
Patent Trolls Are Mortally Wounded - pron
http://www.slate.com/articles/technology/future_tense/2014/06/alice_v_cls_bank_supreme_court_gets_software_patent_ruling_right.html
======
zmmmmm
I'm still scratching my head trying to understand what principle drives the
distinction between an abstract idea and a non-abstract one. It seems to me
that the very definition of a computer program is the description of an idea -
in pedantic detail, yes, but it will always come back to an idea. If that is
true, and if, as many say, it is only a matter of time before "software eats
the world", is there anything left that will be patentable?

The court decision this week seems to entangle two things; the fact that the
abstract idea was not novel, and the fact that it was abstract. It is not
clear to me: had the abstract idea itself been truly novel - would that have
changed the outcome? A lot of people are saying this ruling is against
patenting abstract ideas but it seems to me that it is mostly about the fact
that directly transcribing an idea to a computer doesn't ADD concreteness (or
novelty?), NOT a judgement about the veracity of the original idea. Would love
to hear any insight about this.

~~~
raverbashing
I think it's something like this:

Abstract idea: something to clean your windshields in case of rain/snow

Non-abstract (concrete) idea: a device composed by a wipe, mechanically
connected to a motor that cleans the windshield with an oscillating motion

~~~
zmmmmm
Thanks, that does help.

It almost seems then that written into the definition of non-abstractness is
that the idea could be implemented multiple ways. In other words, If there was
no possible other way to make a windscreen wiper then the abstract idea itself
would be sufficient to specify the actual implementation (or the
implementation can be derived as an inevitable logical consequence of the
abstract idea). But if we can postulate a different way (perhaps less optimal)
then we can say there is an abstractness about the original idea.

I still have trouble with this though because the point where you define the
abstractness seems a bit arbitrary. There are many ways to make a wiper blade,
a rotating mechanism, a motor, etc. So aren't those abstract too? If the
patent specifies it exactly then it is truly concrete, but then it's too
specific - competitor can just use a slightly different material.

And then at some point we invent a generically programmable army of nanobots
that swarm to accomplish any physical task using a goal oriented AI type
language ... and now merely specifying the idea IS the implementation for ANY
task.

------
higherpurpose
It seems to me that in almost all cases, the "specialty" Courts tend to rule
on the side of what they were meant to "judge". If it's a "patent Court", then
they will almost always rule in favor of the patents. If it's a spying Court
(FISC), then they will rule in favor of the spying, and become a rubberstamp
Court for surveillance requests.

So maybe we should get rid of specialty Courts, no?

~~~
nickff
It is rather unfair to lump the "FISC" system in with all the courts, because
it is more of a board, panel, committee, in camera hearing, or administrative
proceeding. "FISC" lacks the essential qualities of a court, as the defendant
has no right to appear, they are not represented by counsel, charges are not
presented, evidence is not disclosed, and there is no right to trial by a jury
of the accused's peers.[1]

[1]
[https://www.aclu.org/files/assets/order_granting_governments...](https://www.aclu.org/files/assets/order_granting_governments_motion_to_dismiss_and_denying_aclu_motion_for_preliminary_injunction.pdf)

~~~
jessaustin
Yes it's dreadfully unfair. Little children are crying. And yet GP's
observation that _" specialty" Courts tend to rule on the side of what they
were meant to "judge"_ is true, without consideration for particular
procedural differences.

------
WildUtah
I know the author didn't write the headline, but trolls are not "mortally
wounded;" they're barely scratched. This ruling will have little effect. The
Supreme court declined to offer any guidance about what "abstract" means, so
courts will go on making it up according to the feelings of the presiding
judge.

Legislation like the Innovation Act that could be brought back next year would
be much more important.

~~~
stcredzero
_so courts will go on making it up according to the feelings of the presiding
judge_

Keep in mind: a lawyer tried to attack the crypto credibility of Whit Diffie!

[http://arstechnica.com/tech-policy/2013/11/newegg-trial-
cryp...](http://arstechnica.com/tech-policy/2013/11/newegg-trial-crypto-
legend-diffie-takes-the-stand-to-knock-out-patent/)

For some reason patent attorneys wonder why so many of us programmers regard
the legalese surreality around patents as a Kafkaesque morass.

~~~
WildUtah
_Keep in mind: a lawyer tried to attack the crypto credibility of Whit
Diffie!_

Remember, that lawyer who attacked Diffie won the case! The jury decided that
the Patent Office knew better than Whitfield Diffie about encryption and
awarded millions to the guy who claimed to invent asymmetric transport
cryptography in the 1990s.

~~~
throwawaykf05
Well, the jury decided on the facts that the lawyer presented, which were
facts that Diffie could not deny. He was introduced by the defense as the
"inventor of asymmetric key exchange". But the plaintiff simply pointed out
that, since somebody at GCHQ had already invented it secretly, he was not the
true inventor. _Yet_ because the prior GCHQ invention was secret, it did not
count as prior art, which was why the DH patent was still valid!

And here's the kicker: the defense was actually arguing that the plaintiff's
invention had already been invented by DH and as such was invalid, and the
plaintiff had already pointed out that DH's work was _not published_ and hence
could not invalidate their patent. Exactly like the GCHQ work did not
invalidate DH's patent.

Given that the plaintiffs argument was "secret prior art does not invalidate
patents", it probably wasn't the best idea for the defense to bring in living
proof of one of the better known examples of the plaintiff's argument to
support them.

~~~
nitrogen
Just when I think it couldn't get worse, find myself even more astonished at
how broken the [software] patent system really is.

------
radley
_Most of the worst software patents do exactly what the court said they
couldn’t: present an idea (like hedging risk, one-click shopping, etc.) and
say that, because it’s executed on a computer, or a generic piece of hardware,
it is not just an idea anymore._

Does this mean Amazon will lose their one-click patent?

~~~
chris_wot
Hopefully. And refund all the money people lost due to being unable to
implement the idea and fight it in court.

------
pistle
I'm disappointed that the post's title was not literal. Don't DO that.

