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Patents

What Can Be Patented? 114

Posted by Cliff from the stuff-to-think-about dept.
datapulse asks: "I was wondering what exactly can be protected by a patent? Can I patent an idea or a business idea? I ask this because I've always thought that only a tangible invention could be patented. I have a lot of ideas that I believe could be of very good use but I don't have the capital to put them to work." I'm running this one mainly so we can have a discussion on the true meaning of the "patent" and why so many of us disagree with the idea of software patents. As I understand it: patents were to protect the details of implementations, not ideas, but software patents have blurred this area tremendously. (Read More)

Tom Dunstan is wondering if it might not be a good idea to start up some sort of Patent Watch: "It seems that we only hear about patents (taken out in the U.S., at least) after they get granted. How public is the patent registering process? Would it be possible for the FSF or some likeminded volunteers to keep an eye out at the patents office so that we can make representations on the idiocy of some of the patents being granted before they get given? "
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What Can Be Patented? More

What Can Be Patented?

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  • Patentability (Score:3)

    by Anonymous Coward on Thursday March 02, 2000 @03:11AM (#1232568)
    Speaking as a holder of 14 patents, at least as a chemist you can patent compositions and proecesses. I believe if you patent an idea, you have 1 year from the filing of the abstract (brief) to append the filing with documentation proving the viability of the idea. Meaning , while you can file an idea, you do need to support it with proof, as well as a through patent search of the prior art to show the patent examiner you've done your homework.

  • What the USPTO says (Score:5)

    by Carnage4Life ( 106069 ) on Thursday March 02, 2000 @03:12AM (#1232569) Homepage Journal
    WHAT CAN BE PATENTED

    (Excerpted from General Information Concerning Patents print brochure)
    The patent law specifies the general field of subject matter that can be patented and the conditions under which a patent may be obtained.
    In the language of the statute, any person who "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," subject to the conditions and requirements of the law. The word "process" is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term "machine" used in the statute needs no explanation. The term "manufacture" refers to articles which are made, and includes all manufactured articles. The term "composition of matter" relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything which is made by man and the processes for making the products.
    The Atomic Energy Act of 1954 excludes the patenting of inventions useful solely in the utilization of special nuclear material or atomic energy for atomic weapons.
    The patent law specifies that the subject matter must be "useful." The term "useful" in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.
    Interpretations of the statute by the courts have defined the limits of the field of subject matter which can be patented, thus it has been held that the laws of nature, physical phenomena and abstract ideas are not patentable subject matter.
    A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required.
  • Las should be changed such that an idea shouldn't be patentable if it can be derived by using existing practices for their designated purpose.

    Also, the patent office should be made aware that there a 6 billion people on the planet who could all have a similar idea when granting patents.

  • What is intresting is not only "What can/cannot be patented"
    I'd like to see a discussion (not just on slashdot) about what rights a patent can grant you.

    Should I be able to hold a patent, simply for defensive use? If I don't use the patented technique, should I lose it? Should a patent follow the inventor or the investor? Is it fair how I'll have to pay legal costs to defend my patent against pirates?

  • is the right question, at least WRT the US lately. :(

    I think that patent policy is a very important issue, and I've been concerned since the 1980s that the rising US patent office fees are now being thought of as a direct revenue source. Individuals getting patents (if there are any left!) are poor, and patents are seed-corn for future prosperity. Corporations -- especially non-US corporations -- apply for an increasing percentage of US patents, and a lot of this is because of the higher fees IMO. The stereotype idea of the cash-strapped individual with Einstein-hair (and perhaps Einstein-ideas?) is no longer typical, and it's sad. This effect, combined with a much more promiscuous policy of issuing patents for any-damn-thing, will have profound negative effects on the long-term future of the US. IMO.
    JMR
  • IANAPL ;)

    an original invention or an improvement to another
    (many, many software patents seem to have been awarded by ignoring the requirement that there not exist "prior art" of essentially the same "invention")

    Nonobvious to one skilled in the art
    (Try telling a group of non-computer people that some straight-forward hack isn't really nonobvious to a programmer of ordinary skill...)

  • standard dilemma (Score:3)

    by jetson123 ( 13128 ) on Thursday March 02, 2000 @03:22AM (#1232574)
    Even if you are pretty frugal, you can expect to spend several thousand dollars on the initial application for one patent ("Patent It Yourself" from Nolo Press is pretty good if you want to read about the process). The patent also needs to be renewed regularly. This is in addition to significant amounts of time you are going to spend on it. If you actually want to enforce the patent, you face the question of detecting infringement and going through the legal process (and expenses) to enforce the patent.

    I looked at these issues and decided it didn't make sense for me to patent merely "very good" ideas as an individual--the expense and time are too high, and if I wanted to get something out of a patent as an individual inventor, I would have to dedicate my life to the pursuit of that (no fun).

    Where I find it probably makes sense to get the patents is if there is a specific technology business you want to start; in that case, you may want to get several patents around that business. And if you want to get VC funding, having patents on your basic technology is important.

    Large companies, of course, routinely patent everything under the sun. With a dedicated staff of patent attorneys, a pipeline to the patent office, and a burning need for a large patent portfolio for trading with other companies, it makes a lot of sense for them to patent anything that's patentable, even if it just barely makes the cut (or so the thinking goes, at least).

    I think none of this is particularly fair or beneficial for innovation, but it seems to be the rules people have to play by today.

    In any case, if you think you have a good idea but don't want to go through the expense of patenting it, consider "disclosing" it in the formal patent law sense (in addition to publishing it). That requires little more than a brief note to the patent office. Formal disclosure will protect you pretty well from other people claiming a patent on the same invention.

  • hi, patents was originally meant to do good, but we all know that it's not working right now, as the FSF have already pointed out. i remember one patent. getright. it's patented. i'm not sure why a software like that could be patented. it's just another download manager, that cleverly uses some ftp commands to allow resuming! in fact, those ftp commands were there _long_ before getright was invented. i could do resuming with any old ftp client, even the console based one that came with linux/Windows. i must say that getright is a nice tool but it certainly does _not_ deserve a patent. i read on the news that someone's trying to patent herself (in great britain, i think.) because of all the gene research going on...
  • The problem with this is that very few totally new ideas are ever invented. Invention is a process of evolution

  • Problem as I see it (Score:4)

    by Yaruar ( 125933 ) on Thursday March 02, 2000 @03:25AM (#1232577)
    The patent system has basically been created for technology production at which it is very good.

    If I invent an object I patent that object and therefore I own intellectual rights over it's creation.

    This can also be applied well to the physical process of production, ie how I made it

    The problem now is that patent law is being applied to areas where it doesn't apply

    Take for example software patents. Amazon wrote code for the single click process and that code is theirs. However they patented the process of application rather than the process of production. Basically like if macdonalds patented the idea of taking money and putting it in the till rather than patenting a specific till design.

    I've been thinking about this a lot at the moment. In Pharmacuticals there is a very specific patent system whereby after a certain number of years people are allowed to release the same product freely. Maybe a derivation of this law would be better applied to the software industry, whereby people own the rights to their product for 5 years after which time it becomes freely available. IANAL and I'm not entirely au fait with the process of drug patenting, but I think this could be worked.

    ALthough also with the distinction between production and use. 'Cos Otherwise I'm off to patent the hamburger.

  • Having been through a few patent actions, here are some of my lay-person's "reads" on patents. Patents can be awarded for devices and methods. The system is supposed to encourage the sharing of technical ideas in a public way -- while protecting the rights of the inventor. Patents need to go through a defense before they really have any validity. When you apply for a patent a search is done to try and locate prior art. They use the citations you provide and try and find other references that could disallow one or more of your claims. The process is not exhaustive and any prior mention of an invention or a test, etc. can be used to show that someone else had an idea earlier. You can protect your ideas by filing disclosures on them -- this doesn't give you the right to be able to assert the idea economically, but it would disallow someone else from exercising an awarded patent if your disclosure proceeded the ... (I think) date of application, not award -- lots of date issues in patents that you have to watch out for. We tend to file a lot of disclosures with our lawyers (this costs zip) and keep them in our back pockets to prevent someone from asserting a later patent on us. One other comment -- the real cost comes in trying to defend the patent in court and this is carried out in a normal court room with a normal judge or jury that may not grasp all the technical finery of the topics -- it becomes a teaching show, where the best (most expensive) exhibits can sway the process -- not that we ever went very far through it, we settled -- which most people end up doing rather than give years worth of profits to the lawyers. Disclaimer: these are my opionions, I'm no patent expert ...

  • Thinking aloud... (Score:5)

    by Black Parrot ( 19622 ) on Thursday March 02, 2000 @03:30AM (#1232581)
    The legal basis for patents in the USA is, as I understand it, something along the lines of promoting commerce by encouraging people to share what they might otherwise keep secret in order to retain a competitive edge.

    If that is correct, then the implications are astounding: you should only be able to patent something that others can not observe.

    For instance, suppose you are a musket maker and you start making firearms with rifled barrels. People notice the increased range and accuracy of your work, and it doesn't take a genius to look down the barrel and see what you have done. One cannot, however, tell how you did it.

    So patenting the rifling itself does nothing to promote commerce; indeed, it hinders commerce by keeping other craftsmen from producing the more technologically advanced work. But patenting your technique for rifling the barrels does promote commerce, because it allows licensed parties to start rifling barrels by your method, which otherwise they would not have been able to deduce (unless, of course, it was "obvious to a skilled worker in the field").

    Hence my conclusion: if my understanding of the basic phrasing of the legal basis for patents (in the USA) is correct, and if that written basis was for real (rather than, say, just a nice excuse to justify something that the public might not care for otherwise), then it should not be possible to patent anything observable, whether it be one-click shopping or windshield washers. Patents should only apply to things that would otherwise be trade secrets, if not revealed by the patent.

    Caveat lector: I am not a lawyer. (But I will consider honorary degrees from suitably prestigious institutions!)

    --
  • Looking at what a patent is supposed to do -- protect the interests of an 'inventor' who comes up with a novel idea, it seems that although an 'idea' shouldn't be able to be patented, any novel mechanism (whether it's a device, a procedure, or whatever) should be patentable. Under that, I would say that legally, things like software patents for a truly new algorithm, or even perhaps a novel business approach should be patentable.

    Much of the debate over what patents are legal seems to focus on ones that don't fall under that standard...they're not new ideas, and therefore patenting them is equivalant to stealing. (for instance, the whole amazon patent thing that's been going on.) In those cases, the patents most certainly should not be awarded.

    I for one don't really like software patents and the like, however, i think that releasing those ideas is really an ethical issue for the programmer or company that created it, and they should still have the oppertunity to patent their ideas and use them how they wish.

  • I'm not going to try to compete with the 3rd post on what a patent is or isn't.

    You asked about if ideas could be patented. IANA $WHATEVER, but in general, it seems like ideas would fall under the jurisdiction of copyright. If it's ideas about how to market a product, the end result of that could be considered trademark.

    I'd post more, but I'm off work now and going home. :)

  • Don Lancaster's Patent Avoidance Library [tinaja.com]

    My own personal opinion is that you should only be able to Patent a design or process if;

    You "Chanced" upon it after exhausting considerable Time/Effort/Money (i.e. research discoveries)

    or

    The only way it is obvious, after the fact, to someone in your field would be if they had to have engaged in the same or similar research to come to the conclusion at hand. (i.e. cut down on the "Professional Thinkers" who do little research but patent things in what really amounts to an attempt at what would be called extortion in most other settings)

    Also, merely being the first shouldn't be enough. If two people in the same field engage in the same or similar research, just because one finishes early shouldn't mean all the work is for naught. (Of course as long as it was arrived at independently)

    Maybe then we could get back to the original intent of patents, to promote, not hinder progress.

    Imagining what the world would be like if someone had been able to patent hockey...

    Tom

  • Judging by the latest trend in patenting everything under the sun, I think you can patent everything under the sun except for what someone else has already patented.

    Personally, I think the patenters aren't really patenting things to safe-guard their ideas. I think it's a funky new type of DoS attack on the system that overlooks, approves, and files the patents. "... Dude--if we patent everything we can think of, that'll like... make it difficult for anyone else to patent anything and then we'll crash the patent system! Yeah!"

    /will
  • University of San Diego Patent Info [ucsd.edu]-- a nice collection of resources. They have links to all the information type stuff.

    League for Programming Freedom [mit.edu]-- organization that opposes software patents and user interface copyrights.

    Free Patents [freepatents.org] Pretty much what the name says. Patent reform. No software patents. Etc.

    Patently Absurd [wired.com]-- Great, but old, article from Wired about the Patent office.

    HTH

  • So patenting the rifling itself does nothing to promote commerce; indeed, it hinders commerce by keeping other craftsmen from producing the more technologically advanced work.

    But there is also the "copyright" theory behind patents: that the patent is also a reward for the investment required to develop rifling. Your hypothetical musket maker might have had the lightbulb moment, but that is then followed by a long period of work to find out how to rifle barrels, how much rifling is necessary, what shape of bullet should be used, and all the other details behind rifle technology. If he knew that his competitors could copy his rifles and bullets at no charge then there would be no incentive to make the investment into discovering all the things that make rifles work.

    On the other hand ISTR the "sweat of the brow" theory of patentability has been explicitly rejected. Merely having spent time doing research does not make something patentable. The novelty and non-obviousness are what counts.

    I think that if we want to solve the problem with software patents then we are going to have to come up with an incremental fix to the system rather than revolutionary change. If the problem lies in a land-grab which ignores prior art then call for improved review of software patents and a higher hurdle. Ask that guidance be issued to courts on the subject of prior art, making patents easier to overturn (currently there seems to be a judicial bias in favour of patent office decisions). Don't demand that patents as a whole be abolished because it won't happen.

    Paul.

  • From the information on the USPTO site which I posted it seems that one can patent an idea. It just has to be a well fleshed out and specified idea. This means with drawings and blueprints if possible. This allows for the patenting of a machine,process or manufacture when the inventor cannot afford to build it.
    For instance, there are several patents for devices that have not yet been invented yet. IIRC several oil companies have patents on various electric cars or electric car concepts defensively so as to make development of such cars more difficult.
    Anyway to answer the ask slashdot question, if your idea is concrete enough to be specified in documentation as opposed to something vague like "a website like Amazon but for geeks" then go for it. The patent office does not require a working model or implemntation of your idea to give you a patent.

  • Saw this the other day on Yahoo News [yahoo.com]:

    Woman files patent application on herself

    LONDON (Reuters) - A poet and casino waitress has become the first person to attempt to patent herself, the national patent office said on Tuesday.

    "I can confirm that we have received an application with the title 'myself' from Donna Rawlinson MacLean," the patent office's Brian Caswell said.

    The Guardian said MacLean was angered at the patenting of gene sequences by businesses.

    "It has taken 30 years of hard labour for me to discover and invent myself, and now I wish to protect my invention from unauthorised exploitation, genetic or otherwise," MacLean told the newspaper.

    Caswell said the full details of application GB0000180.0 would be published in 18 months.

    "It is not really worth patenting something unless you make a lot of money from it," he added.
  • This one's a little wierd, but in the current atmosphere it makes some sense: Woman patents herself [excite.com].
  • Software is made up of 0's and 1's, so a computer program is a representation of an integer number. I don't think anyone should be able to become the owner of an integer number.
  • In the s/w world the US PTO is granting patents willy nilly. If you have to deal with patents in your life (as I have to for my work in R&D) you find a large number of obviously invalid s/w patents. There are numerous incredibly trival ones (today I was shown one on the method of loading an image file into a program and compressing it, then compressing it again, sending it somewhere and decompressing. That's it. I'll dig up the patent number if anyone wants it, an incredibly stupid patent, one of the worst I've ever seen).

    Yesterday I came across Microsoft's taskbar patent (US 6,023, 272) [ibm.com] which seems a bit far fetched given prior art in the area (parts of it may be okay though).

    Gregory Aharonian's Bust Patents [bustpatents.com] site is a good place to find things. He's on a (good) mission to fight the stupidity of the US PTO in regards to s/w patents. Help him!

  • The patent system in the U.S. has become almost ludicrously open in terms of what can be patented. Particularly repellent is the patenting of human genomes (who cares about medical research when there's profits to be made: http://www.latimes.com//business/updates/lat_paten t000207.htm). The fact that companies have started patenting things that they didn't even develop, like Amazon or RiceTec(http://www.american.edu/projects/mandala/T ED/basmati.htm) is really digusting. Compared to them, Microsoft doesn't even seem that bad anymore.
  • > Judging by the latest trend in patenting everything under the sun,
    >I think you can patent everything under the sun except for what someone
    >else has already patented.

    People get away with patenting those, too. Witness the two patents (IBM and UNISYS)
    on LZW compression.

  • While I'm not to wild about software patents myself, your reasoning is not really usefull. After all, all ideas can be converted to very large numbers. patents forbid you to use that number, they forbid you to use that number _in that context_.
  • A company called E-pass Technologies Inc. ( http://www.e-pass.com/ )have just filled a lawsuit against 3COM over their PalmPilots.
    They claim to have a patent (dated 1994) "for a multifunction, credit card-sized computer that allows users to securely store a multitude of account numbers, PIN codes, access information and other data from multiple credit cards, check cards, identification cards and similar personal documents."
    Quote taken from the E-pass website !

    Afaik, that idea is older that my HP48 :-)
  • I hope this gets through. It could immediately invalidate all the Genetic patents, and then be immediately invalidated because of prior art (I assume that Ms McLean would also be happy if this happened)

    I loved Mr Caswell's last comment though.
  • I'll try to answer your questions, with the caveat that this is much simplified and should not be taken as actual legal advice.

    The simple answer is that a patent grants you the right to exclude others from making, using, or selling your invention. Note that a patent does not grant the right to make, use, or sell your own invention. This is because your patent may be an improvement upon something else that is also patented. Situations like this are usually called "blocking" patents and are what result in the large number of cross licensing agreements between companies that hold patents in closely related areas.

    You can hold a patent for any reason you want. To keep your rights for the life of the patent (20 years from time of filing in the U.S.) you will have to pay the periodic maintainence fees.

    Unlike trademarks, not using the patented technique will not result in loss of the patent. (rights to a trademark can be lost if it is "abandoned" i.e. not used) However, if you know of an infringer and do not pursue an infringement suit for an extended period of time, you may lose the right to sue that particular infringer.

    Patents are like other pieces of property in that their ownership can be determined by contract. Frequently employees of companies are required by their employment agreements to "assign" any patents that they get to their employer. (Read your own employment agreements carefully, especially if you're doing your own inventing on the side)

    As far as legal fees go, if you have an especially good case against an infringer (i.e. you show that they knew of your patent and infringed anyway) you can generally get legal fees at the end of the suit.
  • Why don't you ask a patent attorney instead of a bunch of know-it-all nerds (myself included) who are going to give you thirty different answers all followed by "IANAL".

    If you're lucky the lawyer will be nice enough to give you an authoritative answer and not bill you $450.

    --
  • It would be interesting to have answers not only about US patent legislation.
    What about Europe, Japan, the rest of America,...?
    --
  • A woman in London, Great Britian, applied for a pantent on her self , the genebag. She said it was a protest against big bio companies but she also saw great posiblities, for selling her genetic matterial. If she gets the pantent she would be a wolking goldmine and geneticscompanies can't protect their investments... But i think she has a point, genes are for everybody and from everybody, companies can't patented them, they can make enhough money by just using them in theire products. Everybody should patent them self... hee a new song.. :-)
  • I wonder what would happen if it were granted; could those individuals whose genetic material is being used as the basis for the human genome project patent themselves, then gain royalties from all derived research? Though if it IS granted then it would just mean that reality makes even less sense than I thought.
  • The fact is if you look at some of the things that have been patented over the years, nearly anything can be patented, whether it works or not -- the emphasis seems to be on "novel" over anything else. What has almost never been part of the equation is "how does this government issued document (the patent) affect the public good?

    The best example of this that I can think of is that IIRC (if I recall correctly) Mercedes Benz held the original patent of the type of "unibody construction" that creates built-in "crash absorption zones" -- greatly increasing passenger and driver safety. But they didn't defend the patent, arguing that some ideas were too important to keep in house.

    What if the USPTO looked at each patent application from the standpoint of "how will this promote/detract from the public good?" and looked at whether or not the patent should be granted and how long a patent could be privately held on that basis?

  • The short lived (1993-4) and generally not too good series "Time Trax" had a credit card sized mainframe.

    This would be a "multifunction, credit card-sized computer that allows users to securely store a multitude of account numbers, PIN codes, access information and other data from multiple credit cards, check cards, identification cards and similar personal documents", and as far as I understand the patent law, Prior art can include fiction.

    Although since a palm pilot is larger than a credit card does this actually apply?

    Note: The actual news item is here [e-pass.com]
  • I notice that the worst prophecies of the LPF have failed to come to pass. Some years ago Stallman said that software patents make programming a "minefield": that every step has a non-zero probability of blowing you up. But in practice this does not seem to have happened.

    Today we have huge amounts of open-source software, but very little of it has been challenged on patent grounds. Even where such issues arise, they usually seem to be known about before the "infringing" software is written. The only minefield case I know of was the GIF patent, and even there the effect on the community was minimal because the owners behaved sensibly.

    And in general patent holders will behave sensibly. In theory Megacorp could sue some innocent Joe into eternal insolvency over a single patent. In practice Megacorp knows that they will never recover even their legal fees, and the bad publicity will cost even more. If Joe is making money from the patent then they will want to come to some licensing deal that leaves Joe in business (no point killing the goose that lays the golden eggs), and if Joe is smart he will negotiate coverage by their patent umbrella as part of the deal. And if Joe is writing free software then litigation gains them absolutely nothing.

    Yes, there are things that could be done to reform patents in general and software patents in particular, but the sky is not falling down.

    Paul.

  • patents can cause strange stuff: one of the stranger ones: Kevlar, a very strong aramid fiber. quite a bit stronger in tensile strength than steel. There are 2 manufacturers at the moment (or up to not so long ago). 1 has the patent on kevlar. However, the process for the creation of kevlar involves some pretty hefty chemicals only allowed in laboratory use, not for large-scale production process. The second company has patented an alternative process for Kevlar. Now they both produce the stuff. They decided the best way was to cooperate, for neither could produce kevlar without the other ones consent.

    //rdj
  • As of last year, pretty much anything that is not "obvious" to the PTO and which has economic value can be patented.

    In State Street Bank [findlaw.com], the Federal Circuit (the US appeals court which hears almost all patent cases) said that a math algorithm alone is patentable if it has an "economic value", i.e. utility, and that such a patent is cannot be stopped for being a mere "business method."

    Then, in Excel [findlaw.com], the same court said that a patent for a binary switch (one or zero) over a telecommunications network which tells you whether two end parties are using the same carrier is not obvious. That firm literally got a patent on "1"s and "0"s, making the Onion's recent article [theonion.com] more on point than many /. postings.

    So, as of now, adding 1 + 1 is patentable, for a commercial purpose not directly shown in prior art. Bell Atlantic later bought Excel for some ungodly amount of money...
  • Why don't you ask a patent attorney instead of a bunch of know-it-all nerds (myself included) who are going to give you thirty different answers all followed by "IANAL".

    Good point. Maybe Andover or VA Linux could spend some of their IPO money and actually pay for some informative content Slashdot.

    Even though I'm not really affected by the software patent issue (I'm an ME), I end up more confused after reading everybody's (non-lawyers) opinions than I would be if I didn't read at all.

  • Bell Atlantic later bought Excel for some ungodly amount of money...

    That was silly. . . my computer came bundled with a copy of Excel. They should've shopped around :)

  • Patents are not made public until they are approved, at least in the United States. I believe I overheard a gripe from a patent attorney I did some work for that in Europe the proposals were made public. The reasoning for this is sound, at least in protecting the potential patent-holder. If my patent for a better mousetrap were released before I had the exclusive right to it, then someone else could develop and put it on the market before I got a chance to. However, if you can prove that you were developing something, you can challenge patents. So they must have a list of cases before the USPTO somewhere which would list just the type of idea up for patent (ie: a software program that writes "foo" in 800 colors). Having someone monitor that would be useful, but how many software patents are issued a year? And could the FSF really say anything that would make much difference? The hearings are mainly to decide whether or not the idea is unique enough to be patentable. Just my $0.02
  • In the language of the statute, any person who ?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,? subject to the conditions and requirements of the law.

    What is and what is not a process is left up to interpretation, of course. Henry Ford patented the assembly line process of manufacturing cars. Is a computer program a process? IANAL, but no, I don't really think so, but the courts have obviously disagreed with my opinion. :) Plus, most software patents have just been ridiculous, for instance, the LZW-77 compression algorithm, the .GIF file format, or the company (I forgot who) that tried to patent hypertext.

    The patent law specifies that the subject matter must be ?useful.? ... a machine which will not operate to perfrom the intended purpose would not be called useful...

    So any software patents Microsoft might have on Windows 2000 would be null and void on that basis? :)

    Interpretations of the statute by the courts have defined the limits of the field of subject matter which can be patented, thus it has been held that the laws of nature, physical phenomena and abstract ideas are not patentable subject matter.

    I should point out that the USPTO has been granting patents on genes and genetic sequences in DNA. People have been buying them up left and right hoping that researchers will find the cure for cancer or AIDS in the gene that they bought.

  • ... "blocking" patents and are what result in the large number of cross licensing agreements between companies that hold patents in closely related areas.

    Yes, the "old" industries are very used to play this game. They always make sure to have lots of patents to trade for their competitors patents. Therefor they can coexist happily, keeping *new* competitors out.

    As far as legal fees go, if you have an especially good case against an infringer (i.e. you show that they knew of your patent and infringed anyway) you can generally get legal fees at the end of the suit.

    ... Then again, if the infringer has deeper pockets than you, you might be out of business years before the case is settled. Even megacorps have a hard time defending their patent pool. If you are a little guy, forget it.

  • I think this is an interesting bit of history; I may be mis-remembering some details, but: Traditionally, one can patent "inventions" but not "discoveries". I.e., you can patent the telephone, but not the law of gravity. Or as another poster already phrased it, you can't patent laws of nature.

    Traditionally, the legal system has considered mathematical theorems to be laws of nature. I.e., theorems are discovered, not invented. So, for example, you can't patent the Pythagorean theorem.

    But, as we all know, some mathematical theorems lend themselves particularly well to becoming algorithms. For example, in 1984 when Karmakar discovered a faster way to solve linear programming problems, his employer (AT&T) wanted to patent the algorithm.

    But back then, patenting algorithms wasn't allowed, so instead AT&T patented a design for a piece of _hardware_ that execute the algorithm. Because patent law doesn't allow you to "cheat" by creating a too-similar device, that patent therefore also prevented people from implementing Karmakar's algorithm in software -- unless you pay for licensing to AT&T, of course.

    At that time, mathematicians worldwide were a bit up-in-arms about the whole thing. "This is outrageous! All progress will cease if people are allowed to patent theorems!" And, of course, a few years later, the software world is finally coming to the same conclusion.

    Finally, I think it's interesting that when you take a Philosophy 101 course, the question as to whether or not "Platonic ideals" actually "exist" somehow is considered to be a very academic question. No practical applications. But if you think about it, this question is really at the heart of our debate. Did Amazon.com "invent" one-click ordering, or did they "discover" it? I.e., did one-click ordering already exist as some sort of Platonic ideal? If the latter is true, then clearly Amazon (nor others) should not be allowed to patent such ideas, because the ideas were _discoveries_, not inventions -- and patents are intended to cover inventions...not discoveries.

  • The whole system of patents is pretty much dead on its feet. Whilst patents are granted to everyone with an obvious idea, ppl with genuinely new ideas are often stiffed by the process.

    For starters, the patent office aren't expert in their field. They can't be - they're employed to watch, not to actually _do_, so they're always playing catch-up with the state of the art. If nothing's been patented before on a subject, then they don't know about it, regardless of the fact that the world and his brother may have been using it previously (witness Amazon).

    But there's also the problem of what a patent _doesn't_ give you, which is any protection at all to the little guy. If you've invented a radical new idea, you have to spend thousands patenting it (and you have to spend that money in every country - it doesn't transfer), and all that gives you is the right to spend more money on lawyers if someone steals your idea.

    A case in point for this is James Dyson, the Brit inventor who came up with the bagless vacuum cleaner. He was originally in talks with an American company for them to make vacuums with his patented idea. They turned him down, but carried on to use his patent in their stuff without paying him, secure in the knowledge that he couldn't match their lawyers. He did actually sue them, and won, but it nearly bankrupted him - it cost him around £200,000 (that's about $300,000) which was just about all his savings and venture capital, and it took 2 years to get a result.

    The other thing is business ideas. I don't think there's any way Amazon's affiliate patent can be upheld - all they're doing is transferring an existing idea from the real world into the electronic arena. This isn't an original invention any more than I could claim to have created an original painting by copying an existing one and using different colours.

    Basically, what we need is a patent system with teeth. Frivolous patents (like Amazon's) should be chucked out immediately, but real new ideas should be backed up with law. And there needs to be quick resolution of patent disputes, FUNDED BY THE PATENT OFFICE. If both sides pass their information to a third party at the patent office, and he makes a decision based on that information AT NO COST, then we're sorted. Or possibly make both sides lodge a deposit which they'd lose if the patent office decided they were making a frivolous complaint.

    Any thoughts?

    Grab.

  • I belive Volvo did the same with the three point seat belt.

    Although I belive the patent has now "run out" they basically let everybody use it royalty free.

    I wonder if Ford, now that they own parts of volvo, would have done the same?

  • I once read or saw a SF story where some lady had some interesting genetic makeup. She ended up having to have guards 24 hours a day for fear of being chopped up finely to sell as samples to Bio companies.
  • The upside is: those people who can't grasp modern technology can still have useful lives as lawyers and civil servants. So whilst they are all sueing each other we can get on and build more cool toys for them to argue about. Look on it as a public service.
  • The thing is if you asked a bunch of Patent Lawyers they would also give you the same variety of opinions as a bunch of geeks on /. and probably not as immediately understandable.

    And bill you as well of course.

    That's why things end up in the courts.

    I thought IANAL meant you take it up the ... Yep, both meanings are congruent.

  • The problem is not what can and will be patented in the US but rather what can and will be fought for in the US legal system.

    The patents held by US companies are worth nothing abroad, but they still try to fight them under US law.
    When a product is availible the world over can a US patent holder fight a european developer, is this legal? moral? how about if I say my software is not for us in the US ( and other areas with patents in effect or pending) and someone uses it there, am I at fault? is the user at fault or the patent system? This one would effect me because if, for instance, I develop some software that uses GIF's, I think the patent is invalid in the UK, and I then distribute this software with the condition it is not to be used in the US (etc) if it is could unisys come knocking on my door?

    sparkes
  • If you want to get really technical. Everything is just made up of atoms. Software could be viewed as a flow of electrons. Which would fall under the 'gift of nature' claus. Which would make th genetic engineering point about prior use a valid point.
  • ... Then again, if the infringer has deeper pockets than you, you might be out of business years before the case is settled. Even megacorps have a hard time defending their patent pool. If you are a little guy, forget it.

    ....Then yet again, if you have a case good enough where legal fees are likely (even better if you can show that the infringer did so willfully and therefore are eligible for triple damages) you'll likely find a firm willing to take the case on contingency.

  • If that is correct, then the implications are astounding: you should only be able to patent something that others can not observe.

    Not necessarily. The patent allows you to place information about the invention/process in the public domain yet still reap the benefit of a monopoly over same.

    Most patent lawyers probably would have advised the inventor in your example to patent both the rifling itself and the machine to do it. Assuming of course the machine to rifle a barrel could be patented. (i.e. not prior art etc.)

    You would think the US patent office would attempt to either educate the patent staff or advertise for a knowledgeable review board to review software patent applications before granting them...
    ....Paul
  • I kind of agree with you about the uselessness of my point, I just wanted to make a ridiculous statement.

  • In the s/w world the US PTO is granting patents willy nilly. If you have to deal with patents in your life (as I have to for my work in R&D) you find a large number of obviously invalid s/w patents. There are numerous incredibly trival ones (today I was shown one on the method of loading an image file into a program and compressing it, then compressing it again, sending it somewhere and decompressing. That's it. I'll dig up the patent number if anyone wants it, an incredibly stupid patent, one of the worst I've ever seen).

    My understanding is that the patent examiners are required to be engineers. It's not that engineers can't be wise in the ways of programming, but I don't think that the patent office has been hiring these programmer engineers. In order to be effective, the patent office needs to keep up with the day-to-day changes in the software industry. They need someone who understands what is obvious in programming and what is truly innovative. I believe that the fact that the patent office hasn't recognized this need is the root of the problem.

    Then again, there's the patent granted in the 90's on using a laser pointer as a cat toy (can't find the patent number right now).

    -Jennifer

  • redd wrote:
    Las should be changed such that an idea shouldn't be patentable if it can be derived by using existing practices for their designated purpose.

    Also, the patent office should be made aware that there a 6 billion people on the planet who could all have a similar idea when granting patents.

    You see an incredible amount of nonsense every time the topic of patents come up. This nonsense is, I believe, based on a fundamental misunderstanding about the purpose of patents, and the process of getting a patent.

    Now, I can't match the gentleman with 14 patents (I only have the one and it's still pending so I may not even have that) but anyone who's ever filed a patent knows that the first paragraph is nonsense because the law already forbids granting patents on inventions that are "obvious" to someone "skilled in the art". The only problem, and I don't think that it really is a problem, is that the definition of "obviousness" isn't, well, obvious. In particular, what may be obvious to an inventor is not necessarily obvious to the rest of the universe.

    As for 6 billion potential inventors, well, that's not something that is all that important to the patent office, and here's why: patents are not about monopolies, patents are about disclosure. When you are granted a patent, you have proven to the patent office that your invention has not been invented before, that it satisfies a real need, that it's not an obvious modification of an existing invention, and that you have described it well enough so that anyone who knows generally what you know could build one.

    The limited monopoly that you get is the bait they use to get you to tell the world how you did it. If everyone in the world comes up with the same idea simultaneously, then disclosure is obviously not needed and the patent could probably be challenged on those grounds.

    Knowing that the disclosure is the important thing also leads you to a realization of how to do the patent equivalent of the GPL. To do that is simple and doesn't cost anything: You simply publish your invention in sufficient detail that someone who knows how to do what you know how to do can duplicate it. (Perhaps the FSF could create a mechanism for the publication of free inventions to reduce the effects of software patents.)

    As long as the anti-software-patent crowd focuses on the monopoly granted by patents, nothing will change because nobody involved with patent policy has much concern about the monopoly. However, talking about the disclosure aspect and how disclosure of software inventions will happen even in the absence of patents, might get the powers that be to consider a policy change.

  • GPL for president!
    Oh wait, the GPL is not the solution for everything.
  • I saw this article at the Chicago Sun Times today, March 2nd [suntimes.com] and it shows the lengths someone has gone about getting a patent on herself.

    -m
  • Someone has already mentionned the maintenance of an FSF organisation to defeat ludicrous patents, and some kind of "patent watching body" that will watch patents being applied for so I've had this idea,

    The FSF runs a "prior art forum", where every time you get a good idea, no matter how trivial, you jot it down in some kind of online form. There it's stored, open, with date and author. If someone tries to create a patent on such an "invention", our "patent watchers" can raise the alarm and inform the real "inventor" who can claim the patent him/herself.

    If a disclaimer that any ideas entered into the database are granted to the public domain, (or even patented for the FSF) then the FSF will eventually be able to accumilate a rather large portfolio of patents for use in the protection of the GPL against corporates!

    waddaya think?
  • I know I'm not contributing to the discussion but I just wanted to say that after reading comments on this altercation I've been inspired to patent a program that I recently wrote. I was contemplating filing for a provisional patent but after listening to the discussion contributed by slashdot nerds, I have decided that the idea/design has potential for a full patent. And who says slashdot doesn't make a difference? Great topic. Slashdot never ceases to amaze me.
  • check this link [excite.com] about a woman that want to patent herself, i submitted it as a story two days ago.
    --
    BeDevId 15453
    Download BeOS R5 Lite [be.com] free!
  • The goal of patents is the generation of Synergy .
    • The inventor has to communicate every single aspect of his idea in the patent specififation - otherwise, he/she won't be granted the patent. Therefore, she/he obtains the sole right of financially profiting from her/his idea for the next 20 years.
    • The rest of the world can use the knowledge, manifested in the patent specification, to come up with new ideas, which eventually might lead to new inventions and an increase of the overall technical knowledge in the world

    I do like the basic principle of the patent law very very much. Regardless, wether software patents are good or not, I could live with software patents if those 20 years would be reduced to a couple of years.

    Anyways, everything that is state-of-the-art at the time a patent is filed can't be patented any more. Couldn't this be used by opponents of software patents to get rid of software patents? If everybody would publish her/his ideas on the internet this idea becomes part of the state-of-the-art immediately and can't be patented anymore ;-)
  • "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"

    IMHO: I think the keyword here is NEW. It means (at least for me) you cannot patent the wheel. When patents over LZW, one-click orders, Y2K windowing fix, etc where granted, they were already in use on many websites, i.e. they were NOT NEW.
  • The largest problem facing the Patent Office is not that they are dullards, but that many are not skilled software designers or technicians. They are engineers, from the classical engineering fields of Mechanical, Electrical, Industrial, Civil, etc. They do not have the technical expertise or knowledge to tackle the software side of patents.

    A second problem, which merely compounds the first, is that many patents may be originally prepared by technicians, they are definately edited by lawyers. Most patent applications seem like a 21st century Dante's Inferno of legalise and consultant-speak. It takes a bit of time to simply read one of these, mustless decipher their technical details.

    Finally, other than litigation, there is no actual process to handle post-award complaints or patent infringements. This favors the business with the largest pocketbooks, and then the only real winners are lawyers. What the patent process needs is a seperate entity from the businesses involved, to act as an arbitrator for reviewing of awards for prior-art or non-patentable technology. This could even be the PTO itself, because it has no real reason to find in favor of one side or the other.

    The process of disputing an awarded patents could require that the entity which brings the dispute, provide any research or evidence to dispute the award. This would keep the PTO from spending all of its time reviewing disputes, but not stop valid disputes from being brought up because of high cost, by making the majority of the cost being time involved.

    ---------------------------------------------
  • The word ?process? is defined by law as a process...

    The term ?useful? in this connection refers to the condition that the subject matter has a useful purpose...


    Does this actually make things clearer? Maybe it's just too early, but yeesh...

    --
  • What I want to do is create a very bare bones next level OS (I'd tell you about it, but I'd have to kill you), patent this barley working beta, and then sell it to Microsoft when they get wind / think of this new OS style on their own. Can I do this?

  • On the other hand ISTR the "sweat of the brow" theory of patentability has been explicitly rejected. Merely having spent time doing research does not make something patentable. The novelty and non-obviousness are what counts.

    If you're right, I would think that blows away the Fraunhofer MP3 patent.


    ---
  • According to this article on ABCNews.com, an English woman has attempted to patent herself. Supposedly she is angered over British companies vying for patents to specific gene patterns, so she's patented her own gene pattern to "protect [her] invention [(her genome)] from unauthorized exploitation, genetic or otherwise."

    Freakin' crazy. What would be funny is if they found some important genetic sequence that she possessed that cured cancer, or something like that. And this lady wanted royalties or whatnot... Interesting times we live in

  • A patent must satisfy the following requirements:
    • it must be an invention (e.g. discovery of laws of nature or mathematics don't count)
    • it must be novel and nonobvious
    • it must be useful (there is a more restrictive patent for purely decorative designs and art)
    It used to be the case that software and business models were held to be like mathematics, and so was considered unpatentable. Patent lawyers spent considerable energy translating an otherwise unpatentable innovation into patentable forms.

    This changed when a couple of bad lawyers mistakenly filed important patents without masking the hardware as software, the business model as a machine, etc. They got lucky, though: supreme court decisions reversed the prohibition against software patents, and (interestingly) held that there never was a prohibition against business model patents.

    Today, all useful innovations are potentially patentable. The difficulty of getting a patent, and, much more importantly, having it upheld, depend on the novelty and nonobviousness of the innovation.

    doug.
    ridgway@winehq.com

  • I've been advocating this for some time, and would love to see the FSF do it. I'd prefer it not be limited to software concepts, either- science itself is beginning to chill from the effect of patents and intellectual property.

    The one mistake here is this: you say the FSF would be able to accumulate a large portfolio of patents. That is incorrect and would also be phenomenally more expensive, wasteful, and ineffective for the desired purpose. The FSF is not _about_ hoarding and propagating restrictive intellectual property! That's appalling.

    Instead, what I'd LOVE to see is the FSF maintaining such a database, for people to file anything they can which can be written in the form of a patent (i.e. detailed and explicit). The database would be broadly, publically accessible, but more importantly, there _is_ a substantially cheaper means to file a claim that a thing is in the public domain. It might still be costly for inventive but broke programmers living on Ramen, but it'd be well within the ability of the FSF to cover this cost for the idea donators.

    Once an idea is filed with the patent office in this manner, it is _formally_ not available for a patent. I think this mechanism was originally intended as a block while a company got together a formal patent, but it's just sitting there waiting to be used by something like the FSF. Not only is it explicitly a public-domain-maker, patent-blocker by express design, it is also substantially cheaper than filing a patent! It'd be a terrific resource.

    Please, FSF, start doing this! Hunt down the proper forms and arrange with somebody like SourceForge for the web space and bandwidth and throw open the doors for inventors and programmers to file ANTI-PATENTS, free for anybody to use with the one restriction being you can never file a patent on the things. It's the IP version of the GPL, complete with using the mechanisms of the patent process against itself. Please?

  • Actually, I know some patent examiners and patent lawyers and... em, you're right. :)
  • Interestingly, what actually happens is this: progress does slow somewhat, but does not cease. It does, however, become illegal :)

    For a change, it's easier for poorly-funded individuals to be illegal in this manner, and harder for big corporations and businesses to get away with it. So, interestingly, this might prove to actually be a mechanism to hurt large corporations and bullying businesses. Their very nature means they have nowhere to hide from the patent-oriented attacks of other large corporations and bullying businesses. Meanwhile, poorly funded individuals can, to some extent, completely scorn and ignore the patent system and just play the odds hoping to not be made an example- if caught, the thing to do would be to roll over and play dead and erase all your (GPLed, and widely mirrored) software and bow out of mailing lists and communities for a time. "Me, an intellectual property criminal? I _never_ coded that toolbar that is like the MS patent! It was a bunch of us over CVS at a server that used to be around at the time. No, I don't remember who else was there. It was dark ;) Yes, I'll erase my copy and turn in my copy of the illegal crime tool 'egcs' to the police... *whistles innocently*"

  • If you go to the USPTO website, you will find there are several job openings for people in computer science to help establish the legitimacy of patents. If the jobs are available, that means they are not filled oddly enough. Which means we don't need a patent watch any more than any other industry, we need some people to apply for the damn jobs!

    I don't have the experience they require and I abhor filling out the 99 forms they want you to fill out to even get considered, or I'd do it.

    Esperandi
  • On the other hand, I believe that some car company has the patent on a center headlight that turns with the streering wheel (to illuminate turns better) and just isn't making cars with them. Seems strange, I have to hunt up the facts on that little semi-legend.

    -Kahuna Burger

  • all patenets are bad. while software patents and busisness model petents are by far the worst - they are just taking patents to their logical conclusion. At a fundamental level, patents are just another controll on copying peoples behavior. They have no natural limit, only a government imposed limit. TO assume that the government creates property rights - is a big mistake, we did it with slavery and now were doing it again with patents and copyrights. (don't flame me, slavery and patents have nothing to do with each other in terms of human treatment, but it is definitely a valid argument showing the difference between philosophies where one side believes that property rights exist without government, and government is created to secure those rights, or the other side that suggests that governments define property rights and anything they define is fair gain)
    while it can be debated wether patents produce an incentive that leads to creation that may not have happened otherwise, patents definitely restrict people from using creations already out there to the best of their abilities, which in some cases like medical equiptment or auto safety can lead to uneeded deaths.
  • As you have implied, software patents for the most part have not gone to hell because people are refusing to enforce them in all cases. Of course this presses the issue. There is no need for such harsh patents if reasonable people won't enforce them anyhow. Having them out there like that is just a time-bomb waiting to explode.

  • Re:Thinking aloud... (Score:3)

    by Arandir ( 19206 ) on Thursday March 02, 2000 @10:30AM (#1232663) Homepage Journal
    If that's the case, that patents should only be applied to trade secrets, then why patent at all? Why not skip the whole patenting process and to straight to licensing the trade secrets?

    Rather, the purpose of patents to to protect original innovations that can be easily seen or deduced by experts in the field. If you take a look at mechanical patents that are not processes, this is readily apparent. The phonograph was an innovative idea, but without a patent, anyone skilled in tinkering could have reproduced one by examining a copy.

    The problem with software patents is not so much that they are patented (though many are downright trivial), but that the patent terms are so long for such ephemeral products. LZW was innovative when it was introduced. However, it hardly deserved such an extended patent period.
  • unfortunately most people don't realise that people are just bringing patents to their logical conclusion. it reminds me of the early america where slavery started out as a short term indentured servitude that could not be inherited, but as time went by and technology inceased it became harder and harder to secure wealth doing things the same ole way, so likewise the restrictions realting to slaves got harsher and harsher as they tried to squeese more juice out of a dying way of life. It even seemed to be pretty effective, that is, until the bitter end.
  • Get your facts right before ranting, please. There's no such thing as a LZW-77, or a .GIF patent.

    LZW (without the -77 posfix), is LZ78 made usefull. This was patented by some big bossy corporation whose name we all know and I don't feel like repeating here.

    The GIF file format uses LZW for compression. But as LZW is patented, the patent-owner started sueing users of the GIF format.

    --
  • A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required.

    I hesitate to question the USPO's documents, but here is a distinct counterexample: Richard Feynman (in his essay _I Want My Dollar_) describes an amusing diversion that happened to him and other scientists at the Manhattan Project. While trying to make plutonium, they were asked to submit any useful non-military applications of nuclear power. Ol' Rich was umm...amused and made some suggestions....he realized that nuclear power could drive an engine and thus be glommed onto any vehicle; i.e. airplane, boat, submarine. He thought nothing of it at the time. But several weeks later, he is informed that the patentable idea of the nuke-powered submarine is his, and for his efforts he receives $1. Wee-ha.

    In his usual irreverent manner, he then requests payment of his dollar, and then tells all his friends that if they submitted useful ideas, they each get a dollar too! And of course his bosses hadn't actually PLANNED to compensate these scientists!

    So while $1 may not be such a big deal, why would he be compensated for a patentable idea if he never bothered to actually build a nuke sub?

    ~svoboda

  • Go to Google [google.com] and search for Tucker Automobile. You should find enough to keep you busy the rest of the day.
  • Having said that, the USPTO is obviously (to me, anyway) been granting patents for things that are way beyond "useful", "process", "machine". Go to http://www.patents.ibm.com & check out US Patent # 5443036, titled "Method of exercising a cat." Basically, someone with too much time and/or money patented using a laser pointer to play with a cat.

    Somewhere along the line, the folks involved with the Patent Process (has this been patented? Maybe I should submit.... :-) have lost sight of what patents are for. Leaving the door wide open for one-click and its ilk.
  • The problem is that this offers no protection to those who originally come up with truly new ideas. No company would have any motivation to develop innovative new products, if that product could easily be cloned by a larger, more established company. In essence, you're giving more power to the current mega-corps and monopolizers than they already have. You're weakening the big corp's current ability to step on people, but you're also taking away the protection that smaller innovators have from being stepped on. The tradeoff definitely wouldn't be worth it.

    I think the best approach to stopping the truly ridiculous patents is to have a public watchdog on tech patents in process (as mentioned by others), and to fight based on obviousness and prior art.

    Another approach would be to question whether economic business practices can be patented, as opposed to product concepts and production practices. Both the one-click and affiliate systems seem to be set much more heavily in terms of business behavior and contracts, rather than technology. It's like a slightly more complex version of patenting the process of accepting money for goods!

  • Section 101 of the Patent Act provides:


    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.


    That's 35 U.S.C. section 101. Section 102 provides more detail on the novelty standard, and Section 103 lays out the unobviousness standard. There are some other provisions, but these are the key ones. The Courts have provided substantial gloss on this, and have added some judge-made limitations on the scope of a patent as well. Among those limitations recently abrogated was the business methods rule and the broad construction of the mathematical algorithms rule.

    It is clear that you can't patent an idea in the abstract, but you certainly can patent an implementation of an idea. Two recent cases are well worth reading if you have an interest in this area. One, AT&T v. Excel [emory.edu], dealt with a very simple software solution in telephony involving a straightforward data structure. The Federal Circuit held that it was patentable under Section 101.

    There, the Court noted


    The Supreme Court has construed 101 broadly, noting that Congress intended statutory subject matter to "include anything under the sun that is made by man." See Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980) (quoting S. Rep. No. 82-1979, at 5 (1952); H.R. Rep. No. 82-1923, at 6 (1952)); see also Diamond v. Diehr, 450 U.S. 175, 182 (1981). Despite this seemingly limitless expanse, the Court has specifically identified three categories of unpatentable subject matter: "laws of nature, natural phenomena, and abstract ideas." See Diehr, 450 U.S. at 185.


    As applied to software, the Court noted that


    [u]npatentable mathematical algorithms are identifiable by showing they are merely abstract ideas constituting disembodied concepts or truths that are not 'useful.' . . . [T]o be patentable an algorithm must be applied in a 'useful' way." Id. at 1373, 47 USPQ2d at 1601. In that case, the claimed data processing system for implementing a financial management structure satisfied the 101 inquiry because it constituted a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result.'"


    The State Street Bank & Trust Co. v. Signature Financial Group, Inc. [emory.edu] discusses in some depth the business methods exceptions. These are the key cases, and essential reading for anyone who really wants to understand what is going on today with respect to the patentability subject matter standards.
  • FYI: the "cat toy" patent referred to is here:
    Patent 5,443,036: Method of exercising a cat [164.195.100.11]
  • A Patent I came up with when thinking about it for a moment: DoS attacks add more if anyone thinks of one
  • First is PRIOR ART. The patent office will delude you with stuff they cosider 'PRIOR ART'. These may or may not have anything close to what you have. It is your job to disprove them. Next is attorneys fees. $5k - $10K for each patent is not unreasonable. Time. After each filing you may have to wait 6 months for an answer. In the software business 6 months is the equivalent of 20 dog years. Be prepared to be frustrated. If you feel you have a idea that is worth all this, go for it. If nothing else, being a patent holder is definitely good on the resume'.
  • Don't lift that curtain! There's a song underneath!
  • Firstly, I am not a lawyer, nor am I a patent agent, so trust nothing I say, and please tell me of any misconceptions I have. I know something about patents because the topic interests me.

    Right some fundamentals first, in general, ideas and processes that are in public are assumed to be in the public domain. However, most countries have recognised that this means that someone who invents something will keep the process of construction a secret, and possibly the invention itself, unless they are assured of protection. So the patent laws grant a limited monopoly to the inventor - I think 17 (not sure of this) years in most places with the understanding that the inventor will place the details in the public domain. So now you see why it is that the original idea was that processes are patentable and why they should be embodied in some physical device, like a machine. This monopoly grants the inventor the sole right to control use of the process. That is, the inventor can deny anyone else the use, whether they want to use it in making copies of the invention or in inventions dependent on the original invention. Usually the inventor will make a deal for use of the patent and gain a royalty. Hmm - can you see the use of patents as an offensive weapon between companies, and hence the litigation.

    To determine whether an invention should receive this protection the inventor files a description of the invention together with a description of the process with the patent office. Now it should be clear why the patent office does not release details on patent applications until the patents are granted - protection of the invention. (I believe that there is now some discussion about releasing the details of patent applications 2 years after submission in an effort to stop people exploiting the system to reign in submarine patents.) And now you can see why the idea of a patent watch is probably unlikely to work.

    Applications are filed using a formal language (much like, say, IDL is a formal language) and hence the difficulty in understanding them if you are not trained in the language. One of the requirements for granting an application is that the invention be non-trivial and non-obvious to anyone skilled in the art. Now you can see why some daft patents are granted - if the Patent Office does not have people skilled in the art, then they will inevitably grant some unreasonable patents. Also, to this end inventors are required to list Prior Art - that is ideas and inventions in the same area. So one of the questions that the Patent Officer has to decide is given the prior art, is the invention obvious. Oops - you can see what the omission of some important prior art could mean. Now it's not in the inventors long-term interests to miss an important piece of prior art since in the long run, their patent is likely to be knocked down - witness the Windsurfer. On the other hand under the US patent system, AFAIK, the only way to challenge a patent is through an inevitably expensive and time-consuming legal battle. Hmm, so you can see why you may get companies taking a chance.

    Okay - so now for about a hundred years you could only patent processes embodied in machines. In most places that meant that if you wanted to patent a computer program you had to embed it in some sort of hardware, and make it part of a process. So it was possible to patent software, but only in a roundabout way. Then in a remarkable move, the US patent Office decided in 1992(?) (as a result of some court cases and various PTO decisions) that software was patentable.

    More recently (1980) the US Supreme Court has held that an organism is patentable, and subsequently in 1987 US PTO issued a ruling that all genetically engineered multicellular organisms are potentially patentable. This in turn has lead to the patentability of gene sequences. Now this is quite a leap. From a process being patentable, now it is simply enough to read a gene sequence (using a machine that you could have in your bedroom) and get a patent on that sequence, without knowing what it does or how it can be used.

    This has lead to a dramatic rush to map the human (and other) genomes and to patent anything and everything. This also leads to some unsavoury side effects - if the sequence is found in you, then you may be in breach of patent laws, and may have to pay a royalty to the patent holder. I'm not sure how they would deny you the use of the invention that they hold a monopoly on - but as US law stands at the moment they probably could. Certainly they could deny you the right to sell a body part. I'll conceded that this is an extreme view, and there have been statements that human beings are excluded under the US 13th Amendment, forbidding slavery. However, the parts of humans, for instance genetically altered human genes, tissues, cell lines, organs are potentially patentable. and the US Supreme Court has held that if a cell line is created from your cells, and patented, you have no ownership rights to the invention - John Moore vs UCLA.

    [Digression] In a similar way to the problems with software patenting, allowing patents on biological machines - i.e. organisms - has lead to the granting of, for instance, patent rights over all human blood cells which have come from the umbilical cord of a new-born child where they are used for any therapeutic purposes. This, extremely broad patent was granted to a US company by the EU Patent Office.[/Digression]

    In most the rest of the world the same basic rules are followed. In the US, the first inventor receives the patent. In most the rest of the world, the first to file gets the patent. So you can see the excellent potential for litigation in the US. Hmm, I wonder if the system was designed by lawyers, or am I being cynical. In most the rest of the world software is not patentable. Though this may change - the European Union (a trading block bigger than the US) is concerned about the software patent situation, and considers that its companies may be at a disadvantage. There is a draft directive (the method by which laws are brought into existence/or harmonised in each of member countries of the EU so that they have the same effect across the EU) which was due to be voted on last year - making software patents legal - but there is still discussion about whether s/w patents are desirable, and the directive has been held back. Fairly predictably, on the whole, large companies are for the idea since it make barriers to entry higher, and smaller ones and individuals are not. Actually the current laws in member countries in the EU allow patenting in some places, but not others.

    Even more recently the US patent office has held that business models are patentable. That is - if you invent a new way of doing business - say for instance holding auctions on the internet - you can patent this. I don't think that business models are patentable in Europe.

    It seems that the US patent system is moving towards the POV that anything new and worth money is patentable. Or they could be taking a strategy that these decisions should be tested in court.

    So your answer. Pretty much anything new is patentable in the US. But not in the rest of the world, though it may become so.

    Costs. Patenting is expensive. It costs tens of thousands of dollars (hundreds of thousands?) to patent something world-wide - you have to patent in each country, which means new documents - more fees for patent agents - searches - translations and much more. There are some shortcuts - for instance in the EU you can apply for an EU wide patent rather than applying in each country.

    Acknowledgements - Some material comes from Jeremy Rifkin - the Biotech Century - an excellent book about which I will write a review for /. some time. Other material from Property of the Mind an essay by Jeffrey P Cunard, part of The Future of Software, Edited by Derek Leebaert. I would recommend reading this to anyone interested in software patents. TFOS is another superb book, which I think has been reviewed on /. Let me know if I am wrong, and I may write a review.

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