EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

11.04.08

Experts Indicate That re Bilski Does Impact Software Patents

Posted in America, Courtroom, Law, Patents at 8:43 am by Dr. Roy Schestowitz

Gavel
Case closed, now what does this mean?

ONE question that has been asked regularly since the ruling was announced is: what impact — if any — does this have on software patents? According to extensive reading, it seems more or less agreed upon that software patents are affected too, but only to an extent.

For future reference, in addition to our older posts about the re Bilski decision [1, 2, 3, 4, 5, 6], here are many more: [mostly via Digital Majority, which is an excellent resource]

1. In regards to In re Bilski

On the key question of when information becomes a machine, the ruling does provide some clues: “First, [...] the use of a specific machine or transformation of an article must impose meaningful limits on the claim’s scope to impart patent-eligibility. [...] Second, the involvement of the machine or transformation in the claimed process must not merely be insignificant extra-solution activity.” For more on extra-solution activity, have a look at my law review article (PDF) that focuses heavily on the idea.

2. Reactions to the Bilski decision begin to roll in

Not being a US patent attorney and not possessing any expertise in US patent law, I am not in a position to comment on the CAFC’s Bilski decision handed down yesterday. However, I do know a few people who are, so I have been in touch with them to get their reactions. Below is what I have had so far. I will continue to add to these until the beginning of next week (3rd/4th November will be the cut-off).

3. US court narrows scope for business method patents

“While looking for ‘a useful, concrete and tangible result’ may in many instances provide useful indications of whether a claim is drawn to a fundamental principle or a practical application of such a principle, that inquiry is insufficient to determine whether a claim is patent-eligible,” it said.

4. Bilski: Almost the Big One

The big question is what effect, if any, this decision will have on the current referral of a “point of law” concerning software patents by the President of the European Patent Office (EPO) to the EPO “Enlarged Board of Appeal”, something I wrote about earlier this week. It would be ironic if, at a time when the US courts begin to move away from patenting software “as such”, the EPO started allowing precisely that through a relaxation of its own rules.

5. So are software patents dead or not?

My opinion is that it’s going to get harder and harder to patent anything. Of course there will be a big push back from business, so this won’t happen over night, but I think the concept of patents will eventually disappear entirely.

6. US Court Throws Out Most Software Patents

The IT Examiner also observes that “Microsoft has a problem” and that “Much of the patent portfolio of some of the world’s biggest software companies has become worthless overnight, thanks to a ruling yesterday by the US patent court.”

7. Court Reshapes Patent Reform Debate

In a ruling with huge implications for the technology sector, the U.S. Court of Appeals for the Federal Circuit said Oct. 30 pure software or business method patents that are neither tied to a specific machine nor change something into a different state are not patentable.

8. In Huge Shift, Court Ruling Effectively Denies Software-Only Patent Rights

The case originally centered on a patent for “a method of managing the risk of bad weather through commodities trading”—which falls more under the “business process” bucket, but the same ruling effectively makes patenting a specific software process impossible. The previous ruling allowed such patents, so long as computers were involved and the process produced a “useful, concrete, and tangible result.” This ruling rejects that premise, favoring instead an older test that only allows patents for things involving an actual machine or a transformation of a tangible object into a different state.

9. Professor Collins: In re Bilski: Tangibility Gone “Meta”

Although they are both legitimate questions, this short comment addresses neither whether there is a legitimate statutory basis for this test nor whether Supreme Court precedent should be interpreted so as to mandate (or even support) this test. Rather, it focuses solely on the criteria that the court offers to draw the line between patentable and unpatentable transformations. The Federal Circuit has added a new twist to the tangibility test that has for many years played a role in determining patent-eligibility: the tangibility test has gone “meta.” The tangibility of the formal data that is actually transformed by a method of processing information is not relevant to patent-eligibility, but the tangibility of the things that the data is about—the tangibility of the informational content of the data or the things to which the data refers—now appears to be dispositive.

10. Bilski: What It Means, Part 1 — Red Hat on What It Means for FOSS

means to everyone: You can’t get patents any more on a pure mental process. You can no longer patent a process that you can think through all in your mind. In other words, abstract ideas are not patentable. There has to be either a particular machine or a transformation in the process. So pure “ideas” or “mental processes” are over. That means most business methods patents are no longer valid because they are outside the parameters of what is eligible for patenting. In simple terms, it means this:

The End for the stupidest of the stupid patents.

Yay! It means that the tide is turning. There could still be an appeal of Bilski, and even without one, there are ways to chip away at this decision’s new standard for patentability, to try to get over the new turnstile, so to speak, and strategies on how to do that have begun already. I’ve spent the days since the decision issued researching for you, so I can explain Bilski to you. There is too much material for just one article. So, I’ll break it up into parts. My purpose is to make sure you understand fully, so you can be helpful with your ideas and so you can explain this issue to others, so they understand what is involved for FOSS. If there are parts you don’t understand, ask. If I don’t know the answer, I can ask someone.

11. US patent ruling bodes well for tech

The case in question was rejected because the patent at issue was a process not tied to a “machine”, which is one standard for patentability.

[...]

“The standard articulated in this case should limit the outrageous business method and software patents that we have recently seen, without undermining the incentive to innovate in these areas.”

12. In re Bilski and the future of business method patents

Duffy stressed that the patent at issue in State Street, the 1998 decision that gave the OK to software and business method patents, would be fine and dandy under the new test—it’s just the test itself that changed. The court maintained the “core holding” of State Street, said Duffy, merely changing the “verbal formulation” required. (And the number of BM patents that will still be strong?—Many! Most! Almost all!)

13. CLE: How to Draft Software Claims under Bilski

Going forward, I do not believe that these limitations will have a significant impact on a skilled practitioner’s ability to patent software innovations.

14. Patent Court: You Can No Longer Patent Thin Air

In essence, the ruling means that business ideas in and of themselves aren’t patentable. In addition to Amazon’s “one-click” patent, which is the concept of purchasing something via credit card by just clicking a single website link, Friendster’s patents on social networking also come to mind as being unpatentable based on this judgement. That patent covers a “system, method and apparatus for connecting users in an online computer system based on their relationships within social networks” and a “method of inducing content uploads in a social network,” amongst other claims.

15. Federal Circuit Enforces Limit on Business Method Patents

The result: While the court did not categorically exclude business method patents, it held fast the idea that any method, whether business-related or not, must be tethered to a machine or some sort of physical transformation, says Stephen Maebius, a partner at Foley & Lardner.

16. Court limits ‘business method’ patents

The Stop Software Patents initiative has found a new video from the German television where the subject of sofwtare patents is covered.

German television 3sat has a reportage about software patents. A german programmer highlights that software patents ruin investment in software development.

Here is another new item which discusses both BM patents and SW patents, the context being patents relating to a marriage portal.

“The best way to prepare to be a programmer is to write programs and to study great programs that other people have written.”

Bill Gates, Free software advocate???

“Thanks to Mr. Gates, we now know that an open Internet with protocols anyone can implement is communism; it was set up by that famous communist agent, the US Department of Defense.”

Richard Stallman

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email
  • Google Bookmarks
  • Ask
  • Digg
  • Mixx
  • Slashdot
  • StumbleUpon
  • Alltagz
  • BarraPunto
  • blinkbits
  • BlinkList
  • Bloglines
  • blogmarks
  • BlogMemes
  • Fark
  • Gwar
  • Klickts

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

2 Comments

  1. Robert Millan said,

    November 5, 2008 at 4:19 am

    Gravatar

    So is this reflecting in the stock market? We all know there’s a huge economic bubble around the patent hype. Could this be the detonator that bursts it?

  2. Roy Schestowitz said,

    November 5, 2008 at 4:31 am

    Gravatar

    Glyn wrote this yesterday:

    “Er, because banks never make mistakes, and are never motivated by blind greed? “A pretty positive sign”? I don’t think so….”

What Else is New


  1. Bill Gates' Personal Engineer Rick Jones is Connected to Other Child Pornographers. One Key Contact Works (or Worked) Indirectly for Microsoft.

    MagicHour listed Microsoft among their clients, as we noted before, and the full (redacted for child porn reasons) name is Brett Paine. We had reached out to the employer (several of us, separately), but we never received any reply.



  2. Links 3/8/2020: Linux 5.8, GNU Linux-libre 5.8, Libinput 1.16, Rust 1.45.2, Julia 1.5

    Links for the day



  3. IRC Proceedings: Sunday, August 02, 2020

    IRC logs for Sunday, August 02, 2020



  4. [Meme] Is It Not a Layoffs Round When You Rebrand It?

    More and more Microsoft layoffs; but the media is hardly interested in reporting those and/or analysing the growing scale of the layoffs (about half a dozen rounds of layoffs this summer alone)



  5. IBM is Already Gutting Red Hat and Firing Employees Without Warning, Jim Whitehurst Isn't Even Using GNU/Linux

    The situation at Red Hat isn’t good, employee morale is very low, and yet — perhaps unsurprisingly — nobody seems to be talking about it (at least not in the mainstream media)



  6. Microsoft Lays Off Many More Workers in the Advertising Division/s and Terminates Products While the Press is Distracted by TikTok Rumours

    Microsoft is laying off a huge number of workers without properly reporting these and whilst exploring ways to divert attention away from those layoffs



  7. Links 2/8/2020: Wine-Staging 5.14, VokoscreenNG 3.0.5

    Links for the day



  8. IBM and the Bomb - Part VI: Diplomacy Replaced With 'Trade' (Money Over Politics), or How Watson Jr. Was Sold to the Public, in the Same Way His Father (IBM Co-founder) Sold His Business Relationship With Dictators Like Hitler

    Sometimes people are led to believe that corporations directly and indirectly run their country; judging by the events of 4 decades ago (IBM chief becoming the American representative in Russia/Soviet Union), this is hardly a new thing and it's not a myth, either



  9. IBM and the Bomb - Part V: Arms Control by Company That Profits From Nuclear Arms? World War II Mistakes Repeated?

    A decade after the end of the deadliest war his father died and two decades later he repeated the same mistake — the error of conflating business with politics, as if maximising revenue would miraculously achieve the best outcome for nations as well



  10. IRC Proceedings: Saturday, August 01, 2020

    IRC logs for Saturday, August 01, 2020



  11. Links 2/8/2020: Nitrux 1.3.1, Debian GNU/Linux 10.5 “Buster” and Wine 5.14 Released

    Links for the day



  12. [Meme] Privilege: When They're Born Into Money That Means They Know Everything About Anything

    Tens of thousands of nuclear weapons were in 'safe hands' because rich kid Tom was representing the United States in Russia (USSR at the time), having proven his skills by being born to the man who had met Hitler and made lots of money in the Third Reich



  13. IBM and the Bomb - Part IV: IBM's Watson Came Under Fire for Representing the U.S. in U.S.S.R./Russia With No Qualifications or Any Relevant Experience

    There was certainly resistance to "Mr. rich man" Watson Jr. becoming a US diplomat owing to privilege (born into the 'right' family) rather than experience and/or political track record, symbolising a sort of "revolving doors" phenomenon -- namely overlap between business and politics, or money and power, respectively



  14. IBM Loves Power (and Nuclear POWER, or Expensive OpenPOWER) More Than It Loves GNU/Linux

    As we noted last week, IBM is very close to Modi because it is moving a lot of its workforce to India and this can become a future liability to IBM’s reputation (or lack thereof) as a tolerant firm



  15. IBM and the Bomb - Part III: IBM's Watson Jr. Rose From Business V.I.P. to U.S. Ambassador in the Soviet Union During the Cold War (Which IBM Profited From)

    Like his father, who was IBM‘s co-founder and later president of the International Chamber of Commerce (ICC), which helped the Nazis, Watson Jr. entered US and international politics in his later days; recently-declassified documents show us his political legacy



  16. Donald Trump's Trash Against China Helps Prop up Microsoft Monopoly and Distract From All the Microsoft Layoffs

    Microsoft as a surveillance giant of the United States government isn’t a myth; it was first in the PRISM programme of the NSA (Bill Gates is a loud proponent of NSA surveillance), it took over European Skype under mysterious circumstances, and now it might be getting TikTok as a ‘gift’ from Donald Trump’s friends and the imperialists, in effect confiscating Chinese assets for full-spectrum dominance



  17. [Meme] Testosterone Patent Office

    When you're running an office that's barely diverse at all and you paint a misleading picture of it expect backlash



  18. The Criminals Who Run the EPO Are Exploiting Lesbian, Gay, Bisexual and Transgender People to Distract From Their Corruption and Crimes

    The misuse of social justice causes by corporate interests has become grotesque; more people ought to speak about the ramifications and object/work against this misuse, which mostly serves to obscure or distract from the biggest issues



  19. EPO Workers Are Losing Their Homes and Losing Their Time Off; It's All About So-called 'Production'

    As another wave of attack on labour rights, European Patent Office (EPO) workers turn their homes into their workplaces and they no longer enjoy any real breaks from work (they work all year around, sometimes until midnight and overnight); they’re supposed to be thankful and even happy as if António Campinos does them a favour by not firing them (at least not yet) and because there’s a health crisis they should be grateful for anything thrown at them (Benoît Battistelli + disaster = Campinos)



  20. IRC Proceedings: Friday, July 31, 2020

    IRC logs for Friday, July 31, 2020



  21. Managing IP Still Champions Fake 'News' for Team UPC

    Managing IP does not care about its reputation; all it cares about is appeasing its clients by spreading falsehoods and perpetuating baseless hope



  22. Links 31/7/2020: Sys Admin Appreciation Day, GTK 3.99, Alpha of Wayland's Weston 9.0

    Links for the day



  23. IRC Proceedings: Thursday, July 30, 2020

    IRC logs for Thursday, July 30, 2020



  24. Microsoft Banned *GPLv3 (It Would Have Done the Same Even in GitHub Had GitHub Not Already Hosted GPLv3-Licensed Projects)

    Techrights reproduces this decade-old article from RMS



  25. People Who Believe Global Warning is a 'Hoax' Are the Types Who Might Think Microsoft Really Loves Linux

    Facts don’t seem to matter all that much when the Public Relations ‘industry’ pays to push lies (and “Microsoft loves Linux” is among those truly laughable lies, which are valuable to Microsoft's long-term objectives and are therefore repeated endlessly in the media for maximal effect)



  26. [Meme] GitHub is Not About Sharing But About Giving... Everything to Microsoft

    Microsoft wants to meet your ‘meet’ (meat) and assimilate it as Microsoft’s own; why would anyone still be giving anything (code, bug tracker, CI etc.) to proprietary and centralised (controlled by Microsoft) platforms in 2020? It’s a trap, as even the logo serves to suggest (octopuses putting their tentacles all over you and crushing you with their mouths).



  27. Bill Gates Calls the Chinese 'Pirates' (But He's Simply Projecting Again)

    The world's "most generous" person (according to publishers whom this "generous person" pays to write this) is saving the world from "pirates" (but not the ones in Somalia, just poor people in places like China)



  28. Microsoft Needs Linux (More Than GNU/Linux Needs Microsoft) for the Same Reason a Drowning Person Needs 'Revenge'

    There’s this persistent notion, based upon a deliberate lie (which Microsoft pays the media to perpetuate), that Microsoft has ‘come around’ and magically learned to “love” the competition (as if Ballmer and Nadella are opposites when they’re in fact friends and longtime colleagues); it’s obviously just a phase of a very old strategy and some out there are still in denial about it (this denial is being encouraged by the bribed publishers, notably the mainstream media)



  29. [Meme] It Was Only a Matter of Time All Along

    Taking boot level control away from computer users was a bad idea all along; giving Microsoft control over Linux booting was the icing on the cake (having to ask Microsoft for certificate/permission), not to mention an FSF award for it



  30. IBM and the Bomb - Part II: How IBM Sneaks Into Positions of Power (and Nuclear Power, Global Superpower, Nuclear Weapons)

    We remind readers of the role IBM played in unbridled armament (from which it profited a lot) whilst also picking diplomatic roles in the American government


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts