How Software Patents' Fuzzy Boundaries Create Unnecessary Litigation
from the subject-matter-test-please dept
James Bessen and Michael Meurer, authors of an important new book on the patent system, have a great post on the problems created specifically by software patents. They argue that the most serious problem with software patents is that they tend to cover abstract concepts rather than specific physical devices or processes. As a result, the boundaries of software patents tend to be uncertain, leading to a lot of litigation. In many areas of patent law, the "enablement" rule (which says that patent applications have to describe an invention in enough detail to "enable" someone to replicate it) helps to ensure more precise definition of patent boundaries. But the patent office only requires a general description of an "invention's" functionality to get a software patent. As a result, there tends to be a lot of uncertainty about what a software patent covers, and uncertainty inevitably spawns litigation.
Bessen and Meurer don't offer a strong recommendation on the best way to solve the problems with software patents, but they tentatively endorse a "subject matter test" -- that is, reinstating the ban on software patents -- as one part of a solution to the problem. However, they worry that a subject matter restriction won't entirely solve the problem because applicants might resort to creative drafting to evade it. I'm not sure it's so hard to draw a line to exclude software patents. Ben Klemens has suggested a standard that strikes me as pretty serviceable: mathematical algorithms are not patentable, and coupling an algorithm with "insignificant postsolution activity" does not transform an unpatentable mathematical algorithm into a patentable machine. In particular, the mere act of loading software onto an ordinary general-purpose computer cannot transform an unpatentable algorithm into a patentable machine. Although this standard might not invalidate all problematic software patents, it would invalidate most of the really harmful ones. To take one example, NTP's infamous wireless email patents almost certainly wouldn't pass muster under Klemens's test because the "invention" in question consisted of running certain email-processing algorithms on generic computer hardware. If you took away the software component, you'd be left with an unpatentable collection of generic computers and generic wireless links. I'm sure there would be some hard cases that Klemens's test wouldn't deal with precisely, but it's certainly more precise than the tests the Federal Circuit is using now.
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Filed Under: litigation, software patents, uncertainty
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Speed dial, huh ?
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Software Patents
We must have been reading different articles. Their point was with regard how to pin down what is generally known as "abstract ideas", though they did not use those words. This issue is currently before the CAFC in the matter of Ex Parte Bilski.
"But the patent office only requires a general description of an "invention's" functionality to get a software patent."
Quite to the contrary, "enablement" and "best mode" (a term you did not mention) are a far cry from your notion that only a general description is required.
Re Klemens, of course he wants to dump software patents. Is he not, after all, a vocal advocate of open source? Presumably he has the same view concerning copyrights.
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Re: Speed dial, huh ?
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Re: Speed dial, huh ?
Go away. Your mommy misses you.
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Re: Software Patents
I was paraphrasing the following: "as a result of Federal Circuit decisions on software patents during the 1990s, [software] patents no longer need to provide computer code, a flowchart, nor any detailed description of specific operation in order to be enabled." I'll defer to Bessen and Meurer, who know more about the subject than I do.
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Re: Re: Speed dial, huh ?
Are you on drugs old chap ?
Does your SS pay enough to buy drugs at street prices ?
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Re: Re: Software Patents
This is a joke, right ?
How can some clueless piece of useless academic shit who never invented anything in his entire life know anything at all about the subject ?
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Do you see how ridiculous it is to describe software patents as mathematical algorithms. A software patent is NOT mathematical algorithms, the mathematical algorithms are what is used to "implement" the software idea.
Aerodynamics is full of mathematical algorithms that describe how to make an object fly. So, I guess you feel that the Frisbee should never have been patentable because it's simply plastic formed to mathematical algorithms that enable it to fly?
Any non-software invention that you feel is patentable, is probably "implemented" in some physical form using some type of physical materials. But, if you remove the physical materials from such inventions, then all you are left with is the idea - an idea that you must use physical materials to ceate.
Well, if the only way to create a particular idea is by implementing it in software, then how does the mer fact that software is needed to produce the idea lessen the significance of that idea?
My point is, if you break anything down far enough, everything because equal, so there would be no differences between one idea from another at that level.
So, it's inappropriate to differentiate ideas by what is needed to create them - they are still all ideas.
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Re: Re: Re: Software Patents
The clueless piece of useless ignorant shit who never invented anything in his entire life, who calls himself "angry dude," somehow DOES know something about the subject? Sorry, girlfriend, but you've never proven you know anything about any subject, except how to be a useless piece of shit.
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Re:
Patent law is supposed to cover physical objects, not information. Obviously, every man-made object embodies certain types of information, but patentable machines are not themselves information. Software is.
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Re: Speed dial, huh ?
Or are you Compost? http://redwing.hutman.net/~mreed/warriorshtm/compost.htm
Or perhaps the Furious Typist? http://redwing.hutman.net/~mreed/warriorshtm/furioustyper.htm
Or maybe an Ideogauge? http://redwing.hutman.net/~mreed/warriorshtm/ideologue.htm
Or perhaps something else?
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Re:
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Dual-protection test
How about the following test: if it's copyrightable, then it's not patentable.
That would get rid of the ability of software to get two kinds of legal protection, both copyright and patent, which is something other products of human endeavour cannot.
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Huh ?
Ever finished your G.E.D. degree ?
"Patent law is supposed to cover physical objects, not information"
Who told you that, little punk ?
Ever heard "anything under the sun made by man" ?
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2 ms and 1 phd
and the freaking patent too
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Re: Re: Re: Re: Re:
Hello Ferouscranus
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Re: Re: Re: Software Patents
Ferous Cranus.
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So, are you saying that the patent for the frisbee was actually for "plastic" in general? Of course not, so if it's not the plastic, then it must be the mathematics or the "idea" to apply the mathematics to obtain a specific goal (fly)? It can't be the mathematics, because that's your basis for disqualifying software patents. So, then it must be the idea on how to apply those mathematics to a physical material to achieve the goal, right?
Can't you see that even if you consider software a mathematical encoding of 1s and 0s, what do you call the particular arrangement of those 1s and 0s that allows it to accomplish a particular goal? It's called an idea.
"Patent law is supposed to cover physical objects, not information."
1st: Who brought up "information" as being patentable?
2nd: Name the place in the patent law which states it is *only* suppose to cover physical objects.
"Obviously, every man-made object embodies certain types of information, but patentable machines are not themselves information. Software is."
You could just as easily say that your "Patentable machines" are really just a particular rearrangement of positively and negative charged atoms. So, how does that differ from a software patent which is a particular rearrangement of 1 and 0 bits?
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Re: Software Patents
Not all Open Source licenses take a hostile view of patents though GPL v3 certainly does. Some BSD licenses do not. I'm pretty sure Microsoft's open source licenses are fairly patent friendly.
Your remark concerning copyright and Open Source does noting but reveal abysmal ignorance of Open Source. All GPL licenses, for example, protect copyright. I don't recall even a murmur from Stallman that comes across the least bit anti-copyright.
I may disagree with a lot of what you say, MLS, but you often make sense once I factor in your biases.
This time you're out to lunch.
ttfn
John
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Re: Re: Software Patents
The above is a quote from a Klemens article excoriating the decision in In re Alappat.
As for open source (a concept with which I am intimately familiar), I find it interesting that those decrying patent law as applied to software are only too eager to embrace copyright as applied to software. Yes, I understand why this is so (i.e., "derivative works"), but nevertheless Klemens' views concerning the application of patent law to software is largely based upon a substantial misunderstanding of what it is that a software patent actually covers.
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Re:
Oh, and you have no clue what you're talking about, because matter is far more then just electrons and protons (The positively and negatively charged ones). It's also mesons, neutrons, pions, muons, quarks, photons, anti-neutrons, positrons (anti-electrons), negatrons (Anti-protons), gluons....
And lots of them don't even have an applicable charge.
You don't even know what bosons are do you?
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Where does it say in the patent law that something has to be "physical"?
"is far more then just electrons and protons"
I was simply trying to come up with an similar two-part definition of matter just as software has two-parts (1s and 0s). But, if the only thing you can find wrong with my opinion is that I used a too simplistic of a description for matter, then I take it as a compliment that you then must be agreeing with the rest of my opinion :)
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Re: Re: Re: Software Patents
Confusion about software patents is far more widespread that simply Klemens and concern about them far more widespread that a buch of wild eyed open source/free software fanatics.
Indeed it appears that the USPTO, the courts and juries are as confused, at times as anyone else. That, if not the core of the concern/confusion around them as much as anything even leaving out the core question as to whether things like software, business methods and so on are reasonable candidates for patenting to begin with.
As you know copyrights and patents protect different things so it shouldn't be surprising that people who oppose patents should "embrace" copyright. It's an apples and oranges comparison to begin with.
The only similarity is that both are intended to protect something for a limited period of time by granting a creator a monopoly. The creator isn't limited in what they may do with that creation but it belongs to them unless they assign it to someone else.
The purpose of both is to encourage innovation and creativity. I don't know too many people who doubt that copyright does exactly that, the RIAA and MPAA notwithstanding. The DCMA is another matter but that is bad law rather than a valuable legal, economic and social concept.
The concern about patents is that, as currently structured, they stifle innovation and creativity rather than encourage it. Note that again, patents as a concept are valuable as a legal, economic and, to a somewhat lesser degree, social concept but that the body of law growing up around patents isn't.
ttfn
John
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Software Patents are just 1s and 0s arranged in a particular order.
It's the creativity/idea of how to arrange the matter or bits that should be protectable - it's a very simply concept.
Before computers, everything was done with physical materials - which was the standard of that age. Now in the digital age, more and more things are being done digitially when they use to be done physically. (i.e. Mailing a letter is now done via email). It's a natualy course that things once done physically are now being done digitally, main because of numerous advantages of doing it digitally vs. physically.
So, software patents are a natural next-step progression of ideas that are implemented digitally instead of a physical form.
Why is it so hard to understand this very simple concept when it is staring everyone in the face each day they use a computer to do something that they once did manually?
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Software Patents are just 1s and 0s arranged in a particular order.
It's the creativity/idea of how to arrange the matter or bits that should be protectable - it's a very simply concept.
Before computers, everything was done with physical materials - which was the standard of that age. Now in the digital age, more and more things are being done digitially when they use to be done physically. (i.e. Mailing a letter is now done via email). It's a natualy course that things once done physically are now being done digitally, main because of numerous advantages of doing it digitally vs. physically.
So, software patents are a natural next-step progression of ideas that are implemented digitally instead of a physical form.
Why is it so hard to understand this very simple concept when it is staring everyone in the face each day they use a computer to do something that they once did manually?
Why should the method used to implement an idea (i.e implemented in software) be dimminished just because you can't hold it in your hand, but yet the new idea offers numerous advantages over other ideas implemented using a physical method?
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Re:
I'll tell you why...
Because CPF and BSA members dislike the very idea that some poor dude sitting in his basement with a 300$ PC can outsmart and outinvent all those large corporate R&D departments...
Thus we have the current patent "reform" (now happily dead)
and all the whining in the mass-media about "broken"
patent system
To achieve their goals CPF and BSA members teamed up with the most unlikely ally - open source software folks
They also give generouisly to congress critters and all kinds of mass media whores - including the producers of this shitty internet blog
Now you know why
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Re: Re:
http://redwing.hutman.net/~mreed/warriorshtm/ferouscranus.htm
Same damn arguments, over an' over
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Any physical item that is patented, can easily be described in mathematical dimentions, so your argument is moot.
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Any physical thing that is patented can also be described in mathematical dimentions. So, don't you see that your premise is flawed when you try to use this as an argument about software?
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