
Is the Supreme Court about to rule software ineligible for patent protection? - ars
http://www.forbes.com/sites/realspin/2014/03/16/is-the-supreme-court-about-to-rule-that-software-is-ineligible-for-patent-protection/
======
WildUtah
Betterdige's Law Of Headlines:

"Any headline which ends in a question mark can be answered by the word no."

Unfortunately here, as it would be great to have a wise and effective Supreme
Court.

The last time there was thought to be a chance to abolish software patents
before the court, four conservative justices were against abolition and Scalia
refused to join any opinion fully. (Scalia, comfortable knowing that he's the
smartest, is often willing to be humble when he isn't sure and says so.) That
situation is likely to repeat itself.

This is a much better article, incidentally:

[http://www.washingtonpost.com/blogs/the-
switch/wp/2014/02/26...](http://www.washingtonpost.com/blogs/the-
switch/wp/2014/02/26/will-the-supreme-court-save-us-from-software-patents/)

~~~
ars
That law may not apply here.

The basis for this law is that if the reporter can answer the question with a
"yes" they would simply report that.

However, this can't be done with a _future_ event. So for a future event the
law doesn't apply - the reporter isn't being lazy or trying to make something
out of nothing - the information is truly not available yet.

~~~
majika
Also, this "reporter" is the Associate Dean of Faculty and Professor of Law,
at the Emory University School of Law.

This is actually a pretty good article.

~~~
lambda
The writer of the headline and of the article are often not the same person;
this may be a fine article which had a poor headline attached by someone else.

------
todd8
I certainly hope so, and I have (around) fifteen myself including one that
covers the internet cookie and another which I think covers the Galois Counter
Mode for encryption or at least certain applications of GCM. I filed for these
as a part of my employment for IBM a long time ago (around 1988), and by now
all of my IBM patents have expired. When I left IBM to start my own company I
invented more than I did at IBM, but I chose to license our technology to the
Open Software Foundation instead of patenting it.

Part of my thinking in not filing for patents was that the big companies that
were our biggest competitors (IBM, HP, Sun, DEC) wouldn't be slowed down by
patents. They had armies of lawyers and big portfolios of patents and
inventions that would be used against us if we tried to enforce any of our
patents against them. Whether or not any of their claims were valid, we would
not have been able to afford the legal battle and would have been forced to
cross-license with them anyway.

Patent protection for software has always bothered me. Patents that made sense
in the days of steam engines just don't work well for software. Patents give
too much protection (preventing independent discovery of some idea from being
used) and last too long, way too long for the software industry (I think 4
years is plenty of time to get exclusive use for an idea in software).

Ideally, I would like to see patent protection to software eliminated and
replaced with a much easier to obtain protection for a couple of years. Or,
use copyright protection for software. Copyright protection is sensible since
it protects the programs from being stolen while allowing the ideas to be used
by others if they do an independent implementation.

~~~
TheMagicHorsey
You speak good sense.

You are a liability to the Patent Industry (the Patent Litigators, the Patent
Prosecutors, the Patent Trolls, the Patent Courts).

Watch now as some fucking moron, who has never built software in his entire
life, drops in to say that only with Software Patents does Silicon Valley
exist.

------
spiralpolitik
Let's rephrase the question. Will a right leaning supreme court make a
decision that will potentially cost big business millions if not billions of
dollars per year ?

I don't think you need a magic eight ball to answer that one.

~~~
marcosdumay
And what decision is that one costing billions of dollars per year?

~~~
spiralpolitik
Licensing of the IBM patent portfolio is routinely reported as being in excess
of $1 billion annually. If Software Patents get thrown out then so will a
chunk of that billion.

The sad reality about software patents is while they are a terrible thing,
there is too much power and money involved for a right leaning Supreme Court
to throw them out, and while in the short term you might see some meaningful
patent reform proposed, once the lobbyists get their way it certainly won't be
in favor of the the little guy.

~~~
hrjet
Big companies are on both ends of patent protection. Have we forgotten the
Oracle+MS+Apple v/s Android sagas already?

------
Jach
The Supreme Court already ruled against software patents in Gottschalk v.
Benson. So much for what the Supreme Court says.

If anyone is interested in the establishment's freakout that 2012's ruling
caused, look no further than here:
[http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-
pr...](http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-
prometheus/id=22920/) Here is an excerpt:

 _How long will it take the Federal Circuit to overrule this inexplicable
nonsense? The novice reader may find that question to be ignorant, since the
Supreme Court is the highest court of the United States. Those well acquainted
with the industry know that the Supreme Court is not the final word on
patentability, and while the claims at issue in this particular case are
unfortunately lost, the Federal Circuit will work to moderate (and eventually
overturn) this embarrassing display by the Supreme Court. This will eventually
be accomplished the same as it was after the Supreme Court definitively ruled
software is not patentable in Gottschalk v. Benson, and the same as the ruling
in KSR v. Teleflex will be overruled. I have taken issue with Chief Judge
Rader’s statements that nothing has changed in Federal Circuit jurisprudence
as a result of KSR, which is not technically true. What is true, however, is
that the Federal Circuit continues to refine the KSR “common sense test,”
narrowing the applicability in case after case and tightening the ability for
“common sense” to be used against an application. We are almost 5 years post
KSR and there is still a lot of work left to be done by the Federal Circuit to
finally overrule the Supreme Court’s KSR decision. It took almost 10 years to
overrule Gottschalk v. Benson, so we are likely in for a decade of work to
moderate the nonsense thrust upon the industry this morning.

Indeed, Breyer’s decision is the most intellectually dishonest decision I have
ever read, which is saying a lot given the utter contemptuous understanding of
patent law displayed by the Supreme Court over the years. It is truly
troubling that all 9 of the Justices concurred in what history will regard as
one of the worst decisions in the patent space EVER!

Yes, Congress will be asked to step in and rectify this absurd ruling, and
they should. Knowing how the legislative branch operates I cringe at the
thought of Congress coming to the rescue. The only thing that gives me solace
is that the industries summarily executed this morning have an A+ lobbying
game, which in Washington, DC means everything._

(By the way, I remembered this from the comment and discussion here:
[https://news.ycombinator.com/item?id=3732894](https://news.ycombinator.com/item?id=3732894))

~~~
dctoedt
> _The Supreme Court already ruled against software patents in Gottschalk v.
> Benson._

That's not accurate; the statement is too categorical. (All categorical
statements are bad, including this one.)

The 1972 _Gottschalk v. Benson_ case [1] involved claims to a particular type
of software, namely a machine-executed mathematical algorithm for converting
binary-coded decimal into pure binary. The Supreme Court ruled that those
particular claims were unpatentable. Much the same thing happened in 1978's
_Parker v. Flook_ case, involving claims to a method of updating an alarm
limit.

As often happens, however, the Court later refined its analysis as new cases
provided new fact patterns. In 1981 the Court ruled, in _Diamond v. Diehr_
[3], that a claim to controlling an otherwise-conventional physical process by
software was indeed patentable. More recently, in _Bilski v. Kappos_ [4], the
Court affirmed a rejection of claims to a particular software-implemented
method of hedging against the risk of price changes in commodities trading,
but it refused to impose a categorical exclusion of patentability for such
claims.

For what it's worth, I seldom if ever read IP Watchdog anymore (the source of
the parent comment's long italicized quote).

[1]
[http://en.wikipedia.org/wiki/Gottschalk_v._Benson](http://en.wikipedia.org/wiki/Gottschalk_v._Benson)

[2]
[http://en.wikipedia.org/wiki/Parker_v._Flook](http://en.wikipedia.org/wiki/Parker_v._Flook)

[3]
[http://en.wikipedia.org/wiki/Diamond_v._Diehr](http://en.wikipedia.org/wiki/Diamond_v._Diehr)

[4]
[http://en.wikipedia.org/wiki/Bilski_v._Kappos](http://en.wikipedia.org/wiki/Bilski_v._Kappos)

------
transfire
Software patents might not be so bad if 1) Patents didn't cost much nor
required renewals and expedited service fees, and all that crap; 2) were first
to invent, not first to file; and 3) officers at the USPTO actually had a clue
and didn't hand out patents for trivial things like wildcard matching with a
`*` character (yes, that happened just a few years ago).

~~~
tbrownaw
_2) were first to invent, not first to file;_

The bar for not being obvious should be high enough for this to not make a
difference. If two people (or teams, companies, whatever) independently invent
the same thing within... say, a year of eachother, that should be taken as
proof that it's too obvious to be patentable.

~~~
thaumasiotes
The logic here is fairly appalling; look at Newton vs Leibniz.

~~~
coldpie
You're right, the world would be a far better place if Calculus required a
licensing fee.

I know that wasn't your point, but seriously the idea of "intellectual
property" is so galling I can't believe anyone accepts it.

~~~
atom-morgan
If anyone disagress with coldpie, I'd recommend reading "Against Intellectual
Property" by Stephan Kinsella. I used to be in favor of IP laws until I read
that book.

------
korethr
While I would love to see software patents go away, I don't think we'll see
such happen through the courts. I think our best chance of that is through
Congress. From my understanding of what the constitution says about patents,
it's Congress' job anyway.

However, there'd be massive lobbying against such, from both patent trolls who
derive all of their revenue from such, and big powerful firms like Google,
Oracle, and IBM, who would lose legal cudgels against upstarts with the
temerity to be a (pontential) competitive threat.

So, while worth doing, getting Congress to invalidate software patents will
_not_ be easy.

~~~
higherpurpose
> In 2010, the Court found a method of hedging risk, a business method, was
> not eligible for patent protection because it was an abstract idea.

And yet, Microsoft and IBM still managed press Congress to keep it in the
latest patent reform.

[http://www.washingtonpost.com/blogs/the-
switch/wp/2013/11/20...](http://www.washingtonpost.com/blogs/the-
switch/wp/2013/11/20/software-patent-reform-just-died-in-the-house-thanks-to-
ibm-and-microsoft/)

This is what pisses me off about the US system. There's no Constitutionality
check _prior_ to "enabling" a new law (and after the president signs it). So
even if the Supreme Court declares something outright unconstitutional,
Congress could still pass a law allowing that. That seems pretty crazy to me.

There needs to be a Constitutional Court, who's much like the Supreme Court,
but who's job is not to take lawsuits, but to verify bills for
constitutionality before becoming laws. This is how it's done in other
countries, and the chance for passing something unconstitutional is much
lower. The Supreme Court would still have the final word, if one law does get
through the Constitutional Court (either because the CC judges weren't on
their game, or they became more corrupt due to more direct pressure from the
government to allow a certain law), and then that law ends up at the Supreme
Court through lawsuits.

~~~
gamblor956
They already have that. It's called _every single Federal court, ever._

The proper means for determining the constitutionality of a law is after it
has been passed, but before it takes effect. There is no reason to determine
the constitutionality of a bill before the bill has been passed, as it might
not become law. _Thousands_ of bills are considered every year. Wasting court
resources on those bills, and especially the multitude of bills that would
never even become law, would preclude the courts from handling anything else.

Bills never become effective immediately--there is always at least a few days
of delay. If the constitutionality of a law is at issue, someone will
challenge it in federal court, at which time the courts will review it.
Generally, at that point the law is suspended so that it does not take effect
until the constitutional review is completed.

------
rayiner
No, because Section 101 states that the subject matter of patent is extremely
broad, and there is no statutory basis for creating an categorical distinction
for software. They may, however, rule in a way that makes it harder to get
particular kinds of software patents.

~~~
WildUtah
35 USC §101:

"Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title."

Yes, rayiner, that's pretty broad but I don't see software in the list. Maybe
I copied it out wrong?

~~~
res0nat0r
That statement includes software, not explicitly excludes it, unless I'm
missing something.

~~~
Glyptodon
Software is math. Math is not eligible. Should be pretty clear.

~~~
Crito
To head off the _inevitable_ responses, you can _describe_ a Wankel engine
with mathematical expressions, but a Wankel engine is not itself a
mathematical expression. Blueprints are mere descriptions of Wankel engines.
However a "description" of an algorithm _is_ the algorithm.

An algorithm _is_ a mathematical expression, not merely something that can be
described with mathematical expressions.

Consider my "method/process patent" for finding the length of a hypotenuse. It
is easy to see why that is straight up math, and therefore should not be
patentable. However just because they don't teach the notation used for
expressing algorithms in primary school does not mean that it is not math.

The Pythagorean Theorem is ancient so it was never in any danger, but consider
FFTs. FFT algorithms were not patented, but imagine what a shame it would be
if they were. These type of patents have no business existing.

~~~
hackinthebochs
> FFT algorithms were not patented, but imagine what a shame it would be if
> they were.

The only way this conclusion follows is if you're judging patentability of an
idea by the impact the idea has had. This is plainly absurd. Lets consider the
opposite, what if it were invented but the algorithm kept secret because
patent protection didn't exist. Would humanity have been better off in that
scenario? Processes like the FFT are exactly the types of software that are
reasonable to patent, and yet you want to claim the opposite precisely because
it was non-obvious and so important?

~~~
Crito
FFT algorithms _were not_ patented and _were not_ kept secret for lack of a
patent. Supposing that FFTs may have been kept secret for lack of patents is
_absurd_ because _we already know what happened with FFTs without patents_.
Even if they had been kept secret, FFTs would have been reinvented at minimal
cost to society. Had IBM patented them, society would have been fucked out of
them for two decades.

FFT, and things like it, are exactly the sort of software that _should not_ be
patented. Patent your minimal-clicking checkout process or bouncy kinetic
scrolling all you want, I don't _like_ those patents but they are reasonable.
Those ideas aren't algorithms, they only use them; if I hold the patent for
kinetic scrolling in my hand, I am not holding kinetic scrolling itself in my
hand. If I hold an FFT algorithm patent in my hand, I am holding _an FFT
algorithm itself_ in my hand. Patenting _algorithms themselves_ is patently
absurd.

Would you be okay with the Pythagorean Theorem being patented as well?
Mathematics does not currently suffer a trade-secret problem. Introducing
patents would do nothing but harm to society, while enriching corporations.

What else do you believe to be patentable? Should Newton and Leibniz have
escalated their conflict to an all-out patent war? Calculus is non-obvious and
wildly important; would society be better off if it were patented?

Or hell, maybe Feynman should have patented Feynman Diagrams! If we are
patenting mathematical expressions, why not throw in novel and useful
notations for mathematical expressions as well! Any mathematician, physicist,
or engineer will have to join the _Mathematics Patents Experts Group_ in order
to get any useful work done without being sued into homelessness, but at least
all of those people won't be keeping their creations and discoveries secret,
right?

Edit: Response:

Patents are for the benefit of society, not for the benefit of the creators.
You _cannot_ evaluate the merit of patentablity without considering the
benefit to society.

We are _sure as shit_ better off in a society where anyone doing ML research
doesn't have to license ideas from IBM.

~~~
hackinthebochs
So your view its "absurd" to consider what would have happened had a plausible
scenario occurred to discover the implications? Clearly this is nonsense.
Moving on.

>FFT, and things like it, are exactly the sort of software that should not be
patented.

Again, you are judging patentability by the impact of the idea. This is
nonsense. For every idea worth patenting that has been invented, the world
would be better off if everyone could use that idea unencumbered. This is a
tautology. The interesting question is: how many of those ideas would remain
trade secrets if they weren't patentable? This is the meaningful question
here.

Had IBM chosen to keep it secret (and perhaps it would have been a smart
business decision to do so), the world would be decidedly worse off. If they
had patented it, the world would be _better off_ compared to the world where
that invention was kept a trade secret. This is the meaningful conclusion to
be drawn from the FFT scenario.

So you don't like hypotheticals? Fine--lets consider Watson. How it works is
currently a trade secret. Is the world better off for them keeping it a secret
or publicizing and patenting it? I'll let you decide that one.

~~~
CamperBob2
Cooley and Tukey didn't so much _invent_ the FFT as rediscover it. The
earliest description was (as usual) buried in one of Carl Friedrich Gauss's
notebooks.

By the 1960s, the algorithm's time had come. It is inconceivable that it would
have remained obscure for much longer -- patent or no patent, trade secret or
no trade secret. Software simply does not work that way.

~~~
hackinthebochs
Yes, lets avoid the interesting discussion with irrelevant and uninteresting
tangential points.

------
batoure
The article begs an interesting question ignoring its link bating headline.
Mainly is the supreme court over reaching when it comes to patent law and if
so why.

>The United States has an expert “patent court,”the United States Court of
Appeals for the Federal Circuit, that hears every appeal from around the
country in cases that arise under the country’s patent laws. From California
to Florida, any patent appeal goes to the Federal Circuit. Unlike areas of the
law, the Federal Circuit creates nationally uniform legal standards for patent
law. One of the key reasons the Supreme Court will take a case is when lower
courts disagree on a legal issue. But, with patent law’s single appellate
court, no such splits arise.

I get the reason why the court would want to not hear these cases based on
this but I feel like it isn't clear why they would, and by that i mean a legal
basis besides the obvious a philosophical wish to dismantle patent law (after
an appropriate amount of googling I still have no answer) any lawyers or law-
school dropouts turned programmers around who might explain this?

~~~
WildUtah
The CAFC is less an "expert" patent court than a notoriously corrupt patent
court. [0] The corruption isn't the furtively-passing sacks of cash kind but
the kind where unaccountable people are put in charge of their own power and
prestige and ignore the rules that place limits on their power. [1] The
Supreme Court naturally feels somewhat offended when lower courts overturn
their decisions. [1 again]

[0] [http://www.patentprogress.org/systemic-problems/how-we-
got-h...](http://www.patentprogress.org/systemic-problems/how-we-got-here/)

[1] read the fourth paragraph from the end of this otherwise execrable article
starting with "How long will it take"
[http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-
pr...](http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-
prometheus/id=22920/)

~~~
rayiner
People on this site have an absurd tendency to view everyone who disagrees
with them "corrupt." CAFC isn't corrupt. It does have a less than diverse
representation of engineering perspectives, however.

My degree is in aerospace engineering, and I went to a school known for its
traditional engineering programs (mechanical, chemical, aerospace,
electrical). In this world, patents aren't viewed negatively the way they are
in the software world. First because the capital requirements to enter the
field are high, so you don't have little companies for whom a patent suit is
an existential crisis. Second, because development is capital intensive. Pratt
& Whitney develops new turbine blade designs, and patents them because
developing them is tremendously expensive. In software, there is a huge field
of things that are patentable that don't fulfill the economic rationale of
patent (protecting expensive capital investment from free riding). So the
attitude in software is very different.

CAFC is full of people with backgrounds in traditional engineering fields.
Think DuPont rather than Dropbox. They have a very different perspective, and
it is neither corrupt nor invalid.

~~~
ScottBurson
_What explains the Federal Circuit 's relentless pro-patent bias? One obvious
theory is what economists call "regulatory capture": the theory that over
time, public officials will come to identify with the interest groups they are
supposed to be supervising. The theory is usually applied to regulatory
agencies in the executive branch (think FCC commissioners becoming Comcast
lobbyists), but the theory seems to fit the Federal Circuit as well.

Patent attorneys tend to have a pro-patent bias, and these attitudes seem to
have rubbed off on Federal Circuit judges. Most obviously, a significant
minority of Federal Circuit judges have been patent lawyers themselves,
whereas judges on other courts almost never come from a patent law background.
But beyond that, the heavy load of patent cases on the court's docket means
that the judges of the Federal Circuit are constantly interacting with patent
lawyers. In addition to hearing their arguments in the courtroom, they read
the same patent law publications as the lawyers, hire young patent lawyers to
clerk for them, and are invited to speak at events organized by the patent
bar.

Moreover, the prestige of the Federal Circuit itself is directly tied to the
prominence of patent law in the American legal system. If the Federal Circuit
had followed the stricter rules in place before the court was created, patent
law might have remained a legal backwater, receiving little attention from
either the legal profession or the general public. That, of course, would have
made the Federal Circuit a less prestigious place to work._ (From [0].)

"Corrupt" doesn't seem like too strong a word to me.

And yes, on top of that, they know very little about software.

[0] [http://arstechnica.com/tech-policy/2012/09/how-a-rogue-
appea...](http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appeals-
court-wrecked-the-patent-system/)

~~~
rayiner
I don't disagree with that, but I'd hardly call it corrupt. Its no different
than how a lot of people in SV hang out in the same circles, listen to the
same people, read the same sources, and develop a distinct way of looking at
things. Case in point: I think there is a strong group think in SV that
creates an idiosyncratic view of the economic importance of small startups.
The fact that other people in other industries can be influenced by groupthink
that causes them to maybe overvalue patent protections is hardly a sign of
corruption.

~~~
ScottBurson
They have a personal interest, albeit indirect, in tending to decide in favor
of patentees. They ignore the Supreme Court's repeated (if somewhat muddled)
attempts to get them to take a more balanced view.

I will grant that they're probably not _cynically_ corrupt: they probably
sincerely believe they're doing the right thing for the country. But the
convergence of this belief with their personal interests is just a little too
convenient.

~~~
rayiner
In terms of direct personal interest, it's hard to get someone less interested
than a federal COA judge. They have life tenure and a Constitutionally
guaranteed six figure salary. They typically serve for life and it is
exceedingly rare for them to ever return to private practice. They also have a
direct incentive to make patentability more difficult: it means more work for
them at no additional pay.

Do they have an indirect interest in making themselves more relevant?
Possibly, but so does any court. Yet the overwhelming trend over the last few
decades has been for the courts to cede territory. Strongly favoring
arbitration, giving broad interpretation to bars like standing, etc. Most
people worry about the opposite problem: courts declining to exercise
jurisdiction in the face of the other two branches.

Calling this "corruption" stretches the word to the point it loses any
meaning, and also deeply confuses the causation. The Federal Circuit doesn't
skew towards aggrandizing patent law because they somehow want to benefit
their former colleagues in practice (and some of the strongest advocates like
Judge Reader never even practiced!) Rather, people who strongly believe in
patent protections self-select into becoming Federal Circuit judges.

~~~
ScottBurson
All right, point taken.

But I still think a strong word is called for, and I don't have a ready
alternative. Maybe "renegade", the term Scalia used for the Eastern District
of Texas, will do. "Ideological" doesn't quite seem strong enough to me,
though it's getting there.

------
Kiro
I'm glad I live outside the US where software patents don't exist. I can ship
whatever I want without being worried.

------
jseliger
I sent this article to a friend who is a patent attorney, and he hasn't
followed the case but based on this:
[http://patentlyo.com/patent/2014/03/software-patent-
eligibil...](http://patentlyo.com/patent/2014/03/software-patent-
eligibility.html) the Forbes article's claims are unlikely.

~~~
magicalist
Hmm, I don't understand. This is a summary of briefs filed for this case, so
you're going to get opinions all over the map.

------
SmallBets
First software, next seeds.

~~~
lotsofmangos
I was thinking about gene patents recently and was wondering, if a genetic
therapy was patented and an enthusiastic virus managed to carry it into your
germ cells and then you had kids, what would happen to the claim of ownership
on the patented genetics?

~~~
Dylan16807
So far the rulings have been that you can have the genes from accidental
contamination but you cannot go out of your way to take advantage of them.
Which I think is stupid, but it's a consistent and workable rule.

~~~
lotsofmangos
Under that ruling, if you found out that you were passing on a gene therapy,
you would be disallowed from having children with a partner where the gene is
likely to be therapeutic in the children.

~~~
Dylan16807
No. Out of your way.

~~~
lotsofmangos
How do you prove you haven't gone out of your way if you start seeing that
person after finding out that your germ cells were carrying the patented
material?

------
chenster
AMEN!

------
NextUserName
Nope, too much money/power involved.

