The Death of Nearly All Software Patents?

An anonymous reader writes "The Patent and Trademark Office has now made clear that its newly developed position on patentable subject matter will invalidate many and perhaps most software patents, including pioneering patent claims to such innovators as Google, Inc. In a series of cases including In re Nuijten, In re Comiskey and In re Bilski, the Patent and Trademark Office has argued in favor of imposing new restrictions on the scope of patentable subject matter set forth by Congress in article 101 of the Patent Act. In the most recent of these three — the currently pending en banc Bilski appeal — the Office takes the position that process inventions generally are unpatentable unless they 'result in a physical transformation of an article' or are 'tied to a particular machine.'"

This violates my patent

Invalidation of software patents was patented by me back in 2003.

Tied to a machine?

Sounds like the machine that these patents are going to be tied to is the Titanic.

Patent Pending

Someone should jump the gun and patent the idea that software cannot be patented. Then sue the trademark office for patent infringement.

Good

Thus is a good thing. Patenting software is like patenting a math equation. I can understand software copyrights but not a freaking patent. I wonder how this will affect the cases that where already in court.

Now if we can only get some sense in patents regarding biology. By the way my patent on the biological reproductive process in humans will go into affect today. So all you with kids prepare to cough up.

Re:Good

Patenting software is like patenting a math equation.

It's not even "like", it is patenting math. Software is math. Someone might say that everything can be reduced to math, but the fact is that a ball tossed in the air may follow a parabola, but the ball isn't math, it is just described by math. Whereas software is math, as surely as "y = ax^2 + bx + c" is math. One is a human-readable representation of a pure mathematical concept, and software is a machine-readable representation of a pure mathematical concept. You can't patent the human-readable form of math, you should not be able to patent the machine-readable form of the exact same math.

You can patent the machine that is capable of reading and acting on the mathematical operations described by the software. But not the software itself, because that is, literally, no metaphor at all, patenting math.

Re:Good

You are completly right, there is even a mathematical foundation for this, it's called the Curry-Howard correspondence : http://en.wikipedia.org/wiki/Curry_Howard [wikipedia.org]; which says : "The Curry-Howard correspondence is the direct relationship between computer programs and mathematical proofs. Also known as Curry-Howard isomorphism, proofs-as-programs correspondence and formulae-as-types correspondence, it refers to the generalization of a syntactic analogy between systems of formal logic and computational calculi that was first discovered by the American mathematician Haskell Curry and logician William Alvin Howard."

Re:Good

By that same logic, doesn't that void patenting genes as well, as Genes are natures version of software?

Re:Good

During my phd I created a dynamically resizing matrix like structure for representing gene networks of arbitrary size.
Shortly after this I found that something effectively identical had been granted a patent in the US.

The patent didn't effect me at all, so I wasn't concerned on that front. What shocked me was that a patent had been granted for it at all.

The design was useful for me, because it reduced memory usage by around 96%, but in no way was it something that should have been granted a patent.

I imagine that patent will cause some researchers problems unless reforms prevent its usage. I've not heard of it being used offensively yet, I assume the holder will be waiting for a chance to get some serious settlement cash.

Not good

I don't agree. Once again, patent policy is being set by people who obviously don't understand the technology, and so, having lurched from one extreme to the other back in the 1980s, we're now going to lurch to a new extreme that is also not going to make sense. If you read TFA closely to the end, you'll see that somehow two connected computers constitutes a "particular machine", where one does not. This doesn't make any sense, and is going to result in an arbitrary selection of which patents are valid and which aren't.

I understand that many people feel that software patents are so broken they should be thrown out. I don't agree. I think the problem with software patents is that the PTO never has had adequate expertise concerning prior art in the industry, and largely as a consequence, the bar for obviousness has been set about two orders of magnitude too low.

I'll believe it when it happens, not before...

I don't care who's reporting it or how reliable the source, the news that software patents would be invalidated, at least to me, and I'm sure a great many others, is something that is far in excess of too good to be true, so I'm gonna wait and see what happens.

I really wish I could believe that this were possible, but I think too many people with very deep pocket and friends in the right places would get screwed over by this sort of thing to ever allow it to happen.

Re:I'll believe it when it happens, not before...

You are exactly correct Sir. There is so much money (read: lobbyists) involved, that even if the Patent office has good intentions, I won't believe this until it actually happens.

Re:I'll believe it when it happens, not before...

Precisely. Patent abuse is both a cause and effect of corporate power. Money speaks, and I think I can hear it clearing its throat even now.

Somebody post on this after it's happened, and a long list of major technology corporations has not only acknowledged it, but acted on it. Until then, I'm not getting my hopes up.

I was going to tag this...

suddenoutbreakofcommonsense, but holyfreakingshit conveys my feelings better.

I haven't finished reading TFA yet, but this seems huge if it pans out — not only would software patents be invalidated, but essentially all "business process" patents would get tossed out as well.

Re:I was going to tag this...

I'm not even sure holyfreakingshit covers it. Its the patent office doing something nonbraindead. That itself is almost enough to make one believe in God.

What about compression algorithms?

Does compression of data count as "physical transformation" (IMO it's not, but I wonder what the USPTO thinks about it)?

And if this turns out well, does that mean that the MP3 and MPEG4 formats will no longer be patent encumbered?

Mixed Blessings

First of all, can I just say, WOO HOO! This has been far too long in coming!

If this is what it sounds like (and no, I didn't RTFA; way too many links that look like they're probably rich in legalese!), it could pull the rug out from under many patent trolls, and allow a lot more innovation to come back into the US software world.

However, precisely because it has been so long in coming, it could mean a major shakeup of a number of things. One important example is listed right in the summary: Google's PageRank patent. With that invalidated, other search engines can legally use PageRank, without giving Google a dime, which could give them the same searching power as Google.

I can't even begin to speculate what the fallout of this would end up including, but I think it's important not to underestimate it. However, even if there are some short-term negative consequences, I think most of us here will agree that in the long term, at least, this is a big win for everyone (well, everyone but the patent trolls, that is!).

Dan Aris

Re:Mixed Blessings

other search engines can legally use PageRank

That's where Google's pal "Trade Secret" comes in, after all, it's not like they list the algorithm they use to rank pages on their front page. Their patent reads more like "PageRank exists [uspto.gov] and we use it to order results from most relevant to least relevant and then display those results with links to the user, doing so is hereby patented" i.e. business process at its finest, with not a word that can be used to actually implement PageRank.

You can't have it both ways

You've got to decide whether software patents are good or bad. If it's good for Google to patent the idea of page ranking, then software patents, in general, must be a good idea. If software patents are a bad idea, then allowing Google to have a software patent on the PageRank algorithm is a bad idea.

  In the future, if software patents are basically denied altogether, Trade Secret law will used to protect this sort of thing. Unfortunately for the many companies like Google, who've already been awarded patents, the algorithms are already disclosed. Which is why you will probably see some sort of transition period where currently existing software patents aren't just immediately invalidated, but I suspect will be grandfathered in - a basic principle of fairness is you can't change the rules after someone has already upheld their end of the bargain - the patent bargain is that you publically disclose your 'secrets', so that other people can *eventually* use them, but get legal protection on those secrets for a limited time. Telling people who've made disclosure that suddenly they get no protection on their disclosured algorithms is something I don't think is gonna pass - there will be too much resistance from companies on legislators to get protection for this sort of thing.

Personally, I think search engine competition is a good thing. I think competition in general is a good thing. My only concern with outright gutting of the patent system, is that now much knowledge that would have been disclosed in patents, will now remain locked up as trade secrets and NOT eventually become generally available to practitioners of software engineering, and so will, long-term, hold back the progress of computer science. Of course, we all know that right now, patent trolls are holding back the progress of computer science even more. Sort of a lose-lose situation. I guess gutting software patents is, really, probably the lesser of two evils here.

quick

Hope this gets done quickly, because the EU and other players are pushing for software patents and one of the main arguments is "harmonisation with the global (read: US) systems".

And I'm very keen on finding out what their next pseudo-argument is gonna be.

Retroactive?

The article uses the workd "invalidate", which sounds to me like it would cancel existing patents. My question is - would this new set of criteria be retroactive, or would it apply only to new applications?

The PTO changing the rules to cancel previously approved patents would generate massive legal problems. In particular, companies have spent billions of dollars to register patents, only for the PTO to say "Oops, just kidding. Jokes on you."

No matter where you stand on software patents (and I'm against them if they can be restricted sensibly, BTW), that's no way to run a patent office.

Previous lawsuits from frivolous patents?

If this is actually true and at least the frivolous software patents are going to be removed, what about those who have been sued by the patent owners and lost? Will they be entitled to receive anything back from the patent owners as the patents are now invalidated? I know if I lost out hundreds of thousands of dollars to one of these BS patents, I would want my money back. Hell, if I lost $5, I'd want it back. I only read part of TFA, so maybe I'm missing something. Patent discussions are boring :o

Google will be fine.

That blog seems to want software patents to continue -- not surprising, really, given that it's a "patent law blog", and lawyers are the ones with the most to win from the cottage industry of software patents.

While I doubt this ruling will stand, I hope it does. Google has an enormous amount of manpower to throw at this kind of problem, most of it highly intelligent. The only way this hurts Google is if a competitor is able to implement PageRank (and other features) so much better than Google that people start to switch -- and I doubt Google will be standing still as this happens.

The fact is, software patents have had an overwhelmingly detrimental effect.

Does anyone really believe that, for instance, h.264 would never have been invented, were it not for patents? It would either have been open, or some interested party would have paid for the development.

As it is, while it's relatively cheap to obtain the computing power needed to, say, transcode a large library of video to h.264, the licensing cost can end up being something like $2500 per machine used in this capacity. And because of the longevity of patents, it seems unlikely that it will expire before a better encoding option surfaces.

Yeah -- ever wonder why YouTube took so long to convert everything to hi-def, when they have the computing resources of Google available? I think we know now.

I can imagine software patents being a good thing, but not in their current form. Getting rid of the 15-year-monopoly on an ephemeral idea or a mathematical function can only be a good thing for society as a whole.

Re:Can Someone Please Speak English?

You don't need to be "in the know."

The patent office is tired of BS patents for ideas, and is telling inventors that it has to transform a Lumpy Object (to quote Tom Peters) or be part of a process that is inextricably tied to the operation of a machine (for example, a process to get an internal combustion engine to get 100MPG.)

Simply coming up with a software algorithm or something in the abstract won't be patentable.
(And, IMO, shouldn't be patentable. But of course, it's easy for me to say that because I don't hold any patents, least of all a software patent.)

Re:Can Someone Please Speak English?

(And, IMO, shouldn't be patentable. But of course, it's easy for me to say that because I don't hold any patents, least of all a software patent.)

Sure, but for anyone coming from the other side, who does have software patents and is thus in favor of keeping them, all I can say is this: You would be nowhere and have nothing if patents had been allowed in the first thirty years of electronic computing. All the sorting algorithms, all the OS scheduler algorithms, all the compiler technology, all the things you take for granted every day, would have been locked up and all the amazing development that required freely taking these basic ideas as building blocks for more ideas would have faced repeated decade-long roadblocks. The environment in which you are creating your software patents would not exist if they had been able to place those roadblocks to progress just as you are doing today.

So sucks to be you, Mr. Software Patent Holder, but the health and development of the industry requires you to take down your toll booth.

Re:About damn time!

And millions of patent troll voices cried out in terror and were suddenly silenced...