"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."
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.
To solve this problem, we petition the Obama Administration to direct the Patent office to cease issuing software patents and to instruct the judicial system to take a long hard look at existing patents for validity. 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.
35 U.S.C. § 261 claims that "patents shall have the attributes of personal property."
Kelo established the broad reading of 'public use.' Just about any economic intervention could fall under public use, it isn't limited to the government taking permanent ownership.
These are muddy questions debated in legal journals, but if the government is depriving that many people of significant value, then everyone who owns any patents will pitch in to the legal fund. The case is going to be made in its strongest possible terms, and it's something that government would have to seriously worry about.
So the only real course would be for the courts to declare that they weren't valid to begin with.
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.
1. A patent is, fundamentally anti-libriterian. It's an example of the government interfering with private action, buy granting exclusive rights solely to a single entity. When the government enforces a patent it intervenes in the market place, picking winners and loosers. In most contexts, that's called corpatism. The fact that the rights conveyed by government granted monopoly can be bought and sold doesn't make them a libriterian concept.
2. The monopoly granted by a patent is not inalienable. Congress has the express power to "promote the progress of science and the useful arts" through granting of monopolies. Any monopoly rights conveyed by congress impede the natural rights of man. They prevent me from manufacturing, selling, or reproducing what I see fit to manufacture, sell, or reproduce. As an action that is fundamentally abhorrent to liberty, congress's power to grant such a monopoly is only valid within the scope of it's enumerated powers. Software patents do not "promote the progress of science or the useful arts", they impede it. So, not only are they not inalienable, they are unconstitutional.
It's astonishingly bad, but not quite that bad yet.
direct the Patent office to cease issuing ~software~ patents.
I'd prefer they eliminate all patents, but let's stick to one goal here.
We, also, ask the
Are those commas necessary?
request that Congress pursue legislation to void all previously issued software patents
Congress, at best, is only going to let lobbyists tweak the rules some more to favor the big guys. Do you really want that?
How about asking USPTO to apply this standard when reviewing previously issued patents as well?
We 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.
what we do best.: creating and keeping high-tech jobs!
Hmm, too panderous perhaps?
That said, this one is worth signing, as will the ones that follow in order to make this happen.
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.
interpretation of software as language and therefor patentable
Should be "therefore" and "not patentable" or "unpatentable" or "not subject to patents".
I've already begged them for editing ability, but I doubt we'll see that any time soon.
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.
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?
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.
Is this by the same guy that wants VT to secede and become part of Canada? http://vermontrepublic.org/
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.
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.'
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.