10 ms·

Software patents are crumbling, thanks to the Supreme Court

290 points by mcfunley 12y ago

deleted 12y ago
[deleted]
acjohnson55 12y ago
Well, I'm glad SCOTUS seems to be doing something right. So much of their decisions seem to be on the side of entrenched/powered/moneyed interests, whether its the dismantling of the Voting Rights Act and campaign finance reform, or the granting of increasing rights to corporations (like Hobby Lobby).
- marcosdumay 12y ago
  Whatever they bias is, invalidating software patents is an action that favours entrenched/moneyed interests. It favours them almost as much as it favours small inovative firms and sole professionals.
  - briantakita 12y ago
    > invalidating software patents is an action that favours entrenched/moneyed interests Not true. Large firms & patent trolls hold the patents and have the resources to deal with the legal expenses. Small innovative firms & sole professionals tend to not have legal departments, large amounts of capital (& time) to spend on legal "non-innovative" matters, nor do they have patent troves. Invalidating the software patents increases freedom to create & innovate and reduces centralization of power, legal trifling, and bureaucracy.
    - WildUtah 12y ago
      I think it is true. Ending software patents is great for startups, but it's good for Google, Apple, and Microsoft, too. The big companies aren't getting much value for what they spend on the patent system and their valuations depend on growth of the software ecosystem that requires startups. The ones that will lose out when software patents aren't lucrative are the entrepreneurial lawyers who found a loophole in the system and mercilessly exploited it. Several of the "inventors" in the patents in op were patent attorneys with no experience in computer networks and software. They saw a chance to cheat and they took it; no technology was required. Well, Intellectual Ventures will lose out, too. They're large in the sense that they're winning more than the tens of millions that small time trolls do, but not compared to IBM or Amazon.
    - travisp 12y ago
      It's true that large firms and NPEs hold the patents and can better enforce their patents, but "patent trolls" (aka patent license companies that specialize in holding and enforcing patent rights as a business model) can be in some ways a benefit to smaller firms for a couple of reasons: 1) The smaller firms don't have the ability to aggressively defend their patents against larger competitors (and would simply have their invention used by the big players without a patent). Instead, the smaller firm can essentially outsource this to a patent licensing firm that specializes in it (standard division of labor), for example selling the patent while maintaining a license to use it themselves (or any other of a multitude of arrangements that essentially let them fight the big players). 2) If the smaller firm doesn't have the resources to actually introduce and sell their invention in the marketplace, they can sell it to a patent licensing firm that can use the patent within their portfolio to license to the main players in the market. This could arise when, for example, the small company comes up with an important new innovation in smartphones, but the small company lacks the resources to actually create a viable physical product on its own.
      - spacemanmatt 12y ago
        [citation needed]
- rayiner 12y ago
  Its a conservative Supreme Court that had come down strongly in favor of free expression and religious freedom. E.g. Brown v. EMA, the video game free speech case. Different sides of the same coin. What is insane to me are people who agree with Brown but disagree with Citizens United. A political movie isn't free speech, but Grand Theft Auto is?!
  - ghaff 12y ago
    Well, and for that matter, Hobby Lobby. To me, the common thread is that they all come down on the side of greater freedom of expression and freedom to take actions consistent with beliefs. But both the Citizens United and Hobby Lobby decisions are anathema in circles such as many tech communities. I suspect a lot has to do with personal disagreement with the beliefs of the organizations involved even though the discussion often gets reframed. Around catchphrases like "corporate personhood" in the case of Citizens United.
    - danielweber 12y ago
      even though the discussion often gets reframed. Around catchphrases like "corporate personhood" in the case of Citizens United. That's a funny one to listen for: people who think that Citizens United had anything to do with corporate personhood.
      - spacemanmatt 12y ago
        Hobby Lobby was actually about corporate personhood, and it was very recent. Maybe you are conflating things that are only temporally adjacent.
        danielweber 12y ago
        Since I didn't say anything about Hobby Lobby at all, I don't think I'm the one doing conflating.
      - ghaff 12y ago
        In general, people are probably wrong to do so but "corporate personhood" was widely tossed around in the context of the Citizens United decision: http://www.theatlantic.com/politics/archive/2012/07/the-supreme-court-still-thinks-corporations-are-people/259995/ http://www.theatlantic.com/politics/archive/2012/07/the-supr... (Not sure you were saying otherwise.) As a soundbite, it's such a red herring anyway. Of course corporations act like individuals in some ways (and not in others). Corporate entities can enter into contracts that aren't tied to a particular employee. They generally have freedom of speech. But they can't be put into prison (except metaphorically.)
RexRollman 12y ago
One can hope.
ChuckMcM 12y ago
Glad to see how the courts are taking this up. Maybe they will torch the laser pen pointer annoying cats patent too!
gbhn 12y ago
It's time for Congress to do their bit and suspend assumed patent validity for this broad class of patents. Its clear the review process was yielding vast quantities of invalid patents. Making the courts invalidate them one-by-one is crazy. Classifying them all as assumed-invalid would send a very clear message to the patent office that it seriously fouled up and needs to straighten up in evaluations, and also let patent trolls know that their payday is over. Proving validity puts the technical burden on the patent troll, which in almost all cases would be nearly insurmountable, since virtually all these patents would likely be recognized by juries as obvious and invalid.
- cordite 12y ago
  You'll have IBM and many others throwing a fit when their licensing deals are invalidated indiscriminately.
- cscurmudgeon 12y ago
  Yes! Throwing out the baby with the bathwater is always the sane and rational thing to do. Always.
ejr 12y ago
It's worth noting that the ubiquity of these "on a computer" type patents and similarly questionable other software patents is directly a result of the poor handling of the entire patenting process as well as general incompetence Ex: http://arstechnica.com/science/2014/02/uspto-issues-patent-for-fraudulent-stem-cell-procedure/ http://arstechnica.com/science/2014/02/uspto-issues-patent-f...
roye 12y ago
Nice development for trivial patents, but it makes me wonder if this could lead to people having to defend their (e.g., algorithm) patents by appeal to computational complexity or the physical constraints of human vs. computer memory, etc.
WildUtah 12y ago
Most of these are district court cases. The USA has a patent appeals court, the Court of Appeals for the Federal Circuit [0], that takes all patent appeals nationally. The doctrine about "do it on a computer" patents will be formed by three judge panels chosen randomly from that appeals court, not by the districts. But the very good sign from these cases is most were decided on the pleadings. That means there was no expensive discovery or claim construction procedure, much less a jury trial. A decision on the pleadings means that even in the best possible light, the patent holder doesn't have a case at all according to the judge. There is no cheaper way to dispose of an expensive and lengthy lawsuit. And a rule that can be disposed of on pleadings is exactly what reformers wanted from the Supreme Court. The CAFC has seen a few of these and so far Taranto and Hughes, two of the newest Obama judges, have acquitted themselves superbly. We have well written and conclusive decisions from them calling the whole "do it on a computer" mess ineligible. We'll have to wait and see how the more enthusiastic radicals for patenting everything influence the outcomes. Three judges that wanted to hand a monopoly on the centuries old, trillion dollar financial settlement industry to Alice even when no technological procedures were disclosed in their patent are still on the court: Moore, O'Malley, and Newman. Lourie was the swing vote in that decision and also says that Ultramercial [1] should have a monopoly on interstitial internet advertising because they wrote the century old idea up with 'on the internet' tacked onto the end. There are eleven judges and one empty slot on the CAFC so those four make up a large minority that will likely press for "on a computer" patents to come back. Chief Judge Prost, Judge Dyk, and the three new Obama appointees seem much more rational and good for our industry. We should hope they are the ones who shape the interpretation of Alice in the future. And remember that while "on a computer" patents -- the ones that describe a conventional business and add "on a computer" or "on the internet" without anything added to known technology -- are falling, lots of damaging software patents are still out there and apparently unharmed. The h.264 and mp3 patents that block open and free media players and browsers are still functioning. The ZFS and JFS patents that make BTRFS illegal are still out there. The compiler and VM patents from IBM, Sun, and others that hang over the head of anyone who writes either still exist. The long filename patents and others that Microsoft uses to tax Android are still taxing. The UI patents on smartphones that drive the smartphone wars are still driving them. New patents on computer vision, deep neural nets, machine learning, GPU computation, multithreading techniques, and more are being granted every tuesday. Lucky for us, software patents that are on actual software are a lot less lucrative than the ones on business "on a computer." Even in smartphone litigation, most of the money verdicts depend on the shape of the box a smartphone comes in; don't steal the idea of a rounded rectangle and your lawsuit will be for tens of millions instead of billions. Still, every kind of software patent is bad, dishonest, and harmful to our industry and progress. They all need to go. [0] http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Federal_Circuit http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_... [1] http://www.patentdocs.org/2013/06/ultramercial-inc-v-hulu-llc-fed-cir-2013.html http://www.patentdocs.org/2013/06/ultramercial-inc-v-hulu-ll...
drzaiusapelord 12y ago
Is "on a computer" the real problem here? The problem I'm seeing is that we have things like displaying a linked list, which is trivial, being awarded patents by appending "on a mobile device" or "on a web page" or "On a payment system." I just don't think its possible to have software patents that make sense. Abolishment of software patents seems to be the only sane move here.
- monochromatic 12y ago
  > we have things like displaying a linked list, which is trivial, being awarded patents by appending "on a mobile device" or "on a web page" or "On a payment system." Citation needed.
TheMagicHorsey 12y ago
I'm not so optimistic as the article. The CAFC has lots of judges that came up as patent attorneys, and who are true believers in the patent system. The June decision by SCOTUS wasn't the first time the Court slapped down abstract patents. The CAFC always finds new ways to get around what SCOTUS has tried to be clear about. On top of that, people underestimate the amount of shenanigans that patent prosecutors pull during patent drafting and prosecution. I don't think we will see an improvement to the trolling situation until Congress steps in and changes some of the burdens and fee-shifting standards for patent litigation. Trolls need to have less weapons they can deploy to raise litigation cost, and they need to be made to suffer for bringing BS cases against innocent companies. Only Congress can make that happen. Intellectual Ventures and its ilk are not going to sit idly while entrepreneurs and tech companies go to Congress to get reform laws passed. They will bring out the big cash piles, just like Comcast does for Net Neutrality. And patents isn't even as cut and dry as Net Neutrality. The minute you start talking about patent reform, some well meaning person, who has no idea what they are talking about, will bring up that movie about that inventor, who was cheated by that big company, out of his hard earned inventions.
- shmerl 12y ago
  > and who are true believers in the patent system You meant believers in the patent racket system ;)
- steveeq1 12y ago
  Yes, reminds me of that movie "Hot Coffee". Basically negated by "Enigma Cheers" on amazon.com: http://www.tripperjones.com/stuff/hot_coffee_critique.txt http://www.tripperjones.com/stuff/hot_coffee_critique.txt
sytelus 12y ago
This might explain layoffs at king of all patent trolls IV: http://www.businessweek.com/articles/2014-08-19/intellectual-ventures-layoffs-hit-a-fifth-of-its-workforce http://www.businessweek.com/articles/2014-08-19/intellectual...
VikingCoder 12y ago
Superman III and Office Space being mentioned in a District Court decision. That's awesome.
deleted 12y ago
[deleted]
martin1975 12y ago
Can't wait to see Amazon's "One Click Buy" patent dismantled. It's way overdue.
stormqloud 12y ago
What exactly can you say except, about fucking time! A small amount of common sense finally managed to stick to lawyers and the legal profession. Probably won't last. Lawyers get jealous when they can't control and manipulate the little people.
- afarrell 12y ago
  Why do you say that about lawyers moreso than software engineers or doctors?
  - spacemanmatt 12y ago
    Statistical representation in society's positions of power
ryandrake 12y ago
Software patents exist, in part, because the programmers writing the software are helping to patent their "inventions". Often the programmer's employer offers a juicy cash bonus for each patent filed or granted. If you want to help end software patents, put your money where your mouth is and refuse to participate when your employer waves a $1,000 check at you to help them patent your linked list visualizer.
- loup-vaillant 12y ago
  You can't expect people to pay a great personal (opportunity) cost for the benefit of society. Some do (give to charity and all), but most don't. 'Cause it's not just the $1000 check. If you refuse, that will likely be bad for your career. Don't underestimate the nuisance power of your boss.
jokoon 12y ago
this article is about patents, and there's a mention of superman in there.

290 points by mcfunley 12y ago

deleted 12y ago

[deleted]

Well, I'm glad SCOTUS seems to be doing something right. So much of their decisions seem to be on the side of entrenched/powered/moneyed interests, whether its the dismantling of the Voting Rights Act and campaign finance reform, or the granting of increasing rights to corporations (like Hobby Lobby).

marcosdumay 12y ago
Whatever they bias is, invalidating software patents is an action that favours entrenched/moneyed interests. It favours them almost as much as it favours small inovative firms and sole professionals.
- briantakita 12y ago
  > invalidating software patents is an action that favours entrenched/moneyed interests Not true. Large firms & patent trolls hold the patents and have the resources to deal with the legal expenses. Small innovative firms & sole professionals tend to not have legal departments, large amounts of capital (& time) to spend on legal "non-innovative" matters, nor do they have patent troves. Invalidating the software patents increases freedom to create & innovate and reduces centralization of power, legal trifling, and bureaucracy.
  - WildUtah 12y ago
    I think it is true. Ending software patents is great for startups, but it's good for Google, Apple, and Microsoft, too. The big companies aren't getting much value for what they spend on the patent system and their valuations depend on growth of the software ecosystem that requires startups. The ones that will lose out when software patents aren't lucrative are the entrepreneurial lawyers who found a loophole in the system and mercilessly exploited it. Several of the "inventors" in the patents in op were patent attorneys with no experience in computer networks and software. They saw a chance to cheat and they took it; no technology was required. Well, Intellectual Ventures will lose out, too. They're large in the sense that they're winning more than the tens of millions that small time trolls do, but not compared to IBM or Amazon.
  - travisp 12y ago
    It's true that large firms and NPEs hold the patents and can better enforce their patents, but "patent trolls" (aka patent license companies that specialize in holding and enforcing patent rights as a business model) can be in some ways a benefit to smaller firms for a couple of reasons: 1) The smaller firms don't have the ability to aggressively defend their patents against larger competitors (and would simply have their invention used by the big players without a patent). Instead, the smaller firm can essentially outsource this to a patent licensing firm that specializes in it (standard division of labor), for example selling the patent while maintaining a license to use it themselves (or any other of a multitude of arrangements that essentially let them fight the big players). 2) If the smaller firm doesn't have the resources to actually introduce and sell their invention in the marketplace, they can sell it to a patent licensing firm that can use the patent within their portfolio to license to the main players in the market. This could arise when, for example, the small company comes up with an important new innovation in smartphones, but the small company lacks the resources to actually create a viable physical product on its own.
    - spacemanmatt 12y ago
      [citation needed]
rayiner 12y ago
Its a conservative Supreme Court that had come down strongly in favor of free expression and religious freedom. E.g. Brown v. EMA, the video game free speech case. Different sides of the same coin. What is insane to me are people who agree with Brown but disagree with Citizens United. A political movie isn't free speech, but Grand Theft Auto is?!
- ghaff 12y ago
  Well, and for that matter, Hobby Lobby. To me, the common thread is that they all come down on the side of greater freedom of expression and freedom to take actions consistent with beliefs. But both the Citizens United and Hobby Lobby decisions are anathema in circles such as many tech communities. I suspect a lot has to do with personal disagreement with the beliefs of the organizations involved even though the discussion often gets reframed. Around catchphrases like "corporate personhood" in the case of Citizens United.
  - danielweber 12y ago
    even though the discussion often gets reframed. Around catchphrases like "corporate personhood" in the case of Citizens United. That's a funny one to listen for: people who think that Citizens United had anything to do with corporate personhood.
    - spacemanmatt 12y ago
      Hobby Lobby was actually about corporate personhood, and it was very recent. Maybe you are conflating things that are only temporally adjacent.
      - danielweber 12y ago
        Since I didn't say anything about Hobby Lobby at all, I don't think I'm the one doing conflating.
    - ghaff 12y ago
      In general, people are probably wrong to do so but "corporate personhood" was widely tossed around in the context of the Citizens United decision: http://www.theatlantic.com/politics/archive/2012/07/the-supreme-court-still-thinks-corporations-are-people/259995/ http://www.theatlantic.com/politics/archive/2012/07/the-supr... (Not sure you were saying otherwise.) As a soundbite, it's such a red herring anyway. Of course corporations act like individuals in some ways (and not in others). Corporate entities can enter into contracts that aren't tied to a particular employee. They generally have freedom of speech. But they can't be put into prison (except metaphorically.)

RexRollman 12y ago

One can hope.

ChuckMcM 12y ago

Glad to see how the courts are taking this up. Maybe they will torch the laser pen pointer annoying cats patent too!

gbhn 12y ago

It's time for Congress to do their bit and suspend assumed patent validity for this broad class of patents. Its clear the review process was yielding vast quantities of invalid patents. Making the courts invalidate them one-by-one is crazy. Classifying them all as assumed-invalid would send a very clear message to the patent office that it seriously fouled up and needs to straighten up in evaluations, and also let patent trolls know that their payday is over. Proving validity puts the technical burden on the patent troll, which in almost all cases would be nearly insurmountable, since virtually all these patents would likely be recognized by juries as obvious and invalid.

cordite 12y ago
You'll have IBM and many others throwing a fit when their licensing deals are invalidated indiscriminately.
cscurmudgeon 12y ago
Yes! Throwing out the baby with the bathwater is always the sane and rational thing to do. Always.

ejr 12y ago

It's worth noting that the ubiquity of these "on a computer" type patents and similarly questionable other software patents is directly a result of the poor handling of the entire patenting process as well as general incompetence Ex: http://arstechnica.com/science/2014/02/uspto-issues-patent-for-fraudulent-stem-cell-procedure/ http://arstechnica.com/science/2014/02/uspto-issues-patent-f...

roye 12y ago

Nice development for trivial patents, but it makes me wonder if this could lead to people having to defend their (e.g., algorithm) patents by appeal to computational complexity or the physical constraints of human vs. computer memory, etc.

WildUtah 12y ago

Most of these are district court cases. The USA has a patent appeals court, the Court of Appeals for the Federal Circuit [0], that takes all patent appeals nationally. The doctrine about "do it on a computer" patents will be formed by three judge panels chosen randomly from that appeals court, not by the districts. But the very good sign from these cases is most were decided on the pleadings. That means there was no expensive discovery or claim construction procedure, much less a jury trial. A decision on the pleadings means that even in the best possible light, the patent holder doesn't have a case at all according to the judge. There is no cheaper way to dispose of an expensive and lengthy lawsuit. And a rule that can be disposed of on pleadings is exactly what reformers wanted from the Supreme Court. The CAFC has seen a few of these and so far Taranto and Hughes, two of the newest Obama judges, have acquitted themselves superbly. We have well written and conclusive decisions from them calling the whole "do it on a computer" mess ineligible. We'll have to wait and see how the more enthusiastic radicals for patenting everything influence the outcomes. Three judges that wanted to hand a monopoly on the centuries old, trillion dollar financial settlement industry to Alice even when no technological procedures were disclosed in their patent are still on the court: Moore, O'Malley, and Newman. Lourie was the swing vote in that decision and also says that Ultramercial [1] should have a monopoly on interstitial internet advertising because they wrote the century old idea up with 'on the internet' tacked onto the end. There are eleven judges and one empty slot on the CAFC so those four make up a large minority that will likely press for "on a computer" patents to come back. Chief Judge Prost, Judge Dyk, and the three new Obama appointees seem much more rational and good for our industry. We should hope they are the ones who shape the interpretation of Alice in the future. And remember that while "on a computer" patents -- the ones that describe a conventional business and add "on a computer" or "on the internet" without anything added to known technology -- are falling, lots of damaging software patents are still out there and apparently unharmed. The h.264 and mp3 patents that block open and free media players and browsers are still functioning. The ZFS and JFS patents that make BTRFS illegal are still out there. The compiler and VM patents from IBM, Sun, and others that hang over the head of anyone who writes either still exist. The long filename patents and others that Microsoft uses to tax Android are still taxing. The UI patents on smartphones that drive the smartphone wars are still driving them. New patents on computer vision, deep neural nets, machine learning, GPU computation, multithreading techniques, and more are being granted every tuesday. Lucky for us, software patents that are on actual software are a lot less lucrative than the ones on business "on a computer." Even in smartphone litigation, most of the money verdicts depend on the shape of the box a smartphone comes in; don't steal the idea of a rounded rectangle and your lawsuit will be for tens of millions instead of billions. Still, every kind of software patent is bad, dishonest, and harmful to our industry and progress. They all need to go. [0] http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Federal_Circuit http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_... [1] http://www.patentdocs.org/2013/06/ultramercial-inc-v-hulu-llc-fed-cir-2013.html http://www.patentdocs.org/2013/06/ultramercial-inc-v-hulu-ll...

drzaiusapelord 12y ago

Is "on a computer" the real problem here? The problem I'm seeing is that we have things like displaying a linked list, which is trivial, being awarded patents by appending "on a mobile device" or "on a web page" or "On a payment system." I just don't think its possible to have software patents that make sense. Abolishment of software patents seems to be the only sane move here.

monochromatic 12y ago
> we have things like displaying a linked list, which is trivial, being awarded patents by appending "on a mobile device" or "on a web page" or "On a payment system." Citation needed.

TheMagicHorsey 12y ago

I'm not so optimistic as the article. The CAFC has lots of judges that came up as patent attorneys, and who are true believers in the patent system. The June decision by SCOTUS wasn't the first time the Court slapped down abstract patents. The CAFC always finds new ways to get around what SCOTUS has tried to be clear about. On top of that, people underestimate the amount of shenanigans that patent prosecutors pull during patent drafting and prosecution. I don't think we will see an improvement to the trolling situation until Congress steps in and changes some of the burdens and fee-shifting standards for patent litigation. Trolls need to have less weapons they can deploy to raise litigation cost, and they need to be made to suffer for bringing BS cases against innocent companies. Only Congress can make that happen. Intellectual Ventures and its ilk are not going to sit idly while entrepreneurs and tech companies go to Congress to get reform laws passed. They will bring out the big cash piles, just like Comcast does for Net Neutrality. And patents isn't even as cut and dry as Net Neutrality. The minute you start talking about patent reform, some well meaning person, who has no idea what they are talking about, will bring up that movie about that inventor, who was cheated by that big company, out of his hard earned inventions.

shmerl 12y ago
> and who are true believers in the patent system You meant believers in the patent racket system ;)
steveeq1 12y ago
Yes, reminds me of that movie "Hot Coffee". Basically negated by "Enigma Cheers" on amazon.com: http://www.tripperjones.com/stuff/hot_coffee_critique.txt http://www.tripperjones.com/stuff/hot_coffee_critique.txt

sytelus 12y ago

This might explain layoffs at king of all patent trolls IV: http://www.businessweek.com/articles/2014-08-19/intellectual-ventures-layoffs-hit-a-fifth-of-its-workforce http://www.businessweek.com/articles/2014-08-19/intellectual...

VikingCoder 12y ago

Superman III and Office Space being mentioned in a District Court decision. That's awesome.

deleted 12y ago

[deleted]

martin1975 12y ago

Can't wait to see Amazon's "One Click Buy" patent dismantled. It's way overdue.

stormqloud 12y ago

What exactly can you say except, about fucking time! A small amount of common sense finally managed to stick to lawyers and the legal profession. Probably won't last. Lawyers get jealous when they can't control and manipulate the little people.

afarrell 12y ago
Why do you say that about lawyers moreso than software engineers or doctors?
- spacemanmatt 12y ago
  Statistical representation in society's positions of power

ryandrake 12y ago

Software patents exist, in part, because the programmers writing the software are helping to patent their "inventions". Often the programmer's employer offers a juicy cash bonus for each patent filed or granted. If you want to help end software patents, put your money where your mouth is and refuse to participate when your employer waves a $1,000 check at you to help them patent your linked list visualizer.

loup-vaillant 12y ago
You can't expect people to pay a great personal (opportunity) cost for the benefit of society. Some do (give to charity and all), but most don't. 'Cause it's not just the $1000 check. If you refuse, that will likely be bad for your career. Don't underestimate the nuisance power of your boss.

jokoon 12y ago

this article is about patents, and there's a mention of superman in there.