Supreme Court Makes Two Good Decisions On Patent Law

from the good-news-for-innovation dept

This morning the Supreme Court came down with two decisions about patent law that both take small, but extremely important, steps towards reigning in some of the worst abuses of the patent system. In both cases, it's disagreed with the position taken by the Appeals Court for the Federal Circuit (CAFC). This isn't a huge surprise, as many observers figured that the Supreme Court's recent interest in all sorts of patent cases meant that the justices weren't at all happy with the way CAFC was moving. This is a good thing, as the past twenty-five years or so of CAFC is a big part of why the patent system has veered out of control. For those who don't get into the details of these things, effectively CAFC was taken over by patent attorneys who pretty much felt that since patents were "good," more patents were "better." They continually expanded what could be patented and how much power patent holders had. This, in turn, meant that many more people and companies started filing for many more patents. While the Patent Office complains that it can't handle the load of patents, rather than hiring more examiners, the solution may simply be in reining in the overwhelming power handed to patent holders by CAFC. Today the Supreme Court took another step in that direction.

The first case was between AT&T and Microsoft, where it was already admitted that Microsoft had infringed on the patent in question. The legal question at stake was whether or not copies of Microsoft Windows outside the US should be counted when calculating the damages. While, normally, patent infringement rules only cover within a country, there is a rule against shipping the components outside the country to be assembled somewhere else just to get around patent infringement rules. So the real question was whether or not shipping a master copy of the software abroad was shipping the "components." The Supreme Court ruled 7 to 1 saying that it was not shipping components -- and that software was more closely related to a blueprint than actual components.

This ruling is likely to cause a number of things to happen. Back when this case was first being presented to the court, one of the amicus briefs tried to show that software shouldn't be patented at all. Since this wasn't the key argument in the case, it seemed like a wasted brief, but the ruling here actually may open up the possibility for a new case that argues exactly that. That is, the court has now made it clear that they consider software to be more of a blueprint than a component, and someone else can now make the argument that, based on this, software should not be patentable. This certainly could get interesting. However, the court did also suggest that Congress may want to clean up this "loophole" so watch out for someone in Congress to slip in a ruling keeping software patents in place before the court has a chance to make more of a statement on this. More immediately, this may help Microsoft lower the amount it needs to pay Alcatel-Lucent in the separate MP3 patent lawsuit -- since approximately half of the $1.5 billion award was based on overseas sales.

The second ruling may be even more important. It's the decision on the Teleflex v. KSR case concerning the obviousness test in patents. Once again, the Supreme Court has smacked down CAFC, saying that the lower court had gone too far in embracing an incredibly strict standard in determining obviousness. This is tremendously important, as the lower court's "test" for obviousness barely exists at all. Effectively, the only thing looked at is prior art, when the law is clear that patents need to be on processes that are both new and non-obvious. If this allows the courts and the patent office to start actually looking at the obviousness of patents, it could help get rid of plenty of really bad patents.

These two rulings, combined with last year's ruling that automatic injunctions don't always make sense for patent infringement are steps in the right direction. The Supreme Court is clearly recognizing that patent law has spiraled out of control and reached an unconstitutional level, where they're being used to hinder, rather than promote, innovation. It's great to see the court now reeling in these abuses, but there's still plenty more to be done before we've cleared out the problems of the patent system. The good news is that the Supreme Court is clearly looking at the issue and clearly recognizing that the constitutional purpose of patents is to promote innovation. As Justice Kennedy noted in that Teleflex ruling: "Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may... deprive prior inventions of their value."


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Ajax 4Hire, Apr 30th, 2007 @ 10:55am

    Renew my faith in the court system to

    make a decision that actually makes sense also.

    Good law and good sense do not always go hand in hand.

    I am a little guy.
    I am glad that the US courts have a slant toward the little guy but I am also tired of other little minded people using the court to redress some perceived indescretion.

    I am glad that the US has a patent system that makes it easy for the little guy to protect their IP. But I believe the little minded people have gone too far in trying to patent small obvious and petty ideas.

    If this keeps up it will put a chill on good ideas getting out into the public. The courts need to protect themselves and the public from this patented absurdity.

    The future rides on the continuous wave of good ideas.

     

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

  2.  
    identicon
    Anonymous Coward, Apr 30th, 2007 @ 10:55am

    Wow, finally some good news from somewhere...

     

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

  3.  
    identicon
    sam, Apr 30th, 2007 @ 10:55am

    yo mikey!!!

    still on the rant against patents ehh!!

    on a serious note. if you show me a patent, and i'm reasonably knowledgable in the art/area of the patent, why wouldn't i state that "doh" of course it's obvious!!

    now.. if you kind of describe that patent.. and then have me describe how to do it.. maybe that might work.. but i seriously doubt it..

    in fact, i'm not sure what "obvious" means when it comes to innovation... what might not be obvious to me, might be quite obvious to you...

    let the mgs begin...

     

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

  4.  
    identicon
    Ajax 4Hire, Apr 30th, 2007 @ 10:59am

    Like in the movie "Dogma"

    Rufus: Crisis of faith over? Beth: Yes.

    Rufus: Now do you believe?
    Beth: No, but I have a good Idea.

    a good idea.

     

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

  5.  
    identicon
    Anonymous Coward, Apr 30th, 2007 @ 11:33am

    Re: Like in the movie "Dogma"

    What? Is Alito pregnant?

     

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

  6.  
    identicon
    Richard Ahlquist, Apr 30th, 2007 @ 12:03pm

    Sam, sam, sam....

    The second case today is a perfect example. There are things called sensors, that can detect things about people. In the case mentioned above a sensor was used to determine a persons size and adjust the pedals in a car accordingly. In this case there was prior art to determine measurements using a sensor, and there was prior art for adjustable pedals using manual motorized means.

    Combining them isn't and shouldnt not ever have been patentable. Its akin to taking a wheel and granting a patent for every new device that its been attached to. Is it obvious to put 4 wheels on a box and try to roll it around after someone put 4 wheels on a platform and did the same, why yes that would be an evolutionary step.

    Now take speaker design, the basic design of a speaker is a coil, a cone and a magnet all attached to the 'basket'. It hasnt changed for decades. In the 40's or 50's a company came up with the idea to mount the magnet inside a plastic plug about the size of a hockey puck, then mount the coil and a screw hole on the opposite side. The invention was what became known as an audio transducer. Mount said device to a screw/stud and turn that surface into a speaker, was it innovative? Yes I believe so and so would most others.

    Fast forward to a couple years back when some company produced something similar in design except instead of the screw boss mount configuration they used a suction cup. Was that innovative? Not at all. It was simply a new mounting that could have used prior art components to build it in a slightly different fashion. Did they get a patent? Yes they did I believe.

    This is how drug companies keep patents alive on their medications. Take the chemical known as Cipro, its an antibiotic. Combine it with another medication in an Otic soloution and you have a new patent! like this "What is ciprofloxacin; dexamethasone ear suspension?
    CIPROFLOXACIN; DEXAMETHASONE (Ciprodex® Otic) is used to treat ear infections. Ciprofloxacin kills certain bacteria or stops their growth. Dexamethasone stops the inflammation and itching caused by the infection. Generic ciprofloxacin; dexamethasone ear suspension is not available."

    Why is it not available? Because while the patent for Cipro was granted in 1994 and would have and did expire in the early 2000's Bayer reformulated the delivery methods to prevent generics. See http://en.wikipedia.org/wiki/Ciprofloxacin for more information.

    This is why we need a new patent system that comprises people in the fields in which a patent is created to judge obviousness. Just because I put a wheel on a pogo stick doesn't mean I should get a patent, maybe just a pat on the back. Just because someone takes a technology like on the fly audio compression and combines it with a TCP/IP network doesn't mean they should be able to patent all of VOIP.

     

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  7.  
    identicon
    Anonymous Coward, Apr 30th, 2007 @ 12:49pm

    Re:

    "on a serious note. if you show me a patent, and i'm reasonably knowledgable in the art/area of the patent, why wouldn't i state that "doh" of course it's obvious!!"


    If you're skilled in the art, and think "hey, that's a great idea. I never would have thought of doing that!" then perhaps it's a good patent.

    If you're skilled in the art, and think "Doh! Of course it's obvious!" then perhaps the patent should not have been granted at all.

    If you're skilled in the art and, when presented with the same problem you think up substantially the same solution without ever having looked at the patent, I would argue that the idea is obvious and should never have been granted a patent.

    This is the situation with the Linux kernel; kernel programmers have a deliberate policy of _never_ looking at patents or any non-free code, yet there are (according to one study) two or three hundred possible patent violations. All of those patents should be ruled invalid on the basis that they were probably too obvious to begin with, since we have at least one example where a programmer with no reference to the patent came up with basically the same solution.

    There's also the argument that patents are only supposed to cover "inventions" and never "methods" or "processes" or "mathematical formula" which better describes software.

     

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

  8.  
    identicon
    sam, Apr 30th, 2007 @ 1:43pm

    yo.. #7...

    with regards to linux, and others, who try (and sometimes often succeed) to develop without ever looking at someone else's code, the fact that they might come up with something that was in an original patent in no way states that the original patent should be invalid... it might be the case that in order to solve a given problem, there might only be a handful of elegant/minimal solutions.

    the fatc that i get to a "solution" 1st, and then patent it, doesn't give you the right to come along, and somehow arrive at the same/similar conclusion, and then try to invalidate my patent...

    if this is the case, then you might have the ability for every company that runs into a situation where another company's patent causes them problems, the company can create a clean room scenario. if the clean room scenario generates a solution, you get to scream that the patent shouldn't have been created...

    that's not quite how the game works...

    but it would be interesting if it did...

    peace..

     

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

  9.  
    identicon
    Anonymous Coward, Apr 30th, 2007 @ 2:08pm

    For the record, it's "rein in," not "reign in." It's a horse-riding metaphor.

     

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

  10.  
    identicon
    Anonymous Coward, Apr 30th, 2007 @ 3:27pm

    One person's obvious is another person's 'never in a million years' . If something is explained well by a skilled writer, even the most complex idea can look easy and obvious.
    To say "well if it seems obvious, it is" is not valid test. It's an armchair general (or justice) test.

     

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

  11.  
    identicon
    Anonymous Coward, Apr 30th, 2007 @ 3:38pm

    What is a current example of non-obvious? 6 patents are all filed within a few month time period, all trying to patent the same idea.

     

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

  12.  
    identicon
    Steve, Apr 30th, 2007 @ 4:00pm

    Re: Re:

    "If you're skilled in the art and, when presented with the same problem you think up substantially the same solution without ever having looked at the patent, I would argue that the idea is obvious and should never have been granted a patent."

    I agree -- and my experience with the PTO, this is how most examiners view it (despite endless claims to the contrary). If an examiner thinks people skilled in the field would view the solution as a natural extension of prior solutions, they'll call it obvious. The common opinion that that's not the case seems to be largely based on people just looking at patent titles -- e.g. "system and method to stream sound over a network" -- and assuming that the claims are as broad as the title, which is never the case. Sure there have been a few very bad patents granted -- but, the problem has been overstated.

    What entrepreneurs who specialize in software technology do not want to happen is for the PTO to start rejecting all software patents. If a software innovation solves a problem that others weren't able to solve as well or as efficiently, then that innovation may very well deserve patent protection. This provides far more incentive for software technologists to innovate and for institutions to support that innovation than would exist otherwise. Just ask Larry Page and Stanford University:

    Method for Node Ranking in a Linked Database (US6285999)
    http://www.arnoldit.com/lists/google-patents/6285999_NodeRanking.pdf

    http://www.arno ldit.com/lists/google-patents.asp

     

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

  13.  
    identicon
    Bob, Apr 30th, 2007 @ 4:35pm

    Court Decision

    When both the Conservatives and the Liberals on the Supreme Court agree on an issue (like this one) then you know they got it right. And you can assume more decisons like this one, are on the way.

     

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

  14.  
    identicon
    Anonymous Coward, Apr 30th, 2007 @ 4:38pm

    Re:

    "the fatc that i get to a "solution" 1st, and then patent it, doesn't give you the right to come along, and somehow arrive at the same/similar conclusion, and then try to invalidate my patent..."

    Yes it does. If it's clear that the same thing keeps getting re-invented independently because it's fairly obvious, even without the incentive of patent protection (or even despite the disincentive of it already being patented) then this doesn't meet the constitutional reason for there being patent protection in the first place "to promote the sciences and useful arts"

    Or as the judge put it;

    "Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may... deprive prior inventions of their value."

     

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

  15.  
    identicon
    Geoff, May 1st, 2007 @ 3:03am

    View from the other side of the Atlantic

    You know what, from the UK side of the Atlantic, this judgement just looks like protectionism - the Supreme court is protecting US "manufacturing".

    Let's say the judgment had gone the other way, that Microsoft did massively infringe the patent by exporting a master copy abroad for reproduction. That would have given Microsoft a huge incentive to put more of their programming divisions outside the US, in countries where the patent(s) in question hadn't been granted. That's bad for the US software market even though it might be good for the world market and possibly the software itself to have less of the programming done in one country.

    So, of course the Supreme Court decided the case the way they did - they have US interests at heart.

     

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

  16.  
    identicon
    Anonymous Coward, May 1st, 2007 @ 4:49am

    Re: Re: Re:

    "I agree -- and my experience with the PTO"

    I agree with everything you said.

     

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

  17.  
    identicon
    Anonymous Coward, May 1st, 2007 @ 4:54am

    I don't agree with the MS decision - Yeah, if MS supplied the other countires with a detailed description of how windows should work, and the other contries had coders write the OS (manufacturer it), then MS's contribution was truly a "blue-print".

    But, for the other countries to just "copy" the master gold disk and say that they manufactured the OS is bull !!!

     

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

  18.  
    icon
    Richard Ahlquist (profile), May 1st, 2007 @ 5:19am

    Re: Re: Re:

    @Steve,

    I would love to see all software patents thrown out. When i first looked into patent law in 1981 you couldn't patent software because it was considered math.

    In the end software is the simple turning on and off of switches. There are only so many ways you can achieve the same goal. If you wanted to create the proverbial "Hello World" program on say the PC hardware palatform, and have the code execute and produce exactly the same results, you can candy coat it however you want, you can use whatever high level language you want, but in the end the underlying functionality will be the same. You are telling the computer what address to flip from 1 to 0.

    Software should never have been patentable. Source code copyrightable, sure, but never patentable.

     

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

  19.  
    identicon
    KillerTofu, May 1st, 2007 @ 5:48am

    RE: Richard Ahlquist

    I like your thoughts.
    You seem like a good guy.

    As for the guy over the Atlantic,
    Of course our courts SHOULD have US interests at heart. They are supposed to help us since they are ours. Geez, what do you expect =P
    Just am happy they actually did help for a change.

     

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

  20.  
    identicon
    norm, May 1st, 2007 @ 10:00am

    Obvious

    Here's one that got tossed out on the "obvious" rule. The weedwhacker. The original inventor patented it. Another manufacturer started making a blatant copy and got sued by the originator. The patent court threw the patent out, saying it was "obvious".

    Motors, driveshafts and string have been around for decades, as have lawnmowers and edgers that used metal blades. Yet no one put the string to the shaft on a motor. it couldn't have been that obvious.


    Norm

     

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

  21.  
    identicon
    Bob, May 1st, 2007 @ 10:09am

    Wow, let's pretend we know what any of this really means!

     

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

  22.  
    icon
    Steve R. (profile), May 1st, 2007 @ 10:11am

    I posted the following on the TLF website: While this decision is a step in the right direction, I still believe that we haven't gotten down to the fundamental issue. The fundamental issue is that concepts cannot be patented.

    What Teleflex could have patented was a device that could read the position of a gas peddle. However, KSR - if it independently developed its own device - would not infringe on Teleflex's patent since the concept and design of using remote sensing has been around for a long long time. For KSR to infringe, they would have had to have used the design drawings of Teleflex.

     

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

  23.  
    identicon
    shonuff, May 1st, 2007 @ 11:56am

    software as a blueprint?

    by definition a computer computes. Try to make a modern PC do anything except POST without an OS and you will see why this ruling is way off. Also, if by logical extension we next argue that software should not be patentable what will happen to the large mega giant software companies like Microsoft, Oracle and the like.

     

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

  24.  
    identicon
    Ki-sama, May 1st, 2007 @ 9:35pm

    Re: Richard Ahlquist

    Uh, if coding various software algorithms were obvious, then everybody would be coding.

     

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

  25.  
    icon
    Steve R. (profile), May 2nd, 2007 @ 7:25am

    Re: Re: Richard Ahlquist

    Algorithms, at the fundamental level, are simply narratives written in a computer language to describe a specific operation. Anyone can write an algorithm. In fact it does not even have to be in a computer language, you can write it in English and give it to a programmer for coding. Simply describing a physical process in narrative form should NOT patentable.

     

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

  26.  
    identicon
    rachel, May 14th, 2007 @ 8:42pm

    but what i want to know is if in strenghend it or iliminates them or weakens them ( ergent )

     

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

  27.  
    identicon
    |333173|3|_||3, Jun 12th, 2007 @ 9:24am

    Re: Re: Richard Ahlquist

    Well, once the program is written as a sufficiently detailed algorithm, anyone with knowlegdge of the required language can code it. It is the development of the right algorythm which is difficult, especially if a language with more low-level features is used, such as C++ rather than Java, where virtually anything you want to do is in the API. Provided with virtually any detailed algorithm, someone moderately competent could write the back-end code. Of course, there are difficuties involved in designing a good GUI, but ther is a mettter of design, rather than of coding itself.

     

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

  28.  
    identicon
    karry, Dec 1st, 2008 @ 4:16am

    Re: Re: Re: Richard Ahlquist

    Now take speaker design, the basic design of a speaker is a coil, a cone and a magnet all attached to the 'basket'. It hasnt changed for decades. In the 40's or 50's a company came up with the idea to mount the magnet inside a plastic plug about the size of a hockey puck, then mount the coil and a screw hole on the opposite side. The invention was what became known as an audio transducer. Mount said device to a screw/stud and turn that surface into a speaker, was it innovative? Yes I believe so and so would most others. Fast forward to a couple years back when some company produced something similar in design except instead of the screw boss mount configuration they used a suction cup. Was that innovative? Not at all. It was laptop AC adapter simply a new mounting that could have used prior art components to build it in a slightly different fashion. Did they get a patent? Yes they did I believe.

     

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

  29.  
    identicon
    motie38, Feb 26th, 2009 @ 5:43pm

    Patents are/should be for devices, not software

    I agree with Richard Ahlquist that patents should never have existed for software. In fact, as I understand it, software patents originally could not exist, but lawyers figured out how to get around the rule by describing the computer hardware within the patent itself, thus making it a "device". Software is a set of instructions given to the computer device in a language it understands. Ultimately, computers understand binary, but we've managed to teach computers other languages closer to human language via translators which translate those languages, basic, c, fortran, c++, etc. into binary. But ultimately, software is a set of instructions given in a language. If I write a text book on accounting to teach a person how to perform accounting tasks, I cannot patent the textbook. I can copyright the textbook. The textbook is a set of instructions written in a language the person reading the book (hopefully) can understand. If I write an accounting program in c++, again, I'm writing a set of instructions to teach the recipient of those instructions how to perform accounting tasks. It's just that in this case the instructions are for a computer instead of a person. But the knowledge and principles of accounting are the same. If I were instructing someone in France, the instructions need to be written in French. If for someone who's language is English, then the instructions should be in English, and if for a computer, then in an appropriate computer language.
    Since copyright is the standard method of legal protection for linguistic works, it should be the standard method for software. And since it's already used for software, why should there be a second method of protection in the form of patents? There shouldn't.

     

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

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