11.11.09

Gemini version available ♊︎

Patents Roundup: Why Software Patents Are Harmful; Status Update Re Bilski

Posted in Law, Patents at 7:37 am by Dr. Roy Schestowitz

Gears sketch

Summary: A lot of new links about software patents and In Re Bilski

Software patents have tangible costs for innovation, and for you [via]

One thing that I find extremely frustrating about many legal scholars’ and economists’ approach to patents is that they make two false assumptions. The first assumption is that transaction costs are acceptable, or can be made so with some modest reforms. The second assumption is that patent litigation is reasonably “precise”; i.e., if you don’t infringe on something then you’ll be able to build useful technology and bring it to market relatively unhindered. As my friend’s story shows, both of these assumptions are laughably false. I mean, just black-is-white, up-is-down, slavery-is-freedom, we-have-always-been-at-war-with-Eastasia false.

The end result is that our patent system encourages “land grab” behavior which could practically serve as the dictionary definition of rent-seeking. The closest analogy is to a conquistador planting a flag on a random outcropping of rock at the tip of some peninsula, and then saying “I claim all this land for Spain”, and then the entire Western hemisphere allegedly becomes the property of the Spanish crown. This is a theory of property that’s light-years away from any Lockean notion of mixing your labor with the land or any Smithian notion of promoting economic efficiency. And yet it’s the state of the law for software patents. Your business plan can literally be to build a half-assed implementation of some straightforward idea (or, in the case of Intellectual Ventures, don’t build it at all), file a patent, and subsequently sue the pants off anybody who comes anywhere near the turf you’ve claimed. And if they do come near your turf, regardless of how much of their own sweat and blood they put into their independent invention, the legal system’s going go off under them like a land mine.

‘Intellectual Property’ a Violation of Real Property

Proprietary software advocates would probably be most concerned with money whereas ironically Free Software advocates, especially those who promote GNU General Public License (GPL), would be concerned with power.

[...]

Intellectual property is a lie, thus its enforcement by means of the copyright law is nothing more than institutionalized violation of real property rights by means of granting government enforced monopolies to authors. They are given the power to dictate how individuals who never entered any agreements with them and instead got it from someone else will use their own property (hard drives, DVD players and burners etc.).

BMW seeks to patent technological creative thinking?!

Yes, you read the headline correctly. BMW has filed a patent for a “Method for Systematically Identifying Technology-Based Solutions.” Broken down into non-lawyer speak, BMW thinks it has identified the ways in which technology can solve problems. In other words, they want to patent the methodology behind technological problem solving.

Supreme Court Considers Software Patents

Those arguing that patent rights should be restricted say that “business method patents amount to a tax on Internet commerce.” On the other hand, small software companies, financial services companies and others argue that their inability to protect software “cripples” the ability of smaller companies to compete.

Supreme Skepticism Over Bilski Claims Puts Method Patents on Shaky Ground

For the first time in almost 30 years, the U.S. Supreme Court on Monday considered the issue of what types of technology should be eligible for patent protection when it heard oral arguments in Bilski v. Kappos.

Justices Show Supreme Skepticism About Broad Business Model Patents

Bilski oral argument highlights (or rather, lowlights…)

Bilski’s hearing and software patents [via Digital Majority]

At Monday’s hearing (court transcript), neither party had the objective of abolishing software patents. The Bilski case is about a business method patent, so there was Mr. Jakes arguing that business methods should be patentable, and Mr. Stewart arguing that they shouldn’t. For software to be excluded, we’re relying on the judges (to whom we wrote an amicus brief, as did many others). There’re a few worrying statements, but there’s also a lot of hope.

On the issue of business methods, the judges were very sceptical but mentioned many times that they don’t see an obvious place to draw the line. Indeed, they seemed to find Jakes’ position comical at times, and also found Stewart not going far enough and said that with his proposed interpretation, a computer could be added to any idea to make a patentable “machine”, thus also failing to exclude business method patents. There are also some worrying statements in there, like Justice Sotomayor calling the 2008 CAFC in re Bilski ruling “extreme“.

Software patent case arrives at Supreme Court

With the tech industry looking on, the Supreme Court today will explore what types of inventions should be eligible for a patent in a pivotal case that could undermine such legal protections for software.

Business Method Patents: Technological Change, Not Judicial Activism

The judicial activism thesis may have a superficial appeal. State Street was a highly visible and prominent pronouncement by the federal court having nationwide jurisdiction over patent cases. It may seem reasonable to attribute tremendous implications to such a famous judicial opinion. Yet the judicial activism thesis suffers from multiple glaring problems and plainly cannot account for the timing of the rise in business method patenting, which plainly began well before State Street.

Patent law must not stifle innovation

In a world of constantly accelerating technological change, economic prosperity depends on innovation. To support such innovation, it is vital that our patent system be well-calibrated, so that overly broad patent monopolies do not choke innovation. In the last several years, patent standards have been relaxed by the courts, which has created a patent system that hinders innovation in the software industry.

[...]

Such lawsuits can be ruinously expensive – including, for an average-size case, millions of dollars in attorneys’ fees. Large software companies have developed defenses against some patent threats, including obtaining their own patents that they may use to bring countersuits if attacked. This strategy is only available to well-financed companies. Even large companies face increased litigation risks from businesses with no purpose other than exploiting patents. These businesses – called non-practicing entities, or, less politely, patent trolls – buy patents not with a view of producing products, but rather so that they can demand ransom from operating companies.

High Court Must Lower Bar For Patents

Due to an important federal circuit court of appeals decision last year, this type of powerful innovation may no longer be patentable. In upholding a lower court ruling, the federal circuit wrote that a business process (like online banking) must be “tied to a machine” or transform “a substance into a different state or thing” in order to qualify for patent protection. This “machine or transformation” test, as it is called, is too rigid to incite innovation.

An Important Patent Law Precedent Approaches

So now, shorn of all the technicalities, the Supreme Court gets a chance to say whether it means what it’s always said, or whether it wants to endorse the fast and flashy round-heeled patent system we were running during the boom times. Of course, it can always do nothing at all, or make a new alternative that wasn’t there before; that’s what being the Supreme Court means, as any Legal Realist will tell you. But one thing is certain, that if they wind up saying anything at all, what the Justices say in this case will determine the course of patent law for a long time to come.

A Math Geek’s Ride to the High Court in Landmark Patent Fight

The company is marketing the product even without the patent, so Warsaw was asked: Why keep fighting for it? “Our revenues are down millions of dollars because we don’t have the patent” and the royalty stream that would have resulted, he said. “We have no market power. That’s the essence of it. You can’t protect your interests.”

Bilski Supreme Court Preview: Finnegan Lawyer Challenging ‘Machine or Transformation’ Patent Test Says He’s Ready

The appellate court ruled that in order for a business method to receive patent protection, it would need to either “transform [an] article to a different state or thing,” or be “tied to a particular machine.” The opinion sent the patent bar into an uproar, with businesses asserting that the new standard jeopardized patents on all kinds of highly valuable intellectual property, including software.

Supreme Court to decide: What kind of innovations get a patent?

At issue is whether US patent protection must be limited to inventions involving machines and transformative processes, or whether patent law also embraces nonphysical inventions like improved business methods and software innovations.

The case, Bilski v. Kappos, is viewed as a potential landmark in patent law. It has attracted 67 friend-of-the-court briefs from lawyers, scholars, and businesses, including Microsoft, the Biotechnology Industry Organization, Bank of America, Google, Yahoo, and L.L. Bean.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Links 18/1/2022: GNOME 42 Alpha and KStars 3.5.7

    Links for the day



  2. IRC Proceedings: Monday, January 17, 2022

    IRC logs for Monday, January 17, 2022



  3. Links 17/1/2022: More Microsoft-Connected FUD Against Linux as Its Share Continues to Fall

    Links for the day



  4. The GUI Challenge

    The latest article from Andy concerns the Command Line Challenge



  5. Links 17/1/2022: digiKam 7.5.0 and GhostBSD 22.01.12 Released

    Links for the day



  6. IRC Proceedings: Sunday, January 16, 2022

    IRC logs for Sunday, January 16, 2022



  7. Links 17/1/2022: postmarketOS 21.12 Service Pack 1 and Mumble 1.4 Released

    Links for the day



  8. [Meme] Gemini Space (or Geminispace): From 441 Working Capsules to 1,600 Working Capsules in Just 12 Months

    Gemini space now boasts 1,600 working capsules, a massive growth compared to last January, as we noted the other day (1,600 is now official)



  9. [Meme] European Patent Office Space

    The EPO maintains a culture of illegal surveillance, inherited from Benoît Battistelli and taken to a whole new level by António Campinos



  10. Gemini Rings (Like Webrings) and Shared Spaces in Geminspace

    Much like the Web of 20+ years ago, Gemini lets online communities — real communities (not abused tenants, groomed to be ‘monetised’ like in Facebook or Flickr) — form networks, guilds, and rings



  11. Links 16/1/2022: Latte Dock 0.11 and librest 0.9.0

    Links for the day



  12. The Corporate Cabal (and Spy Agencies-Enabled Monopolies) Engages in Raiding of the Free Software Community and Hacker Culture

    In an overt attack on the people who actually did all the work — the geeks who built excellent software to be gradually privatised through the Linux Foundation (a sort of price-fixing and openwashing cartel for shared interests of proprietary software firms) — is receiving more widespread condemnation; even the OSI has been bribed to become a part-time Microsoft outsourcer as organisations are easier to corrupt than communities



  13. EPO's Web Site Constantly Spammed by Lies About Privacy While EPO Breaks the Law and Outsources Data to the United States

    The António Campinos-led EPO works for imperialism, it not only protects the rich; sadly, António’s father isn’t alive anymore and surely he would blast his son for doing what he does to progress his career while lying to staff and European citizens



  14. Links 16/1/2022: Tsunami and Patents

    Links for the day



  15. IRC Proceedings: Saturday, January 15, 2022

    IRC logs for Saturday, January 15, 2022



  16. Links 16/1/2022: Year of the GNU/Linux Desktop and Catch-up With Patent Misinformation

    Links for the day



  17. Patrick Breyer, Unlike Most German Politicians, Highlights the Fact That Unified Patent Court (UPC) and Unitary Patent Are Incompatible With EU Law

    A longtime critic of EPO abuses (under both Benoît Battistelli and António Campinos leadership), as well as a vocal critic of software patents, steps in to point out the very obvious



  18. Links 15/1/2022: Flameshot 11.0 and Libvirt 8.0

    Links for the day



  19. Blogging and Microblogging in Geminispace With Gemini Protocol

    Writing one’s thoughts and other things in Geminispace — even without setting up a Gemini server — is totally possible; gateways and services do exist for this purpose



  20. Links 15/1/2022: Raspberry Pi in Business

    Links for the day



  21. IRC Proceedings: Friday, January 14, 2022

    IRC logs for Friday, January 14, 2022



  22. Gemini Clients: Comparing Moonlander, Telescope, Amfora, Kristall, and Lagrange (Newer and Older)

    There are many independent implementations of clients (similar to Web browsers) that deal with Gemini protocol and today we compare them visually, using Techrights as a test case/capsule



  23. 2022 Starts With Censorship of Christmas and Other Greetings at the EPO

    The nihilists who run the EPO want a monopoly on holiday greetings; to make matters worse, they’re censoring staff representatives in their intranet whilst inconsistently applying said policies



  24. Links 14/1/2022: FFmpeg 5.0 and Wine 7.0 RC6

    Links for the day



  25. White House Asking Proprietary Software Companies That Add NSA Back Doors About Their Views on 'Open Source' Security

    The US government wants us to think that in order to tackle security issues we need to reach out to the collective 'wisdom' of the very culprits who created the security mess in the first place (even by intention, for imperialistic objectives)



  26. Links 14/1/2022: EasyOS 3.2.1 and Qt 6.3 Alpha

    Links for the day



  27. Scientific Excellence and the Debian Social Contract

    The Debian Project turns 30 next year; in spite of it being so ubiquitous (most of the important distros of GNU/Linux are based on Debian) it is suffering growing pains and some of that boils down to corporate cash and toxic, deeply divisive politics



  28. Links 14/1/2022: openSUSE Leap 15.2 EoL, VFX Designers Are Using GNU/Linux

    Links for the day



  29. IRC Proceedings: Thursday, January 13, 2022

    IRC logs for Thursday, January 13, 2022



  30. 2022 Commences With Microsoft-Themed (and Microsoft-Connected) FUD Against GNU/Linux

    A psychopathic Microsoft, aided by operatives inside the mainstream and so-called 'tech' media, keeps spreading old and invalid stigma about "Linux" and Free software; few people still bother responding to these fact-free FUD campaigns, which boil down to ‘perception management’ PR/propaganda


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