Supreme Court Makes Two Good Decisions On Patent Law
from the good-news-for-innovation dept
This morning the Supreme Court came down with two decisions about patent law that both take small, but extremely important, steps towards reigning in some of the worst abuses of the patent system. In both cases, it's disagreed with the position taken by the Appeals Court for the Federal Circuit (CAFC). This isn't a huge surprise, as many observers figured that the Supreme Court's recent interest in all sorts of patent cases meant that the justices weren't at all happy with the way CAFC was moving. This is a good thing, as the past twenty-five years or so of CAFC is a big part of why the patent system has veered out of control. For those who don't get into the details of these things, effectively CAFC was taken over by patent attorneys who pretty much felt that since patents were "good," more patents were "better." They continually expanded what could be patented and how much power patent holders had. This, in turn, meant that many more people and companies started filing for many more patents. While the Patent Office complains that it can't handle the load of patents, rather than hiring more examiners, the solution may simply be in reining in the overwhelming power handed to patent holders by CAFC. Today the Supreme Court took another step in that direction.The first case was between AT&T and Microsoft, where it was already admitted that Microsoft had infringed on the patent in question. The legal question at stake was whether or not copies of Microsoft Windows outside the US should be counted when calculating the damages. While, normally, patent infringement rules only cover within a country, there is a rule against shipping the components outside the country to be assembled somewhere else just to get around patent infringement rules. So the real question was whether or not shipping a master copy of the software abroad was shipping the "components." The Supreme Court ruled 7 to 1 saying that it was not shipping components -- and that software was more closely related to a blueprint than actual components.
This ruling is likely to cause a number of things to happen. Back when this case was first being presented to the court, one of the amicus briefs tried to show that software shouldn't be patented at all. Since this wasn't the key argument in the case, it seemed like a wasted brief, but the ruling here actually may open up the possibility for a new case that argues exactly that. That is, the court has now made it clear that they consider software to be more of a blueprint than a component, and someone else can now make the argument that, based on this, software should not be patentable. This certainly could get interesting. However, the court did also suggest that Congress may want to clean up this "loophole" so watch out for someone in Congress to slip in a ruling keeping software patents in place before the court has a chance to make more of a statement on this. More immediately, this may help Microsoft lower the amount it needs to pay Alcatel-Lucent in the separate MP3 patent lawsuit -- since approximately half of the $1.5 billion award was based on overseas sales.
The second ruling may be even more important. It's the decision on the Teleflex v. KSR case concerning the obviousness test in patents. Once again, the Supreme Court has smacked down CAFC, saying that the lower court had gone too far in embracing an incredibly strict standard in determining obviousness. This is tremendously important, as the lower court's "test" for obviousness barely exists at all. Effectively, the only thing looked at is prior art, when the law is clear that patents need to be on processes that are both new and non-obvious. If this allows the courts and the patent office to start actually looking at the obviousness of patents, it could help get rid of plenty of really bad patents.
These two rulings, combined with last year's ruling that automatic injunctions don't always make sense for patent infringement are steps in the right direction. The Supreme Court is clearly recognizing that patent law has spiraled out of control and reached an unconstitutional level, where they're being used to hinder, rather than promote, innovation. It's great to see the court now reeling in these abuses, but there's still plenty more to be done before we've cleared out the problems of the patent system. The good news is that the Supreme Court is clearly looking at the issue and clearly recognizing that the constitutional purpose of patents is to promote innovation. As Justice Kennedy noted in that Teleflex ruling: "Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may... deprive prior inventions of their value."
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Reader Comments
Subscribe: RSS
View by: Time | Thread
Renew my faith in the court system to
Good law and good sense do not always go hand in hand.
I am a little guy.
I am glad that the US courts have a slant toward the little guy but I am also tired of other little minded people using the court to redress some perceived indescretion.
I am glad that the US has a patent system that makes it easy for the little guy to protect their IP. But I believe the little minded people have gone too far in trying to patent small obvious and petty ideas.
If this keeps up it will put a chill on good ideas getting out into the public. The courts need to protect themselves and the public from this patented absurdity.
The future rides on the continuous wave of good ideas.
[ link to this | view in thread ]
[ link to this | view in thread ]
still on the rant against patents ehh!!
on a serious note. if you show me a patent, and i'm reasonably knowledgable in the art/area of the patent, why wouldn't i state that "doh" of course it's obvious!!
now.. if you kind of describe that patent.. and then have me describe how to do it.. maybe that might work.. but i seriously doubt it..
in fact, i'm not sure what "obvious" means when it comes to innovation... what might not be obvious to me, might be quite obvious to you...
let the mgs begin...
[ link to this | view in thread ]
Like in the movie "Dogma"
Rufus: Now do you believe?
Beth: No, but I have a good Idea.
a good idea.
[ link to this | view in thread ]
Re: Like in the movie "Dogma"
[ link to this | view in thread ]
Sam, sam, sam....
Combining them isn't and shouldnt not ever have been patentable. Its akin to taking a wheel and granting a patent for every new device that its been attached to. Is it obvious to put 4 wheels on a box and try to roll it around after someone put 4 wheels on a platform and did the same, why yes that would be an evolutionary step.
Now take speaker design, the basic design of a speaker is a coil, a cone and a magnet all attached to the 'basket'. It hasnt changed for decades. In the 40's or 50's a company came up with the idea to mount the magnet inside a plastic plug about the size of a hockey puck, then mount the coil and a screw hole on the opposite side. The invention was what became known as an audio transducer. Mount said device to a screw/stud and turn that surface into a speaker, was it innovative? Yes I believe so and so would most others.
Fast forward to a couple years back when some company produced something similar in design except instead of the screw boss mount configuration they used a suction cup. Was that innovative? Not at all. It was simply a new mounting that could have used prior art components to build it in a slightly different fashion. Did they get a patent? Yes they did I believe.
This is how drug companies keep patents alive on their medications. Take the chemical known as Cipro, its an antibiotic. Combine it with another medication in an Otic soloution and you have a new patent! like this "What is ciprofloxacin; dexamethasone ear suspension?
CIPROFLOXACIN; DEXAMETHASONE (Ciprodex® Otic) is used to treat ear infections. Ciprofloxacin kills certain bacteria or stops their growth. Dexamethasone stops the inflammation and itching caused by the infection. Generic ciprofloxacin; dexamethasone ear suspension is not available."
Why is it not available? Because while the patent for Cipro was granted in 1994 and would have and did expire in the early 2000's Bayer reformulated the delivery methods to prevent generics. See http://en.wikipedia.org/wiki/Ciprofloxacin for more information.
This is why we need a new patent system that comprises people in the fields in which a patent is created to judge obviousness. Just because I put a wheel on a pogo stick doesn't mean I should get a patent, maybe just a pat on the back. Just because someone takes a technology like on the fly audio compression and combines it with a TCP/IP network doesn't mean they should be able to patent all of VOIP.
[ link to this | view in thread ]
Re:
If you're skilled in the art, and think "hey, that's a great idea. I never would have thought of doing that!" then perhaps it's a good patent.
If you're skilled in the art, and think "Doh! Of course it's obvious!" then perhaps the patent should not have been granted at all.
If you're skilled in the art and, when presented with the same problem you think up substantially the same solution without ever having looked at the patent, I would argue that the idea is obvious and should never have been granted a patent.
This is the situation with the Linux kernel; kernel programmers have a deliberate policy of _never_ looking at patents or any non-free code, yet there are (according to one study) two or three hundred possible patent violations. All of those patents should be ruled invalid on the basis that they were probably too obvious to begin with, since we have at least one example where a programmer with no reference to the patent came up with basically the same solution.
There's also the argument that patents are only supposed to cover "inventions" and never "methods" or "processes" or "mathematical formula" which better describes software.
[ link to this | view in thread ]
with regards to linux, and others, who try (and sometimes often succeed) to develop without ever looking at someone else's code, the fact that they might come up with something that was in an original patent in no way states that the original patent should be invalid... it might be the case that in order to solve a given problem, there might only be a handful of elegant/minimal solutions.
the fatc that i get to a "solution" 1st, and then patent it, doesn't give you the right to come along, and somehow arrive at the same/similar conclusion, and then try to invalidate my patent...
if this is the case, then you might have the ability for every company that runs into a situation where another company's patent causes them problems, the company can create a clean room scenario. if the clean room scenario generates a solution, you get to scream that the patent shouldn't have been created...
that's not quite how the game works...
but it would be interesting if it did...
peace..
[ link to this | view in thread ]
[ link to this | view in thread ]
To say "well if it seems obvious, it is" is not valid test. It's an armchair general (or justice) test.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re:
I agree -- and my experience with the PTO, this is how most examiners view it (despite endless claims to the contrary). If an examiner thinks people skilled in the field would view the solution as a natural extension of prior solutions, they'll call it obvious. The common opinion that that's not the case seems to be largely based on people just looking at patent titles -- e.g. "system and method to stream sound over a network" -- and assuming that the claims are as broad as the title, which is never the case. Sure there have been a few very bad patents granted -- but, the problem has been overstated.
What entrepreneurs who specialize in software technology do not want to happen is for the PTO to start rejecting all software patents. If a software innovation solves a problem that others weren't able to solve as well or as efficiently, then that innovation may very well deserve patent protection. This provides far more incentive for software technologists to innovate and for institutions to support that innovation than would exist otherwise. Just ask Larry Page and Stanford University:
Method for Node Ranking in a Linked Database (US6285999)
http://www.arnoldit.com/lists/google-patents/6285999_NodeRanking.pdf
http://www.arno ldit.com/lists/google-patents.asp
[ link to this | view in thread ]
Court Decision
[ link to this | view in thread ]
Re:
Yes it does. If it's clear that the same thing keeps getting re-invented independently because it's fairly obvious, even without the incentive of patent protection (or even despite the disincentive of it already being patented) then this doesn't meet the constitutional reason for there being patent protection in the first place "to promote the sciences and useful arts"
Or as the judge put it;
"Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may... deprive prior inventions of their value."
[ link to this | view in thread ]
View from the other side of the Atlantic
Let's say the judgment had gone the other way, that Microsoft did massively infringe the patent by exporting a master copy abroad for reproduction. That would have given Microsoft a huge incentive to put more of their programming divisions outside the US, in countries where the patent(s) in question hadn't been granted. That's bad for the US software market even though it might be good for the world market and possibly the software itself to have less of the programming done in one country.
So, of course the Supreme Court decided the case the way they did - they have US interests at heart.
[ link to this | view in thread ]
Re: Re: Re:
I agree with everything you said.
[ link to this | view in thread ]
But, for the other countries to just "copy" the master gold disk and say that they manufactured the OS is bull !!!
[ link to this | view in thread ]
Re: Re: Re:
I would love to see all software patents thrown out. When i first looked into patent law in 1981 you couldn't patent software because it was considered math.
In the end software is the simple turning on and off of switches. There are only so many ways you can achieve the same goal. If you wanted to create the proverbial "Hello World" program on say the PC hardware palatform, and have the code execute and produce exactly the same results, you can candy coat it however you want, you can use whatever high level language you want, but in the end the underlying functionality will be the same. You are telling the computer what address to flip from 1 to 0.
Software should never have been patentable. Source code copyrightable, sure, but never patentable.
[ link to this | view in thread ]
RE: Richard Ahlquist
You seem like a good guy.
As for the guy over the Atlantic,
Of course our courts SHOULD have US interests at heart. They are supposed to help us since they are ours. Geez, what do you expect =P
Just am happy they actually did help for a change.
[ link to this | view in thread ]
Obvious
Motors, driveshafts and string have been around for decades, as have lawnmowers and edgers that used metal blades. Yet no one put the string to the shaft on a motor. it couldn't have been that obvious.
Norm
[ link to this | view in thread ]
[ link to this | view in thread ]
What Teleflex could have patented was a device that could read the position of a gas peddle. However, KSR - if it independently developed its own device - would not infringe on Teleflex's patent since the concept and design of using remote sensing has been around for a long long time. For KSR to infringe, they would have had to have used the design drawings of Teleflex.
[ link to this | view in thread ]
software as a blueprint?
[ link to this | view in thread ]
Re: Richard Ahlquist
[ link to this | view in thread ]
Re: Re: Richard Ahlquist
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Richard Ahlquist
[ link to this | view in thread ]
Re: Re: Re: Richard Ahlquist
[ link to this | view in thread ]
Patents are/should be for devices, not software
Since copyright is the standard method of legal protection for linguistic works, it should be the standard method for software. And since it's already used for software, why should there be a second method of protection in the form of patents? There shouldn't.
[ link to this | view in thread ]
Danken
[ link to this | view in thread ]
olympus fe-350 battery
[ link to this | view in thread ]
& cheapest digital camera batteries for you ! ====================== http://www.newbatterystore.com
[ link to this | view in thread ]
good
very nice i read all it
http://www.bramjbox.com/2018/07/Mekameleen.html
[ link to this | view in thread ]