Canada's Federal Court of Appeal To Rule On Business Methods 34
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by
Soulskill
from the must-need-a-distraction-from-the-maple-leafs dept.
from the must-need-a-distraction-from-the-maple-leafs dept.
ciaran_o_riordan writes "After last month's unfortunate ruling by Canada's Federal Court that Amazon's 1-click shopping idea could be patented, the Commissioner of Patents and the Attorney General of Canada have filed notice (PDF) to Amazon.com, Inc. (respondent) that an 'appeal will be heard by the [Federal Court of Appeal] at a time and place fixed by the Judicial Administrator,' probably Ottawa. This case, called Canada's Bilski, has been in the works since Amazon filed their patent application all the way back in 1998. Just like Bilski, the object of this case is what subject matter is and isn't patentable — a question which will create crucial case law, making participation in this case important. Anyone looking for more background, particularly those interested in helping to prepare an amicus brief for this case, is welcome at ESP's wiki page."
Phelan: a change in the customer is sufficient (Score:3, Interesting)
Per Phelan, you are changed.
Re:It's just so broken... (Score:2, Interesting)
Software and business methods should not be patentable - if for no other reason that most software patents are written by lawyers and therefore incomprehensible.
Almost all patents are written by (patent) lawyers. I do know one guy who received two "method" patents and wrote each one himself. But, that's the exception to the rule. Patents appear to be incomprehensible by design. Call it job security for patent lawyers. If we apply your criteria to all patents, we'd have very few patents (and fewer patent lawyers). Good luck with that.
Time and time again we are required in software contracts to warrant that we do not infringe on third party rights including patents. It is an impossible warranty to give as it is impossible to know if you do. There are so many software patents granted in so many esoteric minute little areas that for any remotely complex software you could spend a lifetime searching and trying to figure out if you did infringe on someone's patent. And the odds are very high that somehow you do. So you sign the contract knowing full well that you most likely are in breach, but the odds of you getting sued are sufficiently low to take the risk.
The courts are fully aware of how it would be impossible for any individual to have complete knowledge of all patents that exist in his or her area of expertise. It's highly unlikely a suit would be brought against you for that reason alone. Then there is also the fact that the plaintiff (whomever asked you to sign that type of document) probably would not win unless they could prove you did, in fact, know about the particular patent(s) they are being sued for infringing when you signed that document.
How software and business method patents could possibly encourage innovation is beyond me.
They encourage innovation for the same reason Industrial Age patents encouraged innovation: they give the "ingenious little guy/company" very powerful protection from greedy people (or bigger companies) with a lot of money who've never had an original idea in their lives. I suggest you study (Wikipedia articles) the history of patents in the development of telephony or radio and TV broadcasting. It would be compelling fiction -- if it were fiction.
The problem is not that the Patent Act is too broadly written. It was intentionally too broadly written. Better to have a bad patent issued from time to time than to reject a good patent (do that enough times and patents become meaningless). The PTO appeals process and, if necessary, the Federal courts are there to "sort things out" in the end.
The USPTO is a conservative institution by design. It is always difficult for these types of institutions to keep up with fundamental changes in society and the economy. The transition from the Agricultural Age to the Industrial Age (took about 300 years) and from the Industrial Age to the Information Age (took about 30 years) were (and continue to be) all difficult transitions for the USPTO.
Right now, the problem is not that software patents are being issued, it's that really, really bad software patents are being issued. This will only be fixed when Congress decides it's time to provide better training for current patent examiners and to hire more examiners with backgrounds in Information Age technologies.