This is where the money is spent in litigation. If a standard structure and a list of words are allowed to be used in the software claim description, this probably makes easier and faster to find out if a software patent is valid.
But I have to admit this is a hard problem to solve. Big companies are interested in getting rid of patent trolls, because the defense against trolls is asymmetric. They would like a system that allows them to attack or defend against other large companies, while they remain immune from trolls, such as Intellectual Ventures and its off-springs, like LodSys.
One solution would be a 2 year expiration on software patents. Another idea would be to demonstrate "substantial" sales for renewals. That would be nice, but I think that when there are big companies and billions of dollars at stake, things aren't so easy. That's the whole point of the article: the SCOTUS members don't have to be re-elected and are not going to be lobbyists after leaving the bench - they actually can do such a thing on principle, that's their whole role.
Please read the article. However, that's not their job. The supreme Court's job is to make a decision based on the laws set on the books. They can't say, "Well, this version of the law would be better, so we'll go with that, but rather "Thus is what he law says". We need to educate Congress. Better yet, we need educated people in Congress.
I would argue that that is in practice their job, especially given the amount of ambiguity, both unavoidable and superfluous, in the legislation-as-written. I actually have a very strong dislike for Scalia because I think that his legal 'originalist' philosophy is pretty much like biblical 'literalism' - it's an interpretation that is a convenient to him and b denies the validity of all other interpretations in an underhanded way.
I find originalism to be the only reasonable way to interpret the document. If the constitution doesn't say what you want it to say, then change it. Once you start changing the meaning of the words you defeat the purpose of having a written constitution. Don't look now, but language, culture, and technology all change.
Change right out from under the most carefully-written of legislation, in fact. Adapting to the now is what I think is the "only reasonable way" to come at the document - and has the advantage of admitting that it's an interpretation, instead of attempting to sneakily de-legitimatize all other interpretations.
But you go ahead and ask James Madison what he thinks about LulzSec. Yes, and so what? There's a huge gulf between legislation, which is meant to be crafted for the needs of the day and can be easily modified, and a constitution, which is a blueprint for how the government functions.
Human nature hasn't changed in the last years. Not one bit. The other interpretations are illegitimate - there's nothing sneaky about it. They're nothing more than cruft added by people who didn't have the votes to actually change the document. In some cases, perhaps. In my opinion, the succinctness and simplicity of the Copyright Clause is almost timeless.
Read Bilski people. Overall it was , but if you read the majority and the dissent, it was on this sub-point: that State Street not a Supreme Court decision is bad precedent, and Benson, Flook and Diehr are good precedent.
Diehr is only muddied because people choose to muddy it. I'm working on an essay that details this now. This was believed to reinforce the invalidity of many software patents.
As the article discussed, Bilski was decided on very narrow grounds; and it relates to business model patents, not software patents. That as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously. I think that it will be very difficult to have serious patent reform for the software industry without having significant effects on other industries.
So while it seems like the software industry is generally behind getting rid of patents, the changes will be very difficult to isolate to software and companies outside the field will likely oppose any significant changes. FWIW, I hope they make significant changes for software patents soon. Can you speculate some companies who would take issue to the abolishment of software patents? Excluding the patent extortion industry, any industry who believes it's hard to define a software patent.
I would imagine it would be anyone, or industry, who has a significant patent portfolio who worries that invalidating software patents would weaken their patent position. Both in dollar terms and legal terms. Yes so there are likely some software companies that might have issues depending on what the changes looked like such as Microsoft, Oracle, IBM not sure if these companies would object or not, just citing companies with large portfolios.
Some non-software companies like pharmaceuticals almost certainly would oppose changes that would affect their ability to exercise their patents. Edit: A better example might be a company like Intel that has a lot of hardware patents. It is potentially difficult to change the patent laws to prohibit software patents without affecting hardware patents.
Eliezer on July 28, prev next [—]. In India we don't have the concept of software patents, unless some sort of hardware is involved. I am guessing that this is way better than the system where all business methods are patentable. This kills innovation. We should all just petition for change.
Yet we still seems to have malpractice lawsuits all the time. Someone should just patent the patent: "conferring a right or title, esp. Finbarr on July 28, prev next [—]. I've been thinking this a lot recently. You can't patent software in the UK and it seems ridiculous that you can in the US.
A simpler solution would involve giving the defendant of patent litigation the option of making their suit winner takes all. All of the court fees within reason are paid by the loser This would keep software patents but reduce frivolous lawsuits.
And make it impossible for the little guy to, for example, sue Microsoft due to the potential huge legal fees. The issue here is that patents are being used for extortion, and none of these cases ever end up going to court.
Maybe what would fix this would be to not allow private entities to pursue patent infringement cases with their own lawyers. Create a Bureau of patent infringement.
Make it so that when a patent is infringed, you file a claim with the Bureau, and they asses validity of patent and assign damages. No litigation, no settlement, no patent lawyers involved. Perhaps we can defeat bureaucratic inefficiency with more bureaucratic inefficiency.
How would that change make it any more difficult for a little guy to sue a big corporation? I think you have missed the part of within reason, Microsoft wouldn't be able to put an individual on the hook for all of their court fees just those that a judge deems valid to pay for the suit. This change would make the patent holder vet the validity of their patent before they can automatically sue, which is the goal we are looking for. A defendant would only exercise the option if they believed the claim to be frivolous for fear of losing in court.
For legitimate cases the parties either go to court or settle. Regulatory capture is the danger there. Som on July 28, prev next [—]. Here, I'll predict the vote: not in favor. This will never happen. Consider a mechanical timer in a washing machine. A timer that produces a novel washing cycle is certainly patentable.
Consider a chain of electromechanical relays that produces the same cycle. Clearly it is just as patentable, and could be covered by a well-written version of the preceding patent. Consider the transistorized version of the preceding, with the relays replaced by transistors. Patentability: ditto. Consider a mask-programmed processor that produces the same cycle. Mask-programmed means the program is hardwired into a metal pattern. Consider a flash-programmed version of the preceding that produces the same cycle.
Consider a volatile memory version of the preceding that produces the same cycle. Why does this matter? Because in the coming age of nanomachines, "software" will frequently be embodied in custom mechanical machines, chemical reactions, interference patterns of light, and so forth.
If software is unpatentable, then neither can you patent the special sauce that turns dirt into nanomachines. Your contrived chain of analogies ends in a total strawman. I think you intended the last item on your list to be pure software, but it's not. It's just an electronic version of the first item.
No one is arguing that a complete electronic timer should not be patentable. The argument is whether the software alone should be patentable. The software by itself is NOT a timer. The timer's software is only the idea of the timer; it is the instructions, the observation of which allow the physical timer to function.
There must still be a physical timer -- an assembly of physical parts that follows programmed instructions to provide a function. That entire assembly is what should be patented. The bare idea of the timer -- the steps that the timer takes while it's working, should not be patentable. That's what the article is proposing. Nowhere in your analogies is bare software addressed.
You have hit the crux of the discussion. I am defining software as a tangible thing, existing as a pattern of matter and fields. It is not abstract, virtual, or ineffable. What you are talking about "pure software" are ideas about the software's principles of operation.
The mathematical and logical ideas by which we understand a process are not patentable, but their tangible embodiment software is patentable. Consider an example of the difference. Prime numbers are abstract ideas that can be used to create difficult-to-solve problems, and thereby used for cryptography.
As abstract ideas, they are not patentable. Someone could embody those ideas in a logic machine like the RSA algorithm and patent that. But somebody else could embody those ideas in an analog laser interferometer and patent that, without conflict with the other patent. And that is exactly what is covered by a valid software patent. Such patents claim something like "Claim 1: A stored-program logic machine, configured to provide the process described in claim 2.
A well-written patent will cover all variations of the software that are "obvious" to "a person skilled in the art".
This generality is why all patents are so painful to evade, not just software patents. The U. That's how it should be, but it's not, and that's the problem.
Officially, patent law isn't supposed to allow patents on "abstract ideas", but due to incomplete guidance from the courts, the requirements have been diluted to nothing. Right now in the U. Most software patents specify only a "computing device" on which the software is used.
Well gee whiz, guess what that covers? You got it, everything! It's useless language; there's no narrowing, no added specificity. It would be just as usefull to specify "software in Her Majesty the Queen's service". A patent on a laser interferometer that encodes instructions is no longer a software patent; that would be covered by a mechanical patent. And this patent certainly would be in conflict with any software patents that covered the software encoded thereby, if the interferometer were ever put to use in a product.
So which is it? A patent on a laser interferometer that encodes instructions is no longer a software patent; I was talking about interference machines that use the wave properties of light to do computation without the use of digital logic. With these machines, abstract mathematical approaches are reduced to practice by means other than software.
The software patent does not somehow magically fence off an area of abstract thought. What it fences off is a particularly convenient and valuable area of concrete machinery. Adding magic words like "computing device" or "system and method" to a patent application has no real effect, because ALL software is run on a "computing device" or a "system".
This does nothing to narrow the scope of a patent, or to tie it to any distinct physical implementation. The ONLY distinct entity in such a patent is the algorithm. This will become immediately clear to you if you read any number of software or business method patents.
You seem to have created your own alternate reality here, where software patents are necessarily like mechanical patents. They are not. Any patent that covers your thingamajig in its physical manifestation will have to be a proper mechanical patent, complete with design drawings.
As a separate matter, the computation performed by the machine can be expressed algorithmically, and that algorithm is what could be covered by a software patent, completely apart from whatever machine implements it. That patent can then be asserted against any other use of that algorithm regardless of the physical system that uses it. Have you really not ever read a software patent?
Go look one up; maybe start with one of the patents on LZW, or maybe amazon's 1-click patent. This argument is simply wrong. You could use the same type of "progression" to get, at the root, basic theoretical physics or pure math. Yet, ideas and concept from these two fields are not patentable. But his examples are all physical embodiments that perform a tangible real-world function. There's no continuous progression between those and pure math. Natsu on July 29, parent prev next [—].
WalterBright on July 28, prev next [—]. Yes, please. This is a simple minded piece. It is so riddled with half digested bs I don't even know where to start with it. I guess I'll just pick on something so blindingly obvious that anyone with more than one braincell which apparently does not include the author would already find beyond question.
Copyright protects the expression of an idea. This is an absolutely excellent form of protection when the expression of the idea is a huge part of its value. A piece of music, or a novel IS its expression. If you rewrite James Joyce's Ulysses in your own words you have lost Joyce's expression which is precisely what people value in the reading.
Hence a work in which the expression is critical to its value is well protected by copyright. Software is not such a work. If someone spends years refining an invention and someone else reverse engineers it and yet changes the expression of the work copyright is no protection whatsoever because no-one using the work gives a rat's ass about the underlying expression. The idea that copyright is a meaningful protection for software is so laughable that anyone daft enough to take the idea seriously is clearly so appallingly badly informed that they don't deserve to be taken seriously.
What if I was the first person to write a murder mystery in which the butler did it? Could I patent that plot device so no one else could use it? The point of copywriting code is not because people care so much about great coding style or variable names - it's to prevent the laziest forms of copying.
If someone wants to invest the time and effort to reverse-engineer and rewrite a piece of software without copying any of the original code, the cost of doing so is sufficiently prohibitive that it might be easier just to rewrite it from scratch. Clearly anyone who is willing to release software under the GPL does not agree with you about the meaninglessness of copyright protection for software.
You would be amazed how many smart, and well-educated people have taken that copyright license, and others like it, seriously. So it follows from your argument that software patents currently promote innovation?
If so, can you please make this logic more explicit? Copyright protects translations and adaptations too. Hacker News new past comments ask show jobs submit.
CDRdude on July 28, root parent next [—] Is that accurate in this case? MetaMan on July 28, prev next [—] As a software programmer I don't agree with this view that software patents are wrong in principle.
MetaMan on July 29, root parent next [—] akeefer. Natsu on July 28, parent prev next [—] They're not making a Constitutional argument here, but suggesting that the courts fix some decades-old precedent that went astray starting with Diamond v.
Natsu on July 29, root parent next [—] That's a good summary. WiseWeasel on July 28, parent prev next [—] Congress would appear incapable of any policy to the detriment of the few large software companies that benefit from the existence of software patents. Figs on July 28, root parent next [—] "In a sense, all possible computer programs for a given architecture are implied in that architecture, even if they haven't been written yet - just like all possible novels are implied by the letters of the alphabet, even if they haven't been written yet.
Eliezer on July 28, prev next [—] "How to define personhood is a legislative issue, and in the U. We get a lot of requests for help here at EFF, with our tireless intake coordinator being the first point of contact for many. Instead, users just need an answer to a simple question: what does this company WPL , have been feuding for years in multiple courts in the U. Registration for this free online event is here.
The possibility that All because When it comes to software, it seems that no matter how many times a company loses on a clearly wrong copyright claim, it will soldier on—especially if it can find a path to the U. Court of Appeals for the Federal Circuit. The Federal Circuit is supposed to be almost A knife was stuck in antitrust in the s and it bled out for the next 40 years. By the s, the orthodox view of antitrust went like this: horizontal monopolies are bad, but vertical monopolies are efficient.
In other words, it was bad for consumers when one company Facebook recently banned the accounts of several New York University NYU researchers who run Ad Observer , an accountability project that tracks paid disinformation, from its platform. This has major implications: not just for transparency, but for user autonomy and the fight for interoperable software.
Although Google, Apple, Facebook, and Amazon and perhaps Microsoft are the largest companies and therefore the ones generating the bulk of The giant record labels, their association, and their lobbyists have succeeded in getting a number of members of the U.
House of Representatives to pressure Twitter to pay money it does not owe, to labels who have no claim to it, against the interests of its users. Indeed, the modern software patent era began in the s, when the Federal Circuit began to loosen early Supreme Court rules against patenting software.
In a key ruling, the Federal Circuit upheld a patent on a method for managing mutual funds with software. Like the Digitech patent, it merely involved manipulating information about market prices to generate additional information buy and sell orders.
It's hard to imagine the court reaching the same conclusion today that it did in The Supreme Court is in an awkward position when it comes to software patents. There's mounting evidence that patents are bad for the software industry, and the court's own precedents, dating from the s, cast doubt over the patentability of software. Yet invalidating software patents worth billions of dollars would be disruptive and controversial move, and courts hate to make waves.
So the Supreme Court has taken an incremental approach. Its recent decisions have signaled that the Federal Circuit has been too lax about granting software patents without establishing a clear standard for when and if software can be patented.
Yet the Federal Circuit seems to be reading last month's ruling as a significant new restriction on software patents. That's significant not just because other patents are likely to be invalidated in the future, but also because it creates greater uncertainty about the validity of all software patents.
It's hard for patent holders to predict whether their software patents will be invalidated in court. But the threat of suffering Digitech's fate will make all software patent owners more reluctant to enforce their patents aggressively. Correction: This post originally stated that the decision was made this week, instead of last Friday. Also, I described eigenvectors as an algorithm. In fact, the Pagerank algorithm uses eigenvectors. Our mission has never been more vital than it is in this moment: to empower through understanding.
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