Bilski Watch: Timing of Supreme Court Decisions

The US Patent world continues to await the Supreme Court’s decision in Bilski v. Kappos. The case was argued on November 9, 2009 — 204 days ago.  Professor Joe Miller (Lewis & Clark) looked at the timing of 18 other recent Supreme Court patent decisions and concludes: “if you feel like you’ve been waiting a long time to see the Bilski opinion, it’s because you *have* been waiting a longer time than usual.” 

The chart below is based on Prof. Miller’s data and reports the number of days elapsed from the oral argument to the release of the decision for each case.  The average delay is about 90 days (median of 77 days).  As seen in the chart, Bilski has the longest delay (and that delay continues to grow).  A decision in Bilski is expected by June 28, 2010.

PatentLawPic995
 

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

94 thoughts on “Bilski Watch: Timing of Supreme Court Decisions

  1. As anybody understands respect is one of the most imperative amongst people’s existence. Only respect one another to obtain along properly and I feel that leaving one’s opinion is often a behavior of respect. Do you feel so?

  2. responding to you by number (rather than repeating everything

    1. most of the changes in cars year to year are cosmetic, not nearly the fundamental rate of change that software sees. but in any case, you don’t patent cars. you may patent a component of a car.

    2-3. I am talking about the barrier of entry for anyone. if you want to say that nobody should be able to write software unless they have deep pockets to play the patent game. making a high barrier to entry doesn’t just stop companies from using your invention, it prevents them from doing anything as they don’t have the money to check and find out that they don’t use your invention _and_ produce their own product.

    4. in pharma and car parts you have the resulting chemical or part, but that doesn’t tell you the steps needed to create it.

    5. the current software industry shows that they are racing anyway. most companies produce software because it lets _them_ get things done, not to sell it or give it away. That wouldn’t stop them from being sued by someone with a patent, it just makes them less likely to get caught. it’s not necessary to have software patents to get software developed.

    beyond this it seems that you are simply dismissing my comment and there’s not really much to answer.

    what do you think the purpose of patents is?

    the US Constitution says that it’s to advance the state of the art and benefit society by giving it (eventually) access to inventions that it would loose (due to trade secrets dieing with their inventors) otherwise.

    if this is the purpose, I don’t see patents helping software inventions get to the public that would be lost otherwise.

    If you think the purpose of patents is to make money by licensing them, then I can see why you would think that they are a good idea. Unfortunantly the only people who can play that game are the major established software companies, and they _can’t_ produce all the software that the world needs.

    there are at most dozens of automotive companies. on the other hand, just about every company in the world does software development (if only in programming excel or some other spreadsheet)

  3. Okay then, let’s run down the list.

    1. the time-frames involved. think about what 20 years means in the computer field

    Think about what 20 years (or 14 years) means in the automotive field, where cars get redesigned every five years.

    2. the normal barrier to entry is extremely low

    All the more reason to have patents. Patents create a barrier to entry for people other than the patentee, which is exactly what you want if you invented something and want to profit from it.

    3. patents are something that are a significant expense to use properly in a field.

    A mere pittance to a “multi-million dollar software company”. Well worth the initial outlay. Also, this argument is not specific to the software field.

    4. patents are supposed to be a reward to replace trade secrets. In software you can’t really have trade secrets and ship the software

    Same goes for pharma, and mechanical devices like cars. The goal there isn’t so much to encourage disclosure, but to make it worthwhile for people to invest money in bringing their ideas to market.

    5. here seems to be a huge amount of simultaneous invention in the software field, In this environment there is very little value in granting a patent to get someone to reveal something.

    A lot of that simultaneous invention is probably because people are racing to be the first to invent and patent those things. It might also be because some of those things are obvious, but that’s a different problem. If I may rehash an analogy from some time ago, eight runners might reach the finish line at around the same time, but none of them would have reached the finish line at all if nobody had organized the track meet. It’s the system that gets them racing in the first place.

    6. another problem with software patents is that the patents that are being filed (and granted) are very poor quality,

    in software there are _many_ different ways to achieve the same result, patents seem to be covering getting the result, not the specific process

    there is not sufficient ‘prior art’ in terms that the patent office can understand,

    That’s clearly a problem with patent prosecution and examination, but it’s not a reason why software patents shouldn’t exist. These things may well sort themselves out in time.

    7. just about everyone writing software thinks that software patents are a bad idea,

    Just about everyone downloading music on the internet thinks that copyright in music is a bad idea. That’s their bias showing. They want to be left alone to write whatever code they want. Guess what? Engineers who design car engines would also prefer not to have to design around other people’s patents. It’s not an option that is available to them, and nobody feels sorry for them.

    8. any software program will use many thousands, if not millions of different algorithms in them, if every one of them could be patented it soon becomes almost impossible to write anything that doesn’t violate a patent.

    Cars and iPhones and such have thousands or millions of components in them too. They’re not all patentable, by the way, but why should software be an exception to the general rule in every other field that you can patent any novel, useful, and non-obvious invention? Go on, try to design a car from the ground up without infringing a patent.

    9. This is where the claims that software is a form of math come from (and math is explicitly excluded from things that should be patented)

    Math is excluded, but applications of math are not. You can find claims in many arts that have equations or formulas in them. Software claims probably don’t even recite math, by and large. You can’t exclude an entire industry just because mathematicians used to be good at it.

    10. also the very pragmatic statement that the industry survived without patents for almost it’s entire lifetime.

    Are you old enough that your parents survived in a one-bedroom house with their dozen siblings for almost their entire lifetimes? Do you think they’d prefer to live better than that?

    For the record, the software industry has survived with patents for much longer than the average product cycle, even volumes of poor-quality ones. I think it’s going to make it.

    This completely ignores the arguments that some people are making that patents are not ‘wonderful in every other field’

    You really should give more thought to how some of your arguments would apply in other fields. Software isn’t as different as you think.

  4. there are many problems with patents and software, a partial list of issues is:

    the time-frames involved. think about what 20 years means in the computer field

    the normal barrier to entry is extremely low (how many multi-million dollar software companies were started by people in there garage)

    patents are something that are a significant expense to use properly in a field. you need to have people searching patents for them to be of value to society, if people aren’t searching patents then they are only of value in suing people and the purpose of patents is supposed to be that people reveal something new in return for being given a temporary monopoly of it, if nobody is looking at what’s revealed there’s no benefit.

    patents are supposed to be a reward to replace trade secrets. In software you can’t really have trade secrets and ship the software (you can hide _why_ you decide to have the software do something, but you can’t hide _what_ it is doing)

    here seems to be a huge amount of simultaneous invention in the software field, In this environment there is very little value in granting a patent to get someone to reveal something.

    another problem with software patents is that the patents that are being filed (and granted) are very poor quality, the claims are written in legalese not in any language that an ‘expert in the field’ can understand. I have a couple patent applications in (my company got on a kick about filing patents) and after the lawyers get done re-writing things I can barely understand what they are saying myself.

    in software there are _many_ different ways to achieve the same result, patents seem to be covering getting the result, not the specific process (if they covered the specific process there would be little difference between a patent and a copyright on the code to implement that process)

    there is not sufficient ‘prior art’ in terms that the patent office can understand, this results in patents being issued that seem to cover things that have been in common use for 30+ years.

    just about everyone writing software thinks that software patents are a bad idea, it’s the lawyers and business people coming over from other industries that are drooling over the idea.

    any software program will use many thousands, if not millions of different algorithms in them, if every one of them could be patented it soon becomes almost impossible to write anything that doesn’t violate a patent. in fact, people are arguing today that any significant piece of software already violates patents due to this, and many companies are getting patents mearly in the hope that having some themselves will lessen the lawsuits against them. This is approach makes patents nothing put a cost to the industry, they’re not encouraging innovation.

    it’s not a coincidence that computer programming grew out of mathematics departments in universities, there is a lot in common between proving a math theorem and designing a software program. Smaller software programs can be proven to be correct using the exact same techniques (larger programs could in theory, but in practice it very quickly becomes impractical due to the size of the work needed). This is where the claims that software is a form of math come from (and math is explicitly excluded from things that should be patented)

    also the very pragmatic statement that the industry survived without patents for almost it’s entire lifetime.

    this is not an complete list of the reasons, just a handful off the top of my head, but just about any of these by themselves would be sufficient to me to eliminate software patents.

    This completely ignores the arguments that some people are making that patents are not ‘wonderful in every other field’

  5. Lionel, when you think of “every other field” are you thinking about stuff like math, financial engineering and economics, algorithms and pure business methods? Where does pure software belong, in this spectrum?

  6. “Still, it would be nice if even a single person could explain why patents that are so wonderful in every other field are so stifling and evil in the software field”

    And this is the fundamental question no one has been able to answer. I hear good arguments against software patents from time to time, but they can be applied to all patents, not just software patents.

  7. saying that you need to have software patents before any companies will invest in software development is saying that microsoft doesn’t exist

    Microsoft exists because it was able to rip off other companies’ unpatented software back when Microsoft was just starting out. Not a good time to invest in those other companies that actually invented the software.

    Still, it would be nice if even a single person could explain why patents that are so wonderful in every other field are so stifling and evil in the software field. Is it because of all these idealist programmers who want to give away their software for free? Is it because software claims seem broader and more “obvious”? Both of those problems can be addressed without abolishing software patents entirely.

  8. fatalist, you are forgetting that the linux kernel grew out of a hobbiest project by someone who just purchased their first computer (more than $400 at the time)

    this is exactly the type of software that would be blocked by widespread software patents.

    the software industry as we know it today grew up without patents, just copyright protection, so saying that you need to have software patents before any companies will invest in software development is saying that microsoft doesn’t exist (among many other companies)

    while I believe that there are ideas that are worth granting a patent on that happen to be implemented in software, the patents that have been getting granted (both in the US and in Europe) are nowhere close to that level of non-obviousness. Given this situation I do not believe that the small number of good software patents would be worth the cost in lawsuits and the elimination of opensource software.

    the reason that widespread software patents would eliminate opensource software is that patents control the use of the invention, even if someone else thought of it without knowing about the patent, as such you could not pass software that you wrote (containing ideas that you invented, even if not invented first) without becoming liable for patent infringement. Given that you cannot have both free distribution of software and per-copy royalties it’s not even possible to just pay for a license.

  9. Great posts by Scott Dunn and [Upside Down].

    “Progress” through limiting information flow and monopolizing innovation?

    No.

  10. Mark,

    I wasn’t talking about “open-source software” in general e.g. Linux kernel (it is in fact developed by some capable developers who are getting paid by commercial enterprizes)

    I was talking about open-source R&D projects in the fields like computer speech recognition or computer vision – something requiring a lot of specialized domain knowledge

    Projects like Sphinx at CMU

  11. “In reality, the only succesful open-source projects in those fields I know about are the multi-year government funded R&D projects performed by PhD grad students as part of their research”

    That is hilarious. Software developed as part of university research projects regularly ranks among the worst, most shallow, most defect ridden, and user unfriendly software on the planet. That anyone actually uses, that is.

    In fact the very best open source software is typically developed by a body of contributors dominated by commercial enterprises. The Linux kernel is a case in point.

  12. Ideas don’t come out of a vacuum, though there are some who say their ideas come from God. In that context, can any inventor rightly claim an idea, a non-rival good, as his own?

    I suppose the irony has escaped you that the single idea people most ardently and violently claim as their own is the idea that all their other ideas came from god.

    Patents are not meant to be a social tool. They are meant to advance technology. If you come up with a better technology that more people will want to use, your patent will be worth more money. If you like money, you will do your best to invent such technology. You get a patent when you tell everyone how you did it so they can do it too.

    The system is no more profound than that. All the other rules are patches to keep people from cheating.

  13. Scott Dunn,

    And given the problems we face as a species, we’re going to have to cooperate.

    Wishful thinking is not an answer. The problems we face as a species are because we are that species. Ignoring the reality of that is simply not smart.

    As to “is there anyone alive smart enough to ask the question“, the obvious answer is: Yes. We can easily ask the question. Perhaps you mean to have your question be “Is there anyone smart enough to have the answers to the question“?

    Having the answers does not require having absolute answers – nowhere in man’s endeavors does having absolute answers prevent us from marching forward. You would be a fool to wait for such conditions. Just as you are a fool to posture such conditions for having a patent system. You need to pull your head out of the proverbial Perfect horse’s behind and get back to reality.

  14. You’re too deep for me Scott. I’m just a European, familiar with the idea of awarding scope of protection in proportion to enabled contribution, so it all seems quite simple to me. You would do it with 35 USC 112 (sufficiency of description). Of course, you do need patents-savvy judges, grounded in science and engineering. Otherwise, their caselaw obfuscates rather than clarifies the fundamental idea of proportionate protection.

    Our American patent attorney readers will now put us both straight, I expect.

  15. MaxDrei has this to say: “So Scott, are you saying that the scope of protection granted by the State should be “commensurate” with the magnitude of the real and enabled contribution to the specifically designated technical field?”

    I would say yes, Max, but a qualified yes. First, claim construction has been so broad with patents, particularly software patents that there is no way that the patent is worthy of the social benefit. It’s clear that the question of the social benefit isn’t even being asked in the patent office. That question doesn’t come up until it makes the courts.

    The bigger question, is there anyone alive smart enough to ask the question?, hasn’t even been discussed publicly. It’s the elephant in the room that no one wants to talk about.

    In the context of the social contract, people don’t get ideas on their own. As a member of a society, they get their inputs from society. Ideas don’t come out of a vacuum, though there are some who say their ideas come from God. In that context, can any inventor rightly claim an idea, a non-rival good, as his own?

    I say no. And given the problems we face as a species, we’re going to have to cooperate. Patents are a winner take all solution to innovation, and as such, they discourage cooperation.

  16. According to What: “no one is saying winner-take-all.” Um, a patent says that for 17 years, the winner takes all. The law specifically identifies a patent as a monopoly. And of course to you patent proponents, a private monopoly is better than a government monopoly, right?

    The question is still open: Who is smart enough to declare an invention as patentable? If there is such a person, is he working for the patent system or patenting inventions that shouldn’t be patented?

    I doubt that anyone is smart enough to do that, especially since we have millions of patents now.

  17. Maybe PTO knows or thinks that Bilski will kill a lot of their business,

    Well then, they should have done for Bilski what they did for Beauregard.

    Beauregard was great for business.

  18. Maybe PTO knows or thinks that Bilski will kill a lot of their business, so that’s why the rash of recent allowances — collect the issue fees before Bilski convinces them to abandon, and then they’re no worry anyhow because they’re all invalid?

  19. But speaking of “seeming silly”, << MM MM, you conflate 103, 102, and 101. As per your usual arguments. An apparatus defined as two sticks nailed together. Silly. Yes. Eligible for patentability? Yes. Obvious. Yes. Novel. NO. Plenty of chemical examples can be made as well.

  20. Careful Hagbard,

    Dontcha know that “technology is so universally understood, that it need not be defined? – at least per our resident chuckles Maxi.

  21. Let’s just say that “useful arts” = “technology” and then we can have a big debate about what “technology” actually means in the 21st century.

    A Google search of “financial technology” (with quote marks) returns “about 247,000” hits.

    “software technology” gets 2,370,000

    “business technology” gets 3,680,000.

    Just for fun, “abstract technology” gets 29,300, “mental technology” gets 9,070.

  22. To the extent the MoT test is “silly”, it’s not because it precludes too much. It’s because it doesn’t preclude enough.

    Interesting point of view in that this destroys the CAFC premise, as they tee’d up their argument for the Supremes by repeatedly emphasizing that MoT was THE test. If THE test is not sufficient (for any reason), then the CAFC logic falls apart.

    Maybe what is taking so long is the Supremes having to unravel their own mess of jurisprudence that the CAFC had woven together, and once unraveled, they are finding that they cannot logically put it back together.

  23. I just decided to re-read Rader’s piece in Bilski. I love how he characterizes the method as either abstract or obvious on its face. I also love how he omitted analyzing the claim for abstractness and especially obviousness. I would have loved to have seen him do an obviousness analysis using actual evidence to support his determination.

  24. If a method claim sets out the steps without specifying which ones need to be performed by a computer, is that such a big problem?

    Yes, if someone starts harassing me for solving a problem in a way that “seems like it probably” infringes his patent.

    But speaking of “seeming silly”, the MoT test seems far less silly than a claim to say, a method of eating a hot dog, which would likely pass the test, or a method of dancing, which likely wouldn’t absent a silly argument. To the extent the MoT test is “silly”, it’s not because it precludes too much. It’s because it doesn’t preclude enough.

  25. I believe a trade method which cannot be linked to a material mean is nearest a theoretical expression than an industrial right.

  26. I’ve been wondering lately whether the realities of patent claiming already preclude claims directed to laws of nature, abstract ideas, mathematical algorithms per se. It seems the mere act of writing a useful patent claim requires reduction of the abstract principle or law of nature to some practical application thereof.

  27. “Or a fancy patented spell-check or OCR algorithm.”

    algorithms are patentable now? Mhmmm, riiiiight.

    “…O.K., so you run this email down a LAN to….

    …what exactly? Why another computer”

    The question, tard, was whether or not you needed more than 2 computers. Not whether you needed 2. The answer, tard, is that you do not. In fact the first emails were sent in just such a fashion. If you knew any history you’d know that. But instead, you just tard your way through life until you get busted. Guess what? It’s just about time for you to get busted.

  28. How can someone prevent me from doing something with a claim that doesn’t meet these criteria?

    Your infringing act might need to meet those criteria as a matter of practical necessity.

    Maybe you’re using a fancy patented public key encryption algorithm on your state-of-the-prior-art home computer. Or a fancy patented spell-check or OCR algorithm. If a method claim sets out the steps without specifying which ones need to be performed by a computer, is that such a big problem? It’s the steps that determine whether the invention is so great, not the old computer that carries them out.

    It’s been said time and again that adding a computer to an old method doesn’t make it patentable. Why should not adding a computer to a new method make it unpatentable?

  29. But that’s no reason to do silly things like require a method claim to include a particular machine or physical transformation.

    What’s silly about that requirement? If a method includes neither a particular machine or physical transformation, then what is the point of patenting it? How can someone prevent me from doing something with a claim that doesn’t meet these criteria?

  30. Normally I get really annoyed when people break the bold tags, but it’s totally worth it for such an insightful and grammatical commentary as “does the air a patentable matter?”

    Incidentally, yes it does.

  31. Actually, now I konw the difference. You can see matter even and you can’t see the transformed information. It is kind of like the problem people used to have with air. There is nothing there to see, so it does not exist.

    So, does the “existing” air a patentable matter??
    Think about it.

  32. Beauregard claims are composition claims.

    Right. Beauregard claims are the wrong way to go about it. But that’s no reason to do silly things like require a method claim to include a particular machine or physical transformation.

  33. It just means you’re patenting a method, which is explicitly provided for in 101.

    Beauregard claims are composition claims.

  34. MM: Flowcharts aren’t patentable.

    But that is the “invention”, isn’t it?

    Not exactly. The flowchart is the list of steps you take in performing the method. Whether it’s a method of encrypting a string of text or reserving an airplane bathroom or calibrating the valve timing of an engine, the flowchart might give you all the information you really need to carry out the method. That doesn’t mean you’re patenting a flowchart. It just means you’re patenting a method, which is explicitly provided for in 101.

  35. Actually, now I konw the difference. You can see matter even and you can’t see the transformed information. It is kind of like the problem people used to have with air. There is nothing there to see, so it does not exist.

  36. In fact, if anything seemed like a recipe it was chemistry experiments. Slowly add blah and stir. Wait until the blah turns blah. Show the mess to professor.

    So, what is the invention? The result and not the recipe? Yet, the result of transforming information is the recipe and not the transformation?

  37. >>But that is the “invention”, isn’t it?

    You mean a guide to transforming information. Seems like my chemistry experients in college were no different. It was just transforming physical matter and not information. Non-iron age thinkers understand. CJ Rader will hopefully let your ideas rust away.

  38. “But that is the “invention”, isn’t it?”

    Forget those flowcharts…

    I have the “real invention” for you, Malcolm

    “The amazing mooney toilet ball tickler”

    wannna test drive it ? it’s all hardware, no paper flowcharts, just some real flow…

  39. Any monkey can code up a program from a detailed flowchart

    Flowcharts aren’t patentable.

    But that is the “invention”, isn’t it?

  40. The problem with the winner-take-all society is that as soon as there is a winner, the competition is over.

    Scott Dunn, no one is saying winner-take-all.

    As the Federal Circuit ruled in Ariad v. Lilly not too long ago, patents are not hunting licenses, they are a reward for the conclusion of the search.

    Exactly. But the devil is in the details. The real trick is to strike the right balance between leashing overreaching patentees on the one hand, and ensuring a proper reward is indeed bestowed on the other.

    .

  41. Maybe they just enjoy watching thousands of patent attorneys squirm whilst knowing their end is nigh.

    …law firms that prosecute software applications will be seriously affected

    Your utter lack of real-world experience and appreciation for what is really at stake is showing.

    .

  42. Here is what I want the court to say:

    You can’t patent human behavior. Merely because a claim CAN be construed to cover only human behavior doesn’t mean such a construction is reasonable, you idi*t. In other words, don’t be a smart a*s and try to construe a claim so broad that it covers non statutory subject matter. No one is going to be impress at how “clever” you are and you are only gonna f* up the patent system.

    Approach claim construction by assuming that the claim is implemented via a machine or it transforms something. Of course, an applicant regards only statutory subject matter as his invention. Why would an applicant regard non statutory subject matter as his invention when such a regard would offer no legal protection? We’ve gotten away from such simple logic because some people are too smart for their own good and have too much time on their hands.

    As the dictators of the US Constitution, SCOTUS hereby decrees that all applicants regard machine/transfer as part of their claimed invention. If it isn’t clear from the claim how it is implemented by a machine or transforms something, the claim is void – not because it covers non statutor subject matter, but because it does not particularly point out and distinctly claim the subject matter which the applicant regards as his invention.

    112(1), not 101.

    TIMING:
    “The Supreme Court Term begins the first Monday in October (October 4, in 2010) and ends the first Monday in October of the following year; however, the Justice actively hear arguments and announce decisions from October until late June or early July.”

  43. The carnival is in town, the ride has started up again – “you need code”, “copyright”, “software is math”…

    The merry-go-round takes another spin on worthless and invalidated cliches.

  44. ‘Once the information has been converted to numbers, anything you can do with them in software can also be done with a pencil and paper (albeit more slowly). It is JUST MATH… NOT an “invention”.’

    Oh gee… another one…

    Just tell it to DOD DARPA, to IBM, to Nuance, to ex-Spinvox emploeeys,

    They spend billions dollars just trying to do better “math” with those numbers coming from A/D converter in attempt to convert those numbers to text message

    Success has been very limited so far
    Nothing like HAL computer from that old sci-fi movie

  45. Scott, for Christ sake, go for some intro CS/EE class

    Code by itself is meaningless (without well defined computer language, compiler etc.)

    Method or algorithm is described as a flowchart or pseudocode, if you want

    Any monkey can code up a program from a detailed flowchart

    Your ignorance rivals that of 6
    Did you guys go to the same school ?

  46. fatalist: “The problem is that anyone can buy a 400$ laptop and start developing some junk open-source software”

    Firstly, the “problem” is that junk software patents are impossible to avoid, even for novice developers who just bought their first $400 laptop.

    Secondly, I dispute your implication that proprietary, corporate-developed, closed-source software is necessarily higher quality (i.e., not junk. Windows ME, anyone?).

    fatalist: “Not that it has anything to do with progress in such fields as computer speech recognition or computer vision, but the perception of the most open source junkies is like ‘it’s just software it’s not a real invention, anyone can write it’ ”

    Analog-to-digital converters that render speech or images into numerical data that computers can manipulate are inventions. Improvements to those converters, including those which may make the rendered data more amenable to faster or more accurate processing, can be inventions. (I don’t know, noise reduction, better filtering, whatever.)

    Once the information has been converted to numbers, anything you can do with them in software can also be done with a pencil and paper (albeit more slowly). It is JUST MATH… NOT an “invention”.

    fatalist: “In reality, the only succesful open-source projects in those fields I know about are the multi-year government funded R&D projects performed by PhD grad students as part of their research”

    And you’re expecting our $400-laptop newbie to possess knowledge on par with teams of PhD grad students? Not sure what the point is here.

  47. So Scott, are you saying that the scope of protection granted by the State should be “commensurate” with the magnitude of the real and enabled contribution to the specifically designated technical field?

    I ask because that’s how the EPO goes about deciding how wide a claim to allow (whether prior to issue, or at the conclusion of full-blown inter partes disputed opposition proceedings).

    In virgin territory, the scope awarded can be not far short of “all solutions to the stated problem”. More often though, it is in the specific solution that the contribution lies. The mere “idea” of solving the problem is usually obvious.

  48. To the guys lambasting open source software developers:

    Let’s make one thing really clear: ideas are non-rival goods (Just ask Jefferson). If an invention is so unique and wonderful, it would not be easily replicated without full disclosure of the method used to make it in the first place. There are many examples of inventions implemented with free software, as you have noted. The language used in software patents describes nothing like a reduction to practice, i.e., code. Amazon’s “one-click” patent is a great example. Nice idea, no code.

    The language I see in software patents describes an idea not a method. The code is the precise method used to create a software invention. If the written description doesn’t include code, which is a limitation on the reach of the patent to just *one* method of achieving the goal, then the patent should be held invalid for vagueness.

    As the Federal Circuit ruled in Ariad v. Lilly not too long ago, patents are not hunting licenses, they are a reward for the conclusion of the search. The conclusion yields just one method for reaching the goal of the invention, not “any and all” methods of achieving that goal that could ever be contemplated.

    That is the problem with business method and software patents. You guys think you own ideas, but you’re wrong. You don’t get to own the goal, only the method. If the courts agree, that could reduce protection for software inventions to copyrights.

    And that would free the software industry in ways you can’t possibly contemplate in your Utopian winner-take-all society. The problem with the winner-take-all society is that as soon as there is a winner, the competition is over.

  49. choice selections:

    At the time of KSR, you hadn’t heard of electronic ones doing that either.

    funny, I thought KSR was about obvious and 103, not anticipation and 102. Can you show me these electronic ones at the time of KSR, IANAE, ’cause Iza know that you be right.

    You could run your own email server on your own machine and send the email down a LAN ya know.

    …O.K., so you run this email down a LAN to….

    …what exactly? Why another computer. (Unless you are like 6 who likes to send emails to himself or to any of “girlfriends” Sure, none of them measure up to Mommy, but we are talking 6 here.

  50. “What makes you think I associate, or am associated, with the scamsters in business methods or software patents?”

    Hey, 6, you should go back to that hamburger joint job if you think that people behind RSA or LZW or JPEG or MP3 or H.264 patents are “scamsters”

    Your ignorance is astounding

  51. I didn’t realize that fatalities necessarily factored into the obviousness equation. Are you suggesting they are a unexpected result?

    They’re certainly unexpected for the victim. But I would argue they still lack credible utility until you find a way to make the cars kill people other than at random. Which, come to think of it, is probably prior art.

  52. “Then there was the one where SCOTUS questioned whether e-mail had to propagate through a computer other than the sender or the receiver’s computer . . . LOL”

    You could run your own email server on your own machine and send the email down a LAN ya know. I don’t remember that specific question, but I doubt it was as lolable as you make it out to be.

    Also, I didn’t realize that fatalities necessarily factored into the obviousness equation. Are you suggesting they are a unexpected result?

  53. except for the fact that I have never heard of a mechanical accelerometer killing people like the Toyota electronic accelerometer has.

    At the time of KSR, you hadn’t heard of electronic ones doing that either.

    Besides, if you’re going to argue a general desire not to use electronic components because one of them failed once, you have a serious uphill battle ahead of you.

  54. “The longer we wait the more I fear we are going to get a reversal based on Chakabarty with an invitation to Congress to step up to the plate.”

    HAHAHAHAHAHAHA.

  55. Yeah well what do you expect after the KSR fiasco. Merely replacing a mechanical part for an electric one that performs the same function is obvious . . . ha, except for the fact that I have never heard of a mechanical accelerometer killing people like the Toyota electronic accelerometer has. Then there was the one where SCOTUS questioned whether e-mail had to propagate through a computer other than the sender or the receiver’s computer . . . LOL

  56. The longer we wait the more I fear we are going to get a reversal based on Chakabarty with an invitation to Congress to step up to the plate.

    And the pharma/tech battle will heat up again.

  57. ping Ya think he might spend more time helping out his mates, wouldntcha?

    My “mates” need money. You can’t invent biotech on the cheap unless you’re simply mining data, in which case certain patent-related legal issues tend to present themselves.

  58. “Guess you’ll be looking for work too 6. Maybe there’s a chance of you getting your old job back at the hamburger joint.”

    What makes you think I associate, or am associated, with the scamsters in business methods or software patents?

  59. “…whilst knowing their end is nigh.”

    Guess you’ll be looking for work too 6. Maybe there’s a chance of you getting your old job back at the hamburger joint.

    You know once you graduate from the french fry line to the salad bar, the REAL money kicks in. Just ask Mooney.

  60. 6,

    Hey I not be saying otherwise for Malcolm’s group, who can’t seem to get it together and get their particular art group allowance above 50% (even in the day of 80% across the board average allowances).

    Ya think he might spend more time helping out his mates, wouldntcha?

  61. “that only means that the rest of the group is that much more p_ss-poor)”

    Or that other attorneyfaces are do’nitwrong like we’ve been telling you for years.

  62. Malcolm,

    If you think only law firms that practice software applications will be affected you will be in for a rude surprise. They (law firms with newly found excess capacity) be coming to your backyard next.

    But who knows, they might increase that pathetic allowance rate (made even more pathetic since you have a 95% allowance rate – that only means that the rest of the group is that much more p_ss-poor).

  63. “No software method patents == useless (semiconductor) hardware patents , more or less”

    HAHAHAHAHAHAHAHAHAHAHAHAHAHAHHAHAHAH. Tell that to Infineon et al. who were just on the wrong end of of a ginormous patent hold up not but a few years ago. I doubt that getting rid of software patents would have affected that hold up at all.

  64. Many business, investing and patenting decisions are awaiting the Bilski decision.

    I realize that the Supreme Court is busy (however, not as busy as in past decades), but they need to come down from the mountain and deliver their decision SOON.

  65. “Or what the open source people do is copy commercial software and then after a good night out drinking claim they thought the whole thing up and invented it.”

    I’m not seeing a problem here except that they think that anyone “invented” any software. I think more likely this happens:

    “Or what the open source people do is copy commercial software and then after a good night out drinking claim they thought the whole thing up and wrote it.”

  66. Or what the open source people do is copy commercial software and then after a good night out drinking claim they thought the whole thing up and invented it.

  67. The problem is that anyone can buy a 400$ laptop and start developing some junk open-source software
    Not that it has anything to do with progress in such fields as computer speech recognition or computer vision, but the perception of the most open source junkies is like “it’s just software it;s not a real invention, anyone can write it”

    In reality, the only succesful open-source projects in those fields I know about are the multi-year government funded R&D projects performed by PhD grad students as part of their research

  68. I agree fatalist, but there are a lot of people who do not understand modern technology. The iron brains out number us.

  69. if there is any doubt about patentability of software and algorithms (as technical solutions to particular problems but uncoupled from CPU implementation) the progress in many high-tech fields law firms that prosecute software applications will be seriously affected

    Fyt.

  70. Bilski is a serious decision – if there is any doubt about patentability of software and algorithms (as technical solutions to particular problems but uncoupled from CPU implementation) the progress in many high-tech fields will be seriously affected

    US companies doing cutting edge tech R&D will be screwed (cause you can implement or at least prototype all important things in software running on a general-purpose computer)

    it’s gigantic loophole for infringers

    No software method patents == useless (semiconductor) hardware patents , more or less

  71. Slightly OT but interesting:

    link to prnewswire.com

    Can you name all 9 Supreme Court justices? If so, you are special: only 1% of Americans can achieve this remarkable feat. Less than 10% can recall the names of Justice Breyer or Justice Stevens. The best-known Justice? Clarence Thomas.

  72. One couldn’t want for a better example than that last posting, of a cynical stay at home wishful thinking devoid of humour ringingly empty pot calling the kettle black. Europe is supposed to be a patent backwater but the issue of patent-eligibility at the margin has got a great many people hot and bothered who are not patent attorneys but who are in a position to legislate on patents and how they promote (or hinder) the progress of useful arts.

  73. Malcolm,

    Patent teabaggers do not have the power to shut down any threads. All they can do is whine (in fact, look for thread traffic to increase – no matter which way the decision runs).

  74. I do not think that changing court membership impugns the decision on granting of cert.

    Is this the time, place and subject matter under which to make a stand? Does Stevens show his evolution of thought, or a firmness of conviction?

    The delay may be evidence of a battle between a “legacy” decision and a “judicially efficient” decision.

  75. Yes, because the patent bar is such a large and powerful group.

    I think MD was referring to the awesome power of the patent teabaggur online community. They are liable to shut down two or maybe even three comment threads if this decision turns out badly for them.

  76. I suppose they are painfully aware that, the longer they leave it, the greater the pressure of expectation on them to do something that is at least….wait for it….useful.

    Perhaps they are anticipating such a furious uproar in response to the decision that they plan to file it on their way out the door on June 28th, and get out of town while the getting’s good.

    Yes, because the patent bar is such a large and powerful group. And because patents to methods for setting up financial transactions control such a huge portion of our economy.

    Some of you really need to get out more often.

  77. The membership of the Court changed since Cert was granted. Perhaps they have not yet reached agreement. Perhaps they will dismiss cert.

    Alternatively, perhaps they agreed on a one paragraph per curiam opinion last year. Perhaps they are anticipating such a furious uproar in response to the decision that they plan to file it on their way out the door on June 28th, and get out of town while the getting’s good.

  78. Could be, 6. We just don’t know whether they are in pain or, on the contrary, enjoying themselves. Whatever, I wish them all the kudos that will be theirs, if they get it right, and in elegant style.

  79. Maybe they just enjoy watching thousands of patent attorneys squirm whilst knowing their end is nigh.

    I know I do :)

  80. I suppose they are painfully aware that, the longer they leave it, the greater the pressure of expectation on them to do something that is at least….wait for it….useful.

  81. I wonder if we are getting a split court on this one with concurring and dissenting opinions?

    I wonder if it’s taking so long because they’re trying to avoid doing just that.

    KSR, for all the time it took, turned on a binary-ish question of whether two references could be combined. Bilski is asking the Supremes to draw a line somewhere along a continuum between “anything with the word ‘comprising’ is patentable subject matter” and “a process is only patentable subject matter if it also has a machine or a composition of matter”. I’d rather wait for them to arrive at a reasoned consensus than get a “rule” cobbled together from four mutually inconsistent but concurring opinions.

    Primum non nocere.

  82. “…it is to be hoped that the long delay is an indication that the Supremes have this principle in mind.”

    Oh, if only it were true. Since when do those with political motives adhere to that oath? Heck, its rare enough to see doctors actually living it.

    More likely, the wise members of the court are scrambling to figure out what section 101 is all about – so they don’t make too big of a mess of everything. Plus, they are practicing the spelling of “gobbledygook.”

  83. I wonder if we are getting a split court on this one with concurring and dissenting opinions? Could be interesting.

  84. Paul, any sign that the members of the EPO’s Enlarged Board of Appeal were mindful of the non nocere principle before they very recently issued their safe (anodyne?) European view of patent-eligibility? How many Amicus Curiae Briefs did they have to read, and how many days did they need?

  85. Primum non nocere: a Latin phrase meaning ‘first do no harm”. It is part of the Hippocratic Oath. it is to be hoped that the long delay is an indication that the Supremes have this principle in mind.

  86. The Supreme Court has published five opinions today, June 1. Sorry folks, no Bilski.

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