Patents For Software and Genetic Code Could Be Revived By Two Bills In Congress (arstechnica.com) 51
An anonymous reader quotes a report from Ars Technica: The Senate Judiciary Committee is scheduled to consider two bills Thursday that would effectively nullify the Supreme Court's rulings against patents on broad software processes and human genes. Open source and Internet freedom advocates are mobilizing and pushing back. The Patent Eligibility Restoration Act (or PERA, S. 2140), sponsored by Sens. Thom Tillis (R-NC) and Chris Coons (D-Del.), would amend US Code such that "all judicial exceptions to patent eligibility are eliminated." That would include the 2014 ruling in which the Supreme Court held, with Justice Clarence Thomas writing, that simply performing an existing process on a computer does not make it a new, patentable invention. "The relevant question is whether the claims here do more than simply instruct the practitioner to implement the abstract idea of intermediated settlement on a generic computer," Thomas wrote. "They do not." That case also drew on Bilski v. Kappos, a case in which a patent was proposed based solely on the concept of hedging against price fluctuations in commodity markets. [...]
Another wrinkle in the PERA bill involves genetic patents. The Supreme Court ruled in June 2013 that pieces of DNA that occur naturally in the genomes of humans or other organisms cannot, themselves, be patented. Myriad Genetics had previously been granted patents on genes associated with breast and ovarian cancer, BRCA1 and BRCA2, which were targeted in a lawsuit led by the American Civil Liberties Union (ACLU). The resulting Supreme Court decision -- this one also written by Thomas -- found that information that naturally occurs in the human genome could not be the subject to a patent, even if the patent covered the process of isolating that information from the rest of the genome. As with broad software patents, PERA would seemingly allow for the patenting of isolated human genes and connections between those genes and diseases like cancer. [...] The Judiciary Committee is set to debate and potentially amend or rewrite PREVAIL and PERA (i.e. mark up) on Thursday.
Another wrinkle in the PERA bill involves genetic patents. The Supreme Court ruled in June 2013 that pieces of DNA that occur naturally in the genomes of humans or other organisms cannot, themselves, be patented. Myriad Genetics had previously been granted patents on genes associated with breast and ovarian cancer, BRCA1 and BRCA2, which were targeted in a lawsuit led by the American Civil Liberties Union (ACLU). The resulting Supreme Court decision -- this one also written by Thomas -- found that information that naturally occurs in the human genome could not be the subject to a patent, even if the patent covered the process of isolating that information from the rest of the genome. As with broad software patents, PERA would seemingly allow for the patenting of isolated human genes and connections between those genes and diseases like cancer. [...] The Judiciary Committee is set to debate and potentially amend or rewrite PREVAIL and PERA (i.e. mark up) on Thursday.
I Patent useing the letter "E" on an computer and (Score:2)
I Patent useing the letter "E" on an computer and will charge $0.0002 per use!
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$0.0002 per use
I hope you don't represent Verizon [blogspot.com]
Legislation is the way to settle this (Score:2, Interesting)
While I may disagree with the intent of the legislation, I agree with the basic premise that law should not be open interpretation, depending on a court ruling to determine what they really mean... because a we have seen in recent years, the make up of the court can flip judicial precedent on its head at any given time.
If the courts determine that a law says X when it was intended to mean Y, then Congress needs to get off its ass, do its job, and rewrite the legislation to mean Y. Maybe there can be a proc
do you have 250K-500K+ to fight an patent troll? (Score:2)
do you have 250K-500K+ to fight an patent troll?
+1 (Score:2)
A good 60-70% of the time the supreme court rules on something, they aren't saying the government can or can't do something, they are saying there needs to be a law stating so.
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Yes, and the other 30-40% of the time they are striking down the laws "stating so".
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Exactly. And those are usually laws that are in violation of the higher law of the Constitution. It defines the maximum scope of laws.
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Re:Legislation is the way to settle this (Score:4, Interesting)
Sounds like they're trying to overrule a court decision
The court decision means that the law isn't clear.
So, Congress should clarify the law to agree with the court or overrule it.
It's disappointing that Congress is allowing these patents, but that's where the big campaign contributions are.
When Clarence Thomas and the ACLU agree on something, perhaps Congress should take their advice.
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"The court decision means that the law isn't clear."
No it doesn't.
"It's disappointing that Congress is allowing these patents, but that's where the big campaign contributions are."
Congress doesn't "allow" patents, nor are "big campaign contributions" directed to allowing patents. This comment displays complete ignorance.
"When Clarence Thomas and the ACLU agree on something, perhaps Congress should take their advice."
Unless that advice is terrible. Why are you assuming that judicial exceptions are bad?
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Sorry, got turned around by the odd comments. The Congress is not allowing patents of "judicial exceptions", the bill, if it becomes law, may eliminate judicial exceptions as a reason for rejecting a patent. That doesn't mean a patent is allowed, Congress does not allow patents.
Also, judicial exceptions serve a useful purpose, eliminating them would be bad but they would simply be replaced with others. If the law were written to prevent all judicial exceptions, it would simply be found to be unconstituti
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We all know that actual "advances in computing" are extremely rare. It's almost all incremental advancement and mostly speed or parallelism. True algorithm advancement can be patented, at least it looks that way based on patented CODECs and such. So what's left is the 99% that really do read like "XYZ from 50 years ago, but using a computer". That's not a useful patent for anyone other than the jerk that patented it for trolling. The way current patents work, no, I don't want them more involved in computing
Re:Legislation is the way to settle this (Score:5, Interesting)
"all judicial exceptions to patent eligibility are eliminated." Sounds like they're trying to overrule a court decision, rather than just write the law in a certain way.
The proposed law actually *codifies* Clarence Thomas's exception as law:
(i) process claims drawn solely to the steps undertaken by human beings in methods of doing business, performing dance moves, offering marriage proposals, and the like shall not be eligible for patent coverage, and adding a non-essential ref- erence to a computer by merely stating, for example, ‘‘do it on a computer’’ shall not establish such eligibility;
along with a bunch of other exceptions. So the Slashdot summary appears to be prima facie incorrect. But it does effectively overturn multiple other rulings, mostly in a manner that IMO would be rather harmful to society.
In particular, allowing a patent on a human gene merely for isolating it is appalling. It is a fundamental violation of the basic rights of every man, woman, and child in the world. Doubly so when combined with the changes to process patents, which could be interpreted to expand their scope to include inventions such as patenting the use of salt to treat some kind of disease, where what is being patented is literally nothing more than an idea that is obvious once you know that the substance can be used for some purpose. And this interpretation is supported by multiple parts of the proposed law, so this seems unlikely to be accidental. This is a VERY, VERY bad law that is being proposed, at least as currently written.
But the bigger problem I see with this proposed law is that this opens up the possibility of patenting abstract ideas (one of the broadly accepted judicial exceptions), and does so without fixing any of the loopholes that need to be fixed in patent law.
What's happening in the field of patents these days is that a combination of ineptitude and regulatory capture, coupled with a lack of adequate laws requiring patents to actually be written in something approaching human-readable English, has resulted in patents written in a style that very deliberately obfuscates what the inventions actually do, precisely because so many of them would be rejected as obvious were they worded simply, and the USPTO, apparently incorrectly believing that a patent that is hard to understand must be both profound (rather than worthless) and non-obvious to someone with average skill in the art (rather than merely impenetrable), tends to accept these patents by default, rather than following the law and rejecting them by default for not even being understandable by someone with average skill in the art who doesn't also have a law degree with specialization in patent law.
As a result, the vast majority of patents that are currently "valid" are not actually valid, failing either the obviousness test, the prior art test, or both. About 60% of patents, once litigated, are found to be invalid. And these patents do nothing for the world as a whole.
The purpose of a patent is to secure a limited monopoly on an invention so that others cannot create a substantially similar invention and undercut you while you are still finding your market, in exchange for providing enough information about your invention to ensure that someone else will be able to actually make the invention after the patent expires, so the invention won't die with the inventor. A patent is *NOT* intended for the purpose of securing a limited monopoly on an idea without a usable implementation so that nobody else can implement it, nor to secure a limited monopoly on an invention (implemented or otherwise) while providing an explanation so opaque that you can better understand how the invention works by using it or looking at it.
All of the sorts of patents that get thrown out by the court, including the broad classes of patents talked about here, are bad patents. They contribute nothing to the useful arts.
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In particular, allowing a patent on a human gene merely for isolating it is appalling.
Throwing out previous court cases doesn't make them eligible - they still wouldn't be under even the current law.
They would just have to be adjudicated without case law. Which takes longer if there's a lawsuit.
You can't patent information. You can't patent a trivial thing that is obvious (like "x" but on a computer). You never could except with wording so confusing that a USPTO employee rubber stamps it anyway.
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You use the term "law" without understanding what that means, then you assume that "the courts" would willingly participate in an outcome they do not want.
"Legislation" includes the constitution. You don't simply "rewrite" the constitution. The Supreme Court, as it currently exists, desires to establish "law" the way they see fit, they will not "make sure that a bill Y really means Y" when they do not want Y. They INTEND to violate "checks and balances", this "judicial precedent as case law legislation f
Who is paying Tillis & Coons? (Score:5, Insightful)
Someone must be handing over a bi bag of cash to these politicians for trying to make something silly patent-able again.
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Hey.. be happy.. republicans and democrats are getting along.. This is what we want, right?
Besides, there's money to be made, find a way to cash in
In every disaster there is an opportunity
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How did this post get a -1? It's true, whenever you see actual bipartisanship, it means it's time for the politicians to get out the knives and carve out a piece of your hide.
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*Since its open season on patenting the human genome, dibs on the insulin gene. Any manufacturers of insulin must contact Buck-Yar for permission and licensing. By reading this you agree to all
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Indeed. I'd bet a paycheck there is oligopoly money involved. Only bigger companies can afford the army of lawyers and spin-doctors needed to win patent suits.
Crony capitalism (Score:2, Insightful)
Expanding the reach of patents won't make it easier to do business but it will line the pockets of a select few. And, of course, lawyers.
The quality of our politicians is atrocious - I mean FFS, the cream of the crop, the very best we can offer to lead the free world is Kamala and Donald... Really?!
Democracy is a scam.
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Or Texas beating a woman's ass for controlling her own body. What are women thinking?
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Or Texas beating a woman's ass for controlling her own body. What are women thinking?
To be brutally honest, most of society would be more than glad to accept the more valid reasons for abortion (rape, incest, life of the mother).
Instead we have to listen to feminists excuse and dismiss 95% of abortions created by nothing more than selfish irresponsibility. Don't pretend to justify 50 million deaths per year globally when no war, disease, or virus can even come close. We know how to resolve the abortion issue through reasonable compromise . We refuse to, because that would require a certa
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"The Founding Fathers also made clear what the Tree of Liberty needs to be refreshed with from time to time. Being this bad off, perhaps a Civil War is long overdue. Should be quite comedic."
Thanks for the feedback comrade. I would worry that Putin's checks may start to bounce if I were you.
"Texas alone could manhandle liberalism with ease."
Texas couldn't handle its own liberal uprising. It's a majority minority state that is already Democratic pretending to be Republican. Its figurehead conservative is
Shouldn't be able to patent nature (Score:5, Insightful)
If a gene exists in nature and has evolved without any human intervention then you shouldn't be able to own that gene (or it's effects on the organism it's part of such as cancer) in any way just because you happened to figure out what that gene does.
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Fucking morons (Score:5, Interesting)
This will kill people. Let me give you a specific example. In the future, it will be possible to target cancer based on what genes or DNA code is mutated in it. This can be done a number of ways, but for illustration here's one way. We can find out the mutations in a cancer using a process called sequencing. Upon sequencing, if we find out a person's cancer has a mutation in the BCL1 gene, we can encode a special DNA targeting probe that enters cells and detects that the mutant BCL1 gene is present. If that mutant BCL1 gene is present, the probe will change its own configuration such that it becomes essentially a nuke and destroys the cell. Note, I've actually tested something like this. (FYI, it works, but is probably 15 to 25 years away from the clinic.) If the BCL1 gene is patented, that probe is illegal because we'll be making use of their patented gene. Note I used BCL1 as it popped in my head as an example, but this is applicable to any gene or sequence in the genome (it doesn't even have to be a gene, but it must be in an accessible region of a chromosome).
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Killing the right kind of people is certainly the goal of one of our two major political parties at this point. Religious extremists never believe the dying is going to apply to them.
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"If the BCL1 gene is patented, that probe is illegal because we'll be making use of their patented gene."
False. Patents do not make use of patents illegal, they just grant rights of use to patent holders. Patents can be licensed.
What kills people is capitalism. If patents offend you, perhaps reconsider the very concept of making health outcomes profit-driven.
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There are 50,000 genes and even more functional parts of the genome that are potentially patentable in this scenario. So if someone has an issue that is targetable in their genome we'll have to check the patent database and find out who owns the rights to it, hope they are easily contactable and then say whatever fee they demand in order to save someone's life? If the person sick is someone they don't like (it could happen, what if they're racist or something), then they could outright refuse to license it.
wouldnt this be cover by (Score:2)
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The rent-seekers' law (Score:5, Insightful)
Why don't we go a step further (Score:2)
And let companies patient a human hand or heart and charge royalties on every living person? What's these companies want is halfway there, and it's sick. If they pass this it pioves the US is morally corrupt and caters to lobbyists and companies
Great (Score:2)
The courts can go back to dealing with all the patent trolls that dug a piece of paper up and think they're entitled to billions.
PERA is patently insane (Score:3)
Prior art and obvious are gone as are requirement to actually usefully describe invention.
(1) IN GENERAL. In determining whether, under this section, a claimed invention is eligible for a patent, eligibility shall be determined
(B) without regard to
(i) the manner in which the claimed invention was made
(ii) whether a claim element is known, conventional, routine, or naturally occurring
(iii) the state of the applicable art as of the date on which the claimed invention is invented;
(iv) any other consideration in section 102, 103, or 112.
What are sections 102, 103 and 112?
Section 102:
(a) Novelty; Prior Art. A person shall be entitled to a patent unless -
(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Section 103:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Section 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.