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An opportunity to End Software Patents: ESP briefs Court in Bilski case rehearing
| From: | Matt Lee <campaigns-AT-fsf.org> | |
| To: | info-press-AT-gnu.org | |
| Subject: | [GNU/FSF Press] An opportunity to End Software Patents: ESP briefs Court in its historic rehearing of the Bilski case | |
| Date: | Tue, 08 Apr 2008 17:22:58 -0400 | |
| Message-ID: | <47FBE232.2060108@fsf.org> |
BOSTON, Massachusetts, USA -- April 8, 2008 -- End Software Patents (ESP) has filed an amicus curiae brief in the Court of Appeals for the Federal Circuit's (CAFC) rehearing of the In re Bilski case. The rehearing could lead to the elimination of patents on software. ESP executive director Ben Klemens said, "This is an historic opportunity to fix the US patent system, as the Bilski rehearing will directly address the boundaries of the subject matter of patents. In our brief, the End Software Patents project supports the Supreme Court's long-held position that computer software should not be patentable, and has highlighted to the Court the real economic harm software patents cause the US economy." With the boundary to what can be patented effectively destroyed by previous Federal Circuit rulings, massive-scale liability has been created throughout the US economy. ESP's brief also demonstrates that this liability is not merely a theoretical prediction, but a real economic harm. Over the last few months alone, ESP has tallied over fifty non-software companies being sued for infringement regarding their web sites or other course-of-business software, including the Green Bay Packers, McDonald's, Dole Foods, Kraft Foods, Caterpillar, J Crew, Burlington Coat Factory, Wal-Mart, and Tire Kingdom. The rest of this list can be found at http://endsoftpatents.org/a-litany-of-lawsuits Ironically, the Federal Circuit's own web site at http://www.cafc.uscourts.gov/ is produced using software that likely infringes some number of software patents. In fact, the last decade of software patents has brought about many onerous and frivolous lawsuits, inspiring Congressional action and causing many to question the entire patent system. Many patents famous as the rallying points for patent opposition, such as the "Blackberry patents" from NTP v. Research in Motion, Ltd., have been software patents. ESP's brief points out that these patents centered on claims over pure information. Under US law, pure information is not patentable. Further, the Supreme Court ruled three times that pure information does not necessarily become patentable when recited in combination with a physical object, such as information written to paper or loaded into a computer's memory. However, the Court of Appeals for the Federal Circuit ignored the Supreme Court's repeated rulings, and began allowing patents on information plus any physical component: a formula, if saved to a computer's hard drive; a price list, if money is eventually moved; not a correlation, but the act of correlating. The ESP brief recommends re-establishing the Supreme Court's rule that information should not be patentable, even when claimed in tandem with a physical afterthought. In its review, the Federal Circuit rehearing of the In re Bilski case will address three issues essential to the patentability of software: 1. What standard should govern in determining whether a process is patent-eligible subject matter? 2. Is the claimed subject matter not patentable because it constitutes an abstract idea or mental process? When does a claim that contains both mental and physical steps create patent-eligible subject matter? 3. Must a method or process result in a physical transformation of an article or be tied to a machine to be patent-eligible subject matter? ESP's amicus brief can be found at http://endsoftpatents.org/bilski The rehearing will take place on Thursday May 8, 2008. About End Software Patents End Software Patents is a project formed to eliminate patents for software and other designs with no physically innovative step. It promotes a US technology-development environment which will drive innovation and growth in the global marketplace. End Software Patents receives sponsorship from the Free Software Foundation. For more information on participating in the project, or to access its knowledge base, please visit its website at http://endsoftpatents.org Media Contacts Ben Klemens Executive Director End Software Patents esp@nosoftpatents.org ### _______________________________________________ FSF And GNU Press mailing list <info-press@gnu.org> http://lists.gnu.org/mailman/listinfo/info-press
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An opportunity to End Software Patents: ESP briefs Court in its historic rehearing of the Bilski case
Posted Apr 9, 2008 13:12 UTC (Wed) by elanthis (subscriber, #6227) [Link]
How often are "software patents" actually filed as _software_ patents? Almost every patent I've seen purports to be a mechanical device, defining the computer as a specific apparatus with specific functionality. Is it that the US patent office actually allows software patents, or is it merely that they have no criteria or rules to determine when these sorts of "mechanical additions" to a software process are legitimate or bullshit?
An opportunity to End Software Patents: ESP briefs Court in its historic rehearing of the Bilski case
Posted Apr 9, 2008 14:25 UTC (Wed) by BrucePerens (subscriber, #2510) [Link]
Read these software patents: 1 and 2. Electric Fence (Open Source of mine) is cited in these as prior art, and actually killed two of the planned claims in the older patent. But you can see that people are patenting technology in which Open Source is active.
An opportunity to End Software Patents: ESP briefs Court in its historic rehearing of the Bilski case
Posted Apr 9, 2008 14:41 UTC (Wed) by coriordan (guest, #7544) [Link]
When we we're proposing anti-swpat legislation in the EU in 2005, we defined patentability so that the innovation had to occur in the use of applied natural science. Thus, bundling an innovative software idea with a non-innovative computer wouldn't make the whole patentable.
I guess the ESP campaign have a similar end goal.
Here's an analysis I wrote of the amendments we proposed in the EU:
http://ciaran.compsoc.com/software-patents.html#inst5
You might want to hit pagedown once or twice to get to the wording in quotes.
An opportunity to End Software Patents: ESP briefs Court in its historic rehearing of the Bilski case
Posted Apr 9, 2008 17:39 UTC (Wed) by jgjf (guest, #26728) [Link]
The assumption is that if there are no patents, people will keep their ideas as trade secrets, and if there are patents, the public will be restricted for 20 years, but at least then they get access to the idea.
I find that statement evocative. In fact, that is probably the most useful point of view I have come upon for distinguishing this idea of "patentable", a kind of looking at "patenetable" from the "other direction", by asking "What is the consequence of not patenting this idea?"
So, if we examine the answer to the question "What if society does not make the exchange, and this/some idea remains a trade secret, has society lost anything, is society any more limited?" It is easy to see, then, that for many, or most, "patented" ideas, including "patented software" ideas, the answer is "No." Most often, there are many other clever people in society who can find a method to achieve the same desired result, otherwise disclosed in some effectively unnecessary patent, without having to rely upon someone else's secrets. This is most obvious in situations in which serveral people come up with the same idea at the same time, which might otherwise effectively define the phrase "obvious to someone skilled in the art".
Now, where there exists an idea which:
- After a couple of years no one else can duplicate, and which
- Lots of people find really really valuable, and which
- Is really secret, a trade secret,
Of course, there is also the issue of synergy. People in a group seem to be much more productive building upon each other's work. This is the idea behind the disclosure of trade secrets. For a lot of people, though, the real issue is not synergy or productivity, but instead, protectionism, control, and domination.
Phrase for the week: Disclosure of Trade Secrets.
An opportunity to End Software Patents: ESP briefs Court in its historic rehearing of the Bilski case
Posted Apr 9, 2008 21:12 UTC (Wed) by droundy (subscriber, #4559) [Link]
I find that statement evocative. In fact, that is probably the most useful point of view I have come upon for distinguishing this idea of "patentable", a kind of looking at "patenetable" from the "other direction", by asking "What is the consequence of not patenting this idea?"You make some good points, but leave out the situation in which patents are truly beneficial, which is not situations where the patent lures out into the open what would otherwise be a trade secret, but rather techniques which would never be developed if it weren't for the profit provided by patent protection.
For instance, the development of new medicines is incredibly expensive, but once a drug is developed, it's impossible to keep its formula as a secret. If it weren't easy to analyze it to determine what it's made of, we'd require that the drug manufacture publicize it anyways, so that we can reasonably test its safety.
I doubt that there are very many areas of technology in which a research effort is only justified by the possibility of patent protection. But on the other hand, as far as I know there is only one company left in the US that arguably does "pure" research (IBM), which suggests that perhaps the rules aren't overly biased in the inventor's favor.
In any case, as far as I can tell, the appropriate question when considering the utility of patents is not "What is the consequence of not patenting this idea?" but rather "Would this idea be developed if it couldn't be patented."
An opportunity to End Software Patents: ESP briefs Court in its historic rehearing of the Bilski case
Posted Apr 9, 2008 23:11 UTC (Wed) by aegl (subscriber, #37581) [Link]
For several decades compamies seemed happy to spend money on developing software without the potential benefits of patenting that software. Microsoft, Oracle, Symantec, SAP, etc. all were founded and grew in a legal environment that did not allow software to be patented. So the question of whether anyone would bother to develop software without the benefits of a patent system to protect their work has already been answered.A better question would be: "Did the decision to allow patents on software result in increased innovation?"
medical patent benefits questionable as well
Posted Apr 10, 2008 4:01 UTC (Thu) by pflugstad (subscriber, #224) [Link]
Actually, patents in the medical arena are rather questionable as well.From (copied from http://www.tomhull.com/blog/archives/540-Patent-Myths.html):
The extraordinary profits attainable via patents steers privately funded research toward patentable products, away from any refinement of proven generic treatments. The research is mostly done in secret, where other researchers cannot critique or contribute. The results, and their marketing, are colored by business interests. ...
Needless to say, the recent high profile drug recalls (Vioxx, depression drugs, etc), and issues with "new" drugs (patent protected of course) being less effective than old generic ones (but that fact hidden by bad, misleading or incomplete pharma-funded studies) highlight this perfectly.
An opportunity to End Software Patents: ESP briefs Court in its historic rehearing of the Bilski case
Posted Apr 10, 2008 13:02 UTC (Thu) by rwmj (subscriber, #5474) [Link]
The assumption is that if there are no patents, people will keep their ideas as trade secrets, and if there are patents, the public will be restricted for 20 years, but at least then they get access to the idea.
(In addition to your arguments ..) This idea really belongs to the age of alchemy. For many years now it has been possible, in fact easy, to reverse engineer any product. Be it using a mass spectrometer to accurately determine the content of a new drug, or using a disassembler to find out how software really works, or using X-ray techniques to look inside supposedly "secure" processors.
There is no need to use patents to protect us from trade secrets any more.
If you want a more legal argument, then consider this: our governments grant incorporation rights to companies, and if we want we can stop a company from hiding secrets by removing those incorporation rights (which, amongst other things, would mean you could imprison the directors).
Rich.
An opportunity to End Software Patents: ESP briefs Court in its historic rehearing of the Bilski case
Posted Apr 12, 2008 16:03 UTC (Sat) by Richard_J_Neill (subscriber, #23093) [Link]
I think the analog of "given enough eyeballs, all bugs are shallow" is that "in a widely educated society, all patents fail the 'obviousness' test". Because practically every new development is "obvious to one skilled in the art", patents should only be awarded for ideas so novel that only one person in a billion could come up with them!
An opportunity to End Software Patents: ESP briefs Court in its historic rehearing of the Bilski case
Posted Apr 14, 2008 4:21 UTC (Mon) by nlucas (subscriber, #33793) [Link]
Saw an interesting idea recently, which seems obvious, but have never seen anyone using it earlier: http://youtube.com/watch?v=8SsGjjMEEDw Uses technology that could be done 1000 years ago, but no one did it before (from my knowledge). Now, could this be patentable? I can imagine a full range of devices (maybe using optic fibers) that would allow a lot of people to don't waste money on day lights (specially on warm climates).
An opportunity to End Software Patents: ESP briefs Court in Bilski case rehearing
Posted Apr 9, 2008 23:08 UTC (Wed) by caitlinbestler (subscriber, #32532) [Link]
If an invention is novel it should not matter whether you implement it in hardware, firmware or software. The logic is what is novel and should be protected, not the specific form that the logic is implemented in.
if an invention is not novel, merely implementing it in hardware should not make it more patentable that the same algorithm in software.
The real problem is not patenting of "software" but patenting of problem spaces (rather than specific solutions) and/or obvious algorithms (especially when the only 'novelty' is applying known techniques to a new market space).
An opportunity to End Software Patents: ESP briefs Court in Bilski case rehearing
Posted Apr 9, 2008 23:56 UTC (Wed) by nix (subscriber, #2304) [Link]
Sorry, I missed where the government-assisted monopolization of algorithms was beneficial. It's not as if an algorithm is going to be especially expensive to develop. The most it needs is thinking time.
An opportunity to End Software Patents: ESP briefs Court in Bilski case rehearing
Posted Apr 10, 2008 0:10 UTC (Thu) by caitlinbestler (subscriber, #32532) [Link]
The same could be argued for any service or any form Intellectual Property. They "just" take time. By your logic everything should be free. your objection is to the market system, and has absolutely nothing to do with software patents.
An opportunity to End Software Patents: ESP briefs Court in Bilski case rehearing
Posted Apr 10, 2008 0:33 UTC (Thu) by nix (subscriber, #2304) [Link]
Er, as far as I was aware you can't construct and test physical machinery, or (say) some new drug for nothing. Building machinery costs money. Running clinical trials is vastly expensive. In both cases, the cost of <i>inventing</i> the patented entity is vastly higher than the cost of <i>implementing an instance</i> of that entity, given the patent. Coming up with some patentable algorithm appears (from the quality of the algorithms already patented) to be a matter of a couple of hours' thought, if that. No significant expenditure is required above and beyond that which is needed to get a working instance of the algorithm. Access to the patent doesn't help you at all. (Note how software patents are essentially never used by anyone in the field for any purpose whatsoever other than as landmines: the system is essentially worthless as a repository of algorithmic knowledge. Indeed most companies recommend against or actively ban the use of patent searches for any purpose, because all it does is bring in the possibility of a wilful infringement suit, and there's no real chance of finding anything useful and comprehensible in there faster than you could think it up yourself.)
Patents = government-created monopoly
Posted Apr 10, 2008 16:18 UTC (Thu) by dwheeler (subscriber, #1216) [Link]
Huh? Patents are not a requirement for a free market; they inhibit the creation of a free market. In a free market, everyone would be developing the best products and services they could. Instead, patents are a government-created monopoly, preventing most market players from deploying the best products and services that they can. What's more, there is nothing in nature "requiring" the existence of patents. Without patents, we would actually have a freer market. Patents are yet another government bureaucracy, in this case a very expensive one.Now, that's not to say that patents are always a bad idea; patents are essentially a bargain created by governments, granting temporary monopolies in exchange for the development of products and documentation of ideas that would not happen otherwise. In short, patents are a solution for a market failure - if you cannot get new ideas in a area without patents, then patents can help create a market where one did not exist before.
But there was no market failure for software. Software was developed for decades without software patents. So instead, software patents have actually retarded innovation, inhibited the free market, and caused massive harm to the economy. Study after study is showing that software patents have harmed, not helped, the industry.
I think the jury is out on medical patents - they may very well be worth the cost. But software patents are absolute lunacy. If the pharma industry wants to keep patents on medicine, they should work to eliminate software patents... or people will eventually throw out the whole patent system as being unjust and unworkable.
Patents = government-created monopoly
Posted Apr 11, 2008 9:26 UTC (Fri) by PO8 (guest, #41661) [Link]
"Patents are essentially a bargain created by governments, granting temporary monopolies in exchange for the development of products and documentation of ideas that would not happen otherwise." Historically, patents were essentially a bargain created by governments, granting temporary monopolies in exchange for lots of money. The conceptualization you describe occurred later.
Patents = government-created monopoly
Posted Apr 15, 2008 9:07 UTC (Tue) by roberton (subscriber, #39680) [Link]
Excellent summary, I totally agree. Regarding the distinction between software patents and medical patents, IMO there is no doubt that pharma patents allow private companies to develop drugs that they would not otherwise have done. Whether this model is the best way to develop those drugs is debatable, but even this "plus" side doesn't apply to software patents. Software patents have no benefits, only terrible costs. Roberto/.
An opportunity to End Software Patents: ESP briefs Court in Bilski case rehearing
Posted Apr 11, 2008 0:32 UTC (Fri) by drag (subscriber, #31333) [Link]
"'By your logic everything should be free. your objection is to the market system, and has absolutely nothing to do with software patents."" Umm... In a truly capitalistic environment there would be no place for any sort of patents or copyrights for that matter. Or any form of artificial government-enforced ownership over anything.
Government-enforced ownership
Posted Apr 11, 2008 6:22 UTC (Fri) by man_ls (subscriber, #15091) [Link]
Actually, apart from wild west scenarios all property is "artificial government-enforced ownership". From ancient irrigation laws in Summer to medieval land deeds to modern day copyright regulations, ownership is granted (or taken away) from the state to private citizens; and it is the state's judicial system which decides upon who owns who. In the old days kings exercised all this power (remember Solomon's judgment), while now it is the State.