Prominent Pro-Patent Judge Issues Opinion Declaring All Software Patents Bad

from the and-over-an-intellectual-ventures-lawsuit dept

Thu, Oct 6th 2016 8:20am — Mike Masnick

Well here's an unexpected surprise. 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. Really. Notably, the Supreme Court deserves a big assist here, for a series of rulings on patent-eligible subject matter, culminating in the Alice ruling. At the time, we noted that you could read the ruling to kill off software patents, even as the Supreme Court insisted that it did not. In short, the Supreme Court said that any patent that "does no more than require a generic computer to perform generic computer functions" is not patent eligible. But then it insisted that there was plenty of software that this wouldn't apply to. But it's actually pretty difficult to think of any examples -- which is why we were pretty sure at the time that Alice should represent the end for software patents, but bemoaned the Supreme Court not directly saying so, noting it would lead to lots of litigation. Still, the impact has been pretty widespread, with the Alice ruling being used both by the courts and the US Patent Office to reject lots and lots of software and business method patent claims.

But this latest ruling, from the very court that upended things nearly two decades ago in declaring software much more broadly patentable than anyone believed, may now be the nail in the coffin on software patents in the US. The headline, of course, is that the patents that Intellectual Ventures used against anti-virus firms Symantec and Trend Micro, were bunk, because they did not cover patent eligible subject matter. But the part that has everyone chattering is the concurring opinion by Judge Haldane Mayer, that says it's time to face facts: Alice killed software patents. And Mayer is not some newcomer. He's been at the Federal Circuit since the 1980s and was actually the chief judge in the late 90s/early 2000s when CAFC was at its worst in terms of expanding patent law. And it appears he's been born again into the anti-software patent world. It's... quite a conversion.

Even better, Judge Mayer pointed out that the First Amendment says that such patents should not be allowed. The whole concurrence is worth reading, but we'll highlight some key points, 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.

“[T]he Constitution protects the right to receive information and ideas. . . . This right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citations omitted). Patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse.

Wow! That's actually great to see -- and the kind of argument that we'd hoped to see around copyright. But we'll take it on patents. Here, Judge Mayer notes, the real issue is that this patent would basically harm free expression on the internet, making it ineligible to be patented.

Just as the idea/expression dichotomy and the fair use defense serve to keep copyright protection from abridging free speech rights, restrictions on subject matter eligibility can be used to keep patent protection within constitutional bounds. Section 101 creates a “patent-free zone” and places within it the indispensable instruments of social, economic, and scientific endeavor.... Section 101, if properly applied, can preserve the Internet’s open architecture and weed out those patents that chill political expression and impermissibly obstruct the marketplace of ideas.

From there, Judge Mayer notes that if everyone just recognized that the Supreme Court outlawed patents with Alice, the First Amendment questions wouldn't even come up at all.

Most of the First Amendment concerns associated with patent protection could be avoided if this court were willing to acknowledge that Alice sounded the death knell for software patents. The claims at issue in Alice were directed to a computer-implemented system for mitigating settlement risk.... Although the petitioners argued that their claims were patent eligible because they were tied to a computer and a computer is a tangible object, the Supreme Court unanimously and emphatically rejected this argument.... The Court explained that the “mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.”... Accordingly, “[t]he fact that a computer necessarily exist[s] in the physical, rather than purely conceptual, realm is beside the point” in the section 101 calculus.

From there, Judge Mayer makes the point (that some of us tried to make post-Alice), which the Supreme Court refused to say outright, and which many patent lawyers refused to admit: under the test in Alice, basically all software is unpatentable. And that's fine because software is "a form of language" and we don't patent language.

Software is a form of language—in essence, a set of instructions.... It is inherently abstract because it is merely “an idea without physical embodiment,”... Given that an “idea” is not patentable... and a generic computer is “beside the point” in the eligibility analysis ... all software implemented on a standard computer should be deemed categorically outside the bounds of section 101.

Boom.

And, finally, it appears that a CAFC judge recognizes (citing a bunch of great amicus briefs and papers about how patents have little to do with incentivizing software development) what many in the software field have been saying for decades: software succeeds in spite of patents, not because of it:

Software development has flourished despite—not because of—the availability of expansive patent protection. See Brief of Amicus Curiae Elec. Frontier Found. in Support of Respondents, Alice, 134 S. Ct. 2347 (No. 13- 298), 2014 WL 828047, at *6–7 (“EFF Brief”) (“The software market began its rapid increase in the early 1980s . . . more than a decade before the Federal Circuit concocted widespread software patents in 1994. . . . Obviously, no patents were needed for software to become a $60 billion/year industry by 1994.”); Mark A. Lemley, Software Patents and the Return of Functional Claiming, 2013 Wis. L. Rev. 905, 935 (2013) (“Software patents . . . have created a large number of problems for the industry, particularly for the most innovative and productive companies. . . . [T]he existence of a vibrant open source community suggests that innovation can flourish in software absent patent protection.” (footnote omitted)); Wendy Seltzer, Software Patents and/or Software Development, 78 Brook. L. Rev. 929, 930 (2013) (“Seltzer”) (“Present knowledge and experience now offer sufficient evidence that patents disserve software innovation.”); Arti K. Rai, John R. Allison, & Bhaven N. Sampat, University Software Ownership and Litigation: A First Examination, 87 N.C. L. Rev. 1519, 1555–56 (2009) (“While most small biotechnology firms that receive venture financing have patents, the available empirical evidence indicates that most software start-ups that receive venture financing, particularly in the first round, do not have patents.”).

But Mayer goes even further in this discussing four separate problems with the whole concept of software patents, including the fact that the scope of the patents greatly exceeds the importance of what they disclose. Second, he notes that "they provide incentives at the wrong time" -- recognizing a key point we've made for years: that an idea is basically worthless when compared to the actual execution (to me this applies to more than just software patents):

Because they are typically obtained at the “idea” stage, before any real inventive work has been done, such patents are incapable of effectively incentivizing meaningful advances in science and technology. “A player focused on patenting can obtain numerous patents without developing any of the technologies to useful levels of deployment or disclosure, leaving a minefield of abstract patent claims for others who actually deploy software.” Seltzer, 78 Brook. L. Rev. at 931. Here, for example, it took no significant inventive effort to recognize that communications should be screened for harmful content before delivery. The hard work came later, when software developers created screening systems capable of preventing our email boxes from being overrun with spam or disabled by viruses. Granting patents on software “ideas”—before they have been actually reduced to practice—has created a perverse incentive scheme. Under our current regime, those who scamper to the PTO early, often equipped with little more than vague notions about using computers to automate well-known business and social practices, can reap hefty financial dividends. By contrast, those who actually create and deploy useful computer-centric products are “rewarded” with mammoth potential infringement liability.

The third problem he discusses is the fact that the system is overwhelmed with software patents, "most of which are replete with broad, functional claims" which makes it "virtually impossible to innovate in any technological field without being ensnared by the patent thicket." Nicely put. And because of that:

Software patents impose a deadweight loss on the nation’s economy, erecting often insurmountable barriers to innovation and forcing companies to expend exorbitant sums defending against meritless infringement suits.

Finally, he notes that software doesn't deserve patent protection because "generically implemented software invariably lacks the concrete borders the patent law demands." As he notes, a patent system only functions when it's clear what the boundaries are of what's covered. But that's not the case at all with software patents.

Software, however, is akin to a work of literature or a piece of music, undeniably important, but too unbounded, i.e., too “abstract,” to qualify as a patent-eligible invention.

From there, he suggests that the courts (and I guess the Supreme Court) should just stop punting on the issue and declare software patents dead:

Declaring that software implemented on a generic computer falls outside of section 101 would provide muchneeded clarity and consistency in our approach to patent eligibility. It would end the semantic gymnastics of trying to bootstrap software into the patent system by alleging it offers a “specific method of filtering Internet content,”....

The opinion is a great read overall -- and it's the kind of arguments that plenty of folks in and around tech and software patents have been making for years. But to see it come out of a judge's pen, in a patent case, and from CAFC, is what's really incredible. Of course, as a concurring opinion, rather than the majority opinion, by itself the opinion holds no precedential value. That's too bad. But it does suggest that even CAFC judges are recognizing how ridiculous software patents are these days. It will be interesting to see if Intellectual Ventures tries to kick this up a level to the Supreme Court, where it might risk SCOTUS actually agreeing with Judge Mayer.

15-1769-Opinion-9-28-2016-1 (PDF)15-1769-Opinion-9-28-2016-1 (Text)

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

Filed Under: cafc, first amendment, haldane mayer, innovation, patents, software patents
Companies: intellectual ventures, symantec, trend micro

76 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

I.T. Guy, 6 Oct 2016 @ 8:38am

Did he bump his head?
[ link to this | view in thread ]
Anonymous Anonymous Coward (profile), 6 Oct 2016 @ 9:01am

Oh Noes
Just think of all the value held by corporations with huge software patent portfolios that will now be worthless. Wall Street will go crazy. Accountants will get a short term boom while they spend countless dollars reevaluating corporate assets.

In addition, there will be terrible noise pollution as the patent trolls die a horrible and justly deserved death, which we will unfortunately have to listen to. Or not.
[ link to this | view in thread ]
Steerpike (profile), 6 Oct 2016 @ 9:02am

In case a lot of people aren't making it to the bottom of the original post...

The language everyone is fixated on comes from a concurring opinion, not the opinion of the majority of the court, and is therefore not binding precedent. More interesting academically, at least unless and until Mayer can persuade a majority or the Supreme Court adopts his viewpoint (which isn't likely to happen soon).
[ link to this | view in thread ]
Anonymous Coward, 6 Oct 2016 @ 9:02am

[T]he Constitution protects the right to receive information and ideas. . . . This right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citations omitted). Patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse.

Can this be applied to the circumvention clause in the DMCA?
[ link to this | view in thread ]
Steerpike (profile), 6 Oct 2016 @ 9:09am

Re:
You could certainly make a similar argument, but I'm not convinced you're going to get a court to accept it. The First Amendment has never been recognized as absolute, and while I personally favor an expansive reading of the First Amendment I think you'll have a hard time convincing a court that the DMCA anti-circumvention provision violates it. All copyright covers information, so the same argument could be made with respect to any copyright, which clearly goes against the intent of the Constitution. Even if you could get there in patents, I don't think it likely it would be expanded.
[ link to this | view in thread ]
Nathan F (profile), 6 Oct 2016 @ 9:12am

Hrm.. Could this be used in the upcoming Orical vs Google rematch?
[ link to this | view in thread ]
Steerpike (profile), 6 Oct 2016 @ 9:18am

Re:
Not the part everyone is excited about, because it's not the majority view of the court. I suppose you could present it as persuasive evidence, but that's about it.
[ link to this | view in thread ]
Bobs Your Uncle (profile), 6 Oct 2016 @ 9:20am

Re: DMCA
Doubtful, since DMCA implementations are typically applied to content that is exchanged pursuant to a mutually agreed upon business transaction, & entered into freely by both the provider & consumer.

Now, if some would-be, self-appointed gatekeeper (think ISPs) were to try & interpose DMCA implementations between content made available by unaffiliated providers to the unaffiliated consumers of that content, without the prior consent of both the content provider & consumer, that's a different kettle of fish entirely.
[ link to this | view in thread ]
Anonymous Coward, 6 Oct 2016 @ 9:22am

Boom indeed, there goes Microsoft's not inconsiderable income from Android.
[ link to this | view in thread ]
TruthHurts (profile), 6 Oct 2016 @ 9:22am

Poor Microsoft...
Well, there goes the Android subsidies that were keeping Microsoft afloat...

We should start to see counter lawsuits to reclaim funds extorted from them by Microsoft and their horde of invalid patents.
[ link to this | view in thread ]
TruthHurts (profile), 6 Oct 2016 @ 9:23am

Re:
Damn you for hitting submit seconds before me!!

lol - Nicely done!
[ link to this | view in thread ]
scotts13 (profile), 6 Oct 2016 @ 9:27am

This shall not stand!
Because it will cost a lot of large companies a lot of money. Someone will find a way to ignore/override/reinterpret it.
[ link to this | view in thread ]
Anonymous Coward, 6 Oct 2016 @ 9:27am

Ok what's the catch?
Seriously, are we going to get hit with an EMP now? This is how gorilla hand wishes work.
[ link to this | view in thread ]
Roger Strong (profile), 6 Oct 2016 @ 9:35am

Re: Oh Noes
The patent trolls will simply move on to a new frontier.

Absence of features perhaps. I'm waiting for Apple to sue another cell phone manufacturer for NOT including a headphone jack.

"Your honor, we made the decision to remove the headphone jack from the iPhone shortly after buying Beats headphones for $3 billion. If Samsung copies us by removing their headphone jacks it would destroy that investment!"

"Sir?"

"Sir....?"

"Sir, are you OK?"
[ link to this | view in thread ]
Steerpike (profile), 6 Oct 2016 @ 9:47am

Re: This shall not stand!
It doesn't have to be overridden, overruled, or ignored. It's a concurring opinion and has no legal weight, so things will proceed as usual unless this judge can get the majority of the court to agree with him at some point.
[ link to this | view in thread ]
NoNameCauseWhyHaveOne, 6 Oct 2016 @ 9:54am

Re:
No, that's a copyright trial.

See fosspatents.com for in depth and factual information.
[ link to this | view in thread ]
Absconder the Rodent Mediator, 6 Oct 2016 @ 10:19am

Good to know that submit a story link works
Reaching actual people in addition to the other benefits of this.

one decision is not going to do it and expect lots and lots of push back from all the IP companies and the political shills of the "knowledge" economy, 5 companies in the US generate about 40% of GDP don't expect them to give up that gravy train easily
[ link to this | view in thread ]
Anonymous Coward, 6 Oct 2016 @ 10:28am

Re: Re:In depth and factual ????
Dear NoName
If you are not actually the author of fosspatents you should be made aware that that he is a long established
paid corporate shill and spin artist with whom the word
"factual" should not be associated in a sentence. I suggest
you google groklaw along with his name, SCO and Oracle.
[ link to this | view in thread ]
DannyB (profile), 6 Oct 2016 @ 10:53am

Re:
I would suggest "campaign contributions" or something like it, but that would be unseemly.

After all, some pretty big corporations are getting smacked by little trolls like Intellectual Vultures.

It all seemed so fine when it was an American company suing a foreign company for a billion dollars over slide to unlock and similar crap.
[ link to this | view in thread ]
William Null, 6 Oct 2016 @ 10:55am

Some people genuinely change.
Other people are forced to do good.

But in some cases people just get... replaced by a person looking similar enough to fool most of people, even those closest to the original.

That was the case here.
[ link to this | view in thread ]
NeghVar (profile), 6 Oct 2016 @ 10:55am

In simplest form, the problem with software patents is that not only is the formula patented, but so it the outcome. Here is my example
Company A: 10+10=20
Company B: 4*5=20
Company C: 25-5=20
Company D: 40/2=20
Company E: Sqrt(400)=20
Company F: Method of creative an output of 20. (log 16.043)^16.043=20
Companies A – E all use different values and different mathematical functions to create 20. Yet if Company F was the first to patent, then Companies A – E would be sued.

If a pharmaceutical company tried this, Method of relieving pain via oral ingestion. It would be rejected immediately. You need specific unique formulas
[ link to this | view in thread ]
Darkhog, 6 Oct 2016 @ 10:56am

Re:
Dunno, maybe.
[ link to this | view in thread ]
DannyB (profile), 6 Oct 2016 @ 10:57am

Re: Re: DMCA
I assume you mean DRM implementations. Not DMCA implementations.

Nonetheless, the DMCA anti circumvention clause really should get smacked down for the exact same reasons.
[ link to this | view in thread ]
DannyB (profile), 6 Oct 2016 @ 11:00am

Re: Re:
Uh, No. Do not see Fosspatents for anything remotely resembling information, factual or not.

First, the name is an oxymoron.

The content spewed there is in support of patents and against FOSS. (Free and Open Source Software.)

That site and its author became notable during the SCO vs IBM trial. It has consistently been against free and open source software, but uses FOSS in its name.
[ link to this | view in thread ]
Darkhog, 6 Oct 2016 @ 11:02am

Re: Poor Microsoft...
Awesome! The year of Linux Desktop will be sooner than expected.
[ link to this | view in thread ]
DannyB (profile), 6 Oct 2016 @ 11:03am

Re:
Some people do not change, nor are forced to do good.

Without naming any names, for example, a drug company increasing the prices of old life saving medications by thousands of percent. And sleeping well. Bragging about it.

Evil is real. But it won't last forever.
[ link to this | view in thread ]
Thad, 6 Oct 2016 @ 11:05am

Re: Re:
Er, what campaign, exactly? He's a federal judge. He has a lifetime appointment.
[ link to this | view in thread ]
Harambe, 6 Oct 2016 @ 11:05am

Re: Ok what's the catch?
You should know better than to think I'd do something like that! I'm insulted. Very insulted.
[ link to this | view in thread ]
Darkhog, 6 Oct 2016 @ 11:08am

Re:
...what?
[ link to this | view in thread ]
Thad, 6 Oct 2016 @ 11:08am

It's too early to celebrate (as others have noted, it's not a decision, it's a concurring opinion, and it has no legal weight), but it's a start.
[ link to this | view in thread ]
Darkhog, 6 Oct 2016 @ 11:12am

Re: Re:
Let's first fix IT sector. Medical sector will probably be next on the todo list of whoever is trying to fix the world. No idea who that null guy is, but after initial wtf reaction to his post, he has bit of a point. Remember the HP cartridge fiasco? Yeah, they were forced to apologize and back away from this.
[ link to this | view in thread ]
Anonymous Coward, 6 Oct 2016 @ 11:13am

Re: Oh Noes
They will simply write it off and not pay taxes for the next eighteen years .. as if they were paying any taxes to begin with, but that's another story.

I love how some suggest that corporations taking legal deductions is perfectly fine while middle to lower income individuals are moochers for doing the same thing.
[ link to this | view in thread ]
Bob Thibadeau, 6 Oct 2016 @ 11:21am

Software Patents
I was very disturbed by this article. I wrote a paper on this back in the 1990s. First this is not a constitutional issue (the constitution did not designate "patents" "copyrights" and what their respective contents are... these are laws passed many years ago. What I propose in this article is to get back to basic to protect intellectual property "for a time" ...but dependent on a more realistic notion of what "for a time" means according to the property in question. The paper is at
http://www.cs.cmu.edu/~rht/leaps/softprop.html
Although nobody has seemed to care ... it's been on the web since I wrote it over 20 years ago. It is not hard or unconstitutional to erase patents and copyrights ... as long as congress replaces them with something that makes more sense.
[ link to this | view in thread ]
William Null, 6 Oct 2016 @ 11:25am

Re: Re: Re:
Indeed, the IT sector is the first thing that needs to be fixed. See how much of world's economy hinges on it.

Without free and open IT solutions, both offline and online, we can't have free world at this point. So, in order to achieve freedom in more mundane aspects of our lives, we first need to achieve free IT. And that's what's about to happen.

In the coming months there will be more cases like this, not to mention KDC's case getting thrown out. There will be also new innovations popping up on Kickstarter and IndieGoGo. Things like what comes essentially to DYI supercomputer or 2D inkjet printers that are DRM-free.
[ link to this | view in thread ]
Tarrasc trhe invisable sexual dinosaur, 6 Oct 2016 @ 11:28am

Re: Re: Oh Noes
No matter what you think of Trump this Clown show is exposing at least some of the truly despicable things that are happening not only in the US but all over the world because of neo-liberal ideology not that neo-cons are better but they are both sides of the same two-face coin and intellectual property is being used as a method of social control(can I patent that?) limiting discussion, creating barriers to entry and used to punish those that defect from the expected game theory, (https://en.wikipedia.org/wiki/The_Trap_%28TV_series%29 )

end it open everything you do never charge for your ideas, oppose anyone that does.
[ link to this | view in thread ]
Tarrasc trhe invisable sexual dinosaur, 6 Oct 2016 @ 11:54am

Re: Software Patents
I'm thinking the reason no one cares about this is that was a word salad of I don't even know, and demonstrates very clearly that a PHD doesn't make you smarterer software is not like things there are very limited boundaries and patentablity requires uniqueness, that is not an accident otherwise I could sue you for your lemanaid(that auto correct thinks this word is middleman amuses me to no end) stand.

Trade secrets are not patents, one you must protect yourself the other gives you a legal monopoly, enforced by many large men with guns, these are not equivalent propositions.

The idea that I can lock up "hello world" and that his is accepted in software patents should tell you that this is a ridiculous idea.

Appeals to authority(Jefferson) are not valid arguments and really "the medium is the message" my god man how old where you when you wrote this? you deeply misunderstood him and what he was taking about sheeh...
[ link to this | view in thread ]
techie1 (profile), 6 Oct 2016 @ 11:55am

Software are maths
Someone from the UK (a bright fellow IIRC) posted to Groklaw that "all Software is Maths."
Math is not patent eligible.
QED.
[ link to this | view in thread ]
PatentsBlockInnovation, 6 Oct 2016 @ 1:12pm

The FTC is growing a pair
Fair Use quotes,
"The Federal Trade Commission has released a study of Patent Assertion Entity (PAE) Activity—dubbed "patent trolls" by their critics—and recommended reform of the patent assertion process.

PAE's say this in response
“It is important to remember that patent licensing plays a vital role in bringing new technologies and medical breakthroughs to market. It critically allows innovators to focus on inventing and research, instead of manufacturing, sales and marketing." (my emphasis)

http://www.broadcastingcable.com/news/washington/ftc-proposes-reforms-patent-assertion-enti ty-system/160180

I just don't understand patents today.

Here's a quote from Intellectual Ventures this past week,

“If we own a patent … if we don’t make (a product) that means we make nothing, so we just try to license them to people or sell them to people or create companies around them,” Myhrvold said. “I think that is probably the friendliest use of patents.”

http://www.geekwire.com/2016/279851/

Seriously, I really don't understand how ideas can be patented without a working prototype product.

The reason I say this is simple, in the U.S. patents are holding back innovation. Startups can't afford to go to court, where PAEs have the money to.

Meanwhile patent unfriendly/reasonable countries are building products (from tech to pharma) that help their citizens without bankrupting them by ignoring patents.

From my perspective, the current state of patents is making the United States fall behind other countries that hold (in my view) a more reasonable approach to patents.
[ link to this | view in thread ]
DannyB (profile), 6 Oct 2016 @ 1:39pm

Re: Re: Re:
As much as I'd like to fix the IT sector first, you're not going to fix anything until you can fix legalized bribery . . . er, I mean campaign finance.

And legalized bribery needs to once again have the nasty and illegal connotation that it once would have had instead of being an amusing sound byte.
[ link to this | view in thread ]
Anonymous Coward, 6 Oct 2016 @ 2:16pm

Re:
The Sqrt(400) is 20 AND -20. Square root takes the form of a quadratic and thus has 2 zeroes which may be coincidental.
[ link to this | view in thread ]
Tarrasc trhe invisable sexual dinosaur, 6 Oct 2016 @ 2:17pm

Re: Software are maths
Sure you say that but just wait till the BBC sues because "Maths" instead of Math.

Just another chapter in the story of maths
[ link to this | view in thread ]
Anonymous Coward, 6 Oct 2016 @ 2:18pm

Re: Software are maths
Computer Scientists say that software is Math, but mathematicians say that it is not.
[ link to this | view in thread ]
Anonymous Coward, 6 Oct 2016 @ 2:22pm

Seriously, I really don't understand how ideas can be patented without a working prototype product.

It's easy. All you have to do is hire some patent attorneys.
[ link to this | view in thread ]
Bobs Your Uncle (profile), 6 Oct 2016 @ 3:01pm

Re: Re: Re: DMCA
Urps ... Hey, help me out a bit more while you're at it ... What are those other Federal Agencies I said I was going to shut down???
[ link to this | view in thread ]
Anonymous Coward, 6 Oct 2016 @ 4:20pm

Re: Re: Re:
He probably realized that he will never be selected for SCOTUS.
[ link to this | view in thread ]
BernardoVerda (profile), 6 Oct 2016 @ 8:10pm

Re: Re: DMCA
> "Doubtful, since DMCA implementations are typically applied to content that is exchanged pursuant to a mutually agreed upon business transaction, & entered into freely by both the provider & consumer."

I hate the use of the word "freely" in that context; it smacks of false equivalence, as the degree of "freedom" enjoyed by the two parties is remarkably unequal.
[ link to this | view in thread ]
David (profile), 7 Oct 2016 @ 3:23am

Re: Software are maths
And he did nobody any good service. Instead he wasted an incredible amount of effort trying to explain high-level mathematics and why software was math because of his explanation that nobody else could follow.

Ping - nut job, ignore. So he accomplished very little.

Now we have the SCOTUS saying (finally) that 'doing on a computer' or 'the intertubes' doesn't mean they can bypass 101.

I am nearly finished with the brief but the consenting opinion actually states the issue much more clearly than the groklaw mathhead ever did. Software isn't tangible, it is an idea. There's your QED right there. Ideas cannot be patented.

His view regarding the First Amendment is pretty clear as well. The society is built on freedom of expression, software are ideas and you cannot let the entire computing landscape be 'balkanized' (great line) by patents as they are trampling on free speech.

He also states the computer has become 'the basic tool' for everyone, for nearly every aspect of modern life. Thus restricting access violates the basic freedom of everyone.

And he did it without any math.
[ link to this | view in thread ]
David (profile), 7 Oct 2016 @ 3:51am

The final dissenting opinion has his facts wrong.
The last of the PDF has a dissenting opinion that partially disagrees with the rest of the court. In his view the scanning of files not on the users computer but before it gets to the user is valid 101. Because it was new and innovative (at least that is how I read his piece).

Sadly he is wrong.

Email/content scanners as individual servers were actually sold *before* the patent application. One could purchase a rack server that received all email and the spam would be extracted and included virus/malware would be squashed. As it was in a separate box (system/server) this was definitely happening off the users computer and before the genius of 'doing on a different computer', which still fails 101. This is doing it on a different but still generic computer.

The advent of the cloud and virtualized computers all came after the reality of multiple servers working in farms to support the corporation (and the public). Email scanning was big business as Spam Was King. It is less so now, but scanning email before it got to the user is old news.
[ link to this | view in thread ]
John Mayor, 7 Oct 2016 @ 4:23am

TALK ABOUT BIRTH OF A NATION
O-H M-Y G-O-D! W-H-A-T T-H-E "H-E-Y" I-S H-A-P-P-E-N-I-N-G T-H-I-S M-O-R-N-I-N-G!
.
I was having breakfast!... planning for the day!... and I get this!... instead! Ha, ha, ha!... O-O-P-S!
.
I'm guessing... and correct me if I'm wrong!... this just threw the doors open for FOSS and FOSH worldwide!... AND B-E-T-T-E-R S-E-C-U-R-I-T-Y, WORLDWIDE! O-O-P-S! Somebody is not going to be very happy this month!... and I wonder who that's going to be!
.
I'm betting Richard Stallman, the FSF, and the FSF legal team have been partying like crazy!... or, soon will be!
.
Beam me up SCOTUS! Ha, ha, ha!
.
Please!... no emails!
[ link to this | view in thread ]
Bob Thibadeau, 7 Oct 2016 @ 4:34am

Re: Re: Software Patents
Please learn correct spellings of "smarter" and "lemonade", because you obviously are less intelligent than me. Probably because YOU are one without a proper education, therefore you are ignorant to this subject and your opinion is invalid.

Another thing you have to learn is that sentences ALWAYS starts with a capital letter and you always put a space before a parenthesis.

Plus, a man needs to be able to own an idea or a process so he is able to profit from it. For a reasonable time, yes, but there's really nothing wrong with copyright or patent system other than in some cases it lasts too long, which you would know, if you had the mental capacity to actually understand my paper.
[ link to this | view in thread ]
Wendy Cockcroft (profile), 7 Oct 2016 @ 5:34am

Patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse.

I nearly stood up at my desk and cheered. Where can I buy pom-poms in Manchester?

Software is a form of language—in essence, a set of instructions.... It is inherently abstract because it is merely “an idea without physical embodiment,”... Given that an “idea” is not patentable... and a generic computer is “beside the point” in the eligibility analysis ... all software implemented on a standard computer should be deemed categorically outside the bounds of section 101.

Dear Oracle,

please go away. Google infringed nothing since software can't be patented. Now move along.

Love,

Judge Mayer

It really is a shame this wasn't the majority opinion. Hopefully this will lead to better judgments being made from now on.
[ link to this | view in thread ]
Wendy Cockcroft (profile), 7 Oct 2016 @ 5:39am

Re: Re: Re: Oh Noes
Erm, this has nothing to do with the election. You're right about neoliberalism and the neocons, though. This is indeed their doing; by turning intellectual output into property they can increase the rentier economy. What the robber barons of the last century did with land, they're doing with ideas and it's causing the exact same problems.

Notice that the ideology hasn't changed, only the name. Neocons are colonialists with a nasty case of White Man's Burden and neoliberalism is corporatism.
[ link to this | view in thread ]
Wendy Cockcroft (profile), 7 Oct 2016 @ 5:41am

Re: Re: Re: Re: Oh Noes
*neoliberalism is mercantilism.
[ link to this | view in thread ]
Wendy Cockcroft (profile), 7 Oct 2016 @ 5:48am

Re: Re: Re: Software Patents
Per Ben Franklin you can't own an idea. As Judge Mayer wisely and correctly pointed out, patents are government-granted monopolies and they're supposed to be temporary.

You can make make money well enough from an idea without having a monopoly of any length on it; millions of people do so every day.
[ link to this | view in thread ]
Wendy Cockcroft (profile), 7 Oct 2016 @ 5:48am

Re: Re: Software are maths
I say "Maths." May I sue, please?
[ link to this | view in thread ]
Anonymous Coward, 7 Oct 2016 @ 6:10am

Re: Re: Re: Software Patents
Plus, a man needs to be able to own an idea or a process so he is able to profit from it.

To profit from an idea requires an execution of the idea, and marketing ability, which is why teams like Steve Jobs/Steve Wozniak and Bills Gates/ Paul Allen were successful, and in both cases the most famous name is that of the marketing guy.
Most inventors fail not because they cannot protect their ideas, but rather because the cannot finalize a product, and they cannot market their product. The best option for someone with an idea is to find a business partner who will reign in their tinkering, and who can sell the resulting product.
[ link to this | view in thread ]
Anonymous Coward, 7 Oct 2016 @ 9:53am

Re: Re: Software are maths
No they don't.
[ link to this | view in thread ]
Thad, 7 Oct 2016 @ 9:53am

Re:
Oracle v Google is a copyright suit.
[ link to this | view in thread ]
Edward351, 7 Oct 2016 @ 10:24am

Re: Poor Microsoft...
Only if the claimant lost in court. If someone agreed to a license to avoid going to court, then they would not have grounds to fight the issue. They may be able to drop the license and stop paying, but even then without binding precedent they would still have to go to court.
[ link to this | view in thread ]
nop (profile), 8 Oct 2016 @ 8:28pm

Re: Re: Re: Software Patents
ignorant to this subject

You mean: "ignorant [of|about] this subject".
If you're going to grammar-flame someone, it behooves you to avoid making any of your own errors in the process. ;)
[ link to this | view in thread ]
Joeri, 9 Oct 2016 @ 4:16am

Point of law
The judge makes some fine arguments on why software patents are bad, and I agree wholeheartedly. However, I'm less convinced on the points of law. If the supreme court thought that software patents shouldn't exist as a point of law, they wouldn't have found over and over again that they should.

Yes, software patents are bad, but they're the way the law works. Only a change in legislation can get rid of them. As long as congress remains pro-software-patent there's very little the court can do to counter that.
[ link to this | view in thread ]
Eldakka (profile), 9 Oct 2016 @ 4:49pm

Re: Re: Re:
So it should be named:

The Democratic Republic of Fosspatents.
[ link to this | view in thread ]
Eldakka (profile), 9 Oct 2016 @ 5:15pm

Re: Re: Re: Software Patents
Please learn correct spellings of "smarter" and "lemonade", because you obviously are less intelligent than me. Probably because YOU are one without a proper education, therefore you are ignorant to this subject and your opinion is invalid.

By making this statement and holding the view you have expressed, you have shown yourself to be less than anyone else here.

A person's intelligence, education and knowledge are irrelevant as to whether an opinion is a valid opinion. An opinion is always valid. It may be wrong, it may be lacking, incorrect, limited, sorta right, close, far, good, bad, spot on, way off base. But it is still valid.

If you make the basis of whether even to consider an opinion on the educational and intelligence level of the person expressing the opinion, then you are an elitest, bigoted, limited, arrogant prick.

You are the one showing ignorance.

Most of the great discoveries in the 19th century, prior to the establishment and promulgation of the modern scientific method, were based on ignorance. Many of them were based on pure experimentation with no knowledge of why or what was happening, just that something was. Yet many great discoveries were made.
If an elderly but distinguished scientist says that something is possible, he is almost certainly right; but if he says that it is impossible, he is very probably wrong.”

―Arthur C. Clarke
Just because someone is lacking in education doesn't mean they can't, in fact often means they can, make fundamental contributions. It's usually those who are ignorant of the perceived wisdom of a field that can cut through that preceived wisdom and do what the educated establishment have flat-out stated is impossible.
[ link to this | view in thread ]
Eldakka (profile), 9 Oct 2016 @ 5:32pm

software patents surviving Alice
I don't thine Alice invalidates all software patents, just most.
does no more than require a generic computer to perform generic computer functions
It invalidates software patents that run on generic computers.

What I don't think it invalidates are software patents for specific-purpose computing devices. E.g industrial control systems like the firmware embedded in CnC mills, ABS braking sytems in vehicles, flight control systems that allow fly-by-wire, engine management systems like EFI, medical equipment like pacemakers, printer firmware that controls the printing functions, and so on.
[ link to this | view in thread ]
nasch (profile), 10 Oct 2016 @ 6:52am

Re: Re: Re: Oh Noes
Punctuation. Learn it, love it, use it.
[ link to this | view in thread ]
Twirrim, 10 Oct 2016 @ 9:51am

Re: Oh Noes
In No small part, a good number of those patents have had to be applied for defensively. When every competitor holds them, you have to hold them too. It's like a nuclear arsenal.

Without that arsenal you're defenceless against those who do have it. With it, you're able to get to an impasse. "You sue us for this, we'll sue you for that".

Disarming those weapons doesn't harm most of the companies involved, nor inhibit their ability to compete in the market. The only ones affected are those with no competitive product in the first place.
[ link to this | view in thread ]
Thad, 10 Oct 2016 @ 1:02pm

Re: software patents surviving Alice
But the hardware in all those cases is still a general-purpose computer, right? As in, Turing-complete?

If you can hack printer firmware to run Doom, then it's a general-purpose computer.
[ link to this | view in thread ]
Angetenar, 10 Oct 2016 @ 1:36pm

Re: Re: software patents surviving Alice
But the hardware in all those cases is still a general-purpose computer, right? As in, Turing-complete?

No. Being "Turing-complete" does not make a computer's purpose general.

If you can hack printer firmware to run Doom, then it's a general-purpose computer.

Again, no. Being able to hack a printer to do something it was not intended to do does not alter the printer's intended purpose.
[ link to this | view in thread ]
Anonymous Coward, 10 Oct 2016 @ 11:39pm

Re: Re: Re: Software Patents
Perhaps it used to be the case.

Now IP proponents like you have gone and messed it up. For something called "soft" property the penalties in comparison to actual larceny are ridiculous, to put it mildly.
[ link to this | view in thread ]
Anonymous Coward, 11 Oct 2016 @ 4:56am

Re: Re: Re: software patents surviving Alice
A general purpose computer is simply a computer whose purpose is determined by the software loaded on it, and to a lesser extent the peripherals attached via the IO ports. A special purpose computer, on the other hand is hardwired to perform a specific task, and rather than being reprogrammed, it is rewired to work on a different task, i.e. an analogue computer.
[ link to this | view in thread ]
Anonymous Coward, 11 Oct 2016 @ 7:38am

Re: Oh Noes
If they got rid of SW Patents, I'm assuming they would leave existing ones in place, and just not allow new ones. With that approach, existing patent portfolios would not be impacted.
[ link to this | view in thread ]
Anonymous Coward, 11 Oct 2016 @ 9:55pm

Re: Re: Re: Re: software patents surviving Alice
A special purpose computer is one built for a special purpose. It makes no difference if it is analog or digital. Both analog and digital computers can be re-programmable.
[ link to this | view in thread ]
trollificus (profile), 26 Oct 2016 @ 6:25am

Re: Oh Noes
O t'will be harsh, hysterickal and loud, yet e'en so, sweet in portent as the musick o' the spheres.
[ link to this | view in thread ]
Eaton Van Winkle, 29 Sep 2017 @ 8:50am

Alice Needs To Be Revisited
I understand the concerns about patent trolls and other problems with the pre-Alice environment that are very well explained here. But the implementation of Alice is too sweeping and the cost of eliminating the trolls is going to be stifling the very spirit of innovation we depend on in the digital age: http://www.evw.com/news/alice-cls-bank-international-intellectual-property/
[ link to this | view in thread ]
nasch (profile), 29 Sep 2017 @ 9:58am

Re: Alice Needs To Be Revisited
Does your law firm benefit from strong patent laws?
[ link to this | view in thread ]
ech, 25 May 2018 @ 2:31pm

Re: Re: Alice Needs To Be Revisited
I guess it did? they're out of business now :)
[ link to this | view in thread ]