Be Happy: Software Patents Are Rapidly Disappearing Thanks To The Supreme Court

from the another-one-gone-and-another-one-gone dept

We’ve written a few times lately about the fact that the Supreme Court’s decision in Alice v. CLS Bank seems to have finally broken the dam in getting courts to recognize that most software isn’t patentable. We’ve covered three post-Alice cases where courts cited Alice in dumping the patent as covering unpatentable subject matter. And the numbers keep going up. Tim Lee, over at Vox, has now noted that there are at least 11 such rulings in the past few months, which reject patents, citing Alice. He’s got the list of all 11, but my favorite is the one from just a few days ago, where the court not only rejected the patent citing Alice, but also pointed to the movies Superman III and Office Space. If you hadn’t guessed by now (or if you hadn’t seen those movies), the patent involved shaving a tiny bit off of a whole lot of transactions by “rounding up” and then making use of the extra pennies or fractions of pennies. The court points out that this is an abstract idea, and one that has been around for a long, long time. Simply putting it on a computer is not patentable.

As if slamming home just how important this decision is, former top patent judge Randall Rader, who left the court earlier this year in the midst of an ethics scandal, has apparently spoken out about how awful a decision he believes Alice to have been. Though, he’s even more down on the ruling in Prometheus Labs v. Mayo Clinic, which was where the Supreme Court rejected patents on medical diagnostics, setting up the ruling in Alice, effectively rejecting most software patents. Rader is apparently furious about these decisions:

When asked how he would feel if he were a software developer, he commented: ?I find the landscape for software innovation protection after Alice to be much more disturbing and less encouraging.? He also compared the opinion in Alice to the Supreme Court?s opinion in Mayo v Prometheus which he described as ?probably the single most disappointing case in world patent jurisprudence?.

?It causes me great pain to recognise the worst case in patent law history doesn’t come out of India or Pakistan or Vietnam or China even, it comes from the United States as recently as a few years ago,? Rader stated.

And yet, here in Silicon Valley, where there are plenty of software developers, most seem to be rejoicing about the newly found freedom to innovate without having to worry about being hit by a bogus patent lawsuit (or, at the very least, having a reasonable chance of beating it back, thanks to these decisions).

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Companies: alice, cls bank, mayo clinic, prometheus

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Comments on “Be Happy: Software Patents Are Rapidly Disappearing Thanks To The Supreme Court”

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67 Comments
AricTheRed says:

I guess he has not been following some of the rulings from the FISA court...

if this…

Mayo v Prometheus which he described as “probably the single most disappointing case in world patent jurisprudence”.

…is what the judge has to say, I guess he has not been following some of the rulings from the FISA court…

Or that one about cops reccolections trumping recorded video evidence.

Anonymous Coward says:

Re: I guess he has not been following some of the rulings from the FISA court...

if this…

Mayo v Prometheus which he described as “probably the single most disappointing case in world patent jurisprudence”.

…is what the judge has to say, I guess he has not been following some of the rulings from the FISA court…

Or that one about cops reccolections trumping recorded video evidence.

Uh, not to be nit picky, but he said the worst ruling in PATENT jurisprudence, not the worst ruling ever.

Not that I agree with him, because he’s full of crap, but lets at least stick to legitimate attacks upon his statements. we don’t need to set him up as a strawman.

hij (profile) says:

Down on the coding floor

We should have people on the bench from all walks of life. When you have judges who do not understand what people actually do then you get a skewed point of view. Code and algorithms are not some majestic device that is made from some unique construction. It is something that flows through the application of basic principles with small variations to solve specific problems. It is not difficult to replicate and is not rare. I am so glad that no one ever tried to patent a for loop. The computer industry would have been dead for two decades.

Cdaragorn (profile) says:

Rounding up?

Awesome news. I’m a software engineer who has been trying to build some things on my own for some time now and I can’t begin to see how anyone thinks this has made things more difficult for me. I feel like I can finally breathe a little.

One thing, though. How does one shave amounts off of transactions by rounding up? Sorry, but that’s really getting to me :).

Mark Syman (profile) says:

Re: patent law

Be careful of what you hope for. Patent attorneys just might want to become divorce attorneys. Next thing you know, you get a petition for marital dissolution, you look up the attorney, and find out the attorney used to work in patents and is now asking the judge for all of your money and your business ownership. Good luck with that.

I bet you don’t think that could ever happen.

Anonymous Anonymous Coward says:

Re: Re:

Good point.

Now software investors will have to learn to compete without artificial monopoly protections, and the trolls will have to find a completely different market. Both things will happen.

Sounds like a really good thing.

Oh, and when it does work, it will speak huge volumes to the oft spoken of need for other patents, that the beneficiaries of those artificial monopolies claim are necessary.

Anonymous Coward says:

Re: Re:

I don’t know – software investors are usually adverse to software patents because they essentially mean a software company without them is going to be sued out of existence once their product becomes popular.

Without software patents, investors can once again rely (gamble) on the success of the software companies and products despite the patents.

David (profile) says:

An actual software developer laughs at Randall Rader

Software is an entire industry ‘built on the shoulders of giants’, or at least the one or two people in before you. To do it wrong you build it on the licenses of mediocre people with patent attorneys and judges that believe that code is similar to hardware. We have finally broken free from having to dodge bad code that is protected by fools and non-technical judges.

The truth behind the change is many items that have been forced to be worked around can now be done correctly. Prior art includes text books yet many times the patents I see are little different from an example in a text book.

Except, with ‘done on a computer’ added to the description – of course.

antidirt (profile) says:

I know the extent of analysis on Techdirt is “less patents = good thing,” but it’s possible that this change to the 101 jurisprudence will have unintended consequences for innovation.

For example, as Mark Lemley mentioned in his interview with Gene Quinn: “And the problem is I think that Section 101 is just a really coarse filter to try to distinguish the good from the bad in software or anything else. And so the kind of impact of too many people asserting some dubious patents or patents that they’ve over claimed maybe the backlash is bad and a bunch of legitimate patents are gonna get swept into the invalidation.”

Source: http://www.ipwatchdog.com/2014/09/07/the-software-patent-problem-not-emphasizing-the-technological-contribution-of-the-innovation/

Care to share your views on patents, Mike? Or is that super-secret information, like your views on copyrights?

antidirt (profile) says:

Re: Re: Re: Re:

An excellent point. It’s mostly simple-minded people whose views can fit on a fortune cookie. Things get complicated out here in the real world.

I agree that things are complicated, and that was the point of my comment. Some patent attorneys and academics are worried about how these patents are being invalidated under 101. I’m suggesting that this new view of 101 could have negative consequences for innovation. Mike’s argument seems to be that invalid is good, no matter how we get there and no matter what effect this will have in the long run. That’s a “fortune cookie” view of things, IMO.

antidirt (profile) says:

Re: Re: Re:

This entire site is a statement of his copyright and patent views. Not everyones views fit on a fortune cookie

I agree that Mike’s anti-IP, pro-piracy position comes through loud and clear based on his posts. Yet he pretends like he’s really neither of those things. I’d love for him to spell out whether he thinks inventors and authors should have any exclusive rights, what he thinks those rights should look like, why he thinks they should have those rights, etc. I don’t want the “fortune cookie” sized answer. I love nuance. Yet Mike won’t ever explicitly tell us what he believes about these most basic issues. From what I can tell, he just wants the plausible deniability whenever someone accuses him of being anti-IP and pro-piracy.

That One Guy (profile) says:

Re: Re: Re: Re:

Why in the world would he waste his time personally telling you his stance on anything(ignoring for the moment that he does essentially just that in every article on the site he writes, something you’d know if you bothered to actually read them), when you’ve shown that A) you don’t care, you’ve already made up your mind on the stances you think he has, and B) you’ve proven that you simply cannot hold a mature discussion with him or anyone, as shown by your constant ad-homs, strawman arguments, insults, and incessant whining about how he ‘Won’t debate you’?

Seriously, who exactly do you think you’re fooling with your laughable insults and strawman attacks?

antidirt (profile) says:

Re: Re: Re:2 Re:

Why in the world would he waste his time personally telling you his stance on anything(ignoring for the moment that he does essentially just that in every article on the site he writes, something you’d know if you bothered to actually read them), when you’ve shown that A) you don’t care, you’ve already made up your mind on the stances you think he has, and B) you’ve proven that you simply cannot hold a mature discussion with him or anyone, as shown by your constant ad-homs, strawman arguments, insults, and incessant whining about how he ‘Won’t debate you’?

Seriously, who exactly do you think you’re fooling with your laughable insults and strawman attacks?

I do care. That’s why I ask. I do read his articles. He’s very careful to never take a definitive position on whether and why he thinks authors and inventors should have any rights in the first place. I can hold a mature conversation. I’m trying to do that right now. I’m not even looking for a debate. I’m just wondering what his beliefs are. All these threads turn into talking about talking about it and personal attacks at me. I’m not insulting and attacking. I think he truly is anti-IP and pro-piracy, and the fact that he won’t engage in a direct and honest discussion about his beliefs only reaffirms my views. All we get are excuses for why he won’t talk about it or claims that he’s already talked about it, yet no one can ever explain what his views exactly are. I’m clearly touching on a very sensitive topic for him. That only tells me that I’m right. Don’t think for one minute that he won’t answer the questions because it’s me asking. Ask him yourself. He just won’t talk about these issues. He refuses to be pinned down on a position.

That One Guy (profile) says:

Re: Re: Re:3 Re:

You know people have these things called ‘memories’ right? As in they can remember what’s happened before?

Your ‘Just one simple question’ is nothing of the sort, because if, in a fit of forgetfulness Mike did happen to answer your questions, you’d just ignore the answers and rephrase your question, trying to get him to answer them ‘correctly’ according to you.

For those newer to the site, this sums up fairly well why Mike would be wasting his time here, and provides a little background:
https://www.techdirt.com/articles/20120818/01171420087/funniestmost-insightful-comments-week-techdirt.shtml#c1210

antidirt (profile) says:

Re: Re: Re:4 Re:

Your ‘Just one simple question’ is nothing of the sort, because if, in a fit of forgetfulness Mike did happen to answer your questions, you’d just ignore the answers and rephrase your question, trying to get him to answer them ‘correctly’ according to you.

I’m well aware of the excuses Mike pulls out for why he can’t simply tell us whether he thinks there should be any copyrights or patents and what those rights should look like. I’m glad you’re not pretending, as others have, that he’s already made his position clear. I’d then have to ask you the same thing I ask those people, and that’s what his answers are. Don’t you think it’s a bit weird that he’s so opinionated about IP, yet he refuses to just give us a definitive account of what his position on IP actually is? I do. And I think it’s because he simply doesn’t want to admit explicitly that he’s anti-IP. But I disagree that I’m looking for the “correct” answer. I’m just looking for his true answer. I just want him to state concretely what his views on IP are. And the amazing thing is how incredibly mad he gets when someone asks. Ask him yourself. He won’t answer.

wallyb132 (profile) says:

Re: Re: Re:5 Re:

Are you one of those people that think you can just stand out in a crowd and demand to be heard and taken seriously and then get all butt hurt when you dont or when security comes and throws you out?

What in the world makes you think you have the right to come here and demand that Mike debate his views with you, in the comment section of a technology news site. Mike has obviously built a name for himself over the years, good bad or indifferent, he has earned his place on the internet and in the world of tech news, and for some reason you, Mr. Unknown heckler feel you have the right to come here, to Mikes venue, and stand in the crowd and challenge Mike on his position and his beliefs, with a mask on, hiding in the shadows and expect to be taken seriously?

If this were a physical venue, you’d get you ass beat by security and thrown out the door in a new york minute, and the crowd would be laughing their asses off and cheering as it happened. But unfortunately this is the internet, a place where nobodies can come along and think they have the right to challenge established folks, as John Oliver put it, A weirdly level playing field, but just because there is no security guards to beat your ass as they drag you from the building doesn’t mean that you’ll get taken seriously, so why dont you just stop?

If you want Mike to take you seriously, then why dont you go start your own Tech News site, one thats Pro IP and Anti-Piracy, and fight for your right to exist amongst the hundreds or thousands of established players already on the playing field, and once you’ve done that, and you’ve become a recognized and respected force in the tech news world, then you can come here and challenge Mike and maybe you’ll get taken seriously, you might even win a chance to have your debate you so badly want.

In the mean time, why do you, (as Eddie once said) have a coke and a smile and shut the fuck up.

That One Guy (profile) says:

Re: Re: Re:5 Re:

If you want to know his ‘answers’ or opinions, it helps to read the articles. Just because you may not like what you read, does not magically make it not exist.

Now, one problem I can see that might be throwing you off is you’re expecting black and white, ‘This is good, this is bad, and that’s the end of it’, which, given the issues involved are complex, you are not going to get.

If you can’t accept that, if you can’t accept that complex issues lead to complex answers, and sometimes no solid answer besides ‘I don’t know, I don’t have enough information to make a statement either way’, well, that’s your problem, not his or anyone else’s.

Don’t you think it’s a bit weird that he’s so opinionated about IP, yet he refuses to just give us a definitive account of what his position on IP actually is?

Which part? ‘IP’ covers a large amount, and he, much like anyone else, likely holds different opinions and stances depending on which part you’re talking about, something that you know if, again, you actually read the articles, rather than just made assumptions on what’s in them.

And I think it’s because he simply doesn’t want to admit explicitly that he’s anti-IP.

Probably because, as far as I can tell, he’s not, no matter how many times you insist otherwise. Pointing out when a system is screwed up, pointing out where the problems are, where things need to be fixed, and how to make the best of the system is not being against it, no matter how much you insist it is.

However, your statement does showcase another reason why Mike would be wasting his time talking to you: You’ve already made up your mind regarding what stance he holds, and you seem to cling to your little strawman Mike in the face of any evidence to the contrary.

You’re already decided that he’s ‘Anti-IP’, what point would there be with engaging with you, when all you want is for him to say things that reinforce the opinion of him you’ve already decided is the absolute ‘truth’, and will ignore anything that doesn’t match your pre-concieved notions of him?

As evidence of this, consider two of your own statements:

‘And I think it’s because he simply doesn’t want to admit explicitly that he’s anti-IP.’

‘I just want him to state concretely what his views on IP are.’

So you want him to state what his ‘views on IP are’, yet you’ve already decided that they are ‘anti-IP’ and he just won’t say so… do you really not see the huge glaring problem there with your logic? You’ve already decided that he’s ‘anti-IP’, so anything he could possibly say that doesn’t fit with that you’d just brush away, claiming it’s not what he really feels on the subject, before asking the exact same question in the hope that he’d answer it in a way that matched the strawman Mike you’ve constructed in your head.

Seriously, and again, who do you think you’re fooling with this rot?

antidirt (profile) says:

Re: Re: Re:

Can you share your views on what is possible?

I recommend you read the interview with Mark Lemley that I linked to, but the idea is simply that 101 is too coarse of a filter to weed out bad patents since you likely end up invalidating perfectly valid patents as well. Mike’s position seems to be that “software patent = bad,” but I think that’s a pretty facile view. Not all “software patents” are abstract ideas where the patentee says “do it on a computer.” Lots of perfectly valid innovations use software, and it’s common knowledge that many things done in software can be done in hardware. There certainly are “bad” patents that involve software, but the idea is that other doctrines such as obviousness or indefiniteness might be better tools for invalidating them.

antidirt (profile) says:

Re: Re: Re:2 Re:

It is also possible that offering patents on software is a really bad idea. There is plenty of evidence in support of this.

No doubt. I think there’s good arguments for and against software patents. I’m wondering if Mike thinks there should be any software patents, or for that matter, any patents at all.

Anonymous Coward says:

Re: Re: Re:2 Re:

It’s also possible that all patents are bad. Since patents (and IP in general) are a government granted privilege and they are known to cause economic harm (monopolies are known to cause economic harm) then the burden is not on Mike or patent critics or others to provide patent supporters with support for patents or any particular kind of patents or with examples or criteria of what constitutes a good patent. It’s for patent supporters to provide evidence and examples and criteria of what constitutes a good patent. The patent supporters are trying to shift the burden here. They want critics and others to support their position. This is silly.

TAM or antidirt or whatever, if you want to support patents instead of asking critics and others to argue for them for you why not argue for them yourself. Why not tell us what you think constitutes a good patent and why. Provide criteria that should be met to reasonably determine that an invention that meets such criteria would likely not exist without patents and provide evidence to support that inventions that meet such criteria would likely not exist without patents. I think a good criticism against the patent system is that it’s difficult to make these distinctions. On the one extreme you can patent everything. I think this is unacceptable as it will greatly hinder innovation, is economically very harmful, and many many innovations will occur without patents. On the other ‘extreme’ (though I don’t consider it extreme) you can abolish patents. If I had to choose between the two options I would much rather abolish patents. In fact I think that’s not a really bad idea unless patent supporters, who hold the burden, can prove to me their social utility. So far they haven’t meet that burden or even come close. In fact this is why I’m not really a patent supporter because if I were I would then hold the burden of defending patents and they’re very difficult to defend.

I’m not so sure I’m completely against patents, I think it’s possible that if they are implemented correctly some could be good (and there are possibly some examples of good patents) I would just like to see more evidence first because, frankly, it’s very hard for me to come up with a good argument in their favor. Sure some of the patent supporters have given a few examples of some patents that maybe good but, by and large, it seems like the overwhelming majority of patents are bad and even if there are a few good patents here and there I’m not so sure that the potential good outweighs the social cost of implementing and enforcing such a system and the social cost of trying to distinguish good patents from bad ones (ie: the cost of creating a government agency to do so, the cost to our court systems, the risk it gives businesses that want to innovate but are afraid of being sued for infringement by bogus patents, etc…).

antidirt says:

Re: Re: Re:3 Re:

It’s also possible that all patents are bad. Since patents (and IP in general) are a government granted privilege and they are known to cause economic harm (monopolies are known to cause economic harm) then the burden is not on Mike or patent critics or others to provide patent supporters with support for patents or any particular kind of patents or with examples or criteria of what constitutes a good patent. It’s for patent supporters to provide evidence and examples and criteria of what constitutes a good patent. The patent supporters are trying to shift the burden here. They want critics and others to support their position. This is silly.

I think the burden is on the skeptics who want to change the status quo. If patent rights are so onerous and terrible, why has the U.S. thrived for more than two centuries under them?

JP Jones (profile) says:

Re: Re: Re:4 Re:

I think the burden is on the skeptics who want to change the status quo. If patent rights are so onerous and terrible, why has the U.S. thrived for more than two centuries under them?

This is a fallacy. You would need to show evidence that the U.S. thrived because of patent rights. Note that just because something valuable has a patent does not mean that the patent created the value (see: false cause, also: correlation does not equal causation).

That being said, I’m curious as to why you’re asking these questions, when Mike has specifically stated his positions on IP and patents numerous times, both in comments and in his articles.

He is against abuse of copyright, patent, and trademark law used to discourage innovation, and his website is filled with examples of that abuse along with how and why it discourages innovation. He is for a reform of IP laws that encourage innovation and creation while protecting the public domain and consumers from abuse and exploitation.

So, to give an example, Mike would likely be for something like GOG.com, which promotes DRM-free software sales, because it offers reasonably-priced, pro-consumer content and has been very successful in offering one of the few services that offers comparable value to piracy. He would likely be against something like The Sims franchise, which monetizes every object and update in the game and tries to squeeze every last penny from their customers while restricting user generated content purely to force people to buy their sub-par offerings.

In both cases, “IP” exists within the products. So is he pro-IP, because he would support GOG.com, or Lewis C. K. when he offered his show for $5, or numerous other individuals who monetized their content in a pro-consumer way. He is also anti-IP, in the cases of companies like EA or Adobe who lock down their products and make them painful to use for paying customers, or HBO who refuses to give legal alternatives to their service at a reasonable price, or the dozens of companies that use DMCA takedowns to bully small creators into giving them money just because they used a tiny part of their content, or patent trolls who buy patents purely to sue actual innovators without creating anything on their own.

Also, after that, he may be anti-run-on sentence, but I think my point was made =).

antidirt (profile) says:

Re: Re: Re:5 Re:

But is he pro-IP in that he thinks anyone should have those exclusive rights in the first place? I’ve never seen anything that leads me to believe he does, yet he seems to take offense at the suggestion that he’s anti-IP. Simply saying, “I’m not anti-IP, I’m anti-bad IP” is bullshit. If he thinks all IP is bad IP, then he’s anti-IP. It’s weasel words. That’s what bothers me. I think he’s being less than honest on his stance.

Niall (profile) says:

Re: Re: Re:6 Re:

Again, you are being over simplistic thinking that ‘pro-IP’ only means people should have exclusive (and presumably total) control over imaginary property, even when said imaginings aren’t automatically novel or unique.

And it’s an incredibly dumb argument to say that because he thinks bad IP is bad, he thinks all IP is bad. Logic, can you do it?

That’s equivalent to saying that because of witch-burnings or Crusades, all Christians are evil superstitious murderers.

antidirt (profile) says:

Re: Re: Re:7 Re:

Again, you are being over simplistic thinking that ‘pro-IP’ only means people should have exclusive (and presumably total) control over imaginary property, even when said imaginings aren’t automatically novel or unique.

And it’s an incredibly dumb argument to say that because he thinks bad IP is bad, he thinks all IP is bad. Logic, can you do it?

That’s equivalent to saying that because of witch-burnings or Crusades, all Christians are evil superstitious murderers.

If there’s absolutely no part of the current IP system that Mike supports, then he can’t possibly be pro-IP. Does Mike support any part of it? If so, which part? None of us can answer that question because Mike won’t ever go on the record with a definitive statement of his views. As far as I can tell, he rationalizes his position as not being anti-IP because he thinks that in some alternate reality it’s possible that there’d be some form of IP that he’d support. But that’s just dodging the question. The question is whether there’s any part of the current IP system that he supports. He simply will not answer that question directly and honestly. And it’s not to imagine why he won’t.

Mark Syman (profile) says:

Re: Finally some good news

Not really. What will happen is that the patent attorneys, all being engineers by training, will specialize in forensic discovery in divorce cases to uncover all the bad allegations from your spouse from your theft of the inventions of other programmers, and justice will finally be served against the invention thieves that congregate on this board. Ha ha ha !

staff (profile) says:

more dissembling by Masnick

‘there are at least 11 such rulings’

Out of what, tens of thousands of such patents? Keep deluding yourself and your invention thief pals.

* http://www.scotusblog.com/2014/06/symposium-supreme-court-leaves-patent-protection-for-software-innovation-intact/

David Kappos – Supreme Court leaves patent protection for software innovation intact

From the perspective of the parties involved, this week’s Alice Corp. v. CLS Bank decision held that a process that lessens settlement risk for trades of financial instruments is too abstract for patenting. However, to the leagues of interested onlookers holding their collective breath across our country and indeed around the world, the Supreme Court’s unanimous ruling subtly conveyed a much more significant judgment: software, as a class, is EVERY BIT AS WORTHY of patent protection as any other medium in which innovation can be practiced.

* http://www.scotusblog.com/2014/06/opinion-analysis-the-uncertain-expansion-of-judge-made-exceptions-to-patentability/

There’s also a detailed analysis and commentary by John Duffy that begins:

Although Alice Corp. v. CLS Bank was identified by this website and many other commentators as a major case on patent law, the Supreme Court’s unanimous resolution of the case DOES LITTLE TO CHANGE, or even to clarify, pre-existing law. The case becomes the fourth Supreme Court decision since 2010 to hold patent claims invalid based on judicial exceptions to patentability. While Alice Corp. is only an incremental addition, the continuation of that larger trend is hugely important because, as the Court itself acknowledges, the judge-made doctrine in this area has the potential to swallow all of patent law.

Justin Nelson – For patent litigants, Court affirms status quo

The reaction from patent litigants to the Supreme Court’s decision yesterday in Alice Corp. v. CLS Bank was ONE BIG SHRUG. The decision was exactly as expected. While the Court made clear that abstract ideas remain unpatentable, it “tread[ed] carefully” in construing patentability. Indeed, the most notable part of the decision was that it shied away from any grand pronouncements. Rather, it relied heavily on prior cases such as Bilski v. Kappos, Mayo Collaborative Services v. Prometheus Laboratories, Inc., and Association for Molecular Pathology v. Myriad Genetics. As the Court correctly concluded, “[i]t follows from our prior cases, and Bilski in particular, that the claims at issue here are directed to an abstract idea.” Yet it went no further than necessary: “[W]e need not labor to delimit the precise contours of the ‘abstract ideas’ category in this case. It is enough to recognize that there is no meaningful distinction between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here.”

The Constitution says “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. Therefore, if an invention is useful or promotes science, it should be patentable. It’s that simple.

For the truth, please see http://www.truereform.piausa.org/
http://piausa.wordpress.com/

JP Jones (profile) says:

Re: more dissembling by Masnick

more dissembling by Masnick – How so? He stated exactly what he believes on the issue; you may disagree with those opinions, but nowhere did he conceal his true intention. Or are you using that word without knowing what it means?

Also, the rest of your post is a nice strawman. Nowhere did Mike state that software cannot be patented. He said that most software cannot be patented. He pointed out 11 cases of bogus software patents being denied.

Most software patents end up being abstract ideas that, because of the technical language used, are approved and then relentlessly litigated to the benefit of no one except lawyers and those suing. Mike is lauding the reduction in bad patents being viable for abusive lawsuits, not saying that patents need to go away.

You can tell this by the concluding paragraph, where he talks about how software developers should be excited that they can be more innovative because they can invent without fear that they will be litigated into bankruptcy by some BS company that has never actually used the “patent” in a commercial product.

Try again, this time when you actually refute the article itself, not some made-up article you invented in your head. Thanks.

John Fenderson (profile) says:

Re: more dissembling by Masnick

“Therefore, if an invention is useful or promotes science, it should be patentable. It’s that simple.”

No, it’s not. It depends on how you define “invention”, among other factors. Mathematical formulas, for instance, are specifically not patentable — and it’s a very good thing.

Software should not be patentable for the same reasons that formulas should not be patentable. I say this as a person whose has spent most of his career as a tiny businessman engaged in “inventing” and selling software.

Further, that software has been declared patentable has caused far more harm to the promotion of that particular practical art than good.

On both a philosophical and practical level, apply patents to software has been a terrible thing.

John Fenderson (profile) says:

Re: Re:

“the most innovative software developers have the least to worry about being sued”

Yeah, not so much. All software developers are at risk of being sued, innovative or not. There are so many horrible software patents that it borders on impossible to write any nontrivial program without unknowingly violating a few bogus patents.

What determines the likelihood is not the level of innovation, but rather a combination of how profitable the product is and how strong your team of attorneys are.

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