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Prominent Pro-Patent Judge Issues Opinion Declaring All Software Patents Bad (techdirt.com) 294

An anonymous reader quotes a report from Techdirt: A lawsuit brought by the world's largest patent troll, Intellectual Ventures, and handled on appeal (as are all patent cases), by the notoriously awful Court of Appeals for the Federal Circuit (CAFC) may have actually killed off software patents. The ruling came from a judge that has ruled over patent cases since the 1980s, and it appears he's been born again into the anti-software patent world. Judge Mayer pointed out that the First Amendment says that "some" patents should not be allowed. The whole concurrence is worth reading, starting with the First Amendment argument -- which is kind of fascinating in that it goes well beyond what most people had talked about in the past concerning software patents. Judge Mayer makes the point that basically all software is unpatentable because software is "a form of language," which we don't patent: "All software implemented on a standard computer should be deemed categorically outside the bounds of Section 101. ("Section 101" is 35 U.S. Code; 101 is the part that governs patents.) The central problem with affording patent protection to generically-implemented software is that standard computers have long been ceded to the public domain .... Because generic computers are ubiquitous and indispensable, in effect the 'basic tool []' of modern life, they are not subject to the patent monopoly. In the section 101 calculus, adding software (which is as abstract as language) to a conventional computer (which rightfully resides in the public domain) results in a patent eligibility score of zero .... Software lies in the antechamber of patentable invention. Because generically-implemented software is an 'idea' insufficiently linked to any defining physical structure other than a standard computer, it is a precursor to technology rather than technology itself."
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Prominent Pro-Patent Judge Issues Opinion Declaring All Software Patents Bad

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  • by Bamfarooni ( 147312 ) on Friday October 07, 2016 @05:20AM (#53030263)

    I'm speechless. Is that patentable?

    • Re: (Score:3, Funny)

      by Anonymous Coward

      I don't know - can speechlessness be considered a form of language?

      • Re:I'm speechless. (Score:4, Insightful)

        by Dunbal ( 464142 ) * on Friday October 07, 2016 @05:47AM (#53030337)
        It's a sort of non verbal communication.
    • by wbr1 ( 2538558 )
      Silence is golden. Gold is a form of currency with value and a wholly different set of laws.
    • by cdrudge ( 68377 )

      No. But it can be copyrighted [wikipedia.org].

    • I'm speechless. Is that patentable?

      No, and you are violating John Cage's 4'33" copyright. Unless, of course, you are only silent for short enough periods to qualify as fair use.

  • interesting angle (Score:5, Interesting)

    by Cederic ( 9623 ) on Friday October 07, 2016 @05:20AM (#53030267) Journal

    That actually aligns neatly with the current UK approach, where standalone software can not be patented but the combination of physical technology and the software needed to operate it can.

    Next stop: Algorithms.

  • by tickticker ( 549972 ) <{moc.liamg} {ta} {rekcitkcit}> on Friday October 07, 2016 @05:30AM (#53030295) Journal

    of something reeeeally good! Tired of seeing all the see-saw patent wars between the big guns and the sniping by the gd patent trolls.

    • by Ranbot ( 2648297 )

      Part of me thinks the judge made this somewhat out of the box ruling with the intent to push this issue that patent trolls waste millions of dollars on up the court system and see if the Supreme court can make a more universal judgment/precedent. But it begs the question, is the Supreme court technically savvy enough to understand the details of software coding and development?

      • Part of me thinks the judge made this somewhat out of the box ruling with the intent to push this issue that patent trolls waste millions of dollars on up the court system and see if the Supreme court can make a more universal judgment/precedent. But it begs the question, is the Supreme court technically savvy enough to understand the details of software coding and development?

        Considering that the Supreme Court has not actually approved any software patents; only the 10th Federal Circuit Courts (the courts specifically dealing with patents) has approved them. Expect the Circuit Court to overrule this judge; but expect the Supreme Court to uphold the ruling.

        Even in the cases where the Supreme Court has ruled on cases involving software, they have either (a) invalidated the patent for some reason other than software (e.g Bilski), or it was not a pure software case and fund that

  • Finally they are starting to understand!!

    Slow clap: https://www.youtube.com/watch?... [youtube.com]

  • A check just cleared or a check just bounced.

  • About Time (Score:4, Interesting)

    by shawnhcorey ( 1315781 ) on Friday October 07, 2016 @06:28AM (#53030463) Homepage
    All software patents are illegal. Patent law states that algorithms cannot be patented. Why don't the courts have to obey the law?
  • By extension, nothing can be patented. Any idea or concept which is currently patented is expressed through language. I agree that the code itself should not be patented as it is indeed a form of language, but the implementation or methodology by which an application achieves an end result is the true value that needs to be protected; not the package it comes in. All that being said, I'm definitely in favour of open source happy-happy code sharing instead of patents and copyrights.
    • Re: (Score:2, Insightful)

      by Anonymous Coward

      That doesn't follow. A patent is described using an expression of language, but you're patenting the invention being described, not the description itself. So you can still patent stuff, you just can't patent your patent of the things you patent.

      • You can, however, copyright the patent.

        But once the USPTO publishes it, it probably becomes a government work in the public domain.

    • Essentially he's saying software is a How-To book on flipping bits in the computer. You can copyright a How-To book but not patent telling someone how to use a hammer.
    • by cdrudge ( 68377 )

      By extension, nothing can be patented. Any idea or concept which is currently patented is expressed through language.

      I disagree. With a traditional patent of a physical item or process, it's the item or process that receives the patent. The description just, well, describes it. With a software patent, the description is what is being patented, not the physical manifestation of that description in circuits, electrons, inputs and outputs, etc that the computer uses when it executes the instructions.

  • Comment removed (Score:4, Insightful)

    by account_deleted ( 4530225 ) on Friday October 07, 2016 @06:53AM (#53030557)
    Comment removed based on user account deletion
    • Let's say Theranos created a really slick USB device that lets a user do a blood test from their computer (stop laughing, it could happen).

      Who's laughing? This already exists: [longitudeprize.org] I would hazard a guess that there are all kinds of patents around this tech. Seeing as the real innovation looks to be in the cool analog silicon interpreting DNA thing, I'd agree that the "driver" part is pretty much irrelevant.

  • by Anonymous Coward
    You can bet patent trolls and corporations hoarding patents to intimidate rivals and startups will be outraged and harrass their congressman. WELL FUCK THEM. Give those patenters the Fargo Woodchipper treatment.

    Want to know how bad software patents are? Read Math You Can't Use: Patents, Copyright & Software by Ben Klemens He describes how big multinational called up startup and said GIVE US FUCKING MONEY YOU BITCHES because you've violated patents 728917 9387128 and 823823 and insert more random numbe
  • by XxtraLarGe ( 551297 ) on Friday October 07, 2016 @07:44AM (#53030741) Journal
    This would have more impact than the presidential election. Software patents are a shackle on all programmers outside of megacorps that hold the patents.
  • Personally, I'm OK with software being patentable provided a couple of changes to the way they are currently awarded. First, a software patent must be truly novel to be patented. Taking something we already did without computers, and making a program that automates it should not be grounds for copyright. Also, taking something that programmers have been doing for decades and all of a sudden deciding to patent it shouldn't be awarded a patent. Perhaps the patent office should hire some actual people versed i

    • I could agree with this also. If you create yet another ecommerce system you should not be allowed to patent it.

      If you create a deep learning algorithm that can classify human emotion accurately based on the video camera and microphone on a standard laptop or smartphone that should be patent-able. If you create an non-linear non-gradient based descent algorithm with general case performance better than something like GA that should also be patent-able.

      The kind of stuff I see as patent-able is the stuff that

    • Taking something we already did without computers, and making a program that automates it should not be grounds for copyright.

      Uhh...you kind of swapped language. Definitely still grounds for copyright, not patent.

      "X...but on a computer" should not be patentable unless X is also novel.

      Secondly, a fully working codebase should be submitted with the patent application such that, when the patent is expired, we actually have a record as to how the patented software was actually implemented. You shouldn't just be able to describe what the software does to be awarded a patent. A fully working code base must be presented so that the patent office can determine that you've actually done something novel and that you've actually made software that does what you say it does.

      The code would still be protected by copyright - and any implementation based on viewing the source code could be fought as a derivative work (see: Wine project). Knowing whether you've done something novel is seen by the generic algorithm + the results of running the software - they should speak for themselves if it truly does the job.

      It's completely possible to come up with a new invention and have worldwide adoption within 2 years, and the product even often becomes obsolete within 5 years.

      Which makes i

  • Copyright written material that can't be transformed into real things
  • A world without software patents? WOW, software would probably jump 10 years into the future overnight!
    • That's not where the money is. You're just going to see lots of bad clones stealing marketshare. Why would anything new come of it?

  • by Richard Kirk ( 535523 ) on Friday October 07, 2016 @08:55AM (#53031027)

    The thinking behind having a patent law are roughly as follows (apologies for huge post, BTW)...

    Innovation is discouraged where people who innovate, and pay costs for innovation, have their market stolen by others who copy them; or who are required to keep commercial secrets, running the risks of betrayal, or of trade secrets dying with them inventor (reputed to be what happened with the 'purple of Cassius' deep red stained glass).

    The innovation may not necessarily be 'invention' as we know it. if you bought new techniques into your country by studying what people were doing abroad, you deserved to recoup your research costs over a finite time. You could patent an idea in the UK that had been patented elsewhere up until 1968. This is not a UK eccentricity - before international patent treaties, many other countries had a similar approach. So, the idea that a patent was something that exclusively covers something that you thought up is just about 50 years old.

    The idea that you could only patent a solid object or a physical process is more recent. This change happened about 1985 to 1995. People could patent something physical, but the physical thing could include a programmed processor. Then people tried to patent the particulars of the processing side, or patent the program as stored on memory as a physical thing, usually as an additional claim as an alternative to some dedicated processor which could be patented under the previous law. I was working in Canon on patents at the time, and saw it happen bit by bit.

    There is no abstract reason why patenting a non-physical thing such as an algorithm should necessarily be a bad thing. In practice, there was relatively little established prior art experience, so cunning people were able to patent things that have been common knowledge for a long time, but have no known inventor. Again, this is not new: the Gillette company was threatened in 1913 by a latter-day patent troll patenting their safety razor, which was not protected in US law unless someone could find written evidence that was acceptable in court to prove that Gillette were the owners. Gillette won in the end, but the 'Gillette Defence' is still a term for the enormous cost of proving something in court even though everyone knows it.

    The patent is a restrictive rule: it restricts the rights of everyone but the inventor. We may support such laws in the short term to encourage invention and innovation, but this support should always be tempered by a reluctance to restrict the rights of others. There are exceptions to patent law that allow people to use specific drugs for other problems not covered by the original patent. This is intended to allow re-use of existing compounds, rather than requiring the invention of a second-best compound to get around the existing patents.

    In then end, the case for or against allowing software patents hangs on whether they do more harm than good. The experiment since they came in is almost exclusively against them. Software is usually well-protected by obscurity for several years because reverse engineering is hard. An imitation product will always lag behind the true one, provided the product is still being developed. If you wanted a logical argument against software patents, you might argue that the Church-Turing thesis covered a machine that could calculate anything that was calculable, and so should anticipate and cover all possible programs. This judge is arguing from a different direction, but the argument has similarities, but with the human mind is replacing the Turing-complete machine, and language is replacing algorithms. Judges can't just call laws into existence, even on the grounds of extreme obviousness, but they can put put ideas such as this, and they will become law if they stand the test of time.

    Let's all hope they do.

  • Comment removed based on user account deletion
  • Richard Stallman has been advocating this for some time. Here is an example in a Wired article from 2012 [wired.com].

  • I understand how some people hate software patents because of the trouble patent trolls cause by dragging everyone to court. But how do you protect the little guy who spends a lot of time and effort to build something novel only to have some big company like Microsoft or Apple steal the idea and put them out of business the minute they start to get some traction in the market? It is amazing how something becomes 'obvious' after someone builds it for the first time; yet no one did for decades after it was po
  • by DutchUncle ( 826473 ) on Friday October 07, 2016 @11:25AM (#53032153)
    When I was in college, software was considered unpatentable, because a software program is an algorithm, and algorithms were unpatentable because they are essentially a "law of nature" or "scientific discovery". At some point the law changed to accept "business method" patents (which led to the "with a computer" patents). Imagine if someone had patented the concept of "an interrupt" or "DMA" or "UART", how everything would be completely incompatible - or there would be a small handful of oligarchies running hardware just as they do software. Oddly enough, at the same time as software patents were being enforced, Intel lost its case that its 8080 instruction set was patentable; the finding split the difference between the DESCRIPTION of the instruction set and the IMPLEMENTATION. So direct cloning of an x86 chip would be prohibited, but making a new chip that implemented the same instruction set (and a few more besides) allowed Zilog to make the Z80 just slightly better than - and upwardly compatible with - the 8080. This begat CP/M, which begat the personal computer industry, which was brilliantly co-opted by the IBM Personal Computer (note the capital letters, that makes it COMPLETELY different). And then in turn IBM lost control of the "IBM-compatible" computer market, which at this point is defined by the motherboard specification from the *software* company.

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