

Petition: Direct the Patent Office to Cease Issuing Software Patents - dbingham
https://wwws.whitehouse.gov/petitions/!/petition/direct-patent-office-cease-issuing-software-patents/vvNslSTq

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dbingham
If I had been actually writing with the intention of publishing, it might have
looked something more like this. So here's my suggestion for new language, rip
it apart!

"Direct the US Patent Office to Cease Issuing Software Patents

The US Patent system is badly broken with respect to software patents. Patents
are being issued to companies for “inventions” that are, in fact, common
knowledge included in any introductory software textbook. The result is that
the large software corporations are buying up reams of patents and using them
to bully small, innovative companies out of business or into paying ridiculous
licensing fees.

Quite apart from encouraging innovation, patents are now stifling it.

The software industry is one of the few industries still strong in America.
Even in a time of recession, there are not enough computer programmers to fill
all the available positions. Startup companies are forming and growing
readily. But if every line of code written brings with it a potential
violation of someone else's intellectual property, this will cease to be the
case.

To solve this problem, we petition the Obama Administration to direct the
Patent office to cease issuing software patents and to void all existing
software patents. With these two steps, those of us in the software industry
can stop worrying about mutually assured patent destruction and get back to
doing what we do best."

Revision 2

~~~
Triumvark
> and to void all existing software patents

The Fifth Amendment states "[No person shall] be deprived of... property,
without due process of law; nor shall private property be taken for public
use, without just compensation."

In other words, this means a lawsuit for every existing software patent to
determine its hypothetical value were the law left as is. The Federal
Government is suddenly the defendant in millions of civil cases. It will
essentially have to buy every software patent out there. The fallout would
destroy everything you love and more.

I know it seems like a sad compromise, but there might be huge practical
difficulties with that sort of ex post facto rejection of existing patents.
Just tell them to stop issuing new software patents, and urge the judiciary to
vigorously scrutinize existing software patents which come before the bench
for obviousness or prior art.

~~~
mbreese
Yeah, the only way for this to play out is in the courts. You cant just have
the gov't (executive or legislative) just broadly declare " _no more software
patents_ ". All that would do is make the existing software patents _much_
more valuable and reward those who have them. Because you can be sure that you
won't be able to get them away from everyone that has them.

So the only real course would be for the courts to declare that they weren't
valid to begin with.

~~~
Triumvark
> "Yeah, ..."

There's a difference between saying 'no more software patents from now on,'
and 'all those we granted before are automatically invalid.'

My take: while the first one is probably ok, the second would raise specific
constitutional problems.

It sounds like you feel both issues are best left to the courts, for public
policy reasons independent of the 5th Amendment.

Against my better judgment, I should point out that those positions are not
really the same, and that you probably don't actually agree with me.

------
dralison
It would be a pity if this particular idea died out because the author
couldn't create a proper paragraph. It won't gain attention from a single
petition anyway - there will need to be many of them.

That said, this one is worth signing, as will the ones that follow in order to
make this happen.

~~~
dbingham
Please write a proper one and submit it. I'll sign it and delete the links to
mine.

Mine was never really meant to "the" petition for this. It was me fooling with
the system and when I realized I'd clicked one page too far, I ran with it.

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SwellJoe
Two typos in the first sentence:

 _interpretation of software as language and therefor patentable_

Should be "therefore" and "not patentable" or "unpatentable" or "not subject
to patents".

~~~
tankenmate
There are many typos and grammar errors in this petition, hence it will turn
people off. Quite a pity.

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jbrowning
If somebody else is creating a petition that is coherent and gramatically
correct and I will sign it immediately. A petition like this will never be
taken seriously and this one actually makes the arument that software _is_
patentable in the first sentence. I would do it but this site states that
creating a similar petition will lessen the possiblity of receiving an
official response so I don't want to duplicate work somebody else is already
doing.

~~~
dbingham
I agree. What was I drunk? If someone can create a petition with coherent
grammar, I fully support moving to that one. And I'll send feedback asking
them to remove mine.

I've already begged them for editing ability, but I doubt we'll see that any
time soon.

~~~
pdx
You can't edit something that people have already signed, for obvious reasons.

The best you could do is to delete it and start again. 2nd best, and probably
the only option available to you, is to ignore this petition, stop promoting
it, and start a new one.

~~~
dbingham
Yeah, I'm begging them to take it down at this point. I do think wiki editing
with notifications would be one way to do edits of something people signed.
But yeah, still not practical.

They did have a "review before publish" page that I accidentally clicked right
through (the "Oh crap" moment). I wonder if you can share it in a limited
fashion to get feedback on the language from that page?

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mmaunder
Basically every US citizen on HN needs to sign this right now - unless you
have a vested interest in more patents being issued like patent number 6080436
issued in 2000, "Bread Refreshing Method." which is basically a patent for
making toast. More on this and patent trolls:

[http://www.npr.org/blogs/money/2011/07/26/138576167/when-
pat...](http://www.npr.org/blogs/money/2011/07/26/138576167/when-patents-
attack)

~~~
justinsb
The petition is only for software patents, so would not affect this patent.

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ryanklee
If you are serious about this, I suggest handing this off to someone with some
at least semi-serious writing experience. It reads horribly as is. The errors
are such that the original author probably isn't capable of making the
necessary corrections without total direction. The spirit is laudable; the
execution is very lacking.

~~~
dbingham
By all means, jump in and post a better execution. Or if you know someone with
semi-serious writing experience, bring them in!

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tomelders
the typos are embarrassing. For such an important issue, it makes me angry
that no one took the time to proof read it.

------
javanix
The issue with this sort of thing is Joe Public is never going to understand
the underlying issue with software patents.

Without some politician complaining loudly and simply about the wrongness of
an issue, nothing is going to change. Unfortunately the major technical issues
of our time (this and net neutrality, for instance) do not have loud, simple
explanations.

~~~
javanix
Better to spend your time petitioning for campaign finance and term limits -
our only hope is getting enough people in office who are smart enough to do
the right technical thing and who aren't reliant on the industries they are
responsible for regulating.

------
klklklk
Ok.. first of all if you are going to be taken seriously you should really
spell everything correctly in your petition, or you sound like an ass. How can
i take a point away from this story hacker news?

Is this by the same guy that wants VT to secede and become part of Canada?
<http://vermontrepublic.org/>

------
brown9-2
Isn't it up to Congress to direct the Patent office?

~~~
brlewis
It's up to Congress to write the original laws. They already did. It's up to
the judicial branch to decide whether those laws preclude software patents.
They already did: <http://ourdoings.com/ourdoings-startup/2011-07-28>

Caveat: They did opine that Congress should clarify this particular question.
However, decades of inaction by Congress must be interpreted as their
acceptance of the Supreme Court opinions as good law, not in need of
legislative clarification.

Now it's up to the executive branch to direct the patent office to obey the
law.

~~~
anigbrowl
Sorry about not replying to you on the other thread a few days ago. I haven't
been keeping up with HN regularly and forgot to check whether you had replied
to my comment.

I think you are badly misinterpreting how the courts work. The Federal Circuit
did not overrule _Benson_ or _Flook_ , even if Justice Stevens disliked their
interpretation thereof in _Diehr_. Nor did the Supreme Court write off _State
Street_ or _Appalat_ as bad precedent in the _Bilski_ decision. When _Bilski_
was before the Federal circuit, it rejected his claim and also narrowed its
earlier criteria for patentability substantially. The Supreme Court affirmed
the Federal Circuit's judgment that Bilski's business method was not
patentable, but said that the extremely narrow 'machine or transformation'
test identified by the Federal Circuit was _too_ narrow, and would exclude
many patentable inventions while seeking to exclude unpatentable ones.

Now, you're talking about this bit, I think: _And nothing in today's opinion
should be read as endorsing interpretations of § 101 that the Court of Appeals
for the Federal Circuit has used in the past. See, e.g., State Street, 149
F.3d, at 1373; AT & T Corp., 172 F.3d, at 1357._ (Bilski v. Kappos at 3231) Is
this right? If not, ignore the following.

They're _not_ saying those earlier decisions are bad precedent. They're
warning people against interpretations of the form 'the enemy of my enemy is
my friend.' You're reading it as a binary: they're not endorsing something,
therefore they must be against it. but non-endorsement does not equate to
condemnation. Their point is that they are not passing judgment on those
earlier decisions at all, and it would be a mistake to look for an implicit
endorsement of those decisions in the case they were judging at the time.

It's important to understand that courts don't like to settle open legal
questions if they don't need to, and they definitely don't want to do it by
expanding the scope on their inquiry. Why? Because that would put them on a
collision course with Congress, and the judiciary is less powerful than
Congress. The Courts could lose some of their existing powers if they
exercised them too freely. So what a court _much_ prefers to do when presented
with a knotty problem (like the state of patent law) is to either throw the
ball back into Congress's court, or to wait until a case comes to them where
the issues are clear and well-defined. In the latter situation, the Court can
make a straightforward argument that it is exercising its legitimate function
of deciding the answer to a question that has been brought before it. The
court does not want to look like it's asking questions of its own. So another
way to read the non-endorsement statement above is 'don't anyone get the idea
that we are trying to usurp Congress and articulate a new law here, because
we're not.'

~~~
brlewis
Thanks for replying; you have no obligation to keep up with HN or respond
quickly.

Overrule may be the wrong word for what the Fed Circuit did, but in _Alappat_
they said that a program changes a general-purpose computer into a special-
purpose machine. Apply that legal principle to the facts in _Benson_ and you
get the opposite result from what the Supreme Court said. Like the dissent in
_Alappat_ said, it was inconsistent with precedent. The special-purpose
machine idea was so far out there that I don't think anybody believed they
really meant it until they reiterated it in _State Street_.

As for rejecting State Street, I'm just looking at the Syllabus on the first
page of <http://www.supremecourt.gov/opinions/09pdf/08-964.pdf>

Abbreviated quote: The en banc court rejected its prior test...see, e.g.,
State Street...holding instead that this “machine-or-transformation test” is
the sole test for determining patent eligibility of a “process” under §101,
the court applied the test and held that the pplication was not patent
eligible.

Held: The judgment is affirmed. [end abbreviated quote]

The Syllabus makes it sound like they're actually positive on this test, at
least for processes, and that the lower court made the right decision to use
it as the sole test and ignore, e.g. _State Street_. (The Fed Circuit also
mentioned Alappat specifically.)

It does get more confusing once you get past page 1, and I see where Kennedy
says what you say about the non-exclusivity of the machine or transformation
test.

However, I do see a lot of endorsement of paying attention to _Benson_ ,
_Flook_ , and _Diehr_. Combine that with the explicit non-endorsement of
_State Street_ and I think it's clear what the Patent Office should pay
attention to. Software patents today if evaluated according to the precedent
in _Flook_ would generally be rejected.

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jasonwatkinspdx
Looks like there's a bug with registration, I'm sure I'm not the only one
unable to sign because they're unable to register.

~~~
dbingham
Yeah, I can't log back in right now. It looks like they had a failed update to
the system. It might also just be overloaded.

------
dbingham
Why don't we work together to come up with language for a new one? Then once
we've settled on good language someone can enter it into the system and we can
all go sign it.

