Software Patents Poised To Make a Comeback Under New Patent Office Rules (arstechnica.com) 77
Ben Klemens writes via Ars Technica: A landmark 2014 ruling by the Supreme Court called into question the validity of many software patents. In the wake of that ruling, countless broad software patents became invalid, dealing a blow to litigation-happy patent trolls nationwide. But this week the US Patent and Trademark Office (USPTO) proposed new rules that would make it easier to patent software. If those rules take effect, it could take us back to the bad old days when it was easy to get broad software patents -- and to sue companies that accidentally infringe them.
The Federal Circuit Appeals Court is the nation's highest patent court below the Supreme Court, and it is notoriously patent friendly. Ever since the Supreme Court's 2014 ruling, known as Alice v. CLS Bank, the Federal Circuit has worked to blunt the ruling's impact. In a 2016 ruling called Enfish, the Federal Circuit ruling took a single sentence from the Supreme Court's 2014 ruling and used it as the legal foundation for approving more software patents. This legal theory, known as the "technical effects doctrine," holds that software that improves the functioning of a computer should be eligible for a patent. A version of this rule has long held sway in Europe, but it has only recently started to have an impact in U.S. law.
This week, the Patent Office published a new draft of the section on examining software and other potentially abstract ideas in its Manual of Patent Examination Procedure (MPEP). This is the official document that helps patent examiners understand and interpret relevant legal principles. The latest version, drawing on recent Federal Circuit rulings, includes far tighter restrictions on what may be excluded from patentability. This matters because there's significant evidence that the proliferation of software patents during the 1990s and 2000s had a detrimental impact on innovation -- precisely the opposite of how patents are supposed to work.
The Federal Circuit Appeals Court is the nation's highest patent court below the Supreme Court, and it is notoriously patent friendly. Ever since the Supreme Court's 2014 ruling, known as Alice v. CLS Bank, the Federal Circuit has worked to blunt the ruling's impact. In a 2016 ruling called Enfish, the Federal Circuit ruling took a single sentence from the Supreme Court's 2014 ruling and used it as the legal foundation for approving more software patents. This legal theory, known as the "technical effects doctrine," holds that software that improves the functioning of a computer should be eligible for a patent. A version of this rule has long held sway in Europe, but it has only recently started to have an impact in U.S. law.
This week, the Patent Office published a new draft of the section on examining software and other potentially abstract ideas in its Manual of Patent Examination Procedure (MPEP). This is the official document that helps patent examiners understand and interpret relevant legal principles. The latest version, drawing on recent Federal Circuit rulings, includes far tighter restrictions on what may be excluded from patentability. This matters because there's significant evidence that the proliferation of software patents during the 1990s and 2000s had a detrimental impact on innovation -- precisely the opposite of how patents are supposed to work.
Software already has IP protection (Score:5, Insightful)
It's called copyright.
And at least with copyright, you may be able to make a fair use claim when you make a copy that is strictly for personal use... with patents, no fair use exemption exists.
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Correct, and furthermore, the entire purpose of patents is to teach others your inventive ideas to further technical advancement. "Personal use for research purposes" is the entire point of patents, and in exchange you are granted a limited monopoly (which is commercial in nature).
The suggestion that patents lack "faIr use" is absurd.
The purpose of patents (Score:2)
Correct, and furthermore, the entire purpose of patents is to teach others your inventive ideas to further technical advancement.
That is the purported purpose of patents. It is not in practice the actual purpose of them as things stand today. The de-facto purpose of patents is to protect the profits of the company holding the patent. It's fairly rare that patents today ever describe something that would be unknown otherwise to practitioners in the field. This is not to say patents are pointless/useless but they certainly have been co-opted and are in need of reform.
The suggestion that patents lack "faIr use" is absurd.
This is by and large correct. If I copy someone's patented widge
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Copyrights and patents do not overlap and serve different purposes. The existence of copyright does not mean that patents don't apply to software.
Also, fair use is a term applied only to copyright, that doesn't mean that patents lack usage exemptions.
Same purpose and same core problem (Score:4, Insightful)
Copyrights and patents do not overlap and serve different purposes.
The very fact that software can be both copyrighted and patented shows your argument to be incorrect as a practical matter. Furthermore the core purpose of both is to address the free rider problem [wikipedia.org]. Copyright deals with it for documented creative works and patents are supposed to deal with it for tangible practical inventions but they are solving the same problem in two different domains with different practical requirements.
The existence of copyright does not mean that patents don't apply to software.
Obviously but one can make a very reasonable argument that because software is copyrighted, patents should not and need not apply to software. Software at its core is nothing more than a fancy math formula. It's instructions to a machine. I have yet to see any credible argument detailing how society benefits if we should allow patents on mathematical formulas or any other intangible idea like a business process.
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Copyrights and patents do not overlap and serve different purposes.
The very fact that software can be both copyrighted and patented shows your argument to be incorrect as a practical matter.
[snip]
Obviously but one can make a very reasonable argument that because software is copyrighted, patents should not and need not apply to software.
While they do overlap, GP is right that they serve different purposes. Copyright provides strong protection against copying that specific work - e.g. piracy. It provides little to no protection against competitors who recreate the work on their own, which is where patents come in. This is particularly important in software, as it's rare that competitors want the specific work rather than just anything providing the functionality.
For example, copyright is great for movies or music, because people want to se
Economic harm (Score:2)
While they do overlap, GP is right that they serve different purposes.
Of course copyright and patents do have different intents and apply to very different sorts of works. But it does not follow that some works could not be in principle covered by both.
And if machines are patentable, why shouldn't a process using those machines be patentable?
To answer that question you have to answer what the harm versus benefit to society is from allowing them or not. It's a reasonable question to ask. Speaking broadly I would argue that there are several reasons to not allow them:
1) The free rider problem does not cause sufficient economic harm to justify allowing them (this i
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Or, looked at another way, any software can be implemented in hardware elements (FPGAs, ASICs, etc.). Why should one implementation be patentable while another is not?
Because the hardware implementations are invariably more than just software in a crunchy shell. That said it's a reasonable question. My take on it is that the hardware could be patented if it involves sufficiently novel physics but the code should be adequately covered by copyright. Words on a page versus words on a monitor are still words. The exact medium the come on is (or should be) irrelevant for copyright purposes.
But the hardware implementations aren't running code - the code is instructions to a general purpose processor to configure it in the same manner as those hardware implementations, and the hardware wouldn't have "words on a monitor". So, no, an ASIC chip may do exactly the same thing as your software does, but wouldn't infringe your copyright.
This is what you get (Score:5, Informative)
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Nothing of what you said proved money in politics can't be regulated on some level. You're just a nihilist. The reason it IS NOT NOW regulated well is by the design of unscrupulous people involved with the Citizens United decision.
Re:This is what you get (Score:4, Insightful)
I'd think this runs both ways with corporations as they're just as likely to get hassled as to hassle someone. Perhaps the big boys will just pay each other off or otherwise collude to keep the small fry at bay. Disgusting.
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Everyone seems to forget a lot of politicians are in fact Lawyers and they do shit that favours lawyers and no one else bad lawyers, in fact laws made worse or obfuscated because that feeds lawyers and legal firms, of which many politicians and check out their families, are members. Bad laws, poorly written on purpose by lawyers to fill the pockets of their lawyer friends and family at everyone eles's expense. To prove how bad lawyers are, look no further than IBM and Microsoft, IBMs own in house lawyers di
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...do not involve them in the negotiating process unless you want it to blow out in time and cost, on purpose.
That's easy to say from not-a-lawyer perspective, when you haven't seen shit fail due to bad contracts. I can easily imagine people building an IT system saying "don't involve the security guys unless you want it to blow out in time and cost, on purpose".
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Perhaps the big boys will just pay each other off or otherwise collude to keep the small fry at bay.
There's no "Perhaps" to it. That is exactly what the big tech corporations have been doing for decades.
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Start showing up all the time. And write letters. Mine usually say something to the effect of "dear sir/madame, i usually do not vote. But your drafting of bill "xyzfuinthea" is inspiring me not only to vote for whomever is running against you, but to bring 8 of my friends to vote for your opponent as well. We will also be visiting your neighborhood to elucidate your neighbors on your incompetent greed. Additionally we will be canvassing near your child's school so that their classmates will tell them what
just move countries - well done USA - move out (Score:4, Insightful)
dont have a office in the USA or bank account (you can still accept US dollars etc )
USA is the last place you want to pay tax's
If your selling software even a small amount do as the large corporate entities do and pay no tax... It's the American Corporate Way
vote with your dollars and tax then they might get the message...
Re:This is what you get (Score:5, Insightful)
It actually wouldn't be so bad if those politicians were just pro-corporation. But what they are is pro-their-donors, which makes them pro status quo. It is in their interests to protect their donors against the entry of new competitors to the market.
Many years ago I was CTO in a small startup and every so often someone would come into my office and say, "Hey, listen to this. There's this patent..."
And I'd stop him right there. "STOP. This is going to be some bullshit patent where they took stuff people have been doing for years with LORAN, but do it with GPS instead or something like that."
"Well, yeah. So what they did was..."
And I'd have to stop him again. "STOP. I can't hear this. If this is something we're already doing and they find out, we'll have to negotiate a settlement. But if I've heard what this patent does, we'll have to negotiate while facing treble damages."
Software patent examiners were so bad, they frequently enabled trolls and entrenched players block new competitors from using long established practices in conjunction with commonplace new technologies. And they remained bad for so many years, not despite stifling new competition. If politicians were pro competition that problem would have been fixed immediately.
This made looking at patents an extremely risky for a working software engineer. That undermines the whole basis of the patent system, which isn't there to benefit only inventors. The patent system is at its root a deal: you the inventor get a limited time, government enforced monopoly on your invention in return for disclosing how the invention works. That disclosure means that at the conclusion of the patent the ideas go into the public domain as common knowledge.
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This isn't pro-corporate - this is a self licking ice cream cone for the patent application process. This is in the interest in maximizing the "business" done by the USPTO and maximizing the revenue for everyone associated with it. Corporations just take advantage of this - they are not the drivers of this policy. Government organizations take on a private business mentality and do everything they can to expand, grow, etc. In theory, if a portion of the government becomes obsolete, it would be removed.
I patent useing the letter E in software! (Score:2)
I patent useing the letter E in software!
Impeachment (Score:3, Insightful)
Every single judge in the ninth circuit that votes to ignore the Supreme Court needs to be impeached and removed from office. I would also be favorable to giving some of them jail time.
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Every single judge in the ninth circuit that votes to ignore the Supreme Court needs to be impeached and removed from office. I would also be favorable to giving some of them jail time.
The article is talking about the Federal Circuit, not the Ninth Circuit. The Federal Circuit hears appeals to patent cases nationwide. And I don't think there is any mechanism, nor should there be, for jailing judges that don't interpret precedent in the way you'd like.
No circuit splits (Score:2)
As I see it, one problem with the Federal Circuit handling all patent cases is that there's never a circuit split, which means less threat of the Supreme Court accepting a case to resolve an interpretation.
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Consistently bad law is not an improvement over inconsistent law, because the inconsistent system is right at least sometimes, whereas the other is wrong every time.
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Sorry, I posted that too close to bedtime to remember which court was being discussed. Yes, the Federal Circuit judges should all be impeached as negligent.
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Although parts of the federal government have experienced a lapse in appropriated funding, the USPTO remains open for business as normal. This is possible because the agency has access to prior-year fee collections, which enables the USPTO to continue normal operations for a few weeks. Should the USPTO exhaust these funds before a partial government shutdown comes to an end, the agency would have to shut down at that time, although a small staff would continue to work to receive new applications and any other examination, post-examination, post-issuance, and PTAB or TTAB filings; receive payments related to such filings; and maintain IT infrastructure, among other functions.
Software and other potentially abstract ideas (Score:3)
Software is not an abstract idea nor has that ever been the argument.
Furthermore, these are not "proposed new rules" but new guidance and they are already "in effect" as noted later in the last paragraph. This new guidance is a good thing as it helps promote consistency and ends the craziness that erupted with the Alice decision. It is also entirely consistent with recent court rulings, the problem was that patent examiners are typically not lawyers and are not easily persuaded by legal arguments. By incorporating recent decisions in updated guidance, more consistency in granted patents can be achieved and less effort and money is wasted. This is all a good thing, it does not, in any way, make "software patents" easier to obtain.
In short, everything about this is wrong and the author is ignorant.
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Software that improves the functioning of a computer.
I can't think of any examples. Paging algorithms and VM have long since expired.
Intel has added several vector instructions to the instruction set - but supercomputers already did this. IBM has hardware assisted switching, again old hat. AI is application based so fails to improve the computer. Intels spectre and speculative execution bugs - well they dont exactly improve the functioning of a computer Sorting algorithms - done. Page and leaf databases don
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Software is not an abstract idea nor has that ever been the argument.
Furthermore, these are not "proposed new rules" but new guidance and they are already "in effect" as noted later in the last paragraph. This new guidance is a good thing as it helps promote consistency and ends the craziness that erupted with the Alice decision. It is also entirely consistent with recent court rulings, the problem was that patent examiners are typically not lawyers and are not easily persuaded by legal arguments. By incorporating recent decisions in updated guidance, more consistency in granted patents can be achieved and less effort and money is wasted. This is all a good thing, it does not, in any way, make "software patents" easier to obtain.
In short, everything about this is wrong and the author is ignorant.
All of that. Additionally, this doesn't mean that software patent trolls have been given a free pass - the USPTO simultaneously released new guidance on 35 USC 112, which covers the requirements of definiteness and disclosure, instructing Examiners to apply a very strict filter to software claims, limiting them to the specific algorithms disclosed in the application. If a patent troll tries to go too broad and claim that their patent applies to any way of achieving some effect, they're not only going to be
Want a monopoly? (Score:3)
Governments claim to oppose monopolies, yet they are the only way a real monopoly can be achieved.
The software world has been going so well with open source and lack of suffocation by government.
This is a major blow to improvements in the field.
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So that kind of high market share isn't a bad thing, so long as government stays out of it.
By the time government came in to "solve the problem", their market share had already dropped https://www.capitalism.org/ant... [capitalism.org]
If anything it seems more likely to me that they lobbied government to step in and raise barriers to entry to reduce competition.
Microsoft was summoned b
correction (Score:2)
"proposed new rules that would make it easier to patent software."
It's worth noting that these are not "new rules." Instead, it's just a memo that attempts to summarize existing law. The memo doesn't change anything re the patentability of software.
Oh great! (Score:2)
Hope all those coders who lost their jobs because no one is incentivized to write software anymore get rehired.