8 ms·

HR5874: Restoring Software Patents in the US

75 points by zoobab 5y ago

mindcrime 5y ago
Abrogation of Alice, Mayo, Bilski, and Myriad “to ensure that life sciences discoveries, computer software, and similar inventions and discoveries are patentable, and that those patents are enforceable.” Wow. Thomas Massie is fucking insane. This has to be one of the worst ideas I've ever heard, and I've heard some real whoppers in my time. Sure, let's bring back "implement X on a computer" as a valid form of patent and enshrine that nonsense as doctrine. This will result in the issuance of thousands more bad (really bad) patents which will totally fuck innovation and do nothing but make more money for patent lawyers.
- akersten 5y ago
  Couldn't agree more. If anything we need new legislation that reminds the patent office that doing math on a computer is the same thing as doing math, and the concept of software patents is clearly invalid by definition. Moving in the opposite direction is insanity.
  - mindcrime 5y ago
    If anything we need new legislation that reminds the patent office that doing math on a computer is the same thing as doing math, and the concept of software patents is clearly invalid by definition. Absolutely. And as for "life sciences discoveries" - that's treading on some dangerous ground if we drift into the possibility of allowing patenting of human genes (see "Orphan Black"), or locking other naturally existing compounds and genetic sequences behind a patent. And you know companies are going to try to do all of the above, and probably other Bad Ideas that I can't even conceive of.
    - R0b0t1 5y ago
      The problem with introducing legislation like that is you end up with the default assumption that it did not exist before the legislation.
- deleted 5y ago
  [deleted]
- tablespoon 5y ago
  > Wow. Thomas Massie is fucking insane. This has to be one of the worst ideas I've ever heard, and I've heard some real whoppers in my time. I'm pretty sure if you look through all the bills proposed by every Representative in Congress, you'll find a lot of insane stuff, but almost all of it has zero chance of going anywhere.
  - mistrial9 5y ago
    why does it exist if it has zero chance? I will answer, it does have a chance, just a small one.. and the rewards are so large, it keeps happening. I stood vocally against software patents in the early 90s California, only to have Barbarians from the North make the World's Richest Man for twenty years straight. How is Chapter XXIII going? guess what...
    - tablespoon 5y ago
      > why does it exist if it has zero chance? I will answer, it does have a chance, just a small one.. and the rewards are so large, it keeps happening. Not necessarily, a bill can have value that's computed from something other than its expected chance of passing: 1. an inexpensive sop [1] to some constituency or interest group, 2. a psychologically-pleasing expression of genuinely-held beliefs that are out of step with the consensus, 3. a decoy meant to make some other bill look more reasonable in comparison, 4. legislative make-work, 5. etc. [1] "something of little importance or value that is offered to stop complaints or unhappiness" https://dictionary.cambridge.org/dictionary/english/sop https://dictionary.cambridge.org/dictionary/english/sop
      - mistrial9 5y ago
        ok good call -- but I think number three there is most likely in practice here.. monetary license bills don't seem like a candidate for "sincerely held beliefs" to me
        tablespoon 5y ago
        > ok good call -- but I think number three there is most likely in practice here.. Then what's the other bill then? I think it's more likely something 1., 2. or 5. (which I just added after your comment), given the backers of the bill are in the minority and likely have little influence on anything, given the current levels of political polarization. > monetary license bills don't seem like a candidate for "sincerely held beliefs" to me Looking at the sponsors (Massie (R-KY), Gohmert (R-TX), Gosar (R-AZ), and McClintock (R-CA)), they seem like they're on the right wing of the Republican party. It's totally believable this might be some kind of reflection of "sincerely held beliefs" in property rights. Edit: Sayeth the Wiki: https://en.wikipedia.org/wiki/Thomas_Massie#Other https://en.wikipedia.org/wiki/Thomas_Massie#Other > Massie describes himself as a constitutional conservative. He believes in intellectual property and thinks it is necessary for incentivizing innovation. Massie has remarked that this is one of the areas where he is not a libertarian.
- deleted 5y ago
  [deleted]
- gorbachev 5y ago
  I bet if you did some research you'd find he's not insane, but that he has substantial financial ties to companies/people, who would benefit from this.
  - woodruffw 5y ago
    I think it's safe to assume "insane" here is a stand-in for "insane to put those interests ahead of those of his constituents." That is, of course, if you accept that he considers his voting bloc his constituents in the first place.
- hhaha88 5y ago
  GOP wants everyone to take it to the courts they’ve stacked in their favor, where defendants can be litigated with cash Treasury prints for their friends.
jjoonathan 5y ago
> Rep Massie (R-KY) I wonder if KY saw TX's highly successful patent shakedown sector and wanted in.
thereddaikon 5y ago
Massie has two engineering degrees, a bachelors in electrical and a masters in mechanical from MIT so he isn't a luddite or science illiterate. Looking in to him further, he spun off his undergrad work at MIT into a tech startup, a pretty common thing for MIT alums to do, and has several patents. This likely comes from a fundamentally different stance on tech IP than what most of HN believes.
- xxpor 5y ago
  Or it comes straight from some patent trolls that fund his campaigns.
- jordanpg 5y ago
  None of those credentials translate into an understanding of the current state of patent law. Like all other areas of US law, its a heaping pile of high-court precedent built on longstanding traditions and understandings of what the Founders had in mind 300 years ago. Since it's built on 300 year old legal theory, some of it makes no sense in a modern context -- but that's what we have. What is true, and what Massie surely understands, is that tinkering with these rules has seismic consequences, that are all of good, bad, and unpredictable. There are extremely strong opinions and lobbies on all sides of this. Any reform to the US patent system will happen slowly, carefully, and incrementally. Congress is too spineless to actually enact anything like this, and the Supreme Court is extremely reluctant to make any decisions on this. Most likely, reforms will continue to occur at the margins, according to Federal Circuit appeals decisions. One day, the Supreme Court will review Alice, etc. and we might get a nudge one way or the other.
- notquitehuman 5y ago
  He may not be a Luddite, but he is a sitting congressman, so some level of corruption/bad faith should be assumed.
- mindcrime 5y ago
  The ironic thing is that moving back to "first to invent" works in favor of big companies who can afford armies of patent lawyers to argue over who was, in fact, "first to invent". First to file is much more egalitarian and more favorable to startups, small companies, independent inventors, and suchlike. And yes, I get that "first to invent" feels more fair in a certain sense. But from a pragmatic point of view, first to file makes more sense. It's also more consistent with how most of the rest of the world works, if I recall correctly.
amerine 5y ago
This is some ridiculous, “doing an already common idea but on a computer” has no ground for “invention”. Doing math is math.
thethirdone 5y ago
> 7. End Automatic publication of patent applications. This seems very problematic. Publication of pending patents gives others the opportunity to demonstrate prior work before the patent is granted.
- rafaelturk 5y ago
  Now include new complicating factor: AI creating thousands of patients per day and you have a big mess. One that ends with no one being able to innovate.
  - bee_rider 5y ago
    Easy fix -- until the day when we've created a truly sentient AI (one which should be considered a person), only natural persons to hold patents (make them non-transferable as well and we'll have made a good bit of progress against patent trolls). If we ever do create an artificial entity that rises to the level of true personhood, we'll have to reconsider a whole bunch of laws anyway, but this seems like a decent temporary fix until then.
- fatnoah 5y ago
  It also allows a convenient way to publicly disclose inventions so that others can't then patent them and block you.
zoobab 5y ago
Here in Europe they are trying again via the Unified Patent Court, which will be free to declare software patents valid using the "as such" or the "technical effect" loopholes, without any possibility of appeal to the CJEU. They are trying to bypass Brexit with a dubious secret "interpretative declaration": https://ffii.org/unified-patent-court-committee-refuse-access-to-secret-draft-declaration-to-bypass-national-parliaments-brexit-and-the-vienna-convention/ https://ffii.org/unified-patent-court-committee-refuse-acces...
jcranmer 5y ago
HR5874 isn't about restoring software patents. It's about undoing every single element of patent reform this century, whether it be the America Invents Act (that normalizes US patent law to bring it in line with the entire rest of the world), or any SCOTUS ruling to the contrary. As one of the commentators on the linked blog points out, it's actually surprising that it's not overruling TC Heartland (which is the case that says, no, you can't bring every patent case in ED Texas because you like the judge there) as well. Every other notable hitter--and not just the subject matter of Alice or Bilski, but things like Oil States that upheld IPR or Impression v Lexmark that held that resales don't violate patents--are also expressly overturned. This isn't the first time such a bill has been introduced in Congress (and it likely won't be the last), but this is going to go absolutely nowhere.
cletus 5y ago
This is a Republican-sponsored bill in the House so, unless it has Democratic support, is going absolutely nowhere. I'm actually a little surprised this isn't Democrat-sponsored. It may find traction with Democrats unfortunately because one of the key supports of Democrats are trial lawyers. It's one reasons Democrats have historically opposed tort reform. Patent litigation is a jobs-for-life program for lawyers. But there's no sign yet of this enjoying any kind of Democratic support. I would've expected a Democratic co-sponsor at least. The authors certainly could've found one but there are none. So who is this aimed at? What group are the sponsors currying favour with? It's really not clear. If there isn't one then that really means the authors think this is a good idea, which is... insane. There's absolutely no reason for software patents to exist. None. Let copyright law handle IP protection for software.
- CameronNemo 5y ago
  What about in less than two years? Republicans could control both the Senate and the House then. This could have legs in the future, if it becomes part of the Republican platform (I.e. McConnell and that Kevin dude whip for it).
- deleted 5y ago
  [deleted]
advael 5y ago
Every attempt to strengthen a form of intellectual property should be viewed as an assault on individual rights for the benefit of whatever corporate entity can most effectively capture, hoard, and exploit it. Strengthening patents in particular holds the special distinction of being a direct attack on the means by which entrenched structures are most often disrupted: Technological innovation itself

75 points by zoobab 5y ago

Abrogation of Alice, Mayo, Bilski, and Myriad “to ensure that life sciences discoveries, computer software, and similar inventions and discoveries are patentable, and that those patents are enforceable.” Wow. Thomas Massie is fucking insane. This has to be one of the worst ideas I've ever heard, and I've heard some real whoppers in my time. Sure, let's bring back "implement X on a computer" as a valid form of patent and enshrine that nonsense as doctrine. This will result in the issuance of thousands more bad (really bad) patents which will totally fuck innovation and do nothing but make more money for patent lawyers.

akersten 5y ago
Couldn't agree more. If anything we need new legislation that reminds the patent office that doing math on a computer is the same thing as doing math, and the concept of software patents is clearly invalid by definition. Moving in the opposite direction is insanity.
- mindcrime 5y ago
  If anything we need new legislation that reminds the patent office that doing math on a computer is the same thing as doing math, and the concept of software patents is clearly invalid by definition. Absolutely. And as for "life sciences discoveries" - that's treading on some dangerous ground if we drift into the possibility of allowing patenting of human genes (see "Orphan Black"), or locking other naturally existing compounds and genetic sequences behind a patent. And you know companies are going to try to do all of the above, and probably other Bad Ideas that I can't even conceive of.
  - R0b0t1 5y ago
    The problem with introducing legislation like that is you end up with the default assumption that it did not exist before the legislation.
deleted 5y ago
[deleted]
tablespoon 5y ago
> Wow. Thomas Massie is fucking insane. This has to be one of the worst ideas I've ever heard, and I've heard some real whoppers in my time. I'm pretty sure if you look through all the bills proposed by every Representative in Congress, you'll find a lot of insane stuff, but almost all of it has zero chance of going anywhere.
- mistrial9 5y ago
  why does it exist if it has zero chance? I will answer, it does have a chance, just a small one.. and the rewards are so large, it keeps happening. I stood vocally against software patents in the early 90s California, only to have Barbarians from the North make the World's Richest Man for twenty years straight. How is Chapter XXIII going? guess what...
  - tablespoon 5y ago
    > why does it exist if it has zero chance? I will answer, it does have a chance, just a small one.. and the rewards are so large, it keeps happening. Not necessarily, a bill can have value that's computed from something other than its expected chance of passing: 1. an inexpensive sop [1] to some constituency or interest group, 2. a psychologically-pleasing expression of genuinely-held beliefs that are out of step with the consensus, 3. a decoy meant to make some other bill look more reasonable in comparison, 4. legislative make-work, 5. etc. [1] "something of little importance or value that is offered to stop complaints or unhappiness" https://dictionary.cambridge.org/dictionary/english/sop https://dictionary.cambridge.org/dictionary/english/sop
    - mistrial9 5y ago
      ok good call -- but I think number three there is most likely in practice here.. monetary license bills don't seem like a candidate for "sincerely held beliefs" to me
      - tablespoon 5y ago
        > ok good call -- but I think number three there is most likely in practice here.. Then what's the other bill then? I think it's more likely something 1., 2. or 5. (which I just added after your comment), given the backers of the bill are in the minority and likely have little influence on anything, given the current levels of political polarization. > monetary license bills don't seem like a candidate for "sincerely held beliefs" to me Looking at the sponsors (Massie (R-KY), Gohmert (R-TX), Gosar (R-AZ), and McClintock (R-CA)), they seem like they're on the right wing of the Republican party. It's totally believable this might be some kind of reflection of "sincerely held beliefs" in property rights. Edit: Sayeth the Wiki: https://en.wikipedia.org/wiki/Thomas_Massie#Other https://en.wikipedia.org/wiki/Thomas_Massie#Other > Massie describes himself as a constitutional conservative. He believes in intellectual property and thinks it is necessary for incentivizing innovation. Massie has remarked that this is one of the areas where he is not a libertarian.
deleted 5y ago
[deleted]
gorbachev 5y ago
I bet if you did some research you'd find he's not insane, but that he has substantial financial ties to companies/people, who would benefit from this.
- woodruffw 5y ago
  I think it's safe to assume "insane" here is a stand-in for "insane to put those interests ahead of those of his constituents." That is, of course, if you accept that he considers his voting bloc his constituents in the first place.
hhaha88 5y ago
GOP wants everyone to take it to the courts they’ve stacked in their favor, where defendants can be litigated with cash Treasury prints for their friends.

jjoonathan 5y ago

> Rep Massie (R-KY) I wonder if KY saw TX's highly successful patent shakedown sector and wanted in.

thereddaikon 5y ago

Massie has two engineering degrees, a bachelors in electrical and a masters in mechanical from MIT so he isn't a luddite or science illiterate. Looking in to him further, he spun off his undergrad work at MIT into a tech startup, a pretty common thing for MIT alums to do, and has several patents. This likely comes from a fundamentally different stance on tech IP than what most of HN believes.

xxpor 5y ago
Or it comes straight from some patent trolls that fund his campaigns.
jordanpg 5y ago
None of those credentials translate into an understanding of the current state of patent law. Like all other areas of US law, its a heaping pile of high-court precedent built on longstanding traditions and understandings of what the Founders had in mind 300 years ago. Since it's built on 300 year old legal theory, some of it makes no sense in a modern context -- but that's what we have. What is true, and what Massie surely understands, is that tinkering with these rules has seismic consequences, that are all of good, bad, and unpredictable. There are extremely strong opinions and lobbies on all sides of this. Any reform to the US patent system will happen slowly, carefully, and incrementally. Congress is too spineless to actually enact anything like this, and the Supreme Court is extremely reluctant to make any decisions on this. Most likely, reforms will continue to occur at the margins, according to Federal Circuit appeals decisions. One day, the Supreme Court will review Alice, etc. and we might get a nudge one way or the other.
notquitehuman 5y ago
He may not be a Luddite, but he is a sitting congressman, so some level of corruption/bad faith should be assumed.
mindcrime 5y ago
The ironic thing is that moving back to "first to invent" works in favor of big companies who can afford armies of patent lawyers to argue over who was, in fact, "first to invent". First to file is much more egalitarian and more favorable to startups, small companies, independent inventors, and suchlike. And yes, I get that "first to invent" feels more fair in a certain sense. But from a pragmatic point of view, first to file makes more sense. It's also more consistent with how most of the rest of the world works, if I recall correctly.

amerine 5y ago

This is some ridiculous, “doing an already common idea but on a computer” has no ground for “invention”. Doing math is math.

thethirdone 5y ago

> 7. End Automatic publication of patent applications. This seems very problematic. Publication of pending patents gives others the opportunity to demonstrate prior work before the patent is granted.

rafaelturk 5y ago
Now include new complicating factor: AI creating thousands of patients per day and you have a big mess. One that ends with no one being able to innovate.
- bee_rider 5y ago
  Easy fix -- until the day when we've created a truly sentient AI (one which should be considered a person), only natural persons to hold patents (make them non-transferable as well and we'll have made a good bit of progress against patent trolls). If we ever do create an artificial entity that rises to the level of true personhood, we'll have to reconsider a whole bunch of laws anyway, but this seems like a decent temporary fix until then.
fatnoah 5y ago
It also allows a convenient way to publicly disclose inventions so that others can't then patent them and block you.

zoobab 5y ago

Here in Europe they are trying again via the Unified Patent Court, which will be free to declare software patents valid using the "as such" or the "technical effect" loopholes, without any possibility of appeal to the CJEU. They are trying to bypass Brexit with a dubious secret "interpretative declaration": https://ffii.org/unified-patent-court-committee-refuse-access-to-secret-draft-declaration-to-bypass-national-parliaments-brexit-and-the-vienna-convention/ https://ffii.org/unified-patent-court-committee-refuse-acces...

jcranmer 5y ago

HR5874 isn't about restoring software patents. It's about undoing every single element of patent reform this century, whether it be the America Invents Act (that normalizes US patent law to bring it in line with the entire rest of the world), or any SCOTUS ruling to the contrary. As one of the commentators on the linked blog points out, it's actually surprising that it's not overruling TC Heartland (which is the case that says, no, you can't bring every patent case in ED Texas because you like the judge there) as well. Every other notable hitter--and not just the subject matter of Alice or Bilski, but things like Oil States that upheld IPR or Impression v Lexmark that held that resales don't violate patents--are also expressly overturned. This isn't the first time such a bill has been introduced in Congress (and it likely won't be the last), but this is going to go absolutely nowhere.

cletus 5y ago

This is a Republican-sponsored bill in the House so, unless it has Democratic support, is going absolutely nowhere. I'm actually a little surprised this isn't Democrat-sponsored. It may find traction with Democrats unfortunately because one of the key supports of Democrats are trial lawyers. It's one reasons Democrats have historically opposed tort reform. Patent litigation is a jobs-for-life program for lawyers. But there's no sign yet of this enjoying any kind of Democratic support. I would've expected a Democratic co-sponsor at least. The authors certainly could've found one but there are none. So who is this aimed at? What group are the sponsors currying favour with? It's really not clear. If there isn't one then that really means the authors think this is a good idea, which is... insane. There's absolutely no reason for software patents to exist. None. Let copyright law handle IP protection for software.

CameronNemo 5y ago
What about in less than two years? Republicans could control both the Senate and the House then. This could have legs in the future, if it becomes part of the Republican platform (I.e. McConnell and that Kevin dude whip for it).
deleted 5y ago
[deleted]

advael 5y ago

Every attempt to strengthen a form of intellectual property should be viewed as an assault on individual rights for the benefit of whatever corporate entity can most effectively capture, hoard, and exploit it. Strengthening patents in particular holds the special distinction of being a direct attack on the means by which entrenched structures are most often disrupted: Technological innovation itself