7 ms·

In new case, Supreme Court revisits the question of software patents

95 points by pge 13y ago

rayiner 13y ago
To be precise, the case isn't about software patents. Its about whether taking an unpatentable business method (per Bilski) and implementing it on a general purpose computer makes it patentable. The answer will likely be no, but that won't invalidate software patents. The appellant wants to make it seem that way, "if you deny our patent it will invalidate all software patents," but thats not the best characterization. What will happen instead is that the Supreme Court will distinguish software patents generally from the patent at issue in this case. What will be interesting, in my opinion, is how they draw the distinction. The "abstract idea" line drawing is complicated from both sides, however. Say you develop a clever algorithm for doing transmission power control for a WiFi radio. If you implement it on an ASIC, that's almost certainly patentable. But what about an FPGA? Or a general purpose processor? If software patents are categorically invalid, you end up being able to patent things in ASICs that can't be patented if done on a GPP. If they are valid, that doesn't help when someone tries to patent something like a mechanism for hedging risk. I think the real issue is looking at whether the algorithm embodied in a patent is a general concept, or a narrow domain specific design. In other words, you shouldn't be able to patent the concept of transmission power control. But you should be able to patent a specific method for doing transmission power control they arises out of capital intensive research.
- WildUtah 13y ago
  What will be interesting, in my opinion, is how they draw the distinction. They don't have to draw a distinction, of course. The last time a finance patent came before the Supreme Court in Bilski in 2010, there were two theories about why the patent in suit wasn't valid under 35 USC §101. Four judges agreed with each theory, leaving only Justice Antonin Scalia to decide. Scalia joined with the conclusion of each side and the theory of neither, leaving the situation even more confused than before. Most likely the exact same thing will ensue this time.
  - sthu11182 13y ago
    With the Federal Circuit punting it to the Supreme Court, I don't they will leave it that vague. The Supreme Court does not like bright line rules for patents, I think they will come up with a balancing, multi-factor test.
- bane 13y ago
  > Its about whether taking an unpatentable business method (per Bilski) and implementing it on a general purpose computer makes it patentable. TBH, I'm not terribly familiar with what can and can't be patented as per business methods. But technically all things that can be computed, can be computed by enough people doing the arithmetic. Computers just make this much faster. So if I have 300 people...I dunno, collating wedding invitations, and come up with a way of doing it in software, that's not patentable? However, a clever algorithm for computational imaging is arguable patentable, but anybody who knows matrix math can probably do it manually. So is it really a discussion over the magnitude of the assist to humans doing the grinding computations by hand and where that line is drawn? Or to your example, some software running on a general purpose CPU can often be implemented as DSPs or some other specialized hardware, it's obviously no longer software I suppose once it's a DSP, even if the method for doing the computation is the same.
  - rayiner 13y ago
    I mean, your examples really capture the debate at issue in the case. Trying to draw lines based on whether the idea is implemented in software or hardware is just arbitrary. The real question is: what sort of algorithms do we want people to be able to patent? This is an economic question, not a legal one. At what point does the benefit from disallowing free riding out weigh the cost of granting the temporary monopoly? The problem with the law is that it sidesteps this question. Its based on an 19th century notion of invention, whereas the real value of patents is protecting investment into R&D.
    - bane 13y ago
      Right. And I think that's a useful consideration to use. I've worked on some algorithms in the past that were the result of a few million dollars in R&D. We decided not to patent because of the gray areas involved, but instead kept the algorithms protected by distributing only compiled code (as is pretty common in industry). But good solid protection for that kind of investment would be a useful thing to have even if it's a software patent. One-click shopping? I believe there was lots of effort put into engineering it, but not so much on the R&D side. Is a patent examiner qualified to implement whatever decision is made on where that line is? I think it's still going to remain a minefield for a very long time.
- Joeri 13y ago
  If it seems unclear where the boundary line for patentability should lie, then it seems reasonable to apply caution and only allow patenting of that which necessitates it to ensure invention occurs at all. From what i can tell, that would eliminate 95% of patents. There is an argument to be made that patents harm innovation in nearly all industries, not just the software industry.
  - thaumasiotes 13y ago
    For things like business methods patents, the idea isn't that we need to get innovation to occur when it wouldn't otherwise. The idea is that we want to get it published when it otherwise wouldn't be, so that the knowledge isn't lost after the people who knew it die. It baffles me why we have a patent system (to address precisely this problem) and also legal protections for "trade secrets".
PythonicAlpha 13y ago
Big companies always claim, that make the IP (so called "intellectual property") rights stronger does strengthen the innovators. The opposite is true! When old (and stupid) patents hinder innovation (what happens all day today), than the patent system becomes the biggest hindrance to innovation. Somebody said about IP: When it is better to "own" old IP than to make new one, the system is strangling innovation, nothing else. We already at this point (and it was fostered by the owning people). Patents once where made up, to bring inventors an incentive to share their inventions with the others. But this "sharing" brings only benefits to the society, when the inventions bring any knowledge gain to the community. Software patents are the worst: Most of them include trivial things that do not bring any new knowledge to the industry, but are blocking other inventors. Good example is Amazons One-click patent (but this is only one of maybe thousands examples): What is the knowledge gain of the world, by having this patent? This system is for the "owners" not for the "creators"!
- cgaudreau 13y ago
  A pressing problem is the fact that a large slice of Americans believe that the owners are the creators.
  - PythonicAlpha 13y ago
    I agree. But that believe is wrong. The thing about "IP" is also, that differently from "ideas" or "inventions" -- "property" can be sold and bought. Also in the most cases, inventors are small people in big corporations that just get some small and fixed (at least in Germany this is the normal case) money for it. A bargain for the corporation that "owns" from now on the "ideas" and "inventions" of their employees. Make a price tag on everything and you will get a world not worth living in!
    - cgaudreau 13y ago
      Indeed. It reminds me of how Steve Jobs received credit for Jony Ive's designs[0]. Americans have been raised and convinced to believe that CEOs and business executives are the source of all creativity, and that their wealth is a logical result of that. [0] http://www.businessinsider.com/steve-jobs-would-annoy-jony-ive-by-taking-credit-for-his-design-work-2011-10 http://www.businessinsider.com/steve-jobs-would-annoy-jony-i...
SchizoDuckie 13y ago
Please oh please United States, come to your senses for once. Sincerely, The Rest Of The World.
- SeanLuke 13y ago
  Does "the rest of the world" include Britain, Japan, and South Korea?
microcolonel 13y ago
Well, if this is serious(I hope it's not just more bad journalism from the washington post), I'd be very happy to see software patent go off the table. It would mean I could finally stop worrying about submarine patents on software, and get back to actually making good software.
- adestefan 13y ago
  If you were a mechanical engineer whose specialty was developing new fasteners would you say the same thing about patents on fasteners?
panabee 13y ago
i wrote a blog post on this, but i believe crowdfunding, assuming regulation and government policy don't interfere, will accelerate the demise of patents, especially software patents. the purpose of patents is to foster innovation, but they arguably seem to have the opposite effect today. effectively, patents protect the two constituent groups required for innovation: (1) creators and (2) investors. music, art, film, restaurants, and mobile apps demonstrate that patents are not necessary for people to invent (though some IP like copyright seems mandatory). in some fields, the joy of creation and the promise of financial gain, even if unprotected and unsustainable, is sufficient motivation for invention. the common thread, of course, is capital efficiency. it's far easier to risk investment and innovation when little money is required. investors are needed for innovation in capital intensive areas, but investors historically have been ROI motivated and sought assurances, such as patents, that their money will yield a return. crowdfunding enables creators to break from ROI-investors and find financing from a different set of people: those who want not a ROI, but a specific product or service. most importantly, these "investors" care less about patents or the long-term viability of a company. they just want a product/service to exist -- from anyone. we're already seeing this unfold on kickstarter and indiegogo. the question is whether lobbyists and governments cripple crowdfunding, or allow it to reach its maximum potential. if people will innovate, regardless of patents, and other people will underwrite products, regardless of patents, why do we need patents to foster innovation?
- rayiner 13y ago
  The purpose of patents isn't to incentivize innovation. Its to protect capital intensive R&D from the free rider effect and to allow the fruits of R&D to be the subject of transactions. Crowd funding in this context is a joke. Wake me up when someone crowd funds a blockbuster anti-cancer drug or disease resistant crop. We're talking capital investments that start with a 'b'. Nobody is going to fund that if the results can be easily copied (eliminating ROI), whether we're talking about traditional investors or crowd funders. A great example is the Spaceship One patents. The arrangement there was that Scaled Composites would do the R&D, and Paul Allen would invest, and companies like Virgin would commercialize. Having a property right that can be the subject of transactions is tremendously valuable for these sorts of arrangements.
yp_master 13y ago
True or false? A patent is a government-granted right to sue. A patent grants a license to produce the invention. A patent grants a "monopoly"; success is court when suing challengers is "guaranteed".
- yp_master 13y ago
  Here are the answers: T F F FWIW, IAAAL. I suspect not many readers understand the above facts. If you purchase a US patent, this is what you get: a right to sue. Nothing more and nothing less. If you have any doubts that the above is true, ask your lawyer. Knowing exactly what a patent is should make you think more carefully about what a patent may or may not "incentivize".

95 points by pge 13y ago

To be precise, the case isn't about software patents. Its about whether taking an unpatentable business method (per Bilski) and implementing it on a general purpose computer makes it patentable. The answer will likely be no, but that won't invalidate software patents. The appellant wants to make it seem that way, "if you deny our patent it will invalidate all software patents," but thats not the best characterization. What will happen instead is that the Supreme Court will distinguish software patents generally from the patent at issue in this case. What will be interesting, in my opinion, is how they draw the distinction. The "abstract idea" line drawing is complicated from both sides, however. Say you develop a clever algorithm for doing transmission power control for a WiFi radio. If you implement it on an ASIC, that's almost certainly patentable. But what about an FPGA? Or a general purpose processor? If software patents are categorically invalid, you end up being able to patent things in ASICs that can't be patented if done on a GPP. If they are valid, that doesn't help when someone tries to patent something like a mechanism for hedging risk. I think the real issue is looking at whether the algorithm embodied in a patent is a general concept, or a narrow domain specific design. In other words, you shouldn't be able to patent the concept of transmission power control. But you should be able to patent a specific method for doing transmission power control they arises out of capital intensive research.

WildUtah 13y ago
What will be interesting, in my opinion, is how they draw the distinction. They don't have to draw a distinction, of course. The last time a finance patent came before the Supreme Court in Bilski in 2010, there were two theories about why the patent in suit wasn't valid under 35 USC §101. Four judges agreed with each theory, leaving only Justice Antonin Scalia to decide. Scalia joined with the conclusion of each side and the theory of neither, leaving the situation even more confused than before. Most likely the exact same thing will ensue this time.
- sthu11182 13y ago
  With the Federal Circuit punting it to the Supreme Court, I don't they will leave it that vague. The Supreme Court does not like bright line rules for patents, I think they will come up with a balancing, multi-factor test.
bane 13y ago
> Its about whether taking an unpatentable business method (per Bilski) and implementing it on a general purpose computer makes it patentable. TBH, I'm not terribly familiar with what can and can't be patented as per business methods. But technically all things that can be computed, can be computed by enough people doing the arithmetic. Computers just make this much faster. So if I have 300 people...I dunno, collating wedding invitations, and come up with a way of doing it in software, that's not patentable? However, a clever algorithm for computational imaging is arguable patentable, but anybody who knows matrix math can probably do it manually. So is it really a discussion over the magnitude of the assist to humans doing the grinding computations by hand and where that line is drawn? Or to your example, some software running on a general purpose CPU can often be implemented as DSPs or some other specialized hardware, it's obviously no longer software I suppose once it's a DSP, even if the method for doing the computation is the same.
- rayiner 13y ago
  I mean, your examples really capture the debate at issue in the case. Trying to draw lines based on whether the idea is implemented in software or hardware is just arbitrary. The real question is: what sort of algorithms do we want people to be able to patent? This is an economic question, not a legal one. At what point does the benefit from disallowing free riding out weigh the cost of granting the temporary monopoly? The problem with the law is that it sidesteps this question. Its based on an 19th century notion of invention, whereas the real value of patents is protecting investment into R&D.
  - bane 13y ago
    Right. And I think that's a useful consideration to use. I've worked on some algorithms in the past that were the result of a few million dollars in R&D. We decided not to patent because of the gray areas involved, but instead kept the algorithms protected by distributing only compiled code (as is pretty common in industry). But good solid protection for that kind of investment would be a useful thing to have even if it's a software patent. One-click shopping? I believe there was lots of effort put into engineering it, but not so much on the R&D side. Is a patent examiner qualified to implement whatever decision is made on where that line is? I think it's still going to remain a minefield for a very long time.
Joeri 13y ago
If it seems unclear where the boundary line for patentability should lie, then it seems reasonable to apply caution and only allow patenting of that which necessitates it to ensure invention occurs at all. From what i can tell, that would eliminate 95% of patents. There is an argument to be made that patents harm innovation in nearly all industries, not just the software industry.
- thaumasiotes 13y ago
  For things like business methods patents, the idea isn't that we need to get innovation to occur when it wouldn't otherwise. The idea is that we want to get it published when it otherwise wouldn't be, so that the knowledge isn't lost after the people who knew it die. It baffles me why we have a patent system (to address precisely this problem) and also legal protections for "trade secrets".

PythonicAlpha 13y ago

Big companies always claim, that make the IP (so called "intellectual property") rights stronger does strengthen the innovators. The opposite is true! When old (and stupid) patents hinder innovation (what happens all day today), than the patent system becomes the biggest hindrance to innovation. Somebody said about IP: When it is better to "own" old IP than to make new one, the system is strangling innovation, nothing else. We already at this point (and it was fostered by the owning people). Patents once where made up, to bring inventors an incentive to share their inventions with the others. But this "sharing" brings only benefits to the society, when the inventions bring any knowledge gain to the community. Software patents are the worst: Most of them include trivial things that do not bring any new knowledge to the industry, but are blocking other inventors. Good example is Amazons One-click patent (but this is only one of maybe thousands examples): What is the knowledge gain of the world, by having this patent? This system is for the "owners" not for the "creators"!

cgaudreau 13y ago
A pressing problem is the fact that a large slice of Americans believe that the owners are the creators.
- PythonicAlpha 13y ago
  I agree. But that believe is wrong. The thing about "IP" is also, that differently from "ideas" or "inventions" -- "property" can be sold and bought. Also in the most cases, inventors are small people in big corporations that just get some small and fixed (at least in Germany this is the normal case) money for it. A bargain for the corporation that "owns" from now on the "ideas" and "inventions" of their employees. Make a price tag on everything and you will get a world not worth living in!
  - cgaudreau 13y ago
    Indeed. It reminds me of how Steve Jobs received credit for Jony Ive's designs[0]. Americans have been raised and convinced to believe that CEOs and business executives are the source of all creativity, and that their wealth is a logical result of that. [0] http://www.businessinsider.com/steve-jobs-would-annoy-jony-ive-by-taking-credit-for-his-design-work-2011-10 http://www.businessinsider.com/steve-jobs-would-annoy-jony-i...

SchizoDuckie 13y ago

Please oh please United States, come to your senses for once. Sincerely, The Rest Of The World.

SeanLuke 13y ago
Does "the rest of the world" include Britain, Japan, and South Korea?

microcolonel 13y ago

Well, if this is serious(I hope it's not just more bad journalism from the washington post), I'd be very happy to see software patent go off the table. It would mean I could finally stop worrying about submarine patents on software, and get back to actually making good software.

adestefan 13y ago
If you were a mechanical engineer whose specialty was developing new fasteners would you say the same thing about patents on fasteners?

panabee 13y ago

i wrote a blog post on this, but i believe crowdfunding, assuming regulation and government policy don't interfere, will accelerate the demise of patents, especially software patents. the purpose of patents is to foster innovation, but they arguably seem to have the opposite effect today. effectively, patents protect the two constituent groups required for innovation: (1) creators and (2) investors. music, art, film, restaurants, and mobile apps demonstrate that patents are not necessary for people to invent (though some IP like copyright seems mandatory). in some fields, the joy of creation and the promise of financial gain, even if unprotected and unsustainable, is sufficient motivation for invention. the common thread, of course, is capital efficiency. it's far easier to risk investment and innovation when little money is required. investors are needed for innovation in capital intensive areas, but investors historically have been ROI motivated and sought assurances, such as patents, that their money will yield a return. crowdfunding enables creators to break from ROI-investors and find financing from a different set of people: those who want not a ROI, but a specific product or service. most importantly, these "investors" care less about patents or the long-term viability of a company. they just want a product/service to exist -- from anyone. we're already seeing this unfold on kickstarter and indiegogo. the question is whether lobbyists and governments cripple crowdfunding, or allow it to reach its maximum potential. if people will innovate, regardless of patents, and other people will underwrite products, regardless of patents, why do we need patents to foster innovation?

rayiner 13y ago
The purpose of patents isn't to incentivize innovation. Its to protect capital intensive R&D from the free rider effect and to allow the fruits of R&D to be the subject of transactions. Crowd funding in this context is a joke. Wake me up when someone crowd funds a blockbuster anti-cancer drug or disease resistant crop. We're talking capital investments that start with a 'b'. Nobody is going to fund that if the results can be easily copied (eliminating ROI), whether we're talking about traditional investors or crowd funders. A great example is the Spaceship One patents. The arrangement there was that Scaled Composites would do the R&D, and Paul Allen would invest, and companies like Virgin would commercialize. Having a property right that can be the subject of transactions is tremendously valuable for these sorts of arrangements.

yp_master 13y ago

True or false? A patent is a government-granted right to sue. A patent grants a license to produce the invention. A patent grants a "monopoly"; success is court when suing challengers is "guaranteed".

yp_master 13y ago
Here are the answers: T F F FWIW, IAAAL. I suspect not many readers understand the above facts. If you purchase a US patent, this is what you get: a right to sue. Nothing more and nothing less. If you have any doubts that the above is true, ask your lawyer. Knowing exactly what a patent is should make you think more carefully about what a patent may or may not "incentivize".