6 ms·

Validity of software patents goes on trial today at Supreme Court

95 points by manvsmachine 17y ago

dantheman 17y ago
"In a worst-case scenario for the high-tech industry, the ruling could invalidate many existing software patents or at least make them more difficult to defend in lawsuits. And it could make such patents harder to obtain in the future because software is generally patented as a process for doing something rather than as a physical invention." I think that might be the best case scenario.
- ryanwaggoner 17y ago
  Agreed...it all makes sense when you see the quote a few lines down from that: "The software industry would lose an important incentive to innovate if the government ceased issuing software patents," warned patent attorney James Carmichael, a former judge on the Patent Office board of appeals.
  - some1else 17y ago
    I wonder, If "the industry" spent the resources allocated for software patents on additional R&D, could consumers even handle all the innovation? Besides, when was being the market leader ever an incentive for companies :-D There was a cool talk on the problems with software patents by D. Ravicher: http://www.youtube.com/watch?v=d0chez_Jf5A http://www.youtube.com/watch?v=d0chez_Jf5A I just can't imagine something like an Augmented Reality iPhone app being patented by a restrictive extortionate company. It's basically the Terminator vision on a modern handheld device. But then again, look at all the ridiculous applications http://www.google.com/patents?q=augmented+reality+phone+camera&btnG=Search+Patents http://www.google.com/patents?q=augmented+reality+phone+came...
  - wsprague 17y ago
    I would like to see this supported (or not, methinks) by empirical evidence. A priori arguments without evidence aren't worth a damn, in my estimation.
- alain94040 17y ago
  I agree that the pendulum today is too strongly on the side of patent trolls. But have you seriously thought about what a world without patents would look like? Actually, you can. Visit China. On Monday, the boss of a factory will give you a tour and shows you how they manufacture the iPod case exclusively for Apple. The next day, they offer you to manufacture the exact same design, just for you, for very cheap. IP? What IP? Personally, I'm hoping for a middle ground. Not all patents are bad, but too many stupid patents is an abuse of the system. (before you mod into oblivion, let me state that I have standing to discuss this issue, having been sued for patent infringment myself - I know the pain)
  - IsaacSchlueter 17y ago
    Is that really so bad, though? I know that I could get a knock-off of an iPod. But my iPod has guaranteed support from Apple, and it gives me a good feeling to know that I have the "real thing", and not a "fake". For that matter, I could also get a Zune, but I have standards. ;) If your business model could be so easily undercut by competition, you're Doing It Wrong. People pay more for perceived status and soft values. And the people who are looking for knockoffs were probably never going to be your customers in the first place. Validity of software patents goes on trial today at Supreme Court. I'm hoping for the death penalty.
  - greendestiny 17y ago
    You can still have copyright protection without patents. Besides your example is specifically a physical device which isn't the kind of patent being talked about.
  - gacek 17y ago
    You miss the point. A specific case design is something completely different than patenting 'ways that stuff can be done'. I really hope the EU does not introduce software patents. This is just the thing to stiffle innovation.
  - bradgessler 17y ago
    The idea behind patents was to encourage innovation by guaranteeing certain rights to the patent holder; unfortunately, software patents have probably hurt innovation more than it has helped out.
- grellas 17y ago
  Oral argument was held today - tough day for the patent applicant, with much skepticism expressed by the justices toward the idea that business methods (and, of course, any software that might implement them) should be loosely patentable: Justice Stevens: "None of our cases has ever approved a rule such as you advocate"; Justice Breyer: applicant is arguing "anything that helps any businessman succeed is patentable"; Justice Scalia: patents are given to inventions that are manufactured or produced by workmen, "not someone who writes a book about how to win friends and influence people." Not good portends for a favorable decision for the applicant. On the other hand, several justices overtly questioned the highly restrictive test adopted by the lower court that would essentially gut many business method patents. Looks like this could go all sorts of directions but not likely to any extreme.
  - arebop 17y ago
    The transcript is available from http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-964.pdf http://www.supremecourtus.gov/oral_arguments/argument_transc... for those who are interested in more.
jxcole 17y ago
This article is good news, but unfortunately it is poorly written. I felt they were very prejudiced in favor of software patents.
- eli 17y ago
  Yeah, you would think the AP could have found someone at Google to present another angle.
  - omouse 17y ago
    or the Software Freedom Law Center.
- chaostheory 17y ago
  it reads like submarine PR
ars 17y ago
Is there anyone from the FSF (or similar) who might file an amicus brief? It's the Patent Office that is fighting this? Is anyone from the open source community helping them?
- mikeryan 17y ago
  They have http://endsoftpatents.org/amicus-bilski-2009 http://endsoftpatents.org/amicus-bilski-2009 It seems that FSF, Google, Red Hat and the Software Freedom Law Center are against the patent ideas. IBM, Microsoft, Symantec and Philips are for patents according to this page. http://en.swpat.org/wiki/Bilski_v._Kappos_amicus_briefs http://en.swpat.org/wiki/Bilski_v._Kappos_amicus_briefs
flashgordon 17y ago
Jees could this article be any more biased towards the BSA?
mooneater 17y ago
Anyone know how long we should expect to wait before they decide something and it impacts the real world?
- slapshot 17y ago
  All Supreme Court cases from this term will be decided by June. The average time would probably be 3-4 months from when the case is argued (i.e., February or March), but it could be faster or slower. The ruling will basically go into effect immediately, even if the Patent Office takes some time to make new rules.
  - mooneater 17y ago
    great answer, thx.
deleted 17y ago
[deleted]
- kiba 17y ago
  What does this have to do with the topic here? Maybe you post in the wrong story.
hristov 17y ago
Here is one of those rare stories in hacker news where I can claim special expertise. But yeah, I am a patent lawyer, so everyone listen to me :) I should point out that this case does not directly concern software patents. The patent at question is not a software patent but a business method patent. It was a patent for a commodity trading strategy that as claimed did not require a computer or software to execute (i.e., it could have been executed by a human without the aid of a computer). Now why does everyone say that software patents are on trial? Well, many people, especially those that want to see software patents invalidated, hope that either (i) the supreme court will make an anti-patent ruling that is broad enough to cover software patents or (ii) even if they do not invalidate software patents, the supreme court will recite some kind of reasoning that will be used thereafter to attack software patents. But any effect on software patents from this case will be indirect. The supreme court usually does not like to rule on things that are not properly in front of it. So their decision here will not stray from the matter at hand which is business method patents. In my opinion, the supreme court should affirm the federal circuit in rejecting business method patents. I think it is common sense that patents should be limited to technology one way or another. But regarding to software -- I agree with pg that there really isn't anything special about software that is not applicable to hardware, and there is no reason to single software out. When people complain about software patents, they usually complain about obvious patents, and that is an issue sometimes. But the way to solve this is make sure the patent office applies the obviousness laws better and not by wholesale invalidation of all software patents.
- greendestiny 17y ago
  I don't think the problem with software patents exists solely in the fundamental difference between hardware and software. I think the problem arises from a number of things including the number of software inventors (nearly every programmer at one time or another) and the abstract nature of software. These things tend to mean that inventions are far more likely to coinvented than copied in the world of software. An enforcement of the level of nonobviousness needed in software patents to make them useful for society would just about ban them outright anyway.
- wtallis 17y ago
  Any ruling striking down the Bilski patent without placing new limits on software patents would be ineffectual, wouldn't it? Breyer alluded to business method patents filed in the form of "Do X, with/on a computer", but if those and purely mathematical software patents are made clearly invalid, then that would take care of most of the problematic software patents.

95 points by manvsmachine 17y ago

"In a worst-case scenario for the high-tech industry, the ruling could invalidate many existing software patents or at least make them more difficult to defend in lawsuits. And it could make such patents harder to obtain in the future because software is generally patented as a process for doing something rather than as a physical invention." I think that might be the best case scenario.

ryanwaggoner 17y ago
Agreed...it all makes sense when you see the quote a few lines down from that: "The software industry would lose an important incentive to innovate if the government ceased issuing software patents," warned patent attorney James Carmichael, a former judge on the Patent Office board of appeals.
- some1else 17y ago
  I wonder, If "the industry" spent the resources allocated for software patents on additional R&D, could consumers even handle all the innovation? Besides, when was being the market leader ever an incentive for companies :-D There was a cool talk on the problems with software patents by D. Ravicher: http://www.youtube.com/watch?v=d0chez_Jf5A http://www.youtube.com/watch?v=d0chez_Jf5A I just can't imagine something like an Augmented Reality iPhone app being patented by a restrictive extortionate company. It's basically the Terminator vision on a modern handheld device. But then again, look at all the ridiculous applications http://www.google.com/patents?q=augmented+reality+phone+camera&btnG=Search+Patents http://www.google.com/patents?q=augmented+reality+phone+came...
- wsprague 17y ago
  I would like to see this supported (or not, methinks) by empirical evidence. A priori arguments without evidence aren't worth a damn, in my estimation.
alain94040 17y ago
I agree that the pendulum today is too strongly on the side of patent trolls. But have you seriously thought about what a world without patents would look like? Actually, you can. Visit China. On Monday, the boss of a factory will give you a tour and shows you how they manufacture the iPod case exclusively for Apple. The next day, they offer you to manufacture the exact same design, just for you, for very cheap. IP? What IP? Personally, I'm hoping for a middle ground. Not all patents are bad, but too many stupid patents is an abuse of the system. (before you mod into oblivion, let me state that I have standing to discuss this issue, having been sued for patent infringment myself - I know the pain)
- IsaacSchlueter 17y ago
  Is that really so bad, though? I know that I could get a knock-off of an iPod. But my iPod has guaranteed support from Apple, and it gives me a good feeling to know that I have the "real thing", and not a "fake". For that matter, I could also get a Zune, but I have standards. ;) If your business model could be so easily undercut by competition, you're Doing It Wrong. People pay more for perceived status and soft values. And the people who are looking for knockoffs were probably never going to be your customers in the first place. Validity of software patents goes on trial today at Supreme Court. I'm hoping for the death penalty.
- greendestiny 17y ago
  You can still have copyright protection without patents. Besides your example is specifically a physical device which isn't the kind of patent being talked about.
- gacek 17y ago
  You miss the point. A specific case design is something completely different than patenting 'ways that stuff can be done'. I really hope the EU does not introduce software patents. This is just the thing to stiffle innovation.
- bradgessler 17y ago
  The idea behind patents was to encourage innovation by guaranteeing certain rights to the patent holder; unfortunately, software patents have probably hurt innovation more than it has helped out.
grellas 17y ago
Oral argument was held today - tough day for the patent applicant, with much skepticism expressed by the justices toward the idea that business methods (and, of course, any software that might implement them) should be loosely patentable: Justice Stevens: "None of our cases has ever approved a rule such as you advocate"; Justice Breyer: applicant is arguing "anything that helps any businessman succeed is patentable"; Justice Scalia: patents are given to inventions that are manufactured or produced by workmen, "not someone who writes a book about how to win friends and influence people." Not good portends for a favorable decision for the applicant. On the other hand, several justices overtly questioned the highly restrictive test adopted by the lower court that would essentially gut many business method patents. Looks like this could go all sorts of directions but not likely to any extreme.
- arebop 17y ago
  The transcript is available from http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-964.pdf http://www.supremecourtus.gov/oral_arguments/argument_transc... for those who are interested in more.

jxcole 17y ago

This article is good news, but unfortunately it is poorly written. I felt they were very prejudiced in favor of software patents.

eli 17y ago
Yeah, you would think the AP could have found someone at Google to present another angle.
- omouse 17y ago
  or the Software Freedom Law Center.
chaostheory 17y ago
it reads like submarine PR

ars 17y ago

Is there anyone from the FSF (or similar) who might file an amicus brief? It's the Patent Office that is fighting this? Is anyone from the open source community helping them?

mikeryan 17y ago
They have http://endsoftpatents.org/amicus-bilski-2009 http://endsoftpatents.org/amicus-bilski-2009 It seems that FSF, Google, Red Hat and the Software Freedom Law Center are against the patent ideas. IBM, Microsoft, Symantec and Philips are for patents according to this page. http://en.swpat.org/wiki/Bilski_v._Kappos_amicus_briefs http://en.swpat.org/wiki/Bilski_v._Kappos_amicus_briefs

flashgordon 17y ago

Jees could this article be any more biased towards the BSA?

mooneater 17y ago

Anyone know how long we should expect to wait before they decide something and it impacts the real world?

slapshot 17y ago
All Supreme Court cases from this term will be decided by June. The average time would probably be 3-4 months from when the case is argued (i.e., February or March), but it could be faster or slower. The ruling will basically go into effect immediately, even if the Patent Office takes some time to make new rules.
- mooneater 17y ago
  great answer, thx.

deleted 17y ago

[deleted]

kiba 17y ago
What does this have to do with the topic here? Maybe you post in the wrong story.

hristov 17y ago

Here is one of those rare stories in hacker news where I can claim special expertise. But yeah, I am a patent lawyer, so everyone listen to me :) I should point out that this case does not directly concern software patents. The patent at question is not a software patent but a business method patent. It was a patent for a commodity trading strategy that as claimed did not require a computer or software to execute (i.e., it could have been executed by a human without the aid of a computer). Now why does everyone say that software patents are on trial? Well, many people, especially those that want to see software patents invalidated, hope that either (i) the supreme court will make an anti-patent ruling that is broad enough to cover software patents or (ii) even if they do not invalidate software patents, the supreme court will recite some kind of reasoning that will be used thereafter to attack software patents. But any effect on software patents from this case will be indirect. The supreme court usually does not like to rule on things that are not properly in front of it. So their decision here will not stray from the matter at hand which is business method patents. In my opinion, the supreme court should affirm the federal circuit in rejecting business method patents. I think it is common sense that patents should be limited to technology one way or another. But regarding to software -- I agree with pg that there really isn't anything special about software that is not applicable to hardware, and there is no reason to single software out. When people complain about software patents, they usually complain about obvious patents, and that is an issue sometimes. But the way to solve this is make sure the patent office applies the obviousness laws better and not by wholesale invalidation of all software patents.

greendestiny 17y ago
I don't think the problem with software patents exists solely in the fundamental difference between hardware and software. I think the problem arises from a number of things including the number of software inventors (nearly every programmer at one time or another) and the abstract nature of software. These things tend to mean that inventions are far more likely to coinvented than copied in the world of software. An enforcement of the level of nonobviousness needed in software patents to make them useful for society would just about ban them outright anyway.
wtallis 17y ago
Any ruling striking down the Bilski patent without placing new limits on software patents would be ineffectual, wouldn't it? Breyer alluded to business method patents filed in the form of "Do X, with/on a computer", but if those and purely mathematical software patents are made clearly invalid, then that would take care of most of the problematic software patents.