Getting Into The Supreme Court's Mind On Software Patents...

from the reading-the-tea-leaves dept

With the CAFC's decision on Bilski being appealed to the Supreme Court, it's worth thinking about how the Supreme Court might actually view the question of software and business model patents. While patent system defenders go through all sorts of twists and turns to explain why software should be patentable, Tim Lee has a detailed explanation of why software should not be patentable, based on earlier Supreme Court precedent. It's a great read (though, frankly, Ars Technica's habit of breaking stories like this up into multiple pages, without a single-page option is annoying) that highlights why there's a decent chance that the Supreme Court would uphold the CAFC's ruling on Bilski if it chose to hear it. Of course, you never know until it happens, and while the current court has been good about limiting the more ridiculous aspects of the patent system over the past few years, we shouldn't be surprised by bad rulings anymore. That said, who knows if the Supreme Court will even hear the case -- or if it will prefer to see how things play out based on the Bilski ruling, and wait for an alternate case to come up before addressing the issue of software patents.


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  1.  
    identicon
    just a lowly patent agent, Jan 29th, 2009 @ 8:02pm

    Software as an apparatus

    I agree that software and business methods should probably not be patentable in most cases.

    However, many people are unaware that software can also be claimed as a machine or apparatus. When the software is executed on the computer, it becomes a specific machine for performing the desired function.

    If, instead, the machine is hard wired with circuitry to perform the exact same function as the software, using the exact same logic, there would be no question as to the patentability.

    OK, so what, if any, is the difference in patentability between software on a disk accessed and executed by a computer and software on ROM chips that are soldered to and accessed and executed by a computer (which in this case would be a specific machine)?

     

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

  2.  
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    Rick, Jan 29th, 2009 @ 8:11pm

    Re: Software as an apparatus

    By your definition then movies should be patentable, since they are shown by machines.

     

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  3.  
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    angry dude, Jan 29th, 2009 @ 9:14pm

    Re: Software as an apparatus

    The difference is only inside a retarded mind of a techdirt lemming-punk

    And BTW you forgot to mention FPGAs and ASICs

    And to continue with this software-hardware dichotomy nonsense you must also mention things like Verilog and VHDL

    But this is of course beyond the reach of your average techdirt lemming-punk

     

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  4.  
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    SharkGirl, Jan 29th, 2009 @ 10:32pm

    Re: Software as an apparatus

    It doesn't matter if you patent, copyright or put proprietary information on your handouts after everyone and their uncles signed a nondisclosure (including the American government) because in the end, those with political, court and financial connections will just take your software away from you if they want it.

    I've learned the hard way what happens when you invent a software solution, complete with the "machine" to run on, as well as the business processes behind the whole solution.

    It means lawyers won't take your case because they won't be killed for you, because you have something the "big boys" want and you ticked them off by not giving up your company plans and software to them.

    My best guess, in hindsight, don't invent any software someone else might find threatening or valuable then you don't have to worry about it getting stolen. *grin*

     

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  5.  
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    Lawrence D'Oliveiro, Jan 30th, 2009 @ 12:12am

    Re: Software as an apparatus

    just a lowly patent agent wrote:

    If, instead, the machine is hard wired with circuitry to perform the exact same function as the software, using the exact same logic, there would be no question as to the patentability.

    Does that argument work both ways? Can I use it in reverse to argue for the copyrightability of mechanisms? If not, why not?

     

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

  6.  
    identicon
    Frosty840, Jan 30th, 2009 @ 4:08am

    Re: Software as an apparatus

    "If, instead, the machine is hard wired with circuitry to
    perform the exact same function as the software, using the
    exact same logic, there would be no question as to the
    patentability."

    It occurs to me that software only fits that analogy if you've written it in machine code.
    If a coder has written in anything higher-level than that, then surely they're relying on their compiler to do the actual design of their so-called-patented process.

    I could attempt to patent a software process which I had programmed in, for example, Java, but in doing so, I rely on Java compiling to Java Bytecode, which then runs on the Java virtual machine, which then runs on the actual machine. In effect, though I have laid out a broad design with my Java code, it is entirely possible that the final implementation of my process would be a complete mystery to me.

    Can you even patent a design that consists of nothing more than on assembling an array of pre-built components, which is essentially the situation which occurs during software compilation?

     

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

  7.  
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    Xanthir, FCD, Jan 30th, 2009 @ 5:17am

    Re: Re: Software as an apparatus

    My best guess, in hindsight, don't invent any software someone else might find threatening or valuable then you don't have to worry about it getting stolen. *grin*

    Pfah, what would that help? It's quite simple, really. If you want to invent something, but are scared of the big boys 'stealing' it, just free it. Slap a GPL notice on it and go crazy. Most companies won't touch it, because they like their code proprietary, and if they happen to grab it anyway and try to patent, you've got prior art on them now.

     

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

  8.  
    identicon
    Lonnie E. Holder, Jan 30th, 2009 @ 5:42am

    It is amazing...

    How quickly the comments on these posts deteriorate into diatribes for and against (it seems to make little difference what the topic is). Somehow the original topic quickly gets lost in the shuffle.

    Anyway, consider the implications of the Supreme Court either granting certiorari or not granting certiorari. If the Supreme Court does not grant certiorari, then they essentially agree that the CAFC got it right, and the recent decisions by the BPAI (the Supremes will have to consider these cases since they are practical applications of Bilski) are correct.

    On the other hand, if the Supreme Court grants certiorari, then there are two possibilities. Either the Supreme Court wants to reverse themselves and establish a completely new precedent, or the Supreme Court wants to go even further on spelling out that software and business methods do not meet the statutory requirements for patentability.

    Consider the possibilities and the implications.

    Regardless of which side of this argument you personally think should be the winner, none of the arguments we have in either direction will influence the Supreme Court, unless you are enthusiastic enough to file an amicus brief with the Supreme Court.

     

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

  9.  
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    Anonymous Coward, Jan 30th, 2009 @ 7:53am

    Re: It is amazing...

    Merely an observation. I would surely help for people to differentiate between a "software invention" and a "software program". I believe that far too many, lawyers and non-lawyers alike, are equating the two erroneously.

     

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


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