First Post-Bilski Patent Appeals Ruling Rejects Software Patent
from the nonpatentable-abstractions dept
Well, well, well. Following the rather ridiculously vague Bilski ruling, that doesn't actually say what the right test should be for whether or not business methods or software should be patentable, many people have been wondering what it really means. While some of the justices have hinted at the idea that most software really isn't patentable, that's not at all clear from the ruling. Instead, the ruling suggests that the courts come up with a new test, and then the Supreme Court will tell them whether or not that new test is okay. Many software patent system supporters have interpreted this to mean that software patents are perfectly okay. But perhaps they shouldn't go that far just yet.Groklaw is pointing out that, in the first post-Bilski ruling by the Board of Patents Appeals and Interferences (BPAI), a software patent application from HP has been rejected, with the BPAI saying that "abstract software code" is not patentable, as per Bilski. We've heard that plenty of people at the USPTO aren't fans of software patents themselves, so if they start ruling that most software is "abstract software code," things could get pretty interesting, pretty fast.
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Filed Under: bilski, bpai, patents, software patents
Companies: hp
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Question
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Unfortunately, patent trolls threaten to sue even if they have a weak claim. Their game is to hope that they will get something. That will probably continue. If the big patent-target companies decide to continue to cave in and make small settlements the trolls will probably keep doing what they are doing until their specific patent is actually declared to be invalid.
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Improving patent quality
Reducing the volume of patents would allow more time to review each patent. It would also let the examiners work in their area of expertise. The typical patent examiner is not really qualified to review software and business method patents
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I'll go you one better. What happens when developers use the principles of Digital Philosophy to recreate a human consciousness in digital format? When THAT software begins to actually create in the artistic or inventive sense, who in the world owns THAT?
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The maker continued to grin. He said not a word. He fell asleep in the chair he sat upon. The artificial intelligence continued to rant and rave for hours and hours as the maker slept. At 3 in the morning the maker woke up not because of the artificial intelligence is rant's but because his bladder was full. The maker sat up, heard the rantings of this machine, he was very annoyed he reached to the three prong plug at his feet and pulled it out of the power strip, the computers rantings stopped immediately. He then walked up to the third floor bathroom of his house, which had been recently cleaned and relieved himself.
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They VERY premise of the book I'm currently half way through writing!
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Weapons!
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I guess that means the first AI inventions will be better electricity supply - plugs, powerlines, batteries, capacitors?
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We already have evolutionary software that does that.
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Light at the end of the tunnel...
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Re: Light at the end of the tunnel...
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Up to now the thinking has been that software can be patented since when you put it on a computer it performs a concrete task in some sense. That's all up in the air now.
And FYI there's no such thing as an animated PNG ...
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But I thought Compaq's patent on GIF no longer applied?
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One difference between Australia and New Zealand
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It's not a § 101 question
I agree that algorithms shouldn't be patentable, and neither should abstract ideas, but e.g. the description of a novel, useful, non-obvious UI component should not be a problem.
In my opinion § 101 (patentable subject matter) is not what should limit software patentability. What matters is whether the invention is obvious and whether the patent specification enables me to implement it. From the hundreds of software patents that I've looked at so far, most fail one of these two requirements of the test for patentability and whether a patent should be issued based on a specific disclosure. It's not software patents per se that are the problem, but the incredibly poor quality of the examiniation at the USPTO. (And please note that I'm not blaming the examiners for this. With their minuscule time allowance and the obtuse style that patent applications are written in, they don't really have a chance to do much better. It's a structural problem at the USPTO.)
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Re: It's not a ���§ 101 question
I think the difference here is the first is a physical transformation that, for example, takes a bunch of chemicals and turns them into a polymer. Software on a (general purpose) computer can do little more than take some abstract data and transform it into different abstract data - a process that can by definition be represented entirely by mathematics.
I think in order to be a patentable process it needs to extend beyond the abstract, regardless of if or how much software is involved. One could imagine, for example, attaching a peripheral to a computer controlled by software that did some sort of physical transformation. I think there's a case for that to be patentable. Clearly in many such cases you would be using software running on embedded hardware rather than a general purpose PC to achieve this.
The key here IMHO is to look at such hybrid cases and ask where the actual innovation is. If the "Inventive Step" is entirely within the software, then probably that should not be patentable. If on the other hand the software and hardware are integrated in such a way that the Inventive Step can reasonably be said to a apply to the device as a whole, then it could be considered patentable.
My suspicion is this is the sort of distinction that the new NZ law is attempting to make, FWIW.
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Re: Re: It's not a ������§ 101 question
* adding a new concept for software and pruning the existing two;
* abolishing patents and expanding copyright law to fill the void; or
* choosing to expand either patents or copyrights to cover software and pruning the other.
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Bye bye innovation
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Re: Bye bye innovation
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Re: Bye bye innovation
I am from a scientific environment. My Inbox is clogged with calls for papers from several scientific conferences. These conferences receive hundreds of papers every year. All of this without any patent nonsense. My CC department has dozens of ongoing projects, most of them, open-source. And we are just a small country. There is tons of research going on, none of it with any prospects of ever being patented.
No patents equal no innovation? You gotta be stupid.
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Bilski ruling and the USPTO
So why do I think "the money" will contact members of Congress (which in spite of the Mercury News belongs to the wealthy in its entirety) and get them to find a way to reverse this? Is it because welfare for the wealthy (aka "no new taxes", etc.) is a fact of life in what used to be our democracy?
Even so, this is great!
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