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One Small Patent Step: “There Needs to Be a Device”

Posted in Free/Libre Software, GNU/Linux, Google, IBM, Law, Microsoft, Oracle, Patents at 4:56 am by Dr. Roy Schestowitz

MR. OLSON [For Microsoft]: The ’580 patent is a program, as I understand it, that’s married to a computer, has to be married to a computer in order to be patented.

JUSTICE SCALIA: You can’t patent, you know, on-off, on-off code in the abstract, can you?

MR. OLSON [For Microsoft]: That’s correct, Justice Scalia.

JUSTICE SCALIA: There needs to be a device.

MR. OLSON [For Microsoft]: An idea or a principle, two plus two equals four can’t be patented. It has to be put together with a machine and made into a usable device.


n what appears like a major development, the USPTO is finally acknowledging that patenting of ideas, such as algorithms alone, is absurd. The following post concentrates on Google and on Bilski [1, 2, 3, 4] but it generalises. Some believe that this may mark the beginning of abortion of software patents, or at least a subset thereof. [via Glyn Moody]

The Patent and Trademark Office has now made clear that its newly developed position on patentable subject matter will invalidate many and perhaps most software patents, including pioneering patent claims to such innovators as Google, Inc.


The logic of the PTO’s positions in Nuijten, Comiskey and Bilski has always threatened to destabilize whole fields of patenting, most especially in the field of software patents. If the PTO’s test is followed, the crucial question for the vitality of patents on computer implemented inventions is whether a general purpose computer qualifies as a “particular” machine within the meaning of the agency’s test. In two recent decisions announced after the oral arguments in the Bilski case, Ex parte Langemyr (May 28, 2008) and Ex parte Wasynczuk (June 2, 2008), the PTO Board of Patent Appeals and Interferences has now supplied an answer to that question: A general purpose computer is not a particular machine, and thus innovative software processes are unpatentable if they are tied only to a general purpose computer.

Here are some more details about it.

Patent Trolls Return

The lawsuit against IBM, Oracle and SAP (mentioned the other day) sparked an interesting discussion that looks at the patent troll to blame. It almost seems like another Acacia, a shell company potentially motivated by hidden interests [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11]. McAfee has just suffered a defeat too.

McAfee (MFE) this afternoon disclosed in an SEC filing that a federal jury in Texas last week found the company violated a patent held by venture-backed DeepNines Inc. and ordered McAfee to pay $18 million for past and future damages. The company said it intends to appeal the verdict.

McAfee is far from a friend of Free software [1, 2, 3, 4].

The Root of the Problem

Also of interesting is the following explanation of software patents. [via Digital Majority]

Each industry has its own standards and statistics. The nature of software industry is poles apart from any other industry and for it patents are proving gradually harmful. The idea of software patent is significant as far as it promotes the originality and innovation but contrasts to it, software patents are road blockers for innovation. They harm the creativity and an aspiration to create something naive.

The software products for all applications undergoes the same life cycle. In such cases maintaining originality with concept is a bottleneck. It harms the innovation and mere thought of suing due to patent infringement is yet another big obstacle. But start ups are never sued for patent infringements as a matter of fact. If they come up with something better that can harm the existing company on the same grounds, then they can be pulled to the lawsuits battle zone. For instance the companies like Microsoft has lot of patents signed in their name, but no cases have been heard of Microsoft suing the other company as of mimicking their software or something else.

In many ways, the insidious introduction of patents on concepts in computer programs is similar to unfounded calls for copyright extension Watch this nugget of information which has already been cited.

In setting up the rationalist background of his title, Professor Bently noted that the 2004 EC Staff Working Paper, the Gowers Report, and the EC-commissioned IVIR report had all approached the question rationally, with evidence-based and economic reasoning. Each had come out against extension.

It’s the wealthy who makes laws; it’s not intended to promote a scientific wealth but rather to facilitate the greed of a few powerful players.

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