

Facebook, Google, Zynga Ask Courts To Reject Patents On Abstract Ideas - Jagat
http://techcrunch.com/2012/12/09/reject-abstract-patents/

======
grellas
The issue is more nuanced than depicted by the title of this piece: the courts
already reject patents based on abstract ideas and the real issue is how they
should go about determining whether something is patent-eligible (and, hence,
potentially patentable) or a mere abstract idea (and, hence, ineligible). The
issue is one of trying to get the Federal Circuit to follow where these large
software companies believe the recent Supreme Court precedent is trending.

A while back, I posted my analysis on why the _CLS_ case is important
(<http://news.ycombinator.com/item?id=4633950>), which I repeat here for
convenience:

"1. The _CLS Bank v. Alice_ case, though raising an issue of vital importance,
is not about 'whether software is patentable.'

2\. Over the years, the Federal Circuit has notoriously broadened the scope of
patent eligibility, most conspicuously in its 1998 _State Street_ decision
which essentially opened the floodgates to the modern rush of business method
patents by holding that virtually any business method was patentable so long
as 'it produces a useful, concrete and tangible result.' In 2010, the U.S.
Supreme Court, in the _Bilski_ case, repudiated the _State Street_ test for
patent eligibility and, though upholding software and business method patents
generally, directed courts to be much more vigilant to ensure that no one gain
patent rights to what are mere 'abstract ideas,' however much they may
incidentally be tied to some computer mechanism in their implementation. In a
follow-on decision ( _Prometheus_ ), the U.S. Supreme Court similarly cut back
sharply on the permissible scope of patent eligibility for claimed inventions
that constituted nothing more than laws of nature.

3\. In this _CLS Bank_ case, the claimed patent involves a method for
eliminating certain types of risk associated with an escrow closing and used a
technological process by which to mimic a phantom version of the closing as a
security check before allowing the real transaction to close. In essence, the
technological aspect of this 'invention' is routine and so the question is
whether anything beyond that is simply another way of trying to patent nothing
more than an abstract idea. If so, it should fail under _Bilski_ ; if not, it
would potentially pass the test for patent eligibility.

4\. The lower court in _CLS Bank_ held as a matter of law that the 'invention'
was nothing more than an abstract idea and held it invalid as being ineligible
for patent protection. On appeal, a divided panel of the Federal Circuit
reversed and reinstated the patent. It did so, however, by setting out a brand
new procedural rule whose effect would be to gut much of _Bilski_ and reopen
the floodgates to huge numbers of business method patents under a very loose
standard - to wit, by holding, that, if it 'is not manifestly evident [my
emphasis] that a claim is directed to a patent ineligible abstract idea,' then
the court essentially treat the claim as eligible. What the Federal Circuit
panel did, then, was to take the Supreme Court's directive for lower courts to
be much stricter in evaluating dubious business method patents for patent
eligibility and recast that directive in a form that said, if you as a court
see that something is obviously nothing more than an abstract idea, then go
ahead and reject it but you are otherwise to treat as being eligible for
patent protection. In other words, the new strictness found in _Bilski_ for
evaluating such claims was once again to be transformed by the Federal Circuit
into a loose standard that would let such claims coast by unimpeded.

5\. Of course, this has set off alarm bells because, in effect, it represents
yet one more revolt by the Federal Circuit against attempts by the Supreme
Court to rein it in by bringing patent issues back to some semi-sane state.
Following the panel decision (which was rendered over a sharp and stinging
dissent), the losing party petitioned for a rehearing _en banc_ (meaning by
the full panoply of Federal Circuit judges as opposed to merely a 3-judge
panel) and this was granted. Thus, we shall see whether the Federal Circuit is
prepared once again to stick its thumb in the eye of the Supreme Court or
whether it will temper its extreme pro-patent proclivities and follow the law
as it has been directed.

So, this is a very important case affecting the trend of patent enforcement in
a profound way but does nothing to challenge the idea of software or business
methods being patentable in a general sense. For anything to change in that
regard, Congress must act." [end of repost comments]

In filing this _amicus_ brief, Google, et al. are waving the _Prometheus_
decision up and down before the full _en banc_ Federal Circuit and imploring
it not to repeat the mistakes of the past. If they are successful, all U.S.
courts will be in a much stronger position to strike down these sorts of
"abstract idea" patents as invalid. The question, then, is a procedural one of
how courts should go about making this determination but the results could go
a long way toward tightening up standards if this is rightly decided. We shall
see.

------
rayiner
I'm sympathetic to the situation, but legally this is the wrong approach. The
Supreme Court has clearly said that software patents don't fall under the
exclusion for abstract ideas, and has also said that it's unwilling to
entertain categorical exclusions on the subject matter of patentability.

You're not going to convince the lower courts to ignore Supreme Court guidance
on this issue, and this is a particular argument that has already lost in a
relatively recent case so the Supreme Court is unlikely to revisit it any time
soon.

Companies like Facebook, Google, etc, are in a far better position asking for
a reevaluation of the bar for novelty and non-obviousness. There is a multi-
factor test for non-obviousness, and John Deere holds that secondary factors
such as "commercial success, long felt but unsolved needs, failure of
others..." can speak to an invention being non-obvious.

I think an argument that evidence of independent invention should create a
presumption that an invention is obvious would be far better received as well
as being more consistent with the statutory framework.

~~~
monochromatic
> I think an argument that evidence of independent invention should create a
> presumption that an invention is obvious would be far better received as
> well as being more consistent with the statutory framework.

This seems plausible on its face, but in fact there have been lots of cases
where really inventive things were conceived at nearly the same time by
different inventors.

~~~
rayiner
The question is: which situation is more common. That should be the default
presumption.

~~~
monochromatic
I disagree. I think there shouldn't be a default presumption linking one to
the other.

------
KerrickStaley
I like how Dell, Red Hat, and Rackspace are also cosignatories, but the
article's title mentions Zynga.

------
eykanal
Somewhat interesting not to see Apple on there. Then again, Apple's IP
portfolio is probably larger than all the cosigners combined, and they may not
want to encourage legislation leading to that all being invalidated.

~~~
BrandonM
Apple is one of the bigger patent trolls, as far as tech companies go, right
now.

~~~
larrydavid
'Patent troll' doesn't mean what you think it means.

~~~
devcpp
Actually, it's all about slowing innovation, so it can very well be used as
"enforcing bogus patents": Apple is famous for recently suing competition over
abstract ideas. They don't even try to hide that fact.

~~~
netcan
Still, its useful keeping "patent troll" separate to describe a particular
type of company. The own patents (mostly acquired from dead companies), don't
make anything and live off squeezing other companies. Most trollish in that
they live off extorting "license fees" with the threat of legal action, rather
than actually winning lawsuits. They are structured in ways that makes them
unafraid of lawsuits and use that to intimidate companies that are.

~~~
malachismith
Patent Trolling is just another means to the same end.

------
baddox
All patents, and in fact all forms of intellectual property protection, by
definition apply only to abstract ideas. Legal protection of non-abstract
things already exists: that's what normal property rights are.

All intellectual property laws forbid me from placing _my physical property_
into certain _arrangements_. I am free to own ink and sell my products in my
boxes, but if I apply that ink to the box in the form of an Apple logo I have
violated trademark laws. I am free to own a hard drive and all the tiny
magnetic particles therein, but if I cause those particles to take on an
arrangement that represents a Beatles' MP3, then I have violated copyright
laws. I am free to own a large building and a bunch of machines, but if I
arrange these machines into a certain type of assembly line, I may have
violated a patent on a manufacturing process.

~~~
AnthonyMouse
>All patents, and in fact all forms of intellectual property protection, by
definition apply only to abstract ideas.

A cotton gin is not an abstract idea, it's a thing you can put in your barn
and separate your cotton with. The patent applies to the thing.

Even if a patent _is_ inherently an abstraction, that doesn't mean it _covers_
an abstraction. More to the point, if the thing the patent covers is an
abstract idea then the patent is not supposed to be issued.

This is why you see all these nonsense patents that say "XYZ on a computer"
because a computer is an actual non-abstract piece of physical existence, so
then the patent lawyers can say "look see, it's not a patent on an abstract
idea, it's a patent on a computer that implements an abstract idea." Even
though it's really a patent on _any_ computer that implements the abstract
idea, i.e. a patent on the idea itself within the domain of computer software.

~~~
baddox
Any one cotton gin is a physical thing, yes. It should be illegal to take or
damage another person's cotton gin, but that's just normal physical property
rights. A _patent_ on the cotton gin, however, has nothing to do with
protecting your cotton gins from theft or vandalism. A patent prohibits you
from shaping and arranging your metal into a shape that allows you to remove
seeds from cotton, even if you're not even aware that someone else has
patented this arrangement of metal.

~~~
AnthonyMouse
What does that have anything to do with abstract ideas not being patentable?
You're just arguing that a patent is an abstract idea. But a patent and the
thing it covers are two different things. The thing it covers is the thing
that's prohibited from being an abstract idea.

~~~
baddox
No, I'm not just arguing that a patent is an abstract idea. I'm arguing that
all patents _cover_ abstract ideas. Patents don't cover any physical cotton
gin, but rather the _idea_ of a cotton gin, i.e. the arrangement of materials
that separates the seed from the fibers.

~~~
AnthonyMouse
I guess I can kind of see what you're saying, but where is it supposed to
lead? The courts are never going to come to the conclusion that Congress
passed a patent statute intending to make nothing whatsoever patentable
because all patents cover only abstract ideas and abstract ideas are
unpatentable.

I think part of the trouble may be that you're finding abstraction in patents
and taking that to the conclusion that patents are nothing but abstraction.
Take any given patent and you can find some degree of abstraction in it. The
question is in some sense whether there is anything _else_ there too,
something concrete that nails down a particular invention as distinct from the
underlying idea.

Is the point that it's an amorphous and nearly unintelligible criteria?
Because that's certainly a fair argument. Nobody seems to know exactly what
"abstract idea" really means in this context and the courts have been little
help. But the same goes for half the laws on the books, so what else is new.

~~~
tossacct
It seems like you think that baddox might be trying to make a "point" that is
more complicated than what they have written in their posts.

baddox>>>All patents, and in fact all forms of intellectual property
protection, by definition apply only to abstract ideas.

Looking at his posts, I'm not sure that baddox was "leading anywhere". Baddox
may have just been making a simple statement of fact.

AnthonyMouse>>>Take any given patent and you can find some degree of
abstraction in it. The question is in some sense whether there is anything
else there too...

Correct! This is what is addressed in the _lengthy_ amicus _brief_ , which is
summarized by the fine blog poster. Here is a quote that the blogger felt was
representative of the amicus position:

>>>Many computer-related patent claims just describe an abstract idea at a
high level of generality and say to perform it on a computer or over the
Internet.

>>>... describe an abstract idea at a high level of generality...

I suspect that the key here is the phrase "high level of generality", not
"abstract idea". So a more accurate article title could be "Companies ask
courts to reject patents that are described at a high level of generality".
According to current patent law, patents must be useful - a vague, broad, or
general idea is not useful or difficult to create. According to current patent
law, patents must be new - which currently means "non obvious to an ordinary
person in the inventor's field". Patent law has changed over time as a result
of legislative action and Supreme Court action, and will presumably continue
to do so.

The reason why these companies signed and submitted this amicus brief is to
influence the court into taking some action that will benefit them. Private
citizens are permitted to submit amici as well.

There are some links about copyright below. The summaries are very accessible,
but are overly simplistic. The actual text of the legislation is _also_ overly
simplistic. The Legislature may pass a law that seems fairly readable, but
this is deceptive because the Judiciary and the Executive are the interpreters
and enforcers of these laws. When you notice that you vehemently do not agree
with an interpretation or enforcement of a law, you must communicate this in
some way to the government. Citizens generally communicate by voting, direct
communication(such as amicus briefs or visible protests), and civil
disobedience(nonviolent but illegal actions).

[http://en.wikipedia.org/wiki/Title_35_of_the_United_States_C...](http://en.wikipedia.org/wiki/Title_35_of_the_United_States_Code#Section_103)

<http://en.wikipedia.org/wiki/History_of_copyright_law>

<http://en.wikipedia.org/wiki/Copyright_Clause>

------
ilaksh
It is becoming increasingly obvious (to some people such as myself) that the
law, government, and other social institutions are obsolescent and actually
restricting progress, which is always made through technology.

It won't be too many decades before all human activity is irrelevant. (I make
the distinction between humans and the ultra-intelligent life forms that we
will shortly invent because I think that they are fundamentally different
things.)

~~~
rayiner
Meh. There were 30 million e-mails being sent every month by the early 1970's
(four decades ago). Heck, technology has almost not advanced at all in this
decade, even in the computer sector (I don't consider Facebook, etc, to be
advancements in technology in the relevant sense).

~~~
ilaksh
Seriously? This is the only comment?

<http://en.wikipedia.org/wiki/2000s_in_science_and_technology>

Why do I even bother trying to communicate with people anymore.

------
rohern
This is extremely good news for the startup world. Maybe Zynga can do one good
thing before it dies?

~~~
monochromatic
It's just an amicus brief. There's not really any reason to think it'll have
any effect.

------
hkhanna
I think it's interesting that their brief doesn't provide any citations for
the proposition that Mayo identified these four discrete guideposts for
determining whether a claim is directed to an unpatentable abstract idea.

In fact, I'm not sure Mayo can be read as doing much at all beyond breaking
the walls between the three judicially created exceptions: abstract idea, law
of nature, and natural principle. After Mayo, they're sort of just one big
(unworkable) exception.

Boy, I hope I don't have this wrong since I have my Patent Law final exam
tomorrow morning!

------
genwin
I was going to offer the idea of patent troll insurance, but someone's already
on it:
[http://www.businessinsurance.com/article/20121023/NEWS07/121...](http://www.businessinsurance.com/article/20121023/NEWS07/121029968?tags=58|364|334|342|340|338|335|299|93|100|59#)

Assuming that abstract ideas are usually intersected by earlier abstract ideas
(since they're so broad), perhaps the insurance company could lease the patent
hordes of large companies, to deny trolls' claims. That could reduce the cost
of the insurance.

------
rjdagost
If Google is serious they should start by discarding their patent rights to
PageRank

~~~
Ingaz
More significant: MapReduce.

------
fear91
In other words:

FB, Google, Zynga Ask courts to invalidate patents they don't have

~~~
DannyBee
Assume for a second you are right (you aren't, it turns out)

Why does that matter?

IE what is the point you are trying to make by saying this?

Is it that they are self-interested?

Because if so, uh, almost all amicus briefs are filed by self-interested
companies or advocacy groups.

That is in fact, one of the points of amicus briefs: To cover concerns not
directly dealt with by the parties so that the court understands the broader
implications of ruling one way or another.

Another point is to cover arguments the parties do not make.

The court is also free to deny them leave to file a brief if the court doesn't
care.

------
EGreg
I have a question ... if many of these patents are that obvious, why doesn't
Google or another company make a point (that will take 3-4 years to make) by
patenting a lot of stuff it thinks will exist in 3-4 years, and then just
suing everyone in sight on the internet just to prove a point? As long as
their patent covers it, they will make lots of high profile cases.

Maybe the stuff isn't as obvious when it's being patented. I don't think the
obviousness-at-the-time-of-patent is the problem here. The problem is that the
industry moves quickly and it doesn't cost much to innovate in software as it
does in, say, pharma. That's what Posner's point was.

~~~
AnthonyMouse
>I have a question ... if many of these patents are that obvious, why doesn't
Google or another company make a point (that will take 3-4 years to make) by
patenting a lot of stuff it thinks will exist in 3-4 years, and then just
suing everyone in sight on the internet just to prove a point?

They all already do the first part (filing for tons of lame patents). The
second part doesn't work between large organizations because of MAD -- you
have patents, they have patents, if you sue them then they sue you back and
there is no predicting the ultimate outcome other than that everyone will be
writing enormous checks to an army of lawyers. Why start a nuclear war, even
if you think you can win? (Apple has been learning this the hard way.)

~~~
EGreg
Because this nuclear war won't be like a real nuclear war, and will send a
point!

~~~
AnthonyMouse
Why spend millions of dollars sending a point (and in the process end up
looking to your customers like a huge jackass who prefers to compete in the
courtroom instead of the market) when you can spend a fraction of that amount
lobbying and filing amicus briefs and probably get the same result?

