"Bilski" Case May End Business Method Patents 101
hey sends us to a blog at NYTimes outlining the upcoming appeal of the case known as "re Bilski," which could spell the end of patents on methods of doing business later this year. One patent expert is quoted: "I think this is the unraveling of business method patents... I think there is a process we are going to go through to get there and the Supreme Court is going to be the one that decides it." But another expert thinks the case is unlikely to bring down the whole class of patents: "Definitions of business method patents always end up being circular. You can't really ban something unless you can define it and no one is offering a definition we can use."
How about (Score:3, Interesting)
Or it doesn't fit the current definition of what is patentable, therefore not patentable.
Re:How about (Score:4, Insightful)
Re:How about (Score:4, Insightful)
"The big problem with pornography is defining it. You can't just say it's pictures of people naked. For example, you have these primitive African tribes that exist by chasing the wildebeest on foot, and they have to go around largely naked, because, as the old tribal saying goes: "N'wam k'honi soit qui mali," which means, "If you think you can catch a wildebeest in this climate and wear clothes at the same time, then I have some beach front property in the desert region of Northern Mali that you may be interested in."So it's not considered pornographic when National Geographic publishes color photographs of these people hunting the wildebeest naked, or pounding one rock onto another rock for some primitive reason naked, or whatever. But if National Geographic were to publish an article entitled "The Girls of the California Junior College System Hunt the Wildebeest Naked," some people would call it pornography."
So no, just having certain areas exposed doesn't make an image pornographic (if it did, most biology and sociology textbooks would be 18+ only).
Also, maybe I'm being trolled, but did you just say that you find children in bikinis hot? Your argument makes perfect sense if you used adults instead of children, so I can only assume you specifically intended to clarify that you find children sexually attractive.
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I think you're taking your argument way too far. As far as I can understand it the parent never said that. Please re-read.
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The way I read it was that some politicians seek to ban such things on grounds that it may be visually stimulating to some people.
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I'd be at the front of the queue to buy it
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Most people know that its certain "areas" being exposed (3 total for women, 2 for men)."
An image of a naked person is not automatically "pornography". I would hope that "most people" would know that also. Otherwise a lot of medical texts and artbooks are peddling smut.
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Re:How about (Score:5, Informative)
(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
Circular definition or not, the system has held up pretty well since it was introduced in 1973, most (all?) member states already had similar restrictions before the rules were unified.
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Re:How about (Score:4, Insightful)
How about this definition: (Score:5, Interesting)
1. if it's something that one or more humans must do, you can't patent it. (I.e., no patenting "you show the ticket to the doorman".)
2. if the same process could realistically be done by a finite and small number of humans, and your programs/modules/robots/whatever just automate a human's role there, you can't patent it. (I.e., no patenting "you input your ticket's number to the program.")
3. If a nearly identical process -- i.e., serves the same practical purpose and the essential steps are the same, or minor variations of the same step -- is already in use with humans or in any other form or medium, you can't slap a "in software" or "with computers" on it and patent the same bloody thing _again_.
The above, btw, comes from someone who actually likes patents as a general idea. I'm all for rewarding people who research new stuff, create new technologies, and/or invent new products. By all means, we need more of that stuff, and it's only fair to reward the people who invested massive money and manpower into researching it. In fact, at the risk of allienating a good chunk of slashdotters, I'm even for more of that in software. If that's what it takes to get more people into researching brand new stuff, I'm all for it.
I _am_ however, dismayed by the joke that most patents actually end up being. I think it's time to revert to the original idea of rewarding technological progress, and weed out the chaff that doesn't do anything towards that end. Starting with the rehashes of an existing technique, only with "in software" or "with a computer" slapped upon it.
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Re:How about this definition: (Score:5, Interesting)
Up to here, I agree. If you put in a good day's worth of work, you should get a good day's worth of pay out of it. Heck, if you can negotiate a decent deal, you can get two or even three days pay out of your one day's work.
But if you want to get paid next year, you should have to work next year. My plumber has to. My dentist has to. My lawyer has to. My barber has to. Why should YOU get to retire on the one good day of work you put in ten years ago?
As we can see in the real world, the opposite happens: If people can have one clever idea in their entire life and then expect never to have to work again because of that one clever idea, then they are expressly NOT interested in ever having a second clever idea. Ever.
99.9% of patents[1] are granted not to people who think of it as a reward for contributing to the good of society, but to lazy parasites who imagine they should get paid in perpetuity because they figured out one trivial and obvious thing that they managed to obscure enough to squeeze it through the patent system.
Thereby not only removing themselves from the innovative pool, but also everybody else who is working anywhere in the vicinity of the same field (and who cannot innovate in this direction any more because it's now patented). Patents are the greatest impediment to human innovation ever invented.
[1] You are hereby challenged to sift through the ~two hundred thousand (and rising) patents issued in the US alone every year and produce ONE per year for the last five years that actually protects some truly new, innovative technology that actually improves humanity in some fashion as to warrant paying the inventor for the rest of his life (which is what a patent amounts to, these days) -- as opposed to being yet another utter triviality with the term "on the internet" slapped onto the end.
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But if you want to get paid next year, you should have to work next year. My plumber has to. My dentist has to. My lawyer has to. My barber has to. Why should YOU get to retire on the one good day of work you put in ten years ago?
This whole argument assumes you're working for an establish
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What if you're the guy with a lab in his basement, or a computer farm in his garage, and you come up with something new and novel? Who is going to pay you for it?
Back to the Strawman, Part II. How are you going to go back in time to reinvent what you already invented after you are paid ex post from the patent for work you already by definition did prior to the grant of patent? I call my invention the "Flush Capetenter", it flushes stupid patent idea submissions down the toilet.
We should also immediately use all new archeology evidence of prior technology or methods as prior art. Perhaps the patent office needs to subscribe to archeology journals and magazines, what
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I don't think anyone objects to you not working. What people object to is your having a government enforced monopoly that lets you finance your leisure by raising prices for the rest of us.
Nothing particularly Marxist about that; it's basic free market economics. You're
What if your invention takes 18 years of labor? (Score:4, Interesting)
Another example of this is pharmaceutical patents. It can take years of research to develop a candidate for a new drug, then years of safety and efficacy testing before it receives FDA approval. All that makes it *very* expensive to bring a new drug to market. I think we can all see that, at least some drugs, have improved human health greatly, and so we should give the companies doing that R&D a chance to make back their money, and it very well might take years to make back the money.
I mean, if you did 10 or 18 years of R&D to create a new invention, it might easily take you 20 or 30 years to make back the money you invested in that (especially when you consider that, after spending all that time/money on R&D, you know have to spend a ton more money for manufacturing/distribution/marketting, and it just might take a few years for your product to be 'accepted' in the marketplace to the point where it begins to make any money at all.
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Yeah, but then again, so what?
I mean, my family has been working on antigravity [1] since the early 1800's. Does that mean that if I get it working I'm entitled to a two hundred year patent? I mean this development has taken generations and consumed the entire lives of hard working people who died in poverty. How can you put a price on that? Should
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I can't get a "mYhneyd butrdb Patent".
We can limit patents to 'Physical Things that can be built'. Business method patents aren't physical things.
WTF? Am I missing something? (Score:3, Insightful)
What gives?
Re:WTF? Am I missing something? (Score:5, Funny)
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yeesh, that could be trouble. I just hope that "prior art" saves us.
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I'd go so far as to say dozens. Maybe a hundred. I think that's part of the problem.
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The problem there is precision (Score:5, Informative)
That's really why legalese evolved, and why contracts and laws are so verbose and use funny jargon.
E.g., let's say I aggree to sell you a "Wii, original box" for your money. What if I only send you the cardboard box, without a Wii in it. There actually was an auction on ebay doing exactly that, albeit with a PS2 back when it was launched and there were massive shortages. Ok, so let's clarify that a bit as "Wii in its original packaging". Does it say it has to be a working Wii? It doesn't. Ok, let's clarify that too. Does it say in how much time I have to send it to you? I don't think so. So if you don't get it until 2018, hey, I still didn't break my word. So let's clarify that one too. Did I say I was going to include a wiimote and the cables and everything? Well, nope. If I'm an arsehole, I might send it to you without anything except the box, just so you pay more buying everything that's missing separately. Did we stipulate any penalties for breaking that contract? No? Well, then I might break it anyway, and what are you going to do about it? Did I say where it would be delivered? I'm delivering it to the top of Mt Everest then. Feel free to drop by and get it from there, any time you wish. Etc.
As a private person you don't actually have to worry about most of that, because someone made some laws against that. But that means, essentially: someone else wrote a ton of legalese, so you don't have to. But it's there.
But companies don't get that break, and neither do courts and lawmakers. There you really have to define _everything_ in painstaking detail.
If you just say "thou shalt not steal", you'll get people arguing that they only borrowed it without your knowledge. Or conversely, what happens if I lent you a book and you forgot to bring it back in time? Can I claim that you're a thief and throw you in jail? So you end up having to write many pages as to exactly what is a theft, what isn't, and what steps to take to distinguish between them.
There you go. For vague everyday use you have a very simple concept: "thou shalt not steal." It doesn't get any clearer. But for a law it doesn't even _start_ to be enough.
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In fact, contrary to what many believe, more words do not result in a more precise definition - they only create new opportunities for interpretations of the contract terms which may not have been intended by the parties to the contract at the time of for
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Works on commission
No money down
gets corrected to 'Works on commission? No, money down!' That's clearly a joke but if so
Re:WTF? Am I missing something? (Score:5, Insightful)
US Supreme Court Cochrane v. Deener in 1876 defined a process patent as:
an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing.
In Diamond v. Diehr 1981 the US Supreme court quoted exactly that definition and reaffirmed it.
US Supreme Court Gottschalk v. Benson 1972):
Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines.
And that too was quoted and reaffirmed in Diamond v. Diehr 1981.
There is no difficulty with OBJECT patents. The only difficulty we are having is with PROCESS patents. And the only valid form of process patent is one for a physical process to transform physical matter into a different state or thing. If you figure out a way to turn coal into diamonds, you can patent that physical transformation process.
Diamond v. Diehr 1981 also specifically WARNS that "insignificant post-solution activity will not transform an unpatentable principle into a patentable process. To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection."
P.S.
In addition to all the above, Diamond v. Diehr 1981 also explicitly stated that an algorithm
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Oh, right - now that he's been it, it appears that he lied through his teeth. It was worth a shot.
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if business models were patentable it's possible that none of the three could have been created, because other companies had 'five and dime' store models, and would have patented the business models needed to create discount chain stores.
this is a prime reason to not allow business model patenting, you simply cou
No definition? (Score:2, Insightful)
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Also, business method is really only necessary for classification purposes. Beyond that, a "business method patent" is like every other type of patent and so must meet the same basic criteria as any other patent. There isn't a
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How about if the patent's objective could be accomplished by a bunch of people in a room using pencils, paper, and a phone, it may not be patented.
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"If the patent's objective could be accomplished by an indefinite number of people in a room using pencils, paper, and telephones, in an indefinite amount of time, it may not be patented."
Undoubtedly this g
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Does real-time operation even matter? Countless people have essentially piggybacked on computers to speed up calculations, it's nothing new and shouldn't be patentable, as that's the very purpose of a computer. How about this: "If someone can do something mentally and achieve the same result with nothing but
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No patent shall be granted covering the behavior or actions of any person, nor of processes that merely mimic the behavior of any person. ("Person" covers corporate entities too!)
And really, really, really hammer the point of the KSR case that combining known devices and techniques and getting the expected and predictable result is not protectable on obviousness and novelty grounds.
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Problem is people are so flexible in their abilities that many actions could be considered mimicking human behavior. For example computers just mimic people doing math.
chickents. hatch. count. (Score:1)
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It may be cliché, but at least you get points for writing it in reverse polish notation
^_^ (Score:4, Interesting)
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Re:^_^ (Score:5, Funny)
What the hell are you talking about? You obviously have no experience in creating/drafting patents. Take, for example, the patent I hold entitled "Manually actuated pressure initiation of uni-phonetic communication" which claims benefit under provision F.U.D. 34-19.2 of Provisional Application License 453/21.2532 filed in April 1984 which very clearly states:
See? How simple is that? I mean, come on, it's not like I went out of my way to make that complicated, you must not understand this type of thing very well.
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I think business method patents got swept in when they started allowing other types of patents, and they will probably have trouble precluding them without also affecting other types of patents (software patents for example.)
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That would rule out software patents at the same time. Two birds, etc...
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And patents should not need to be defined in "easy to understand terms". They need to be defined in unambiguous terms. Sometimes, in order to remove ambiguity, it is necessary to make the definition complicated.
For example, define "housecat". Easy to understand: "domesticated mammal residing indoors". But very ambiguous, as one could then claim that the definition in
Revisit is the key word....Resolve is the final wo (Score:4, Insightful)
Certainly I don't think "one click" et. al are inventions -- they are implementations of an idea accomplished high speed by other peoples inventions. But there isn't a device in "one click", ergo in my mind there was nothing to patent. So my hope would be that the ruling would also go back to more of the founding father's desires to give individual inventors rights to market their own technological devices for a limited period of time, not the great big multinational corporations, who tend to use and abuse the system as much as possible.
Re: gaping loopholes to be closed (Score:2)
What is Patentable (Score:5, Insightful)
A "cash register" is a patentable device. It is a physical construct that performs a specific work function. Its inventors deserve compensation for its invention.
Using a cash register to calculate and record a business transaction is a method of conducting business. No one should be able to patent the idea that you use a cash register to conduct business becuase that use is obvious and implied in the original intent of the device.
If we apply this to something like the Amazon "one-click" patent, the specific software application that acts as the mechanism for conducting the sale may deserve some protection. However, the idea of letting a customer buy something by clicking once, does not.
My position, in short, is that functional constructs (physical or virtual) deserve protection but ideas about the use of a construct does not.
That seems a simple enough practical definition, but I'm sure there's some problem with it that someone will feel compelled to expose.
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On to your issue with the "1-click" method. If the mechanism is novel and nonobvious
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For A
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The 1-click patent was truly a travesty. I could easily sum it up as "you know what every retailer in the world does? Well, do it on the web too!".
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In the one-click example, Amazon is claiming, through their patent, that the idea of allowing a sale to be completed via a single interaction (click) is exclusive to Amazon for t
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In otherwords, Amazon isn't selling anything, nor could sell anything that contains t
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The cash register patent is not on the 'business method' of using a cash register to do business, it's on the mechanical (at the time) computation device. The inventor of the cash register would have been quite put out if someone else had filed patents on the business method of using his invention.
Eli Whitney pwns Ford (Score:5, Interesting)
Before Eli Whitney, firearms were custom built by hand.
Only business patents? (Score:4, Insightful)
And banning all patents would be fine by me. Let the market work out how to protect and reward ideas.
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Re:Only business patents? (Score:5, Insightful)
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But my argument is that you are still patenting an idea, not the machine itself.
What is of value in the machine that is patented? The plastic, the electronics, etc existed before they were put together in that unique fashion. It was only when they are put together in a unique fashion, the sum is patentable.
So what is patented is "the unique way in which I put together some pieces of plastic". That is an idea. That
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How about this, then: (Score:3, Insightful)
So basically, just as an example of that idea:
- The exact building plans of a machine that predicts heart attacks, is describing the solution, and thus is patentable.
"Predicting heart attacks" is, however, a problem not a solution. It's a goal, not the means to reach it. It give
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But who makes that judgment? I'm too lazy to think of an example now, but I'm sure someone can think of a case which does not fit into your classification.
Even if that weren't the case, this classification is still subjective and a given idea can be placed into different categories even by honest people. Throw in patent trolls and dumb, supercilious, ignorant, frog-in-the-well judges
I think he means (Score:2)
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It seems to me the distinction we are making is between means and ends. You can patent ideas that embody means of achieving some end, but you can't patent the end in itself.
There is, of course still some recursion here, because invention A may be a means to achieve result B, and result B may be a means to achieve result C. However this is not circular; you can patent result B as a means to achieve result C, and it doesn't prevent somebody
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I don't think you can classify everything into these two groups. Leaving aside the practical difficulty of codifying such a subjective notion into an objective law (99% of the laws are like that), I don't think that these (idea that embody means and ideas that embody the end) are fundamentally two different things.
Like you say in
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Patent on Method for swinging on a swing (Score:3, Informative)
Linky [newscientist.com]
Tm
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A re-examination request was filed the month following issuance, and all of its claims were cancelled on re-examination (re-issued as US 6,368,227 C1 in July 2003).
So sometimes, the twisted parts of the patent process can be straightened out without much delay.
Comment removed (Score:5, Insightful)
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Should Starbucks be able to own a patent on the process of saving money by making a universal lid for its different sized cups? I don't think so because the cost to the economy is decreased efficiency at every other coffee shop that is barred from using this process without paying Starbucks.
I'd like to expand on this.
The purpose of patents is to give incentive for innovation by guaranteeing the possibility of a return on investment for a short time. If an inventor comes up with Device X, then all the engineering hours and work that went into developing Device X are an expense, and the inventor should have an opportunity to sell his idea under his own terms for a short time to try to recoup those costs (there's no guarantee of return, only guarantee of opportunity). Without the protection of p
Only allow physical devices to be patented? (Score:2)
Slipping in the words "that have been built and can be proved to work" while making the amendment would seem to be a reasonable way of cutting down on a lot of junk patents too.
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What about the blu-ray format?
Slashdot (Score:2)
will have to place:
3) ?????
4) Profit!
into the public domain.
Incorrect case name -- "In re Bilski" (Score:1)
I don't see how the final paragraph follows... (Score:2)
This seems to be a bit of a straw man. A decision in this case is unlikely to be "business method patents are banned", but rather a limitation of the kinds of claims that are protected. This will be unlikely to do anything so simple as banning business method patents or algorithm pat