles of legalese that were prevalent at various times. A significant number of the documents had absolutely no punctuation, because even adding pauses into a sentence can change its meaning e.g. Lionel Hutz' advert on the Simpsons saying

        Works on commission
        No money down

        gets corrected to 'Works on commission? No, money down!' That's clearly a joke but if so
    • by Alsee ( 515537 ) on Thursday March 06, 2008 @02:28PM (#22665728) Homepage
      Screw blogs. How about we ask the US Supreme Court?

      US Supreme Court Cochrane v. Deener in 1876 defined a process patent as:
      an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing.

      In Diamond v. Diehr 1981 the US Supreme court quoted exactly that definition and reaffirmed it.

      US Supreme Court Gottschalk v. Benson 1972):
      Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines.

      And that too was quoted and reaffirmed in Diamond v. Diehr 1981.

      There is no difficulty with OBJECT patents. The only difficulty we are having is with PROCESS patents. And the only valid form of process patent is one for a physical process to transform physical matter into a different state or thing. If you figure out a way to turn coal into diamonds, you can patent that physical transformation process.

      Diamond v. Diehr 1981 also specifically WARNS that "insignificant post-solution activity will not transform an unpatentable principle into a patentable process. To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection."

      P.S.
      In addition to all the above, Diamond v. Diehr 1981 also explicitly stated that an algorithm ... cannot be the subject of a patent. Software is nothing more than "algorithm". And along with the above warning, we could hardly have a more clear prohibition against software patents. The Supreme Court WARNS the courts that they may not permit "insignificant post-solution activity" to transform a non-patentable software algorithm into a patentable process because that would allow creative writing patent lawyers to paint a process-patent costume onto prohibited non-patentable non-inventions and railroad them through the system. Which is exactly what the lower courts went right ahead and did anyway. The patent courts did exactly what the Supreme Court WARNED them they were forbidden to do. And that is how we got this mess of software patents and business method patents.

      -
      • Luckily, we have a chief justice that testified, under oath, to congress that one of his primary tenets - should he be confirmed - would be to respect established case law and prior Supreme Court rulings.

        Oh, right - now that he's been it, it appears that he lied through his teeth. It was worth a shot.
    • by kesuki ( 321456 )
      the thing is though people tend to think alike. take for instance wal-mart. the same year that Sam Walton founded wal-mart, k-mart and target were founded by people/companies already in existence.

      if business models were patentable it's possible that none of the three could have been created, because other companies had 'five and dime' store models, and would have patented the business models needed to create discount chain stores.

      this is a prime reason to not allow business model patenting, you simply cou
  • No definition? (Score:2, Insightful)

    by Anonymous Coward
    What I don't understand is: Why does the USPTO grant something, i.e. business method patents, if nobody is able to come up with a definition? They must use some kind of definition, otherwise this proves that "business method patents" are nothing more than hot air. Is it just all about the money? I think I already know the answer...
    • Re: (Score:3, Informative)

      by reebmmm ( 939463 )
      The problem is coming up with a GENERIC definition of a business method. Particular examples of business methods aren't difficult. The point being that most people know one when they see one, but describing the class generically risks including too much (e.g. other method type claims).

      Also, business method is really only necessary for classification purposes. Beyond that, a "business method patent" is like every other type of patent and so must meet the same basic criteria as any other patent. There isn't a
      • by sjames ( 1099 )

        How about if the patent's objective could be accomplished by a bunch of people in a room using pencils, paper, and a phone, it may not be patented.

        • I love your proposed definition (expressed as a test). However, I think it would be cool to replace "a bunch" by "an indefinite number". Also, I think it would be cool to replace "a telephone" by "telephones". Finally, I think it would be good to add the phrase "in an indefinite amount of time". Thus:

          "If the patent's objective could be accomplished by an indefinite number of people in a room using pencils, paper, and telephones, in an indefinite amount of time, it may not be patented."

          Undoubtedly this g
          • by Nullav ( 1053766 )

            The people in a room could do any software process -- although it would require a whole continent of people, and a whole lot of telephones, to make some calculations proceed at anywhere near "real time".

            Does real-time operation even matter? Countless people have essentially piggybacked on computers to speed up calculations, it's nothing new and shouldn't be patentable, as that's the very purpose of a computer. How about this: "If someone can do something mentally and achieve the same result with nothing but

    • The reason that the USPTO grants software and business method patents is because the courts told them they had to.
    • How about this to start...

      No patent shall be granted covering the behavior or actions of any person, nor of processes that merely mimic the behavior of any person. ("Person" covers corporate entities too!)

      And really, really, really hammer the point of the KSR case that combining known devices and techniques and getting the expected and predictable result is not protectable on obviousness and novelty grounds.

      • No patent shall be granted covering the behavior or actions of any person, nor of processes that merely mimic the behavior of any person. ("Person" covers corporate entities too!)

        Problem is people are so flexible in their abilities that many actions could be considered mimicking human behavior. For example computers just mimic people doing math.

        And really, really, really hammer the point of the KSR case that combining known devices and techniques and getting the expected and predictable result is not prot

  • At the risk of another cliche, the fat lady hasn't sung yet.
  • ^_^ (Score:4, Interesting)

    by theaceoffire ( 1053556 ) on Thursday March 06, 2008 @12:00PM (#22663658) Homepage
    If you can't define it, you lose your patent. That would fix most of our issues, because people who have to define their patent in easy to understand terms will suddenly find that there is prior art, or that someone else already has it.
    • I think that's the major problem with patents. They use all this legal-speak to define their patent, in order to make them seem novel and inventive. However, when you actually analyze it, and find out exactly what they are doing, you'll find that it's not novel, and that tons of prior art exists. I think that as part of your patent application, you should have to provide a description, in plain english, of exactly what your invention is.
      • Re:^_^ (Score:5, Funny)

        by Critical Facilities ( 850111 ) on Thursday March 06, 2008 @12:27PM (#22663922)

        They use all this legal-speak to define their patent, in order to make them seem novel and inventive.

        What the hell are you talking about? You obviously have no experience in creating/drafting patents. Take, for example, the patent I hold entitled "Manually actuated pressure initiation of uni-phonetic communication" which claims benefit under provision F.U.D. 34-19.2 of Provisional Application License 453/21.2532 filed in April 1984 which very clearly states:

        This invention relates to a method of interfacing between an operator and a portable peripheral of an electronic calculation and computation machine (heretofore referred to as a "computer") for the purposes of allowing a methodology wherefore force may be applied at incremental levels from the operators singular or multiple digits to individually assigned and actuated surface switches (heretofore referred to as "keys") with the designed intent being to allow for individual transference of intended characters occurring in the alphabet of said language/verbiage (referred to in Section 12-4.987) in the order of the operator's determination with the sole intent of creating collections of said characters for the purposes of "spelling" and relating notions, ideas, and phrases (henceforth referred to as "words").

        See? How simple is that? I mean, come on, it's not like I went out of my way to make that complicated, you must not understand this type of thing very well.
    • I think they mean they are having trouble defining what a "business method" patent is and what would make it unpatentable versus any other type of patent.

      I think business method patents got swept in when they started allowing other types of patents, and they will probably have trouble precluding them without also affecting other types of patents (software patents for example.)
    • How about "if it does not involve something you can physically touch, it cannot be patented"?

      That would rule out software patents at the same time. Two birds, etc...

    • The quote in the summary isn't referring to defining an individual patent. It's referring to defining the term "business method patent".

      And patents should not need to be defined in "easy to understand terms". They need to be defined in unambiguous terms. Sometimes, in order to remove ambiguity, it is necessary to make the definition complicated.
      For example, define "housecat". Easy to understand: "domesticated mammal residing indoors". But very ambiguous, as one could then claim that the definition in
  • As one of /. innumberable IANAL types, I can't comment directly, but the fact that the court wishes to "revisit" a decision that basically allowed business method patents to come into existence seems to be a positive development, especially because it sounds like either way, the decision will be appealed and SCOTUS put in a position to make a definitive ruling, which will resolve the question one way or the other. Or find a middle way.

    Certainly I don't think "one click" et. al are inventions -- they are implementations of an idea accomplished high speed by other peoples inventions. But there isn't a device in "one click", ergo in my mind there was nothing to patent. So my hope would be that the ruling would also go back to more of the founding father's desires to give individual inventors rights to market their own technological devices for a limited period of time, not the great big multinational corporations, who tend to use and abuse the system as much as possible.

  • What is Patentable (Score:5, Insightful)

    by Gallenod ( 84385 ) on Thursday March 06, 2008 @12:27PM (#22663920)
    Defining what can be patented should be fairly straightforward but we keep getting tied in knots.

    A "cash register" is a patentable device. It is a physical construct that performs a specific work function. Its inventors deserve compensation for its invention.

    Using a cash register to calculate and record a business transaction is a method of conducting business. No one should be able to patent the idea that you use a cash register to conduct business becuase that use is obvious and implied in the original intent of the device.

    If we apply this to something like the Amazon "one-click" patent, the specific software application that acts as the mechanism for conducting the sale may deserve some protection. However, the idea of letting a customer buy something by clicking once, does not.

    My position, in short, is that functional constructs (physical or virtual) deserve protection but ideas about the use of a construct does not.

    That seems a simple enough practical definition, but I'm sure there's some problem with it that someone will feel compelled to expose.
    • by reebmmm ( 939463 )
      Except that, your argument makes no sense. If a cash register is patentable, then it met the criteria for patentability including novelty and nonobviousness. Therefore, using a cash register to conduct business is also not obvious BEFORE a cash register exists. It's only obvious AFTER it comes into existence. There are lots of other nuances that are missed in your example, but I'll put them aside since that's not the point.

      On to your issue with the "1-click" method. If the mechanism is novel and nonobvious
      • Re: (Score:3, Interesting)

        by Telvin_3d ( 855514 )
        I think that what the parent is saying is that the idea of using the cash register is inherent in the cash register itself existing. Before someone has invented a cash register, the idea of using one for business does not exist. Once the cash register has been invented (and patented), the idea of using the cash register is not a separate idea that should be protected independent of the cash register. A novel new key layout might deserve some protection. The act of pressing differnt keys should not.

        For A
        • by The Rizz ( 1319 )

          For Amazon, the back end solution that drives the 1-click process possibly deserves protection.
          Really? Which part? The "database" or the "information stored in a database"?
      • by sjames ( 1099 )

        The 1-click patent was truly a travesty. I could easily sum it up as "you know what every retailer in the world does? Well, do it on the web too!".

      • by Dog-Cow ( 21281 )
        I think that what the GP is getting at is that a cash register is a physical implementation of the idea of using a machine to calculate sales costs and to provide a mechanism for storing the consideration (cash, check, CC transaction) received by the customer. The physical device is patentable, but the idea of such a device is not.

        In the one-click example, Amazon is claiming, through their patent, that the idea of allowing a sale to be completed via a single interaction (click) is exclusive to Amazon for t
    • I think that most of the computer type business function patents aren't patentable because it take multiple devices to accomplish them. There is no device with "one click" buying, it requires a computer, browser, internet, another computer (or two), several layers of software (SQL, HTTP Server, etc). Since Amazon doesn't hold all the pieces to the "one click" necessary to make use of that concept, they cannot hold a patent.

      In otherwords, Amazon isn't selling anything, nor could sell anything that contains t
    • by sjames ( 1099 )

      The cash register patent is not on the 'business method' of using a cash register to do business, it's on the mechanical (at the time) computation device. The inventor of the cash register would have been quite put out if someone else had filed patents on the business method of using his invention.

  • by homer_s ( 799572 ) on Thursday March 06, 2008 @12:35PM (#22664070)
    If the definition is "you cannot patent an idea", then logically all patents should be banned. Because even if a patent involves physical things (e.g., a heart attack predicting gadget), the only thing of value in that is the idea. Everything else in there is just metal, plastic and silicon.

    And banning all patents would be fine by me. Let the market work out how to protect and reward ideas.
    • If you can't build a scale model of your invention which can be presented to the USPTO in a 12"x12"x12" (excuse me, 300mm x 300m x 300mm) cube with your patent application, then you can't get a patent on it. The corollary to this is that if the object you are creating exists in nature, it cannot be patented (take that, DNA patent whores).
    • by Gutboy ( 587531 ) on Thursday March 06, 2008 @12:44PM (#22664202)
      But that is the way it is supposed to work. You can patent the device that predicts heart attacks, but you can't stop people from making other devices that predict heart attacks if they use a different method than yours. The idea "lets predict heart attacks" is not patentable, the machine that does it is.
      • by homer_s ( 799572 )
        The idea "lets predict heart attacks" is not patentable, the machine that does it is.

        But my argument is that you are still patenting an idea, not the machine itself.

        What is of value in the machine that is patented? The plastic, the electronics, etc existed before they were put together in that unique fashion. It was only when they are put together in a unique fashion, the sum is patentable.

        So what is patented is "the unique way in which I put together some pieces of plastic". That is an idea. That
        • My thoughts are that a specific implementation is patentable, but not just an idea. I understand that even an implementation is an idea in itself, but it's a specific type of idea that says how to put together certain parts to create something that fulfills some purpose. So, for instance, you can't patent predicting heart attacks in general, but you can patent a specific way to do so. You can't patent selling things online with a single click, but you can patent your database system and code that allows tha
        • Well, how about this pragmatic distinction, then: "You may patent an exact description of the solution, but you may not patent the problem or the goal." It seems to me like that alone would weed out half the bogus patents in the USA.

          So basically, just as an example of that idea:

          - The exact building plans of a machine that predicts heart attacks, is describing the solution, and thus is patentable.

          "Predicting heart attacks" is, however, a problem not a solution. It's a goal, not the means to reach it. It give
          • by homer_s ( 799572 )
            I agree with you when you say that there are different kinds of ideas. And your way of classifying them is interesting.

            But who makes that judgment? I'm too lazy to think of an example now, but I'm sure someone can think of a case which does not fit into your classification.
            Even if that weren't the case, this classification is still subjective and a given idea can be placed into different categories even by honest people. Throw in patent trolls and dumb, supercilious, ignorant, frog-in-the-well judges
        • I think he means not allowing patents that have no tangible (physical or virtual) counterpart. So someone couldn't patent essentially the words "a device that predicts heart attacks" without the physical device to back it up. That's what things like the 1-click are, thought without implementation. They didn't patent the source code to make it work, just the idea that they could implement it. Any jackass could say "we need a device that predicts heart attacks" but everyone would think it ridiculous for getti
        • by Gutboy ( 587531 )
          A machine is an expression of an idea, it isn't an idea. I am free to express the idea in a different way, and the extent to which it is different is what patent law needs to determine. For example, changing your red wires to blue wires: Not different. Using background cosmic radiation instead of electrical wires connected to the patient: Different.
        • by hey! ( 33014 )
          Well, you can't patent an idea, for a certain definition of "idea".

          It seems to me the distinction we are making is between means and ends. You can patent ideas that embody means of achieving some end, but you can't patent the end in itself.

          There is, of course still some recursion here, because invention A may be a means to achieve result B, and result B may be a means to achieve result C. However this is not circular; you can patent result B as a means to achieve result C, and it doesn't prevent somebody
          • by homer_s ( 799572 )
            It seems to me the distinction we are making is between means and ends. You can patent ideas that embody means of achieving some end, but you can't patent the end in itself.

            I don't think you can classify everything into these two groups. Leaving aside the practical difficulty of codifying such a subjective notion into an objective law (99% of the laws are like that), I don't think that these (idea that embody means and ideas that embody the end) are fundamentally two different things.

            Like you say in
    • You are interpreting the argument "you cannot patent an idea" too broadly. That does not mean "you cannot patent something which has any kind of intellectual content to it" because then as you point out, nothing would be patentable. Rather, it means "you cannot patent a *mere* idea". Of course in a patentable invention there are going to be ideas but you also should be required to implement those ideas in a concrete system. (Note that I say you *should*. I doubt that the PTO is very zealous in that ar
  • by Tmack ( 593755 ) on Thursday March 06, 2008 @01:00PM (#22664440) Homepage Journal
    The fact that this is patented is example enough that the system is broken, and method patents are ludicrous. Business method patents even more so. At least they go into detail on describing this method...

    Linky [newscientist.com]

    Tm

    • I also got a giggle out of US 6,368,227 B1 (issued April 2002), and added it to my collection of wierd patents. I'm pretty certain I and my friends all employed that method of swinging on swings decades earlier.
      A re-examination request was filed the month following issuance, and all of its claims were cancelled on re-examination (re-issued as US 6,368,227 C1 in July 2003).
      So sometimes, the twisted parts of the patent process can be straightened out without much delay.
  • Comment removed (Score:5, Insightful)

    by account_deleted ( 4530225 ) on Thursday March 06, 2008 @01:00PM (#22664442)
    Comment removed based on user account deletion
    • Re: (Score:3, Insightful)

      by AeroIllini ( 726211 )

      Should Starbucks be able to own a patent on the process of saving money by making a universal lid for its different sized cups? I don't think so because the cost to the economy is decreased efficiency at every other coffee shop that is barred from using this process without paying Starbucks.

      I'd like to expand on this.

      The purpose of patents is to give incentive for innovation by guaranteeing the possibility of a return on investment for a short time. If an inventor comes up with Device X, then all the engineering hours and work that went into developing Device X are an expense, and the inventor should have an opportunity to sell his idea under his own terms for a short time to try to recoup those costs (there's no guarantee of return, only guarantee of opportunity). Without the protection of p

  • Am I missing something, or could business method and software patents be neatly ruled out by adding just 1 sentence to the patent laws, along the lines of: "You can only patent physical devices that are not universal Turing computers".

    Slipping in the words "that have been built and can be proved to work" while making the amendment would seem to be a reasonable way of cutting down on a lot of junk patents too.
    • by ErikZ ( 55491 ) *
      Interesting. So then you couldn't patent MP3 encoding?

      What about the blu-ray format?
  • will have to place:

    3) ?????
    4) Profit!

    into the public domain.

  • This is an annoying comment, but the description (and the article) incorrectly refer to the case as "re Bilski." The title is actually "In re Bilski" -- short for "in the matter of Bilski." Simply saying "re" sounds horrible from a legal point of view.
  • But perhaps his best argument is this one: "Definitions of business method patents always end up being circular," he said. "You can't really ban something unless you can define it and no one is offering a definition we can use."

    This seems to be a bit of a straw man. A decision in this case is unlikely to be "business method patents are banned", but rather a limitation of the kinds of claims that are protected. This will be unlikely to do anything so simple as banning business method patents or algorithm pat

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