No, because Section 101 states that the subject matter of patent is extremely broad, and there is no statutory basis for creating an categorical distinction for software. They may, however, rule in a way that makes it harder to get particular kinds of software patents.
"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."
Yes, rayiner, that's pretty broad but I don't see software in the list. Maybe I copied it out wrong?
AIUI (as a layman), a "process" should refer to a physical process for transforming a physical product. Thus, an algorithm is not a process. I've read arguments that software is a "process" because it changes the physical state of transistors and magnetic particles within a physical computer, but I don't find that argument even slightly convincing.
But software does change a physical product, irrespective of transistor states. If I create an algorithm that allows a robot to balance on two legs, that algorithm is directly affecting the real world. This is no different than if I constructed a difference engine that through purely mechanical means had the same result.
The math is the algorithms effect on purely mathematical objects. The patent is the algorithm plus a mapping between the mathematical objects and real-world entities. This is how it should be. The problem we currently get wrong is the "non-obvious" term.
Software is different because it is a direct representation of the math, while the mechanical computer would have considerable amounts of engineering involved to create mechanical analogs for the desired computations. In software, an implementation of an algorithm, a description of an algorithm, and the algorithm itself can all be the same thing.
But software also has an interface to the physical units in question, which ultimately makes it useful in the real world. Mathematical truths are not useful in the real world until there is an application of a truth to a particular scenario. It is this "application + scenario" that is patented, not the mathematical truth.
People are way too stuck on the "software is math" bit, it is not nearly as meaningful as people think. In fact, I think it is decidedly lacking in any meaning as everything in the universe can be abstracted to "math".
In fact, I think it is decidedly lacking in any meaning as everything in the universe can be abstracted to "math".
I think some would use that as justification to abolish all patents. I would love for that to happen, but pragmatically accept that such an outcome is unlikely, and in a world partially populated by devious thieves, trolls, and free-riders, potentially undesirable.
I still think software is meaningfully different from any other embodiment of an algorithm, due to its self-descriptive nature. Most of the time when I write software, I feel much more that I am "creating" (copyright) rather than "inventing" (patent). I can just "tell" the computer to do something, and it does it. That doesn't work for wheels and gears.
Inasmuch as there are better arguments against software patents, let's raise them as well, but I see no reason to abandon the mathematical argument entirely.
> Most of the time when I write software, I feel much more that I am "creating" (copyright) rather than "inventing" (patent). I can just "tell" the computer to do something, and it does it. That doesn't work for wheels and gears.
I think this is true for the vast majority of software, and likely for the vast majority of software people try to patent. I think you raise an interesting point regarding "telling a computer what to do" vs "inventing", and this seems like it would be a good distinction between non-patentable software and that which is patentable.
There is a subset of processes that essentially involve "telling a computer what to do", and then refining those instructions until the point where the computer knows how to execute each step. Obviously, this is just a description of writing software. But this process doesn't work for all problems. There is no telling a computer to "write a symphony"--there are no standard/obvious set of refinements to that statement that will result in a working program to write a symphony. To accomplish this would require "inventing" a new algorithm (lets not go "ergo math" just yet). One would have to create a non-obvious process to govern the interactions between input sounds to create the output symphony. I don't think anyone would have a problem with saying someone "invented" a symphony writing computer program.
On the other hand, the process of "one click ordering" has an obvious set of refinements from problem statement to execution such that you cannot reasonably be said to be inventing one click ordering.
Of course, these are probably the two most obvious examples on either side of the debate, but I think it illustrates the fact that these decisions can be made rationally and fairly with some common sense guidelines.
The only process performed by my CPU is the instruction loop wherein it grabs the next instruction on the list and executes it. Every other process is emulated via that single process.
To head off the inevitable responses, you can describe a Wankel engine with mathematical expressions, but a Wankel engine is not itself a mathematical expression. Blueprints are mere descriptions of Wankel engines. However a "description" of an algorithm is the algorithm.
An algorithm is a mathematical expression, not merely something that can be described with mathematical expressions.
Consider my "method/process patent" for finding the length of a hypotenuse. It is easy to see why that is straight up math, and therefore should not be patentable. However just because they don't teach the notation used for expressing algorithms in primary school does not mean that it is not math.
The Pythagorean Theorem is ancient so it was never in any danger, but consider FFTs. FFT algorithms were not patented, but imagine what a shame it would be if they were. These type of patents have no business existing.
> FFT algorithms were not patented, but imagine what a shame it would be if they were.
The only way this conclusion follows is if you're judging patentability of an idea by the impact the idea has had. This is plainly absurd. Lets consider the opposite, what if it were invented but the algorithm kept secret because patent protection didn't exist. Would humanity have been better off in that scenario? Processes like the FFT are exactly the types of software that are reasonable to patent, and yet you want to claim the opposite precisely because it was non-obvious and so important?
FFT algorithms were not patented and were not kept secret for lack of a patent. Supposing that FFTs may have been kept secret for lack of patents is absurd because we already know what happened with FFTs without patents. Even if they had been kept secret, FFTs would have been reinvented at minimal cost to society. Had IBM patented them, society would have been fucked out of them for two decades.
FFT, and things like it, are exactly the sort of software that should not be patented. Patent your minimal-clicking checkout process or bouncy kinetic scrolling all you want, I don't like those patents but they are reasonable. Those ideas aren't algorithms, they only use them; if I hold the patent for kinetic scrolling in my hand, I am not holding kinetic scrolling itself in my hand. If I hold an FFT algorithm patent in my hand, I am holding an FFT algorithm itself in my hand. Patenting algorithms themselves is patently absurd.
Would you be okay with the Pythagorean Theorem being patented as well? Mathematics does not currently suffer a trade-secret problem. Introducing patents would do nothing but harm to society, while enriching corporations.
What else do you believe to be patentable? Should Newton and Leibniz have escalated their conflict to an all-out patent war? Calculus is non-obvious and wildly important; would society be better off if it were patented?
Or hell, maybe Feynman should have patented Feynman Diagrams! If we are patenting mathematical expressions, why not throw in novel and useful notations for mathematical expressions as well! Any mathematician, physicist, or engineer will have to join the Mathematics Patents Experts Group in order to get any useful work done without being sued into homelessness, but at least all of those people won't be keeping their creations and discoveries secret, right?
Edit: Response:
Patents are for the benefit of society, not for the benefit of the creators. You cannot evaluate the merit of patentablity without considering the benefit to society.
We are sure as shit better off in a society where anyone doing ML research doesn't have to license ideas from IBM.
So your view its "absurd" to consider what would have happened had a plausible scenario occurred to discover the implications? Clearly this is nonsense. Moving on.
>FFT, and things like it, are exactly the sort of software that should not be patented.
Again, you are judging patentability by the impact of the idea. This is nonsense. For every idea worth patenting that has been invented, the world would be better off if everyone could use that idea unencumbered. This is a tautology. The interesting question is: how many of those ideas would remain trade secrets if they weren't patentable? This is the meaningful question here.
Had IBM chosen to keep it secret (and perhaps it would have been a smart business decision to do so), the world would be decidedly worse off. If they had patented it, the world would be better off compared to the world where that invention was kept a trade secret. This is the meaningful conclusion to be drawn from the FFT scenario.
So you don't like hypotheticals? Fine--lets consider Watson. How it works is currently a trade secret. Is the world better off for them keeping it a secret or publicizing and patenting it? I'll let you decide that one.
Cooley and Tukey didn't so much invent the FFT as rediscover it. The earliest description was (as usual) buried in one of Carl Friedrich Gauss's notebooks.
By the 1960s, the algorithm's time had come. It is inconceivable that it would have remained obscure for much longer -- patent or no patent, trade secret or no trade secret. Software simply does not work that way.
Its not just whether these inventions would be kept trade secrets. In the world where you deliver physical products to people, its very easy for a company in China to just reverse engineer it then undercut you because they don't pay for R&D. In that space, a lot of these inventions just wouldn't happen because companies wouldn't bother sinking a ton of money into them.
Why on earth would you edit in your response rather than reply? HN's format is already bad enough for actual discussion, lets not drive it into the ground even further, OK?
>You cannot evaluate the merit of patentablity without considering the benefit to society.
You misunderstand my point. You are evaluating the potential patent after we have observed its impact and thus judging it as too important to patent. We do not have a crystal ball to make these sorts of judgments in general, so using that as a rationale for the particular case of FFT makes no sense.
>We are sure as shit better off in a society where anyone doing ML research doesn't have to license ideas from IBM.
So the new ideas that IBM created will languish in IBM research for however many years/decades then? The alternative is an environment where universities and researchers can expand on their ideas freely. When a new product is created, sure they would have to license tech from IBM, but this is preferable to total secrecy. Patents have not prevented a myriad of other inventions from impacting the world, why would you think these examples of software patents would be different?
> Why on earth would you edit in your response rather than reply? HN's format is already bad enough for actual discussion, lets not drive it into the ground even further, OK?
Because at the time I could not reply to your comment directly. I apologize if this has distressed you.
The reality of modern mathematics research is that most ideas do not languish as trade secrets, but are instead shared and built upon. Introducing patents into this system would do nothing but harm society and enrich corporations rich enough to throw money at legions patent lawyers.
We can look at examples from the past to predict future performance. The past paints a clear picture of patents being unnecessary, and a lack of them being beneficial to society.
And the history of mathematical research was that it existed almost solely in universities. This isn't the case anymore with recent moves from companies buying up ML talent. Also, the fact that corporations apparently have to drive innovation in these areas with deep investments is exactly the purpose of patent protection.
We can also see the history of patents on other things like processors and the like, which have not stifled innovation in these fields to an obvious degree--we still have core i7 processors and ipads. It's not clear that past history is on your side.
There's only one company that manufactures anything like an i7. While I suspect that's mainly because making high end CPUs is really hard, I don't know how confident we can be that CPU patents haven't stifled innovation.
I will easily accept that patents do stifle innovation to an extent. My point was that the stifling is not so obvious as to warrant a complete rethinking of patents in these cases. If we allow that patents on hardware have a place in the world, then patents on software directly follows from this. Software is not special in this regard (the "math" argument is tiring).
What is not clear is that a patent free environment would be preferable either, as the inner workings of modern processor tech might be kept trade secrets or worse, no one bothers to develop this technology at all. It is decidedly not obvious that software patents are some sort of exception to this rule, and its definitely not because software can be reduced to math (as everything can).
I'd have thought it is probably covered by 'process', now what I see as the problem in many software patents is that they sometimes treat software as a component in a process, leading to overly broad claims that effectively cover any attempt to solve something in software rather than drilling down into the mechanics of a particular solution.
Of course, if you did force specifics, then software patents would be pretty toothless as you can always find another process that ends up with the same result. However, if the patent office and courts had decided to take that approach, they wouldn't have had such a valuable income stream to play with, and I suspect they value that over consistency of approach.
Algorithms are not patentable but yet software is. Since any software package describes an algorithm (albeit an incredibly complex on potentially) that puts software at an odd spot.
An example of a solution would be to say that you can't go after someone for implementing an algorithm (so by extension any software). Rather than eliminating the patent eliminate that ability to enforce it. They likely wouldn't go for something so simple, but it is an example of the potential train of thought.
Software is usually claimed as a method, commonly accepted as a synonym for the statutory term process.
Some patents include claims directed to machines programmed to perform a stated method. The Federal Circuit held 20 years ago that a general-purpose that is programmed to perform a new method programming becomes a new, special-purpose computer that as such can be patented if otherwise eligible [1].
Another type of claim in a software patent is the so-called Beauregard claim. [2] That type of claim is directed to an "article of manufacture," one of the statutory categories, along the lines of the following: "15. A program storage device tangibly embodying a program of instructions for performing the method of a specified one of claims 1 through 14." That type of claim allows the patent owner to sue not just the end user for using the patented method, but also to sue the software vendor for having sold the patented article of manufacture.
(For clarity, Beauregard claims to program storage devices, etc., are unpatentable if the underlying software methods are themselves unpatentable. [3].)
"Any headline which ends in a question mark can be answered by the word no."
Unfortunately here, as it would be great to have a wise and effective Supreme Court.
The last time there was thought to be a chance to abolish software patents before the court, four conservative justices were against abolition and Scalia refused to join any opinion fully. (Scalia, comfortable knowing that he's the smartest, is often willing to be humble when he isn't sure and says so.) That situation is likely to repeat itself.
The basis for this law is that if the reporter can answer the question with a "yes" they would simply report that.
However, this can't be done with a future event. So for a future event the law doesn't apply - the reporter isn't being lazy or trying to make something out of nothing - the information is truly not available yet.
The writer of the headline and of the article are often not the same person; this may be a fine article which had a poor headline attached by someone else.
Mention of this "law" has no place on a site whose very existence is based on the idea of discussing submitted posts.
It's only used as a shallow, lazy shortcut. It doesn't add anything useful to the discussion. We'd all be better off if the people who feel compelled to post it, didn't.
On the other hand, meaningful reasons why the premise of the headline is wrong are useful, and should be encouraged.
For example, the post I'm referring to here would have provided just as much value without the reference to the "law".
How dare you derail this conversation and try to tell us what we can and can't say on a topic. You have the power of one upvote or one downvote, and that's it.
While I would love to see software patents go away, I don't think we'll see such happen through the courts. I think our best chance of that is through Congress. From my understanding of what the constitution says about patents, it's Congress' job anyway.
However, there'd be massive lobbying against such, from both patent trolls who derive all of their revenue from such, and big powerful firms like Google, Oracle, and IBM, who would lose legal cudgels against upstarts with the temerity to be a (pontential) competitive threat.
So, while worth doing, getting Congress to invalidate software patents will not be easy.
This is what pisses me off about the US system. There's no Constitutionality check prior to "enabling" a new law (and after the president signs it). So even if the Supreme Court declares something outright unconstitutional, Congress could still pass a law allowing that. That seems pretty crazy to me.
There needs to be a Constitutional Court, who's much like the Supreme Court, but who's job is not to take lawsuits, but to verify bills for constitutionality before becoming laws. This is how it's done in other countries, and the chance for passing something unconstitutional is much lower. The Supreme Court would still have the final word, if one law does get through the Constitutional Court (either because the CC judges weren't on their game, or they became more corrupt due to more direct pressure from the government to allow a certain law), and then that law ends up at the Supreme Court through lawsuits.
They already have that. It's called every single Federal court, ever.
The proper means for determining the constitutionality of a law is after it has been passed, but before it takes effect. There is no reason to determine the constitutionality of a bill before the bill has been passed, as it might not become law. Thousands of bills are considered every year. Wasting court resources on those bills, and especially the multitude of bills that would never even become law, would preclude the courts from handling anything else.
Bills never become effective immediately--there is always at least a few days of delay. If the constitutionality of a law is at issue, someone will challenge it in federal court, at which time the courts will review it. Generally, at that point the law is suspended so that it does not take effect until the constitutional review is completed.
I was thinking about gene patents recently and was wondering, if a genetic therapy was patented and an enthusiastic virus managed to carry it into your germ cells and then you had kids, what would happen to the claim of ownership on the patented genetics?
You might enjoy the novel Next, by Michael Crichton (Harvard M.D., author of E.R., Jurassic Park, etc.) Aside from the fact that most of his novels were pretty well written, the scary part is how much ahead of his time his ideas consistently were.
(His later novels, including Next, did drop slightly in quality as time went on, but Next is still a really interesting look at almost precisely the legal issue that you describe.)
The incredibly complete bibliography that you find in his novels of hundreds of citations just tends to prove out that frequently truth really is stranger than fiction. (For example, what if someone genetically engineered advertisements into the backs of sea turtles on barrier reefs?)
So far the rulings have been that you can have the genes from accidental contamination but you cannot go out of your way to take advantage of them. Which I think is stupid, but it's a consistent and workable rule.
Under that ruling, if you found out that you were passing on a gene therapy, you would be disallowed from having children with a partner where the gene is likely to be therapeutic in the children.
How do you prove you haven't gone out of your way if you start seeing that person after finding out that your germ cells were carrying the patented material?
There's a distinct category of "plant patents" which are more limited in scope to the typical "utility" patents. The CAFC has ruled that the availability of plant patents does not exclude plants from utility patent protection, which has made plant patents obsolescent. I'm not too familiar with that area of law, but as I understand it some of the bad behavior from Monsanto et al. wouldn't have been possible under the plant patent system.
In an ideal world I'd like a distinct patenting regime for software - shorter patent lifespans, compulsory licensing on reasonable and non-discriminatory terms, a broader experimental use right encompassing most non-commercial users - but if the CAFC is just going to fold it into the maximalism of utility patents, why bother?
The article begs an interesting question ignoring its link bating headline. Mainly is the supreme court over reaching when it comes to patent law and if so why.
>The United States has an expert “patent court,”the United States Court of Appeals for the Federal Circuit, that hears every appeal from around the country in cases that arise under the country’s patent laws. From California to Florida, any patent appeal goes to the Federal Circuit. Unlike areas of the law, the Federal Circuit creates nationally uniform legal standards for patent law. One of the key reasons the Supreme Court will take a case is when lower courts disagree on a legal issue. But, with patent law’s single appellate court, no such splits arise.
I get the reason why the court would want to not hear these cases based on this but I feel like it isn't clear why they would, and by that i mean a legal basis besides the obvious a philosophical wish to dismantle patent law (after an appropriate amount of googling I still have no answer) any lawyers or law-school dropouts turned programmers around who might explain this?
The CAFC is less an "expert" patent court than a notoriously corrupt patent court. [0] The corruption isn't the furtively-passing sacks of cash kind but the kind where unaccountable people are put in charge of their own power and prestige and ignore the rules that place limits on their power. [1] The Supreme Court naturally feels somewhat offended when lower courts overturn their decisions. [1 again]
This is very cool and much better insight than the forbes article... I think it can still be summed up as "they angry" being the reason they take these cases.
>One of the key reasons the Supreme Court will take a case is when lower courts disagree on a legal issue. But, with patent law’s single appellate court, no such splits arise.
This was the question that I think that I was trying to understand better, if there is no ambiguity of opinion from lower courts is the only reason they take patent cases because they just happen to disagree?
People on this site have an absurd tendency to view everyone who disagrees with them "corrupt." CAFC isn't corrupt. It does have a less than diverse representation of engineering perspectives, however.
My degree is in aerospace engineering, and I went to a school known for its traditional engineering programs (mechanical, chemical, aerospace, electrical). In this world, patents aren't viewed negatively the way they are in the software world. First because the capital requirements to enter the field are high, so you don't have little companies for whom a patent suit is an existential crisis. Second, because development is capital intensive. Pratt & Whitney develops new turbine blade designs, and patents them because developing them is tremendously expensive. In software, there is a huge field of things that are patentable that don't fulfill the economic rationale of patent (protecting expensive capital investment from free riding). So the attitude in software is very different.
CAFC is full of people with backgrounds in traditional engineering fields. Think DuPont rather than Dropbox. They have a very different perspective, and it is neither corrupt nor invalid.
What explains the Federal Circuit's relentless pro-patent bias? One obvious theory is what economists call "regulatory capture": the theory that over time, public officials will come to identify with the interest groups they are supposed to be supervising. The theory is usually applied to regulatory agencies in the executive branch (think FCC commissioners becoming Comcast lobbyists), but the theory seems to fit the Federal Circuit as well.
Patent attorneys tend to have a pro-patent bias, and these attitudes seem to have rubbed off on Federal Circuit judges. Most obviously, a significant minority of Federal Circuit judges have been patent lawyers themselves, whereas judges on other courts almost never come from a patent law background. But beyond that, the heavy load of patent cases on the court's docket means that the judges of the Federal Circuit are constantly interacting with patent lawyers. In addition to hearing their arguments in the courtroom, they read the same patent law publications as the lawyers, hire young patent lawyers to clerk for them, and are invited to speak at events organized by the patent bar.
Moreover, the prestige of the Federal Circuit itself is directly tied to the prominence of patent law in the American legal system. If the Federal Circuit had followed the stricter rules in place before the court was created, patent law might have remained a legal backwater, receiving little attention from either the legal profession or the general public. That, of course, would have made the Federal Circuit a less prestigious place to work. (From [0].)
"Corrupt" doesn't seem like too strong a word to me.
And yes, on top of that, they know very little about software.
I don't disagree with that, but I'd hardly call it corrupt. Its no different than how a lot of people in SV hang out in the same circles, listen to the same people, read the same sources, and develop a distinct way of looking at things. Case in point: I think there is a strong group think in SV that creates an idiosyncratic view of the economic importance of small startups. The fact that other people in other industries can be influenced by groupthink that causes them to maybe overvalue patent protections is hardly a sign of corruption.
They have a personal interest, albeit indirect, in tending to decide in favor of patentees. They ignore the Supreme Court's repeated (if somewhat muddled) attempts to get them to take a more balanced view.
I will grant that they're probably not cynically corrupt: they probably sincerely believe they're doing the right thing for the country. But the convergence of this belief with their personal interests is just a little too convenient.
In terms of direct personal interest, it's hard to get someone less interested than a federal COA judge. They have life tenure and a Constitutionally guaranteed six figure salary. They typically serve for life and it is exceedingly rare for them to ever return to private practice. They also have a direct incentive to make patentability more difficult: it means more work for them at no additional pay.
Do they have an indirect interest in making themselves more relevant? Possibly, but so does any court. Yet the overwhelming trend over the last few decades has been for the courts to cede territory. Strongly favoring arbitration, giving broad interpretation to bars like standing, etc. Most people worry about the opposite problem: courts declining to exercise jurisdiction in the face of the other two branches.
Calling this "corruption" stretches the word to the point it loses any meaning, and also deeply confuses the causation. The Federal Circuit doesn't skew towards aggrandizing patent law because they somehow want to benefit their former colleagues in practice (and some of the strongest advocates like Judge Reader never even practiced!) Rather, people who strongly believe in patent protections self-select into becoming Federal Circuit judges.
But I still think a strong word is called for, and I don't have a ready alternative. Maybe "renegade", the term Scalia used for the Eastern District of Texas, will do. "Ideological" doesn't quite seem strong enough to me, though it's getting there.
Yes, I agree with highly ideological and would tend to favor conferring patent appeal jurisdiction onto the general courts of appeal, because I think those judges don't experience the same echo chamber. As for concerns about subject matter expertise: we expect federal judges to understand complex RMBS cases, is patent that much harder?
In this particular case the Federal Circuit failed to reach a coherent conclusion. 10 judges were on the panel and they produced 7 opinions, of which only a single paragraph was approved by a majority of the court. It's an intra-circuit split rather than the inter-circuit splits you see in other areas of law.
How long will it take the Federal Circuit to overrule this inexplicable nonsense? The novice reader may find that question to be ignorant, since the Supreme Court is the highest court of the United States. Those well acquainted with the industry know that the Supreme Court is not the final word on patentability, and while the claims at issue in this particular case are unfortunately lost, the Federal Circuit will work to moderate (and eventually overturn) this embarrassing display by the Supreme Court. This will eventually be accomplished the same as it was after the Supreme Court definitively ruled software is not patentable in Gottschalk v. Benson, and the same as the ruling in KSR v. Teleflex will be overruled. I have taken issue with Chief Judge Rader’s statements that nothing has changed in Federal Circuit jurisprudence as a result of KSR, which is not technically true. What is true, however, is that the Federal Circuit continues to refine the KSR “common sense test,” narrowing the applicability in case after case and tightening the ability for “common sense” to be used against an application. We are almost 5 years post KSR and there is still a lot of work left to be done by the Federal Circuit to finally overrule the Supreme Court’s KSR decision. It took almost 10 years to overrule Gottschalk v. Benson, so we are likely in for a decade of work to moderate the nonsense thrust upon the industry this morning.
Indeed, Breyer’s decision is the most intellectually dishonest decision I have ever read, which is saying a lot given the utter contemptuous understanding of patent law displayed by the Supreme Court over the years. It is truly troubling that all 9 of the Justices concurred in what history will regard as one of the worst decisions in the patent space EVER!
Yes, Congress will be asked to step in and rectify this absurd ruling, and they should. Knowing how the legislative branch operates I cringe at the thought of Congress coming to the rescue. The only thing that gives me solace is that the industries summarily executed this morning have an A+ lobbying game, which in Washington, DC means everything.
> The Supreme Court already ruled against software patents in Gottschalk v. Benson.
That's not accurate; the statement is too categorical. (All categorical statements are bad, including this one.)
The 1972 Gottschalk v. Benson case [1] involved claims to a particular type of software, namely a machine-executed mathematical algorithm for converting binary-coded decimal into pure binary. The Supreme Court ruled that those particular claims were unpatentable. Much the same thing happened in 1978's Parker v. Flook case, involving claims to a method of updating an alarm limit.
As often happens, however, the Court later refined its analysis as new cases provided new fact patterns. In 1981 the Court ruled, in Diamond v. Diehr [3], that a claim to controlling an otherwise-conventional physical process by software was indeed patentable. More recently, in Bilski v. Kappos [4], the Court affirmed a rejection of claims to a particular software-implemented method of hedging against the risk of price changes in commodities trading, but it refused to impose a categorical exclusion of patentability for such claims.
For what it's worth, I seldom if ever read IP Watchdog anymore (the source of the parent comment's long italicized quote).
> The only thing that gives me solace is that the industries summarily executed this morning have an A+ lobbying game
So don't worry, A+ lobbying beats supreme court. I understand that this is just the opinion of one guy, but it is deeply disturbing that no-one has called him on that.
Let's rephrase the question. Will a right leaning supreme court make a decision that will potentially cost big business millions if not billions of dollars per year ?
I don't think you need a magic eight ball to answer that one.
Licensing of the IBM patent portfolio is routinely reported as being in excess of $1 billion annually. If Software Patents get thrown out then so will a chunk of that billion.
The sad reality about software patents is while they are a terrible thing, there is too much power and money involved for a right leaning Supreme Court to throw them out, and while in the short term you might see some meaningful patent reform proposed, once the lobbyists get their way it certainly won't be in favor of the the little guy.
Software patents might not be so bad if 1) Patents didn't cost much nor required renewals and expedited service fees, and all that crap; 2) were first to invent, not first to file; and 3) officers at the USPTO actually had a clue and didn't hand out patents for trivial things like wildcard matching with a `*` character (yes, that happened just a few years ago).
The bar for not being obvious should be high enough for this to not make a difference. If two people (or teams, companies, whatever) independently invent the same thing within... say, a year of eachother, that should be taken as proof that it's too obvious to be patentable.
I think my most basic problem with that idea is this:
I think that, if some process is patentable, then no matter how you divide it into components, at least one of those components should be patentable too.
> you can't patent math period
Of course, but I'm just responding to the idea that if two people independently develop something at the same time, it was obvious by definition. That isn't true.
If two people develop something at the same time then a patent on that thing probably wasn't needed to promote progress. There will be individual cases where it's not true but an overall rule of 'no' is probably going to work better than a rule of 'yes', especially since a 'yes' can only go to one of those inventors.
I'm not here to defend the system. I'm somewhat sympathetic to the concept of patents generally and particularly as applied to drug development, but all I'm really going for here is
> There will be individual cases where it's not true
I feel like we agree.
Side note as to drug development: if we assume patents are a way to subsidize research into an area felt to be socially beneficial, it shouldn't be too surprising when multiple people go for (relatively) low-hanging, or particularly desirable, fruit, and sometimes get there simultaneously. But in that model we still needed the subsidy to get out of the system state where zero people were doing such research. It doesn't necessarily make sense to turn around and say that we're going to take away patents when too many people discover the same thing at once -- if the patent system was necessary to get the research done at all, scrapping it will scrap the research too. Refusing to grant patents out of obviousness isn't the same concept as refusing to grant them in an effort to avoid wasteful research effort collisions.
If anyone disagress with coldpie, I'd recommend reading "Against Intellectual Property" by Stephan Kinsella. I used to be in favor of IP laws until I read that book.
This isn't a perfect rule, see below about Newton and Liebniz, but I think this is the closest it comes to a good rule of thumb for patent. Independent invention should create a strong presumption of obviousness.
First to invent vs. first to file is largely a red herring. It sounds unfair until you figure out how the system actually works, rather than how the three-word phrase suggests it might work.
First to file comes with a restriction that anything described in a publicly-available "publication" is not eligible for patent protection by anyone other than the author (who has the standard one year grace period, etc., to file).
At the same time it eliminates a cause of controversy that only affects a small number of cases, but which can be exceedingly expensive to resolve. It replaces it with a very simple test: was there a "publication" describing your invention that was dated before your priority date? Go home.
Reducing litigation costs is a good thing. This is also the way most of the rest of the world works. Life may be a little harder for the guy who invents something and doesn't tell anyone about it, but in theory the goal of the patent system is to encourage the publication of ideas.
They will never have the ability to spend more time with software patents. Especially if you ask that filing fees go down and the volume of filings goes up.
On top of that, there is a conceptual problem with software patents. There is no clear line between the trivial and the non-trivial.
The question you should ask is, what fucking benefits do we get from this shit? Look at the fucking costs levied on our society by this system. 26 year old patent attorneys make 200,000 dollars a year, after three years of practice STANDARD! Half of them don't know Javascript from Java (I'm not fucking kidding you). How the fuck are they gonna know what is trivial and what is not. The USPTO is staffed with people from foreign countries who can barely speak English ... much less understand a patent document. And they are only given like two hours to search and understand a patent document. And Patent Attorneys do their best to fill a patent document with utter rubbish legalese.
The only people in support of this system are people that have never read a patent document, who have never been involved in a patent suit, and who have never talked to a USPTO examiner.
Everyone else ... EVERYONE ELSE ... knows this system is garbage.
These fucking patent kangaroo courts, and these fucking lawyers are parasitic upon Silicon Valley and the world software technology industries. That's the only way to look at it. And we might never get rid of them, because of this rhetoric and the power of the lobby.
Its no more just than the fucking car dealerships and their stranglehold on car distribution. Or the sugar lobby and their subsidies.
Just another garbage, rent-seeking group of assholes.
You ever wonder why patent law proponents never ask the pragmatic question: Do all these legal/regulatory costs for the patent system result in increased innovation?
After all, if we were starting from scratch today, wouldn't we ask for overwhelming evidence that such a regulatory scheme would produce more innovation, before implementing such terrible laws?
Not only are there no studies that show conclusively that patent rights encourage more innovation in the economy, there aren't even studies to show it has a marginally better effect than no patents at all. So the legal costs are a dead loss for the economy.
All we have is the blind faith regurgitations of the patent fans ... OMG IT MUST ENCOURAGE INNOVATION MORE THAN NOT HAVING PATENTS BECAUSE MONOPOLY!!!!
In software particularly this is an idiotic argument. Microsoft and other current front-runners in patent filings hardly filed patents at all when they were growing rapidly in the 80s and early 90s. Its only after being hit by patent suits from the old-timers in the industry ... horseshit patents BTW ... that they understood that they had to play this corrupt game.
Bill Gates' early writing about software patents tells you everything you need to know from a businessman's perspective.
Patents are a way for encumbents to raise barriers to entry in a mature business. They aren't a way to encourage the development of new businesses by players will little power/capital.
This system (and many of its supporters) make me sick to my stomach.
Your example is telling: of course Bill Gates would be against patents, he stole the very basis for his entire empire from Xerox!
I don't have studies to cite, and that is certainly a fair argument against patents. However, there is a principle at play here that is very relevant. Is society better off where one can reap benefits for their efforts? Most would say yes. At least in some cases, patents increase order and fairness in society by creating a mechanism for one to benefit from efforts that would otherwise go unrewarded by the market. If society deems these efforts worthwhile, then society legislates a mechanism for compensation. There's nothing irrational about this.
Do you make stuff? How is it fair that I make something in my garage, and some assmonkey drags my ass to the Eastern District of Texas to claim he deserves 15% of my revenue because my app sends a message from a smartphone client, containing contact information, to a server, where it is stored in a database.
Sounds like a really complicated process ... if you are a non-technical person ... but any engineer is like that is fucking trivial.
And yet we have to settle lawsuits like this shit all the time. If we are lucky -- $50,000 a pop. If not, more.
You think this highway robbery is justice/fairness?
You know what would be fair? If people didn't die under cars when they are riding their bikes. Lets build a completely different highway system for bikes, parallel to the existing highway system, so cars can't touch them.
Don't we factor in costs when considering such utopian schemes to solve problems?
Shouldn't we factor in the costs to innocent bystanders when creating an incentive system for creators? Look at how many creators are DISINCENTIVIZED by the current system.
We don't make software to file patents. We never have. If you go to Meetups in SF, you'll never meet engineers that want to file patents either.
What entrepreneur wants to file patents? I've never met one. Maybe such entrepreneurs exist outside my circles.
For the most part, we are all fucking sick of these lawyers and this horseshit.
>Do you make stuff? How is it fair that I make something in my garage, and some assmonkey drags my ass to the Eastern District of Texas to claim he deserves 15% of my revenue...
I am a software developer myself. Yes, there are an endless number of examples of clearly frivolous patents. This is not an argument against software patents in general. If you can only cite the obviously broken cases to make your argument, your argument isn't that strong.
Of course entrepreneurs are generally going to be against patents, they operate on the "market" side of society by definition. Ask that same question to inventors and you'll get different answers. Some people do not have the inclination to be entrepreneurs. Does that mean their contributions to society are worthless simply because they lack the particular skill of entrepreneurship? Would society be better off if inventors were likely to not reap the benefit of their efforts, or would otherwise have to keep the details of their invention secret? Is society better off with Watson's inner workings a trade secret?
>We don't make software to file patents. We never have. If you go to Meetups in SF, you'll never meet engineers that want to file patents either.
There is a subset of software development that would qualify as inventing. I see no reason why these cases should not be patentable. Just because the vast majority of developers are not inventors and thus see no benefit to patents is not a strong argument.
I certainly hope so, and I have (around) fifteen myself including one that covers the internet cookie and another which I think covers the Galois Counter Mode for encryption or at least certain applications of GCM. I filed for these as a part of my employment for IBM a long time ago (around 1988), and by now all of my IBM patents have expired. When I left IBM to start my own company I invented more than I did at IBM, but I chose to license our technology to the Open Software Foundation instead of patenting it.
Part of my thinking in not filing for patents was that the big companies that were our biggest competitors (IBM, HP, Sun, DEC) wouldn't be slowed down by patents. They had armies of lawyers and big portfolios of patents and inventions that would be used against us if we tried to enforce any of our patents against them. Whether or not any of their claims were valid, we would not have been able to afford the legal battle and would have been forced to cross-license with them anyway.
Patent protection for software has always bothered me. Patents that made sense in the days of steam engines just don't work well for software. Patents give too much protection (preventing independent discovery of some idea from being used) and last too long, way too long for the software industry (I think 4 years is plenty of time to get exclusive use for an idea in software).
Ideally, I would like to see patent protection to software eliminated and replaced with a much easier to obtain protection for a couple of years. Or, use copyright protection for software. Copyright protection is sensible since it protects the programs from being stolen while allowing the ideas to be used by others if they do an independent implementation.
You are a liability to the Patent Industry (the Patent Litigators, the Patent Prosecutors, the Patent Trolls, the Patent Courts).
Watch now as some fucking moron, who has never built software in his entire life, drops in to say that only with Software Patents does Silicon Valley exist.
101 comments
[ 3.1 ms ] story [ 176 ms ] thread"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."
Yes, rayiner, that's pretty broad but I don't see software in the list. Maybe I copied it out wrong?
The math is the algorithms effect on purely mathematical objects. The patent is the algorithm plus a mapping between the mathematical objects and real-world entities. This is how it should be. The problem we currently get wrong is the "non-obvious" term.
People are way too stuck on the "software is math" bit, it is not nearly as meaningful as people think. In fact, I think it is decidedly lacking in any meaning as everything in the universe can be abstracted to "math".
I think some would use that as justification to abolish all patents. I would love for that to happen, but pragmatically accept that such an outcome is unlikely, and in a world partially populated by devious thieves, trolls, and free-riders, potentially undesirable.
I still think software is meaningfully different from any other embodiment of an algorithm, due to its self-descriptive nature. Most of the time when I write software, I feel much more that I am "creating" (copyright) rather than "inventing" (patent). I can just "tell" the computer to do something, and it does it. That doesn't work for wheels and gears.
Inasmuch as there are better arguments against software patents, let's raise them as well, but I see no reason to abandon the mathematical argument entirely.
I think this is true for the vast majority of software, and likely for the vast majority of software people try to patent. I think you raise an interesting point regarding "telling a computer what to do" vs "inventing", and this seems like it would be a good distinction between non-patentable software and that which is patentable.
There is a subset of processes that essentially involve "telling a computer what to do", and then refining those instructions until the point where the computer knows how to execute each step. Obviously, this is just a description of writing software. But this process doesn't work for all problems. There is no telling a computer to "write a symphony"--there are no standard/obvious set of refinements to that statement that will result in a working program to write a symphony. To accomplish this would require "inventing" a new algorithm (lets not go "ergo math" just yet). One would have to create a non-obvious process to govern the interactions between input sounds to create the output symphony. I don't think anyone would have a problem with saying someone "invented" a symphony writing computer program.
On the other hand, the process of "one click ordering" has an obvious set of refinements from problem statement to execution such that you cannot reasonably be said to be inventing one click ordering.
Of course, these are probably the two most obvious examples on either side of the debate, but I think it illustrates the fact that these decisions can be made rationally and fairly with some common sense guidelines.
An algorithm is a mathematical expression, not merely something that can be described with mathematical expressions.
Consider my "method/process patent" for finding the length of a hypotenuse. It is easy to see why that is straight up math, and therefore should not be patentable. However just because they don't teach the notation used for expressing algorithms in primary school does not mean that it is not math.
The Pythagorean Theorem is ancient so it was never in any danger, but consider FFTs. FFT algorithms were not patented, but imagine what a shame it would be if they were. These type of patents have no business existing.
The only way this conclusion follows is if you're judging patentability of an idea by the impact the idea has had. This is plainly absurd. Lets consider the opposite, what if it were invented but the algorithm kept secret because patent protection didn't exist. Would humanity have been better off in that scenario? Processes like the FFT are exactly the types of software that are reasonable to patent, and yet you want to claim the opposite precisely because it was non-obvious and so important?
FFT, and things like it, are exactly the sort of software that should not be patented. Patent your minimal-clicking checkout process or bouncy kinetic scrolling all you want, I don't like those patents but they are reasonable. Those ideas aren't algorithms, they only use them; if I hold the patent for kinetic scrolling in my hand, I am not holding kinetic scrolling itself in my hand. If I hold an FFT algorithm patent in my hand, I am holding an FFT algorithm itself in my hand. Patenting algorithms themselves is patently absurd.
Would you be okay with the Pythagorean Theorem being patented as well? Mathematics does not currently suffer a trade-secret problem. Introducing patents would do nothing but harm to society, while enriching corporations.
What else do you believe to be patentable? Should Newton and Leibniz have escalated their conflict to an all-out patent war? Calculus is non-obvious and wildly important; would society be better off if it were patented?
Or hell, maybe Feynman should have patented Feynman Diagrams! If we are patenting mathematical expressions, why not throw in novel and useful notations for mathematical expressions as well! Any mathematician, physicist, or engineer will have to join the Mathematics Patents Experts Group in order to get any useful work done without being sued into homelessness, but at least all of those people won't be keeping their creations and discoveries secret, right?
Edit: Response:
Patents are for the benefit of society, not for the benefit of the creators. You cannot evaluate the merit of patentablity without considering the benefit to society.
We are sure as shit better off in a society where anyone doing ML research doesn't have to license ideas from IBM.
>FFT, and things like it, are exactly the sort of software that should not be patented.
Again, you are judging patentability by the impact of the idea. This is nonsense. For every idea worth patenting that has been invented, the world would be better off if everyone could use that idea unencumbered. This is a tautology. The interesting question is: how many of those ideas would remain trade secrets if they weren't patentable? This is the meaningful question here.
Had IBM chosen to keep it secret (and perhaps it would have been a smart business decision to do so), the world would be decidedly worse off. If they had patented it, the world would be better off compared to the world where that invention was kept a trade secret. This is the meaningful conclusion to be drawn from the FFT scenario.
So you don't like hypotheticals? Fine--lets consider Watson. How it works is currently a trade secret. Is the world better off for them keeping it a secret or publicizing and patenting it? I'll let you decide that one.
By the 1960s, the algorithm's time had come. It is inconceivable that it would have remained obscure for much longer -- patent or no patent, trade secret or no trade secret. Software simply does not work that way.
>You cannot evaluate the merit of patentablity without considering the benefit to society.
You misunderstand my point. You are evaluating the potential patent after we have observed its impact and thus judging it as too important to patent. We do not have a crystal ball to make these sorts of judgments in general, so using that as a rationale for the particular case of FFT makes no sense.
>We are sure as shit better off in a society where anyone doing ML research doesn't have to license ideas from IBM.
So the new ideas that IBM created will languish in IBM research for however many years/decades then? The alternative is an environment where universities and researchers can expand on their ideas freely. When a new product is created, sure they would have to license tech from IBM, but this is preferable to total secrecy. Patents have not prevented a myriad of other inventions from impacting the world, why would you think these examples of software patents would be different?
Because at the time I could not reply to your comment directly. I apologize if this has distressed you.
The reality of modern mathematics research is that most ideas do not languish as trade secrets, but are instead shared and built upon. Introducing patents into this system would do nothing but harm society and enrich corporations rich enough to throw money at legions patent lawyers.
We can look at examples from the past to predict future performance. The past paints a clear picture of patents being unnecessary, and a lack of them being beneficial to society.
We can also see the history of patents on other things like processors and the like, which have not stifled innovation in these fields to an obvious degree--we still have core i7 processors and ipads. It's not clear that past history is on your side.
What is not clear is that a patent free environment would be preferable either, as the inner workings of modern processor tech might be kept trade secrets or worse, no one bothers to develop this technology at all. It is decidedly not obvious that software patents are some sort of exception to this rule, and its definitely not because software can be reduced to math (as everything can).
Sadly: https://duckduckgo.com/?q=fft+patent
Of course, if you did force specifics, then software patents would be pretty toothless as you can always find another process that ends up with the same result. However, if the patent office and courts had decided to take that approach, they wouldn't have had such a valuable income stream to play with, and I suspect they value that over consistency of approach.
An example of a solution would be to say that you can't go after someone for implementing an algorithm (so by extension any software). Rather than eliminating the patent eliminate that ability to enforce it. They likely wouldn't go for something so simple, but it is an example of the potential train of thought.
Software is usually claimed as a method, commonly accepted as a synonym for the statutory term process.
Some patents include claims directed to machines programmed to perform a stated method. The Federal Circuit held 20 years ago that a general-purpose that is programmed to perform a new method programming becomes a new, special-purpose computer that as such can be patented if otherwise eligible [1].
Another type of claim in a software patent is the so-called Beauregard claim. [2] That type of claim is directed to an "article of manufacture," one of the statutory categories, along the lines of the following: "15. A program storage device tangibly embodying a program of instructions for performing the method of a specified one of claims 1 through 14." That type of claim allows the patent owner to sue not just the end user for using the patented method, but also to sue the software vendor for having sold the patented article of manufacture.
(For clarity, Beauregard claims to program storage devices, etc., are unpatentable if the underlying software methods are themselves unpatentable. [3].)
[1] In re Alappat, http://digital-law-online.info/cases/31PQ2D1545.htm
[2] http://en.wikipedia.org/wiki/List_of_patent_claim_types#Beau...
[3] http://inventivestep.net/2011/08/22/federal-circuit-rules-be...
"Any headline which ends in a question mark can be answered by the word no."
Unfortunately here, as it would be great to have a wise and effective Supreme Court.
The last time there was thought to be a chance to abolish software patents before the court, four conservative justices were against abolition and Scalia refused to join any opinion fully. (Scalia, comfortable knowing that he's the smartest, is often willing to be humble when he isn't sure and says so.) That situation is likely to repeat itself.
This is a much better article, incidentally:
http://www.washingtonpost.com/blogs/the-switch/wp/2014/02/26...
The basis for this law is that if the reporter can answer the question with a "yes" they would simply report that.
However, this can't be done with a future event. So for a future event the law doesn't apply - the reporter isn't being lazy or trying to make something out of nothing - the information is truly not available yet.
This is actually a pretty good article.
It's only used as a shallow, lazy shortcut. It doesn't add anything useful to the discussion. We'd all be better off if the people who feel compelled to post it, didn't.
On the other hand, meaningful reasons why the premise of the headline is wrong are useful, and should be encouraged.
For example, the post I'm referring to here would have provided just as much value without the reference to the "law".
However, there'd be massive lobbying against such, from both patent trolls who derive all of their revenue from such, and big powerful firms like Google, Oracle, and IBM, who would lose legal cudgels against upstarts with the temerity to be a (pontential) competitive threat.
So, while worth doing, getting Congress to invalidate software patents will not be easy.
And yet, Microsoft and IBM still managed press Congress to keep it in the latest patent reform.
http://www.washingtonpost.com/blogs/the-switch/wp/2013/11/20...
This is what pisses me off about the US system. There's no Constitutionality check prior to "enabling" a new law (and after the president signs it). So even if the Supreme Court declares something outright unconstitutional, Congress could still pass a law allowing that. That seems pretty crazy to me.
There needs to be a Constitutional Court, who's much like the Supreme Court, but who's job is not to take lawsuits, but to verify bills for constitutionality before becoming laws. This is how it's done in other countries, and the chance for passing something unconstitutional is much lower. The Supreme Court would still have the final word, if one law does get through the Constitutional Court (either because the CC judges weren't on their game, or they became more corrupt due to more direct pressure from the government to allow a certain law), and then that law ends up at the Supreme Court through lawsuits.
The proper means for determining the constitutionality of a law is after it has been passed, but before it takes effect. There is no reason to determine the constitutionality of a bill before the bill has been passed, as it might not become law. Thousands of bills are considered every year. Wasting court resources on those bills, and especially the multitude of bills that would never even become law, would preclude the courts from handling anything else.
Bills never become effective immediately--there is always at least a few days of delay. If the constitutionality of a law is at issue, someone will challenge it in federal court, at which time the courts will review it. Generally, at that point the law is suspended so that it does not take effect until the constitutional review is completed.
(His later novels, including Next, did drop slightly in quality as time went on, but Next is still a really interesting look at almost precisely the legal issue that you describe.)
The incredibly complete bibliography that you find in his novels of hundreds of citations just tends to prove out that frequently truth really is stranger than fiction. (For example, what if someone genetically engineered advertisements into the backs of sea turtles on barrier reefs?)
In an ideal world I'd like a distinct patenting regime for software - shorter patent lifespans, compulsory licensing on reasonable and non-discriminatory terms, a broader experimental use right encompassing most non-commercial users - but if the CAFC is just going to fold it into the maximalism of utility patents, why bother?
>The United States has an expert “patent court,”the United States Court of Appeals for the Federal Circuit, that hears every appeal from around the country in cases that arise under the country’s patent laws. From California to Florida, any patent appeal goes to the Federal Circuit. Unlike areas of the law, the Federal Circuit creates nationally uniform legal standards for patent law. One of the key reasons the Supreme Court will take a case is when lower courts disagree on a legal issue. But, with patent law’s single appellate court, no such splits arise.
I get the reason why the court would want to not hear these cases based on this but I feel like it isn't clear why they would, and by that i mean a legal basis besides the obvious a philosophical wish to dismantle patent law (after an appropriate amount of googling I still have no answer) any lawyers or law-school dropouts turned programmers around who might explain this?
[0] http://www.patentprogress.org/systemic-problems/how-we-got-h...
[1] read the fourth paragraph from the end of this otherwise execrable article starting with "How long will it take" http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-pr...
>One of the key reasons the Supreme Court will take a case is when lower courts disagree on a legal issue. But, with patent law’s single appellate court, no such splits arise.
This was the question that I think that I was trying to understand better, if there is no ambiguity of opinion from lower courts is the only reason they take patent cases because they just happen to disagree?
My degree is in aerospace engineering, and I went to a school known for its traditional engineering programs (mechanical, chemical, aerospace, electrical). In this world, patents aren't viewed negatively the way they are in the software world. First because the capital requirements to enter the field are high, so you don't have little companies for whom a patent suit is an existential crisis. Second, because development is capital intensive. Pratt & Whitney develops new turbine blade designs, and patents them because developing them is tremendously expensive. In software, there is a huge field of things that are patentable that don't fulfill the economic rationale of patent (protecting expensive capital investment from free riding). So the attitude in software is very different.
CAFC is full of people with backgrounds in traditional engineering fields. Think DuPont rather than Dropbox. They have a very different perspective, and it is neither corrupt nor invalid.
Patent attorneys tend to have a pro-patent bias, and these attitudes seem to have rubbed off on Federal Circuit judges. Most obviously, a significant minority of Federal Circuit judges have been patent lawyers themselves, whereas judges on other courts almost never come from a patent law background. But beyond that, the heavy load of patent cases on the court's docket means that the judges of the Federal Circuit are constantly interacting with patent lawyers. In addition to hearing their arguments in the courtroom, they read the same patent law publications as the lawyers, hire young patent lawyers to clerk for them, and are invited to speak at events organized by the patent bar.
Moreover, the prestige of the Federal Circuit itself is directly tied to the prominence of patent law in the American legal system. If the Federal Circuit had followed the stricter rules in place before the court was created, patent law might have remained a legal backwater, receiving little attention from either the legal profession or the general public. That, of course, would have made the Federal Circuit a less prestigious place to work. (From [0].)
"Corrupt" doesn't seem like too strong a word to me.
And yes, on top of that, they know very little about software.
[0] http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea...
I will grant that they're probably not cynically corrupt: they probably sincerely believe they're doing the right thing for the country. But the convergence of this belief with their personal interests is just a little too convenient.
Do they have an indirect interest in making themselves more relevant? Possibly, but so does any court. Yet the overwhelming trend over the last few decades has been for the courts to cede territory. Strongly favoring arbitration, giving broad interpretation to bars like standing, etc. Most people worry about the opposite problem: courts declining to exercise jurisdiction in the face of the other two branches.
Calling this "corruption" stretches the word to the point it loses any meaning, and also deeply confuses the causation. The Federal Circuit doesn't skew towards aggrandizing patent law because they somehow want to benefit their former colleagues in practice (and some of the strongest advocates like Judge Reader never even practiced!) Rather, people who strongly believe in patent protections self-select into becoming Federal Circuit judges.
But I still think a strong word is called for, and I don't have a ready alternative. Maybe "renegade", the term Scalia used for the Eastern District of Texas, will do. "Ideological" doesn't quite seem strong enough to me, though it's getting there.
Last I checked, sane courts don't have policy goals and objectives (and this was not the goal of congress creating it).
Corrupt, maybe not, but they are highly ideological, and IMHO, it's way too ideological of a court when it comes to decision making.
If anyone is interested in the establishment's freakout that 2012's ruling caused, look no further than here: http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-pr... Here is an excerpt:
How long will it take the Federal Circuit to overrule this inexplicable nonsense? The novice reader may find that question to be ignorant, since the Supreme Court is the highest court of the United States. Those well acquainted with the industry know that the Supreme Court is not the final word on patentability, and while the claims at issue in this particular case are unfortunately lost, the Federal Circuit will work to moderate (and eventually overturn) this embarrassing display by the Supreme Court. This will eventually be accomplished the same as it was after the Supreme Court definitively ruled software is not patentable in Gottschalk v. Benson, and the same as the ruling in KSR v. Teleflex will be overruled. I have taken issue with Chief Judge Rader’s statements that nothing has changed in Federal Circuit jurisprudence as a result of KSR, which is not technically true. What is true, however, is that the Federal Circuit continues to refine the KSR “common sense test,” narrowing the applicability in case after case and tightening the ability for “common sense” to be used against an application. We are almost 5 years post KSR and there is still a lot of work left to be done by the Federal Circuit to finally overrule the Supreme Court’s KSR decision. It took almost 10 years to overrule Gottschalk v. Benson, so we are likely in for a decade of work to moderate the nonsense thrust upon the industry this morning.
Indeed, Breyer’s decision is the most intellectually dishonest decision I have ever read, which is saying a lot given the utter contemptuous understanding of patent law displayed by the Supreme Court over the years. It is truly troubling that all 9 of the Justices concurred in what history will regard as one of the worst decisions in the patent space EVER!
Yes, Congress will be asked to step in and rectify this absurd ruling, and they should. Knowing how the legislative branch operates I cringe at the thought of Congress coming to the rescue. The only thing that gives me solace is that the industries summarily executed this morning have an A+ lobbying game, which in Washington, DC means everything.
(By the way, I remembered this from the comment and discussion here: https://news.ycombinator.com/item?id=3732894)
That's not accurate; the statement is too categorical. (All categorical statements are bad, including this one.)
The 1972 Gottschalk v. Benson case [1] involved claims to a particular type of software, namely a machine-executed mathematical algorithm for converting binary-coded decimal into pure binary. The Supreme Court ruled that those particular claims were unpatentable. Much the same thing happened in 1978's Parker v. Flook case, involving claims to a method of updating an alarm limit.
As often happens, however, the Court later refined its analysis as new cases provided new fact patterns. In 1981 the Court ruled, in Diamond v. Diehr [3], that a claim to controlling an otherwise-conventional physical process by software was indeed patentable. More recently, in Bilski v. Kappos [4], the Court affirmed a rejection of claims to a particular software-implemented method of hedging against the risk of price changes in commodities trading, but it refused to impose a categorical exclusion of patentability for such claims.
For what it's worth, I seldom if ever read IP Watchdog anymore (the source of the parent comment's long italicized quote).
[1] http://en.wikipedia.org/wiki/Gottschalk_v._Benson
[2] http://en.wikipedia.org/wiki/Parker_v._Flook
[3] http://en.wikipedia.org/wiki/Diamond_v._Diehr
[4] http://en.wikipedia.org/wiki/Bilski_v._Kappos
So don't worry, A+ lobbying beats supreme court. I understand that this is just the opinion of one guy, but it is deeply disturbing that no-one has called him on that.
I don't think you need a magic eight ball to answer that one.
The sad reality about software patents is while they are a terrible thing, there is too much power and money involved for a right leaning Supreme Court to throw them out, and while in the short term you might see some meaningful patent reform proposed, once the lobbyists get their way it certainly won't be in favor of the the little guy.
The bar for not being obvious should be high enough for this to not make a difference. If two people (or teams, companies, whatever) independently invent the same thing within... say, a year of eachother, that should be taken as proof that it's too obvious to be patentable.
Though patents are rather specific and coming at a problem from two different directions can easily lead to two valid patents.
Wait, what am I talking about, you can't patent math period.
I think that, if some process is patentable, then no matter how you divide it into components, at least one of those components should be patentable too.
> you can't patent math period
Of course, but I'm just responding to the idea that if two people independently develop something at the same time, it was obvious by definition. That isn't true.
> There will be individual cases where it's not true
I feel like we agree.
Side note as to drug development: if we assume patents are a way to subsidize research into an area felt to be socially beneficial, it shouldn't be too surprising when multiple people go for (relatively) low-hanging, or particularly desirable, fruit, and sometimes get there simultaneously. But in that model we still needed the subsidy to get out of the system state where zero people were doing such research. It doesn't necessarily make sense to turn around and say that we're going to take away patents when too many people discover the same thing at once -- if the patent system was necessary to get the research done at all, scrapping it will scrap the research too. Refusing to grant patents out of obviousness isn't the same concept as refusing to grant them in an effort to avoid wasteful research effort collisions.
http://en.wikipedia.org/wiki/Standing_on_the_shoulders_of_gi...
I know that wasn't your point, but seriously the idea of "intellectual property" is so galling I can't believe anyone accepts it.
First to file comes with a restriction that anything described in a publicly-available "publication" is not eligible for patent protection by anyone other than the author (who has the standard one year grace period, etc., to file).
At the same time it eliminates a cause of controversy that only affects a small number of cases, but which can be exceedingly expensive to resolve. It replaces it with a very simple test: was there a "publication" describing your invention that was dated before your priority date? Go home.
Reducing litigation costs is a good thing. This is also the way most of the rest of the world works. Life may be a little harder for the guy who invents something and doesn't tell anyone about it, but in theory the goal of the patent system is to encourage the publication of ideas.
They will never have the ability to spend more time with software patents. Especially if you ask that filing fees go down and the volume of filings goes up.
On top of that, there is a conceptual problem with software patents. There is no clear line between the trivial and the non-trivial.
The question you should ask is, what fucking benefits do we get from this shit? Look at the fucking costs levied on our society by this system. 26 year old patent attorneys make 200,000 dollars a year, after three years of practice STANDARD! Half of them don't know Javascript from Java (I'm not fucking kidding you). How the fuck are they gonna know what is trivial and what is not. The USPTO is staffed with people from foreign countries who can barely speak English ... much less understand a patent document. And they are only given like two hours to search and understand a patent document. And Patent Attorneys do their best to fill a patent document with utter rubbish legalese.
The only people in support of this system are people that have never read a patent document, who have never been involved in a patent suit, and who have never talked to a USPTO examiner.
Everyone else ... EVERYONE ELSE ... knows this system is garbage.
These fucking patent kangaroo courts, and these fucking lawyers are parasitic upon Silicon Valley and the world software technology industries. That's the only way to look at it. And we might never get rid of them, because of this rhetoric and the power of the lobby.
Its no more just than the fucking car dealerships and their stranglehold on car distribution. Or the sugar lobby and their subsidies.
Just another garbage, rent-seeking group of assholes.
After all, if we were starting from scratch today, wouldn't we ask for overwhelming evidence that such a regulatory scheme would produce more innovation, before implementing such terrible laws?
Not only are there no studies that show conclusively that patent rights encourage more innovation in the economy, there aren't even studies to show it has a marginally better effect than no patents at all. So the legal costs are a dead loss for the economy.
All we have is the blind faith regurgitations of the patent fans ... OMG IT MUST ENCOURAGE INNOVATION MORE THAN NOT HAVING PATENTS BECAUSE MONOPOLY!!!!
In software particularly this is an idiotic argument. Microsoft and other current front-runners in patent filings hardly filed patents at all when they were growing rapidly in the 80s and early 90s. Its only after being hit by patent suits from the old-timers in the industry ... horseshit patents BTW ... that they understood that they had to play this corrupt game.
Bill Gates' early writing about software patents tells you everything you need to know from a businessman's perspective.
Patents are a way for encumbents to raise barriers to entry in a mature business. They aren't a way to encourage the development of new businesses by players will little power/capital.
This system (and many of its supporters) make me sick to my stomach.
I don't have studies to cite, and that is certainly a fair argument against patents. However, there is a principle at play here that is very relevant. Is society better off where one can reap benefits for their efforts? Most would say yes. At least in some cases, patents increase order and fairness in society by creating a mechanism for one to benefit from efforts that would otherwise go unrewarded by the market. If society deems these efforts worthwhile, then society legislates a mechanism for compensation. There's nothing irrational about this.
Sounds like a really complicated process ... if you are a non-technical person ... but any engineer is like that is fucking trivial.
And yet we have to settle lawsuits like this shit all the time. If we are lucky -- $50,000 a pop. If not, more.
You think this highway robbery is justice/fairness?
You know what would be fair? If people didn't die under cars when they are riding their bikes. Lets build a completely different highway system for bikes, parallel to the existing highway system, so cars can't touch them.
Don't we factor in costs when considering such utopian schemes to solve problems?
Shouldn't we factor in the costs to innocent bystanders when creating an incentive system for creators? Look at how many creators are DISINCENTIVIZED by the current system.
We don't make software to file patents. We never have. If you go to Meetups in SF, you'll never meet engineers that want to file patents either.
What entrepreneur wants to file patents? I've never met one. Maybe such entrepreneurs exist outside my circles.
For the most part, we are all fucking sick of these lawyers and this horseshit.
I am a software developer myself. Yes, there are an endless number of examples of clearly frivolous patents. This is not an argument against software patents in general. If you can only cite the obviously broken cases to make your argument, your argument isn't that strong.
Of course entrepreneurs are generally going to be against patents, they operate on the "market" side of society by definition. Ask that same question to inventors and you'll get different answers. Some people do not have the inclination to be entrepreneurs. Does that mean their contributions to society are worthless simply because they lack the particular skill of entrepreneurship? Would society be better off if inventors were likely to not reap the benefit of their efforts, or would otherwise have to keep the details of their invention secret? Is society better off with Watson's inner workings a trade secret?
>We don't make software to file patents. We never have. If you go to Meetups in SF, you'll never meet engineers that want to file patents either.
There is a subset of software development that would qualify as inventing. I see no reason why these cases should not be patentable. Just because the vast majority of developers are not inventors and thus see no benefit to patents is not a strong argument.
Part of my thinking in not filing for patents was that the big companies that were our biggest competitors (IBM, HP, Sun, DEC) wouldn't be slowed down by patents. They had armies of lawyers and big portfolios of patents and inventions that would be used against us if we tried to enforce any of our patents against them. Whether or not any of their claims were valid, we would not have been able to afford the legal battle and would have been forced to cross-license with them anyway.
Patent protection for software has always bothered me. Patents that made sense in the days of steam engines just don't work well for software. Patents give too much protection (preventing independent discovery of some idea from being used) and last too long, way too long for the software industry (I think 4 years is plenty of time to get exclusive use for an idea in software).
Ideally, I would like to see patent protection to software eliminated and replaced with a much easier to obtain protection for a couple of years. Or, use copyright protection for software. Copyright protection is sensible since it protects the programs from being stolen while allowing the ideas to be used by others if they do an independent implementation.
You are a liability to the Patent Industry (the Patent Litigators, the Patent Prosecutors, the Patent Trolls, the Patent Courts).
Watch now as some fucking moron, who has never built software in his entire life, drops in to say that only with Software Patents does Silicon Valley exist.