This is probably the end of discussion...

Posted Oct 5, 2010 2:46 UTC (Tue) by hozelda (guest, #19341)
In reply to: This is probably the end of discussion... by Lefty
Parent article: Microsoft sues Motorola, citing Android patent infringement (ars technica)

>> The "last major round of activity against software patents" in the US produced not a lot of comfort for your cause, as Florian has correctly pointed out: of the two routes they might have taken, the court took the more expansive view rather than the more restrictive one, all in all. If you do nearly as "well" in the next round, you'll be complaining even more loudly.

For a number of reasons the situation is better. They agreed machine-or-transformation is a fairly comprehensive test, and they repeated that algorithms are abstract and obvious post solution activity cannot make the invention patentable.

They apparently knocked State Street out, and this had been used to broaden the standard in what machines/processes might be patentable.

They added as void (9-0) another example of a patent many patent supporters thought should have been acceptable.

The main problem for me is desktop software being erroneously patented. Bilski can definitely help fix this by more than just a trivial amount.

Also, a phone and many other devices should be treated similarly for patent purposes if the magic of the phone is via software instructions on ordinarily programmable chips. These are just ideal algorithms being carried out dutifully by a general purpose machine designed independent of the actual software algorithms (so it is non-novel and obvious at the time of the software invention), and the machine works to achieve the same exact value result a human would achieve. All hardware interactions are non-novel in the standard case (of the programmable chips and software). Note, that a machine created specifically to function just with those algorithms might be patentable, but that is different than having a person run those algorithms on their own general purpose machine (or, eg, existing phone). Updatable phones are not being changed in hardware (firmware upgrades might change the equation for the purpose of this narrow analysis).

There is room to argue either way, but the above is mostly why I think the situation is better today. How much near term improvement (anti-sw-pat) happens, if any, will depend on the interpretation adopted by the USPTO and future lower court judges.

Also, others will argue fairly well (and I could to some extent, but, for various reasons, I am willing to focus on the more gross problems) that even much hardware circuit logic (especially using old technology for digital behavior) also should not be patentable because these are an expression of mathematics. Eg, see http://web.archive.org/web/20200102195352/http://www.groklaw.net/article.php?story=2010092621054289

Also, the court has not ruled on criteria that I think more clearly should remove software from patenting: does it promote the progress (a monopoly hand-cuffs many in the software field which creates a huge liability, especially because it lasts so long), are the patent laws equitable to all or do they discriminate, is free speech being hindered, etc.