Supreme Court To Review Software Patents 115
New submitter chrylis writes "SCOTUSblog is reporting that the U.S. Supreme Court has accepted an appeal in Alice v. CLS Bank, a case in which the Federal Circuit ruled haphazardly that the particular patents in question were invalid but did not address the issue of software patents generally. 'The case will provide a new test of the Patent Act’s most basic provision — Section 101, which broadly outlines what kinds of inventions are patentable. One of the long-standing exceptions to the types of inventions mentioned in that section is that an abstract idea can never be patented. That issue arises frequently these days, especially with rapidly developing technology in computer software. The EFF wrote a summary of the issues in the case when it was before the Federal Circuit this spring. The case files are also available."
Expect... (Score:3, Interesting)
Expect the narrowest possible ruling, one which applies only to the case in front of the Supreme Court and maintains the status quo for all other software patents.
Re:Expect... (Score:4, Interesting)
Expect yet another 5-4 ruling in favor of big business.
Which big business? Where are big businesses interests on both sides of this issue.
I'm not holding my breath (Score:4, Interesting)
Re:Great... (Score:5, Interesting)
And then they vote according to whichever way their ideological predisposition leads them.
That's true for a wide variety of Supreme Court decisions, but doesn't actually seem to be the case in patent law. It's not unusual to see, for example, Antonin Scalia and Ruth Bader Ginsburg on the same side of a patent ruling, which almost never happens on the kind of politically charged cases that make front-page national news.
Re:Some background (Score:3, Interesting)
In my opinion, it appears that main patent simply added "on the computer" to an existing process, namely in an business transaction between two parties, there is a third party that ensures that payment is made and is facilitated. The computer made the transaction faster and more automated as noted by Judge Lourie in his opinion.
That is the heart of the Business Process patent laws. It's not about "invention", it's about 'ownership' of ideas. I can extend any patent you own, as long as I pay you royalty for your idea. This is one of the main reasons these laws are so bad!
You patent "2+2=4"
I come back and patent (2+2=4) - 1 = 3, acknowledge your original patent and will give you 50% of what I make on my extension of your patent.
Now anyone that uses "2+4=4" can be sued, but also anyone using my extension can be sued. The best part is that we make enough money to sue anyone that uses a result of 4 or 3 and put them out of business for potential violation of our patents.
Nobody should be amazed at how these patents have fucked up both the economy and IT industry as a whole. We gave the same exact arguments when Bush the first was trying to pass the patent laws, and they were passed regardless of what experts said. (Follow the money on that one).
What is amazing, is that it has taken this long to make it to the Supreme Court for ruling.
Re:Great... (Score:5, Interesting)
The ideological dispositions in the legal community do not line up at all with political ones. On patents, the SCOTUS is fairly strongly on the side of rejecting patents on existing practices "on a computer." They refuse to throw out process and software patents categorically, but OTOH they don't really see any process patents they like.
In the case here, the U.S. Court of Appeals for the Federal Circuit agreed the patent was invalid, but couldn't find a majority on a single theory of why. So the SCOTUS is going to be writing a new test for when software patents are valid. Based on past rulings by this court, a clear rule will almost certainly invalidate a lot of existing patents that are currently seen as being in gray areas.
Re:Expect... (Score:5, Interesting)
I'd expect this much if anything. SCOTUS cannot fix the software patents. It is not even clear what a "software patent" is. IANAL, but the way I understand the patent law, there is absolutely no difference. If you have a gizmo that does A, B, and C, then you can patent it, and how exactly it meets these claims in terms of technology is irrelevant. The patent law itself is oppressive: it infringes on our right to free expression, while providing no discernible benefit to the public. Only the lawmakers can fix this clusterfuck, and they can do so trivially, by gradually shrinking the protection term, giving the manufacturers some time to adapt. But they, of course, lack the will to do so, since they respect the opinions of plutocrats way more than those of the general public.
RMS also advocates a way to get to the same goal in discrete steps, by making patents unenforceable in certain fields (like the medical field or the general purpose computing field). The precedents exist: the surgeons are allowed to ignore patents while curing people. This is much better than defining "software patents" within the law, since any such definition will probably be circumvented by technological means. Rent-seekers could simply inject enough non-software payload into a device and patent it anyway.
Re:more credit (Score:3, Interesting)
I should add that this is definitely the best shot we have at dealing with software patents.
It's clear that, because of corporate interests, the legislative branch won't really fix things. (Although it sounds like a few congresscritters have their heads screwed on straight, they're definitely in the minority.)
The executive branch doesn't have the authority to fix things, and it probably wouldn't even if it could. (See the current FFC chair.)
The judicial branch is the least corruptible branch of the federal government; the important judges have life appointments, so they don't have to run for reelection, and they're not total morons either -- unlike many politicians. (Say what you will about lawyers and law school, but graduating from Harvard, Yale, or Columbia law school is a valid not-a-total-moron test.)
Here's to hoping...
Re:Obviousness (Score:2, Interesting)
I said: "natural result of the engineering process under the current environment"
A lot of companies design the exact same features using the exact same components (hardware or software)
You're not "inventing" anything when you're the first one to assemble stuff if other companies are independently right behind (as requested by their customers, and pushed by their suppliers). Per the patent office, you did something non-trivial and therefore deserve a patent. So you can charge them for "using your invention".
It's not a question of effort/money saved, it about the actual need to discriminate "invention" vs "complex implementation".
"invention" should be rewarded, not "I did something first". That's why my tax dollars are supposed to pay for expert patent reviewers, not rubber-stampers.
Re:fuck yes (Score:5, Interesting)
Contrary to Judge Moore's worries (second link in the article) this would open the floodgates of development of software, and revitalize the industry. SCOTUS has had years of watching the mess this made in industry, and the endless litigation over trivial ideas.
They may well overrule CLS Bank.
No longer could a company sit on a minor IDEA, cast into code, and then patented simply because it was code. They would have to continue to innovate, and perhaps market a product instead of launching lawsuit after lawsuit. Look around at the software patents that are holding back progress on a number of fronts. Just try to come up with a new Codec (like VP8) and watch the trolls band together (MPEG LA) to create a patent pool to go after your product.
I suggest the Audio and Video industries alone would make more progress in the first 4 years after striking down software patents than they have for the last 20 years.
Moore worry that no research on new computerized functions would take place because they couldn't be patented is about as well founded as saying no one would invent a new recipe for Chicken Soup because it couldn't be patented.
Obviousness is tough (Score:4, Interesting)
IAAPA (I am a patent agent)- My take on the matter is that software patents pass the threshold for patent eligibility, but not for patentability, which is quite different. Most software-implemented subject matter is certainly patent-eligible, but ought to be struck down under 35 U.S.C. 103 (non-obviousness). Courts have said that 101 is a threshold inquiry, and in my opinion I don't see why slashdotters would have a problem with striking down software patents not because as a class of subject matter they are ineligible, but because the vast majority are obvious.
IAAPatent Attorney, and I think you're absolutely right - many of these claims that get struck down under 101 should really have been struck down under 35 USC 102 (novelty) or 103 (obviousness), but that requires searching for prior art and making a prima facie case, and as you know, that's haaaaaaard. It's a lot easier to simply say "I'm sure there's art out there for it... but rather than look for it, I'll just wave my hands and say 'abracadbr- er, abstract idea' and then I can dismiss this case, and the outcome is correct, even if the process is backwards." And, because many Slashdotters are pragmatic engineerin' folks, they frequently care about the outcome more than the process: as long as Mr. Bilski doesn't get his hedge fund patent, then who cares whether it's rejected under 101, 102, 103, 112, or some other high-falutin' number?
But the problem is, part of pragmatism is predictability: if we can't tell ahead of time whether some patent is statutorily valid or invalid, then, pragmatically, how do you make business decisions? It'd be like writing a program, having the compiler tell you it won't run, but never being given any clues or indications as to where your error was. The result is the same - the program crashed - but it doesn't give you any ability to write proper programs in the future, or predict ahead of time whether a program will fail or not.