47 ms·

Bilski Oral Argument at the US Supreme Court (Software Patent Case)

13 points by tsally 17y ago

fnid2 17y ago
Now imagine that you are a programmer wanting to solve a problem by writing some code. How will you know whether there might be a claim against your work by an entity holding one of these 200,000 patents? What if you are a mechanical engineer who wants to construct a new invention? How will you know if someone holds a patent claim on it already? What if you are a chemical engineer who wants to invent a new substance and someone has a patent claim on that? The entire universe is nothing but math. It's all math. Statics and Dynamics is no more or less math than encryption algorithms. Everything that can be patented moves physical objects around the universe, whether they are magnetic poles on a spinning disk or they are levers, motors, and dirt and there are myriad patents on backhoes, cranes, and forklifts. Math is all there is. Software is no more or less math than a lightbulb. Everything is math, because math is just a language used to describe the physical world around us. The problems stated here are not unique to software, they exist in all fields where innovation is essential. Either do away with all patents or do away with no patents and reform the entire system. Software is no more or less important than the planetary gear system in the Toyota Prius. Would the world be better if Ford, GM, and Honda could use the planetary drive system in their Hybrid cars? Maybe not! Maybe we wouldn't have a planetary drive at all! Why would Toyota spend so much money on R&D to build a great hybrid system if they knew Ford was just going to take their hard earned and expensive invention and make a bazillion dollars on it. Ford can use the planetary drive if they pay to license it. Software developers can use patented algorithms if they pay to license them too -- that's the whole point -- protect the innovators who pour their hearts, minds, and souls into making the world a better place. Unless there is a profitable mechanism like patents to protect intellectual property, the risk/reward ratio becomes prohibitive and I am not sure innovation won't be hurt. I'm not saying we shouldn't do away with patents. Let's be pragmatic and see what happens, but what I do say is that software is no different than hardware. Equal opportunity under the law, for software engineers or mechanical engineers. Why is there a difference? The more I look around the world, the more discrimination I see wrt software engineers. I think a lot of it is due to the abstraction. People can't see software. They can't see the for loops and while loops, but there is no difference between a gear that moves around in a circle and a loop construct in software, so why are people saying they should be treated differently under the law?
- orangecat 17y ago
  In theory, you're absolutely right. In practice, the USPTO has shown themselves to be uniquely and spectacularly incompetent at handling software patents. It's possible to imagine a software patent system that is a net benefit to society, but what we have now is a huge negative. We should nuke it from orbit and then maybe think about trying again.
- JoshTriplett 17y ago
  Leaving aside the question of whether most patents actually document something innovative, if you really think that patents can protect innovation, see the recent post by Jonathan Schwartz: http://jonathanischwartz.wordpress.com/2010/03/09/good-artists-copy-great-artists-steal/ http://jonathanischwartz.wordpress.com/2010/03/09/good-artis... . Also, I'd like to suggest one reason to distinguish software patents from others: they hurt more, and they kill certain types of development. If a mechanical engineer has to license a patent and pay a certain amount per widget, that might cut into their profit margin or raise the cost per widget, but it won't necessarily kill the product (unless the patent owner outright refuses to license). If a software engineer has to license a patent for a FOSS project, even a fraction of a cent per copy would kill the project, because it fundamentally can't work with a FOSS license. Note that I've worked with mechanical engineers who give away their designs under similar terms, at which point they'd face exactly the same issues; however, this represents a far rarer case than in software. That said, I do personally agree that patents in general ought to go away. However, I think that software patents do a lot more damage than some other kinds, and therefore it makes sense to focus on them first; they also represent a newer and more tenuous concept that we can more easily fight.
  - protomyth 17y ago
    For most physical things, I like patents. As an example, without patents, no sane company would produce drugs. I don't even really have a problem with "Design" patents (pretty narrow, easy to avoid). It's the concept of this ethereal stuff that bugs me. The IsNot patent and the One Click show the system is broken. Heck, look at the xor patent. I think the easiest way to have wrote the law is that it must be a physical object to be patented. Otherwise protect it with copyright.
grellas 17y ago
I spoke the other day with a lawyer buddy of mine who is a leading patent lawyer in Silicon Valley, and here is what he had to say about Bilski: 1. The USPTO has in fact tightened up significantly on the granting of software patents for the past five years, meaning that the flaky ones (like One-Click) are historical artifacts and not indicative of current practice. 2. There is nothing in the law that can reasonably be interpreted to impose a ban on software patents and this will not happen in Bilski. 3. Abuses in the field are rampant, with patents mills acting much like extortionists running a protection racket. 4. In the long run, the problems will be largely self-correcting, as the same blizzard of software patents that now clogs the system will eventually become prior art that will serve as the best defense against trivial patents of the future that would otherwise hinder innovation. Take the points for what they are worth. Personally, I think Bilski's claims will go down, as will the absurdly expansionist interpretations proferred by his lawyer, but this will not put an end to software patents. It is Congress which is constitutionally charged with defining patentable subject matter and it will take nothing less than an act of Congress to impose definitive reform in this area.
- mikedouglas 17y ago
  It should be noted that Amazon's one-click patent was just reaffirmed[0] by the USPTO. [0]: http://arstechnica.com/tech-policy/news/2010/03/controversial-amazon-1-click-patent-survives-review.ars http://arstechnica.com/tech-policy/news/2010/03/controversia...
- cma 17y ago
  >1. The USPTO has in fact tightened up significantly on the granting of software patents for the past five years, meaning that the flaky ones (like One-Click) are historical artifacts and not indicative of current practice Not true; I saw a patent the other day for a system call being transformed from (in one application of the patent) "send(data, host_port)" to "send([data1, data2, ...], [host_port1, host_port2, ...])" http://www.patentstorm.us/patents/7568013/description.html http://www.patentstorm.us/patents/7568013/description.html

13 points by tsally 17y ago

fnid2 17y ago

Now imagine that you are a programmer wanting to solve a problem by writing some code. How will you know whether there might be a claim against your work by an entity holding one of these 200,000 patents? What if you are a mechanical engineer who wants to construct a new invention? How will you know if someone holds a patent claim on it already? What if you are a chemical engineer who wants to invent a new substance and someone has a patent claim on that? The entire universe is nothing but math. It's all math. Statics and Dynamics is no more or less math than encryption algorithms. Everything that can be patented moves physical objects around the universe, whether they are magnetic poles on a spinning disk or they are levers, motors, and dirt and there are myriad patents on backhoes, cranes, and forklifts. Math is all there is. Software is no more or less math than a lightbulb. Everything is math, because math is just a language used to describe the physical world around us. The problems stated here are not unique to software, they exist in all fields where innovation is essential. Either do away with all patents or do away with no patents and reform the entire system. Software is no more or less important than the planetary gear system in the Toyota Prius. Would the world be better if Ford, GM, and Honda could use the planetary drive system in their Hybrid cars? Maybe not! Maybe we wouldn't have a planetary drive at all! Why would Toyota spend so much money on R&D to build a great hybrid system if they knew Ford was just going to take their hard earned and expensive invention and make a bazillion dollars on it. Ford can use the planetary drive if they pay to license it. Software developers can use patented algorithms if they pay to license them too -- that's the whole point -- protect the innovators who pour their hearts, minds, and souls into making the world a better place. Unless there is a profitable mechanism like patents to protect intellectual property, the risk/reward ratio becomes prohibitive and I am not sure innovation won't be hurt. I'm not saying we shouldn't do away with patents. Let's be pragmatic and see what happens, but what I do say is that software is no different than hardware. Equal opportunity under the law, for software engineers or mechanical engineers. Why is there a difference? The more I look around the world, the more discrimination I see wrt software engineers. I think a lot of it is due to the abstraction. People can't see software. They can't see the for loops and while loops, but there is no difference between a gear that moves around in a circle and a loop construct in software, so why are people saying they should be treated differently under the law?

orangecat 17y ago
In theory, you're absolutely right. In practice, the USPTO has shown themselves to be uniquely and spectacularly incompetent at handling software patents. It's possible to imagine a software patent system that is a net benefit to society, but what we have now is a huge negative. We should nuke it from orbit and then maybe think about trying again.
JoshTriplett 17y ago
Leaving aside the question of whether most patents actually document something innovative, if you really think that patents can protect innovation, see the recent post by Jonathan Schwartz: http://jonathanischwartz.wordpress.com/2010/03/09/good-artists-copy-great-artists-steal/ http://jonathanischwartz.wordpress.com/2010/03/09/good-artis... . Also, I'd like to suggest one reason to distinguish software patents from others: they hurt more, and they kill certain types of development. If a mechanical engineer has to license a patent and pay a certain amount per widget, that might cut into their profit margin or raise the cost per widget, but it won't necessarily kill the product (unless the patent owner outright refuses to license). If a software engineer has to license a patent for a FOSS project, even a fraction of a cent per copy would kill the project, because it fundamentally can't work with a FOSS license. Note that I've worked with mechanical engineers who give away their designs under similar terms, at which point they'd face exactly the same issues; however, this represents a far rarer case than in software. That said, I do personally agree that patents in general ought to go away. However, I think that software patents do a lot more damage than some other kinds, and therefore it makes sense to focus on them first; they also represent a newer and more tenuous concept that we can more easily fight.
- protomyth 17y ago
  For most physical things, I like patents. As an example, without patents, no sane company would produce drugs. I don't even really have a problem with "Design" patents (pretty narrow, easy to avoid). It's the concept of this ethereal stuff that bugs me. The IsNot patent and the One Click show the system is broken. Heck, look at the xor patent. I think the easiest way to have wrote the law is that it must be a physical object to be patented. Otherwise protect it with copyright.

grellas 17y ago

I spoke the other day with a lawyer buddy of mine who is a leading patent lawyer in Silicon Valley, and here is what he had to say about Bilski: 1. The USPTO has in fact tightened up significantly on the granting of software patents for the past five years, meaning that the flaky ones (like One-Click) are historical artifacts and not indicative of current practice. 2. There is nothing in the law that can reasonably be interpreted to impose a ban on software patents and this will not happen in Bilski. 3. Abuses in the field are rampant, with patents mills acting much like extortionists running a protection racket. 4. In the long run, the problems will be largely self-correcting, as the same blizzard of software patents that now clogs the system will eventually become prior art that will serve as the best defense against trivial patents of the future that would otherwise hinder innovation. Take the points for what they are worth. Personally, I think Bilski's claims will go down, as will the absurdly expansionist interpretations proferred by his lawyer, but this will not put an end to software patents. It is Congress which is constitutionally charged with defining patentable subject matter and it will take nothing less than an act of Congress to impose definitive reform in this area.

mikedouglas 17y ago
It should be noted that Amazon's one-click patent was just reaffirmed[0] by the USPTO. [0]: http://arstechnica.com/tech-policy/news/2010/03/controversial-amazon-1-click-patent-survives-review.ars http://arstechnica.com/tech-policy/news/2010/03/controversia...
cma 17y ago
>1. The USPTO has in fact tightened up significantly on the granting of software patents for the past five years, meaning that the flaky ones (like One-Click) are historical artifacts and not indicative of current practice Not true; I saw a patent the other day for a system call being transformed from (in one application of the patent) "send(data, host_port)" to "send([data1, data2, ...], [host_port1, host_port2, ...])" http://www.patentstorm.us/patents/7568013/description.html http://www.patentstorm.us/patents/7568013/description.html