Software patents case going to Supreme Court

[IronWing]

http://money.msn.com/business-news/article.aspx?feed=AP&date=20131206&id=17172251

 

[destrekor]

I don't know where I stand on this.

We need a major overhaul of the patent system, but... is this too far? I just don't know, and am not willing yet to invest mental energy trying to envision second and third order effects and determine if I would rather see those or not.

 

[lxskllr]

Software patents should be gone. A patent is allegedly meant to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Note that maximizing corporate income isn't mentioned. Software patents retard innovation and progress, and cost everyone an incalculable amount of money. On a practical note, software is just language and math, and those can't be patented anywhere else. It's a fraud.

 

[Sho'Nuff]

The CLS case will be an interesting one. It will be one thing if the SCOTUS determines that CLS' specific claims are not patent eligible. It will be quite another if it determines that all (or substantially all) "software" and "business method" claims are patent ineligible.

As a patent attorney I am frankly upset by the fact that the SCOTUS and appellate courts have such an apparent interest in narrowing the scope of 35 U.S.C. 101 (which governs patent eligibility), when the problem to be rectified (ostensibly) is the issuance of "bad" or "invalid" patents which supposedly clog the system. It would seem to me that the better response to that problem would not be to paint with a broad brush (i.e., by narrowing 101), but rather to increase the scrutiny patent applications drawn to software and business methods are given under 35 U.S.C. 103, which pertains to whether an invention is non-obvious over the prior art.

In other words, I would argue that the better way to handle this problem is not to say that software based inventions are not patent eligible, but rather to put renewed focus on to determining whether such inventions are in fact patentable in view of the prior art.

For almost 40 years, the courts have held that "software based" inventions are patentable if the claims of such cases are caged in the form of a machine that includes instructions that when executed cause the machine to perform operations, because the instructions do in fact change the machine. Tech companies have invested millions if not billions of dollars into intellectual property based on these those rulings, much of which would be utterly wasted if the SCOTUS applies 35 U.S.C. 101 to expunge such claims from the realm of patent eligible subject matter. Moreover, it is entirely unclear to me how the SCOTUS can eliminate "computer readable media" from patent eligible subject matter without impermissibly legislating from the bench, as such media are by definition an "article of manufacture" which is expressly identified as patent eligible subject matter under 35 U.S.C. 101.

 

[Hayabusa Rider]

There is no pending "death". The Christian science monitor goes over it a bit better. What this means is that absolutely everything may not be patentable, which I consider a good thing. The patent system was never supposed to permit patenting of the obvious, but that doesn't stop it from happening. The patent system is way out of control existing not so much as a protector as an arsenal of weaponry used to slay competition.

 

[xBiffx]

This is what happens when you have a patent office that takes the attitude of granting pretty much every patent request (that is novel) with the idea that the courts will sort out any disputes later.

The patent system is way out of control existing not so much as a protector as an arsenal of weaponry used to slay competition.

That is what a patent is for. Its not for granting you freedom to operate. Its for blocking someone else from doing something.

 

[Sho'Nuff]

Software patents should be gone. A patent is allegedly meant to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Note that maximizing corporate income isn't mentioned. Software patents retard innovation and progress, and cost everyone an incalculable amount of money. On a practical note, software is just language and math, and those can't be patented anywhere else. It's a fraud.

Wow. That is quite the collection of bullshit you have spouted. Bravo. Care to back up those incredibly broad (and inaccurate)statements with some data?

Fact - the very purpose of the patent system as envisioned by the founding fathers was to secure exclusive rights to inventors -> so that inventors could profit from their inventions. The U.S. patent system is simply a means to encourage people to invent things, by allowing them to profit from efforts expended to invent those things. If you think otherwise, you are just plain wrong.

Fact - software based inventions can be patented in other countries.

Fact - "software patents" do not contain claims directed to software per se, and so your argument re: language and math is irrelevant to the discussion.

And I hate it when people say "software patents" as software per se is not patent eligible. The claims of the patent in question are "software based" in that the often take the form of a machine that executes instructions to perform operations, but the claim is to the machine, not the software. Beauregard claims (e.g., a computer readable medium having instructions stored thereon which when executed by a processor of a maching cause the machine to do X" are also not drawn to "software" per se, but rather an article of manufacture (i.e., the media bearing the instructions).

 

[HumblePie]

The CLS case will be an interesting one. It will be one thing if the SCOTUS determines that CLS' specific claims are not patent eligible. It will be quite another if it determines that all (or substantially all) "software" and "business method" claims are patent ineligible.

As a patent attorney I am frankly upset by the fact that the SCOTUS and appellate courts have such an apparent interest in narrowing the scope of 35 U.S.C. 101 (which governs patent eligibility), when the problem to be rectified (ostensibly) is the issuance of "bad" or "invalid" patents which supposedly clog the system. It would seem to me that the better response to that problem would not be to paint with a broad brush (i.e., by narrowing 101), but rather to increase the scrutiny patent applications drawn to software and business methods are given under 35 U.S.C. 103, which pertains to whether an invention is non-obvious over the prior art.

In other words, I would argue that the better way to handle this problem is not to say that software based inventions are not patent eligible, but rather to put renewed focus on to determining whether such inventions are in fact patentable in view of the prior art.

For almost 40 years, the courts have held that "software based" inventions are patentable if the claims of such cases are caged in the form of a machine that includes instructions that when executed cause the machine to perform operations, because the instructions do in fact change the machine. Tech companies have invested millions if not billions of dollars into intellectual property based on these those rulings, much of which would be utterly wasted if the SCOTUS applies 35 U.S.C. 101 to expunge such claims from the realm of patent eligible subject matter. Moreover, it is entirely unclear to me how the SCOTUS can eliminate "computer readable media" from patent eligible subject matter without impermissibly legislating from the bench, as such media are by definition an "article of manufacture" which is expressly identified as patent eligible subject matter under 35 U.S.C. 101.

Except the courts don't draft patent law. They are just saying 101 and possibly 103 are too broad and will more than likely fling it back out to have those looked at to be redone without actually making a final ruling on this case.

 

[Sho'Nuff]

There is no pending "death". The Christian science monitor goes over it a bit better. What this means is that absolutely everything may not be patentable, which I consider a good thing. The patent system was never supposed to permit patenting of the obvious, but that doesn't stop it from happening. The patent system is way out of control existing not so much as a protector as an arsenal of weaponry used to slay competition.

Agreed that the patent system was not meant to allow obvious developments to be patented. But the issue at hand is not whether software is obvious under 35 U.S.C 103. Rather, the SCOTUS will be considering (in part) whether software is "patent eligible" under 35 U.S.C. 101. There is a HUGE difference, both with respect to the legal considerations and the practical implications of the decision.

 

[IronWing]

This is what happens when you have a patent office that takes the attitude of granting pretty much every patent request (that is novel) with the idea that the courts will sort out any disputes later.

It make bureaucratic sense to follow that path. If the Patent Office rejects a patent application, the Patent Office can get sued. If it grants a crappy patent the suits are between the grantee and third parties. As the Patent Office, which would you do?

 

[HumblePie]

Agreed that the patent system was not meant to allow obvious developments to be patented. But the issue at hand is not whether software is obvious under 35 U.S.C 103. Rather, the SCOTUS will be considering (in part) whether software is "patent eligible" under 35 U.S.C. 101. There is a HUGE difference, both with respect to the legal considerations and the practical implications of the decision.

I should have been a patent troll long ago and done a patent on "software code that loops an iterative number of times" as my patent....

I would have been set for life!

 

[xBiffx]

It make bureaucratic sense to follow that path. If the Patent Office rejects a patent application, the Patent Office can get sued. If it grants a crappy patent the suits are between the grantee and third parties. As the Patent Office, which would you do?

I would actually do the job that they are supposed to do, grant patents that are novel and where none exist. Deny anything else. The problem is, they let non novel, none patentable, and non unique shit through all the time with the attitude that the courts will sort it out. Basically, they don't do shit but rubber stamp everything. We don't need an entire office for that.

 

[Sho'Nuff]

It make bureaucratic sense to follow that path. If the Patent Office rejects a patent application, the Patent Office can get sued. If it grants a crappy patent the suits are between the grantee and third parties. As the Patent Office, which would you do?

As a former patent examiner turned patent attorney with over 13 years of experience in patent law, I can tell you that the US patent office is not concerned in the slightest over being sued for rejecting a patent application. The very few rejected cases that are appealed to the DC district court and potentially the CAFC almost always deal with some serious disagreement as to whether the PTO has established a prima facie case of obviousness under 35 U.S.C. 103. If it has gotten to that point, both parties have legitimate arguments and there is a good reason why the case is in court. All other cases are weeded out during examination or during the formal appellate process before the USPTO.

If you want to point to reasons why the USPTO issues some cases it shouldn't, a better place to look would be at the quota system the PTO imposes on examiners, which substantially limits the amount of time an examiner can spend on a given case.

Everyone interested in this issue should also read through the america invents act, which passed earlier this year and instituted sweeping changes to patent law which will (hopefully address) many of the concerns being raised in this thread).

 

[lxskllr]

Wow. That is quite the collection of bullshit you have spouted. Bravo. Care to back up those incredibly broad (and inaccurate)statements with some data.

I backed up what I said with the *exact* quote from the US Constitution in the post you quoted. Software is language and math, neither of which is patentable. It's eligible for copyright, not patent.

Just because you have a sweet job sucking money out of the economy, doesn't make it right. You're not owed unethical work. Find an honest occupation...

 

[Headfoot]

Software patents should be gone. A patent is allegedly meant to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Note that maximizing corporate income isn't mentioned. Software patents retard innovation and progress, and cost everyone an incalculable amount of money. On a practical note, software is just language and math, and those can't be patented anywhere else. It's a fraud.

Completely wrong.

So if I tried to patent a piece of hardware that can calculate a new SHA-5 algorithm given input of a string and it outputs a hash, you would say yes that is patentable.

And if I wrote a piece of software that calculates that same new SHA-5 algorithm given input of a string and it outputs a hash, you would say that is not patentable.

You're saying if someone has a new, useful, non-obvious solution to a problem, the only way they can get it patented is if they spend millions getting it in hardware?

That's what is called an absurd result and reveals the lack of logic embodied by your position

 

[lxskllr]

Completely wrong.

So if I tried to patent a piece of hardware that can calculate a new SHA-5 algorithm given input of a string and it outputs a hash, you would say yes that is patentable.

And if I wrote a piece of software that calculates that same new SHA-5 algorithm given input of a string and it outputs a hash, you would say that is not patentable.

You're saying if someone has a new, useful, non-obvious solution to a problem, the only way they can get it patented is if they spend millions getting it in hardware?

That's what is called an absurd result and reveals the lack of logic embodied by your position

A new printing press is patentable. The books that come off the press, or describe how it's made aren't.

 

[Sho'Nuff]

Except the courts don't draft patent law. They are just saying 101 and possibly 103 are too broad and will more than likely fling it back out to have those looked at to be redone without actually making a final ruling on this case.

Where did I say courts draft patent law?

They certainly do interpret patent law, and in some cases that interpretation can result in enormous changes to the law.

In many SCOTUS cases, what happens is the SCOTUS will review the issue in question, interpret the law relevant to the case to hopefully (resolve a contested issue), and then return the case to the lower court to review the merits of the case in view of that interpretation. They might not determine that CLS' claims are patent ineligible, but if they determine that software based inventions are excluded from patent eligible subject matter under 101 (which they could reinterpret), then the decision of the lower court may be constrained to one outcome in view of that interpretation.

 

[Sho'Nuff]

I backed up what I said with the *exact* quote from the US Constitution in the post you quoted. Software is language and math, neither of which is patentable. It's eligible for copyright, not patent.

Just because you have a sweet job sucking money out of the economy, doesn't make it right. You're not owed unethical work. Find an honest occupation...

Software per se is language, which is covered by "science" under the constitution, i.e, copyright.

"Software patents" are not drawn to software at all, for the reasons I explained previously. They are drawn to a machine or an article of manufacture, which are eligible for patenting under 101 and qualify as "useful arts".

You truly have no idea what most patent attorneys do if you think we suck value out of the economy. I create value for my clients by transforming their inventions into assets that they can leverage to make money. Down the line that value translates into jobs and all the machines, medicine, products etc. consumers like and the US economy needs.

 

[Sho'Nuff]

A new printing press is patentable. The books that come off the press, or describe how it's made aren't.

But a control module including a processor that executes instructions which cause the press to print the books (in a novel and non-obvious way) is. At least under current patent law.

It is frankly amazing to me how many people who are upset about this issue will not take an hour to educate themselves above the claims of the patents that are at the root of their discontent. They do not claim the software. So analogizing those claims to a book amounts to comparing apples to oranges.

 

[Hayabusa Rider]

Agreed that the patent system was not meant to allow obvious developments to be patented. But the issue at hand is not whether software is obvious under 35 U.S.C 103. Rather, the SCOTUS will be considering (in part) whether software is "patent eligible" under 35 U.S.C. 101. There is a HUGE difference, both with respect to the legal considerations and the practical implications of the decision.

I'll have to do more research as there is some conflict in what I've had time to read, which isn't very much.

IMO those who come up with something novel and/or non intuitive deserve an ability to profit from their efforts and my belief is that the system exists as a means of protection for the creator and promoting advancement, but one does not have to look very hard to see what I mentioned, not the furtherance of progress, but weapons which do the opposite in many cases, patent trolls being a case in point.

 

[Dirigible]

I'll have to do more research as there is some conflict in what I've had time to read, which isn't very much.

IMO those who come up with something novel and/or non intuitive deserve an ability to profit from their efforts and my belief is that the system exists as a means of protection for the creator and promoting advancement, but one does not have to look very hard to see what I mentioned, not the furtherance of progress, but weapons which do the opposite in many cases, patent trolls being a case in point.

Patents give the patent owner the right to stop other people from making, using, selling, etc. the claimed invention. So in that sense, they are only usable as a weapon against others.

A patent is not a document that allows the patent owner to make, use, sell, etc. the claimed invention. For example, Bob could have the patent on cars. Carl later invents and gets a patent on self-driving cars. If Carl starts selling self-driving cars, Bob can still sue Carl since a self-driving car is still a car. Carl's patent does nothing to prevent this.

 

[Hayabusa Rider]

Patents give the patent owner the right to stop other people from making, using, selling, etc. the claimed invention. So in that sense, they are only usable as a weapon against others.

A patent is not a document that allows the patent owner to make, use, sell, etc. the claimed invention. For example, Bob could have the patent on cars. Carl later invents and gets a patent on self-driving cars. If Carl starts selling self-driving cars, Bob can still sue Carl since a self-driving car is still a car. Carl's patent does nothing to prevent this.

It does however give Bob the option to benefit and only cars made with Bobs approval can be made. The problem isn't that patents exist but they are being so broadly interpreted and pursued for purposes of litigation. We might as well have patents on round things and make sure no one has them. At some point it becomes a ridiculous burden and I'd say we've long ago come to that. There needs to be some mechanism to deal with these issues in a better way.

 

[Dirigible]

It does however give Bob the option to benefit and only cars made with Bobs approval can be made. The problem isn't that patents exist but they are being so broadly interpreted and pursued for purposes of litigation. We might as well have patents on round things and make sure no one has them. At some point it becomes a ridiculous burden and I'd say we've long ago come to that. There needs to be some mechanism to deal with these issues in a better way.

I thought you were wondering if patents give "protection for the creator" or if they were weapons. They don't give protection to the creator. Bob's patent does not give him the right to make cars. There could be another patent out there on wheels on which Bob could get sued if he makes cars.

If you were talking about something else, I misunderstood.

 

[MrDudeMan]

Software patents should be gone. A patent is allegedly meant to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Note that maximizing corporate income isn't mentioned. Software patents retard innovation and progress, and cost everyone an incalculable amount of money. On a practical note, software is just language and math, and those can't be patented anywhere else. It's a fraud.

Wait, what? Software is way more than language and math. You could make that argument about pretty much anything. The only difference is the tangible piece of software can't be dropped on the floor like a 3D object. Algorithms and ideas implemented in software are conceptually no different than the same things with tangible goods. Admittedly I don't know what is or isn't patentable (like most people in this thread most likely), but your statement seems very, very over the top. I know your feelings and opinions on software from many years of reading your posts. While I sometimes find myself agreeing with your point of view, your post makes little to no sense to me in any capacity.

 

[Hayabusa Rider]

I thought you were wondering if patents give "protection for the creator" or if they were weapons. They don't give protection to the creator. Bob's patent does not give him the right to make cars. There could be another patent out there on wheels on which Bob could get sued if he makes cars.

If you were talking about something else, I misunderstood.

I understand. I was thinking more of companies who buy up whatever patents they can and use them for extortion, or to gain such broad protection as to crush anything remotely similar no matter how distantly related, indeed if at all.