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Courts May Revisit Software Patents 259

An anonymous reader writes "It looks like the courts may finally be gearing up to overturn the ruling that opened the floodgates for both software and business model patents. It's been nearly ten years since the US courts decided that business methods were patentable and that most software could be patentable — and we've all seen what's happened since then. With all the efforts to fix the patent system lately, it appears that the court that originally made that decision may be regretting it, and has agreed to hear a new case that could overturn that ruling and restore some sanity to the patent system."
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Courts May Revisit Software Patents

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  • by FyRE666 ( 263011 ) on Monday February 18, 2008 @09:52AM (#22462932) Homepage
    Think of the people that patents DO benefit... I'm thinking any lawyer fighting to abolish patents won't exactly be pushing themselves to win the case...
    • by Anonymous Coward on Monday February 18, 2008 @10:00AM (#22463020)
      Except for the EFF lawyers. Those are the only ones I would trust they will try to win this case.
      And how about the lawyers of companies who have been hit severely by the current situation?
      • by PatentMagus ( 1083289 ) on Monday February 18, 2008 @12:54PM (#22465232)
        Why wouldn't the lawyers fight hard on both sides of the case? That's what they are paid to do. Court cases that shift around the boundaries of patent law do not hurt or help "the lawyers". It just changes where the fighting is but there will still be fighting.

        For example, the recent KSR v. Teleflex case changed the rules on obviousness. That created lots of work. Suddenly there were new arguments to make in seeking new patents. There were also new arguments to make in invalidating old patents. Lots and lots of work.

        The only way us patent lawyers would actually loose is if patents were outlawed.
        • by fyngyrz ( 762201 ) * on Monday February 18, 2008 @02:02PM (#22466120) Homepage Journal

          The only way us patent lawyers would actually loose(sic) is if patents were outlawed.

          Yes, that's what we're all hoping. Software patents were a terrible, stupid idea. The hope is that the court will overturn the ruling that allowed them, and that patent lawyers can go back to just buggering up the hardware side of things.

          • Re: (Score:3, Insightful)

            Well, OK if it works for you. I became a lawyer because I was tired of making other people rich. They got a new lexus/house. I got a new project w/ artificial deadline and a new t-shirt.

            I guess that many programmers will be anti patent for a number of reasons:
            1) No residual income (like what hollywood writers get)
            2) Poor patent quality - some really shitty patents get approved.
            3) perceived poor patent quality - not knowing how to read a patent yet forming a strong opinion
            4) arrogance - belie
            • sotware patents (Score:5, Insightful)

              by falconwolf ( 725481 ) <falconsoaring_2000@@@yahoo...com> on Monday February 18, 2008 @03:00PM (#22466834)

              I guess that many programmers will be anti patent for a number of reasons:

              You left out the biggest reasons to oppose software patents, they stifle innovation and they lockout others who come up with something innovative.

              Falcon
            • Re: (Score:3, Interesting)

              by Maxo-Texas ( 864189 )
              I'm against software patents because many trivial and obvious things like caching a screen to speed display, maintaining data in an array, then in a linked list, having a "table of contents" to disk data, compressing redundant data are all patentable.

              The net result is that until all those patents expire, the entire software industry is basically paralyzed and can be waylaid at any time for huge fees.

              Software development has *always* relied on code reuse. The question is what amount of code needs to be writ
              • Interesting idea (Score:3, Interesting)

                by Peaker ( 72084 )
                I am not sure if its a good idea, but it could be an interesting idea, with a small refinement.

                Just as you say, you can "blow up" the code to 50,000 lines, but you can also blow up machine code and surround it with NOPs, or just make it extremely inefficient.

                If, however, you move the burden of proof to the challenger, and he can implement the essence of the patented idea in any general purpose language as a program smaller than some constant, the patent is invalidated.

                The problem is, defining "implementatio
            • Re: (Score:3, Insightful)

              by SEAL ( 88488 )
              6) Copyright offers enough protection already, without patents.

              Of course this conflicts with your #4 to some degree. However, when you have competitors trying to imitate your product by writing their own source from scratch, it motivates you to stay one step ahead by improving your own product. For that reason, I think copyright produces more technological progress than patents do, at least in the software industry.
            • Re: (Score:3, Insightful)

              by Chris Burke ( 6130 )
              Well I'm against software patents because they are a patent on math, the fundamental language of science and the blocks upon which all scientific progress is made. I'm against locking up software in patents for the same reason I'm against patenting stories written in natural languages.
    • by Yvanhoe ( 564877 ) on Monday February 18, 2008 @10:23AM (#22463272) Journal
      Think of the people that LOSE money from patents. Think of all the companies that have been patent-blackmailed. Think about their lawyers spending months trying to get over some silly litigations. It really looks like a brake to innovation and business. I surely hope some part of the government will finally see it this way.

      Saying that all lawyers support patent laws is a bit like saying that all programmers support buggy software because it gives them more work.
    • by TheAngryIntern ( 785323 ) on Monday February 18, 2008 @10:28AM (#22463336)
      I should sue....I already patented the idea that the you could overturn the current patent law.
    • by intrico ( 100334 ) on Monday February 18, 2008 @10:48AM (#22463554) Homepage
      Yes, it's true that some individual people do benefit from business process and software patents, but they do nothing to encourage innovation. In fact, they end up stifling innovation. Patents were meant to encourage innovation, not stifle it.
      • by mOdQuArK! ( 87332 ) on Monday February 18, 2008 @11:51AM (#22464484)
        To be more accurate, the motivation behind allowing patents is to encourage innovation. The mechanism by which patents do so is by stifling competition.

        Oddly enough, I have never seen or heard of a peer-reviewed study which has supported the idea that you can encourage innovation by stifling competition. It seems to be counterintuitive to me, but IP-proponents repeat it like a mantra. Can someone point a reference to such a study?
        • by MightyMartian ( 840721 ) on Monday February 18, 2008 @02:09PM (#22466188) Journal
          The basic idea is that giving a patent-holder a limited time monopoly to profit from their inventions encourages invention. It does make sense, but the concept was formulated during an era of the solo inventor, and certainly not designed for the era of patent trolls. The system does not function terribly well now, and has encouraged a sort of arms race as large corporations build up arsenals of defensive patents, while patent trolls attempt to extort licensing fees, often based on highly questionable patents.

          Governments and the courts have utterly failed in their duty to reign this behavior in, and if they don't start soon, we're going to see the ultimate meltdown. Arms races are fundamentally unstable propositions, and at some point someone who really counts, like Microsoft, is going to pull the trigger and the whole thing is going to explode in a terrible conflagaration. At that point governments will have to do something, but only after billions of dollars are tied up in ludicrous lawsuits and the consumer is screwed in the process.

          The solutions aren't going to be easy for some, particularly those who have made a business plan out of extortion (SCO didn't invent this, after all). Patent terms need to be shortened, software and process patents need to be thrown out, and patent offices need more resources to identify bad patents and prior art.
          • Re: (Score:3, Interesting)

            by mOdQuArK! ( 87332 )

            The basic idea is that giving a patent-holder a limited time monopoly to profit from their inventions encourages invention. It does make sense...

            It makes sense in a "pop psychology" sort of way, but I've never heard of or been pointed to a peer-reviewed study which showed that this "encourages invention"-effect could be shown, even in a highly-artificial academic "game theory"-based sort of market.

            Until I can refer to a study like that (and assuming that the study has been properly controlled to resist re

    • by rbanffy ( 584143 ) on Monday February 18, 2008 @11:11AM (#22463912) Homepage Journal
      Abolishing patents is not a good idea. It's the only thing that protects a small inventor from having his inventions stolen by anyone who has more money.

      What is badly needed is some sort of patent reform that prevents non-specific or non-original patents. You should be able to patent a thing. You shouldn't be able to patent the idea of doing whatever that thing does.
      • by Jerf ( 17166 ) on Monday February 18, 2008 @11:19AM (#22464026) Journal

        What is badly needed is some sort of patent reform that prevents non-specific or non-original patents. You should be able to patent a thing. You shouldn't be able to patent the idea of doing whatever that thing does.
        We have that. It's called "copyright".

        Why is software so special that it's the only thing that I know of covered by both copyright and extensive patents?

        (Is it really so surprising that the union of copyright and patent law produces a mess? They were never designed to cover the same domain.)
        • by Ckwop ( 707653 ) on Monday February 18, 2008 @01:15PM (#22465480) Homepage

          Why is software so special that it's the only thing that I know of covered by both copyright and extensive patents?

          I see this meme often on Slashdot but it isn't true. For example, you can copyright in the look of a new Ford as well as patent some aspect of its design.

          In the case of software, I believe the double protection is not required; in fact, it actively hinders innovation. Even so, this does not change the fact that the protection of software by both patents and copyright is not unique to software.

          I'd actually like to see a review of copyright law on software too. I don't think compiled binaries should be afforded the same copyright protection as an open-source piece of software. Here's why. If I buy Harry Potter, I am free not only to read the book but also to analyse its meaning, appreciate the style of writing the author uses etc. The value of the book to society is not just tied up in the entertainment of reading it. There's a lot more society can gain from the work through the study of it.

          With a binary there is only the freedom to run the program. Its value to society may be great but it's never as much as having the source code to go with the program. With free software you are free not only to run the program, but to study it and modify it for your own use. You are even free to distribute copies of the modified software.

          With a binary even the freedom to run the software is not guaranteed. What happens when the platform for which the software was written disappears? What do you do with your binary then? Unless the platform is popular enough to have an emulator, you're shit out of luck.

          I would like to see copyright law reformed so that binary only software gets a much shorter copyright protection period of say ten years. Open-source software gets a longer protection period of maybe 35 years.

          I think this reflects the relative value of the software. There would still be a strong incentive for the Microsoft's of the world to continue to produce software, however, it would reward people willing to open up the code to study and improvement much more.

          Simon

        • by j. andrew rogers ( 774820 ) on Monday February 18, 2008 @01:19PM (#22465530)

          Why is software so special that it's the only thing that I know of covered by both copyright and extensive patents?

          This is a trivially falsifiable assertion, and it does not do anyone's credibility any good that it is repeated so often.

          It is the general case for patents, e.g. chemical process patents, that the new abstract process/algorithm (the part valuable to a third party) is protected by patent and specific reduction to practice is protected by copyright (which may or may not have any practical value). In some other venerable patent areas, these are largely independent works, though in some cases the reduction to practice may be licensed as well. One argument that can be made for algorithm patents is that they are structurally indistinguishable in both theory and practice from an chemical process patents -- swap "bits" for "molecules". Software receives no special protection like you assert above, the algorithm/process and implementation protected by patent and copyright respectively, much like it is for everything else.

          Of course, the elephant in the room that everything is an algorithm and that there is no mathematical difference between bits, molecules, hardware, software, or data. It is a distinction with no theoretical difference and people keep trying to patch up the law so that we can pretend a distinction exists in the face of clear evidence to the contrary; copyright has a similar issue, by the way. It has led to absurdities such as an algorithm on Intel x86 not being patentable in Europe but the same algorithm on a Xilinx Vertex-5 is -- the distinction between the two is arbitrary and capricious. The problem is not algorithm patents (and much of what we are talking about here is business process patents, not algorithm patents per se) but that so many patents are frivolous, but that is not a problem unique to any particular field of patentability. The two biggest problems are really frivolous patents being rubberstamped, and theoretically inconsistent treatment in a few narrow areas that are then bleeding over into other areas as the inconsistency becomes obvious in real cases. The only way to actually fix these inconsistencies is by adopting an all or nothing policy; I have no particular opinion on which way that goes.

      • by Tony Hoyle ( 11698 ) <tmh@nodomain.org> on Monday February 18, 2008 @11:51AM (#22464494) Homepage
        Abolishing patents is not a good idea. It's the only thing that protects a small inventor from having his inventions stolen by anyone who has more money.

        Patents do not stop that. Getting a patent is cheap enough, but defending it against a large competitor? You'd be forced into bankcruptcy in weeks.

        There's a reason why large companies like patents so much - so they can use them as bargaining chips when they get sued for using other peopple patents (or simply countersue, if necessary). The small inventor has no foothold in this process and would just get steamrollered if they tried.
        • Re: (Score:3, Insightful)

          This is how the conversation would go ...

          Inventor : You are infringing my patented software

          Megacorp : We might be but we will drag you through the courts for the next three years to prove we are not, but meanwhile you are infringing 256 of ours so pay up now ....

          This is how Software patents work, the only people who have them and actually can use them are large software companies who use them to bargain against other software companies so they can do a patent cross-licensing deal, of patent trolls who just
  • if you can't patent maths then why should you be able to patent software as it's nothing more than maths.
    • by Pebble ( 99243 ) on Monday February 18, 2008 @09:58AM (#22463000)
      While I may not agree with software patents I can't agree with your argument, it seems analogous to "If you can't patent chemical elements then why should you be able to patent devices, as they are nothing more then chemical elements."
      • by Legrow ( 1023457 ) * on Monday February 18, 2008 @10:08AM (#22463100) Homepage
        It's called greedy reductionism [wikipedia.org], or "nothing buttery". It's the first line of defense for reactionary or fanatical Slashdot trolls.
        • by mrxak ( 727974 ) on Monday February 18, 2008 @10:10AM (#22463130)
          However, a lot of the software patents seem to be based on algorithms, and not a whole lot more.
          • Re: (Score:3, Insightful)

            that's the problem! They aren't! One-click isn't an algorithm, it's an obvious idea.
            • by Splab ( 574204 )
              Why exactly isn't One-click an algorithm? It covers an algorithm where a single click gets translated into an order. An algorithm is a set of well defined instructions to complete a task, one-click fits nicely into this.
          • Re: (Score:3, Informative)

            by Legrow ( 1023457 ) *
            Where does your definition of "algorithm" end, though? Patents were, AFAIK, designed exactly to allow one to receive a monopoly on the algorithm they have developed. In fact... 101. Inventions patentable 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 [35 USC 101].
            • Unless the algorithm is "obvious to experts in the field."
              • Re: (Score:3, Informative)

                by azrider ( 918631 )
                Wrong - the phrasing is "obvious to persons having ordinary skill in the art", not experts in the field. This is why it is commonly abbreviated "PHOSITA" in documents.
                • by dgatwood ( 11270 ) on Monday February 18, 2008 @12:56PM (#22465268) Homepage Journal

                  The problem is that nearly all algorithms are obvious to one with ordinary skill in the art once you tell them what the inputs and outputs are. That's why patents on software are stupid. The only exceptions are those in which ordinary skill in the general art of computing are insufficient to understand what is meant by the description of the input or output.

                  For example, someone with ordinary skill in the art won't understand what a discrete cosine transform is, so describing a JPEG decoder as "an algorithm that generates a pixel array from a compressed image consisting of a series of XnY blocks (where X and Y are usually 8 or 16) in the form of a discrete cosine transform block compressed with Huffman codes" will mostly result in blank stares. However given that description and a notion of the order of these blocks, someone with average skill in the more specific art of image compression could readily write a JPEG decompression algorithm. It would take a while because the individual components are pretty complex, but the simplest complete description of the inputs and outputs is sufficient to completely define the entire algorithm.

                  For simpler software patents, this goes without saying. "An algorithm that takes as its inputs a click on a particular item in an HTML page and a stored representation of the user's credit card information on a server and generates as a result an order for the displayed product charged to that user's credit card" is a perfect example. Anybody who has ever written the simplest web app could do this in five minutes. Maybe they couldn't do it securely in five minutes, but the amount of thought that goes into taking those inputs and generating the output is negligible.

                  The only patents that should be allowed are those in which the a complete description of the inputs and outputs is insufficient to give someone with typical skill in the very narrow field of writing similar software enough information to write the software. For example, as someone who is getting annoyed at camcorders that do image stabilization based on what percentage of the image changes, I thought about "an algorithm that takes information from accelerometers and an image from a CCD and generates a motion-smoothed output". That patent might be acceptable under these rules because the process for manipulating the incoming data into a reasonable set of output data is not obvious, and indeed, there are many different smoothing techniques that one could come up with to muck with the accelerometer data and distinguish between jitter and a pan/tilt. On the other hand, it should only cover the use of a specific smoothing algorithm for that purpose, not the general process of smoothing, nor the definition of that smoothing algorithm for other purposes.

      • by oliverthered ( 187439 ) <oliverthered&hotmail,com> on Monday February 18, 2008 @10:11AM (#22463138) Journal
        patent on devices ok, patent on the maths not ok. most of the software patents I've seen are on the maths not on the actual specific device. If you start putting patents on a general class of devices using the maths then your probably just patenting the maths.
      • Math vs software (Score:3, Insightful)

        A better analogy would be "if you can't patent chemical compounds, you shouldn't be able to patent drugs, as drugs are nothing more than chemical compounds".

        Software is just a subset of math, just as drugs is a subset of chemical compounds. Your analogy make it sound like math is at a totally different level of abstraction than software. It isn't.

        Or maybe we need a car analogy to make it perfectly clear ...
        • Re:Math vs software (Score:5, Interesting)

          by oliverthered ( 187439 ) <oliverthered&hotmail,com> on Monday February 18, 2008 @10:40AM (#22463454) Journal
          in some places you can't patent drugs you can only patent the process of making them which makes much more sense.
        • Re: (Score:3, Funny)

          Chrysler is just a subset of Toyota

          oh wait, is it still 2008? nm
      • by MadJo ( 674225 ) on Monday February 18, 2008 @11:17AM (#22463990) Homepage Journal
        How about just relying on 'good old' copyright to protect your code, instead of software patents?
        I know, copyright laws are also under fire, but still, I think that using patents to protect code is a cure worse than the disease. And it's too drastic and largely unnecessary.
    • by HonIsCool ( 720634 ) on Monday February 18, 2008 @09:58AM (#22463006)
      Hmmm, what exactly is NOT maths in this world? :)
      • a mechanical device isn't maths, maybe it's ok to patent a mechanical or solid state device that uses mathematical principals so long as it's only one device and your not actually patenting the maths itself.
        • > a mechanical device isn't maths

          Please justify this.
          • Re: (Score:3, Informative)

            a mechanical device is made of matter you can use maths to describe it but then you can't patent the maths only the device.

            in a similar way software is only maths, you shouldn't be able to patent the software but maybe you should be able to patent it running on a specific device. If you allow a general patent (this algorithm running on any matter) then your not really patenting a device you patenting the algorithm.
      • by tjstork ( 137384 ) <todd@bandrowsky.gmail@com> on Monday February 18, 2008 @10:17AM (#22463200) Homepage Journal
        Hmmm, what exactly is NOT maths in this world? :)

        Patents are meant to cover a particular implementation in physical terms of a theoretical idea, and right now, they are often being used to try and cover the theory as well.

        For example, my own pet hobby is working on a new way to factor large numbers. Let's say that my redneck republican self gets insanely lucky and bumbles into an algorithm that actually factors something in polynomial time, or even close enough to it so that RSA and the like are untenable. Since my approach depends on treating factor as a decision problem, it follows that if I did get really lucky and struck gold, that, it would be applicable to a wide range of other problems. Under today's law, patenting that would basically give me the right to apply that mathematical breakthrough for my own ends, when clearly, its in the interest of society that as many people should be allowed to exploit it. Basically, I would be allowed to charge money for any sort of an implementation of a combinatorial problem, which is absurd. Yes, I might theoretically build a billion dollar enterprise to milk this concept for all its worth, I would ultimately though screw everyone else with whom such a breakthrough might be useful, and damage the overall economy that many millions of times more.

        Really, the dividing line is one of information and knowledge versus an actual real world device. As Jefferson so adroitly pointed out, information does not lose its value when it is copied. If I know something, and give that information to you, we both know something, and that doesn't hurt me that you know it. It does mean that I can't build some sort of an empire at your expense, but, given that we already went through the Catholic attempt, and then the various State attempts, to monopolize information, with disasterous results all the way around (and not a single success in 2000 years!), it is obvious that a social framework which allows information monopolies works to the disadvantage of mankind.

        Quite ironically, those people whose livelihoods depend on information having value are the ones most arguing that information ought to be free. Patents are, in theory, today, supposed to protect IT workers and their inventions, but most GOOD IT workers these days remember that computer science as a field advanced even more before today's patent nuttiness. If we did anything, it would be to allow the shared discovery and utilitization of new techniques, but protect, if desired, commercial and open implementations. So, for example, if Microsoft invents a new GUI dongle, or on the flip side, someone invents a browser plugin, then, it would be better for everyone if you simply could not be sued for making your own implementation of that idea. That gives us a world where everyone's products can advance, we have IT for our customers and ourselves and leave the lawyers out, and everyone is happy.

        It is really only the idiots at Wall Street, that have handed us the internet boom mess, the present mortgage mess and the previous S & L mess, that want to maximize every asset as much as possible with silly things like patents and create yet another bubble that will burst and screw the rest of us up. But really, Windows doesn't need any patents any more than Linux does. The value of both of those products is predicated on their overall customer experience, not some silly mining like claim staked out in Washington DC!

        • Excellent post, I'd mod you up if I could.
        • by cgenman ( 325138 ) on Monday February 18, 2008 @10:43AM (#22463494) Homepage
          Not that I disagree with the sentiment, but aren't patents basically to encourage and reward research? Therefore, isn't what is being protected, at core, the usage of knowledge?

          It seems the question at hand is where a line should be drawn, not that there shouldn't be a line at all.

          • Re: (Score:2, Insightful)

            by tjstork ( 137384 )
            Not that I disagree with the sentiment, but aren't patents basically to encourage and reward research? Therefore, isn't what is being protected, at core, the usage of knowledge?

            That was the intent. But right now, Patents are being used to monetize investments in research, and that is not the same as promoting research. Research has its own rewards, and people are ultimately just going to do it, because they are curious. Curiosity and a sense of personal accomplishment matter and drive people in ways that
        • Yes, I might theoretically build a billion dollar enterprise to milk this concept for all its worth, I would ultimately though screw everyone else with whom such a breakthrough might be useful, and damage the overall economy that many millions of times more.

          Just playing devil's advocate here.. how can you damage the economy by withholding something that didn't yet exist anyway? That is, if you don't come up with a way, are you benefiting the economy somehow?
        • Re: (Score:3, Interesting)

          by roman_mir ( 125474 )
          Let's say that my redneck republican self gets insanely lucky and bumbles into an algorithm that actually factors something in polynomial time, or even close enough to it so that RSA and the like are untenable. - let's say that I got that lucky and figure out that in fact P=NP. Oh-la-la. What I would do is create a private business around my solution, making money solving problems without giving out the details of the solution itself.

          I bet lots of things in math can be done this way, you don't have to giv
          • Re: (Score:3, Interesting)

            by tjstork ( 137384 )
            let's say that I got that lucky and figure out that in fact P=NP. Oh-la-la. What I would do is create a private business around my solution, making money solving problems without giving out the details of the solution itself.

            I've thought about that. Let's say you did make an Active X control that could factor large numbers, calculate the most efficient route to travel a bunch of cities, solve gigantic systems of linear equations, and, by the way, plays a perfect game of minesweeper, I'd think somebody woul
        • by Tom ( 822 )

          Patents are meant to cover a particular implementation in physical terms of a theoretical idea, and right now, they are often being used to try and cover the theory as well.

          Exactly!

          A long time ago, the USPTO required a working model(*) of the invention alongside the patent application. If you couldn't make a model of it, you couldn't patent it.

          I still think the patent system went down the drain when they stopped having that requirement.

          (*) in a loose sense. Some effects, of course, simply don't work that way in scale models. A model of a nuclear reactor is more tricky to build than the full-size thing. "working" here didn't always mean it had to "work" in the strict sense, b

      • by morgan_greywolf ( 835522 ) on Monday February 18, 2008 @10:19AM (#22463232) Homepage Journal

        Hmmm, what exactly is NOT maths in this world? :)
        Elections using comprised Diebold voting machines?
      • by TheLink ( 130905 )
        Chocolate! :)
      • Hmmm, let me guess, you don't date any women do you?
    • if you can't patent maths then why should you be able to patent software as it's nothing more than maths.

      Well, according to this friend-of-the-court brief [aipla.org], filed by the American Intellectual Property Law Association earlier in this case, citing Diamond v. Diehr [wikipedia.org], "laws of nature, natural phenomena, and abstract ideas alone are not patentable...'an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.'" p. 8. Perhaps it was a mis

    • Re: (Score:2, Funny)

      kudos for spelling Maths properly
    • by Shados ( 741919 )
      Low level CS and algorythms are just maths. My business workflow integrations have virtually no math in them aside the occasional check on money amounts.

      My user interfaces are more design than math, thats for sure.

      There's not a whole lot of math in Amazon's One click crap, either.

      20 years ago, software was just math. Now, what makes the software run is just math and electronics, but the software itself? Depending on the field, not so much.
    • The same exact thing can be said for physical inventions.
  • Re: (Score:2, Interesting)

    Comment removed based on user account deletion
    • by zarthrag ( 650912 ) on Monday February 18, 2008 @10:05AM (#22463060)
      Consumers have everything to gain from this. Nowadays it's impossible to write a gui'd "hello world" without stepping through a minefield of patents. As a small business owner, it's unreasonable and likely impossible to expect me to research every patent and pay royalties/license fees for "a piece of software that beeps when it wants the user's attention", or other things. Only large companies can afford such things, and they use it stifle competition. (What do you think MS's sabre rattling over linux has been about?)

      Any CS person will tell you that when it comes to software, there's more than one way to skin a cat - probably thousands. But software/business patents let you find one, and squash the rest.
  • Bah. (Score:5, Insightful)

    by TripMaster Monkey ( 862126 ) on Monday February 18, 2008 @09:55AM (#22462968)
    I just can't see the CAFC reversing themselves to any significant degree here. Most entities involved have way too much to lose.

    I predict this will get quietly swept under the rug...again.
  • by hyades1 ( 1149581 ) <hyades1@hotmail.com> on Monday February 18, 2008 @10:05AM (#22463070)

    I'll admit I'm generalizing here, but anybody who ever thought lawyers, judges and legislators were actually intelligent rather than just clever, plausible and glib need look no further than the way the courts have dealt with hardware and software matters. The smug, bone-deep ignorance is as blatantly obvious as an elephant's...um...trunk.

    If you need further evidence, consider some of the laws that have been enacted or are under consideration as a result. You get the impression these people think a computer is some kind of magic fetish that actually produces results.

  • No bets (Score:5, Interesting)

    by canuck57 ( 662392 ) on Monday February 18, 2008 @10:06AM (#22463080)

    a new case that could overturn that ruling and restore some sanity to the patent system

    No bets here, lawyers enjoy the complexity and confusion too much to make this any better. Congress just needs to change the law. In a business like computers which is evolving so quickly, say a 2 year patent then it expires. And you can only sue if you produce a competing product with it and have been harmed.

    You need to stop patent trolls dead. Like RAID and bugs. Let innovation back into this business.

    • You need to stop patent trolls dead. Like RAID and bugs. Let innovation back into this business.

      Has their been a shortage of innovation recently? If so, has the shortage been due to the inability to get into markets because of patents, or have their been more mundane reasons (e.g., risk-adverseness among potential investors in technology)?

  • by johndiii ( 229824 ) * on Monday February 18, 2008 @10:18AM (#22463218) Journal
    This is a subject worthy of discussion, but the TechDirt article is pretty weak. It does not appear have much content aside from links to other TechDirt articles (and one to Wikipedia); the blog entry that apparently triggered it is on patent law blog [patentlyo.com], and does contain a good amount of information on exactly what is going on. Other reasonable current articles on patent law, in the area of software and business method patents:
  • by overshoot ( 39700 ) on Monday February 18, 2008 @10:20AM (#22463236)

    With all the efforts to fix the patent system lately, it appears that the court that originally made that decision may be regretting it, and has agreed to hear a new case that could overturn that ruling and restore some sanity to the patent system.
    The CAFC may not be regretting its decisions, but it's been getting some pretty blunt signals from the USSC that they are not totally pleased with what the CAFC has done while on a long break from supervision. This is one of two things:
    • A rethink to head off not only having their wrists smacked but having the USSC start reviewing their cases much more often (complete with reversals) or
    • A chance to put together a really solid and detailed ruling to give the USSC a reason to agree with them.
    We won't know which they pick until this summer.
  • With all the efforts to fix the patent system lately, it appears that the court that originally made that decision may be regretting it, and has agreed to hear a new case that could overturn that ruling and restore some sanity to the patent system."

    It's good this software patent regime might be re-visited, but what is unfortunate is that we as USA, are again simply following Europe on this issue. They have beaten us on all issues concerning the common man and IT by being more pragmatic. I hope this will change with a new administration next year.

  • Maybe there will be some hope that the court would draw some inspiration from the Constitutional authorization for the patent system, and limit the current excess of claims for ideas, cutting out a whole load of worthless and oppressive patents. The aim of the constitutional authorization for patents was 'to promote the progress of ... the useful arts'. 'Useful arts' used to mean hands-on making useful things.

    Maybe there will be some useful amicus briefs.

    -wb-
    • Re: (Score:3, Funny)

      by Legrow ( 1023457 ) *

      "Maybe there will be some useful amicus briefs."
      I think these days most people go with amicus boxers.
  • by PoliTech ( 998983 ) on Monday February 18, 2008 @10:25AM (#22463304) Homepage Journal
    As I was reading TFA I came across this comment [patentlyo.com] and some interesting links:

    Apparently, the PTO seems to want a bright-line test for patent-eligible business method versus a patent-ineligible mental process.

    The discussion at oral argument might shed some light as to the reason why the CAFC voted sua sponte to take this matter en banc.

    The following dialogue occurs at 15:20 of the mp3 file obtainable at: http://www.cafc.uscourts.gov/oralarguments/searchscript.asp [uscourts.gov] (type Bilski for Caption)

    Judge 1: The way in which the Board . . . presented Bilski to us was with this prayer for guidance. . . . Our examiners need guidance, we need to know how to deal with this situation . . . . Let me ask you this question, Is the opinion in In Re Comiskey enough? Can your examiners now move forward? Are you satisfied in dealing with business-method patents?

    Solicitor: Not quite your honor. I say not quite because what I can foresee [are] future disputes and also potentially years of litigation over trying to find the dividing line between what would be a so-called patent-eligible business method versus a so-called patent-ineligible mental process. It just is going to create litigation issue that we dont think needs to be there.

    Judge 2: So to cut to the chase, how would you [the Office] have reformulated the test . . . for purposes of explaining both Comiskey and then extrapolating to this case? Solicitor: I think what was just discussed here page 17 [of Comiskey slip opinion, see http://www.cafc.uscourts.gov/opinions/06-1286.pdf [uscourts.gov] ] is a very fair recitation of what the law is where it says. . . . the Supreme Court has held that a claim reciting an algorithm or abstract idea can state statutory subject matter only if, as employed in the process, it is embodied in, operates on, transforms, or otherwise involves another class of statutory subject matter, i.e., a machine, manufacture, or composition of matter.

    Interesting stuff.

  • Software and business processes are simply two more media within which invention may occur. It makes no sense to try to put certain media off limit to patents. There are only 3 criteria for a patent: Utility, originality and disclosure. Utility means it must be worth money. Originality means it must not have been done before nor even be obvious from that which has been done before. Real patent reform would simplify the current system by: 1) Removing all patent fees. Patent fees are an incredibly reg
  • by Grond ( 15515 ) on Monday February 18, 2008 @10:34AM (#22463392) Homepage
    It's been nearly ten years since the US courts decided that business methods were patentable and that most software could be patentable -- and we've all seen what's happened since then.

    Since then we've seen the emergence of Google as a powerful challenger to Microsoft. This is one example among many of a company whose entire existence, much less its massive success, is dependent upon a patent (# 6285999, in Google's case). If Google had not been able to patent its major innovation, then Microsoft could easily have co-opted the idea, and it would have dominated search as well as operating systems and office suites. Recall that most of Microsoft's meteoric rise took place during a time when software was not patentable. The absence of software patents is precisely what makes "embrace, extend, extinguish" possible. Software patents give the original innovator the power to stop that strategy in its tracks.

    I believe that what Slashdot readers truly dislike are bad patents, not software patents per se. Software just has more bad patents than it should because of the way the PTO treated them. Until the courts basically forced the PTO to accept software patents, the PTO did not hire computer scientists as patent examiners. Even now, the PTO has a massive backlog of software patent applications, and as a result computer related applications have by far the longest median time to issuance (roughly 44 months!). The PTO tends to err on the side of issuance, and so we end up with a flood of terrible software patents.

    How to fix this? The simplest way is to eliminate the presumption that patents are valid, which requires a patent challenger to prove invalidity by clear and convincing evidence (a standard almost as high as beyond a reasonable doubt). Instead, we should recognize that many patents are not valid and end the presumption of validity. That way, bad patents can be more easily challenged, and patent trolls will think twice before bringing spurious suits.
    • by realmolo ( 574068 ) on Monday February 18, 2008 @11:07AM (#22463820)
      I see what you are saying, but the problem IS software patents. Not that the Patent Office is bad at granting patents on software.

      Patents are supposed to cover a *specific implementation* of an idea. Which is fine, but in software, there are ALWAYS multiple ways to do things. So should a software patent cover the *functionality* of the software, or the the *implementation* (which would amount to the source code, and maybe some of non-standard elements of the interface).

      I say they should only be able to patent the source code/interface. Which, of course, they wouldn't/can't do, since it's already covered by copyright laws.

      So, no, Google shouldn't be allowed to patent their PageRank system.

      • by azrider ( 918631 )

        Patents are supposed to cover a *specific implementation* of an idea.

        This is the reason for the original requirement of a working model.

        Which is fine, but in software, there are ALWAYS multiple ways to do things.

        Multiple, but in most ways limited (how many ways can you devise to count from one to six?).

        So should a software patent cover the *functionality* of the software, or the the *implementation* (which would amount to the source code, and maybe some of non-standard elements of the interface).

        Neither,

    • by GTarrant ( 726871 ) on Monday February 18, 2008 @11:14AM (#22463944)
      As long as a patent examiner's job performance is based on how many applications they can process, the problems are not going to go away. Change the presumption of validity to "Not valid", and you're still going to have problems.

      Living in Washington, D.C., I know quite a few people who work in the patent office. They are, generally, quite competent people. Many of them have fairly scientific minds and are technically savvy. And many of them like their jobs, and think it's quite neat that they get to learn about things on the forefront of technology.

      However, they also know that they are judged by the Powers That Be not based on whether or not they make the "right" decision, but rather on whether or not they process enough applications when compared to the "average" examiner. If one decision requires relatively little paperwork, and the other requires a mountain of paperwork, taking up lots of time, followed by an inevitable challenge (or even lawsuit) by the aggrieved party, well, some examiners are simply going to start rubber-stamping everything in front of them. They're under enormous pressure to increase the rate at which they process applications, and the only way to do that is accept more, and reject less.

      It becomes a vicious circle - examiners know they're judged based on whether or not they process enough applications. Therefore, some such examiners, in order to look "the best", are going to start blazing through applications, approving them all, to improve their numbers. This, of course, raises the "average", forcing everyone else to spend less time examining, and to make the easy decision.

      Changing the presumption of validity would simply make the "easy" decision a "reject", and while I think it's better to reject them offhand (and have a review) than accept everything by default (leading to patent trolls and settlements rather than reexamination of a patent), it still doesn't solve the problem.

      Patent examiners need to be reviewed based on the quality of their work, not just the speed by which they process it.

    • The absence of software patents is precisely what makes "embrace, extend, extinguish" possible.

      Isn't "embrace, extend, extinguish" more relevant to standards (or de facto standards), like HTML or file formats? The examples you're talking about are more focused on algorithms implemented by one piece of software or service, which is different. If it doesn't have to inter-operate with other things then there's no embrace and extend. It's certainly true that one can still rip it off, though, and software

  • I'd like to make an intelligent comment on the lack of detail in the article, or some sensible prediction of what it means. But I'll confess my brain is kind of stuck at the stage of going:

    Oh please oh please oh please oh please oh please oh please oh please oh please oh please oh please ...
  • Courts out of Touch (Score:2, Interesting)

    by TFGeditor ( 737839 )
    Courts, like all government, are so out of touch with the real world that they are essentially incapable of rendering rational decisions. Unfortunately, we Americans are too disposed to elect officials (including judges) based on appearance and rhetoric than on actual qualifications. In this age, any judicial nominee/candidate or other politician who cannot articulate what the internet is without referencing "tubes" or understand what an IP address and ISP are, is not qualified for office.

    The patent fiasco
  • Below I pasted the text of the actual court order from the CAFC granting the rehearing en banc. It appears that that the CAFC will be considering business method patents rather than software patents. More specifically, the CAFC seems interested in business method patents that contain a "mental process" as one of the steps. I don't think CAFC will be considering software patents at all.

    The link in the techdirt article to PatentlyO provides much better information than the techdirt article.

    IN RE BERNARD L.

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