

An end to frivolous patents may finally be in sight - ryanb
http://www.economist.com/sciencetechnology/displayStory.cfm?story_id=15479680

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csmeder
If you don't want to read through all the explanation of what patents are and
why the they are too strict here is the two paragraphs of news:

"America’s Supreme Court is about to issue a ruling which, by all accounts,
will make it difficult, if not impossible, to get a patent for a business
process. And because most business processes are, at bottom, computer
algorithms, the Supreme Court’s judgment could also bar all sorts of software
patents in the process. As a result, a lot of patents for online shopping,
medical-diagnostic tests and procedures for executing trades on Wall Street
could be invalidated.

The roots of the dispute go back more than a decade to two inventors, Bernard
Bilski and Rand Warsaw, who sought to patent a method of hedging weather-
related risks in energy prices. The USPTO concluded that the process was too
abstract and denied the application. On appeal, the Federal Circuit actually
upheld the patent office’s decision—and said, crucially, that the process
would be eligible for a patent only if it was “tied to a particular machine or
apparatus” or if it “transformed a particular article into a different state
or thing”. Failing on both counts, the inventors took their case to the
Supreme Court, which has been pondering for the past few months whether the
“machine-or-transformation” test is an appropriate standard. It is hard to
conclude it is not. "

~~~
cduan
Not to be nitpicky with the article, but it's a little misleading when it says
(right above this quoted section):

 _"What is clear is that the “non-obviousness” part of the test for
patentability has not been applied anywhere near rigorously enough to internet
and business-process patents. Because they lack a history of “prior art” to
refer to, examiners and judges have granted a lot of shoddy patents for
software and business processes."_

Bilski has nothing to do with obviousness. Bilski is about the subject matter
requirement, which is that patents can only be granted on certain types of
inventions. For example, physical machines can be patented, but electronic
signals cannot.

This is another reason (in addition to Grellas's below) that I doubt Bilski
will have a big effect on software patents. Regardless of the outcome of the
case, it will be most likely easy to work around, simply by tying the software
to some sort of machine, be it a computer, mobile phone, embedded circuit, or
anything else.

------
grellas
I wouldn't hold my breath that the forthcoming _Bilski_ decision will put an
end to frivolous patents.

While it is true that the justices appeared to be highly skeptical at oral
argument of the patent claims being asserted in this case, one must remember
context here: in essence, _Bilski_ was _the_ decision by which the Federal
Circuit sought to rein in process patents in the first place, and it did so
with a rationale that, while clearly limiting such patents, relied on a
somewhat arbitrary test that finds no direct support in either the
constitution or the patent statutes (industry participants clearly see the
case as potentially major and have filed over 50 amicus, or "friend-of-the-
court" briefs with the Court). One might think of it as a pragmatic test by
which the Federal Circuit sought almost out of desperation to bring some
measure of sanity to this area.

It is never good news for your case, though, when the Supreme Court agrees to
hear a case that first adopted a novel test that the lower court basically
invented. This typically means that at least a good number of the justices are
prepared potentially to reverse that decision and, if that should occur here,
this will mean that there may be _broader_ scope than exists today for the
granting of process patents.

Again, the justices did not seem impressed at argument with the claims for
broad patentability as asserted by the claimant in this case and they may
easily rule against him, as did the Federal Circuit court. But they may choose
to rule on narrow grounds that perhaps strike down the Federal Circuit test
without attempting to define the rules definitively going forward (the Court
often does this on the theory that an issue will continue to develop over time
as it considers how best to finally deal with it).

It is a mistake to have raised expectations about the impact of this case in
striking down process and software patents. It may happen but, if it does,
that will be a surprise and not an expected outcome. In this sense, this piece
is a bit over-optimistic, in my view.

------
elecengin
I have to admit: this is one of the most well reasoned, clearly articulated
discussions of the patent system I have read in a very long time.

Only one portion that I think is misleading:

"Meanwhile, the loss of patent protection for software could make programmers
realise at last that they have more in common with authors, artists,
publishers and musicians than they ever had with molecular architects and chip
designers. In short, they produce expressions of ideas that are eminently
copyrightable."

As you can imagine, the process of copyrighting code is somewhat unwieldy. The
definition of what constitutes copyright violation (changing variable names?
functionally similar code with a differing structure?) and what constitutes
fair use is hazy. Is it the answer to the patent woes of today? Probably not,
but it could evolve into a more complete solution if/when it is more heavily
utilized and more cases are litigated to develop a stronger precedent.

~~~
pmjordan
_The definition of what constitutes copyright violation (changing variable
names? functionally similar code with a differing structure?) [...] is hazy._

I was under the impression that this was generally pretty clear-cut. What's
relevant is not primarily the content of the works but how they came about,
i.e. whether or not one of them is a derived work of the other. _Proving_ that
it is or isn't a derived work can be difficult, but I don't think that's a
problem with the law itself. (as usual: not a lawyer)

The definition of fair use is arguably hazy though, I agree on that.

~~~
jellicle
> What's relevant is not primarily the content of the works but how they came
> about, i.e. whether or not one of them is a derived work of the other.

No. What's relevant is the content of the works, not how they came about. If
you've been locked in a soundproof, opaque box since birth with nothing but a
typewriter, and you manage to type out part of the screenplay of Star Wars
without ever having seen it, you've still violated copyright. There are many,
many cases where no actual copying was ever proved and yet copyright violation
was found.

~~~
dandelany
While this is true of patents, it is _not_ true of copyrights. Independent
creation is a valid defense.

[http://en.wikipedia.org/wiki/United_States_copyright_law#Inf...](http://en.wikipedia.org/wiki/United_States_copyright_law#Infringement)

"[If] two individuals both create a story that by pure coincidence is nearly
identical, but each without knowledge of the other, there is no infringement
since there is no copying."

~~~
jellicle
Quoting Wikipedia for legal matters is better than nothing, I suppose, but
hardly decisive. In this case, Wikipedia is wrong, as I have noted: many
courts have found copyright infringement without any proof at all being
presented that anything was copied. With the facts given - two individuals
creating by pure coincidence a story that is nearly identical - whoever
published it first is going to win the court case, and the court will presume
that the other party copied it, even if no one testifies that they saw the
other party reading, editing, and copying from the first story.

If you by pure chance happen to have a music file on your hard drive that
decodes to play "Thriller" by Michael Jackson, and you claim that you created
it independently and have never heard of the song before, I assure you the
court will rule against you and the music publisher will not be required to
submit any proof that you copied it from, say, a CD of Jackson songs.

The "copy" in copyright is NOT copying the other person's work. It's producing
the copy you made. So in the story example, the second person's published
story is the infringing copy, "Copying" from the first story is not the
copying that is covered by copyright; it's the creation of items that appear
to be copies.

Wikipedia is simply wrong here and it's kind of sad that HN is so ignorant
about copyright law.

~~~
dandelany
Sorry, but quoting Wikipedia is better than quoting no evidence at all, which
is what you've done.

------
marciovm123
No matter what the decision is, there is an army of patent lawyers whose
livelihoods depend on the existing system. They will fight the only way they
know how (filling lots of lawsuits) for years before business practices
change.

------
jsharpe
While copyright does last for 70 years, it doesn't seem all that useful to
software developers. After all, if the idea behind a piece of software is not
protected, it is a relatively simple matter to rewrite it (if given the idea).

That said, an end to software patents would be welcome indeed. I wonder if
this would have any impact on the H.264 patent?

~~~
wheaties
Actually that very much scares me. What's to prevent any company from
copyrighting a small passage of code and then rigorously suing everyone and
their brother for it? At least with patents you can claim prior art.

~~~
lmkg
IANAL, but copyrights also differ from patents in that you have to show
intentional imitation, not just similarity. Since prior art would reasonably
prove that couldn't have copied something, this would imply that this avenue
of defense is strictly stronger than the prior art defense against patent
litigation. Some quotes from Wikipedia (with the usual caveats):

> "... two authors may own copyright on two substantially identical works, if
> it is determined that the duplication was coincidental, and neither was
> copied from the other."

> "Infringement requires... that the defendant copied the protected work... if
> two individuals both create a story that by pure coincidence is nearly
> identical, but each without knowledge of the other, there is no infringement
> since there is no copying."

------
sprachspiel
The transcript of the relevant Supreme Court hearing is the reason for hope
and is remarkable thoughtful:
[http://www.supremecourtus.gov/oral_arguments/argument_transc...](http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-964.pdf)

~~~
ajb
Not necessarily. Apparently, the justices are often toughest in argument with
the side they are thinking of ruling _for_.

------
Dove
No Sign of End to Headlines Expressing What _Might_ Be True

------
sabat
I don't feel as optimistic as the author does; yes, the SCOTUS is currently
examining what may turn into a landmark case on the patent system. However,
this is a seemingly addled Supreme Court, given some of its recent decisions
-- and many of the members are the same ones who didn't buy Larry Lessig's
assertion that copyright terms, currently the life of an author + 90 years, is
far beyond the constitution's "limited time" requirement.

~~~
dminor
Yes, but many of the questions raised by the justices were skeptical of
patenting abstract ideas. I think the consensus is that Bilski will lose, and
the real question is how narrow the Supreme Court's decision will be.

