Validity of software patents goes on trial today at Supreme Court(usatoday.com)
usatoday.com
Validity of software patents goes on trial today at Supreme Court
http://www.usatoday.com/printedition/money/20091109/patents09_st.art.htm
46 comments
Oral argument was held today - tough day for the patent applicant, with much skepticism expressed by the justices toward the idea that business methods (and, of course, any software that might implement them) should be loosely patentable: Justice Stevens: "None of our cases has ever approved a rule such as you advocate"; Justice Breyer: applicant is arguing "anything that helps any businessman succeed is patentable"; Justice Scalia: patents are given to inventions that are manufactured or produced by workmen, "not someone who writes a book about how to win friends and influence people."
Not good portends for a favorable decision for the applicant.
On the other hand, several justices overtly questioned the highly restrictive test adopted by the lower court that would essentially gut many business method patents.
Looks like this could go all sorts of directions but not likely to any extreme.
Not good portends for a favorable decision for the applicant.
On the other hand, several justices overtly questioned the highly restrictive test adopted by the lower court that would essentially gut many business method patents.
Looks like this could go all sorts of directions but not likely to any extreme.
The transcript is available from http://www.supremecourtus.gov/oral_arguments/argument_transc... for those who are interested in more.
I agree that the pendulum today is too strongly on the side of patent trolls.
But have you seriously thought about what a world without patents would look like?
Actually, you can. Visit China. On Monday, the boss of a factory will give you a tour and shows you how they manufacture the iPod case exclusively for Apple. The next day, they offer you to manufacture the exact same design, just for you, for very cheap. IP? What IP?
Personally, I'm hoping for a middle ground. Not all patents are bad, but too many stupid patents is an abuse of the system.
(before you mod into oblivion, let me state that I have standing to discuss this issue, having been sued for patent infringment myself - I know the pain)
But have you seriously thought about what a world without patents would look like?
Actually, you can. Visit China. On Monday, the boss of a factory will give you a tour and shows you how they manufacture the iPod case exclusively for Apple. The next day, they offer you to manufacture the exact same design, just for you, for very cheap. IP? What IP?
Personally, I'm hoping for a middle ground. Not all patents are bad, but too many stupid patents is an abuse of the system.
(before you mod into oblivion, let me state that I have standing to discuss this issue, having been sued for patent infringment myself - I know the pain)
I think you are confusing contract law with patent law. There isn't really anything about the iPod that should be patentable, but Apple should certainly insist (in contract) that their manufacturers not give away their design.
Yes and no. The ipod wouldn't be particularly hard to reverse engineer. Should a third party be able to simply copy the ipod in order to cash in on Apple's brand equity?
Granted that's not really a patent issue either, more like trademark, but in any case, I think the GP's point is a good one: copyright and patent law have their place, just not the way they are currently used.
Granted that's not really a patent issue either, more like trademark, but in any case, I think the GP's point is a good one: copyright and patent law have their place, just not the way they are currently used.
>The ipod wouldn't be particularly hard to reverse engineer. Should a third party be able to simply copy the ipod in order to cash in on Apple's brand equity?
Yes -- see the history of the IBM PC for perhaps the most famous example.
Yes -- see the history of the IBM PC for perhaps the most famous example.
Yes -- see the history of all technology innovation for perhaps the most famous example.
The idea behind patents was to encourage innovation by guaranteeing certain rights to the patent holder; unfortunately, software patents have probably hurt innovation more than it has helped out.
Nobody brother to read Against Intellectual Monopoly then.
http://www.dklevine.com/general/intellectual/againstfinal.ht...
People should really seriously consider if a whole system is entirely flawed sometime or it may never do anything for innovation anyway.
As for me, the question is already decided. As an anarchist, I opposed patents on the ground that it is a property right violation. The innovation questions doesn't matter to me.
http://www.dklevine.com/general/intellectual/againstfinal.ht...
People should really seriously consider if a whole system is entirely flawed sometime or it may never do anything for innovation anyway.
As for me, the question is already decided. As an anarchist, I opposed patents on the ground that it is a property right violation. The innovation questions doesn't matter to me.
So, would you argue in favor of a constitutional amendment? Because as far as the US Constitution is concerned, the innovation is the only thing that matters.
Since an amendment is clearly not what's under debate here, what do you think would be the most appropriate resolution for this case, within the constraints of the current constitution?
Since an amendment is clearly not what's under debate here, what do you think would be the most appropriate resolution for this case, within the constraints of the current constitution?
A thesis of "Against Intellectual Monopoly" is that patents, of all kinds (software, hardware, pharmaceutical…), are at best inefficient, and at worst detrimental to innovation. The reason is that in all domains, research is incremental, at least to some extent.
Suppose this thesis is accurate.
If US constitution just cares about innovation without stating that patents are an effective way to achieve them, no need for an amendment. Just ditch the patents (and smooth the transition as much as you can).
The true, unresolved, question is whether patents enhance innovation at all in any domain. My personal opinion is that they probably don't. If they do, whether the relevant domains can be clearly and legally delimited. My personal opinion is that very few or no domain can.
The problem is, this is my personal, partially informed opinion. I bet about 99% of the western population don't have an opinion at all. So, I think a good start would be to gather data, and inform the population. While they may not care about patents, I bet they care about having better and cheaper goods, saving the planet… When enough citizen have an informed opinion, they could back up a proper political debate (which I feel we need).
Suppose this thesis is accurate.
If US constitution just cares about innovation without stating that patents are an effective way to achieve them, no need for an amendment. Just ditch the patents (and smooth the transition as much as you can).
The true, unresolved, question is whether patents enhance innovation at all in any domain. My personal opinion is that they probably don't. If they do, whether the relevant domains can be clearly and legally delimited. My personal opinion is that very few or no domain can.
The problem is, this is my personal, partially informed opinion. I bet about 99% of the western population don't have an opinion at all. So, I think a good start would be to gather data, and inform the population. While they may not care about patents, I bet they care about having better and cheaper goods, saving the planet… When enough citizen have an informed opinion, they could back up a proper political debate (which I feel we need).
But have you seriously thought about what a world without patents would look like?
Actually, you can. Visit China.
During the Industrial Revolution, the US was the world's cesspit of IP violation. Charles Dickens had to do his US book tours to promote _A Christmas Carol_ because it was so widely pirated, there was no hope of capturing all but a small sliver of profits from book sales. However, this ended up making Charles Dickens pretty well off.
During the Industrial Revolution, the US was the world's cesspit of IP violation. Charles Dickens had to do his US book tours to promote _A Christmas Carol_ because it was so widely pirated, there was no hope of capturing all but a small sliver of profits from book sales. However, this ended up making Charles Dickens pretty well off.
The US didn't do too badly out of it either.
I upvoted you because it is a good point, but ... who is advancing the most quickly in manufacturing these days? That would be China....
Plus, I would hesitate to naturalize the idea of intellectual property as if it were a "thing" just like a cheese sandwich. Some of your argument seems to rest on protecting IP which (somehow) exists; a lot of people would doubt that IP is a valid concept or exists at all.
Plus, I would hesitate to naturalize the idea of intellectual property as if it were a "thing" just like a cheese sandwich. Some of your argument seems to rest on protecting IP which (somehow) exists; a lot of people would doubt that IP is a valid concept or exists at all.
I would offer that in any regulated system you can excel by ignoring the regulations if others insist on adhering to them.
And the "regulation" in this case is for China and other developing nations to pay a tithe to more developed nations because they got there first and planted a flag on some unclaimed (intellectual) property.
I think patent, copyright and many other things are all mixed up here. Can someone tell me about a case of "software patent" (not software copyright, not hardware patent) where it promoted innovation?
Video compression - a lot of companies saw it fit to invest into DVD,MPEG2,MPEG4 etc to rip benefits later. Of course if they hadn't done it we would still have video codecs as demonstrated by DivX, XVid and various open-source video codecs. I think the difference here is that the the patents helped video codecs rich mass users faster than would be the case without them, but became a huge drag after some point.
Pretty much like any other investment, if you think of it.
Pretty much like any other investment, if you think of it.
Maybe you've got a point, but you've not presented any evidence.
DivX and Xvid and most "open-source" video codecs infringe on the same basic patents and so require patent licences from MPEG-LA.
The question at hand is whether the same amount of companies (or simply enough) would have invested in video codecs without the ability to create monopolies via patents.
DivX and Xvid and most "open-source" video codecs infringe on the same basic patents and so require patent licences from MPEG-LA.
The question at hand is whether the same amount of companies (or simply enough) would have invested in video codecs without the ability to create monopolies via patents.
Yea you're right. Who these days come up with great software idea just to get a patent? We create new technologies because we know there will be great rewards (or other motivations), and we get the patent just to protect ourselves from the patent system. Therefore the patent system at least in its current state is purposeless.
Is that really so bad, though? I know that I could get a knock-off of an iPod. But my iPod has guaranteed support from Apple, and it gives me a good feeling to know that I have the "real thing", and not a "fake". For that matter, I could also get a Zune, but I have standards. ;)
If your business model could be so easily undercut by competition, you're Doing It Wrong. People pay more for perceived status and soft values. And the people who are looking for knockoffs were probably never going to be your customers in the first place.
Validity of software patents goes on trial today at Supreme Court. I'm hoping for the death penalty.
If your business model could be so easily undercut by competition, you're Doing It Wrong. People pay more for perceived status and soft values. And the people who are looking for knockoffs were probably never going to be your customers in the first place.
Validity of software patents goes on trial today at Supreme Court. I'm hoping for the death penalty.
You miss the point. A specific case design is something completely different than patenting 'ways that stuff can be done'.
I really hope the EU does not introduce software patents. This is just the thing to stiffle innovation.
I really hope the EU does not introduce software patents. This is just the thing to stiffle innovation.
The iPod is hardware; isn't this case about software patents?
You can still have copyright protection without patents. Besides your example is specifically a physical device which isn't the kind of patent being talked about.
So you're saying we need patents because people will completely ignore those patents anyway?
That isn't much of an argument.
That isn't much of an argument.
Agreed...it all makes sense when you see the quote a few lines down from that:
"The software industry would lose an important incentive to innovate if the government ceased issuing software patents," warned patent attorney James Carmichael, a former judge on the Patent Office board of appeals.
"The software industry would lose an important incentive to innovate if the government ceased issuing software patents," warned patent attorney James Carmichael, a former judge on the Patent Office board of appeals.
I wonder, If "the industry" spent the resources allocated for software patents on additional R&D, could consumers even handle all the innovation? Besides, when was being the market leader ever an incentive for companies :-D
There was a cool talk on the problems with software patents by D. Ravicher: http://www.youtube.com/watch?v=d0chez_Jf5A
I just can't imagine something like an Augmented Reality iPhone app being patented by a restrictive extortionate company. It's basically the Terminator vision on a modern handheld device. But then again, look at all the ridiculous applications http://www.google.com/patents?q=augmented+reality+phone+came...
There was a cool talk on the problems with software patents by D. Ravicher: http://www.youtube.com/watch?v=d0chez_Jf5A
I just can't imagine something like an Augmented Reality iPhone app being patented by a restrictive extortionate company. It's basically the Terminator vision on a modern handheld device. But then again, look at all the ridiculous applications http://www.google.com/patents?q=augmented+reality+phone+came...
I would like to see this supported (or not, methinks) by empirical evidence. A priori arguments without evidence aren't worth a damn, in my estimation.
Here is one of those rare stories in hacker news where I can claim special expertise. But yeah, I am a patent lawyer, so everyone listen to me :)
I should point out that this case does not directly concern software patents. The patent at question is not a software patent but a business method patent. It was a patent for a commodity trading strategy that as claimed did not require a computer or software to execute (i.e., it could have been executed by a human without the aid of a computer).
Now why does everyone say that software patents are on trial? Well, many people, especially those that want to see software patents invalidated, hope that either (i) the supreme court will make an anti-patent ruling that is broad enough to cover software patents or (ii) even if they do not invalidate software patents, the supreme court will recite some kind of reasoning that will be used thereafter to attack software patents.
But any effect on software patents from this case will be indirect. The supreme court usually does not like to rule on things that are not properly in front of it. So their decision here will not stray from the matter at hand which is business method patents.
In my opinion, the supreme court should affirm the federal circuit in rejecting business method patents. I think it is common sense that patents should be limited to technology one way or another. But regarding to software -- I agree with pg that there really isn't anything special about software that is not applicable to hardware, and there is no reason to single software out. When people complain about software patents, they usually complain about obvious patents, and that is an issue sometimes. But the way to solve this is make sure the patent office applies the obviousness laws better and not by wholesale invalidation of all software patents.
I should point out that this case does not directly concern software patents. The patent at question is not a software patent but a business method patent. It was a patent for a commodity trading strategy that as claimed did not require a computer or software to execute (i.e., it could have been executed by a human without the aid of a computer).
Now why does everyone say that software patents are on trial? Well, many people, especially those that want to see software patents invalidated, hope that either (i) the supreme court will make an anti-patent ruling that is broad enough to cover software patents or (ii) even if they do not invalidate software patents, the supreme court will recite some kind of reasoning that will be used thereafter to attack software patents.
But any effect on software patents from this case will be indirect. The supreme court usually does not like to rule on things that are not properly in front of it. So their decision here will not stray from the matter at hand which is business method patents.
In my opinion, the supreme court should affirm the federal circuit in rejecting business method patents. I think it is common sense that patents should be limited to technology one way or another. But regarding to software -- I agree with pg that there really isn't anything special about software that is not applicable to hardware, and there is no reason to single software out. When people complain about software patents, they usually complain about obvious patents, and that is an issue sometimes. But the way to solve this is make sure the patent office applies the obviousness laws better and not by wholesale invalidation of all software patents.
I want to share my views on this issue, because they're somewhat different from the typical arguments I hear against software patents. I'd like feedback from anyone willing to provide it.
I agree with you and PG that there's nothing fundamentally different about software that should make it unpatentable, but I think that the policy should be decided based on what will best stimulate innovation. For whatever reason, right now patents are more of a hinderance. Innovation in software is happening often despite patents, and rarely because of them.
Even though the industry is around a half-century old now, we still seem to be in a sort of "exploratory phase" where there's no consensus on how software should best be developed, or what the "best practices" and core techniques of the industry are. I'm trying to come up with a good analogy, but I don't think this has ever happened with another technology for such a long period of time.
Those of us in the industry try to pretend this is not the case by wrapping what we do in lingo and titles from more developed fields, like engineering, in order to appear more respectable. I, myself, have held the title of "software engineer" before, but I'd be lying to say that what I do is anywhere near as well understood as designing a bridge, a car, or a building's electrical system.
The current problems with software patents, such as poor enforcement of the obviousness test, all stem from this. There's no clear understanding right now of what is "obvious".
While this exploratory phase lasts, software patents are a form of premature optimization. Presumably, at some point, we'll enter a sort of "exploitation phase" where the techniques and methods for developing software stabilize. The spontaneous innovation we currently see will begin to slow, and it will make sense to try to foster innovation with patents.
When that happens, the issue of software patents should be revisited, but for the time being, I think that society would be better off without them.
I agree with you and PG that there's nothing fundamentally different about software that should make it unpatentable, but I think that the policy should be decided based on what will best stimulate innovation. For whatever reason, right now patents are more of a hinderance. Innovation in software is happening often despite patents, and rarely because of them.
Even though the industry is around a half-century old now, we still seem to be in a sort of "exploratory phase" where there's no consensus on how software should best be developed, or what the "best practices" and core techniques of the industry are. I'm trying to come up with a good analogy, but I don't think this has ever happened with another technology for such a long period of time.
Those of us in the industry try to pretend this is not the case by wrapping what we do in lingo and titles from more developed fields, like engineering, in order to appear more respectable. I, myself, have held the title of "software engineer" before, but I'd be lying to say that what I do is anywhere near as well understood as designing a bridge, a car, or a building's electrical system.
The current problems with software patents, such as poor enforcement of the obviousness test, all stem from this. There's no clear understanding right now of what is "obvious".
While this exploratory phase lasts, software patents are a form of premature optimization. Presumably, at some point, we'll enter a sort of "exploitation phase" where the techniques and methods for developing software stabilize. The spontaneous innovation we currently see will begin to slow, and it will make sense to try to foster innovation with patents.
When that happens, the issue of software patents should be revisited, but for the time being, I think that society would be better off without them.
PG and you draw the wrong conclusion - to the extent hardware is like software it should only be protected as expression.
The sad fact about intellectual property law is that the courts have taken the "To promote the Progress of Science and useful Arts" part of the copyright clause and affixed it to the first amendment instead. The implicit message of including the clause in the constitution at all is that the right to copy exists and belongs to everybody. That right is only properly traded when the expression or invention fulfills that requirement.
That being said, I don't advocate acting as if patents are not where they are. You've got to take the world as you find it, and if the government makes patents available on loose terms you should use that to your business's advantage.
The sad fact about intellectual property law is that the courts have taken the "To promote the Progress of Science and useful Arts" part of the copyright clause and affixed it to the first amendment instead. The implicit message of including the clause in the constitution at all is that the right to copy exists and belongs to everybody. That right is only properly traded when the expression or invention fulfills that requirement.
That being said, I don't advocate acting as if patents are not where they are. You've got to take the world as you find it, and if the government makes patents available on loose terms you should use that to your business's advantage.
I don't think the problem with software patents exists solely in the fundamental difference between hardware and software. I think the problem arises from a number of things including the number of software inventors (nearly every programmer at one time or another) and the abstract nature of software. These things tend to mean that inventions are far more likely to coinvented than copied in the world of software.
An enforcement of the level of nonobviousness needed in software patents to make them useful for society would just about ban them outright anyway.
An enforcement of the level of nonobviousness needed in software patents to make them useful for society would just about ban them outright anyway.
Any ruling striking down the Bilski patent without placing new limits on software patents would be ineffectual, wouldn't it? Breyer alluded to business method patents filed in the form of "Do X, with/on a computer", but if those and purely mathematical software patents are made clearly invalid, then that would take care of most of the problematic software patents.
This article is good news, but unfortunately it is poorly written. I felt they were very prejudiced in favor of software patents.
it reads like submarine PR
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Jees could this article be any more biased towards the BSA?
Is there anyone from the FSF (or similar) who might file an amicus brief?
It's the Patent Office that is fighting this? Is anyone from the open source community helping them?
It's the Patent Office that is fighting this? Is anyone from the open source community helping them?
They have
http://endsoftpatents.org/amicus-bilski-2009
It seems that FSF, Google, Red Hat and the Software Freedom Law Center are against the patent ideas.
IBM, Microsoft, Symantec and Philips are for patents according to this page.
http://en.swpat.org/wiki/Bilski_v._Kappos_amicus_briefs
http://endsoftpatents.org/amicus-bilski-2009
It seems that FSF, Google, Red Hat and the Software Freedom Law Center are against the patent ideas.
IBM, Microsoft, Symantec and Philips are for patents according to this page.
http://en.swpat.org/wiki/Bilski_v._Kappos_amicus_briefs
Anyone know how long we should expect to wait before they decide something and it impacts the real world?
All Supreme Court cases from this term will be decided by June. The average time would probably be 3-4 months from when the case is argued (i.e., February or March), but it could be faster or slower.
The ruling will basically go into effect immediately, even if the Patent Office takes some time to make new rules.
The ruling will basically go into effect immediately, even if the Patent Office takes some time to make new rules.
great answer, thx.
I think that might be the best case scenario.