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Bilski Patent Case Appealed To Supreme Court 175

An anonymous reader writes "The landmark ruling of a few months ago that limited patents to inventions which include a machine or which transform physical matter has been appealed up to the Supreme Court. 'On the one side of this controversy... are those... who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods. On the other side are consumer advocacy groups and free-market devotees who worry that patent monopolies could tie up methods of creative thought processes, including teaching, judging, creative writing, making medical judgments, or picking juries (some current, real examples of claims).' The Bilski decision has already had an impact on potential software and biotech patents, in addition to the obvious limitations on business method patents. The petition (PDF) argues that the 'machine-or-transformation' test conflicts with the broad language of the patent statute and with congressional intent. It's entirely within the Supreme Court's discretion to take the case or not, but for now it looks like the issue is far from decided."
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Bilski Patent Case Appealed To Supreme Court

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  • by nobodylocalhost ( 1343981 ) on Tuesday February 03, 2009 @02:29PM (#26714099)

    is a use or lose clause.

  • by mercutioviz ( 1350573 ) on Tuesday February 03, 2009 @02:33PM (#26714167)
    I'm not holding my breath but I'm hopeful that the Supreme Court will take this opportunity to sound the death knell for silly patent applications (and granted patents) like Bilski. As a bonus I hope they put the kibosh on software patents. I know it would make the lives of many software engineers much better and it would definitely kickstart innovation in the software industry.
  • Re:PLEASE uphold it! (Score:5, Interesting)

    by DoofusOfDeath ( 636671 ) on Tuesday February 03, 2009 @02:51PM (#26714467)

    ... atents can help anyone but patent lawyers. Since American patents are only binding in America, they put domestic companies at a competitive disadvantage with the rest of the world. ...

    I'm not sure that's right. Consider this sequence:

    1. America allows software patents.

    2. America leans on European countries to allow them, and eventually succeeds.

    3. SCOTUS invalidates software patents as non-Constitutional.

    4. To be compatible with EU, which now has software patents, US signs a treaty allowing software patents, which, being a treaty, I believe, carries same weight as other parts of our Constitution. Now whole world has software patents, just because the U.S. temporarily did in the beginning.

    5. ???

    6. Profit!

  • by pieterh ( 196118 ) on Tuesday February 03, 2009 @02:51PM (#26714473) Homepage

    Software patents are extremely important to certain businesses, most of all the telecoms industry, which manages to keep prices rising in an area where their half-life should be 12-18 months.

    If there were no software patents, it would be much harder to maintain the telecoms cartels, the high prices, and the jobs and profits they generate. So for many people, software patents are very, very useful.

    Of course the overall effect is to slow down progress in communications, keep costs artificially high, penalize emerging industries, and punish the competitiveness of regions like the USA and Europe, which allow the cartels to continue.

    However, the times are changing and I've written [] about why the growing power of the Internet as a non-political force in politics will cause the end of software patents.

    It's worth noting that software patents will also be reviewed in Europe by the European Patent Office's Extended Board of Appeal (EBA), the closest thing we have to SCOTUS with respect to patents in Europe. Sure, the EPO is a fiefdom of the patent industry and EBA its chief priesthood, but reexamining the cosy arrangements that allowed software patents to exist so far is very significant.

    I think we are seeing the swing of the pendulum back towards sanity and the understanding that when it comes to the digital economy, any barrier to trade and competition - and the essence of a patent is to prevent competition - is harmful.

  • by ILuvRamen ( 1026668 ) on Tuesday February 03, 2009 @02:52PM (#26714499)
    that would still let them sit on it for the time period allowed. What they need is for people to prove they can actually make or do whatever the patent is for, or at least have some sort of progress made. I could patent teleporters and ion cannons if I wanted and then just sit on it but I shouldn't be allowed to unless I show some sort of proof that I've already started building one of those devices or at least have research that led to a blueprint that I'm pretty sure will work.
  • Re:Oh Boy (Score:2, Interesting)

    by the_womble ( 580291 ) on Tuesday February 03, 2009 @03:18PM (#26714987) Homepage Journal

    Software only became patentable after Microsoft vs Stac, so this could be seen as just reversing a previous bit of judicial activism.

  • by Creepy Crawler ( 680178 ) on Tuesday February 03, 2009 @03:21PM (#26715045)

    The answers below are how standard patent rulings would take place, not my decision or want.

    1. What if you 'invented' it by looking at a creature with really great night vision, and then copy and pasted it over?

    Regardless. If you made it, its an invention. If you found it, a discovery. Both are patentable.

    2. What if someone was born with really great night vision, and you just copy and pasted it from them?

    Yep. Look at the Ashkenazi Jew lady who had expressions of breast cancer.. Now every Ashkenazi Jew who takes a BRCA-1 test pays a royalty. Non-Jews dont.

    3. What if someone was born with really great night vision AFTER you patented it -- are they in violation of your patent?

    Most likely. And the worst case: Patent companies have unproportionately large legal bases to enact lawsuits towards. If you are a peon, you will lose, either by 20+ year trial, or directly. Note that 17 years is length of patent.

    4. What if the children of the people you modified with night vision inherit the gene? Do they owe royalties?

    There was probably a contract that included offspring in the original document. They will likely owe royalties. If they do not pay, the company will probably try a copyright suit along with a patent suit, because you knowingly infringed on copyright. Since it's knowingly, fees are upwards 35000$-250000$. Thank the copyright system.

  • Re:Oh Boy (Score:3, Interesting)

    by DoofusOfDeath ( 636671 ) on Tuesday February 03, 2009 @03:21PM (#26715049)

    Software only became patentable after Microsoft vs Stac, so this could be seen as just reversing a previous bit of judicial activism.

    Great point. OTOH, the Congress could have written software patents out of the law if they really wanted to. But no argument on your point.

  • Re:Oh Boy (Score:3, Interesting)

    by jonbryce ( 703250 ) on Tuesday February 03, 2009 @03:45PM (#26715485) Homepage

    As indeed the European Parliament did.

    Political activism can work. It did in Europe. Campaign contributions are all very well, but if you want to be re-elected, you do need to give your voters at least some of what they want.

  • by Anonymous Coward on Tuesday February 03, 2009 @04:06PM (#26715885)

    As a patent attorney, I need to be careful in voicing my opinion on this, but I do hope that the net result of Bilski stands. It would turn back the tide against the idiocy that started with State Street. The non-machine based patents have gotten out of hand. I am a geek and computer nut/engineer first, and I want to see business method patent that contain no real manifestation of the method rendered useless. Otherwise, taken to the extreme, screenwriters could start patenting movie storylines. (When I think of it, I suppose it could be done right now. Big method claim of "A method for creating tension in an audience, the method comprising: a first actor exchanging dialogue with a second actor, said first actor orienting a gun in line with said second actor..."

    The good thing about the SCOTUS taking this up would be if they CLEARLY lay out a test for determining patentable subject matter. In the old days, you had to tie it to something physical. Right now, signals in the ether could receive patent protection.

  • by DrgnDancer ( 137700 ) on Tuesday February 03, 2009 @04:46PM (#26716537) Homepage

    I think he talking about things like VOIP. In theory you could, for no additional cost over what you already pay for high speed Internet do all of your telephony over your computer, or use a system like Vonage to create a "phone" system that piggie backs off of your Internet. The problem is that patents prevent or limit this kind of thing. Vonage, IIRC, paid a fairly large settlement to Verizon for patent infringement and now has to pay royalties to operate. This is almost certainly increasing their overall prices and making them more likely to fail in the middle term.

    This kind of thing remain possible to do, but very often you're stuck with a more crippled system than it could be, or companies simply choose not to enter the market. At least in theory if software patents disappeared tomorrow, more VOIP type solutions might become available and the current player might be able to lower prices and become more competitive.

  • Re:Riiiigghht (Score:5, Interesting)

    by jhfry ( 829244 ) on Tuesday February 03, 2009 @05:12PM (#26716983)

    Patents mean that you might not be legally allowed to use the results of your R&D without paying off someone else first. They also don't ensure that the results of your R&D will actually be useful or sellable. The only mean that others can't directly copy your results, but copying something physical takes long enough that you'd probably have a substantial first-mover advantage anyway.

    To provide a vague but true example, I recently worked for a startup that developed a product independently for something that was fairly obvious (applying existing technology to a different industry), and during a patent search it was discovered that to bring their product to market would violate several patents (all of them software).

    After trying to re-design the product to steer clear of patent issues, the product never achieved its potential before the money ran out. Had we taken the direct route, we would have been done and sold a million units by now.

    The problem with process and method patents is that they patent the goal rather than how the goal was achieved. With a typical mechanical patent, you first state your goal and then patent the 'way' to achieve the goal. If someone wants to achieve the same goal they can, so long as they use a different 'way' to get there. A process patent frequently focuses on the goal rather than the way.

    For example, I should be able to implement a way of creating a PDF compatible file without violating any patents... assuming I used different code to achive the same result. This being the case, there is little reason to patent software, as it's trivial to change code and arrive at the same result.

    Or, say I want to encode an MPEG compliant file, so long as I don't use the same code as someone else, I should be able to create my own implementation without being in violation of any patents or copyrights.

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