Sneaking The Question Of Software Patents Into The Supreme Court

from the priming-the-pump dept

While there are lots of problems with the entire patent system, the question of software patents is particularly important to those in the tech industry. Many feel that, even if the overall system itself is fine, software patents should not be allowed. For many years, of course, everyone assumed that software patents were not allowed. However, with a skewed and out of context reading of a Supreme Court ruling on patent scope, the Federal Circuit court opened the floodgates by a series of rulings that didn't change the law -- but just alerted the world to the fact that it believed software patents were perfectly legitimate. Thus, began the landrush in the US (for a good history on the topic, by the way, we highly recommend Innovation and Its Discontents). However, the Supreme Court itself never really weighed in on the topic, which potentially leaves it as an open question as to whether or not software patents really are patentable. In the last year or so, the Supreme Court has taken a surprising interest in patent law, suggesting that they've finally realized that the Federal Circuit has gone a little haywire in its interpretation of the patent system. They've looked at things like patent injunctions and patent obviousness (still waiting on that one), but not specifically about whether or not software is patentable.

However, that apparently hasn't stopped one group from trying to sneak the issue into a recent patent case. The specific case is one we discussed before, between AT&T and Microsoft, which focuses on whether or not patent protection expands beyond US borders -- which is an interesting case on its own. However, it opened up an opportunity for the Software Freedom Law Center to file an amicus briefing about the patentability of software. The briefing argues that the lower court decision was based on a ruling saying that software is patentable, while pointing to various Supreme Court precedents about why it should not be covered. It seems unlikely that the Supreme Court will pay much attention to this particular angle at all, but hopefully it will get them thinking about the idea of software patents, and potentially make them more willing to hear a case on that specific subject some time in the future.


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  •  
    identicon
    PhysicsGuy, Jan 4th, 2007 @ 4:38pm

    well...

    i can't wait to hear how the result turns out. in my opinion, software patents are a joke and shouldn't be allowed. as far as patent obviousness goes, if an idea, concept, invention is obvious to someone outside a field, the lay person, then the idea, concept, invention should not be patentable.

     

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  •  
    identicon
    Anonymous Coward, Jan 4th, 2007 @ 5:42pm

    or indeed inside that field

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    PhysicsGuy, Jan 4th, 2007 @ 5:46pm

    Re:

    i have a problem with using that withing the field. due to the natural evolution of knowledge and affects therein, this would lead to no ideas being patentable at all. regardless of the idea you have, someone else in your field has or has had the same idea.

     

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  •  
    identicon
    PhysicsGuy, Jan 4th, 2007 @ 5:47pm

    please excuse all typos and horrible grammar...it's been a celebratory night... :)

     

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    identicon
    Twinkiman, Jan 4th, 2007 @ 6:08pm

    I need to file my patent for variables quickly i guess.....

     

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    identicon
    Andrew Pollack, Jan 4th, 2007 @ 6:59pm

    SCOTUS is about constitutional law. Where is the

    Patent processes are broken. We all agree they are broken. Patenting software really means patenting a logical process and needs to be considered in that way.

    Still, the Supreme Court is there to evaluate case law using the Constitution as its yardstick. Where is the constitutional issue obvious enough to give SCOTUS something really tangible on which to base what needs to be a firm, lasting, unambigous, historical decision?

    Exactly which right does the current system deny? There is no right to be free of stupid business rules. There are rights to property ownership, but logic is much more closely aligned with copyright than with patent. You don't own physical words, you own the copyright on they way you've assembled them. Software is a language, and ultimately will have to be treated as such. What is required, is a more flexible definition of plagiarism.

     

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  •  
    identicon
    John Shearing, Jan 4th, 2007 @ 8:12pm

    Freely Shared Invention

    I don't patent anymore. I just put my invention in the public domain.

    Why?
    1. Because patents only protect corporations with lots of dollars to spend on litigation.
    2. Because corporations will purchase and suppress a patent if the idea competes with their profitable products.
    Even if the new idea will better serve the public or even save lives.
    3.Because human life is wasted by any type of waring including litigation.
    4.Because you can't war over something that everyone has unlimited access to.
    5.Because we should be exploiting information, not each other.
    6.Because we can eradicate lawyers simply by sharing and cooperating with each other.
    7.Because freely sharing ideas is good for all of us.

    You are all welcome to freely use what you find at
    http://www.justodians.org/Inventions.htm

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    John Shearing, Jan 4th, 2007 @ 8:14pm

    Freely Shared Invention

    I don't patent anymore. I just put my invention in the public domain.

    Why?
    1. Because patents only protect corporations with lots of dollars to spend on litigation.
    2. Because corporations will purchase and suppress a patent if the idea competes with their profitable products.
    Even if the new idea will better serve the public or even save lives.
    3.Because human life is wasted by any type of waring including litigation.
    4.Because you can't war over something that everyone has unlimited access to.
    5.Because we should be exploiting information, not each other.
    6.Because we can eradicate lawyers simply by sharing and cooperating with each other.
    7.Because freely sharing ideas is good for all of us.

    You are all welcome to freely use what you find at
    http://www.justodians.org/Inventions.htm

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      misanthropic humanist, Jan 5th, 2007 @ 8:19am

      Re: Freely Shared Invention

      John, I salute you.

      1) Absolutely essential that you make sure your page is mirrored on archive.org and other open advocacy sites that will help maintain our publication. There is a chance that your host/ISP could drop your single webpage, by accident or by malicious influence, leaving you with no record of the disclosure.

      2) How about taking the fight further. Set up a webring or site "Real inventors against patents" or "Publish don't patent" or whatever. Try to find other genuine independent scientists and thinkers and create a network of those who put altrusitim before greed.

      3) Bring in support from other scientists working inside larger organisations. Find other progressive minds who are disaffected by the corporate hijacking of the patent system and who would rather just publish than let their idea rot in patent obscurity until some corporation deigns to buy or steal it.

      4) Add some more vital info to your site or a site you create with other inventors. Study activist sites like boycottriaa.com. Provide links to news articles and studies that substantiate your statements on the fraud and distortion of the patent system, not everybody is aware of the issues.

      5) Explain how publication trumps patents, and how the internet makes the patent system irrelevant, that you are not excluded from capitalising on your work and still have a headstart, that publication prevents anybody patenting the idea to the exclusion of others.

      Good luck with your experiments and work.

       

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    identicon
    Robert Krolik, Jan 4th, 2007 @ 9:16pm

    Response to your Patentability Theory on Software

    Howdy ;;; It seems that you all have unknowingly forgot that Patents generally require accompanying Blueprints describing articles of configured matter describing a device or an Instrument of a Physical nature, as a Musical Instrument . Even a Spitoon will qualify, but an incident of computer programing ? I question your effort to create and believe it to be failure bound . Happy New Year !! Bob Krolik APS Member www.aps.org

     

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  •  
    identicon
    Robert Krolik, Jan 4th, 2007 @ 9:23pm

    Response to your Patentability Theory on Software

    Howdy ;;; It seems that you all have unknowingly forgot that Patents generally require accompanying Blueprints describing articles of configured matter describing a device or an Instrument of a Physical nature, as a Musical Instrument . Even a Spitoon will qualify, but an incident of computer programing ? I question your effort to create and believe it to be failure bound . Happy New Year !! Bob Krolik APS Member www.aps.org

     

    reply to this | link to this | view in chronology ]


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