5 ms·

Appeals court ruling could be 'death' of software patents

enraged_camel 13y ago
This is interesting. I'm not a lawyer, but I wonder if this might offer a faint glimmer hope for the software industry. Ultimately, I hope we become like New Zealand with regards to software patents.
- rayiner 13y ago
  We're unlikely to become like New Zealand with regard to software patents. Its easy for New Zealand to not recognize software patents categorically, its not a major export for them. It is for the US and that's going to carry a lot of weight with policymakers. That said, I think what Judge Moore calls a "narrow" exception to patentability needs to become bigger. It shouldn't be possible to recite some basic boilerplate and patent an abstract idea so long as you tie it to a specific hardware platform. I think this ruling helps set the stage for a reasonable decision by the Supreme Court on the issue, in the vein of its very measured patent jurisprudence over the last decade.
  - steve19 13y ago
    Is software patent licensing a major export? Software exports certainly are. How much revenue is lost by our industry because of patents? More than is gained by the exporters of patent licenses I would think.
    - rayiner 13y ago
      Licensing isn't a major export, but products that are made harder to copy with patented software technology. The algorithms implemented on a DSP in a cell phone baseband are also subject to software patents. Also, think of something like Google's (patented) self driving car algorithms. We've lost our competitive edge in manufacturing due to cheap overseas labor. The future of our economy is going to be IP and services export.
  - wnight 13y ago
    Well, to be fair, independent invention doesn't matter for patents ... you aren't exporting as much as claiming what they invented as your own and exporting a license to use it.
graiz 13y ago
This paired with the notion that you "can't patent math" could give a compelling argument against software patents.
tbrownaw 13y ago
« I know, I'll patent "being a trusted middleman to stop people cheating eachother... on a computer". » Somehow I think the possibility of this stopping all software patents is a bit exaggerated. And since half the judges disagreed about why these patents were invalid, it sounds like the quoted EFF lawyer is probably right: "No one understands what the hell is or isn't patentable, including the ... federal circuit."
Tekker 13y ago
IMO, there's not need for a patent on an algorithm to "allow one window to display partially occluding another" or "method to display multiple items on a drop-down menu". I can understand patenting things like file formats (e.g.: PSD) but general computer operation "controlling tones over a device connected to telephone lines to initiate a connection between a remote computer and a local one" or the more stupid GUI patents or obvious usage patents. I have no problem if they all go away.
- eurleif 13y ago
  >I can understand patenting things like file formats (e.g.: PSD) but general computer operation "controlling tones over a device connected to telephone lines to initiate a connection between a remote computer and a local one" The former is a format. The latter sounds like a protocol. Formats should be patentable but protocols shouldn't?
  - mtgx 13y ago
    I'm sure thankful all the Internet protocols weren't patented.
    - eurleif 13y ago
      And I'm sure thankful formats like HTML aren't patented.
- tbrownaw 13y ago
  I can understand patenting things like file formats The trouble with this is that file formats (and other communications protocols) have network effects, which greatly amplify the power granted to the patent holder.
- MichaelApproved 13y ago
  What's the difference between a file format and an API? I'm referencing the Oracle Java/Google Android API case.
guelo 13y ago
This doesn't seem to be anywhere near a conclusive ruling on software patents. But imagining a world where such a ruling were handed down, the software giants would be writing down massive losses as their patent warchests evaporated. Mostly fake money but still, Wall Street wouldn't be happy. But ultimately it would be a good thing when you consider the massive distortion of the market caused by things like Google's purchase of money-losing Motorola for $12 billion.
DannyBee 13y ago
FYI There were 7 different opinions (out of 10 judges) authored for CLS Bank vs. Alice. It's a bit of a mess right now to figure out what's up. The method and computer readable media claims were held ineligible by a majority of the court The systems claims had an equally divided court, and the result there is to affirm the district court judgement. See http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-1301.Opinion.5-8-2013.1.PDF http://www.cafc.uscourts.gov/images/stories/opinions-orders/... This was an en banc (IE whole court) opinion, which to the degree it was a majority, is binding on not just lower courts, but all future 3 judge panels (the normal size) of the appeals court. To the degree it was an equally divided court, it is not binding precedent. Also, what usually happens in patent cases this is that the future 3 judge panels that disagree with the decision twist the hell out of it to avoid it.
grellas 13y ago
As noted in my analysis below (posted when the Federal Court agreed to hear this case en banc, a term explained below), this case is not about killing off software patents or other forms of business methods. That said, it is very significant in that the Federal Circuit has elected not to go wildly back in the direction of upholding loose patents and in mitigating the damage that would have been caused by a potentially pernicious approach to upholding software patents that had been adopted by the panel whose decision it reviewed. The result is basically an uncertain hodge-podge that will not in itself work to kill off software patents. To give some legal context to those who may be interested, my technical analysis from 7 months ago follows: "1. The CLS Bank v. Alice case, though raising an issue of vital importance, is not about 'whether software is patentable.' 2. Over the years, the Federal Circuit has notoriously broadened the scope of patent eligibility, most conspicuously in its 1998 State Street decision which essentially opened the floodgates to the modern rush of business method patents by holding that virtually any business method was patentable so long as 'it produces a useful, concrete and tangible result.' In 2010, the U.S. Supreme Court, in the Bilski case, repudiated the State Street test for patent eligibility and, though upholding software and business method patents generally, directed courts to be much more vigilant to ensure that no one gain patent rights to what are mere 'abstract ideas,' however much they may incidentally be tied to some computer mechanism in their implementation. In a follow on decision (Prometheus), the U.S. Supreme Court similarly cut back sharply on the permissible scope of patent eligibility for claimed inventions that constituted nothing more than laws of nature. 3. In this CLS Bank case, the claimed patent involves a method for eliminating certain types of risk associated with an escrow closing and used a technological process by which to mimic a phantom version of the closing as a security check before allowing the real transaction to close. In essence, the technological aspect of this 'invention' is routine and so the question is whether anything beyond that is simply another way of trying to patent nothing more than an abstract idea. If so, it should fail under Bilski; if not, it would potentially pass the test for patent eligibility. 4. The lower court in CLS Bank held as a matter of law that the 'invention' was nothing more than an abstract idea and held it invalid as being ineligible for patent protection. On appeal, a divided panel of the Federal Circuit reversed and reinstated the patent. It did so, however, by setting out a brand new procedural rule whose effect would be to gut much of Bilski and reopen the floodgates to huge numbers of business method patents under a very loose standard - to wit, by holding, that, if it 'is not manifestly evident [my emphasis] that a claim is directed to a patent ineligible abstract idea,' then the court essentially treat the claim as eligible. What the Federal Circuit panel did, then, was to take the Supreme Court's directive for lower courts to be much stricter in evaluating dubious business method patents for patent eligibility and recast that directive in a form that said, if you as a court see that something is obviously nothing more than an abstract idea, then go ahead and reject it but you are otherwise to treat as being eligible for patent protection. In other words, the new strictness found in Bilski for evaluating such claims was once again to be transformed by the Federal Circuit into a loose standard that would let such claims coast by unimpeded. 5. Of course, this has set off alarm bells because, in effect, it represents yet one more revolt by the Federal Circuit against attempts by the Supreme Court to rein it in by bringing patent issues back to some semi-sane state. Following the panel decision (which was rendered over a sharp and stinging dissent), the losing party petitioned for a rehearing en banc (meaning by the full panoply of Federal Circuit judges as opposed to merely a 3-judge panel) and this was granted. Thus, we shall see whether the Federal Circuit is prepared once again to stick its thumb in the eye of the Supreme Court or whether it will temper its extreme pro-patent proclivities and follow the law as it has been directed. So, this is a very important case affecting the trend of patent enforcement in a profound way but does nothing to challenge the idea of software or business methods being patentable in a general sense. For anything to change in that regard, Congress must act."
piyush_soni 13y ago
So may be now, gradually, we will be able to get rid of ridiculous patents like "Slide to unlock"?
o0-0o 13y ago
If software patents die, and there is no grandfather clause. What are the patents that matter the most?
wahsd 13y ago
I think the thing that bothers me most about these kinds of things is that the status quo system will find rationalizations to make sure that logic will not be followed to its conclusion. Don't worry, a way will be found that can fit the minimum justification necessary to uphold a fake framework of legitimacy. It always happens that way in our society, if consequences are too uncomfortable, well, let's just make sure the consequences don't happen and tell ourselves that it's legitimate that we just changed the rules of the game in order to triumph.
mtgx 13y ago
So what does this mean for the "thousands" of patents Microsoft is "licensing" to Android manufacturers for using the open source Android OS, and what about Apple's lawsuits? I remember some of their patents were "stuff you can do on a computer", too.

This is interesting. I'm not a lawyer, but I wonder if this might offer a faint glimmer hope for the software industry. Ultimately, I hope we become like New Zealand with regards to software patents.

rayiner 13y ago
We're unlikely to become like New Zealand with regard to software patents. Its easy for New Zealand to not recognize software patents categorically, its not a major export for them. It is for the US and that's going to carry a lot of weight with policymakers. That said, I think what Judge Moore calls a "narrow" exception to patentability needs to become bigger. It shouldn't be possible to recite some basic boilerplate and patent an abstract idea so long as you tie it to a specific hardware platform. I think this ruling helps set the stage for a reasonable decision by the Supreme Court on the issue, in the vein of its very measured patent jurisprudence over the last decade.
- steve19 13y ago
  Is software patent licensing a major export? Software exports certainly are. How much revenue is lost by our industry because of patents? More than is gained by the exporters of patent licenses I would think.
  - rayiner 13y ago
    Licensing isn't a major export, but products that are made harder to copy with patented software technology. The algorithms implemented on a DSP in a cell phone baseband are also subject to software patents. Also, think of something like Google's (patented) self driving car algorithms. We've lost our competitive edge in manufacturing due to cheap overseas labor. The future of our economy is going to be IP and services export.
- wnight 13y ago
  Well, to be fair, independent invention doesn't matter for patents ... you aren't exporting as much as claiming what they invented as your own and exporting a license to use it.

graiz 13y ago

This paired with the notion that you "can't patent math" could give a compelling argument against software patents.

tbrownaw 13y ago

« I know, I'll patent "being a trusted middleman to stop people cheating eachother... on a computer". » Somehow I think the possibility of this stopping all software patents is a bit exaggerated. And since half the judges disagreed about why these patents were invalid, it sounds like the quoted EFF lawyer is probably right: "No one understands what the hell is or isn't patentable, including the ... federal circuit."

Tekker 13y ago

IMO, there's not need for a patent on an algorithm to "allow one window to display partially occluding another" or "method to display multiple items on a drop-down menu". I can understand patenting things like file formats (e.g.: PSD) but general computer operation "controlling tones over a device connected to telephone lines to initiate a connection between a remote computer and a local one" or the more stupid GUI patents or obvious usage patents. I have no problem if they all go away.

eurleif 13y ago
>I can understand patenting things like file formats (e.g.: PSD) but general computer operation "controlling tones over a device connected to telephone lines to initiate a connection between a remote computer and a local one" The former is a format. The latter sounds like a protocol. Formats should be patentable but protocols shouldn't?
- mtgx 13y ago
  I'm sure thankful all the Internet protocols weren't patented.
  - eurleif 13y ago
    And I'm sure thankful formats like HTML aren't patented.
tbrownaw 13y ago
I can understand patenting things like file formats The trouble with this is that file formats (and other communications protocols) have network effects, which greatly amplify the power granted to the patent holder.
MichaelApproved 13y ago
What's the difference between a file format and an API? I'm referencing the Oracle Java/Google Android API case.

guelo 13y ago

This doesn't seem to be anywhere near a conclusive ruling on software patents. But imagining a world where such a ruling were handed down, the software giants would be writing down massive losses as their patent warchests evaporated. Mostly fake money but still, Wall Street wouldn't be happy. But ultimately it would be a good thing when you consider the massive distortion of the market caused by things like Google's purchase of money-losing Motorola for $12 billion.

DannyBee 13y ago

FYI There were 7 different opinions (out of 10 judges) authored for CLS Bank vs. Alice. It's a bit of a mess right now to figure out what's up. The method and computer readable media claims were held ineligible by a majority of the court The systems claims had an equally divided court, and the result there is to affirm the district court judgement. See http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-1301.Opinion.5-8-2013.1.PDF http://www.cafc.uscourts.gov/images/stories/opinions-orders/... This was an en banc (IE whole court) opinion, which to the degree it was a majority, is binding on not just lower courts, but all future 3 judge panels (the normal size) of the appeals court. To the degree it was an equally divided court, it is not binding precedent. Also, what usually happens in patent cases this is that the future 3 judge panels that disagree with the decision twist the hell out of it to avoid it.

grellas 13y ago

As noted in my analysis below (posted when the Federal Court agreed to hear this case en banc, a term explained below), this case is not about killing off software patents or other forms of business methods. That said, it is very significant in that the Federal Circuit has elected not to go wildly back in the direction of upholding loose patents and in mitigating the damage that would have been caused by a potentially pernicious approach to upholding software patents that had been adopted by the panel whose decision it reviewed. The result is basically an uncertain hodge-podge that will not in itself work to kill off software patents. To give some legal context to those who may be interested, my technical analysis from 7 months ago follows: "1. The CLS Bank v. Alice case, though raising an issue of vital importance, is not about 'whether software is patentable.' 2. Over the years, the Federal Circuit has notoriously broadened the scope of patent eligibility, most conspicuously in its 1998 State Street decision which essentially opened the floodgates to the modern rush of business method patents by holding that virtually any business method was patentable so long as 'it produces a useful, concrete and tangible result.' In 2010, the U.S. Supreme Court, in the Bilski case, repudiated the State Street test for patent eligibility and, though upholding software and business method patents generally, directed courts to be much more vigilant to ensure that no one gain patent rights to what are mere 'abstract ideas,' however much they may incidentally be tied to some computer mechanism in their implementation. In a follow on decision (Prometheus), the U.S. Supreme Court similarly cut back sharply on the permissible scope of patent eligibility for claimed inventions that constituted nothing more than laws of nature. 3. In this CLS Bank case, the claimed patent involves a method for eliminating certain types of risk associated with an escrow closing and used a technological process by which to mimic a phantom version of the closing as a security check before allowing the real transaction to close. In essence, the technological aspect of this 'invention' is routine and so the question is whether anything beyond that is simply another way of trying to patent nothing more than an abstract idea. If so, it should fail under Bilski; if not, it would potentially pass the test for patent eligibility. 4. The lower court in CLS Bank held as a matter of law that the 'invention' was nothing more than an abstract idea and held it invalid as being ineligible for patent protection. On appeal, a divided panel of the Federal Circuit reversed and reinstated the patent. It did so, however, by setting out a brand new procedural rule whose effect would be to gut much of Bilski and reopen the floodgates to huge numbers of business method patents under a very loose standard - to wit, by holding, that, if it 'is not manifestly evident [my emphasis] that a claim is directed to a patent ineligible abstract idea,' then the court essentially treat the claim as eligible. What the Federal Circuit panel did, then, was to take the Supreme Court's directive for lower courts to be much stricter in evaluating dubious business method patents for patent eligibility and recast that directive in a form that said, if you as a court see that something is obviously nothing more than an abstract idea, then go ahead and reject it but you are otherwise to treat as being eligible for patent protection. In other words, the new strictness found in Bilski for evaluating such claims was once again to be transformed by the Federal Circuit into a loose standard that would let such claims coast by unimpeded. 5. Of course, this has set off alarm bells because, in effect, it represents yet one more revolt by the Federal Circuit against attempts by the Supreme Court to rein it in by bringing patent issues back to some semi-sane state. Following the panel decision (which was rendered over a sharp and stinging dissent), the losing party petitioned for a rehearing en banc (meaning by the full panoply of Federal Circuit judges as opposed to merely a 3-judge panel) and this was granted. Thus, we shall see whether the Federal Circuit is prepared once again to stick its thumb in the eye of the Supreme Court or whether it will temper its extreme pro-patent proclivities and follow the law as it has been directed. So, this is a very important case affecting the trend of patent enforcement in a profound way but does nothing to challenge the idea of software or business methods being patentable in a general sense. For anything to change in that regard, Congress must act."

piyush_soni 13y ago

So may be now, gradually, we will be able to get rid of ridiculous patents like "Slide to unlock"?

o0-0o 13y ago

If software patents die, and there is no grandfather clause. What are the patents that matter the most?

wahsd 13y ago

I think the thing that bothers me most about these kinds of things is that the status quo system will find rationalizations to make sure that logic will not be followed to its conclusion. Don't worry, a way will be found that can fit the minimum justification necessary to uphold a fake framework of legitimacy. It always happens that way in our society, if consequences are too uncomfortable, well, let's just make sure the consequences don't happen and tell ourselves that it's legitimate that we just changed the rules of the game in order to triumph.

mtgx 13y ago

So what does this mean for the "thousands" of patents Microsoft is "licensing" to Android manufacturers for using the open source Android OS, and what about Apple's lawsuits? I remember some of their patents were "stuff you can do on a computer", too.