
Software patents are crumbling, thanks to the Supreme Court - mcfunley
http://www.vox.com/2014/9/12/6138483/software-patents-are-crumbling-thanks-to-the-supreme-court
======
gbhn
It's time for Congress to do their bit and suspend assumed patent validity for
this broad class of patents. Its clear the review process was yielding vast
quantities of invalid patents. Making the courts invalidate them one-by-one is
crazy. Classifying them all as assumed-invalid would send a very clear message
to the patent office that it seriously fouled up and needs to straighten up in
evaluations, and also let patent trolls know that their payday is over.
Proving validity puts the technical burden on the patent troll, which in
almost all cases would be nearly insurmountable, since virtually all these
patents would likely be recognized by juries as obvious and invalid.

~~~
cordite
You'll have IBM and many others throwing a fit when their licensing deals are
invalidated indiscriminately.

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TheMagicHorsey
I'm not so optimistic as the article. The CAFC has lots of judges that came up
as patent attorneys, and who are true believers in the patent system. The June
decision by SCOTUS wasn't the first time the Court slapped down abstract
patents. The CAFC always finds new ways to get around what SCOTUS has tried to
be clear about.

On top of that, people underestimate the amount of shenanigans that patent
prosecutors pull during patent drafting and prosecution.

I don't think we will see an improvement to the trolling situation until
Congress steps in and changes some of the burdens and fee-shifting standards
for patent litigation.

Trolls need to have less weapons they can deploy to raise litigation cost, and
they need to be made to suffer for bringing BS cases against innocent
companies. Only Congress can make that happen.

Intellectual Ventures and its ilk are not going to sit idly while
entrepreneurs and tech companies go to Congress to get reform laws passed.
They will bring out the big cash piles, just like Comcast does for Net
Neutrality.

And patents isn't even as cut and dry as Net Neutrality. The minute you start
talking about patent reform, some well meaning person, who has no idea what
they are talking about, will bring up that movie about that inventor, who was
cheated by that big company, out of his hard earned inventions.

~~~
steveeq1
Yes, reminds me of that movie "Hot Coffee". Basically negated by "Enigma
Cheers" on amazon.com:

[http://www.tripperjones.com/stuff/hot_coffee_critique.txt](http://www.tripperjones.com/stuff/hot_coffee_critique.txt)

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ejr
It's worth noting that the ubiquity of these "on a computer" type patents and
similarly questionable other software patents is directly a result of the poor
handling of the entire patenting process as well as general incompetence Ex:
[http://arstechnica.com/science/2014/02/uspto-issues-
patent-f...](http://arstechnica.com/science/2014/02/uspto-issues-patent-for-
fraudulent-stem-cell-procedure/)

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drzaiusapelord
Is "on a computer" the real problem here? The problem I'm seeing is that we
have things like displaying a linked list, which is trivial, being awarded
patents by appending "on a mobile device" or "on a web page" or "On a payment
system."

I just don't think its possible to have software patents that make sense.
Abolishment of software patents seems to be the only sane move here.

~~~
monochromatic
> we have things like displaying a linked list, which is trivial, being
> awarded patents by appending "on a mobile device" or "on a web page" or "On
> a payment system."

Citation needed.

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WildUtah
Most of these are district court cases. The USA has a patent appeals court,
the Court of Appeals for the Federal Circuit [0], that takes all patent
appeals nationally. The doctrine about "do it on a computer" patents will be
formed by three judge panels chosen randomly from that appeals court, not by
the districts.

But the very good sign from these cases is most were decided on the pleadings.
That means there was no expensive discovery or claim construction procedure,
much less a jury trial. A decision on the pleadings means that even in the
best possible light, the patent holder doesn't have a case at all according to
the judge. There is no cheaper way to dispose of an expensive and lengthy
lawsuit. And a rule that can be disposed of on pleadings is exactly what
reformers wanted from the Supreme Court.

The CAFC has seen a few of these and so far Taranto and Hughes, two of the
newest Obama judges, have acquitted themselves superbly. We have well written
and conclusive decisions from them calling the whole "do it on a computer"
mess ineligible.

We'll have to wait and see how the more enthusiastic radicals for patenting
everything influence the outcomes. Three judges that wanted to hand a monopoly
on the centuries old, trillion dollar financial settlement industry to Alice
even when no technological procedures were disclosed in their patent are still
on the court: Moore, O'Malley, and Newman. Lourie was the swing vote in that
decision and also says that Ultramercial [1] should have a monopoly on
interstitial internet advertising because they wrote the century old idea up
with 'on the internet' tacked onto the end. There are eleven judges and one
empty slot on the CAFC so those four make up a large minority that will likely
press for "on a computer" patents to come back.

Chief Judge Prost, Judge Dyk, and the three new Obama appointees seem much
more rational and good for our industry. We should hope they are the ones who
shape the interpretation of Alice in the future.

And remember that while "on a computer" patents -- the ones that describe a
conventional business and add "on a computer" or "on the internet" without
anything added to known technology -- are falling, lots of damaging software
patents are still out there and apparently unharmed. The h.264 and mp3 patents
that block open and free media players and browsers are still functioning. The
ZFS and JFS patents that make BTRFS illegal are still out there. The compiler
and VM patents from IBM, Sun, and others that hang over the head of anyone who
writes either still exist. The long filename patents and others that Microsoft
uses to tax Android are still taxing. The UI patents on smartphones that drive
the smartphone wars are still driving them. New patents on computer vision,
deep neural nets, machine learning, GPU computation, multithreading
techniques, and more are being granted every tuesday.

Lucky for us, software patents that are on actual software are a lot less
lucrative than the ones on business "on a computer." Even in smartphone
litigation, most of the money verdicts depend on the shape of the box a
smartphone comes in; don't steal the idea of a rounded rectangle and your
lawsuit will be for tens of millions instead of billions. Still, every kind of
software patent is bad, dishonest, and harmful to our industry and progress.
They all need to go.

[0]
[http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_...](http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Federal_Circuit)

[1] [http://www.patentdocs.org/2013/06/ultramercial-inc-v-hulu-
ll...](http://www.patentdocs.org/2013/06/ultramercial-inc-v-hulu-llc-fed-
cir-2013.html)

~~~
sgt101
"Still, every kind of software patent is bad, dishonest, and harmful to our
industry and progress. They all need to go."

I don't agree.

If a genuine invention is made which contributes to the state of the art and
is significant then there are two options for monetizing it. It can be
patented, or it can be kept secret.

Which is more damaging?

~~~
pluma
This is a false dichotomy.

If someone makes such an invention, there is no incentive to keep it perfectly
secret (i.e. hide it in a filing cabinet and make no use of it that might hint
towards its existence) -- other than sheer paranoia or vanity.

Instead they will either sell it like any other trade secret or make use of
it. If they make use of it and it gives them a notable advantage over
competitors, the competitors will seek to either reverse engineer the
invention or invest in finding something that works equally well or even
better. If the competitors succeed, the original invention becomes obsolete
(rendering knowledge of it less valuable) or common knowledge.

What's more, a competitor or a non-commercial organization might decide to
publish their findings for various reasons ranging from harming the original
inventor by eliminating their advantage to benevolence / publicity /
"fostering innovation".

In the current situation a lot of patents are flat-out useless to anyone but
the holder. They either describe something that is blindingly obvious ("X on a
computer"), something that is already common knowledge (but nobody bothered
patenting before) or that is so vague the description itself is worthless to
anyone seeking to copy the idea when the patent has expired.

Patents are supposed to be a fair deal between the public and the applicant:
the applicant is offered legal protection to maintain a monopoly in a
technology they created for a limited amount of time but in return they have
to disclose their technology so anyone can copy it once the protection
expires.

If you take away that benefit to the public, it's just a blessed monopoly that
can be used to extort anyone who independently comes up with the same idea (or
shares the same common knowledge on which it is based). Even with that benefit
to the public most software patents would still be harmful because of their
insane longevity -- the software industry is disrupted on a monthly, weekly or
even daily basis, but patents can be maintained for more than a decade.

What's so bad if software patents were abolished? Copyright would still exist.
Trade secrets would still exist. Trademarks and trade dress would still exist.
NDAs and other legally binding agreements would still exist. At this point the
benefits of software patents are theoretical at best -- every single tech
company out there could potentially be sued into oblivion if they were to pop
up on the radar of a patent troll. Patent infringement has become SOP for
software companies -- not because they don't care about other people's IP but
because it's simply impossible to license every single "invention" your
company uses (and let's not get started on what the situation looks like for
contractors).

~~~
throwawaykf05
This is a very narrow view of reality.

1\. It's not vanity or paranoia, ideas do get stolen, bringing down startups
and setting back careers. I personally know of startups get ripped off by the
big guys as well as entire research papers being ripped off from professors.

2\. Reverse engineer Google's or Facebook's infrastructure, if it's that easy.
Conversely, I've seen people reverse engineer a product from its wireless
signals. It probably took years to build that product, but was reversed inside
a week. Similarly, it took Apple years to create and refine the iPhone UI, and
it took Android only a year to copy it. How is that fair? Secrecy works only
if your advantage is never exposed to the outside world, like when it's hidden
away in datacenters. And when it does work, how is that good for advancing the
industry?

3\. Your view assumes that every inventor can bring the invention to market.
Look around you - you are surrounded by technology that requires thousands of
different components and suppliers to make (of which of software is just one)
and one could invent an improvement to any of them. Example: you thought of a
more efficient way to transmit AC over power lines. How do you make, use or
sell it? Do not assume you work for a power company.

~~~
Filligree
"Fairness" was never the point.

The original ( _written_ , at least) intent of the patent laws was "to advance
the state of the art". Fairness to the inventor never enters into it, except
to the degree that such a thing is necessary to motivate inventions; if you
agree with that, then the patent laws should probably be mostly dismantled.

~~~
throwawaykf05
"Advancing the state of the art" like all things in patent law, was
deliberately broadly written because there are thousands of ways to do so and
infinite multitudes of nuances to consider. Fairness absolutely was, and
always has been, one of the main points. In fact, all property rights concern
fairness, and intellectual property rights are no different.

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roye
Nice development for trivial patents, but it makes me wonder if this could
lead to people having to defend their (e.g., algorithm) patents by appeal to
computational complexity or the physical constraints of human vs. computer
memory, etc.

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stormqloud
What exactly can you say except, about fucking time!

A small amount of common sense finally managed to stick to lawyers and the
legal profession.

Probably won't last. Lawyers get jealous when they can't control and
manipulate the little people.

~~~
afarrell
Why do you say that about lawyers moreso than software engineers or doctors?

~~~
spacemanmatt
Statistical representation in society's positions of power

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acjohnson55
Well, I'm glad SCOTUS seems to be doing something right. So much of their
decisions seem to be on the side of entrenched/powered/moneyed interests,
whether its the dismantling of the Voting Rights Act and campaign finance
reform, or the granting of increasing rights to corporations (like Hobby
Lobby).

~~~
rayiner
Its a conservative Supreme Court that had come down strongly in favor of free
expression and religious freedom. E.g. Brown v. EMA, the video game free
speech case. Different sides of the same coin.

What is insane to me are people who agree with Brown but disagree with
Citizens United. A political movie isn't free speech, but Grand Theft Auto
is?!

~~~
ghaff
Well, and for that matter, Hobby Lobby.

To me, the common thread is that they all come down on the side of greater
freedom of expression and freedom to take actions consistent with beliefs. But
both the Citizens United and Hobby Lobby decisions are anathema in circles
such as many tech communities. I suspect a lot has to do with personal
disagreement with the beliefs of the organizations involved even though the
discussion often gets reframed. Around catchphrases like "corporate
personhood" in the case of Citizens United.

~~~
danielweber
_even though the discussion often gets reframed. Around catchphrases like
"corporate personhood" in the case of Citizens United._

That's a funny one to listen for: people who think that _Citizens United_ had
anything to do with corporate personhood.

~~~
ghaff
In general, people are probably wrong to do so but "corporate personhood" was
widely tossed around in the context of the Citizens United decision:
[http://www.theatlantic.com/politics/archive/2012/07/the-
supr...](http://www.theatlantic.com/politics/archive/2012/07/the-supreme-
court-still-thinks-corporations-are-people/259995/)

(Not sure you were saying otherwise.)

As a soundbite, it's such a red herring anyway. Of course corporations act
like individuals in some ways (and not in others). Corporate entities can
enter into contracts that aren't tied to a particular employee. They generally
have freedom of speech. But they can't be put into prison (except
metaphorically.)

~~~
danielweber
To be fair, that guy is a politician, who makes his hay by deliberately
confusing the topic.

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sytelus
This might explain layoffs at king of all patent trolls IV:
[http://www.businessweek.com/articles/2014-08-19/intellectual...](http://www.businessweek.com/articles/2014-08-19/intellectual-
ventures-layoffs-hit-a-fifth-of-its-workforce)

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VikingCoder
Superman III and Office Space being mentioned in a District Court decision.
That's awesome.

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ChuckMcM
Glad to see how the courts are taking this up. Maybe they will torch the laser
pen pointer annoying cats patent too!

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ryandrake
Software patents exist, in part, because the programmers writing the software
are helping to patent their "inventions". Often the programmer's employer
offers a juicy cash bonus for each patent filed or granted. If you want to
help end software patents, put your money where your mouth is and refuse to
participate when your employer waves a $1,000 check at you to help them patent
your linked list visualizer.

~~~
loup-vaillant
You can't expect people to pay a great personal (opportunity) cost for the
benefit of society. Some do (give to charity and all), but most don't.

'Cause it's not just the $1000 check. If you refuse, that will likely be bad
for your career. Don't underestimate the nuisance power of your boss.

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martin1975
Can't wait to see Amazon's "One Click Buy" patent dismantled. It's way
overdue.

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jokoon
this article is about patents, and there's a mention of superman in there.

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RexRollman
One can hope.

