Supreme Court Hears Bilski v. Kappos

As she has done with past cases, Jill Browning provides the following same-day analysis of the Supreme Court oral arguments in Bilski v. Kappos.

By Jill Browning

The Federal Circuit, sitting en banc, affirmed the Patent Office's decision that the applicant's claims directed to a method of hedging risk in the field of commodities trading did not meet the patent eligibility standard of  35 U.S.C. § 101.  The Federal Circuit found that a "process" must be tied to a particular machine or apparatus, or must transform a particular article into a different state or thing (the "machine-or-transformation" test), to be eligible for patenting under 35 U.S.C. § 101.

The Supreme Court heard oral argument on the appeal from the Federal Circuit today, wherein the central issue is whether the Federal Circuit erred by holding that a "process" must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing ("machine-or-transformation" test), to be eligible for patenting under 35 U.S.C. § 101. 

Justices Sotomayor, Kennedy and Breyer were particularly active, with only slightly lesser participation by Justices Scalia and Ginsburg and Chief Justice Roberts. The Justices appeared to be struggling to come up with the "right" answer and appeared to be mindful of the potential consequences their ruling may have.

Justice Scalia initially indicated that the "useful arts" should mean the manufacturing arts, but not someone who writes a book on "how to win friends and influence people."  Justice Sotomayor followed up with a question regarding the difficulty in where to draw the line if there is no tie to science/technology, reciting the parade of horrors of potentially patentable methods for estate plans or tax avoidance.  Justice Breyer followed up with a question asking whether the framers of the Constitution intended for every  "new" method that helps the business owner to conduct business should be patentable, intimidating that the petitioner's proposed test could be too encompassing and asking for an alternative to limit it to something more reasonable, such as "useful arts."  Justice Sotomayor asked whether a method to cure someone that involves only human activity would fall within the Patent Act.  In response, Petitioner responded that yes, many of these things, if there were new and useful and met the other requirements of the Patent Act, should be patentable, giving the specific example of surgical methods.

Justice Breyer asked for a proposed "back up" principle if the Court "hypothetically" decided to reject the test that "any steps" may potentially be patentable.  Chief Justice Roberts and Justice Kennedy both followed up with comments indicating that certain "ideas" that are abstract should not be patentable, indicating that it would be difficult for him to think that the actuarial tables used in the insurance industry should have been limited to 1 person.  

Justice Ginsburg appeared to be in favor of something similar to the European system, which, she understood to require that the invention be tied to "science or technology".  The petitioner pointed out that the United States is different and that it would be difficult to define "technology based" in the United States.  Petitioner indicated that Europe defines "technology based" to exclude business methods.   Justice Scalia asked why, in a horse-based economy (in the 1800's) there were no patents directed to methods of training horses, as this would certainly have been useful at the time.

Justice Sotomayor indicated that "how" to approach a problem can't be enough to make it patentable, rather, it has to involve some transformation.  She also asked how to discern Congressional intent.  Further to the "intent" issue, Justice Stevens asked whether the original drafter of the Patent Act had any comments on this issue.

Justice Breyer indicated that there were four things to consider when making this ruling, two positive and two negative.  The two positives were the monopoly power the patent provides and the disclosure to the public.  The two negatives were the higher prices that result when a monopoly is in play and having to get a license or permission to practice a patented invention takes time and slows progress.  He indicated that in the past, we respected machines, now, this was asking to respect information, and he was grappling with whether providing patent protection would do more harm than good.

Justice Sotomayor commented that maybe it be sufficient to patent useful knowledge if it were tied to some transformation and the patenting of the Morse Code was discussed.

This concluded the Petitioner's opening argument.

The Respondent began by indicating that the Federal Circuit's test was not "inflexible," but only required some link between the method and the transformation.  At least Justice Sotomayor expressed concern regarding applying a  rigid exclusive test, in that potential patentable subject matter would be excluded from the patenting process.  Justice Ginsberg was curious regarding whether the Federal Circuit sua sponte came up with the test or whether the Government proposed the test during briefing.

The Respondent indicated a couple of different times during the argument that there would be many difficult questions to answer in the future, but that the test could accommodate the difficult questions and allow for exceptions to the machine or transformation test.

The State Street case was discussed and Justices Stevens, Scalia and Breyer wanted to know whether this case would come out the same way if the Federal Circuit's test were utilized.  The Justices appeared to expect a "no" answer, but Respondent indicated that State Street would have ended with the same result because the claims were directed to a machine (a computer).

This led to a discussion regarding the Respondent's apparent position, set forth in its last footnote on its brief, which Chief Justice Roberts was troubled about, that if the method is simply tied to a calculator or a computer, then it would be patentable, and this seemed to place form over substance.  Both Justices Kennedy and Stevens were curious with respect to what was "transformed" by the State Street computer program, indicating that it appeared to be merely a new process on an old machine.  The Respondent did not have a ready answer, deflecting the question by indicating that hardware could be present which would transform the machine.

In rebuttal, the Petitioner stressed its position against a rigid test, which could be avoided by simply looking at whether the "invention" is attempting to patent an abstract idea.

60 thoughts on “Supreme Court Hears Bilski v. Kappos

  1. [jytdog] >> just to clarify for the non-intellectual-property-savvy readers: there is no such thing as a “software patent.”

    [jytdog] >> I have seen plenty of commercially useful algorithms expressed originally in a commercially worthless language like Matlab or the like.

    [jytdog] >> However, the underlying algorithm is (currently) patentable. So what we are really talking about are “algorithm patents.”

    If you want to be technical and say there are no software patents, then there are no algorithm patents either (best I can tell).

    There are process patents (“process” is a term used explicitly in the patent law http://www.law.cornell.edu/uscode/35/usc_sec_35_00000100—-000-.html http://www.law.cornell.edu/uscode/35/usc_sec_35_00000101—-000-.html ).

    Many types of processes (algorithm/recipe/whatever) can be expressed in software. Many process patents are most likely to be implemented as software. I refer to these as software patents even though there might eventually be other nonsoftware implementations of them.

    Some people want to differentiate between the software as an abstraction and a PC running that software. That is silly for a number of reasons. [Let's also not forget it's a trivial step to put the software designed for the PC into the PC and run it.]

    Further, companies like Microsoft actually literally call their patents API patents. An API is a software term which means Application Programming Interface.

    >> In this context, perhaps one can see why “algorithm patents” do protect inventors from getting ripped off by companies with the power to put a legion of coders on implementing a new and useful algorithm.

    If the inventor wants fame, he can be the first to publish his work. He might get a prize, a good job or research money, name recognition that can be further leveraged for money, etc.

    He can even work on the software and release it before anyone else really sees what he is doing. [You covered this case by saying some implementations stink.. oh well, this goes to show you that creating a useful software-based product involves a lot more skills than simply "an idea".]

    However, giving him even a short monopoly (never mind 20 years) is counterproductive. There are many people that are capable of coming up with many ideas and combinations of things but don’t have the time in many lifetimes to write up all the patent variations to cover all of those ideas. Someone taking the time to write up some particular idea should not preclude others from implementing those ideas in products. As an example/analogy, the first to come up with an Obama joke should not preclude others from making similar types of jokes. In all likelihood, that joke likely follows many patterns that already existed.

    No one works in a vacuum. No one works in a vacuum. We all depend on many ideas to come up with our “brilliant” insights. Since most of these ideas and conversations are not protected by patents, we should not then work to exploit this broken patent system to prevent others from similarly later coming up with the same insights and possibly then building much better products than we ever could have built.

    Also, we usually find that the people working on software, and not those working on patents, come up with the best implementations and add many other ideas. A monopoly to the first to write down a particular generalized description of something should not be given any sort of monopoly.

    How about this: subsidize the USPTO with general taxes. Make patent applications free or inexpensive (after all, you want people to publish ideas), then have the government give one of various size awards to those that are given a patent. Sure, maybe others already knew of the idea and are implementing it, but the one that files simply gets a shot at prize/grant money. This to me sounds sensible and actually possibly helps promote the progress of science and useful arts without even infringing much at all on the liberties of everyone else.

    The funny thing about this idea just mentioned is that people already are giving to the public all sorts of great ideas! And in numerous cases, they aren’t just giving many ideas, but a full working software product. The latter is called open source development. And the government frequently doesn’t give any money or much recognition for any of these contributions to society. Don’t ever say the government doesn’t make mistakes.

    Also wrote this which adds more details not covered above: link to patentlyo.com

  2. The big question: “[H]ow do we limit [eligibility] to something that is reasonable?” Perhaps by looking at the degree to which processes and methods free up financial and human capital to do other things. This, so called, second derivative can have tremendous value. The software industry would likely never have gone very far or even originated if the vast majority of us were still busy farming. Working smarter is always better than working harder.

    As for “winning friends and influencing people”, it might be a wonderful thing if we could convince a new friend to cut our grass while we lie in the hammock and dream of algorithms. But, presumably, at some point, the new friend would expect us to reciprocate in kind and any freed up human capital would net out.

  3. hey all

    just to clarify for the non-intellectual-property-savvy readers: there is no such thing as a “software patent.” Software is an expression and as such is only copyrightable – software/code is not patentable.

    However, the underlying algorithm is (currently) patentable. So what we are really talking about are “algorithm patents.”

    I have seen plenty of commercially useful algorithms expressed originally in a commercially worthless language like Matlab or the like. It does take investment to write code that is robust and widely useful and to make a user-friendly UI. In this context, perhaps one can see why “algorithm patents” do protect inventors from getting ripped off by companies with the power to put a legion of coders on implementing a new and useful algorithm.

  4. >> Also, the world of software might be a lot bigger than you think.

    “Software” likely runs anything digital and most things today are controlled by something digital. There is hardware that functions as if it had software (instructions for an abstract machine).

    My perspective is from what I gather of US patent law and US patents. I know the story is different in the EU and elsewhere.

    The US courts have ruled that software can be part of a larger whole.

    In terms of: can the inventive aspect be in software only? I am basically arguing no but can see myself accepting that there might be cases where the answer would be yes. My focus is on not allowing patents if the barriers to entry for inventors can be low. I don’t agree that patents should be used to artificially raise these barriers. Certainly I am against probably all patents on software for a PC. I can imagine many other cases that likely would lead to a failure to promote the progress of science and useful arts. Conversely, there might be some cases of software patents where science progress might be promoted. There would be more context such as high costs to invest in such software.

    I think the key point is to focus on this phrase: “promote the progress of science and useful arts.” It just so happens IMO that probably most uses of most software (if not all) would lead to problems.

    See also this: link to groklaw.net [eg, skip to the section titled "Software is Mathematics"]

    >> Software patents have been around a long time, and the world still turns.

    Viable FOSS and a very accessible Internet have not been around a long time. And some groups are already lining up to taint FOSS so as to help them make a buck or to help them preserve things like their market position against FOSS.

    The number of software patents has ballooned this past decade.

    I did ask earlier if you were willing to accept merrily an exception for FOSS while still allowing patents to affect closed source software. Anyone who sincerely says that FOSS is safe should support this.

    >> When you say everything should be free, by necessity that means some can’t own what they create. There are a lot of words to describe taking something that someone else owns and giving it to the public … Communism, stealing, etc.

    It’s not “property” if making that item property would be unconstitutional. It’s not clear today if software+machine can be patented. The courts have given conflicting rulings.

    >> Software development is thriving, and I’ve seen no proof

    Many minds in the industry have opinions that software patents are rotten and inhibit.

    Given the abridgment of rights, I think the burden of proof that any given patent claim would help society should rest upon the shoulders of the person filing the patent claim.

    There are many ways to encourage innovation. Many don’t need any special motivation to create things. Others find plenty of motivations in a free market. The government can provide tax credits, awards/grants, and many other things besides robbing all people, of what they can ordinarily do at any point in time without conflict, in order to give one individual super-rights.

  5. zman58

    “The “machine” is designed to have the diode switch either way depending on the process or application that is encoded into it.”

    I’m confused. How does a diode switch? It is either forward biased or reverse biased depending on voltage polarity. But the diode doesn’t change, and it doesn’t acquire any new powers just because the voltage switched.

    A computer is different. When you load new software it acquires powers it never had before. It’s true that it could have acquired those powers earlier, but that still would have required loading new software.

    If you define “machine” to include the union of its hardware and software, then it all makes more sense. New software makes a new machine.

    By way of analogy, if you learn how to knit, you are clearly different from what you were before you learned to knit. Even though you look the same.

  6. You can see the Court struggling. Machine-or-transformation is too restrictive; it disallows both business methods and software in general. Means-plus-function allows both. Several members of the court see the need for a line somewhere between those bounds. They note that some non-US patent laws use a term like “technology” to help draw the line, but there’s no basis for that in US law.

    Neither party has suggested an intermediate test compatible with US law. There doesn’t seem to be one in the amici briefs. The American Bar Association brief even suggests that a bright-line test is undesirable. (This seems self-serving, in that it will result in more litigation business for the patent bar.) The Microsoft brief suggests a “new and useful” standard, which is arguably weaker than means-plus-function.

    Yet we need a bright-line standard, because the USPTO has to have one to use during examination. Unless the Court is very clever, we’re going to have a decision that creates more uncertainty in the patent system.

  7. Well Jose_X, I guess we just see the world in two different ways. Also, the world of software might be a lot bigger than you think. Software patents have been around a long time, and the world still turns… When you say everything should be free, by necessity that means some can’t own what they create. There are a lot of words to describe taking something that someone else owns and giving it to the public … Communism, stealing, etc. Regardless of why, What you’re fundamentally against is the right to own certain qualifying software. Software development is thriving, and I’ve seen no proof that, systemically, the harm of such ownership rights outweights the benefit, so I can never agree.

  8. disregard my last post. for some reason the end italics did not work properly (?) I will try again…

    step back stated,
    The machine with the turned-on (forward biased) diode IS DIFFERENT than the machine with diode in non-conductive mode. To argue otherwise is to defy the fundamental laws of physics.

    I would argue otherwise. I am an electrical engineer. The “machine” is designed to have the diode switch either way depending on the process or application that is encoded into it. The running program does not change that–the computer remains general purpose. The computer is a general purpose computer, no different than another computer running a different program at a different time. The program instruction set is a process encoded into the memory of the computer. It can reside at different points in memory on any given general purpose computer at any point in time depending on when it is launched. It can reside anywhere on disk or even removable memory depending on when or how it was installed. There is nothing specific or fixed about the machine that holds it–it is general purpose. For any given diode, as you mentioned, the program may cause that diode to run one way or the other depending on when the program is loaded or run. There is nothing you can stay about the state of that diode in the context of running the program instruction set. Each time it could be different. How do you patent something that is not fixed or defined? You can not define the state of the diodes in a general purpose machine. You are oversimplifying the technology to try to prove your point.

    Besides that, the program is written in human readable language, while the instruction set itself which provides the specific application is derived from that language and is different for any of a set of different types of general computing systems (32-bit, 64-bit, 386, 486, 586, Pentium, Athlon, blah blah, blah). The program is compiled to machine instructions specific for the target machine. So again, what is fixed here? Only the human text form of the program–which does not typically reside on the machine.

    There is nothing to patent because the program reads like a book while each machine execution of the instruction set comes out different. The program is nothing more than a process, a logical flow, and there is no machine attached to it until it is compiled, then it is different in a multitude of ways on each and every machine as I described.

    The program is a recorded process, in human readable text, that happens to be encoded to instructions in computer memory, just like an idea or process for something you might have in your own memory–encoded to synapse in your brain. Or a story in a book encoded to english print. This should not be patent worthy material.

  9. step back stated,
    The machine with the turned-on (forward biased) diode IS DIFFERENT than the machine with diode in non-conductive mode. To argue otherwise is to defy the fundamental laws of physics.

    I would argue otherwise. I am an electrical engineer and I have studied physics extensively. The “machine” is -designed- to have the diode switch either way depending on the process or application that is encoded into it. The running program does not change that–the computer remains general purpose. The computer is a general purpose computer, no different than another computer running a different program at a different time. The program instruction set is a process encoded into the memory of the computer. It can reside at different points in memory on any given general purpose computer at any point in time depending on when it is launched. It can reside anywhere on disk or even removable memory depending on when or how it was installed. There is nothing specific or fixed about the machine that holds it–it is general purpose.

    For any given diode, as you mentioned, the program may cause that diode to run one way or the other depending on when the program is loaded or run. There is nothing you can stay about the state of a specific diode in the context of running the program instruction set. Each time it could be different. How do you patent something that is not fixed or defined? You can not define the state of the diodes in a general purpose machine. You are oversimplifying the technology to try to prove your point.

    Besides that, the program is written in human readable language, while the instruction set itself which provides the specific application is derived from that language and is different for any of a set of different types of general computing systems (32-bit, 64-bit, 386, 486, 586, Pentium, Athlon, blah blah, blah). The program is compiled to machine instructions specific for the target machine. So again, what is fixed here? Only the human text form of the program–which does not typically reside on the machine where the instruction set is run.

    There is nothing to patent because the program reads like a book while each machine execution of the instruction set comes out different in many ways. The program is nothing more than a process, a logical flow, and there is no machine attached to it until it is compiled, then it is different in a multitude of ways on each and every machine as I described.

    The program is a recorded process, in human readable text, that happens to be encoded to instructions in computer memory, just like an idea or process for something you might have in your own memory–encoded to synapse in your brain. Or a story in a book encoded to english print. This should not be patent worthy material.

  10. [Just an ordinary inventor(TM)]>> A program to carry out a new and useful function is patentable, no matter how the lines of code are written.

    A patent that violates the US Constitution cannot lay claim over “a program to carry out a new and useful function.” The patent must be legal.

    But of course, we are arguing whether or not software patents should be legal, so it’s not fair I (or you) use that plain argument.

    [HierarchyOfPontificationBuckets]:

    >> I worked with a solo inventor, an electrical engineer. He spent many years working for telecoms. He went off on his own and came up with some good ideas, patented them, and sold the patents for enough to retire comfortably. He definitely invested to get those patents.

    Few get too upset if the little guy makes money on the big bad corps. It is costly to manufacture circuits. Certainly I can’t do it tonight using the money I have in my pocket right now (as I can with software).

    I think a lot of people would not object to software patents if the small business and individual, at least with respect to FOSS, became immune from patent attacks.

    [HierarchyOfPontificationBuckets]>> I used to have views like yours. gmacs was (presumably still is) the best text editor ever. X window system, (xtank!), and scads of other open software were/are really useful, even the best/only in class. But that was before I started to earn a living by making software, which paid my mortgage, bought clothes for my family, put food on the plate, etc. My views changed when I saw firsthand people putting their own resources on the line to develop and invest in ideas they thought could return their money plus some profit, some invested in the form of personal contribution and were rewarded with stock of uncertain future value. I saw really smart men and women who were directly able to benefit from their innovative contributions. Even today, the inventors I deal with get compensated for each patent they file.

    But you are backing your friends over the many out there who don’t participate and find the patent system disgusting/unfair, inefficient, costly (time/money) or who simply get to the show a year or two late let’s say.

    While some invest some money to write down the general ideas into patents and pay for these patents, others also invest but mostly extra time and lost opportunities in order to implement the software that will be used by a great many people under very generous terms.

    Many of these are very smart and very hard-working and willing to make serious sacrifices even knowing they may not make a bundle.

    These people (eg, teachers) oftentimes make less or a lot less than patent holders, contribute more code and plenty of unpatented ideas (in some cases their ideas turned into broad patents by others) under extremely generous terms that many others leverage.

    My point is that just like you think your friends warrant respect, I too think many of those contributing to open source warrant respect, and likely more so when you consider their actions don’t impede others nearly as much as the actions your friends undertake.

    What kind of equitable system would force these people writing code+ideas to abandoned their years of investments so that the antisocial patent holders profit significantly or simply get their highs prohibiting others?

    >> People need money to not live on the street.

    Yes, so we should not take from every American, possibly putting them all on the street, so that the monopolyholders can avoid “the streets”.

    We all invest. The patent holder contributes less code, frequently not very remarkable ideas, and almost always shares much less.

    No one wants to live on “the streets.”

    >> value in our society is measurable in money. If a software product is valuable, others are willing to pay for it. If it’s not valuable, others will not be willing to buy it.

    This is why FOSS is so valuable. Despite it’s monetary value, it is provided for free. The genius is that sharing code allows everyone to improve faster. The openness creates tremendous opportunity and competition, ultimately guaranteeing the very low price tag (for the code itself, not for services).

    >> One, we don’t really know that, do we? Two, Linux was _later_. That is, those who have the valid patents brought the technology to the public before Linux did, which was a benefit to the public.

    And you ignore the high quality code that Linux brought to the public. You ignore the ideas Linux brought but which were not patented.

    Copyrights are automatic. If this weren’t the case, most people would, according to your scenarios, not own anything because they would not afford the time and expenses to take out copyrights.

    Of course, copyrights are much less general than patents so they interfere much less with others liberties (including their ability to collaborate to bring superior products to market).

    >> It’s a cost of the patent system. If you have brilliant prior art and it’s presumably open source, no later inventor can claim it. The scenario you pose is bogus. And, isn’t one of the goals of opensource for others to build from it, to use it, etc.?

    It’s not bogus. Prior art is a point (or small subset) in space. The patents (with claims) are generally very large partially overlapping subsets in terms of their coverage.

    The prior art has no leverage against others using their invention while the patent holder has leverage (prohibition leverage) over everyone using their invention to any degree. The patent claims are much broader covering many things whose details and uses have not been imagined.

    The patent holder can patent the prior art invention with a twist, heck, independently with 100 twists. This twist(s) becomes a roadblock in the way of the original inventor when they want to evolve their product in a way that would use that twist.

    This is called jumping to the beginning of the line and blocking everyone else from proceeding.

    >> other players in the marketplace deal with these issues. Why don’t you deal with it the way they do? If a patent is obvious it’s not valid. Broad claims are more likely to be invalid. Opensource community is large scale. They have resources. They have product. Sell the product and use the money to invalidate an impeding patent. Others do it, why can’t you?
    >> Freelancers can work for no profit but can sell their work and use the money to deal with patent issues (including procurement of same) just as other organized groups of programmers do (who happen to operate to earn a livelihood).

    The software patent system is a disgusting system that is completely inequitable. Asking people to just play by the rules does not address the problems with the system.

    Many people would object to a system that allows the patenting of storylines and elements of writing, joke-telling, painting, etc.

    Surely such a system would benefit those that know how to acquire and leverage the monopolies, but that some can benefit to the detriment of society does not justify the wisdom (or Constitutionality) of such a system.

    You are asking me to ignore that I believe the law is not moral, beneficial to society, Constitutional, etc, and not seek a way to improve/fix the system.

    As for open source having resources, patents are incompatible with how much of the wealth is generated through open source. Of course software patents are bad regardless of open source, but your statement makes even less sense in the specific context of open source.

    Figuratively, you are telling a community of friends not to talk to each other whenever the topic of conversation has certain characteristics, except after the one wishing to talk pays the other party plus a third party a special fee. This is inefficient. Surely it helps the third parties that have accumulated many of these entitlements, but it’s an inefficient system which the community of friends is very much against adopting. It would destroy the strength of the community and wealth within the community.

    You want to add sludge to an efficient system. Naturally, that benefits those exploiting the antisocial, inequitable, and inefficient software patent system. It also benefits incumbents that have been around a long time to have accumulated many general patents over many types of conversations and what not.

    It benefits proprietary vendors that want their less efficient but lucrative systems to survive against FOSS. It’s no surprise that closed source software easily lead to effective monopolies.

    Society is losing when it damages the efficient open source systems and those that are contributing through these, in order to adopt an inefficient inequitable software patent system that further favors the more costly proprietary software vendors over the lower priced (and less greedy) open source vendors.

    Of course, patents affect even individuals creating their own stuff. It’s not just about “that open source developer” or about “having to now pay for that software that was $0 yesterday”.

    Finally, many take out patents because of pressure at their place of employment. Some of these patents are desired by the employer in order to gain trading leverage against other patent holders. This need and these software patent system costs would not exist if software was widely believed not to be patentable. The software patent system exerts a large cost on all players. Naturally, if the law of the land is “might/(machine gun) makes right” then you play by those rules even if overall that society is worse off than a civil society. Point is that as long as you are in that ruthless society, you need to keep up with the Jones taking out patents in order to remain competitive, even if that is time and money robbed from implementing your product or improving the design or marketing it better, etc.

    >> If I’m a basement inventor/coder, and I invest my nights and weekends coming up with a great idea, why shouldn’t I be able to “own” it?

    Why not, you ask?

    Because you took the ideas of others (of society) that did not patent and then added your patents in front of them and of many others.

    Because you aren’t the only one capable of coming up with that idea (especially with the help of society), and multiple people can have the same idea at the same time. It’s inefficient to add your monopoly restriction, as it means only one person keeps the ability to do something that originally everyone had in full measure but which they now would lose simply for the sake of that one person possibly being able to make extra money through the monopoly.

    Patents are much more broad the copyrights (under a narrow “derivative” interpretation), so each such software patent invention removes much more from the commons than does copyrights.

    Also copyrights are automatic. This puts the wealthy and the poor on a more even basis. If patents were automatic, I think many would be in for a rude awakening.

    >> Stifles?… Not really. There’s no shortage of good software. The patent can be a problem for those who can’t/won’t/don’t have the means or desire to deal with what others own. Many commercial companies deal with the patents of others. They cross-license, they purchase license, they but patents, they buy insurance, etc., and they’re free to build public-benefiting software. The small developer with no assets deals with it by simply removing possibly infringing code.

    I addressed the meat of this quote earlier when I mentioned how software patents are a bad system and saying X people are willing to participate does not make the system just.

    As for stifles, I also covered this just now and a little earlier. It makes no sense to tie the hands of many or to add a significant dose of friction when otherwise those restrictions would not exist.

  11. [HierarchyOfPontificationBuckets]>> If you had your way, some would be able to appropriate the time and investment of others.

    I didn’t understand this.

    [HierarchyOfPontificationBuckets]>> Can you point to me some examples of opensource people being sued?

    Most examples I know are of companies that avoided a costly lawsuit and settled by cross-licensing patents. Microsoft seems to play a major antagonistic role here.

    Some individuals don’t like to break the law as might be the case when someone states they have patents and are not licensing. These individuals avoid creating certain source code in the first place — that’s the monopolies in action.

    Besides myself in various cases, I think another much more public example would be the OGG development team along with many users of OGG.

    And some individuals, I think I have read (and I don’t track this by any means), have ceased and desisted.

    HierarchyOfPontificationBuckets, are you saying you would find acceptable a ruling where FOSS got a bye, a free pass, on patents? [You know, just to make this supposed safety a little bit more formal?]

    [HierarchyOfPontificationBuckets]>> Most “very broad” patents are invalid.

    Not at all. Just about all, if not all, patents are broad by definition.

    This broadness is even more noticeable for software since software is a very complex product in almost every single case of something useful.

    Explain to me how a software patent claim, written up in just one sentence, is not extremely likely to be a very very broad statement about a software invention?

    Contrast the detail covered in that one sentence vs the lines of (already copyright protected) source code (or binaries) that implement the invention/product. You will find a very nasty ratio.

    [HierarchyOfPontificationBuckets]>> Since you ignore most of what I’ve written

    I don’t think I am done. [I am skipping around a bit, and I do get a bit exhausted as well.]

    I think I addressed a lot of what you have said, at least up to where I left off, and did so showing that it doesn’t address IMO satisfactorily what I have said.

    There is some repetition in what you said. My answer would also be repetitive.

    [HierarchyOfPontificationBuckets]>> You can create with absolute freedom. It’s the ability to disseminate a complete and usable software product to the world at large that you want.

    Create but not use? Was that a joke on your part?

    And of course I want to share and/or donate the creations. I mentioned this quite a few times. I even think I (and you and everyone else) should be allow to use those creations commercially if possible to earn some money to buy food, etc.

    [HierarchyOfPontificationBuckets]>> It’s fundamental that one person’s freedom to act is limited by how their acts affect other people.

    So you are taking my side, then?

    Here is a hint about who is the one interfering/abridging rights. The one going to the courts to prevent other people minding themselves from doing their own thing is the software patent holder.

    [fish bones]>> The creation and experimentation needed these days for most products are very expensive.
    [fish bones]>> Most individuals do not have that kind of money. And most investors are not going to invest without obtaining inventions rights under patents.

    Then you might be shocked out of your mind to learn how many lines of open source code have been created and modified for improvements, all on a voluntary basis.

    I limited the discussion as much as possible to software patents because, in other domains, I understand that some form of government subsidy might be what society wants. I am not against the concept of some degree of monopoly protection. It depends on context.

    Again, I don’t mean to be rude to anyone, honestly, except that I see a gross injustice here on the part of those taking advantage of software patents to exert the monopoly hand-out controls on others.

  12. HierarchyOfPontificationBuckets, I really don’t want to be disrespectful. I hope my comments are recognized to be frustration at what I see as injustices.

    >> Independent conception is tricky. How do you really know whether someone copied or not.

    Based on my experience and the experience of many that have been respected through history, one does not create in a vacuum. If you have many inventors, you will get lots of repetition.

    8 beats 1, especially to the patent office.

    Plus, I am not trying to keep anyone from creating. You are. I think the burden of proof, especially given the large number that are hand-cuffed, is on the person that claims that the patent filler is clearly an “island”, a Prometheus that has brought fire to mankind and hence deserves a 20 year monopoly.

    I think it’s much more likely you’ll find someone looking at what society is doing and then have an inspiration without putting in much of the time others (cumulatively) put in and file a patent that can make them super-rich, than you are to find someone ignoring society and coming up with “fire” by themselves without help and then patenting it in time to beat the rest of society by any length of time (or certainly not by anything near 20 years) so as to become society’s savior “exclusively” through their own talent.

    Alright. There are no truly independent creations. Not even the original one is “independent”.

    >> Also, if there is a widespread problem of others independently coming up with the recently patented ideas, then many of those patents are probably invalid.

    You assume everyone coming up with an invention independently wants to engage in the antisocial behavior of spending significant time to take out costly patents. Yes, the costs might be recoverable, but what if you don’t believe patents help society or are a just instrument?

    BTW, just having a patent is a strong motivator to getting others to cease and desist. A court case is costly. Not just in money (very costly, especially if you want to defend yourself well), but in time. People have lives (at least those that write code do), and aren’t usually super wealthy or eager to waste large chunks of time on the many patents of which they might be in violation.

    >> That’s a different problem. The PTO’s bar for obviousness has not been set high enough.

    Given how low they have set it for so long. Given that a high enough bar may not even exist. Given that certain interests would likely win out in a “compromise” (eg, USPTO likely backs patents more than they back civil liberties), I don’t think the USPTO will do a decent job that would be fair to individuals or to society.

    In particular, I don’t really see what plan exists to ensure that software patents are doing more good than harm.

    I haven’t seen answers to much of what I posted in the earlier comment or what I am posting now, so at least from my perspective, we should move to an infinitely high bar and then see if it can be lowered without harming individuals and society.

    Until a reasonable plan comes along, it seems fairest to prevent software patents, eg, much as math, literature, etc, patents are largely prevented today.

    >> Your scenario doesn’t justify stepping on the ownership rights of others.

    Unconstitutional “ownership rights” aren’t justified when they step on the rights of everyone else. Patents are taking rights away from everyone, and software patents are not promoting the progress of science and the useful arts (so as to make up for this theft).

    >> Just because you can do something useful doesn’t mean you can do it in disregard for how it affects others.

    That’s exactly how I feel about those writing up and being granted software patents.

    >> In fact, if what you do is _that_ useful, then you should be able to sell your product and have the money to deal with avoiding infringement and/or paying when you do.

    Almost exactly how I feel about those writing up and being granted software patents.

    [See, I can be as unreasonable as you.]

    >> No other industries have participants who get special exception because they benefit the public.

    Novelists?

    I really don’t know what you are talking about here.

    >> A cheap generic drug maker benefits the public by making available a drug in greater quantity and lower cost than the drug’s patent holder. But that public benefit doesn’t let them copy or even produce if they conceived independently but after the patentee.

    I probably won’t consider in this thread if drug patents are Constitutional.

    >> Even if that drug is _saving lives_, it doesn’t justify in effect stealing the time and investment made by others.

    That is exactly how I feel about the many inventors that have put in time and investments to come up with a drug only to later find that someone took out a patent prior to them going public.

    Of course, bringing drugs to market is much more capital intensive than bringing software to market. Since I believe costs clearly play a role in determining the costs of patents on society, I will opt not to discuss drug patents much here and will limit to software patents.

    FWIW, I probably would accept that those receiving drug patents likely don’t have any moral right or perhaps not even a Constitutional right to prevent others from deriving and marketing their own medicines.

    >> You describe basically a lot of innocent and inadvertent infringement. But you ignore the other scenarios where people deliberately copy (or are willfully ignorant of same), and it does happen.

    I hope my comments make it clear that I am not ignoring this.

    It’s a slap in the face when many create independent inventions. This is almost surely the case when you have many inventors and within a 20 year period.

    That among the “independent” inventions you get some real phonies is an issue in some industries perhaps, but doesn’t phase me when it comes to software.. for reasons I have stated already (eg, low costs to all participants and the Constitutional right of people to develop their own software).

    Even without independent inventions — after all no one develops independently — software patents, especially under the current USPTO implementation, are (IMO) not justified.

    Also, the government already gives monetary grants of various sizes, tax credits, copyright and trade secret protections, prestigious recognition (which can help for marketing purposes and for securing financing), and other things to help “protect” the software inventor seeking subsidies in addition to first-to-market advantages. These subsidy programs affect innocent bystanders negatively to a much lower degree than do software patents.

    I don’t mean to mock anyone.. except (unfortunately) possibly those seeking to support a system that takes a great many rights away from people and harms society.

    >> One last thing. If you’re making and selling things for free, you probably don’t have to worry about personal liability. If someone accuses an opensource product of infringing, they aren’t going to sue for damages. The worst is that they’ll try to get the opensource product to remove the allegedly infringing code. So that’s about as bad as it gets. You’re already getting it easy in that you don’t spend the time and effort that for-profit entities do to avoid the patents of others.

    Every individual is self-employable. We all have to eat. We all care.

    Removing infringing code is not a realistic option any more than… see the paragraph that starts “Design around the patent is a ridiculous notion in many cases” from my last comment.

    Software that does anything useful can easily infringe on numerous patents.

    Again, what right does a person have to prevent someone else from exercising one’s Constitutional rights?

    >> …it seems like what you want is to be able to roam the countryside without heeding the property boundaries….

    A number of your arguments from this point onward repeat the same theme that the ability to prevent others from creating their work is a superright and that those wanting to exercise their ordinary Constitutional rights are disrespectful.

    I disagree these software patent superrights are supported by the Constitution. The only disrespect I see if from those wanting to trample the people’s rights to create their software to use, share, and trade in with others.

    Copyrights have their problems, but these are much less encroaching than are the necessarily broad software patents. The other subsidies mentioned earlier are even less of an obstruction to liberties and to social progress.. at least when it comes to software, and assuming the tax credits and other awards are not blown up beyond realistic quantities (like 100 google).

  13. “”An individual’s rights to create and experiment”

    The creation and experimentation needed these days for most products are very expensive.

    Most individuals do not have that kind of money. And most investors are not going to invest without obtaining inventions rights under patents.

  14. Jose_X,

    As I said, you paint an incomplete picture. If you had your way, some would be able to appropriate the time and investment of others.

    Can you point to me some examples of opensource people being sued?

    Most “very broad” patents are invalid.

    Since you ignore most of what I’ve written, I’ll do the same. You mention “An individual’s rights to create and experiment should trump the rights of a single person to be very rich at the cost of the more basic participation rights of everyone else.”

    Ignoring the loaded parts of this statement, you’re not really advocating or worried about the right to create and experiment. Patents don’t practically impede those things. You can create with absolute freedom. It’s the ability to disseminate a complete and usable software product to the world at large that you want.

    It’s fundamental that one person’s freedom to act is limited by how their acts affect other people.

    There are solutions to your problem that don’t prohibit people from owning what they bring to the world.

  15. HierarchyOfPontificationBuckets, if I don’t say otherwise, I probably am referring to software patents.

    I will likely post more but do so in chunks at a time.

    I will sometimes get off-topic (eg, the topic being the quote to which I’m replying).

    >> You can make patented items in China for marginal cost. The cost of production should have nothing to do with it.

    The differences are very real when we contrast your item X to software/information transfer/distribution, reproduction, modifications, retransfer.

    I don’t think there is a single vehicle or Chinese worker or piece of material than can compare with the speed, low cost, and low energy consumption that it takes to move around the world the needed electrons to effect a transfer of software package, update patch, contributed upload, etc.

    The differences are very real. I’m sure we could pull out some approximations in costs (time, price, energy, etc) and end up with many orders of magnitude difference between software/information and even the most cost effective Chinese worker+cart+(sliver of silicon or other material).

    There is no real comparison. In relative terms, the Chinese worker factory is extremely more costly than the software manipulations/uses.

    What product did you have in mind that you think is different but comparable to software/information in the above ways and which would be worthy of a patent?

    Finally, when the costs and speeds and energy consumption are do much lower, you enable many forms of collaboration and sharing of information that were very impractical in the past.

    You also find that such a low bar leads to many more interested and competent inventors. This implies a greater opportunity cost to monopolies (which implies a higher bar to be cleared to demonstrate “promote the progress of science and useful arts”) and a greater loss of civil liberties.

    Do you honestly think that 1 person compares to a society of cooperating individuals? How likely is it that tying the latter down and giving the ball exclusively to the former is a good deal for society?

    Which are the eight justices that should sit out for the rest of the year to let the other justice make all the wise rulings? [At least here the ratio is only 8 to 1.] I’m sure there is a very wise justice that would introduce novel and unobvious ideas. We want to make sure that justice has monopoly rights above the rights of society or of the others to practice their profession adequately.

    1 is no match against 8 of similar capabilities if only because the others can write much greater volume of material faster and hence cover more ground faster and end up with more group patents were this a contest.

    No, the 1 is not greater than the rest of those able and willing to contribute.

    And the wisest is actually sometimes the one that gets to the USPTO late because they were caught up in a tricky detailed point. This means the 1 is not even “the wisest”.

    >> The guy in his basement can now look at what they produce and distribute to the world, at negligible cost, the patented ideas, the form, the functionality.

    This works both ways, as you said.

    I don’t see what this has to do with hand-cuffing the hands of everyone in order to give a supermonopoly to the first one to fill out the patent application with general statements of claim?

    An individual’s rights to create and experiment should trump the rights of a single person to be very rich at the cost of the more basic participation rights of everyone else.

    Patents give very broad monopolies over many inventions whose details were not imagined by the patentee.

    Do you honestly think proprietary companies aren’t borrowing ideas or even the source code from the voluminous amount of FOSS in existence?

    >> First, there are no monopolies. …I raise the difference to point out that others can design around the patent, wait for it to expire, or build upon it or improve it, and patent same.

    Design around the patent is a ridiculous notion in many cases. Try “designing around” a point or a line or a triangle or a circle or a secant or area or a conic section or… in geometry. Try designing around a music staff or half-notes or pitch or alto or chromatic scale or… in music/composition. Patents are not over a specific work but over a more general composition or idea.

    Waiting 20 years is not an option to a person’s career or inspiration. It’s not fair to many people. Instead of having 1000-10,000 inspirations (by cooperating individuals) that play off the prior ones (and are partially invoked by the prior ones when those materialize), all within 20 years, we force everyone (but the patent holder) to wait while that one person gets a few of those 10,000 inspirations. Further, this gets repeated for every single patent if not for every single patent claim. Society benefits?

    As for building upon or improving: Doing either does not give you (and your collaborators) a license to the original patent if the monopolist doesn’t wish to do so on terms that you consider fair. This destroys incentive to “build upon or improve” something.

    Some people do build upon others, but these people have a goal, not to create a product (as these could be stopped by any of many other patents), but instead to shake others down.

    Did the founding fathers really intend to give these shake-down people those super-powers while simultaneously giving the shaft to those that want to legitimately contribute to a free access society and try to do so (or who want to develop software for the use of self, friends, and family)?

  16. “The machine with the turned-on (forward biased) diode IS DIFFERENT than the machine with diode in non-conductive mode. To argue otherwise is to defy the fundamental laws of physics.”

    It’s “different” just like a car is “different” if you shift gears, or a radio is “different” when you tune it to a different frequency. Can I patent a certain configuration of a Rubik’s cube?

  17. Dear sue math students,

    Lines of code are copyrightable.

    A program to carry out a new and useful function is patentable, no matter how the lines of code are written.

  18. I’m not a lawyer, I’m a computer programmer.

    Writing code to accomplish any task on a computer can be done literally millions of different ways. Just like the infinate number of ways a calculator can calculate the sum of two numbers to equal the number 123.45.
    Perhaps we should allow companies to patent the infinate number of ways to calculate the number 123.45. Think of all the money lawyers and corporations would make suing math students.

  19. Bryan, almost any invention requires investment. There may be the rare flash of amateur genius. But to come up with somethind new and unobvious usually requires some understanding of the state of the art, of the problems in the art, and some skill in solving problems. People aren’t born with these things. They acquire them over a life of hard work, study, etc. So in a sense, there is almost always some level of personal investment that precedes a new and unobvious idea.

    I worked with a solo inventor, an electrical engineer. He spent many years working for telecoms. He went off on his own and came up with some good ideas, patented them, and sold the patents for enough to retire comfortably. He definitely invested to get those patents.

  20. Jose_X:
    Software enables a much larger group of players to participate than is the case in many other types of fields of engineering/science/manufacturing, and all but one of which who would be affected very negatively by patent monopoly grants. The cost structure for software is very different. The essence of software is very different: you can’t clone physical objects, modify them, and redistribute them at costs of zero time and money.
    You can make patented items in China for marginal cost. The cost of production should have nothing to do with it. Many drugs can be produced at very low cost (though development and proof of viability is costly). What you’re implying is that patents should be reserved for the well-to-do and sizeable corporations or entities. But you confuse the cost of production with the cost of innovation, and the ease of distribution cuts both ways. A large software corporation may invest heavily in a patentable invention; usability studies, team of well-paid developers and experts, prototyping and revision, testing, etc. The guy in his basement can now look at what they produce and distribute to the world, at negligible cost, the patented ideas, the form, the functionality.
    Why is this context important? Because in some cases, the gains from monopolies might help to promote the progress — if the costs of the monopolies are in practice not that large; however, when many’s hands are bound, every second that thus passes is a loss. Few have access to steel manufacturing plants independent of patents, for example. Conversely, many have access to software. The worlds best software can be created tomorrow in 10 garages around the world in cooperation through the Internet. And almost surely, they will have to reuse many many ideas from others, ideas that perhaps they derived themselves but which likely could have been the subject of patents within the last few years.

    First, there are no monopolies. A monopoly is a corner on a commercial market. A patent gives a right to exclude others from using your invention. I raise the difference to point out that others can design around the patent, wait for it to expire, or build upon it or improve it, and patent same. Also, in theory the patented invention is a but-for thing. But for the inventor, the idea would not have existed for the public for at least some period of time (in other words, the inventor made it possible, and now, not later). Independent conception is tricky. How do you really know whether someone copied or not. Also, if there is a widespread problem of others independently coming up with the recently patented ideas, then many of those patents are probably invalid. That’s a different problem. The PTO’s bar for obviousness has not been set high enough.

    Your scenario doesn’t justify stepping on the ownership rights of others. Just because you can do something useful doesn’t mean you can do it in disregard for how it affects others. In fact, if what you do is _that_ useful, then you should be able to sell your product and have the money to deal with avoiding infringement and/or paying when you do. No other industries have participants who get special exception because they benefit the public. A cheap generic drug maker benefits the public by making available a drug in greater quantity and lower cost than the drug’s patent holder. But that public benefit doesn’t let them copy or even produce if they conceived independently but after the patentee. Even if that drug is _saving lives_, it doesn’t justify in effect stealing the time and investment made by others.

    You describe basically a lot of innocent and inadvertent infringement. But you ignore the other scenarios where people deliberately copy (or are willfully ignorant of same), and it does happen.

    One last thing. If you’re making and selling things for free, you probably don’t have to worry about personal liability. If someone accuses an opensource product of infringing, they aren’t going to sue for damages. The worst is that they’ll try to get the opensource product to remove the allegedly infringing code. So that’s about as bad as it gets. You’re already getting it easy in that you don’t spend the time and effort that for-profit entities do to avoid the patents of others. There are two things you might be asking for. One, the ability to produce and distribute whatever you please, or two, the ability to produce and distribute without fear of losing your shirt when you get sued. Since the second is unlikely, it seems like what you want is to be able to roam the countryside without heeding the property boundaries. It’s a small world with many people. Rules help us get along without throttling each other. Where people’s interests intersect, you’re likely to find rules.
    There are motivations for creating software beyond to make a buck. While true for most items, software can be distributed and consumed at virtually zero marginal cost. This is a characteristic of a “product” unheard of in the past (and enabled by the Internet). If this applied to cogs, we’d find many people creating great new cogs for new uses and giving them away (building a business in some other way.. or as charity) because this would cost nothing except their time. Of course, in practice this is not possible and patents on cogs do get in the way. Yes, software is different. It’s literature and math no matter how many computers it helps drive. Patenting software stifles and hurts many that would otherwise contribute much to society.
    So? Again, it’s all the more reason to protect those who actually invest to produce software. Most software is commercial. People work full time bringing it to the public. If software is as useful as you suggest, then what’s more important to society — a small supply of free software, or a large supply of commercial software? If I’m a basement inventor/coder, and I invest my nights and weekends coming up with a great idea, why shouldn’t I be able to “own” it? Is it right for others to take it and either benefit from it or to erase my benefit?

    Stifles?… Not really. There’s no shortage of good software. The patent can be a problem for those who can’t/won’t/don’t have the means or desire to deal with what others own. Many commercial companies deal with the patents of others. They cross-license, they purchase license, they but patents, they buy insurance, etc., and they’re free to build public-benefitting software. The small developer with no assets deals with it by simply removing possibly infringing code.

    Opensource folks expect to _organize_ in large scale to build things, distribute those things widely, and do so without regard for how it affects others. You could as well make the same arguments for other legal landmines software entails. Product liability — suppose someone runs linux to control their line of vehicles and some jokester’s intentional bug causes linux to crash causing the cars to crash and injures people. Should the linux people be able to avoid liability? You can think of many scenarios where your activities can harm others. Should you have immunity because of the reasons you give? No.

    You’re organized, you’re large scale, and a lot of people use your product. You have the hallmarks of a non-profit organization. Do what others do. Form a co-op, or incorporate, etc. You want to just sit back and code away in ignorant bliss.
    Also, we are ignoring things like the ridiculous broad scope of patents or the fact that with many more inventors participating, even impressive inventions get rediscovered fairly routinely.
    In fact, the patent system (broad scope == more power) rewards those that know the details less well over those that take the time to learn more details. The initial hare to hop along to the USPTO gets dominance over the careful tortoise. And the dominance is very very significant and is over many many unforeseen future inventions over many many years.

    It’s a separate issue. Nonetheless, other players in the marketplace deal with these issues. Why don’t you deal with it the way they do? If a patent is obvious it’s not valid. Broad claims are more likely to be invalid. Opensource community is large scale. They have resources. They have product. Sell the product and use the money to invalidate an impeding patent. Others do it, why can’t you?

    Those not patenting, and there are real costs in time and money to patent, especially if you want it for defensive purposes, are getting a very very short end of the stick against those with patents. A broad patent lets you stop the world. A much more brilliant prior art (without patent) means next to zilch as you aren’t even guaranteed to be able to develop your invention further if patent holders come and get in your way. So they leveraged your brilliance and extra time and effort for $0 and virtually no restrictions while their mediocrity and rush catapults them into monopolies over your progress and over the progress of many other inventors and their unforeseen inventions.
    It’s a cost of the patent system. If you have brilliant prior art and it’s presumably open source, no later inventor can claim it. The scenario you pose is bogus. And, isn’t one of the goals of opensource for others to build from it, to use it, etc.?

    Summary: don’t curtail the mind or hand-cuff inventors. Software on a PC and even in new gadgets (depending on circumstances) is a very low barrier playing field. This means monopolies will have huge costs. Gain 10 monopolies (things you could still do without a patent system) but lose many many times that number in things you can’t do but otherwise could were it not for the patents others took out. With a low barrier playing field, patents remove/abridge many many rights; they exact a huge cost.
    Response Summary: value in our society is measurable in money. If a software product is valuable, others are willing to pay for it. If it’s not valuable, others will not be willing to buy it. Freelancers can work for no profit but can sell their work and use the money to deal with patent issues (including procurement of same) just as other organized groups of programmers do (who happen to operate to earn a livelihood).

    Let’s suppose Linux does infringe some several hundred patents, as has been suggested. Let’s also suppose that those patents predate Linux. Now, you might say that those who developed Linux just coded what was obvious and apparent to them at the time; they didn’t copy. One, we don’t really know that, do we? Two, Linux was _later_. That is, those who have the valid patents brought the technology to the public before Linux did, which was a benefit to the public.

    I used to have views like yours. gmacs was (presumably still is) the best text editor ever. X window system, (xtank! ), and scads of other open software were/are really useful, even the best/only in class. But that was before I started to earn a living by making software, which paid my mortgage, bought clothes for my family, put food on the plate, etc. My views changed when I saw firsthand people putting their own resources on the line to develop and invest in ideas they thought could return their money plus some profit, some invested in the form of personal contribution and were rewarded with stock of uncertain future value. I saw really smart men and women who were directly able to benefit from their innovative contributions. Even today, the inventors I deal with get compensated for each patent they file. People need money to not live on the street.
    I don’t mean to overinflate the role of patents, as the role is almost impossible to calculate. But the point is this. You paint a picture of the landscape, but your picture has blank areas. There are situations and factors that you ignore. There are real cases of copycats and imitators. There really are (some, not all) things made possible by patents. Some ideas are clever (you should appreciate the difference between routine software building and truly clever solutions to difficult problems). There are thousands of niche software markets where good ideas win the day. Sometimes, those ideas are easy to copy. Some of those ideas require investment to come into existence (whether by having a lot of PhDs that get paid, or by investment in tools that allow the behavior of software to be better understood, or in the form of studying what thousands of users do). You would strip away the ability of anyone to own what they create and to benefit from it.
    The crux of the problem is how to balance these things. There are solutions for the problems you raise. If you’re going to organize and act as a de facto corporation/non-profit that injects goods into the marketplace, then you should do what other entities do to participate in the market. If there are problems with bogus patents, you need to sometimes knock them down. If the PTO is issuing overbroad invalid patents, raise a fuss, lobby, file re-examination requests, etc. That’s what others do. What makes you so special that you can’t do the same?

  21. Howard,

    The machine with the turned-on (forward biased) diode IS DIFFERENT than the machine with diode in non-conductive mode. To argue otherwise is to defy the fundamental laws of physics.

    The word “new” generally goes to a legal question that is separate and apart from that of the statutory subject matter items enumerated in 35 USC 101 (please Google “35 USC 101″). “New” (a.k.a. novel) is addressed in 35 USC 102. Nonobvious is addressed in 35 USC 103. Please Google these as well. That will get you a long way forward in understanding that your argument is apples and oranges.

    FYI: The Supreme Court granted certiora in Bilski to resolve the question of what is meant and not meant by the phrase: “ANY new and USEFUL process” as it appears in 35 USC 101. The grant was not for the purpose of joking about horse whisperers and keeping your students awake in anti-trust class.

    Unfortunately, the laugh track tactics employed by some of our esteemed justices reduced the oral hearings to a pedestrian circus side show. Hopefully the written opinions will be slightly more scholastic and will address the statutory construction issues in a formalized and serious manner rather than as one big joke.

  22. First off, IANAL.

    Next, I feel the problems with software patents lies in the trade off between claiming functional language and disclosure of how to accomplish that function. Typically, the functions are broken into blocks of other functional language, and it’s left to someone skilled in the art to figure out implementation. That to me seriously lacks written description (though possibly still enabled) and/or best mode disclosure.

    If the code is given to the public (to promote the progress…) then all 112 guidelines are met. This is totally unpopular since “inventors” would lose trade-secret protection (which they shouldn’t get if they have a patent). They get one or the other, not both.

    That being said, w/o proper 112 disclosure (e.g. code), a 103 is proper since so much is left up to someone skilled in the art to figure out, all that’s left is the abstract idea covered by the functional limitations. If that abstract idea is obvious, a 103 is given.

    I’m not anti all software patents, I just feel they’re different enough from prior technology that the rules should be different, in order to fulfill the goal of the patent system.

    Finally, for those of you still reading this post.. All this software patent talk is useless (off-topic at least), since Bilski DOESN’T claim software! If he did, he’d pass the MoT test.

    In general, I feel 101 should be left alone, it’s not meant to exclude areas, and making it do so will hurt in the future. I feel proper enforcement of 103/112 will cover 99% of the “problems” in the patent system.

  23. I am not a lawyer, but a mere engineer. Perhaps someone can clarify for me (if the response is short, as we all need to be productive) how the motivation for a patent system is fundamentally different than the following outline.

    Company X invests resources $A in developing technology Y. Tech. Y is non-obvious and there isn’t a similar product known. Since Tech. Y is non-obvious and is the first of its kind, it may cost more resources (let’s say $B) to manufacture products based on it due to further process engineering effort as compared to a well-understood product line. Let’s assume that distribution costs are the same for all their products (both the new and the old time-tested ones). Thus, the total cost for the company to produce one of these new products is $(A+B).

    (I should note here that I personally would not count development time among resources expended, but this a mere opinion.)

    If a competitor purchases one of these products (say for a cost of $C, where $C << $(A+B)) and reverse engineers it to discover Tech. Y, then without patent protection, Tech. Y can be used by the competitor at the low cost of $C, instead of $(A+B).

    Company X, being aware of this possibility, either doesn’t develop risky, but great technologies like Tech. Y or they insert as little as possible of Tech. Y into each generation of products. Either possibility slows progress. It is by this situation that the People grant Government the authority (in the interest of accelerated progress) to grant a temporary monopoly to Company X for Tech. Y.

    Certainly, Congress should be able to define which technologies can be protected by a patent, since the goal of the entire enterprise is to have rapid progress, which is therefore far more appropriate for legislators, rather than justices, to define the technologies. However, in the case of business methods and certain types of software, substantial investment (financial and otherwise) in developing the non-obvious technology does not occur. In this case, it does not seem reasonable to me for the Government to grant patents and seems to exceed its authority. In these particular cases, the Government would essentially award temporary monopolies to companies arbitrarily (arbitrary as viewed over the long term).

    My bottom line: is resource investment (defined by legislators) considered part of the patent eligibility/patentability (not sure about the distinction) discussion? If not, then why?

  24. Part of the problem is that we are ignoring “to promote the progress of science and useful arts.”

    When trying to answer this question, you have to take context into account, context that includes things like who are the parties being affected negatively and what are the costs involved to the players (and by extension, to society).

    Software enables a much larger group of players to participate than is the case in many other types of fields of engineering/science/manufacturing, and all but one of which who would be affected very negatively by patent monopoly grants. The cost structure for software is very different. The essence of software is very different: you can’t clone physical objects, modify them, and redistribute them at costs of zero time and money.

    Why is this context important? Because in some cases, the gains from monopolies might help to promote the progress — if the costs of the monopolies are in practice not that large; however, when many’s hands are bound, every second that thus passes is a loss. Few have access to steel manufacturing plants independent of patents, for example. Conversely, many have access to software. The worlds best software can be created tomorrow in 10 garages around the world in cooperation through the Internet. And almost surely, they will have to reuse many many ideas from others, ideas that perhaps they derived themselves but which likely could have been the subject of patents within the last few years.

    There are motivations for creating software beyond to make a buck. While true for most items, software can be distributed and consumed at virtually zero marginal cost. This is a characteristic of a “product” unheard of in the past (and enabled by the Internet). If this applied to cogs, we’d find many people creating great new cogs for new uses and giving them away (building a business in some other way.. or as charity) because this would cost nothing except their time. Of course, in practice this is not possible and patents on cogs do get in the way. Yes, software is different. It’s literature and math no matter how many computers it helps drive. Patenting software stifles and hurts many that would otherwise contribute much to society.

    If there are a few special cases deemed worthy, then the government can give prizes or other forms of incentives that don’t curtail the rights of others. Unlike with free public electromagnetic spectrum or with water or land, the use of software can be done virtually by anyone to any degree without negatively impacting anyone else. And where this isn’t the case, exceptions can be made on a case by case basis (eg, yelling “fire” in a crowded location).

    Also, we are ignoring things like the ridiculous broad scope of patents or the fact that with many more inventors participating, even impressive inventions get rediscovered fairly routinely.

    In fact, the patent system (broad scope == more power) rewards those that know the details less well over those that take the time to learn more details. The initial hare to hop along to the USPTO gets dominance over the careful tortoise. And the dominance is very very significant and is over many many unforeseen future inventions over many many years.

    Those not patenting, and there are real costs in time and money to patent, especially if you want it for defensive purposes, are getting a very very short end of the stick against those with patents. A broad patent lets you stop the world. A much more brilliant prior art (without patent) means next to zilch as you aren’t even guaranteed to be able to develop your invention further if patent holders come and get in your way. So they leveraged your brilliance and extra time and effort for $0 and virtually no restrictions while their mediocrity and rush catapults them into monopolies over your progress and over the progress of many other inventors and their unforeseen inventions.

    Getting back to context, the Internet allows collaboration that did not exist before. Patents before made a little more sense. Today, the costs (from monopolies) to impede the otherwise gains from the Internet are that much greater than in the past. Progress is not promoted as frequently as it might have in the past (no matter the invention).

    Today’s patent rules encourage individuals to optimize being first no matter if 1000 similar inventions would occur that year. Even unobvious inventions can get reinvented in spades over the course of a single year, much less over 20 years. And because of the broad scope, that patented vague idea can stop many amazing inventions that would otherwise follow, inventions related only because someone was able to use English to express in concise form the commonalities among that potentially very broad class of inventions. The general terms require much less knowledge than the intricate details. In short, today’s rules encourage patent writers to look at what others are doing (easier to do today because so much gets created and posted on the Internet) and then generalize and beat them all to the USPTO to gain their supermonopolies.

    Finally, I do believe that much new hardware should not be patentable is there is no new technology at play (if there is, then that aspect can get a patent). Merely the expression in hardware (as in software) of ideas without leveraging any new physical transformation is but a rewriting of the same physical storyline. Many people daily add creative actions to their jobs. Should they all get patents (as many of the justices pointed out)? Merely moving circuits around into a new configuration is a new use of an existing technology: the configuration is novel (as is math and literature and many things in life that many people create every minute) but the machine has no novel transformations, etc.. However, we may still allow a limited form of monopoly in the cases of material goods in order to help offset manufacturing costs. Then again, there is first to market and trade secret protections (and copyright protections) already at play. These are motivation to in fact innovate and create new products (even if we only look at monetary motivations). This inventor/manufacturer did not have to invest in new technology but merely produced a new flavor using existing technology.

    Note that software (and eg hardware designed through verilog using existing models and technological processes) works off a fixed abstract machine. There is however some unavoidable degree of engineering around imperfections when new processes are developed. This latter does support that some degree of monopoly protection might help. Otherwise, it’s a trivial step to convert the ideal software creation into a product or into a use. There are no surprises and extra engineering needed when we attach the physical machine.

    Summary: don’t curtail the mind or hand-cuff inventors. Software on a PC and even in new gadgets (depending on circumstances) is a very low barrier playing field. This means monopolies will have huge costs. Gain 10 monopolies (things you could still do without a patent system) but lose many many times that number in things you can’t do but otherwise could were it not for the patents others took out. With a low barrier playing field, patents remove/abridge many many rights; they exact a huge cost.

    All monopolies not justified by the Constitution (eg, if they don’t promote the progress of science and useful arts) abridge individual’s rights and hence violate the 1st, 9th, and/or 10th Amendments.

    I am not a lawyer. A flaw in the above argument should not condemn the rest. I also rushed this post. There is so much to be said over this tragedy that is software patents.

    Thanks for taking the time to hear me out.

    PS: FOSS is a proof of concept of the costs involved and injustices that would occur (to society and to individual’s rights) if we allow software monopolies. While some painstakingly build, others summarize those inventions and hence gain supermonopoly rights. And the bias is clearly towards the wealthy, discriminating against not just those that prefer to develop inventions instead of patents but against those with lower monetary resources.

  25. It’s time to get rid of software business method patents that are not tied to a machine.

    Getting rid of software patents completely would still be the best option though. The computer industry was doing just fine until the State Street decision. Just ask Microsoft what they were doing up until 1989.

  26. “Hardware engineers do not ‘put a process’ on their machine. They alter the way that data is physically encoded in physical memory. Real magnetic domains are changed on hard disks, real electrons get charged or discharged into DRAM memory cells and so forth. It becomes a differently structured machine.”

    Are you seriously claiming that simply by storing a bit of information on a hard disk or by refreshing DRAM that you’ve created a “new” machine? That’s absurd. There are plenty of patentable machines that create or alter magnetic fields and move electrons around, and they clearly remain the same machine despite the “different structures.” By that same absurd standard, you could say you created a new, “differently structured” machine simply by turning on a diode.

  27. @Bruce Hayden

    I understand the things you describe happens. But there is a point I am not clear. When functionality could be implemented in such a diversity of underlying platforms, how can you tell the patent is about electronics? Isn’t this functionality that is independent from the electronics that is drafted as an electronics patent?

    Because if you patent electronics, I would expect a limitation that implies the invention is made of electronics. Absent such a limitation, then what is patented?

  28. In my previous example, I had a design moving from software through levels of software/hardware to a custom IC. But what happens if it moves the other way?

    Several of the traditional mainframe companies (Unisys and Bull) ran into the problem that they just couldn’t afford custom ICs any more for their processors. The solution? Emulation on IA64/128 chips (IA64 is the weird Intel explicitly pipelined processor architecture that is replacing their traditional IA32 processors). Yet, these mainframe architectures, previously implemented as custom ICs, are covered by numerous patents from that time. Are those patents now invalid? Or just valid if the infringer implements as custom ICs? The customers using the new emulated processor architectures are mostly insensitive to the difference, since these emulated processors execute their programs just as well as when they were executed on custom ICs.

  29. Verilog is a hardware description language. It is used to make hardware. Software is executable instructions stored as bits in a computer memory. Very different things.

    Except that in some cases you can execute Verilog code.

    This though gets into one of the big problems with excluding software patents. In systems development, you may have a black box that performs a certain function, that is presumably for our discussion here novel and non-obvious. Initially, the functionality is likely to be implemented as software on a general purpose computer. Then, maybe software on an embedded processor. Followed by FPGAs, and custom ICs. From the outside, it is pretty much impossible to distinguish the method of implementing the invention. The determination of how to implement the functionality at what point in time typically involves an intersection between volume and stability – i.e. is an engineering decision that changes throughout the development process. But to exclude software patents would put ultimately exalt form over substance.

    Furthermore, it would be fairly simple to circumvent pretty much any electronics patent by merely implementing the invention in software, whether it be code, Verilog, or even FPGA routing.

  30. “This is scary, old school judges applying their “common sense” of how science works to modern inventions. We may end up back in the 18th Century.”

    The truth is, you never left, they just let you run amok like spoiled brats for awhile.

  31. “That’s a move. They pulled back insofar as they are pulling back from business methods, not machines, dah, dah, dah, dah, dah.”

    I just happened to read that while listening to:

    “Smoke everyday … dah dah dah dah dah dah, it’s the only and only d o double g. Snoooop Dooooggggggg. Snoooop Dooooogggggg. Dah dah dah dah dah

  32. “When hardware engineers define something in Verilog, is that not “software”? Doth it not get “compiled”? And if you prick it with an oscilloscope pin, doth it not bleed real physical signals?”

    Verilog is a hardware description language. It is used to make hardware. Software is executable instructions stored as bits in a computer memory. Very different things.

  33. “Not true.
    Hardware engineers do not ‘put a process’ on their machine. They alter the way that data is physically encoded in physical memory. ”

    That is not how it is described though is it now?

  34. “Roberts’ examples were nothing like the hypothetical you give. His examples were a process not limited to a machine except for one insignificant step like identifying a party or performing a numeric calculation. That’s not the same as a method performed by a computer. In Roberts’ words, he was questioning “the most tangential and insignificant use of a machine”. A process fully performed by a computer is hardly a tangential and insignificant use of a machine.”

    You clearly were not there. I can assure you that nothing of the sort is on very many of those justice’s minds this evening.

  35. “When hardware engineers do this they design hardware and not software.”

    Says you.

    When hardware engineers define something in Verilog, is that not “software”? Doth it not get “compiled”? And if you prick it with an oscilloscope pin, doth it not bleed real physical signals?

  36. “Not true.
    Hardware engineers do not ‘put a process’ on their machine. They alter the way that data is physically encoded in physical memory. Real magnetic domains are changed on hard disks, real electrons get charged or discharged into DRAM memory cells and so forth. It becomes a differently structured machine.”

    When hardware engineers do this they design hardware and not software.

    But hardware engineers also write device drivers, hardware test suites and they design CPU instruction sets. They are not disconnected from software.

    When I talk to hardware engineers, they describe software in the same terms as computer programmers.

  37. “It is a view that matches how programmers and computer hardware engineers understand their art.”

    Not true.
    Hardware engineers do not ‘put a process’ on their machine. They alter the way that data is physically encoded in physical memory. Real magnetic domains are changed on hard disks, real electrons get charged or discharged into DRAM memory cells and so forth. It becomes a differently structured machine.

  38. Both Justices Kennedy and Stevens were curious with respect to what was “transformed” by the State Street computer program, indicating that it appeared to be merely a new process on an old machine.

    “Merely” seems to give short shrift to computer implementation. New processes on old machines can constitute patent-eligible subject matter. A method of making steel, for example. The Court seems to be heading in the direction that business methods or transactional processes or potentially purely-of-the-mind processes are not going to be patent eligible, and adding a computer to such non-patent-eligible processes is not going to make them patent-eligible.”

    From the transcript I read it stronger than this. It sounds like the justices don’t believe putting a non patentable process on a computer magically makes a patentable machine and they don’t believe it makes a patentable process either. It really sounds like they meant patentable and not patent eligible.

    This is consistent with how computer programmers and hardware engineers view their art. If the hardware is the same and the process is the same, how can a process that is not patentable absent of a computer become patentable on a computer?

  39. Both Justices Kennedy and Stevens were curious with respect to what was “transformed” by the State Street computer program, indicating that it appeared to be merely a new process on an old machine.

    “Merely” seems to give short shrift to computer implementation. New processes on old machines can constitute patent-eligible subject matter. A method of making steel, for example. The Court seems to be heading in the direction that business methods or transactional processes or potentially purely-of-the-mind processes are not going to be patent eligible, and adding a computer to such non-patent-eligible processes is not going to make them patent-eligible.”

    From the transcript I have read it stronger than you state. It sounds like the justices don’t believe that putting a non patentable process on an old machine magically make a patentable machine and they don’t believe it makes a patentable process either. I didn’t read it as discussing patent eligibility but really as patentability.

    It is a view that matches how programmers and computer hardware engineers understand their art. The process remains the same and the machine remains the same. So why something non patentable absent of a computer would become patentable when a computer is used?

  40. Page 6, line 20 of the online transcript:

    How it should have gone [in brackets]:

    JUSTICE BREYER: Okay. Well then, if that were so, we go back to the original purpose of the Constitution. Do you think that the framers would have wanted to require anyone [business man] successful in this great, vast, new continent because he thinks of something new to have had to run to Washington and to force any possible competitor to do a search and then stop the wheels of progress unless they get permission? Is that a plausible view of the patent clause?
    MR. JAKES: No, [you old f**t. They would use something called the i-n-t-e-r-n-e-t-s and do their search electronically and quickly, thus saving Nelly the mule for having to pull the buggy through mud, snow and hale to get to Washington. The wheels of progress would roll on.]

  41. This is scary, old school judges applying their “common sense” of how science works to modern inventions. We may end up back in the 18th Century.

    (Query: was 1790 truly a good year?)

  42. Both Justices Kennedy and Stevens were curious with respect to what was “transformed” by the State Street computer program, indicating that it appeared to be merely a new process on an old machine.

    “Merely” seems to give short shrift to computer implementation. New processes on old machines can constitute patent-eligible subject matter. A method of making steel, for example. The Court seems to be heading in the direction that business methods or transactional processes or potentially purely-of-the-mind processes are not going to be patent eligible, and adding a computer to such non-patent-eligible processes is not going to make them patent-eligible.

    This of course reduces computer implementation to the level of well-known in the art, which seems to be confusing the issue of patent-eligibility with patentability. This, however, may be the only way the Court can reconcile its Benson decision (in Benson, the process was converting data into binary format, and the only possible use of the process was implementation on a digital computer.)

  43. Roberts’ examples were nothing like the hypothetical you give. His examples were a process not limited to a machine except for one insignificant step like identifying a party or performing a numeric calculation. That’s not the same as a method performed by a computer. In Roberts’ words, he was questioning “the most tangential and insignificant use of a machine”.

    Yes, that’s why I said: “I love where this is going.” And eventually you get to other questions like “when is the use of a computer tangential”?

    A process fully performed by a computer is hardly a tangential and insignificant use of a machine.

    You’re sure about that? I don’t think the Justices would agree with you. At the very least, I think it depends on the process.

  44. Mooney: “Just to clarify: you think Justice Roberts was approving of a 101 eligility test that would allow an unpatentable method of calculating a risk to be turned into a patentable method merely be inserting the phrase “wherein said method is performed by a computer”?”

    Roberts’ examples were nothing like the hypothetical you give. His examples were a process not limited to a machine except for one insignificant step like identifying a party or performing a numeric calculation. That’s not the same as a method performed by a computer. In Roberts’ words, he was questioning “the most tangential and insignificant use of a machine”. A process fully performed by a computer is hardly a tangential and insignificant use of a machine.

  45. Why read the tea leaves when you can just wait for the future… But what the hay. Ginsburg foreshadowed the outcome: “this case could be decided without making any bold steps”.

    Inane predictions aside, how much will it influence the Court that the government’s position is that “we don’t want the Court … in the area of software innovations or medical diagnostic techniques … to use this case as the vehicle for identifying the circumstances in which innovations of that sort would and would not be patent eligible, because the case really doesn’t present … any question regarding those technologies.” Again, no bold steps?

  46. The point Justice Roberts was making is that by adding technology (e.g., a computer) to a claim, then the whole question of whether or not it is patentable subject matter is handled by the machine prong of Bilski. This was a position also agreed to by the USPTO solicitor. Thus, form is placed over substance.

    Just to clarify: you think Justice Roberts was approving of a 101 eligility test that would allow an unpatentable method of calculating a risk to be turned into a patentable method merely be inserting the phrase “wherein said method is performed by a computer”?

    Funny, but I didn’t get that impression at all from the transcript. In fact, from pages 40-47 I get the impression that not only Roberts but also Stevens, Kennedy, Breyer and Ginsburg have problems with a 101 eligibility test that could be eluded so trivially. That’s five judge judges, no? I think Scalia probably belongs in there as well.

  47. “Oh, I am sooooo loving where this is going.”

    I don’t think so. The point Justice Roberts was making is that by adding technology (e.g., a computer) to a claim, then the whole question of whether or not it is patentable subject matter is handled by the machine prong of Bilski. This was a position also agreed to by the USPTO solicitor. Thus, form is placed over substance.

    From this realization, there are two paths to take. One is to eliminate “business methods” altogether, whether tied to technology or not. The other path is to accept business methods (regardless how claimed) since business methods can easily be defined in terms of a machine. As such, whatever test employed by SCOTUS can easily be rendered moot by claim drafting.

    With these two paths to consider, if SCOTUS was included towards the first (ie., eliminate “business methods” altogher regardless of whether tied to technology or not), they would have likely attempted to flesh out the ramifications even further. However, this is not the path they chose.

    My guess is that SCOTUS (i) reverses Bilski; (ii) reverses Bilski but remand for a decision as to whether Bilski is directed to an abstract idea; (iii) affirms Bilski on different grounds (i.e., directed to an abstract idea), but throws out the Bilski test.

  48. A bitter pill for the Diehrbots

    There are a couple points in the brief where it becomes quite transparent that regardless of the fate of the Federal Circuit’s test as articulated in Bilski, the Court is not going to open the gates of patent eligibility to any recited series of steps.

    The first point is Justice Sotomayor’s question on page 7: “[H]ow do we limit [eligibility] to something that is reasonable?” This question appeared to be foremost in every Justice’s mind [note: Clarence Thomas remained his usual mute self]. No Justice appeared remotely interested in echoing Bilski’s counsel’s argument that a “process” under 101 includes any useful process.

    Interestingly, even Bilski’s counsel distanced himself from that third rail where Les/AI like to play, stating on page 52: “Purely mental processes that are done just solely in someone’s mind, I think we all agree, those are not patent-eligible.” Indeed, virtually everyone does agree on this but Bilski’s counsel, unfortunately, ran out of time (or simply just ran) before explaining WHY he believes that 101 does not permit such claims. After all, we live in the information age, information drives our economy, and our brains can process information in many respects better than computers. Why then the apparent arbitrary exclusion of mental processes? One answer, undoubtedly, is that Bilski’s counsel has some self-respect and didn’t want to flush the astronomically small chance of success for his client down the toilet. The other answer was provided earlier by the counsel for the PTO (age 49):

    “[A] huge array of very productive innovative activity doesn’t culminate in the creation of any new physical substance, and the word “process” was surely intended to add something, but it would be quite strange to construe the word “process” to encompass the whole range of human endeavor when the other words are limited to the creation of new things in the physical.”

    PTO’s counsel also made an excellent commment regarding “the strong dog that didn’t bark in the night,” arguing that if it was the case that everyone always believed that crap like “allocating risk in a contract” was patent-eligible, “the economic history of this country really would have been fundamentally different.”

    The irony in the comment is that the same could be true of software, which the PTO’s counsel was clearly going out of his way to protect. I wonder who was responsible for the footnote in the PTO’s brief that Justice Roberts highlighted as undercutting all of their previous arguments? It was clearly inserted by someone attempting to save software claims.

    But let’s face it: saving software claims was what the Federal Circuit was trying to do when it stuck the garbage in its Bilski decision holding that no physical transformation was necessary if the process was “tied to a particular machine.” Who knows? All we know is that in reward for that clutzy and ill-advised maneuver, the Federal Circuit is going to be rewarded with another sound spanking by the Supreme Court.

    And it’s likely that software patenting proponents are soon going to be begging that the machine test for process patentability be restored.

  49. Here’s my take on reading the transcript:
    (i) SCOTUS is not enthused about business method patents (patent on teaching an antitrust class in which 80% of students stay awake, anyone?);

    (ii) SCOTUS was not persuaded by unpatentable business method + computer = patentable business method (C.J. Roberts);

    (iii) SCOTUS is wary of going too far, but is incredulous of the patentability of other things (like methods of performing surgery); and

    (iv) there are at least a few on the bench who seem to be very well aware of the “tricks” we prosecutors use to make “machines” out of processes.

    A few other points. First, I think a lot of time was wasted when a really simple answer would have sufficed: the problems the SCOTUS raised in numerous hypos were not issues of subject matter of patentability, but to patentability itself, obviousness or anticipation.

    Second, this patent is doomed.

    Third, this relates to 1, I think that SCOTUS will view 101 as a proxy for the “for-the-love-of-god-this-is-not-an-invention” sentiment. I think that they are dubious that you need to go any further into the patentability issues (102, 103, and 112) to do away with patents with no tangible tie to the real world.

    My prediction: this will not be a split decision. There may be a few concurring opinions, but there is going to be no dissent.

  50. – She also asked how to discern Congressional intent. Further to the “intent” issue, Justice Stevens asked whether the original drafter of the Patent Act had any comments on this issue. –

    I am glad they seem to consider this relevant. We aren’t talking the 1st amendment here. Congress is supposed to decide what is patentable.

  51. “This led to a discussion regarding the Respondent’s apparent position, set forth in its last footnote on its brief, which Chief Justice Roberts was troubled about, that if the method is simply tied to a calculator or a computer, then it would be patentable, and this seemed to place form over substance. ”

    Trust me they seemed pissed at this point.

    “Oh, I am sooooo loving where this is going.”

    Oh you woulda loved where that sht was going. After several places in this part of the discussion there was a noticable shift in the audience as the ramifications of the fact that at least 2 justices were, from the mannerisms they were definitely using, and exasperation they were expressing, pretty fin pissed about software. And when I say “pretty fin pissed” well, you’re just going to have to trust me if you weren’t there. Some of the other justices on the other hand were just chillin in their chair, all bouncing around n stuff, not engaged hardly what so ever.

  52. Remember DC’s “tea leaves”:

    PTO’s decision will be affirmed by shaping the facts (e.g., by calling the invention an abstract idea).

    State Street will not be overruled.

    The court will not implement a “machine test.”

  53. This led to a discussion regarding the Respondent’s apparent position, set forth in its last footnote on its brief, which Chief Justice Roberts was troubled about, that if the method is simply tied to a calculator or a computer, then it would be patentable, and this seemed to place form over substance.

    Oh, I am sooooo loving where this is going.

  54. Justice Scalia asked why, in a horse-based economy (in the 1800′s) there were no patents directed to methods of training horses, as this would certainly have been useful at the time.

    The answer, of course, is that patenting investment methods isn’t about promoting innovation in investment schemes. It’s about promoting the business of patenting and litigating patents.

    It’s the difference between an economy based on agriculture, manufacturing and selling goods versus an economy based on re-naming pieces of information about deals and then gambling with them. Of course patent lawyers are going to want to be intimately involved with the latter. It’s second nature.

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