Kuhn: I Think I Just Got Patented [LWN.net]

Kuhn: I Think I Just Got Patented

Posted Feb 3, 2010 17:10 UTC (Wed) by JoeBuck (subscriber, #2330)
In reply to: Kuhn: I Think I Just Got Patented by spot
Parent article: Kuhn: I Think I Just Got Patented

IANAL, but even if we get the ruling on Bilski that we want, won't all of the existing patents have to be knocked down one by one? I suppose going forward, if a software developer gets a threat he can reply that the patent is clearly invalid under Bilski, but the troll can still say that this is up to the courts to decide, and that they will bring suit in Texas and argue why Bilski doesn't apply to their patent.

A good ruling would greatly reduce the number of new software and business method patents.

I like reading the SCOTUS hearing on Bilski

Posted Feb 4, 2010 18:19 UTC (Thu) by hozelda (guest, #19341) [Link] (4 responses)

>> if we get the ruling on Bilski that we want, won't all of the existing patents have to be knocked down one by one?

IANAL, but SCOTUS can make many rulings, including that the existing law never allowed software running on a PC to be considered neither a new machine nor a transformation or process as defined by the law. This would essentially mean that those that abused the USPTOs leniency were taking risks that the government would back them up in the future, and the government now would have to say (if the Bilski ruling is strong) they no longer can. OR maybe we can think of such a ruling as saying that the patents taken out might have some ounce of value, but that ounce would not cover a general purpose PC running software described by the patent.

We have to understand that for every person that had money and time to burn to take the risks to seek these patents, there were many more that arguably understood the limits of existing law and so stayed away from spending much time or money trying to get these types of dubious patents.

Some proponents of sw patents that filed briefs for the SCOTUS, as well as the attorney that argued the defense side, wanted the Court to look at existing law in a forward looking manner; however, Justice Breyers(?) pointed out that it is normal for Congress to add exceptions into the law to add something else, but they hardly ever remove. He was trying to show perhaps that the more conservative interpretation of laws is to think that the law doesn't include something rather than assume that it can include everything under that sun. Context is key and one must look at how the laws were interpreted at the time. This view favors existing software patents not being enforceable as hurts most of FOSS today.

Another issue is drawing a line on which types of patents are likely to violate the Constitution by not promoting progress (ie, if the liabilities side of the ledger is greater than the assets side). A ruling of this nature in our favor could knock out all software patents, past, present, and future, until the Constitution were amended.

After reading the SCOTUS transcripts, I think there is a very decent chance that most/all existing software patents will be neutered as unenforceable under current law. I also think in the future we will be in court again, after software patents get written specifically into the law (IBM, Microsoft, many trolls, and many attorneys will likely push for this after such a negative Bilski ruling), on a challenge over whether software patents promote the progress of science and the useful arts.

A link to a pdf transcript of the Bilski hearing is found in groklaw http://web.archive.org/web/20210118135118/http://www.groklaw.net/article.php?story=20091109191422928 . The discussion made for interesting reading.

You will see themes brought up by the justices (mostly by Breyers) against software patents. For example, he pointed out early on that the idea of a patent, where despite disclosure, you effectively prevent society (for 20 years) from using the information they just presumably learned, is by its nature against the concept of promoting growth. I think he mentions the Internet as a medium where great sharing is possible.

A favorable ruling supporting Machine or Transformation seems to be in line with what the Justices appeared to support (and many FOSS proponents do as well) that information flow should not be held back if at all possible. As the FSF's brief stated, it's a trivial step to take that unpatentable software information and load it into a computer. These two items would imply that software running on a PC should not be patentable because it would essentially limit information and growth to such a high degree.

I think the FSFE's brief attacked the Machine or Transformation test head on (they also said many great things) and mentioned that SCOTUS could clarify a few details to avoid future attempts to sneak in software. [The FSFE's, FSF's, and other briefs can also be found on groklaw.]

A few more notables from the hearing: It was quickly pointed out by the Justices that software itself is not patentable (the central Bilski question is about which embodiments of software can result in patents). Abstractions and thoughts were mentioned. Also discussed was how machines with software likely are not a new machine and the "process" rewording of the patent claims (ie, software as a process of a computer vs. as a new type of machine) really amounts to no essential difference.

You can't hold against me this lacking summary I just made of the contents of the transcript unless you read the transcript for yourself. ;-)

PS: Software patents make me sick. The nonobvious and novel test are very flawed in theory and in practice. You don't (ethically or Constitutionally) give one person, the first to run to the patent office, a 20 year monopoly simply because what they described arguably (but unprovably) is novel and not "obvious" to many. Even if the claim was novel and nonobvious to many (we'll *assume* the USPTO has a system in place to make a good determination about this), perhaps that should lead to 5 months of monopoly or no monopoly but dibs on government grant or support of some other kind.

I like reading the SCOTUS hearing on Bilski

Posted Feb 4, 2010 18:45 UTC (Thu) by hozelda (guest, #19341) [Link]

>> pointed out that it is normal for Congress to add exceptions into the law to add something else, but they hardly ever remove.

I forgot to clarify. The reason this is a smart approach at least in this case is that, if you assume too broad a scope (eg, over the meaning of "process"), then you almost guarantee that the law will have to be struck down (or else narrowed in scope anyway) in order to avoid running afoul of the Constitution's requirement of promoting progress because some of the patents that would be allowed by a broad law would not promote the progress.

Also, here is one part of the transcript I really liked, to which PJ from groklaw added commentary:

*****
[Government/plaintiff lawyer, Mr Stewart, arguing against business method patents but likely for software patent methods]>> Now -- now, we do think that software innovations can have the effect of causing the computer to be a different, special purpose computer, as the phrase --

...

[JUSTICE STEVENS]>> I don't understand why that isn't just the application of a process, which -- which is not itself patentable subject matter, to a particular machine that can use process --

[JUSTICE KENNEDY]>> That's -- that's a problem I have.

Me too.

Stewart then says it's comparable to a "better television or a better DVD", which don't transform anything. Justice Stevens sees a difference, saying, "It's not on a computer, which the only difference from the old computer is it's using a new program. You can't say that's a new machine." Mr. Stewart fumbles a bit, then says, but what if you improved the hardware? To which Justice Stevens says, "But that patent didn't require any change in the hardware, as I remember it correctly," referring to State Street. But, but, says Mr. Stewart, programming a computer to produce...er, to perform new functions can create a novel.... He is interrupted by Justice Breyer:

[Justice Breyer]>> But then all we do is every example that I just gave, that I thought were examples that certainly would not be patented, you simply patent them. All you do is just have a set of instructions for saying how to set a computer to do it. Anyone can do that. Now, it's a machine. So all the business patents are all right back in.
*****

Also, here is a text/html transcript: http://news.swpat.org/2009/11/bilski-hearing-transcript/

I like reading the SCOTUS hearing on Bilski

Posted Feb 4, 2010 22:19 UTC (Thu) by rahvin (guest, #16953) [Link] (2 responses)

Another issue is drawing a line on which types of patents are likely to violate the Constitution by not promoting progress (ie, if the liabilities side of the ledger is greater than the assets side).

Based on the court ruling on the Lessing Copyright challenge the SCOTUS would NEVER take this stand. They took the position that it's not their place to decide what limited or progress means, as that's a legislative task (to decide what progress is and what limited is). I personally don't think we will get a decisive ruling in Bilski, there are to many Amiscus briefs telling the court to sidestep the software issue and I expect them to do exactly that. As Bilski isn't a software patent (it's a financial method patent) I expect they will fully avoid the software minefield until a better case is brought before them, if that ever happens.

The Lessig case!!!

Posted Feb 6, 2010 0:05 UTC (Sat) by hozelda (guest, #19341) [Link] (1 responses)

>> the SCOTUS would NEVER take this stand

Thanks for pointing that out. I found this: http://news.cnet.com/2100-1023-980792.html .

It's a good thing I decided not to rely on your word or on that article. So far I have only read a fraction of the ruling, but it's enough to point out some major differences.

Keep in mind I am not a lawyer and have not read very many decisions at all or studied the history of various decisions or even law itself to any significant degree. I'm also reading this quickly and still have a lot to read.

http://www.lessig.org/blog/archives/01-618o.pdf

"Petitioners are individuals and businesses whose products or services build on copyrighted works that have gone into the public domain."

These are people that depend on the supposed works of others, specifically, who depend on copyrighted works. I'll get back to this point below.

"They seek a determination that the CTEA [Copyright Term Extension Act] fails constitutional review under both the Copyright Clause's 'limited Times' prescription and the First Amendment's free speech guarantee."

There is no mention here of promoting progress or of patents. This case did not address the points I am talking about: promoting the progress and in relations to patents being passed today under today's rules and law, in particular, software patents.

"Petitioners do not challenge the 'life-plus-70-years' time span itself... Congress went awry, petitioners maintain, not with respect to newly created works, but in enlarging the term for published works with existing copyrights."

Lessig addressed a narrow issue.

The SCOTUS appeared not to want to question the actual numbers that Congress picks, but, in any case, Lessig was not arguing over that matter. The court tried to remain consistent with established precedent, namely the failure for such challenges to have occurred in the past when the terms were also extended. It might, thus, be realistic for someone to challenge aspects of the specific time duration of copyrights, perhaps on grounds that the duration extends past the expected time frame where a person wishing to leverage such work is most productive.

In any case, copyrights are not patents.

"The court also held that there are no First Amendment rights to use the copyrighted works of others."

Note, the "of others".

The patent situation is very different. You can easily argue and use examples where monopoly patent protection is being granted over inventions not conceived in any specific detail by the "inventor". Patents claims, and even the much more detailed invention details, are quite broad. Patent claims, which is what determines the bounds of infringement, are most certainly not a specific work in that we aren't protecting the text of the patent claim but are seeking to cover **every single creatable item** whose description might overlap with the description offered through the claim. I think this will be ripe to be struck down at some point in time. Software patents most certainly aren't being given exclusively to protect a specific existing implementation of a software product (as is the case for copyrights).

"Copyright, the court reasoned, does not impermissibly restrict free speech, for it grants the author an exclusive right only to the specific form of expression; it does not shield any idea or fact contained in the copyrighted work, and it allows for 'fair use' even of the expression itself."

This simply reaffirms some the points just made that the copyright case is over a very specific expression, not an idea. Even in this case, "fair use" exists.

As concerns the First Amendment, we see that we aren't talking about people defending their own right to create despite patents (or copyright), but are talking about the right to use specific things created by others. There is a real difference here. The court argues against the use of specific works created by others.

With patents, we are blocking the reuse of ideas, and this is reinforced by the failure to accept independent inventions as a legitimate defense. The court said they were against monopolies on ideas.

I stopped here because the differences seem so clear to me, and I wanted to post before too much time elapsed. The Lessig case was very different.

rahvin, you are going to have to try much harder if your intention was to discourage FOSS developers and users about what appears to be shaping up with Bilski.

Assuming you have an open mind, look at the Bilski transcript (again) to see that the Justices appear quite skeptical about the patenting of ideas and information.

A recent SCOTUS decision (corporate money in elections) also shows that this court is willing to reverse itself and that they respect individual rights significantly. [Unfortunately, they voted for the rights of some over the rights of others, based on you having control or not of a corporation with multiple shareholders]. Both of these suggest we can have hope for a strong ruling against software patents.

The Lessig case!!!

Posted Feb 6, 2010 0:56 UTC (Sat) by hozelda (guest, #19341) [Link]

>> There is no mention here of promoting progress

rahvin:

I should have read a little further. It appears Lessig conceded the view that promoting progress does not place substantive limits on Congress' legislative power.

I think it was a mistake to concede that point [perhaps Lessig did not feel he had sufficient backing or arguments at that time].

In any case, this was not a point that was argued (so it was best not to argue it rather than to argue it badly I imagine). The court relied on that agreement and on another variation of this from Schnapper vs Foley to conclude that this limitation also did not apply to Congress in that current case.

What may have been argued in Schnapper vs Foley was that it is assumed Congress can do what it wants without risking not promoting progress. However, we can conceive of many cases where monopolies gone rampant (and today's software patents, at least in some extreme cases, fall under this category) can hardly be argued by anyone to promote the progress.

What was the intention of those that wrote the Constitution? I don't know, but it doesn't seem consistent for them to have assumed monopolies, as Congress might feel like granting them, should be assumed to promote the progress and essentially help individuals or society. In particular, monopolies are clearly against individual rights (by definition), and this was brought up in the Bilski hearing by Breyer. The only reasonable and consistent interpretation of that clause, from what details I know and from using "common sense", is that promote the progress is to be interpreted as a real constraint on Congress.

Again, that point was not argued in the Lessig case and perhaps is due to be revisited, if necessary, under the context of the 21st century and software patents.

OK, so it does appear "promote the progress" was considered briefly in Lessig.

I disagree with your "NEVER".

I disagree it would be fairly unlikely for them to make a strong ruling in Bilski against software patents on different grounds (though the Justices did mention they might certainly not rule on too much),

But I apologize for missing the promoting the progress question in Lessig in my prior comment and effectively suggesting you might have been exaggerating a lot or even trying to deceive.