

Bilski Oral Argument at the US Supreme Court (Software Patent Case) - tsally
http://www.fsf.org/blogs/community/supreme-court-bilski

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grellas
I spoke the other day with a lawyer buddy of mine who is a leading patent
lawyer in Silicon Valley, and here is what he had to say about _Bilski_ :

1\. The USPTO has in fact tightened up significantly on the granting of
software patents for the past five years, meaning that the flaky ones (like
One-Click) are historical artifacts and not indicative of current practice.

2\. There is nothing in the law that can reasonably be interpreted to impose a
ban on software patents and this will not happen in _Bilski_.

3\. Abuses in the field are rampant, with patents mills acting much like
extortionists running a protection racket.

4\. In the long run, the problems will be largely self-correcting, as the same
blizzard of software patents that now clogs the system will eventually become
prior art that will serve as the best defense against trivial patents of the
future that would otherwise hinder innovation.

Take the points for what they are worth. Personally, I think Bilski's claims
will go down, as will the absurdly expansionist interpretations proferred by
his lawyer, but this will not put an end to software patents. It is _Congress_
which is constitutionally charged with defining patentable subject matter and
it will take nothing less than an act of Congress to impose definitive reform
in this area.

~~~
mikedouglas
It should be noted that Amazon's one-click patent was just reaffirmed[0] by
the USPTO.

[0]: [http://arstechnica.com/tech-
policy/news/2010/03/controversia...](http://arstechnica.com/tech-
policy/news/2010/03/controversial-amazon-1-click-patent-survives-review.ars)

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fnid2
_Now imagine that you are a programmer wanting to solve a problem by writing
some code. How will you know whether there might be a claim against your work
by an entity holding one of these 200,000 patents?_

What if you are a mechanical engineer who wants to construct a new invention?
How will you know if someone holds a patent claim on it already? What if you
are a chemical engineer who wants to invent a new substance and someone has a
patent claim on that?

The entire _universe_ is nothing but math. It's all math. Statics and Dynamics
is no more or less math than encryption algorithms. Everything that can be
patented moves physical objects around the universe, whether they are magnetic
poles on a spinning disk or they are levers, motors, and dirt and there are
myriad patents on backhoes, cranes, and forklifts.

Math is all there is. Software is no more or less math than a lightbulb.
_Everything_ is math, because math is just a language used to describe the
physical world around us.

The problems stated here are not unique to software, they exist in _all_
fields where innovation is essential. Either do away with all patents or do
away with no patents and reform the _entire_ system.

Software is no more or less important than the planetary gear system in the
Toyota Prius. Would the world be better if Ford, GM, and Honda could use the
planetary drive system in their Hybrid cars? Maybe not! Maybe we wouldn't have
a planetary drive at all! Why would Toyota spend so much money on R&D to build
a great hybrid system if they knew Ford was just going to take their hard
earned and _expensive_ invention and make a bazillion dollars on it.

Ford can use the planetary drive if they pay to license it. Software
developers can use patented algorithms if they pay to license them too --
that's the whole point -- _protect the innovators who pour their hearts,
minds, and souls into making the world a better place_.

Unless there is a profitable mechanism like patents to protect intellectual
property, the risk/reward ratio becomes prohibitive and I am not sure
innovation won't be hurt.

I'm not saying we shouldn't do away with patents. Let's be pragmatic and see
what happens, but what I _do_ say is that software is no different than
hardware. Equal opportunity under the law, for software engineers or
mechanical engineers.

Why is there a difference? The more I look around the world, the more
discrimination I see wrt software engineers. I think a lot of it is due to the
abstraction. People can't _see_ software. They can't _see_ the for loops and
while loops, but there is no difference between a gear that moves around in a
circle and a loop construct in software, so why are people saying they should
be treated differently under the law?

~~~
lutorm
You persist in focusing on patents as a reward. That is not their intended
function, it is to stimulate innovation. Society has no interest in making you
rich, unless it is a (necessary) side effect of stimulating innovation. The
stimulating effect of financial incentives for the patent holder must _always_
be weighed against the stifling effect of the subsequent monopoly. Unless the
former outweighs the latter, patents in their current form should be
abolished.

For it to work, the bar for "nonobviousness" must be set infinitely higher
than it is now. I'm not _entirely_ opposed to software patents. For the RSA
algorithm, for example, I could see the validity of claiming it's a patentable
invention. But there are a few key requirements:

a) Patents can only cover _process_ , not end results. If you patent a way to
make steel, I'm free to develop another way if I don't want to or am able to
license your method. In the same way, if you patent a way to "process gestures
on a multi-touch device", I should be free to implement _another_ ,
independent way of accomplishing the same result. You must _not_ be able to
patent the _idea_ of accepting input through gestures. Doing so will severely
stifle innovation, because there is no longer any incentive for anyone to put
in the work to improve the idea; the first, half-assed patented idea then
becomes the way or the highway...

b) For the system to work in practice, there must be a way that one can
reasonably find out whether something is patented. That means the bar must be
very high, so that the number is lower, and the overly abstract, overbroad
patent descriptions currently must be replaced with something much more
precise. I think the bar should be high enough that the numbers of patents
approved number in the hundreds, max, per year. For it to be patented, it
should be freaking genius. Your jaw should drop from pure awe when you read
the description.

If the above requirements are not met, the best way to proceed is to abolish
the whole idea.

As an aside, I'm amused how many people who normally are adamant about the
supreme efficiency of free markets then completely turn around and use
arguments like yours above about "why should they develop this when someone
will just steal the idea". What is the fundamental difference between patents
and preventing someone from opening a coffee shop in a good location because
you opened one there first? Why don't you think free competition will produce
the most efficient outcome when it comes to patents?

~~~
fnid2
The original idea of patents was to promote innovation through sharing ideas.
I agree that the current system doesn't live up to that, but I'm not sure that
doing away with patents is the solution. Patents are often like art. You can
see a painting and think, "I could do that!" You can look at a patent and
think, "I could code that." But you didn't code it before you saw the patent,
so you don't really know for sure. Hindsight is 20/20.

Patents are a reward for both the inventor and society. If we reduce the
reward for innovation, we reduce innovation. Especially very expensive
innovation that may yield products that are easy to copy.

I suppose my big concern is that for the individual inventor, there really
isn't any protection at all _besides_ patents. An individual isn't big enough
to mass produce products or protect them or market them more than the big
corps, but the individual can sell the patent or get investors to help him/her
fight infringement.

Yes, the megacorps get most of the benefit now, but that is largely because
most inventors work for the megacorps. But a patent only costs a few hundred
dollars and is well within reach of individuals who are willing to do the
research and put the effort into building a patent to protect an idea. Patents
are the only protection left for joe or jane inventor. No megacorp is going to
pay for your idea or your invention if they can just build it themselves.

As for free markets, I don't believe in free markets, or at least, I don't
believe the market is free -- or ever will be free. It's not free because
special interests want to protect their access to the market. I think the
market _should_ be regulated, especially when the public has to bail out
systems that collapse due to a lack of regulation. But I digress...

Design patents cover end results. If I patent a design, you can't use the same
design -- even with a different process to get there.

There is a reasonable way to find out if something is patented, the USPTO has
a patent search. It could be better, but no one ever says, "Hey, I should
build this, let me search the USPTO first!" They just start coding or
building.

It may be too easy to get a patent and the USPTO may not have the experience
to evaluate nonobviousness -- unfortunately, Einstein doesn't work there
anymore. Perhaps the govt should pay more for people who have the experience
to adequately evaluate claims and charge more to get the patent approved.

~~~
cma
>I suppose my big concern is that for the individual inventor, there really
isn't any protection at all besides patents. An individual isn't big enough to
mass produce products or protect them or market them more than the big corps,
but the individual can sell the patent or get investors to help him/her fight
infringement.

Why is that your big concern? Would you like to take a guess at what
percentage of GDP that example represents in practice? (hint, single digit is
too high).

~~~
fnid2
That's my concern, because I _am_ one of those. It also seems to be the
concern of many who are individuals and worry that their FOSS projects will be
squashed by patent holders.

I don't think the corporation vs. corporation battle is as significant as the
corporation vs. the little guy -- David vs. Goliath. Patents in this case are
David's slingshot. Or shield maybe.

I don't worry about giving corporations any additional leverage. If we want to
spur innovation, we have to enable more innovators to exist and profit from
their inventions. Megacorps don't need help -- startups and individuals do.

