Supreme Court To Review Whether Business Models And Software Are Patentable

from the this-should-be-interesting dept

While not a huge surprise, it’s worth noting that the Supreme Court has agreed to take the Bilski case, which has received plenty of attention. If you don’t recall, last year, the appeals court tried to further define what was patentable when it came to things like business models and software — which many had considered to be a wide open field for patenting since 1998 and the State Street ruling. Of course, there’s been a lot of controversy (and plenty of confusion) over the Bilski ruling, with some insisting that it really wouldn’t impact software and business method patents, and others arguing that it will help kill off many such patents. However, pretty much everyone expected that the Supreme Court (with its recent interest in patent law) would weigh in. So, now we get to go through this battle all over again. Expect a lot of different parties to weigh in on how the Supreme Court should rule. Back when all the amici briefs were filed for the Bilski case, I put up a detailed post about the arguments for and against software patents, and I imagine that what we’re about to see will be even more heated. Hopefully, the Supreme Court doesn’t make things worse.

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Comments on “Supreme Court To Review Whether Business Models And Software Are Patentable”

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Greg says:

Re: "Software" patents

Read it. As a software developer, the answer to Q4 made me laugh out loud:

  • With regard to patents, the situation is different. Infringing a third party’s patent does not necessarily mean deliberately making use of a patented invention. Even if the programmer inadvertently makes use of some pratented invention there is a problem with patent infringement. Programming without having in mind the risk of potential patent infringement is in fact always a matter of negligence.
  • No doubt, if a programmer sits down and starts programming, it might well happen that the code he is writing, when executed on an appropriate computer, may cause infringement of a patent (or even a bunch of patents) of a third party.
  • Normally, producing software code is done by utilising a structured approach: In a first step an abstract solution for the problem to be solved is derived, and in a second step a code text is noted down implementing said abstract solution. During the first step, the risk of patent infringement should be carefully considered.

I’ve worked in the software industry for 17 years and have never once seen a company spend any resources carefully considering the risk of patent infringement during the design phase. Is this guy from this planet? Does he recognize the speed that software development proceeds at? I can see it now: Me: Boss, I’m about to design a piece of software. I think I’ll spend the next six weeks investigating thousands of patents that it could conceivably infringe upon before I start development. Boss: WTF are you talking about? Get it done in a week. I guess we’re all ‘negligent’.

I have, on the other hand, seen software companies spend lots of resources on creating patents on bogus terms to build up a war chest to use in case a competitor hit the company with an infringement claim. Then you respond with a counterclaim. Fun, highly productive work there.

I hate to break it to you, but good developers *always* try to reuse other people’s ideas. Truly novel solutions that are also *necessary* are very rare in the industry. Bad programmers develop novel solutions when there are existing, well thought out, tried and true solutions out there. These types of solutions are what leads to overcomplicated, poor quality software. This is a big reason why OSS is so valuable to software developers today.

Too funny.

Anonymous Coward says:

Re: Re: Re: "Software" patents

Yeah, researchers at MIT wouldnt have bothered inventing RSA and creating one of the hugest revolutions in cryptography a few years after some other dude did independently (who didnt publish it) if they hadn’t had the incentive of the rewards of the patent system dangling that carrot over their heads. This is definitely a prime example of why we need patents. Not.

Anonymous Coward says:

Re: Re: Re: "Software" patents

By your definition, I’d guesstimate 95% of the software industry are ‘code monkeys’. These are the guys writing software for web-based companies, enterprise software houses, software as a service vendors, etc. Just because they’re not creating the next RSA doesn’t mean their work has no value.

Maybe you’re right, none of these places deserve patents because they’re staffed by code monkeys. These are software applications written to solve business problems. The business solution needs to be innovative, but the software itself rarely needs to be, and probably shouldn’t be in most cases.

Anonymous Coward says:

Re: Re: "Software" patents

“Programming without having in mind the risk of potential patent infringement is in fact always a matter of negligence.”

Breathing. You’re not allowed to do that, someone else already thought of that. Walking? That’s patented too. Were practically reaching the point where almost everything we do is someone elses intellectual property. It’s ridiculous and things were advancing just fine before intellectual property started interfering with every aspect of our lives. The more intellectual property interferes with our lives, the less advancement occurs.

Anonymous Coward says:

“During the first step, the risk of patent infringement should be carefully considered. “

So if I independently come up with an idea and someone else coincidentally has a patent on that idea then I’m not allowed to advance that idea. How does this advance innovation? It only hinders it. Practically every thinkable idea is someone elses intellectual property. This only harms innovation.

Steven (profile) says:

A3: The run-time behaviour of a certain computer program cannot be deduced from its text (“code”) alone. The dynamic semantics of the text largely depends on the processor which is assigned to execute the program. In fact, text and behaviour are largely independent from each other [01]:

  • One and the same functionality can be expressed by different texts. For example, the texts of computer programs implementing the RSA asymmetric cryptography algorithm can look quite different when written in C++ or Java. Even when only a single programming language is used, many different texts representing RSA are conceivable.
  • One and the same text can cause many different behaviours if run on different processors. For example, a program carefully written in C++ and implementing said RSA algorithm will perform RSA if run on a C++ processor, e.g. a general purpose computer equipped with a C++ compiler. If the same C++ text is run on another processor, say, on a general purpose computer equipped with a JAVA interpreter or with a PERL interpreter, other things will happen (usually an error message will be generated).

WTF?!? So because the PERL interpreter doesn’t compile C++ that makes software patentable?

As for this part: “The run-time behaviour of a certain computer program cannot be deduced from its text (“code”) alone.” Only if you’re doing things really wrong. The whole point of good readable code is that you can read the code to know what happens.

angry dude says:

Clueless techdirt punks as usual

Hey punks, have you ever heard of FPGAs or ASICs ?

What if I implement my “software patent” in FPGA or betetr yet as an ASIC design ?

Is ASIC software ? Certanly not, it is hardware

So if you want to leave silicon hardware patentable but make software that runs on it unpatentable you are creating a huge conceptual problem without solution
It’s just not doable – there is no clear line between software and hardware implementation
The only solution would be to make all silicon hardware unpatentable but it’s not gonna happen, my dear little patentless punky friends
Have a nice night, fellas

TechDirtLemmingPunk says:

Re: Clueless techdirt punks as usual

I thought the patent is on how the hardware is made.

Similarly, you do not patent a book – you can patent how you make a book. Cut the pages, bind them together, etc. And you do not patent the words within the book. That is what copyright is for. It may be a bad analogy, but its all I got this morning.

Andrew D. Todd (user link) says:

Maybe it is Angry Dude who is Clueless.

A FPGA is a general purpose computer– it is Turing-Complete. If anything, it is more general-purpose than a CPU, albeit not so efficient. Of course, in the long run, processor chips will simply incorporate a certain quantity of FPGA arrays, to be programmed in the usual way for those applications which FPGA is useful for. You know, the same as processors incorporate cache, numeric coprocessors, etc.

As for ASIC’s the persistent problem of ASIC’s is that they are not reprogrammable. If Angry Dude makes a coding error, and defective parts ship, his company will probably not be able to afford to make good on them. The company will probably “stonewall” and eventually go bankrupt. Intel had the assets to ride out things like the Pentium Math Bug, but Intel is a real semiconductor manufacturer, not one of these “fabless” impersonations. It is notable that the leadership of Intel, people like Andy Grove, has traditionally come from the “process” side, not the circuit design side. Even if you look back to Marcian “Ted “Hoff and the first microprocessor, that was an exercise in getting Intel out of the applications design business.

The whole virtue of FPGA’s is that, between a FPGA and a conventional processor, there are very few things which still have to be done in hardware. That is probably what Angry Dude is so upset about.

For a real chipmaker, as distinct from these ersatz “fabless” operations, Open Source and Open Standards are a good idea. They lower the cost of development, and encourage the development of new applications, which means that the chipmaker can sell more chips.

Andrew D. Todd (user link) says:

Maybe it is Angry Dude who is Clueless.

Well, I’m posting under my real name, and there’s a link to my website. You, on the other hand, are posting under a pseudonym… I grant that you aren’t an Anonymous Coward, but you are surely a Pseudonymous Coward, and given the way you abuse your pseudonymity, you are a positive poltroon. Chutzpah!

I’m a historian, and I used to be an anthropologist, and I’m a philosopher of sorts by family osmosis, and an engineer and programmer besides. Before 9/11 and the advent of the internet, I was clearly an academic scholar– now, things have changed so much, and I’m not quite sure.

I don’t work for Intel– or any other semiconductor company. It is just that I prefer to buy a computer which can be programmed to do anything, rather than an electronic device which is locked down to only do certain things. You seem to be going in the opposite direction.

angry dude says:

Re: Maybe it is Angry Dude who is Clueless.

“It is just that I prefer to buy a computer which can be programmed to do anything, rather than an electronic device which is locked down to only do certain things. You seem to be going in the opposite direction.”

I don’t care
I, as well as everybody else who has a stake in this game, will go in any direction which will allow me to get paid for my patented invention
Whether it’s gonna be a programmable DSP chip or ASIC is anyones guess: ask our Supremes – they seem to know everything about programmable DSPs as well as FPGAs and ASICs

Have a nice night

“The fate of all mankind I see is in the hands of fools”
King Crimson

Andrew D. Todd (user link) says:

Maybe it is Angry Dude who is Clueless.

You are saying that you do not care what the customer wants, and that you propose to order the customer to buy a new computer even if he does not want one, so that you can get paid. I am reminded of a Russian actress I once knew, who once said, unthinkingly, that the commissars should compel the people to come to the theater. She had emigrated in the Jewish Emigration of the 1970’s, but she had carried a little something with her, and when she recognized that in America, there isn’t a very great demand for stage actresses, she let her feelings be known. Of course, a really beautiful woman can get away with all kinds of things…

Here is a rather brutal fact. My year of maximum computer expenditure in absolute dollars was 1989, and in inflation-adjusted dollars, it was 1985. Since then, computers have gotten cheaper, faster than I could find new uses. I am writing this on my old computer, my legacy computer, my “don’t-fix-it-if-it-isn’t-broken” computer, which I would estimate has a fair market value of fifty dollars, exclusive of the screen. Word processing and websurfing are not high-data-rate applications. The new computer is for experimenting with things, starting with Linux. I’ve got Blender on the new computer, but Blender is extremely complicated to learn, and I haven’t been able to find the time to really _study_ it, and memorize a couple of hundred different keycodes. I was ahead of the vast majority of the population, but they will catch up, and reach their own level of computer saturation.

The Supreme Court knows who George Villiers, first Duke of Buckingham (1592-1628), was, and, apparently, you do not. He was an approximate contemporary of Michael Romanov, if that puts him in your framework. As the prime minister of England, Buckingham induced the king to grant all kinds of monopolies on the making of common articles to Buckingham and his friends. The first English patent law was a response to Buckingham’s abuses. The evolved consensus of Anglo-Saxon jurisprudence is that special legal privileges should not be granted if there is a reasonable alternative, and that, the broader the legal privilege, the more caution is indicated. You are arguing against four hundred years of constitutional history. Those four hundred years represent the difference between America and Russia. The Justices of the Supreme Court cannot ignore the reality of Open-Source Software, of the fact that very large numbers of people are writing programs and giving them away. There is also an “Open Cores” movement, building up a corpus of Verilog code, development tools, etc. You may say that these are not very good at present, but of course they will get better, just as Open Source Software grew from modest beginnings.,_1st_Duke_of_Buckingham

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