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42 
Although much remains unclear after the U.S. Supreme Court’s decision in Bilski v. Kappos, one thing is certain: software remains patent-eligible in the U.S. This result may not be entirely clear from a quick read of the opinions in the case. Therefore, I present the following pieces of evidence that the Supreme Court in Bilski effectively re-affirmed the patent-eligibility of software (listed, for the sake of simplicity, in the order in which they appear in the decision).
1. The Court, citing Chakrabarty, re-affirmed that Congress “plainly contemplated that the patent laws would be given wide scope” when choosing the categories of “process, machine, manufacture, or composition of matter” to define patent-eligible subject matter in Section 101 of the Patent Act. Computer software performs processes, and computers that have been programmed with software are machines. A large body of precedent confirms that such processes and machines fall within the scope of the terms “process” and “machine” under Section 101. Therefore, the Court’s decision to confirm that Section 101 should “be given wide scope” supports the conclusion that software remains patent-eligible.
2. The Court, again citing Chakrabarty, re-affirmed that the three exceptions to patent-eligible subject matter are “laws of nature, physical phenomena, and abstract ideas.” Neither a programmed computer nor the processes performed by a program computer falls into any of these three exceptions, as again confirmed by a large body of precedent. Therefore, the Court’s decision to reiterate these three exceptions supports the conclusion that software remains patent-eligible.
3. The Court rejected the Federal Circuit’s “machine or transformation” test as the sole test of patent-eligibility. In my view, software (properly described and claimed in a patent) would remain patent-eligible even if the “machine or transformation” test were the sole test of patent-eligibility. However, the Court’s conclusion that the “machine or transformation” test is not the sole test of patent-eligibility, and the implication that subject matter which does not satisfy the “machine or transformation” test could still qualify as patent-eligible subject matter, only further supports the conclusion that software remains patent-eligible.
4. The Court emphasized the need for patent-eligibility under Section 101 to take into account that “times change” and that “[t]echnology and other innovations progress in unexpected ways,” and that, as a result, the mere fact that “patents for inventions that did not satisfy the machine-or-transformation test were rarely granted in earlier eras, especially in the Industrial Age,” does not necessarily imply that such inventions should not be patent-eligible now. The majority cited two earlier Supreme Court decisions for the propositions that Section 101 is a “dynamic provision designed to encompass new and unforeseen inventions,” and that a categorical rule denying patent protection for “inventions in areas not contemplated by Congress… would frustrate the purposes of the patent law.” This view of Section 101 as a dynamic provision which needs to adapt flexibly to new technological developments strongly supports the conclusion that software remains patent-eligible.
5. he Court further noted that the “machine or transformation” test’s failure to make clear that software is patent-eligible provides a “reason[] to doubt whether the [machine or transformation] test should be the sole criterion for determining the patentability of inventions in the Information Age.” This logic implies that software remains patent-eligible.
6. The Court disclaimed any intent to “comment[] on the patentability of any particular invention,” and stated that it was not “holding that any of the above-mentioned technologies from the Information Age [such as software] should or should not receive patent protection.” Such a disclaimer, however, is not a holding that software is not patent-eligible. At most, it is evidence of an intent not to change the status quo with respect to the patent-eligibility of software, and the status quo is that software is patent-eligible. Therefore, although this disclaimer does not directly support the patent-eligibility of software, it does so indirectly.
7. The Court’s conclusion that the claims in Bilski’s patent application did not qualify as patent-eligible subject matter under Section 101 does not have any bearing on claims for software, assuming that such claims are written correctly (such as by specifying in a process claim that the process is executed by a computer) and supported by a well-written specification. Neither Bilski’s claims nor his specification made any mention of a computer or other machinery for implementing his invention. Therefore the rejection of his claims under the “abstract idea” exception has no bearing on the patent-eligibility of proper software claims.
8. Even Justice Stevens, who (along with three other Justices) would impose a categorical prohibition on business methods, seems solely concerned with excluding what he refers to as a general method of doing business. Although it is not entirely clear what he means by this term, his discussion and the objectionable examples he provides (such as a process for training a dog, a series of dance steps, a method of shooting a basketball, and Bilski’s abstract method of hedging risk) indicate that he is referring to business methods which are claimed abstractly and without any reference to any machinery. Understood in this way, none of Justice Stevens’ objections to general business methods are applicable to patent claims on software, assuming that such claims are written correctly and supported by a well-written specification.
9. Furthermore, even Justice Stevens (in footnote 40 of his concurrence) stated that he did not intend to address the patent-eligibility of the claims that the Federal Circuit upheld as patent-eligible in State Street Bank. The fact that Justice Stevens did not see the need to address “whether a piece of software could be patented,” even when the sole purpose of such software was to perform a business method, is further evidence that his objection was only to “general” methods of doing business, not claimed in connection with any machinery (such as the method claimed by Bilski), and not to methods performed by software.
The laundry list provided above is not intended to be exhaustive or a conclusive proof that no statement in any of the opinions in Bilski could be interpreted to call into question the patent-eligibility of software in some way. Furthermore, this list does not attempt to sort through the different views expressed by the Justices in their three opinions, primarily because the differences between those opinions relate primarily to the patent-eligibility of business methods, not software. Rather, the purpose of this list is to provide a representative, but accurate, sampling of the Justices’ reasoning, which, when taken as a whole, overwhelmingly supports the conclusion that software remains patent-eligible subject matter in the U.S.
Even a very conservative reading of the opinions indicates that the Justices intended to leave the status of software as patent-eligible subject matter unchanged, and for further refinements to be worked out by the lower courts and USPTO. A more liberal reading indicates an intent to enable the scope of patent-eligible subject matter to expand in light of technological developments. In either case, the decision in Bilski fails to provide patent examiners and defendants in patent cases with any substantial new ammunition for rendering software patent claims unpatentable or invalid for lack of patentable subject matter, and weakens the ammunition previously in their arsenals. Therefore, despite any ambiguities which may exist in the language of the decision, the practical effect of Bilski will almost certainly be to bolster the patent-eligibility of software both in patent prosecution and in litigation in the U.S.
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Join the Discussion
42 comments so far.
Bobby
August 10, 2010 07:16 pm@step back
Last time I checked, the majority of programmers employed are working on internal projects, with a large portion of the remainder being works for hire. They are getting paid for their service, not for a product, so legal protections generally aren’t important to them or that part of the company (the company itself may be dependent upon IP, but it might not.). Trade secrets may play a role in some cases, but that’s largely a technical issue instead of a legal one, and the legal issues are mostly NDAs and such, not applications to the government for protection. Of course, not all IT practitioners are even programmers, and tech support and sysadmins are even less likely to depend on iP.
step back
August 10, 2010 06:05 pm@Bobby
What is more amazing is that your salary (assuming you are an IT practitioner working for a corporation) is dependent on your boss being able to secure ownership rights over the work product for which he/she pays and which you produce mostly with just your intellect.
If there were no “Intellectual” property rights then your intellect (and that of many other similarly situated workers in the area of producing intellect-based work product) would be of little economic value
Bobby
August 10, 2010 01:42 pm@Blind Dogma
I know the basics. Patents protect inventors, copyright covers copyright. Congress sets the rules initially, but Congress “may not over-reach the restraints imposed by the stated constitutional purpose”, and the courts are supposed to reach in if they do. The American patent and copyright systems are both based on the public benefit, which is in line with the British tradition, and differs from the French tradition where authors and inventors were considered to have ‘natural rights’ to their works. I can go on into further detail if I must claims, inventor, assignee, public usage, prior art, abstract, yada yada. You very well may have greater technical knowledge of the inner workings, but I’m starting to suspect this may be a case where “It is difficult to get a man to understand something, when his salary depends upon his not understanding it!”
Blind Dogma
August 10, 2010 01:22 pm“if you refuse to specifically tell me why I’m wrong”
Bobby,
Bobby, it is not an issue of “why” you are wrong – that would be a value discussion – it is an issue of “what” you are wrong – and that is an issue concerning the very foundations of IP law. I will not be your tutor for IP Basics. Take a college course.
Bobby
August 10, 2010 01:19 pm@Blind Dogma
Please, tell me what it is i’m leaving out. I can’t reconcile our realities if you refuse to specifically tell me why I’m wrong, instead of just saying that I’m wrong. If the reason obvious ideas, abstract ideas, and most other exclusion principles are not ultimately based on the fact that protecting them inhibits progress, then provide an alternative, because I don’t see another plausible reason. We have the capacity to remove software patents from the scope of patentability. Congress could do it, the Supreme Court could do it, with their most simple route being that software patents cover abstract ideas, which they have already declared unpatentable. There is no doubt about this. Thus, the important question is whether or not they should, which would be a good place for science to come in.
Also, please answer my questions regarding hypothetical scenarios.
Blind Dogma
August 10, 2010 09:42 amBobby – ground yourself first.
It is not a matter of “patent lawyers remaining employed”.
It is a matter of understandign the system, the arena and the environment in which law operates.
It is amazing how people so used to operating in the rules of systtems (which ever programming code world you choose) cannot understand the basics and wish to ignore reality.
Bobby
August 10, 2010 09:03 amI am looking at the exceptions to patents, and I try to find the reason why they are exceptions, and the reason behind it seems to be based on whether or not it’s beneficial, and applying that reasoning to an ideal policy to software patents. In the paper you mentioned, the defense used by Rich is still based on being beneficial, and he basically argues that it provides diversity. if you have another theory for the WHY abstract ideas and obvious improvements are not please elaborate, because WHY is the root o my thinking.
Here are some thought experiments, and I’d like you to think of them as a rational human being deciding what’s best for the public, not an advocate of a patent holder or someone concerned with remaining gainfully employed as a patent lawyer.
Let’s say that we conclude that issuing patents has no positive effect on innovation and the state of the art. We’ve got conclusive, modern science that shows that people invent and disclose just the same in both systems, and the reasoning behind patents was flawed, just like using bloodletting to solve most ailments was. Therefore, the USPTO is not accomplishing anything, although some parties are getting economic . Would it not be prudent to eliminate patents outright at that point?
A less extreme scenario. Let’s say we have conclusive modern science that shows that the appeal of patents is based on something slightly related to psychological pricing, where the final digit and being a positive number are all that facto in. therefore, 10, 20, and 30 years work equally as well. Should we not change the patent period to 10 years in this case?
Blind Dogma
August 10, 2010 08:40 amBobby,
“The system may not actually work that way, but that’s how it should work”
You insist on living in a delusional world. You insist on not understanding the basics of law. Why should anyone care what you think “should be”, when you don’t care enough to obtain even a basic understanding?
Bobby
August 9, 2010 09:48 pm@Blind Dogma
The law on software patents has not been that well established. Nobody knows the legal boundaries yet, and they may very well change in the future. I think that how well software patents work in advancing progress in the industry would be a good way of determining the ideal policy. The system may not actually work that way, but that’s how it should work. I know they don’t measure the effect on progress an individual patent has, but that’s because they can’t, so they rely on other tests to estimate this effect. Obvious patents have lower benefits and higher costs, so granting them is bad. For some reason, tubers are excluded from plant patents, and that might have something to do with arguments that tuber patents don’t pull their weight, or it might be some other criteria. If we had a theoretical machine that could take a patent application and spit out a coefficient for the effect granting said patent would have, we’d be foolish to not make judgments on whether or not the score was above 1. But, we don’t have that machine, so we’ll have to rely on observations, speculations, arguments of the practicality, and testimonies to get an estimate.
step back
August 9, 2010 09:23 pm@Blind Dogma
re: New to Everywhere
OK. I see what you mean. Let the winds from the monkey cage blow where they may.
Blind Dogma
August 9, 2010 09:07 pm“I contend that ”
Yes – see my comment about educating yourself to the basics. Your contentions and wishful thinking simply have no basis in law. If you want to have a non-make believe discussion, you need to do some homework. Otherwise, your position is only fluff.
New Here
August 9, 2010 09:03 pm@step back
“Do you mean they “work” because they successfully boot up; like where the BIOS “program” built into them checks to verify that DRAM is intact, checks to see if there there is a valid boot sector on disk, etc.? That kind of “working”?”
Oh “the BIOS “program” as I guessed you would want to bring up. To return to the start, I talked about the communication between hardware and software being ONLY numbers. Math. The BIOS “program” is no different, it too has the same communication as any “software” on hardware …oh pooh.
FYI: Once computers didn’t have a built-in BIOS “program” …oh no say it isn’t true ! And before that, they didn’t boot up at all. Look it up please. History of the computer will show you that they were born from non-physical numbers. The hardware and software that make computers today are based on those same non-physical numbers. How could it be otherwise ? If your Law can change history, facts, please have at it.
What you have mentioned ‘BIOS “program”’ amounts to the knowledge found on magazine racks and not experience. The engineering that makes the communication between software and hardware (CPU) work, is WHY computers do the things they can do. Numbers are not physical things in computer. They are the one and zeros you write, pits and lands of a wave through a computer on timing so the cpu can differentiate them as ones and zeros -or- on and offs. Its all math. The wave, the timing, yes EVEN the registers functions inside the cpu, trees that are part of all files systems …and I go on so.
It may be a monkey that you sell the idea that software and hardware are both physical, but he is just a monkey after all.
Bobby
August 9, 2010 07:49 pm@Blind Dogma
You are misunderstanding me.
Current, most software patents are incredibly vague compared to a working implementation of that patent. I contend that if they are to be valid, they need to be incredibly specific, possibly to the point where you are going over the source code and claiming each little piece, because each little piece matters functionally. If they are this specific, I have no doubts that they should be allowed to be patented.
However, if you require patents to be that specific, the protection they provide is far less than the protection currently given by copyright, so anyone looking for software protection in this state of patents would not file a software patent. You can entice filing patents by allowing them to take a broader scope, but this means the disclosure is going to be less useful and the harm caused on the market is going to be greater, and at a certain point, we don’t consider such a thing patentable.
Certainly, we wouldn’t let someone obtain a patent on an entire class of drugs, such as SSRI. In a broad sense, they all work by changing serotonin reuptake , but the specific way in which each drug does so is different . We are usually specific with pharmaceuticals up to the highest possible level related to functionality (isotopes would be ignored in any pharmaceutical where the differences are not a functional concern, although it may be relevant in some medical procedures that need an ideal level of radioactivity). As I understand it, many times a company will push a new pharmaceutical based upon an old one with the smallest possible change, often just a few atoms different in composition.
As for your final question, I know you can’t copyright for example the MP3 codec. You can copyright a specific implementation of it, such as LAME, and that is in my opinion the strongest degree of protection available that is valid. I would contend that L3enc, while doing the same job as LAME in a similar way, is functionally different from LAME.
In summary, I am skeptical that a system of patents on software can be specific enough to not inhibit progress while still being broad enough to make it worthwhile for software firms to apply for them.
Blind Dogma
August 9, 2010 06:25 pmStep Back,
Trying to hold a conversation with “New Here” is not recommended as English appears to be a (distant) second language and traditional rules of grammer are often dispensed with (because it is easier for New Here).
Bobby does attempt to put together grammatically correct sentences, but his understanding of IP basics is absolutely woeful.
To wit – Bobby, your last post indicates “I have not said that. but what you do say makes no sense.
You start out ok with “I’ve said that copyright can protect specific implementations of software, which it can, and that a different implementation of software is functionally different. ”
but then you get lost in the weeds with “If you want to have a patent that is source code + hundreds, maybe even thousands of claims for even simple software,”
It appears that you think that you need actual code for a patent. You don’t. You appear to think that you need thousands of claims for each step of a function, or each way of writing a function. You don’t (you appear to have “copyright on the brain” and want to slavishly copyright every possible way of “saying” something. That is not want patents do.
You need to educate yourself way up to a beginner level, otherwise, patent folk may as well be talking to stones.
“provide you any real protection because there are so many functionally different ways to do something with software that the odds of them being the same are nearly zero, so using the protections given by copyright would be preferred by most software firms.”
You do realize that you cannot protect functionality with copyright, do you not?
step back
August 9, 2010 04:29 pm@New Here
I think we truly need that monkey language board here (see above reference to CNN story).
You say:
Do you mean they “work” because they successfully boot up; like where the BIOS “program” built into them checks to verify that DRAM is intact, checks to see if there there is a valid boot sector on disk, etc.? That kind of “working”?
Hew Here
August 9, 2010 03:14 pm@step back
You must have misunderstood me, my bad. Computers do work, before software is installed on them. How could it be otherwise ? But, software is not physical to be interchangeable with hardware. If I may ask where is a standalone software application, functioning as hardware without physical hardware ?
Bobby
August 9, 2010 02:36 pm@Blind Dogma
I have not said that. I’ve said that copyright can protect specific implementations of software, which it can, and that a different implementation of software is functionally different. If you want to have a patent that is source code + hundreds, maybe even thousands of claims for even simple software, I don’t have a problem with that myself, but it is a lot of effort, and probably won’t provide you any real protection because there are so many functionally different ways to do something with software that the odds of them being the same are nearly zero, so using the protections given by copyright would be preferred by most software firms.
New here
August 9, 2010 01:10 pm@step back
“explain to you that there is no dividing line between hardware and software”
Good luck, I guess when you been edu-kated you can make up what ever you want ? Your “Law” doesn’t make it so, because you just believe it does. My 386 example may be pain, but it is fact, that hardware was ahead of the software. No dividing line between hardware and software ? really ?
This 386 problem continues today, as hardware moves faster then software on tech advances. Software slowly comming up the rear because … no dividing line between hardware and software ! Please edu-kated you self on real development in the real world as it would help with all the re-submitted software patent applications that will flood the PTO soon, filled with such notions as there is no dividing line between hardware and software post Bilski.
step back
August 9, 2010 11:55 am@New Here
Sorry. It is intellectually painful enough to watch you and Bobby McGee shooting up each of your own two left feet as it relates to understanding basic IP law: What do copyrights do? What do patents do? What do trademarks do?
But now you’re hammering flint stone spikes through each of your 6 Neanderthal toes and that is more blood and pain than I can take.
You seriously need to edu-kate yourself on a thing called “microcode”.
I’ll try to make it easy for you. Click on the following link:
http://en.wikipedia.org/wiki/Microcode
Blind Dogma was trying to calmly explain to you that there is no dividing line between hardware and software. It’s true. The electrons don’t care what name-calling you engage in when you describe what they do. (You say it’s software and I say it’s toe-ma-toe hardware. Let’s call the whole thing flub.) The electrons move nonetheless.
Blind Dogma
August 9, 2010 10:57 amBobby,
Giles S. Rich – Principles of Patentability
28 Geo. Wash. L. Rev. 393 1959-1960
New Here – I believe thar the premise advanced by Step Back is not necessarily that “software makes hardware work”; but rather, that software can be interchangeable with hardware.
New Here
August 9, 2010 10:04 amFirst, when someone knows that the physics of “transistors” and the other components of a computer’s CPU are designed independent of any particular human programming language. That the electrical energy and the signals are part of that independent design and function. The notion that “software” makes hardware work is a common mistake.
Question, what “language” would software use for communication at the hardware level for the “stuff called electrical energy signals” ? Someone may answer drivers or embedded programs, but those return us to the same question, because drivers and embedded programs are only “software” too. Bottom line, hardware as a computer’s CPU, a memory chip’s organization work independent of software with the understanding that it is not doing things that only *we* see as not useful when doing so. The interaction between “software” and hardware are closer then you think …think numbers !
When testing CPUs they are NOT subjected to having tons of current-day software run through them, no, they are able to be tested and run without software ! The registers function, timing of I/O, as well the rates as we know as “CPU speed” all can be tested and run, without any particular software.
In the early ’90s when the 386 chip hit the market, there was NO software for it, not any software that could take advantage of the new tech of the 386’s speed and complexity. But, the 386 was made into a computer, at the time running and having the potential for people to have it do more beyond the current software of the day. So, if the 386 had been designed with only software in mind, the software of its day, the 386 would have been limited and useless for any future thinking. Having a computer doing something useful is knowing that the hardware (CPU) functions not based upon software. To tie hardware to software is small thinking on a chip designers part. However, both to have any useful communication with each other, has been and still is just numbers …math.
Blind Dogma
August 9, 2010 07:34 amStep Back,
I fear that it is more than just a language barrier.
Bobby looks to copyright as if it is enough to protect functionality and wants patents to get “out of the way”. I don’t think that Bobby understands either copyright not patents,
As to the Rich article, – I’ll check on obtaining a link later in the day. I don’t want to summarize the article for you – part of the value is reading the article and thinking about it on your own. It’s not for soundbytes.
step back
August 9, 2010 06:56 am@Bobby
I respectfully suggest that there is a language disconnect occurring here when you try to talk to us patent law monkeys.
Maybe we all need a language translation board like the one shown in the below CNN video entitled “Teaching Animals to Talk”:
http://www.time.com/time/video/player/0,32068,424741717001_2009072,00.html?hpt=C2
Every time you use the word “software”, there should probably be a little box on your wall board that says “where me insists software = pure math” and you would press it with each utterance by you of the word “software”.
Otherwise we patent law monkeys would get confused.
We would start thinking that perhaps you might cognate in the same way we cognate. We would think that perhaps you understand that a blank-slate computer is nothing more than a room heater and a snow making machine until you “load” into to it this physical stuff called “software”. And only then, and as if by magic (except we patent law monkeys has been ah edu-kated to know it ain’t magic) the computer is observed to behave differently and become more than just a room heater and a snow-on-its-video-screen making machine.
The problem is that when some of us patent law monkeys was ah edu-kated in that thar place called school. We was ah brain washed about these mythical things called “transistors”. We was ah taught that them thar “transistors” could be wired to act like “logic” circuits. We was ah taught that when you apply real physical stuff called electrical energy signals to the “logic” circuits, they would behave as if they had logic. We was ah taught that you could store a replication of the real physical stuff called electrical signals into “memory” devices and that many people understand such stored, physical and real world stuff to be called “software”.
So you see, that’s why we patent law monkeys gets all confused.
But if you had that handy dandy language converting board on your side of the glass wall, we would all probably understand each other much better and we wouldn’t monkey around with each other as much as we otherwise seem to do.
Bobby
August 8, 2010 04:47 pm@Blind Dogma
Sorry, I can’t seem to find the specific Rich article in question, so a link, a title or at least a basic summary would be helpful. I think it’s a really simple problem when looking at the whole landscape. If we can conclude that the net effect of software patents is negative, and we can’t carve out a subset of software patents that would have a positive effect, then they are harming the system, and we should get rid of them. You can argue about whether the proper entity for deciding this is SCOTUS, USPTO, or Congress, but someone would need to do it.
Regarding the last sentence, I think it is a legitimate concern. If the patent system was working in a manner that gets in the way of producing copyrighted works, it is a big problem, especially if it does little or nothing to promote progress in the first place. It’s a dilemma I would think is almost entirely unique to software, since most other fields don’t have large amounts of crossover of copyright and patents, so there isn’t a lot of precedent, but the effects seems to be bad for both the market and the actual progress in software.
Blind Dogma
August 8, 2010 08:36 amBobby,
You have some serious misconceptions about the patent system. Your viewpoint borders on the exclusion of one of the key players in the nominal Quid Pro Quo.
I suggest that you dig up the article penned by Judge Rich mentioned by Justice Stevens in the Bilski decision.
I would comment on your last sentence (with the phrase “more copyrighted works produces”, but it does not make sense. It appears that you are trying to compare copyrights and patents as to which produces more “promotion” in a market sense, but that’s only my guess as to what you are trying to say.
Bobby
August 7, 2010 01:35 am@Blind Dogma
First of all, the limited time monopoly is just a means to an end, not an end to itself, which is precisely why the duration is limited. The purpose of patents is to ‘promote progress.’ Disadvantaging startups and small firms gets in the way of the progress more copyrighted works produces, and a market without adequate competition is generally acknowledged to have less innovation and progress (as well as other economic problems), so solving this issue with software patents would definitely be a good thing.
New Here
August 7, 2010 01:05 amI have to agree, that ” the general public doesn’t even understand the differences between copyright, patent, and trademarks ” and this is the reason for many of the problems today.
The understanding that most of the general public doesn’t have about patents, prevents them from taking an active, important part in what could and does impact them. An understanding that doesn’t require obtaining a Law degree, but just taking the time to read more then the daily newspaper.
What really gets me is that most people I have talked to about patents, the lack of understanding about them, I often get the reply that they don’t care and/or it is not a big deal. This is a problem today when people have such attitudes about things that are important.
The general public though, is under no obligation to obtain an understanding of the Law. There is no such requirement as I believe it has root in the United States Constitution.
Ignorance of the Law is not excuse, and a knowledge of is not a requirement. How many were fighting in wars with an ignorance of the Law, the Law they took part in changing in most cases.
People must take responsibility for themselves or lose rights, or just lose control of their rights. Patents are out of control and the action by NZ for one example, sees this problem with the patent system, as well as others with and without an understanding of the Law.
Blind Dogma
August 6, 2010 11:28 pmDon’t mind me, I’m just coming through to refill glasses.
“Raising the barrier to entry is not what the patent system is for.”
Actually, a colorable argument can be made that that is precisely what the patent system is for, given that the limited time monopoly is supposed to be exactly such a barrier to entry.
Bobby
August 6, 2010 05:41 pm@step back
step back
August 6, 2010 05:04 pmOh. I forgot to also mention the Black & Decker all-purpose skull and concrete cutter tool.
step back
August 6, 2010 05:03 pm@Bobby,
No one is asking them to understand and to engage in do-it-yourself at-home IP practice.
This is no different than expecting a sane and rational lay person to go to a neurosurgeon when he needs brain surgery rather than to attempt a do-it-yourself rearrangement of the gray matter at home with coat hangers and duct tape.
Bobby
August 6, 2010 04:31 pm@step back
You are misrepresenting my position. The ‘literary’ portion, which would be covered by copyright, includes all of the code. The functional portion, which would be covered by patents, includes all of the code except for variable names, string outputs such as error messages, and source code comments (forgive me if i left something out), which are the only elements that are not functional. You can change replace all of these without a real difference in how the software functions, while changes to all other elements does change how the software works in a meaningful way.
Thus, the portions that are copyrightable and the portions that patentable are almost identical. From my experience, the general public doesn’t even understand the differences between copyright, patent, and trademarks, to an extent that the USPTO has a section for musicians briefly explaining they can’t get a patent for a band photo and such. Now, software often involves more complex copyright licensing than most other mediums already, so when patents get involved, it’s not that hard to see why those who are not experts in patent law can get frustrated by yet another legal framework they have to deal with, ESPECIALLY when the patent landscape is so muddy even experts who specialize in software patents don’t really know.
step back
August 6, 2010 02:53 pm@Bobby,
Sorry, that observation does not pass even the mild chuckle test.
Try feeding a stream of randomly generated op-codes to a CPU and see what happens. Probably, after just the first couple of randomly generated op-codes, the CPU will freeze up with a violation flag like trying to access illegal memory address.
On the other hand, of course you can feed “Twas brillig, and the slithy toves …” –Jabberwocky to a literature absorbing storage with no harmful consequences. Big difference. Or as the walrus said:
“And, has thou slain the Jabberwock?
Come to my arms, my beamish boy!
O frabjous day! Callooh! Callay!’
Bobby
August 6, 2010 12:07 pm@EG
It’s a difficult issue, and I’m glad I’m not in charge of making the decisions, because there will be many people upset regardless of how it goes. The dynamics of the software industry are fairly unique. It’s not that unreasonable to have a single person company deliver an end product that has a drastic effect, but some of the biggest companies in the world are software companies as well. Even the business models are incredibly diverse, as some companies sell software as end products, some use software to push hardware, some release gratis copies of their software to push another service, and some keep their software in-house and will probably never be seen by the public (the last time I checked, this is where the majority of the man-hours in software development go). When you add on the need for compatibility to be viable in the market, there’s a lot of dangerous areas. One of the most troubled areas is file formats and media codecs. If either of these is covered by patents (which they often are), then a competitor can be locked out from compatibility, and with a powerful incumbent, this can be devastating, even if the competitor’s product was technically superior. Reconciling this and the diverse market of the software industry is a daunting task, and somebody’s toes are going to be stepped on.
Also, there’s virtually nothing separating the ‘literary’ element from the ‘functional’ element, making the role of patents vs. copyright in software rich for debate, and full of confusion for those not well versed in the law. The complexity of licensing software is already fairly complex compared to other industries, and having to deal with a currently ambiguous area of patent law undoubtedly makes things messy for small firms.
Another problem is that the industry moves so fast, and fortunes can come and go faster than other industries can get their products out to the market. However, patents for software are still under the same terms as other fields. The relatively short period of getting a product to market further pushes this disconnect. I believe pharmaceuticals have about 7-10 years of protection in the market, meaning that 10-13 years go to testing and FDA approval. If a piece of software with a new patented feature takes 8 months to get to market, then you’ve got 19 years and 4 months of effective protection in an industry with less investments (as I recall, it’s somewhere in the neighborhood of a billion dollars to get a drug to the market) and faster turnover. I would have to say that this is one of the biggest problem areas in software. If Tim Berners-Lee had sought a patent for something in his WorldWideWeb at it’s initial release, it would still be covered by a patent today.
There’s also the public, which goes oddly underrepresented in debates on patent and copyright debates, despite them being the ones whose rights are taken by the deal. When we do issue patents, we have to ensure that the public gets a net benefit from it. This means that just rewarding innovation is not enough. We have to reward innovation in a manner that still makes things better for everyone who doesn’t invent a particular invention. That’s why we have to say ‘No, that’s too obvious or no, that’s too abstract. Granting patents for these things will not serve the public.’ It’s hard to measure the effect of a patent directly, but we can help estimate it with various tests and standards. We’ve also got to take into consideration the overhead of the system itself. The costs of examining patents, the costs of courts in litigation cases, the added costs of having a legal team for both the defendants and the plaintiffs, and the fees paid. Even patents that would be a slight benefit can fall into causing net harm with these extra weights, and ultimately, that burden should be carried on the inventor’s side. Gene mentioned C-level patents that are mostly for looking good on quarterly reports and such, and I wonder how much weight could be lifted if we could somehow convince lots of corporations to drop those, since they would generally be wastes of time for everone.
Blind Dogma
August 6, 2010 10:56 am“communication is easy on those terms”
Communication is never easy with “New Here”, who apperantly has created his own language of free form flow.
New, as I have mentioned before, language is for expressing yourself to other people – that is why rules of grammer and normal sentence structure are so important. My (unsolicited) advice is to take a basic English course and remind yourself that when you post on a blog,, your writing is not for your own benefit.
New Here
August 6, 2010 10:37 am@step back
#1) A patent applicant is legally entitled to be his own lexicographer (within reasonable limits though).
As I have said, in an earlier post some time back, about claim language and how would exams differentiate them.
#2) Terms in a patent claim MUST be construed in light of the specification that the claims are an integral and inexorable part of.
The fact is, #2, both of them really, are open to interpretations. First by an applicant to the meaning of these parts of the Law you have mentioned. Second, the interpretations by exams to the meaning of these parts of the Law you have mentioned. Somewhere a decision, a final meaning MUST be made, hence, a grand interpretation. Without a “grand interpretation” – one meaning, would potentially give an advantage to applicants with exams that share the same interpretation of the Law. No wrong doing !!! just when two people share things in common, communication is easy on those terms. The question is what part would such an *open – interpretation* [his own lexicographer] serve without a clear meaning on language used.
Take all the interpretations of Bilski and the Law together, and sum what you have. A mixed mess of ideas about how to save the old system. As I pointed out, the PTO will know what the impact of Bilski is by all those re-app piles all on software ! Its clear that the SCOTUS did a great job by not giving a brite-line test or tests. I have said from the very start here that I’m not in Law, so, yes you are right fundamentals about US patent law that were apparently, flying past the top of my head …ok ?
step back
August 6, 2010 08:10 am@New Here
There are certain fundamentals about US patent law that were apparently, in the previous moment, flying past the top of your head because I didn’t spell them out for you. Here they are:
#1) A patent applicant is legally entitled to be his own lexicographer (within reasonable limits though).
#2) Terms in a patent claim MUST be construed in light of the specification that the claims are an integral and inexorable part of.
EG
August 6, 2010 07:56 amBob,
Nice piece on why software is patentable after Bilski. I hope your views are adopted on this issue. My concern is that SCOTUS’ “fuzzy” Bilski decision could be misinterpreted as considering software to be patent-ineligible. That comes from Scalia’s unwillingness to join parts II B-2 and C-2 of the Court’s opinion. What that means specifically with regard to the patent-eligibility of software remains to be seen.
New Here
August 5, 2010 09:40 pm@step back
Hopefully, practitioners out there who are writing computer-related applications are now including Kill-Bilski definitions in there specs.
Why would anyone need to “kill” something if it has no impact on software patents ?
I have a strong idea that the PTO will be on the lookout for these ” Kill-Bilski ” specs. They should stand out, as a hard sell, like selling brown shoes to a tux rental. Seriously, I would love to be that fly on the wall when the flood of re-apps hits the PTO, should be a bright light bulb go on and know what it is all about.
Seems so many ideas but no real clear idea what to do …no nonsense about that.
Bobby
August 5, 2010 07:39 pm@step back
So what if all the accused infringers use ‘abstract’ implementations? If a patent was covering an abstract idea, saying it is not an abstract idea doesn’t make it so. A rose by any other name, after all.
I think most people are disappointed by the lack of an explanation of what constitutes an ‘abstract idea’, and rightfully so, although a revelation at a later date may result in many wishing they could remain blissfully unaware. Of course, you can be safer by being more specific about how the implementation, but doing that also makes patents more complex and less appealing to patent seekers. However, it does end up providing more useful disclosure, so there are certainly benefits to the public in an approach that runs closer to the hardware.
A software patent in the form of source code, modified with hundreds, maybe thousands of claims explaining the role of every functional piece (source code comments, variable names, and strings output would be nonfunctional, but basically everything else is going to be functional), would be almost certainly safe territory, but the preparer would probably murder you, and nobody writing competing software would end up infringing in a thousand years, so you’d be much better off with copyright.
step back
August 5, 2010 06:10 pmAll this babble about Bilski is nonsense.
A patent applicant is entitled to be his own lexicographer.
Hopefully, practitioners out there who are writing computer-related applications are now including Kill-Bilski definitions in there specs.
e.g. As used herein, the term “software” does not encompass abstract ideas.
Of course, for already issued patents, a need may exist for a narrowing re-issue.
That means more moolah ($$) for the coffers of the USPTO and more waste of time for inventors where the logical understanding is that already-issued software claims could not have rationally intended to preclude the exchange of abstract ideas in the first place.
Sheesh.
New Here
August 5, 2010 02:23 pm@Plotkin
Mr. Plotkin,
with all the interpretations to date of the Court ‘s Bilski decision, it just seems to me, the “problem” the Court has created isn’t without impact. If it were, that software patents are unchanged post SCOTUS Bilski decision, the very number of interpretations would be less I have to believe, because, that would mean the decision was clear. The decision isn’t clear, patent application decisions made going forward aren’t clear on direction based upon any interpretation . The PTO would be wise to avoid a mistake in interpretation, as I’ve said, a return to the Court wouldn’t be good and without an impact, greater.