Weekly Edition
Return to the Press page
| |||||||||||
|
| |||||||||||
Court Greatly Limits Software And Business Method Patents (Techdirt)
Techdirt reports on a
new US Federal Appeals Court ruling regarding software patents.
"The summary is that the court has said that there's a two-pronged
test to determine whether a software of business method process patent is
valid: (1) it is tied to a particular machine or apparatus, or (2) it
transforms a particular article into a different state or thing. In other
words, pure software or business method patents that are neither tied to a
specific machine nor change something into a different state are not
patentable. That means a significant number of software and business method
patents are about to disappear, freeing up many industries to be much more
innovative -- at a time when that's desperately needed."
(Log in to post comments)
I wish it were true, but Posted Oct 30, 2008 20:41 UTC (Thu) by gmaxwell (subscriber, #30048) [Link]
Quoting the decision:
"As to machine implementation, Applicants themselves admit that the language of claim 1 does not limit any process step to any specific machine or apparatus. See Appellants' Br. at 11. As a result, issues specific to the machine implementation part of the test are not before us today. We leave to future cases the elaboration of the precise contours of machine implementation, as well as the answers to particular questions, such as whether or when recitation of a computer suffices to tie a process claim to a particular machine."
"... although invited to do so by several amici, we decline to adopt a broad exclusion over software or any other such category of subject matter beyond the exclusion of claims drawn to fundamental principles set forth by the Supreme Court ... We also note that the process claim at issue in this appeal is not, in any event, a software claim. Thus, the facts here would be largely unhelpful in illuminating the distinctions between those software claims that are patent-eligible and those that are not."
"Applicants here seek to claim a non-transformative process that encompasses a purely mental process of performing requisite mathematical calculations without the aid of a computer or any other device, [...] it does not involve transforming an article into a different state or thing. Therefore, Applicants' claim is not drawn to patent-eligible subject matter under § 101."
In other words: water still wet, sun still shines. If you have a software patent which does not claim a machine and does not claim to transform something, it's not valid. The norm in software patents has always been to specify a machine, since they were first ruled as valid, resulting in a patent on the combination of a machine and software (which is why software doesn't violate until combined with a machine).
There are a couple of loud pundits claiming in re Bilski invalidates software patents, but I simply don't see it and the majority quite clearly states that they are not doing so. I challenge anyone claiming otherwise to point out a specific software patent which would be valid under the prior case law but not valid under this decision.
(Business method patents, OTOH…)
Um, no. Posted Oct 30, 2008 23:03 UTC (Thu) by dwheeler (subscriber, #1216) [Link]
I don't think that's true at all. In the Bilski case, even the Patent Office agrees that it shouldn't be patented - and the patent office gleefully grants patents that "obviously" shouldn't be granted (well, obvious to most software developers anyway). The patent office was happy to grant display XORing, the setuid bit, and other nonsense. In fact, this whole case shows that the patent office is having trouble figuring out how to say 'no'. It seems to say 'yes' so often that it's having trouble justifying ANY limits on patentability that is consistent and justifiable.
This ruling states a few trivial limits, but I suspect that they will be easily subverted. "Transforms an article into a different state or thing"? ANY process produces SOME different "state or thing", so people will work hard to drive through that loophole.
Um, no. Posted Oct 31, 2008 14:53 UTC (Fri) by AJWM (subscriber, #15888) [Link]
The setuid bit patent, one of the earliest "software" patents, was interesting in that it explained ("taught", in patentese) the invention entirely in hardware terms -- i.e., you could build a circuit to implement the setuid function -- thus making it a machine patent.
In any event, Bell Labs released that patent to the public domain.
Um, no. Posted Oct 31, 2008 16:56 UTC (Fri) by anselm (subscriber, #2796) [Link] It seems to say 'yes' so often that it's having trouble justifying ANY limits on patentability that is consistent and justifiable. The problem is that the patent office is funded on the basis of patents that are granted, not patent applications that are refused. Besides, granting lots of patents makes companies look very innovative, and the patent office look very busy, which is also a good thing. There is no pressure whatsoever on patent agents to refuse anything but the most obviously rubbish patents (like, for example, perpetual motion machines - and some of those still get through), so the tendency is to accept pretty much everything and let the courts sort things out later.
Court Greatly Limits Software And Business Method Patents (Techdirt) Posted Oct 30, 2008 23:12 UTC (Thu) by xav (subscriber, #18536) [Link]
Looks like the definition adopted by the European Commission.
Court Greatly Limits Software And Business Method Patents (Techdirt) Posted Oct 31, 2008 0:54 UTC (Fri) by JoeBuck (subscriber, #2330) [Link] I think it's premature to get too excited by this, until we see how it plays out. Patent-holders might still be able to argue that their software patents fit the narrower definition, at least as used in practice (e.g. within your computer your video codec is just mathematics, but once the program is hooked up with a camera and a display monitor, we have a physical process). IANAL, but I'm not sure the lawyers know either at this point what the courts will do.
Court Greatly Limits Software And Business Method Patents (Techdirt) Posted Oct 31, 2008 14:19 UTC (Fri) by dwheeler (subscriber, #1216) [Link]
I agree. If they narrowly define "different state or thing", so that this really is significantly limitation on patentability, then it might help. E.g., "a permanent change in type of matter". MAYBE this will mean something, but I wouldn't hold my breath.
Opinion available Posted Oct 31, 2008 16:07 UTC (Fri) by Max.Hyre (subscriber, #1054) [Link] In Re Bernard L. Bilski and Rand A. Warsaw (PDF, 128 pp.: Decision, 32 pp.; Concurrence, 20 pp.; three Dissents, 76 pp.)Also a plethora of amici. To wit, three and a half pages.
Court Greatly Limits Software And Business Method Patents (Techdirt) Posted Nov 1, 2008 16:37 UTC (Sat) by ChristopheC (subscriber, #28570) [Link]
Also see http://techdirt.com/articles/20081030/1647512692.shtml where the blogger backtracks on some of his statements : the ruling may not be as good as first hoped.
|
|||||||||||