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In re Bilski -- Red Hat files amicus brief saying software patents are a brake on innovation
Wednesday, April 09 2008 @ 04:47 AM EDT

If you've been reading News Picks, you may have noticed that both the ACLU and Red Hat have filed amicus briefs in a patent case, In re Bilski and Warsaw. I thought you might like to understand what is going on, as best as I can explain it. Here's the ACLU brief [PDF]. Red Hat's announcement indicates that it is asking the United States Court of Appeals for the Federal Circuit to consider something dear to your hearts, whether or not, or to what degree, patents should be allowed on software, and its brief explains to the court the damage that software patents are doing to Open Source software. Here's the brief [PDF].

For background and context, here's a article that explains the fundamental issues in the Bilski case:
As most patent lawyers know, the U.S. Court of Appeals for the Federal Circuit has signaled that it is reconsidering the patentability of business methods in a rare en banc hearing on In re Bilski. It's the most visible sign yet that the Federal Circuit is ready to fall in line with a series of Supreme Court rulings limiting patent rights by revisiting its own 1998 State Street Bank v. Signature Financial Group decision.

Many may also know that Bilski is about a method of trading weather risk invented by two former energy company executives who are founders of Pittsburgh-based WeatherWise USA Inc.

So, it's an appeal from a failed attempt to get a business method patent. But it's an opportunity to raise issues with the court that I know most of you have been wishing someone would raise. Red Hat in particular is bringing to the court's attention the braking effect software patents are having on Open Source software, where instead of encouraging innovation, it's threatening it.

The inventors, shall we call them, are appealing their inability to obtain a patent on their idea, as reports:

Warsaw sees his failure to get a patent, like the Minnesota investigation, as an example of visionless government bureaucracies. "Both these events are stifling creativity and innovation in areas where they should be encouraging them," says Warsaw. "We've invested tens of millions of dollars in our company. IP is no longer gears, valves, pipes and wires."

In short, it's litigation on whether patents can be stretched to cover a disembodied idea, an abstract idea that has no machine implementing anything, no technology at all. The USPTO wouldn't issue the patent, and that is what is being appealed. Here's the decision [PDF] by the Board of Patents and Interferences back in September of 2006 that upheld the examiner's position refusing to grant the patent, and it explains what the patent application was for and why the examiner said no:

The invention relates to a method practiced by a commodity provider for managing (i.e., hedging) the consumption risks associated with a commodity sold at a fixed price. It is disclosed that energy consumers face two kinds of risk: price risk and consumption risk (specification, p.1). The proliferation of price risk management tools over the last 5 years before the filing date allows easy management of price risk (specification, p. 2).

However, consumption risk (e.g., the need to use more or less energy than planned due to the weather) is said to be not currently managed in energy markets, which is the problem addressed by the invention (specification, p. 2). ...

The examiner's position is summarized in the statement that, "[regarding [claims 1-11, the invention is not implemented on a specific apparatus and merely manipulates [an] abstract idea and solves a purely mathematical problem without any limitation to a practical application, therefore, the invention is not directed to the technological arts" (FR4). That is, the examiner states that the invention is an "abstract idea," and apparently a "mathematical algorithm," and does not fall within the "technological arts" according to In re Musgrave, 431 F.2d 882, 893, 167 USPQ 280, 289-90 (CCPA 1970), where the examiner states (FR4):

"The definition of 'technology' is the 'application of science and engineering to the development of machines and procedures in order to enhance or improve human conditions, or at least improve human efficiency in some respect.' (Computer Dictionary 384 (Microsoft Press, 2d ed. 1994))."

It's not "in the technological arts," the appeal decision stated, because it isn't in any way necessary to perform the method on a computer or have any other technological means to carry out the invention. It was easy enough to recognize a cotton gin as being worthy of a patent, let's say. But when software patents began to be covered, things got squishy. Computers, after all, perform abstract ideas, so where do you draw the line? Everyone seems to have suddenly realized that unless someone figures that out, there will be endless litigation to try to draw a line somewhere, as the Board goes on to relate:

The "useful arts" in the Constitution, are implemented by Congress in the statutory categories of eligible subject matter in 35 U.S.C. .§ 101: "process, machine, manufacture, or composition of matter, or any new and useful improvements thereof." Machines, manufactures, and man-made compositions of matter represent tangible physical things invented by man and seldom raise a §101 issue, except for the special case of claims to general purpose machines (usually computers) that merely perform abstract ideas (e.g., mathematical algorithms), where the fact that the claim is nominally directed to a machine under §101 does not preclude it from being held nonstatutory....

This appeal involves "non-machine-implemented method claims, i.e., the claims do not recite how the steps are implemented and are broad enough to read on performing the steps without any machine or apparatus (although performing the steps on a machine would, of course, infringe). The steps of claim 1: do not recite any specific way of implementing the steps; do not expressly or impliedly recite any physical transformation of physical subject matter, tangible or intangible, from one state into another; do not recite any electrical, chemical, or mechanical acts or results; do not directly or indirectly recite transforming data by a mathematical or non-mathematical algorithm; are not required to be performed on a machine, such as a computer, either as claimed or disclosed; could be performed entirely by human beings; and do not involve making or using a machine, manufacture, or composition of matter, We do not believe the outcome in this case is controlled by the Federal Circuit decisions in State St. Bank & Trust Co. v. Siqnature Fin. Group, Inc., 149 F. 3d 1368, 47 USPQ2d 1596 (Fed. Cir. 1998) and AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352, 50 USPQ2d 1447 (Fed. Cir. 1999) because we interpret those cases to involve the "special case" of transformation of data by a machine.

The question of whether this type of non-machine-implemented subject matter is patentable is a common and important one to the U.S. Patent and Trademark Office (USPTO), as the bounds of patentable subject matter are increasingly being tested. In recent years, the USPTO has been flooded with claims to "processes," many of which bear scant resemblance to classical processes of manipulating or transforming compositions of matter or forms of energy from one state to another. Many of these applications are referred to as so-called "business methods," but claims to methods of meditation, dating, physical sports moves, etc., are also presented. "Business methods" have long been considered statutory subject matter when performed by a machine. ...

The USPTO no longer rejects claims because the claimed subject matter does "business" instead of something else. See State Street, 149 F.3d at 1377, 47 USPQ2d at 1600 (referring to Examination Guidelines, 61 Fed. Reg. 7478, 7479 (1996)). Nevertheless, many questions remain about statutory subject matter and what the tests are for determining statutory subject matter. State Street and AT&T, often called "revolutionary," involved patented machines or machine-implemented processes that examiners have for sometime regarded as nonexceptional. Perhaps encouraged by certain general language in these cases, however, a wide range of ever more general claims to "processes" come before the Office (although the present case predates both State Street and AT&T). Many, like the claimed process in the present case, are not limited to implementation via any particular technology or machine. Are such "processes" patentable because they are "useful"? Other "process claims" involve what seem to be insubstantial or incidental manipulations of physical subject matter--e.g., the mere recording of a datum: are these patentable processes? Still other process claims involve human physical activity--methods of throwing a ball or causing a fumble. Do these process claims cover patentable subject matter? Must the examiners analyze such claims for compliance with the written description and enablement requirements, and search the prior art for evidence of novelty and nonobviousness?

In short, patent examiners and everyone else find themselves in patent LaLaLand. If you listen to the court's October hearing (which you can listen to as MP3 here - [Update: -- not any more, as the court now renders that url as the later May 8, 2008 hearing; October's seems to have disappeared.]

[Update 2: It's back. If you search for keyword Bilski on the court's search page, you'll find it first on the list. Or just go here.]

And you can read a very complete report on oral arguments on AIPLA's website.), it's quite amusing to hear them try to figure out if a chiropractor's hands are a kind of patentable process, if the spine is altered. It's getting so goofy.

Now, after recent decisions by the US Supreme Court in particular, the tide seems to be shifting somewhat. The appeals court is now asking, what exactly is patentable? If it is a mere abstract idea and it's allowed to be patented, what happens next? Can you, say, patent democracy? Men invented it, after all, it's under the sun, it's not a law of nature, and it's a method of getting something done. Could that be granted a business method patent? If abstract ideas, unrelated to any machinery, can be patented, then why *couldn't* you patent democracy? The USPTO is struggling with where to draw the line. So are the courts. No one knows precisely where the line should be, which is what happens, in my view, when you have already crossed the line into Sillyland.

The US Court of Appeals for the Federal Circuit noticed, I gather, that there is a need to draw a line somewhere, and so after the hearing last October, instead of issuing a decision on the case on its own initiative announced in a February 15, 2008 order that it would hold an en banc hearing and it asked the parties and amici to answer five questions [PDF]:

This case was argued before a panel of this court on October 1, 2007. Thereafter, a poll of the judges in regular active service was conducted to determine whether the appeal should be heard en banc.

Upon consideration thereof, IT IS ORDERED THAT:

The court by its own action grants a hearing en banc. The parties are requested to file supplemental briefs that should address the following questions:

(1) Whether claim 1 of the 08/833,892 patent application claims patent- eligible subject matter under 35 U.S.C. § 101?

(2) What standard should govern in determining whether a process is patent-eligible subject matter under section 101?

(3) Whether the claimed subject matter is not patent-eligible because it constitutes an abstract idea or mental process; when does a claim that contains both mental and physical steps create patent-eligible subject matter?

(4) Whether a method or process must result in a physical transformation of an article or be tied to a machine to be patent-eligible subject matter under section 101?

(5) Whether it is appropriate to reconsider State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), and AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999), in this case and, if so, whether those cases should be overruled in any respect?

This appeal will be heard en banc on the basis of the original briefs and supplemental briefs addressing, inter alia, the issues set forth above.

You've probably heard of the State Street case, as it's a famous case, the one that stretched patents to cover software. AT&T was the one that did the same for business methods. You might be interested to know that the judge reversed in that latter case was Judge Sue Robinson, the judge in the stalled Red Hat v. SCO case. She tried to do the right thing, as we would view it, but she was reversed, and now the question is, was she right after all? Should those two cases be modified or overruled? In fact, in that opinion by the appeals court, the question that is now stage front and center was raised in a quotation from Justice Stevens in the case Diamond v. Diehr, 450 U.S. 175, 182 (1981):

Our analysis of whether a claim is directed to statutory subject matter begins with the language of 35 U.S.C. 101, which reads:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title....

In his dissent in Diehr, Justice Stevens noted two concerns regarding the 101 issue, and to which, in his view, federal judges have a duty to respond:

First, the cases considering the patentability of program-related inventions do not establish rules that enable a conscientious patent lawyer to determine with a fair degree of accuracy which, if any, program-related inventions will be patentable. Second, the inclusion of the ambiguous concept of an "algorithm" within the "law of nature" category of unpatentable subject matter has given rise to the concern that almost any process might be so described and therefore held unpatentable.

Diehr, 450 U.S. at 219 (Stevens, J., dissenting).

Despite the almost twenty years since Justice Stevens wrote, these concerns remain important. His solution was to declare all computer-based programming unpatentable. That has not been the course the law has taken. Rather, it is now clear that computer-based programming constitutes patentable subject matter so long as the basic requirements of 101 are met.

Now the question is, did the law go too far? Duh, you say. But this is what they are asking. If you listen to the MP3, you will hear them talk a lot about In re Comiskey and here it is [PDF], along with some information about it. They also mention Parker v. Flook, a Supreme Court decision.

So there is quite a lot at stake, and the tide appears to be turning away from the profligate issuing of patents in such categories. At least the right questions are being asked. But to what extent will they reach a decision to modify or pull back? This case will help to decide. Of course, the Supreme Court is higher than this court, but having already given some direction, the Bilski case gives the appeals court the opportunity to undo what many view as damage by some decisions that opened the floodgates to all kinds of crazy patents. And that is why suddenly a large crowd of interested parties are submitting amicus briefs. The list at the court is impressive. Unfortunately, the court does not make the briefs digitally available, but Red Hat's announcement says it will be on that page soon. And thankfully, Patently-O provides some descriptions of positions taken and explains the process. More amicus briefs listed here.

ACLU argues that this case raises another question, a Constitutional one: if you can patent an abstract idea without any machine component, what about the First Amendment? Can the government grant a monopoly to someone on an abstract idea? The ACLU press release puts it like this:

Introducing a rare argument applying the First Amendment to patent law, the American Civil Liberties Union filed a friend of the court brief today urging a federal court to uphold the denial of a patent that would, if awarded, violate freedom of speech. In the brief, the ACLU argues that Bernard L. Bilski is seeking a patent for an abstract idea, and that abstract ideas are not patentable under the First Amendment.

"The court must ensure that any test it uses in determining whether to award a patent is in line with the Constitution," said Christopher Hansen, senior staff attorney with the ACLU First Amendment Working Group, who filed the brief. "If the government had the authority to grant exclusive rights to an idea, the fundamental purpose of the First Amendment - to protect an individual's right to thought and expression - would be rendered meaningless."

Here's the Red Hat statement:

Today, Red Hat took a public stand challenging the standards for patenting software. In the Bilski case that is now before the Federal Circuit Court of Appeals, this patent issue is ripe for consideration. In a friend of the court brief submitted to the Federal Circuit Court of Appeals in the Bilski case today, Red Hat describes the special problems that patents pose for open source and seeks modification of the standards for patentable subject matter that take open source into account. Here is a quick summary of our brief.

Open source software is one of the most dynamic, innovative sectors of the U.S. economy, but the U.S. patent system is a costly hindrance to open source innovation. We believe that although the patent system was created to foster innovation, it’s simply not an engine for innovation for open source. Software patents were barely recognized when open source began, and so the hope of obtaining a patent did not motivate the first developers. Those pioneers were generally opposed to software patents. The open, collaborative activity at the heart of open source is at odds with the patent system, which excludes the public from making, using or selling a patented invention. Open source developers seek to contribute code to the community – not to exclude others from using the code.

Today the patent system is, if anything, a hindrance to open source. Developers face the risk that the original code they have written in good faith could be deemed to infringe an existing software patent. It’s impossible to rule out this possibility, because there are now more than 200,000 software patents, and those patents cannot be efficiently searched. Software patents are difficult to interpret, even for experts in computer science and software engineering. Experts often disagree as to whether a particular patent claim covers a particular program. Thus , a risk of litigation exist for every open source project, and the potential cost of patent litigation runs into millions of dollars for a single case.

Given the litigation risk, some open source companies, including Red Hat, acquire patents for the sole purpose of asserting them defensively in the event they are faced with a future lawsuit. Red Hat also provides open source intellectual property protections through our Open Source Assurance Program that protects our customers and encourages them to deploy with confidence. Our strategy is a prudent one and mitigates the risk of patent lawsuits, but it would be unnecessary if the system itself were fixed.

Despite the hindrances of the patent system, open source continues to expand at an exponential rate. One can only imagine how that expansion would accelerate if the braking effect of the patent system were lifted.

In the Bilski case now pending in the Federal Circuit, the appeals court will address the issue of the boundaries of the subject matter that may be patented. The Supreme Court has repeatedly stated that abstract ideas and algorithms (which are the core building blocks of computer programs) are not patentable. Applying this principle consistently would greatly narrow the availability of software patents. As the Federal Circuit addresses the standard for patentable subject matter, we urge in our brief that it take account of the perverse effects of the patent system on open source and narrow the standard for patentability.

Our full brief will be posted online soon. Check back for the link.

Oral argument will happen May 8 at 2 PM in Courtroom 201. Here's a map showing all the circuits. The Federal Circuit is, you'll see, in Washington, DC.

I've always told you that in my opinion the best hope for fixing the software patent mess was in the courts, but I confess I was thinking of the Supreme Court, not the U.S. Court of Appeals for the Federal Circuit. But that is not a complaint. I'm stunned but happy it is even asking these questions.

Update: EFF has filed an amicus brief also:

In re Bilski is an appellate court case that provides an opportunity to eliminate business method patents and curtail efforts to claim monopolies on basic human skills, behaviors, and interactions. Bilski is challenging the rejection of his application for a patent on a method of managing the risk of bad weather through commodities trading. EFF submitted an amicus brief [PDF] (in conjunction with The Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law, Public Knowledge, and Consumers Union) supporting the rejection of Bilski's patent application and setting forth a framework for determining patentable subject matter that focuses on the use of technology in the claimed invention....

EFF's brief proposes that the patent office and the courts should determine whether an invention is technological before even considering it for patent protection and lays out a set of factors to help make that determination. This litmus test will help ensure that the patent system is not used to monopolize everyday interactions and other human behaviors. It will also provide a more intuitive demarcation of patentable subject matter so that innovators and the general public can avoid infringement....The outcome of this case could change the landscape of patent law.

FSF's End Software Patents has an announcement about its amicus brief:

End Software Patents (ESP) has filed an amicus curiae brief in the Court of Appeals for the Federal Circuit's (CAFC) rehearing of the In re Bilski case. The rehearing could lead to the elimination of patents on software. ESP executive director Ben Klemens said, "This is an historic opportunity to fix the US patent system, as the Bilski rehearing will directly address the boundaries of the subject matter of patents. In our brief, the End Software Patents project supports the Supreme Court's long-held position that computer software should not be patentable, and has highlighted to the Court the real economic harm software patents cause the US economy."

With the boundary to what can be patented effectively destroyed by previous Federal Circuit rulings, massive-scale liability has been created throughout the US economy. ESP's brief also demonstrates that this liability is not merely a theoretical prediction, but a real economic harm. Over the last few months alone, ESP has tallied over fifty non-software companies being sued for infringement regarding their web sites or other course-of-business software, including the Green Bay Packers, McDonald’s, Dole Foods, Kraft Foods, Caterpillar, J Crew, Burlington Coat Factory, Wal-Mart, and Tire Kingdom. The rest of this list can be found at

Ironically, the Federal Circuit's own web site at is produced using software that likely infringes some number of software patents. In fact, the last decade of software patents has brought about many onerous and frivolous lawsuits, inspiring Congressional action and causing many to question the entire patent system. Many patents famous as the rallying points for patent opposition, such as the "Blackberry patents" from NTP v. Research in Motion, Ltd., have been software patents.

ESP's brief points out that these patents centered on claims over pure information. Under US law, pure information is not patentable. Further, the Supreme Court ruled three times that pure information does not necessarily become patentable when recited in combination with a physical object, such as information written to paper or loaded into a computer's memory. However, the Court of Appeals for the Federal Circuit ignored the Supreme Court's repeated rulings, and began allowing patents on information plus any physical component: a formula, if saved to a computer's hard drive; a price list, if money is eventually moved; not a correlation, but the act of correlating. The ESP brief recommends re-establishing the Supreme Court's rule that information should not be patentable, even when claimed in tandem with a physical afterthought.

Here's the amicus brief [PDF].


In re Bilski -- Red Hat files amicus brief saying software patents are a brake on innovation | 173 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: Erwan on Wednesday, April 09 2008 @ 04:54 AM EDT
If any


[ Reply to This | # ]

News Picks Discussions here.
Authored by: Erwan on Wednesday, April 09 2008 @ 04:56 AM EDT
Please don't forget to quote the article title.


[ Reply to This | # ]

OT, the Off topic thread
Authored by: Erwan on Wednesday, April 09 2008 @ 04:57 AM EDT
As usual.


[ Reply to This | # ]

In re Bilski: EFF Asks Court to Limit What Is Patentable
Authored by: Erwan on Wednesday, April 09 2008 @ 05:06 AM EDT
EFF is also joining the Bilski party.
EFF submitted an amicus brief (in conjunction with The Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law, Public Knowledge, and Consumers Union) supporting the rejection of Bilski's patent application and setting forth a framework for determining patentable subject matter that focuses on the use of technology in the claimed invention.


[ Reply to This | # ]

Wet finger prediction
Authored by: PolR on Wednesday, April 09 2008 @ 05:30 AM EDT
It is hard to predict the outcome of court rulings. But if we raise a wet finger
in the air, where does the wind blow?

My guess is if they are willing to hear arguments and consider the questions,
they can only come up with something that narrows the scope of software patents.
They are already so broad, I just don't see any room for expanding them.

[ Reply to This | # ]

a telling quote from Bill Gates
Authored by: Anonymous on Wednesday, April 09 2008 @ 05:41 AM EDT
"If people had understood how patents would be granted when most of today's
ideas were invented and had taken out patents, the industry would be at a
complete standstill today. ... The solution is patenting as much as we can. A
future startup with no patents of its own will be forced to pay whatever price
the giants choose to impose. That price might be high. Established companies
have an interest in excluding future competitors."

[ Reply to This | # ]

In re Bilski -- Red Hat files amicus brief saying software patents are a brake on innovation
Authored by: Anonymous on Wednesday, April 09 2008 @ 05:43 AM EDT
Each step now is one step forward.
This is surely good, provided the court considers it properly, which by the way
things are right now, they have to.

"One step, then the next, gets you where your going"

robert R McCammon - Swansong

[ Reply to This | # ]

In re Bilski -- Red Hat files amicus brief saying software patents are a brake on innovation
Authored by: Anonymous on Wednesday, April 09 2008 @ 07:08 AM EDT
Reading the posting at the Red Hat website, it is only a summary of the brief,
but it seems that they are arguing only that software patents interfere with
open source software rather than that software patents are bad for any kind of

Maybe I'm wrong, but I'd say such an argument wouldn't cut much mustard with a
court. So software patents are a problem for open source? The court would say,
"Tough. They are good for proprietary software, and we can't have different
rules for you open source guys."

Or am I looking at this wrong?

Red Hat doesn't seem to permit comments to their posts, and I couldn't find an
email for their legal people, so I can't ask them directly why they are arguing
only that software patents are bad for open source.

This is a reposting of this comment. It originally was a comment in the
Newpicks comment thread of the article yesterday.

[ Reply to This | # ]

In re Bilski -- Red Hat files amicus brief saying software patents are a brake on innovation
Authored by: N_au on Wednesday, April 09 2008 @ 07:43 AM EDT
A quick way to get rid of idea patents is if you can't see it physically with
the naked eye, no patent. None of this vague ideas written on paper. If you make
a bit of hardware and it needs software to make it work the patent can cover the
lot but not software on its own. The hardware (the computer) already has parents
covering it, so all software patents are doing is making patents make other
patents work. Seems silly. So how many patents do you really need to cover one
item? The CPU will have I assume patents covering the instruction set. Why do we
then need patents on software that tells the instruction set what to do?

[ Reply to This | # ]

What FORM of Democracy?
Authored by: seraph_jeffery on Wednesday, April 09 2008 @ 09:05 AM EDT
In jest, PJ suggests that someone might try to patent the idea of Democracy.
But, look at it: What form? "Pure," as was done by the Athenians? A
Democratic Republic, as we have in the USA? Or perhaps a Parliamentary form
where any representative could be called out for a Vote of Confidence at any
time? The variations are innumerable. Would one patent try to cover them all,
and would Prior Art be ignored in order to grant the patent? In the Bilski
case, taking weather into account as a business model - in my opinion - is
tantamount to patenting an act of God. I would like to patent rain. Everyone
who receives rain owes me a royalty.

[ Reply to This | # ]

Business process patents
Authored by: kattemann on Wednesday, April 09 2008 @ 09:31 AM EDT
I heard/read somewhere that a patent had been granted (in France?) for the
process of changing standard worktime in a company to a 6-hour day. The patent
was actually filed more or less as a joke to show how ridiculous BP patents are
- and surprise, it was granted! Unfortunately I am unable to locate it again,
but perhaps the Groklaw force can retrieve it?

[ Reply to This | # ]

implementation question
Authored by: reiisi on Wednesday, April 09 2008 @ 09:38 AM EDT
I still can't get this properly into words, and I've tried before.

(I'm glad the EFF feels they can finally get the 1st amendment question in, it's

about time to point out the 1st amendment problems in patenting abstract
ideas and it has long escaped me how those issues got swept under the rug,
but I am already digressing.)

Until software patents were allowed, patents required schematics and
diagrams in addition to general description. The actual subject of the patent
could not be the general abstract idea, but had to be an actual

I think the cases where someone got lucky and got a patent on the only
useable implementation had a lot of lawyers, managers, and investors feeling
green with envy, and encouraged very creative filings, and those filings were
what first started the accumulation of backlog, because the patent office kept
getting applicants saying, "Pretty please?" and, "Oh, but you
can't really mean
that my patent can't be so broad. It's so unfair!" Again, I digress.

If we can get back the focus on the necessity of an actual implementation,
instead of what ends up being more like the background of a novel, the
question of software patents becomes crystal clear:

Documents do not an implementation make, whether design documents or
implementation documents. The documents can aid in understanding the
implementation, but they must not be used to broaden the patent beyond the
actual implementation.

Showing the implementation of a non-software invention generally requires
schematics, diagrams and models, in addition to functional and operational
descriptions. Flow charts, by the way, are not the diagrams in question, they
are part of the functional/operational description, part of the documentation.

When it comes to software, the structure of the machine that is being
imposed on the processor is shown by nothing other than the source code.

Therefore, the source code is the equivalent, for software, of the diagrams
and schematics and models used in other fields.

Therefore, no software patent should be granted without the source code,
and the source code should represent the bounds of the patent. If someone
wants to claim patent on the C, pascal, ruby, and perl versions of some
software invention, they should be required to submit the source in each

And when we consider this, we recognize two or three things.

(1) Copyright is going to do a much better job of protecting the right of the
inventor to the invention in most cases.

(2) A proper software patent would literally open the invention up. A careful,
non-mechanical conversion of the source code to a different expression of
the same would quite possibly fail to infringe the patent. (While it would
likely infringe a copyright on the same, see (1), above.

(3) The GPL is really close to the spirit of the original intent concerning
patents when applied to software. The mechanisms for contributing back are
a bit beyond what a proper software patent would require, but not much,
because anyone intending to protect a derived software invention would need
to open the derived software invention.

I don't know if I would dare mention it in a courtroom where there will
probably be lawyers from Microsoft in attendance, but it makes sense to me
to have some sort of (combined patent/copyright) registration derived from
the GPL/Apache licenses be established as the legal process for patenting a
software invention. Well, actually, a range of requirements could be
established, whether to formally require giving the derived work back or to
allow those producing derived works to rely on trade secrets if they choose --
in the MIT/BSD license model.

If you want the protection of a patent, you should be required to open the
thing up, just like any other patentable invention.

I would guess software patents should probably be limited to seven years,
maybe renewable once, but I haven't really thought that one out carefully.

[ Reply to This | # ]

Crossing the line into Sillyland
Authored by: DannyB on Wednesday, April 09 2008 @ 10:04 AM EDT
PJ wrote...
> No one knows precisely where the line should be, which is what happens,
> in my view, when you have already crossed the line into Sillyland.

Nobody knows where the line is after you've crossed over, and gone so far beyond
that the line is no longer in sight.

The price of freedom is eternal litigation.

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Main Problem Missed
Authored by: Anonymous on Wednesday, April 09 2008 @ 10:21 AM EDT
Software patents would be just fine if they had quality. That to me is the main
problem: that patents are granted for inventions that are "not that
hard". Someone might run into the same idea, there is no ingenuity. In
fact, if patents had higher quality you would actually enjoy them.

So all this bru-haha misses the point.

Also, it doesn't look like subject matter for judges to decide. The law should
be changed.

Related Question: Is this weather-patent so useful, clever and impressive that
people are actually learning about it so that they can implement it? It seems to
address a problem that most people have.

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IP not needed for innovation
Authored by: Anonymous on Wednesday, April 09 2008 @ 10:26 AM EDT
The best demonstration which readily comes to mind that Intellectual Property is
not a necessary requirement for innovation is cooking. There is no end of
innovation in how food is cut, prepared, cooked and arranged/displayed.

The biggest problem with Intellectual Property, is the belief that so many
people in business have that it is not possible to compete, that in order to be
successful you must have a monopoly of some kind. Related to this, is that if
you are in a market where there is some competition, the only member of that
market that makes any money is the member in first place.

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Eben Moglen Keynote at Plone Conference: Why mathematics shouldn't be patentable
Authored by: Winter on Wednesday, April 09 2008 @ 11:07 AM EDT

I see a lot of ignorance about WHY mathematics has always been excluded from patentability.

There were excellent reasons why mathematics has been excluded between the 17-20 century. Eben Moglen explains most of it:

Revision of Eben Moglen Keynote at Plone Conference 2006 from 17 March, 2008 - 14:04

What was after all characteristic of the economy before steel? Was the slow persistent motivated expansion of European societies and European economies out into the larger world for both – much evil and much good – built around the persecution of the number of the basic technological improvements mostly to navel transportation and armament. All of which was undergirded by the control of mathematics. Superior to the control of mathematics available in other cultures around the world.
There are lots of ways we could conceive the great European expansion, which we describe human beings relationship to the globe. But one way to put it is, they had the best math. And nobody owned that either.
Imagine – if you will – for a moment a society in which mathematics has become property and it’s owned by people. Now, every time you want to do anything useful. Build a house, make a boat, start a bridge, devise a market, move objects weighing certain numbers of kilos from one place to another your first stop is at the mathematics store. 0:08:00 To buy enough mathematics to complete the task which lies before you, you can only use enough as much arithmetic at a time as you can afford. And it is difficult to built a sufficient inventory of mathematics, given its price to have any extra on hand.
You can predict of course, that the mathematics sellers will get rich and you can predict that every other activity in society, whether undertaken for economic benefit or for the common good, will pay taxes in the form of mathematics payments.
The productisation of knowledge about computers, the turning of sortware into a product was for a short 0:09:00 crucial period of time at the end of the 20th century the dominant element in technological progress: Software was owned. You could do what you could afford and you could accomplish what somebody else’s software made possible.

What holds for mathematics, holds for software as software is nothing but mathematics in a different format. (if you do not believe this, you just flunked both your CS and math).

To those who are not versed in mathematics or CS, think of patenting storylines. Would this increase the number of books and films, create better literature and films? more? or cheaper books and films?

None of the above. Patenting storylines would crush the publishing industry and all writers.

This is really not different from software and mathematics. All evidence points towards severe detrimental effects of patents on innovation and growth with the exception of a few, rare, industries.


Some say the sun rises in the east, some say it rises in the west; the truth lies probably somewhere in between.

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In re Bilski -- Red Hat files amicus brief saying software patents are a brake on innovation
Authored by: tknarr on Wednesday, April 09 2008 @ 01:13 PM EDT

I think the problem comes from some parties trying to blur the line between an algorithm and an implementation of that algorithm, and then trying to claim that since there's no clear line that you can't apply different rules to both.

In my book, an algorithm shouldn't be patentable, period. An implementation of that algorithm should be patentable based on whether it's embodiment is patentable. If it's "implemented" as a series of instructions for a human to follow, it's not patented on the grounds that a simple series of instructions isn't patentable subject matter. If it's in a device, then the device is patentable even though it implements an algorithm. What is a smelter, after all, but the implementation in hardware of the process of smelting steel? That's actually a good analogy. The formula, the chemical reactions, the steps to be followed to smelt steel can't be patented. The notes the smelter foreman has describing what needs to happen can't be patented. But the smelter, the physical device that implements the process, can be patented. And even if someone else knows the process, they can't implement the same physical device, or an equivalent one, without infringing on the patent. And if someone comes up with a different device that does the same thing, say a smelter that uses electromagnetic induction instead of a blast furnace, they don't infringe on the original patent even though it's still the same algorithm behind it. And if they come up with a blast-furnace smelter that takes advantage of a completely different set of chemical reactions to produce a different type of steel, that also doesn't infringe even though it's the same basic hardware because it's implementing a completely different algorithm now.

I think the court should look a bit deeper, because there seems to be a basic problem behind the whole confusion. That problem is that patent applicants have strayed from trying to patent what they have done and tried to stretch their patents to cover what someone else might do. Figure out how to address that, and a lot of the rest of the headaches become a lot easier to deal with.

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Patentable ideas - an analogy
Authored by: artp on Wednesday, April 09 2008 @ 01:13 PM EDT

My biggest gripe with software patents is that they allow the patenting of ideas that flow directly from the intent of the tools that they use. They are akin to patenting the idea of using a hammer to drive a nail.

Perhaps a clearer comparison could be gained from looking at a modern factory. Factories use material handling systems, forklifts, conveyors, brake presses, drills, mills, lathes and other machine tools, material storage systems, paint booths and so on to make their product. Suppose a widget maker wanted to patent a new widget. They would describe the design and processes required for making the product. They would not describe the particular type or brand of machine used to manufacture the product. They would not describe the sequence of the manufacturing process.

The possible outputs of a machine tool or other manufacturing process are limited. The possible outputs are natural outcomes of the design of the machine tool. It was intended that they should produce certain functions. This is much like the functions available in a compiler. Each one has its intended purpose.

If a change from using a turret lathe to using a milling machine were sufficent to file a new patent for a given product, then we would have a situation comparable to software patents. It is not enough for a different process to be used to make the product. It must have a different design, of a sufficently novel nature that it was not obvious to the standard practitioner.


What could be more obvious than processes and procedures described in the instruction manual for the compiler ? It was intended that the compiler be used to create programs of a certain class. The functions were designed so that they could be combined with other available functions in order to create useful software. Patenting software is like patenting CNC tapes. It is EXACTLY like patenting CNC tapes.

When a compiler is created, the rules are set for what can be done with it. The number of forms and structures that can be created with it are limited. These limitations are more in line with those of spoken language, but not nearly as extensive. There is an upper bound to what can be done with a compiler.

This does not leave software unprotectable. The appropriate vehicle for protection for software, as for spoken language, should remain copyright, and not patent.


When it gets right down to it, I believe that patents are no longer needed. In the 18th century, the pace of development was much slower. 17 year patents were not all that long in terms of development timeline. Today, patents require extensions because they can't get through the courts fast enough for some products, specifically pharmaceuticals. And 17 years is about 8.5 lifetimes in terms of software development. Towards the end of my career, I found that I needed to retrain myself every two years, or I would be obsolete.

The barriers to entry today are money and marketing, not knowledge. Patent law should reflect that change. Even basic industries are mostly within a 17 year development cycle. Some exceptions are power plants: 25 years, and steel mills: 50 years. And even then, the number of basic industries keeps getting squeezed down, not by competition, but by regulation. Times have changed. So should patent law.

Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley sinks ?

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In re Bilski -- Red Hat files amicus brief saying software patents are a brake on innovation
Authored by: dcs on Wednesday, April 09 2008 @ 01:16 PM EDT
Well, ACLU actually goes to the heart of what I have always said, which most people just don't accept:

A program is a speech in an artificial language.

Most people find it very easy to make a distinction between a program and a speech. After all, most of the time they don't know speech/language theory or they don't know programming, or both. If they knew both, they wouldn't be so certain.

The the practical consequences don't change. You just insert the speech in some patent-enabler artifact, like, say, a computer, and there you have it: it's now patentable. You can't draw a line between both, because, actually, there is no line: they are the same, and a good lawyer with the right motivation can prove it.

PS: Every human language is artificial.

Daniel C. Sobral

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In re Bilski -- Red Hat files amicus brief saying software patents are a brake on innovation
Authored by: Anonymous on Wednesday, April 09 2008 @ 02:40 PM EDT
If you can patent "business methods", could an NFL team patent the
onside kick?

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In re Bilski -- Red Hat files amicus brief saying software patents are a brake on innovation
Authored by: Anonymous on Wednesday, April 09 2008 @ 03:17 PM EDT
While Red Hat's arguments also apply to proprietary source interests, stating
them in terms of open source ties in nicely with the first amendment argument.
(Much of the process of developing open source does fit into the idea of making
a public statement.)

John Macdonald

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Process Problem
Authored by: Anonymous on Wednesday, April 09 2008 @ 05:21 PM EDT
It seems that the original drafters of 35 USC § 101 were
talking about physical objects and substances, and that
'process' similarly meant
> a series of mechanized or chemical operations
> that are performed in order to produce or
> manufacture something [OED MacOS 10.5]

Somewhere along the way someone has extended the
meaning of 'process' to include the abstract
> a series of actions or steps taken in order to
> achieve a particular end [ibid]

Patents were obviously intended for real solid things
you could poke a stick at, and USPTO needs
shaking upside down until it gets back to this.

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Materials are just mathematics
Authored by: Anonymous on Wednesday, April 09 2008 @ 05:28 PM EDT
I don't think anyone could get away with patenting NaCl (sodium chloride,
ordinary table salt). And yet, we can patent NiTi (nitinol, shape memory
alloy). Okay, NiTi is typically a little off 1:1 stoichiometry, so we add some
calcium to the table salt analogy. Putting 1 part of A in combination with 1
part of B doesn't require any smarts. It can be done entirely mechanically.
And if mechanical methods are allowed to do simple arithmetic, there is no way
anyone should be able to patent genes. After all, it is only 4 different
compounds repeated in some order.

We can carry this kind of argument to any degree of exactness for any patent
involving a composition of matter. Metals, plastics, ceramics or living
organisms. It is trivial to design machines which will produce just about any
kind of chemical or mixture, or produce ranges of composition, or produce
"waves" of composition. In the past, much of this is magic. And
patent probably seems worthwhile and reasonable. But these days all of this
stuff can be done without any intelligence at all, even the testing and
measurements of properties. These are all just discoveries. There is no reason
to allow patent on any of it.

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Random example
Authored by: Anonymous on Wednesday, April 09 2008 @ 05:33 PM EDT
"There's very little that MySpace and Facebookhave that AOL didn't have a
version of 10 years ago," says Joe Dzikiewicz, a former AOL systems
architect. -- "Dead Man Walking", David Case, Fast Company, April
2008, page 115.

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Are these the same guys,,,
Authored by: NetArch on Wednesday, April 09 2008 @ 06:06 PM EDT
Are these the same guys along with the Weather Channel who got Senator Rich
Santorum to sponsor a Senate bill to ban the free dissemination of weather
information from NOAA to us taxpayers because it's essentially a case of the
government competing against private enterprise?

After all, who'd pay for weather information and forecasting from if
you can get it free via the web, e-mail, or HF and VHF weatherfax?

That one got us boaters hot under the collar.

NetArch - building a better Internet one subnet at a time...

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In re Bilski -- Red Hat files amicus brief saying software patents are a brake on innovation
Authored by: Anonymous on Thursday, April 10 2008 @ 05:00 AM EDT
"A motion for leave shall identify the interest of the applicant and shall
state the reasons why a brief of an amicus curiae is desirable."

Interest is much weaker than standing. The ACLU does not actually have standing
in very many of the civil rights cases in which it files briefs, but it does
have a generalized "interest" as an advocacy organization.

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The US Supreme Court has ruled on this, but been ignored.
Authored by: Anonymous on Saturday, April 12 2008 @ 12:28 PM EDT
US Supreme Court Cochrane v. Deener in 1876 defined a process patent as:

an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing.

In Diamond v. Diehr 1981 the US Supreme court quoted exactly that definition and reaffirmed it.

US Supreme Court Gottschalk v. Benson 1972:

Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines.

And that too was quoted and reaffirmed in Diamond v. Diehr 1981.

There is no difficulty with OBJECT patents. The only difficulty we are having is with PROCESS patents. And the only valid form of process patent is one for a physical process to transform physical matter into a different state or thing. If you figure out a way to turn coal into diamonds, you can patent that physical transformation process.

Diamond v. Diehr 1981 also specifically WARNS that:

"insignificant post-solution activity will not transform an unpatentable principle into a patentable process. To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection."


In addition to all the above, Diamond v. Diehr 1981 also explicitly stated that an "algorithm ... cannot be the subject of a patent". Software is nothing more than "algorithm". And along with the above warning, we could hardly have a more clear prohibition against software patents. The Supreme Court WARNS the courts that they may not permit "insignificant post-solution activity" to transform a non-patentable software algorithm into a patentable process because that would allow creative writing patent lawyers to paint a process-patent costume onto prohibited non-patentable non-inventions and railroad them through the system. Which is exactly what the lower courts went right ahead and did anyway. The patent courts did exactly what the Supreme Court WARNED them they were forbidden to do. And that is how we got this mess of software patents and business method patents.


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