An end to frivolous patents may finally be in sight(economist.com)
economist.com
An end to frivolous patents may finally be in sight
http://www.economist.com/sciencetechnology/displayStory.cfm?story_id=15479680
8 comments
Not to be nitpicky with the article, but it's a little misleading when it says (right above this quoted section):
"What is clear is that the “non-obviousness” part of the test for patentability has not been applied anywhere near rigorously enough to internet and business-process patents. Because they lack a history of “prior art” to refer to, examiners and judges have granted a lot of shoddy patents for software and business processes."
Bilski has nothing to do with obviousness. Bilski is about the subject matter requirement, which is that patents can only be granted on certain types of inventions. For example, physical machines can be patented, but electronic signals cannot.
This is another reason (in addition to Grellas's below) that I doubt Bilski will have a big effect on software patents. Regardless of the outcome of the case, it will be most likely easy to work around, simply by tying the software to some sort of machine, be it a computer, mobile phone, embedded circuit, or anything else.
"What is clear is that the “non-obviousness” part of the test for patentability has not been applied anywhere near rigorously enough to internet and business-process patents. Because they lack a history of “prior art” to refer to, examiners and judges have granted a lot of shoddy patents for software and business processes."
Bilski has nothing to do with obviousness. Bilski is about the subject matter requirement, which is that patents can only be granted on certain types of inventions. For example, physical machines can be patented, but electronic signals cannot.
This is another reason (in addition to Grellas's below) that I doubt Bilski will have a big effect on software patents. Regardless of the outcome of the case, it will be most likely easy to work around, simply by tying the software to some sort of machine, be it a computer, mobile phone, embedded circuit, or anything else.
About frikken time (imho)
I wouldn't hold my breath that the forthcoming Bilski decision will put an end to frivolous patents.
While it is true that the justices appeared to be highly skeptical at oral argument of the patent claims being asserted in this case, one must remember context here: in essence, Bilski was the decision by which the Federal Circuit sought to rein in process patents in the first place, and it did so with a rationale that, while clearly limiting such patents, relied on a somewhat arbitrary test that finds no direct support in either the constitution or the patent statutes (industry participants clearly see the case as potentially major and have filed over 50 amicus, or "friend-of-the-court" briefs with the Court). One might think of it as a pragmatic test by which the Federal Circuit sought almost out of desperation to bring some measure of sanity to this area.
It is never good news for your case, though, when the Supreme Court agrees to hear a case that first adopted a novel test that the lower court basically invented. This typically means that at least a good number of the justices are prepared potentially to reverse that decision and, if that should occur here, this will mean that there may be broader scope than exists today for the granting of process patents.
Again, the justices did not seem impressed at argument with the claims for broad patentability as asserted by the claimant in this case and they may easily rule against him, as did the Federal Circuit court. But they may choose to rule on narrow grounds that perhaps strike down the Federal Circuit test without attempting to define the rules definitively going forward (the Court often does this on the theory that an issue will continue to develop over time as it considers how best to finally deal with it).
It is a mistake to have raised expectations about the impact of this case in striking down process and software patents. It may happen but, if it does, that will be a surprise and not an expected outcome. In this sense, this piece is a bit over-optimistic, in my view.
While it is true that the justices appeared to be highly skeptical at oral argument of the patent claims being asserted in this case, one must remember context here: in essence, Bilski was the decision by which the Federal Circuit sought to rein in process patents in the first place, and it did so with a rationale that, while clearly limiting such patents, relied on a somewhat arbitrary test that finds no direct support in either the constitution or the patent statutes (industry participants clearly see the case as potentially major and have filed over 50 amicus, or "friend-of-the-court" briefs with the Court). One might think of it as a pragmatic test by which the Federal Circuit sought almost out of desperation to bring some measure of sanity to this area.
It is never good news for your case, though, when the Supreme Court agrees to hear a case that first adopted a novel test that the lower court basically invented. This typically means that at least a good number of the justices are prepared potentially to reverse that decision and, if that should occur here, this will mean that there may be broader scope than exists today for the granting of process patents.
Again, the justices did not seem impressed at argument with the claims for broad patentability as asserted by the claimant in this case and they may easily rule against him, as did the Federal Circuit court. But they may choose to rule on narrow grounds that perhaps strike down the Federal Circuit test without attempting to define the rules definitively going forward (the Court often does this on the theory that an issue will continue to develop over time as it considers how best to finally deal with it).
It is a mistake to have raised expectations about the impact of this case in striking down process and software patents. It may happen but, if it does, that will be a surprise and not an expected outcome. In this sense, this piece is a bit over-optimistic, in my view.
I have to admit: this is one of the most well reasoned, clearly articulated discussions of the patent system I have read in a very long time.
Only one portion that I think is misleading:
"Meanwhile, the loss of patent protection for software could make programmers realise at last that they have more in common with authors, artists, publishers and musicians than they ever had with molecular architects and chip designers. In short, they produce expressions of ideas that are eminently copyrightable."
As you can imagine, the process of copyrighting code is somewhat unwieldy. The definition of what constitutes copyright violation (changing variable names? functionally similar code with a differing structure?) and what constitutes fair use is hazy. Is it the answer to the patent woes of today? Probably not, but it could evolve into a more complete solution if/when it is more heavily utilized and more cases are litigated to develop a stronger precedent.
Only one portion that I think is misleading:
"Meanwhile, the loss of patent protection for software could make programmers realise at last that they have more in common with authors, artists, publishers and musicians than they ever had with molecular architects and chip designers. In short, they produce expressions of ideas that are eminently copyrightable."
As you can imagine, the process of copyrighting code is somewhat unwieldy. The definition of what constitutes copyright violation (changing variable names? functionally similar code with a differing structure?) and what constitutes fair use is hazy. Is it the answer to the patent woes of today? Probably not, but it could evolve into a more complete solution if/when it is more heavily utilized and more cases are litigated to develop a stronger precedent.
As you can imagine, the process of copyrighting code is somewhat unwieldy.
Just a nit-pick, but in most countries there is no "process" for copyrighting something - you automatically own the copyright as soon as you create a work. What's harder is protecting a copyright.
Just a nit-pick, but in most countries there is no "process" for copyrighting something - you automatically own the copyright as soon as you create a work. What's harder is protecting a copyright.
And finding out who owns the copyright of a work.
The definition of what constitutes copyright violation (changing variable names? functionally similar code with a differing structure?) [...] is hazy.
I was under the impression that this was generally pretty clear-cut. What's relevant is not primarily the content of the works but how they came about, i.e. whether or not one of them is a derived work of the other. Proving that it is or isn't a derived work can be difficult, but I don't think that's a problem with the law itself. (as usual: not a lawyer)
The definition of fair use is arguably hazy though, I agree on that.
I was under the impression that this was generally pretty clear-cut. What's relevant is not primarily the content of the works but how they came about, i.e. whether or not one of them is a derived work of the other. Proving that it is or isn't a derived work can be difficult, but I don't think that's a problem with the law itself. (as usual: not a lawyer)
The definition of fair use is arguably hazy though, I agree on that.
In addition, most proprietary source code is also secret, so it's hard to infringe something that you can't even see.
> What's relevant is not primarily the content of the works but how they came about, i.e. whether or not one of them is a derived work of the other.
No. What's relevant is the content of the works, not how they came about. If you've been locked in a soundproof, opaque box since birth with nothing but a typewriter, and you manage to type out part of the screenplay of Star Wars without ever having seen it, you've still violated copyright. There are many, many cases where no actual copying was ever proved and yet copyright violation was found.
No. What's relevant is the content of the works, not how they came about. If you've been locked in a soundproof, opaque box since birth with nothing but a typewriter, and you manage to type out part of the screenplay of Star Wars without ever having seen it, you've still violated copyright. There are many, many cases where no actual copying was ever proved and yet copyright violation was found.
While this is true of patents, it is not true of copyrights. Independent creation is a valid defense.
http://en.wikipedia.org/wiki/United_States_copyright_law#Inf...
"[If] two individuals both create a story that by pure coincidence is nearly identical, but each without knowledge of the other, there is no infringement since there is no copying."
http://en.wikipedia.org/wiki/United_States_copyright_law#Inf...
"[If] two individuals both create a story that by pure coincidence is nearly identical, but each without knowledge of the other, there is no infringement since there is no copying."
Quoting Wikipedia for legal matters is better than nothing, I suppose, but hardly decisive. In this case, Wikipedia is wrong, as I have noted: many courts have found copyright infringement without any proof at all being presented that anything was copied. With the facts given - two individuals creating by pure coincidence a story that is nearly identical - whoever published it first is going to win the court case, and the court will presume that the other party copied it, even if no one testifies that they saw the other party reading, editing, and copying from the first story.
If you by pure chance happen to have a music file on your hard drive that decodes to play "Thriller" by Michael Jackson, and you claim that you created it independently and have never heard of the song before, I assure you the court will rule against you and the music publisher will not be required to submit any proof that you copied it from, say, a CD of Jackson songs.
The "copy" in copyright is NOT copying the other person's work. It's producing the copy you made. So in the story example, the second person's published story is the infringing copy, "Copying" from the first story is not the copying that is covered by copyright; it's the creation of items that appear to be copies.
Wikipedia is simply wrong here and it's kind of sad that HN is so ignorant about copyright law.
If you by pure chance happen to have a music file on your hard drive that decodes to play "Thriller" by Michael Jackson, and you claim that you created it independently and have never heard of the song before, I assure you the court will rule against you and the music publisher will not be required to submit any proof that you copied it from, say, a CD of Jackson songs.
The "copy" in copyright is NOT copying the other person's work. It's producing the copy you made. So in the story example, the second person's published story is the infringing copy, "Copying" from the first story is not the copying that is covered by copyright; it's the creation of items that appear to be copies.
Wikipedia is simply wrong here and it's kind of sad that HN is so ignorant about copyright law.
Sorry, but quoting Wikipedia is better than quoting no evidence at all, which is what you've done.
No matter what the decision is, there is an army of patent lawyers whose livelihoods depend on the existing system. They will fight the only way they know how (filling lots of lawsuits) for years before business practices change.
While copyright does last for 70 years, it doesn't seem all that useful to software developers. After all, if the idea behind a piece of software is not protected, it is a relatively simple matter to rewrite it (if given the idea).
That said, an end to software patents would be welcome indeed. I wonder if this would have any impact on the H.264 patent?
That said, an end to software patents would be welcome indeed. I wonder if this would have any impact on the H.264 patent?
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Actually that very much scares me. What's to prevent any company from copyrighting a small passage of code and then rigorously suing everyone and their brother for it? At least with patents you can claim prior art.
IANAL, but copyrights also differ from patents in that you have to show intentional imitation, not just similarity. Since prior art would reasonably prove that couldn't have copied something, this would imply that this avenue of defense is strictly stronger than the prior art defense against patent litigation. Some quotes from Wikipedia (with the usual caveats):
> "... two authors may own copyright on two substantially identical works, if it is determined that the duplication was coincidental, and neither was copied from the other."
> "Infringement requires... that the defendant copied the protected work... if two individuals both create a story that by pure coincidence is nearly identical, but each without knowledge of the other, there is no infringement since there is no copying."
> "... two authors may own copyright on two substantially identical works, if it is determined that the duplication was coincidental, and neither was copied from the other."
> "Infringement requires... that the defendant copied the protected work... if two individuals both create a story that by pure coincidence is nearly identical, but each without knowledge of the other, there is no infringement since there is no copying."
Source code is already copyrightable and this doesn't seem to be an issue.
You should really look into what can actually be copyrighted before getting too alarmed. The tactic you suggest would be the same as trying to copyright the phrase "it was a dark and stormy night..." and suing anyone who used it. If they use only that phrase then you might have a case, but if the phrase was incidental to a larger work then the case is weaker. No one is going to get away with copyrighting for loops or various standard design patterns.
"What's to prevent any company from copyrighting a small passage of code and then rigorously suing everyone and their brother for it?"
Independent creation is a strong defense to copyright infringement. Compaq famously did this when they duplicated the functionality of the original IBM PC firmware, by using a strict "clean room" process. Even though numerous segments of code were no doubt duplicated, because there is often a single best way of writing hand-optimized assembly language, the provable independent creation made it a new work under copyright law. As far as I remember, IBM didn't even bother to sue.
Independent creation is a strong defense to copyright infringement. Compaq famously did this when they duplicated the functionality of the original IBM PC firmware, by using a strict "clean room" process. Even though numerous segments of code were no doubt duplicated, because there is often a single best way of writing hand-optimized assembly language, the provable independent creation made it a new work under copyright law. As far as I remember, IBM didn't even bother to sue.
I wonder if this would have any impact on the H.264 patent?
I suspect it would still apply to hardware implementations of the codec.
I suspect it would still apply to hardware implementations of the codec.
Yeah, although hardware acceleration implementations would be paid-up in the per-unit costs when the hardware ships (at least AFAIK), making it effectively invisible to the end-users and developers. I think this would be sufficient to push H.264 as the HTML5 video standard across the board.
Depends how high the license fees are. Something like $10 on a budget graphics card or low-end cellphone would be very significant.
The transcript of the relevant Supreme Court hearing is the reason for hope and is remarkable thoughtful:
http://www.supremecourtus.gov/oral_arguments/argument_transc...
Not necessarily. Apparently, the justices are often toughest in argument with the side they are thinking of ruling for.
No Sign of End to Headlines Expressing What Might Be True
I don't feel as optimistic as the author does; yes, the SCOTUS is currently examining what may turn into a landmark case on the patent system. However, this is a seemingly addled Supreme Court, given some of its recent decisions -- and many of the members are the same ones who didn't buy Larry Lessig's assertion that copyright terms, currently the life of an author + 90 years, is far beyond the constitution's "limited time" requirement.
Yes, but many of the questions raised by the justices were skeptical of patenting abstract ideas. I think the consensus is that Bilski will lose, and the real question is how narrow the Supreme Court's decision will be.
You don't understand Lessig's argument. The problem is retroactively extending copyright -- that is where they made the mistake. They ruled that it was up to congress to decide how long copyright was and as long as it was for a limited time it was ok -- this is the correct judgement.
Hopefully they'll have a similar ruling -- if we want patents to apply to business methods and software we will have to explicitly pass a law to allow it.
Hopefully they'll have a similar ruling -- if we want patents to apply to business methods and software we will have to explicitly pass a law to allow it.
The current term satisfies the letter of the law, even though it seems pretty clear it's not what the founders had in mind. Given that, the deck was stacked against Lessig.
"America’s Supreme Court is about to issue a ruling which, by all accounts, will make it difficult, if not impossible, to get a patent for a business process. And because most business processes are, at bottom, computer algorithms, the Supreme Court’s judgment could also bar all sorts of software patents in the process. As a result, a lot of patents for online shopping, medical-diagnostic tests and procedures for executing trades on Wall Street could be invalidated.
The roots of the dispute go back more than a decade to two inventors, Bernard Bilski and Rand Warsaw, who sought to patent a method of hedging weather-related risks in energy prices. The USPTO concluded that the process was too abstract and denied the application. On appeal, the Federal Circuit actually upheld the patent office’s decision—and said, crucially, that the process would be eligible for a patent only if it was “tied to a particular machine or apparatus” or if it “transformed a particular article into a different state or thing”. Failing on both counts, the inventors took their case to the Supreme Court, which has been pondering for the past few months whether the “machine-or-transformation” test is an appropriate standard. It is hard to conclude it is not. "