can you imagine if every RFC had been turned into a patent where we would be today?
i think this alone should be telling of how every software patent rides on the goodwill of a culture of open source and standardization that has existed for decades (when true innovation was taking place).
it's complete insanity that patents can be granted for inventions which rely so fundamentally on an infrastructure which could have only been built so successfully - and explicitly - without them.
A substantial part of the work that resulted in the RFCs happened pursuant to federal funding before December 1980. This is significant because prior to December 1980, the enactment of the Bayh-Dole Act, inventions developed in federally funded programs had to be assigned to the government. Therefore, there was little incentive to patent those inventions.
If the developments had happened today, at MIT, BBN, etc, they would be patented.
IANAL, but I'm surprised by the EFF's amicus brief. A large portion of it is an enumeration of the deleterious effects of NPE "trolls", but from my understanding of the case, it's purely about establishing better guidance on what is or isn't patentable under section 101. SCOTUS seems unlikely to be moved by the pain caused by NPE's, when Congress could readily change how patent infringement or licensing works for PE's vs. NPE's if they considered it a serious problem.
Obviously they still got the cert, though not of the particular case they wanted.
I'm interested to hear how some of the much brighter legal minds on hn would handicap this case. My uneducated guess is that the patentability of software will largely survive, but the Court will try to formulate a test designed to exclude claims that would be clearly too abstract were they not "instantiated" on a computer. Something like the Amazon 1-click patent would probably survive, while the Alice patents would not.
Last time the patentability of business methods came around was 2010's Bilski v. Kappos case [0]. Software was discussed as a related matter.
The Supreme Court rejected any specific test as dispositive for patentability. The Court of Appeals for the Federal Circuit [1] had advanced a "machine or transformation" test as the standard for abstraction and unpatentability. That test would have required that a patent specify a specific machine or a transformation of a form or state of matter somehow in order to be sufficiently concrete. It was a vague test that would have allowed almost anything not as awful as Bilsky's application, which essentially claimed various century old hedging strategies whenever implemented on a computer.
The Supreme Court ruled 9-0 that the test was an indicator of abstraction but not definitive. It also ruled 9-0 that Bilsky's patent was garbage.
The patentability of business methods in general was discussed in the opinions. The great John Paul Stevens [2] wrote the dissent in Diamond v. Diehr [3] thirty years prior explaining why and how software patents were terrible and should never be allowed, but only gained four votes. He wrote an opinion explaining again why software patents should not be allowed and gained four votes again in Bilsky in a court where every member but him had been replaced in the interim.
Unfortunately Stevens is retired (it's well earned -- he's 93) and the leading intellectual property expert on the court is now Breyer. Breyer wrote the dissent against effectively permanent copyright terms in Eldred v. Ashcroft. Sotomayor and Ginsberg have also been in the Stevens camp on patentability. New Justice Elena Kagan usually votes with those three. So we can hope for four votes for software freedom once again.
There were also four votes in Bilsky for patenting software, though not with any visible enthusiasm. They were Roberts, Alito, Kennedy, and Thomas.
Finally Scalia refused to join just one opinion and split between the two without addressing the serious ongoing questions of patentable subject matter. So the final tally was 4-1-4.
The CAFC split 5-5 on the Alice [4] case the Supreme Court just decided to hear. The split was similar to the Supreme Court in Bilsky and did not resolve any simmering issues because of the even split.
Note that even the Google and EFF briefs on the Alice case didn't suggest outright abolition of software patents at the CAFC. Justice Stevens may have seemed like a lonely crusader by 2010. It may be that the enemies of our industry have gained so much power in Washington and the patent bar that the best we can hope for is a slow, slow rollback. Certainly there are a lot of people making billions without the trouble of actually building anything who can spend their efforts to keep the racket going. Without the need to make things, they can lobby full time to continue getting rich at the expense of innovators and startups and the public through software patents.
The most likely result here is a 4-1-4 split again, unless a new way to appeal to Scalia can be found. Real progress from the Supreme Court probably requires a new justice; the current pattern indicates that pragmatic Democratic appointee is much more likely to abolish software patents and a movement Republican appointee is most likely to definitively endorse them, but individual justices can always assert their own visions once appointed.
The EFF said that the Federal court had been influenced by possible negative consequences of mass invalidation of patents [1]: Warning of a 'free fall of the patent system,' Judge Moore wrote: 'Let’s be clear: if all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents.'
Clearly they are concerned to reduce the force of this kind of argument on SCOTUS.
I doubt they would even go that far. It would take a very strong overpowering argument why software is an abstract idea, one that has not been argued before in the many cases that touched on software patents. I think they will make a modest attempt to make things more clear cut, but given the history of such cases in lower courts, there is a decent possibility that they will make it more cloudy in the attempt. And given the uncertainty and the absence of a strong new argument, the natural lean is not to upset the status quo of the thousands of issued software patents. So much ado about nothing in the end.
The actual link above links to a number of amicus briefs urging the court to grant (or not grant) review, and would be good reading to understand the issues in the case.
The intellectual property laws generally reject this "sweat of the brow" doctrine.[1] The idea is, that someone should be able to get a patent for something that results from a flash of insight rather than years of expensive R&D.
I think rejection of this doctrine is a grave mistake as applied to patents. Essentially, it fundamentally misunderstands the nature of innovation in the 21st century. A new invention does not happen because someone has a clever idea one day while mulling over a problem during lunch. That may have been true in the early 20th century and earlier, but it's not true today. Today, invention is driven by research labs staffed by expensive PhDs using even more expensive capital equipment. The purpose of patents in the 21st century is to protect and be able to transact in the results of this capital-intensive R&D.
E.g. Adonit has a new iPad stylus that's 1.9 mm versus the 6 mm typical for iPad styluses (https://adonit.net/jot/script). The capacitive touch matrix on the iPad normally cannot pick up on such a narrow point, so they use some active sensing technology that relies on measuring the electronic field emitted by the capacitive matrix and feeding that back to special software over Bluetooth. For this they have a patent. This was not a flash of insight. This was the result of measuring EM field strength with expensive equipment, buying lots of iPads to test product variability, doing lots of experiments and iterating the design. The purpose of a patent here is to keep companies from free-riding on all that R&D, not to reward anyone for a flash of insight.
By rejecting sweat of the brow doctrine in the context of patents, patent law has become divorced from its underlying economic justification: the prevention of free-riding. The magnitude of the disincentive created by free-riding depends very much on the capital investment that went into the invention.
[1] Sweat of the brow doctrine is more typically used in the context of copyright, but is applicable to a degree for patents as well. The doctrine has opposite effects in the two contexts. In copyright, it has been used to reject copyright-ability for things like phone books that might take work to compile, but aren't "original works." However in patents, it has been used to justify granting patents for "inventions" that weren't a lot of work to invent.
I'm adamantly against software patents, however, when it comes to chemistry patents, I know it's not a rubber stamp process. It can take a couple years to get a patent, and lots of patents are rejected. A lot of the process involves the examiner stripping out claims that are invalid (the parties seeking the patents generally want them to be broader than they really should be).
I think a bigger problem is that a well-funded entity can keep resubmitting rejected patent applications for re-examination. I think there needs to be a limit on how many "appeals" you can get.
From what I have heard, and this might be wrong since I am no expert on the matter, re-examinations creates a perverse incentive for patent-examiners to accept patents since their job-performance is rated on how many patents they process.
[+] [-] leeoniya|12 years ago|reply
i think this alone should be telling of how every software patent rides on the goodwill of a culture of open source and standardization that has existed for decades (when true innovation was taking place).
it's complete insanity that patents can be granted for inventions which rely so fundamentally on an infrastructure which could have only been built so successfully - and explicitly - without them.
[+] [-] rayiner|12 years ago|reply
If the developments had happened today, at MIT, BBN, etc, they would be patented.
[+] [-] salient|12 years ago|reply
http://www.techdirt.com/articles/20130503/17414322946/discus...
[+] [-] twoodfin|12 years ago|reply
Obviously they still got the cert, though not of the particular case they wanted.
I'm interested to hear how some of the much brighter legal minds on hn would handicap this case. My uneducated guess is that the patentability of software will largely survive, but the Court will try to formulate a test designed to exclude claims that would be clearly too abstract were they not "instantiated" on a computer. Something like the Amazon 1-click patent would probably survive, while the Alice patents would not.
[+] [-] WildUtah|12 years ago|reply
The Supreme Court rejected any specific test as dispositive for patentability. The Court of Appeals for the Federal Circuit [1] had advanced a "machine or transformation" test as the standard for abstraction and unpatentability. That test would have required that a patent specify a specific machine or a transformation of a form or state of matter somehow in order to be sufficiently concrete. It was a vague test that would have allowed almost anything not as awful as Bilsky's application, which essentially claimed various century old hedging strategies whenever implemented on a computer.
The Supreme Court ruled 9-0 that the test was an indicator of abstraction but not definitive. It also ruled 9-0 that Bilsky's patent was garbage.
The patentability of business methods in general was discussed in the opinions. The great John Paul Stevens [2] wrote the dissent in Diamond v. Diehr [3] thirty years prior explaining why and how software patents were terrible and should never be allowed, but only gained four votes. He wrote an opinion explaining again why software patents should not be allowed and gained four votes again in Bilsky in a court where every member but him had been replaced in the interim.
Unfortunately Stevens is retired (it's well earned -- he's 93) and the leading intellectual property expert on the court is now Breyer. Breyer wrote the dissent against effectively permanent copyright terms in Eldred v. Ashcroft. Sotomayor and Ginsberg have also been in the Stevens camp on patentability. New Justice Elena Kagan usually votes with those three. So we can hope for four votes for software freedom once again.
There were also four votes in Bilsky for patenting software, though not with any visible enthusiasm. They were Roberts, Alito, Kennedy, and Thomas.
Finally Scalia refused to join just one opinion and split between the two without addressing the serious ongoing questions of patentable subject matter. So the final tally was 4-1-4.
The CAFC split 5-5 on the Alice [4] case the Supreme Court just decided to hear. The split was similar to the Supreme Court in Bilsky and did not resolve any simmering issues because of the even split.
Note that even the Google and EFF briefs on the Alice case didn't suggest outright abolition of software patents at the CAFC. Justice Stevens may have seemed like a lonely crusader by 2010. It may be that the enemies of our industry have gained so much power in Washington and the patent bar that the best we can hope for is a slow, slow rollback. Certainly there are a lot of people making billions without the trouble of actually building anything who can spend their efforts to keep the racket going. Without the need to make things, they can lobby full time to continue getting rich at the expense of innovators and startups and the public through software patents.
The most likely result here is a 4-1-4 split again, unless a new way to appeal to Scalia can be found. Real progress from the Supreme Court probably requires a new justice; the current pattern indicates that pragmatic Democratic appointee is much more likely to abolish software patents and a movement Republican appointee is most likely to definitively endorse them, but individual justices can always assert their own visions once appointed.
[0] http://en.wikipedia.org/wiki/Bilski_v._Kappos
[1] http://en.wikipedia.org/wiki/John_Paul_Stevens
[2] http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_...
[3] http://en.wikipedia.org/wiki/Diamond_v._Diehr
[4] http://en.swpat.org/wiki/CLS_Bank_v._Alice_(2012,_USA)
[+] [-] tesseractive|12 years ago|reply
[+] [-] chalst|12 years ago|reply
Clearly they are concerned to reduce the force of this kind of argument on SCOTUS.
[1]: https://www.eff.org/deeplinks/2013/05/whats-stake-cls-bank-s...
[+] [-] not_that_noob|12 years ago|reply
[+] [-] jakewalker|12 years ago|reply
http://www.supremecourt.gov/orders/courtorders/120613.zr_4g1...
The actual link above links to a number of amicus briefs urging the court to grant (or not grant) review, and would be good reading to understand the issues in the case.
Links to Coverage:
http://www.scotusblog.com/2013/12/court-to-rule-on-patent-ri...
http://www.reuters.com/article/2013/12/06/us-usa-court-softw...
[+] [-] baldfat|12 years ago|reply
1) Something needs to be a true innovation to be a patent 2) The process should take a lot of man hours.
I don't feel either of those things happen due to shortage of staffing and a wild everything is possibly patentable.
[+] [-] rayiner|12 years ago|reply
The intellectual property laws generally reject this "sweat of the brow" doctrine.[1] The idea is, that someone should be able to get a patent for something that results from a flash of insight rather than years of expensive R&D.
I think rejection of this doctrine is a grave mistake as applied to patents. Essentially, it fundamentally misunderstands the nature of innovation in the 21st century. A new invention does not happen because someone has a clever idea one day while mulling over a problem during lunch. That may have been true in the early 20th century and earlier, but it's not true today. Today, invention is driven by research labs staffed by expensive PhDs using even more expensive capital equipment. The purpose of patents in the 21st century is to protect and be able to transact in the results of this capital-intensive R&D.
E.g. Adonit has a new iPad stylus that's 1.9 mm versus the 6 mm typical for iPad styluses (https://adonit.net/jot/script). The capacitive touch matrix on the iPad normally cannot pick up on such a narrow point, so they use some active sensing technology that relies on measuring the electronic field emitted by the capacitive matrix and feeding that back to special software over Bluetooth. For this they have a patent. This was not a flash of insight. This was the result of measuring EM field strength with expensive equipment, buying lots of iPads to test product variability, doing lots of experiments and iterating the design. The purpose of a patent here is to keep companies from free-riding on all that R&D, not to reward anyone for a flash of insight.
By rejecting sweat of the brow doctrine in the context of patents, patent law has become divorced from its underlying economic justification: the prevention of free-riding. The magnitude of the disincentive created by free-riding depends very much on the capital investment that went into the invention.
[1] Sweat of the brow doctrine is more typically used in the context of copyright, but is applicable to a degree for patents as well. The doctrine has opposite effects in the two contexts. In copyright, it has been used to reject copyright-ability for things like phone books that might take work to compile, but aren't "original works." However in patents, it has been used to justify granting patents for "inventions" that weren't a lot of work to invent.
[+] [-] bzalasky|12 years ago|reply
[+] [-] asabjorn|12 years ago|reply
From what I have heard, and this might be wrong since I am no expert on the matter, re-examinations creates a perverse incentive for patent-examiners to accept patents since their job-performance is rated on how many patents they process.
[+] [-] shmerl|12 years ago|reply
[+] [-] xutopia|12 years ago|reply
[+] [-] dragonwriter|12 years ago|reply