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Bilski: What It Means, Part 1 -- Red Hat on What It Means for FOSS
Monday, November 03 2008 @ 04:08 PM EST

I know you want me to explain what the recent Bilski decision [PDF] means, because you are writing to me. I've shown you some of the apoplectic reactions from the patent bar. But what does it mean to us, to FOSS?

First, in a simplified nutshell, here is what Bilski means to everyone: You can't get patents any more on a pure mental process. You can no longer patent a process that you can think through all in your mind. In other words, abstract ideas are not patentable. There has to be either a particular machine or a transformation in the process. So pure "ideas" or "mental processes" are over. That means most business methods patents are no longer valid because they are outside the parameters of what is eligible for patenting. In simple terms, it means this:

The End for the stupidest of the stupid patents.
Yay! It means that the tide is turning. There could still be an appeal of Bilski, and even without one, there are ways to chip away at this decision's new standard for patentability, to try to get over the new turnstile, so to speak, and strategies on how to do that have begun already. I've spent the days since the decision issued researching for you, so I can explain Bilski to you. There is too much material for just one article. So, I'll break it up into parts. My purpose is to make sure you understand fully, so you can be helpful with your ideas and so you can explain this issue to others, so they understand what is involved for FOSS. If there are parts you don't understand, ask. If I don't know the answer, I can ask someone.

The most important reaction to Bilski, to me, is Red Hat's, which you can now read in full here. It's the most important to us, because what you and I want to know is: what about FOSS? What does Bilski mean to us? So, in this series of articles on the Bilski ruling, let's start there.

Rob Tiller, Vice President and Assistant General Counsel, IP, Red Hat, whose name you will find along with Richard Fontana's on the Red Hat amicus brief filed in the case, tells us what it means for FOSS:

Last week the Federal Circuit issued a major decision, In re Bilski, concerning the subject matter limits of patent law. The case presented questions relating to software patents, an issue of great significance to the free and open source software community, and so Red Hat filed a brief in Bilski to educate the appeals court about FOSS and its problems with the software patents. In the new opinion, the court cited Red Hat’s brief, but declined to settle the issue of when, if ever, software based inventions should be patentable. Even so, the new test in Bilski will probably limit the patentability of software. The war is not over, but the odds of success for FOSS just got better.

As we explained to the court in our brief, everyone recognizes that the purpose of patents is to foster innovation, but the patent system tends to hinder innovation for FOSS. History shows that software innovation happens without patents: prior to the 1990s, there were few software patents, but software developers produced programs that were not only innovative, but world changing. The Federal Circuit decisions in the late 1990s that allowed software patents produced a land grab that has led to more than 200,000 software patents today. Many of these patents are of poor quality, and many have vague boundaries. There is no practical way to “clear” any given program by examining all the possible patents that might apply to the features or functionality of the program. This means that the risk of lawsuits is a fact of life for the software innovators. Plainly this risk has not stopped innovation, but it is an inhibiting factor.

Bilski does not cure this problem, but it is a step in the right direction. The Federal Circuit decided to abolish the “useful, concrete, and tangible result” test that had been applied to allow dubious software patents. It substituted a new test: to be patentable, a process must be either “tied to a particular machine or apparatus” or must “transform a particular article into a different state or thing.”

As you no doubt recall, Red Hat argued in its amicus brief that abstract ideas are not patentable. That argument won out. But Red Hat also argued that abstract ideas are not patentable *just because there is a computer involved*. The court didn't go that far. In a way, it found the opposite, that a machine has to be involved. But what it said was that as far as software is concerned, future cases will have to decide exactly where the line is. And what does "a particular machine" and "transformation" mean? Ah! That's where it gets more complex, and it is what will have to be clarified going forward. What is definitely out is the Bilski patent, and presumably all that are just like it. There was no computer or other machine in that picture, which is one reason the court decided not to use that case to clarify, on top of essentially wanting to throw the hot potato about software patents to the Supreme Court. But what happens now, in the meantime? Tiller:
The discussion of “transformation” indicates that this option probably will not cover typical kinds of software-based inventions. The question for future cases is whether “tied to a particular machine” will be interpreted broadly to favor software patents based on the mere tie between software and a general purpose computer on which it is supposed to run.

The Bilski litigation was about whether patents can be stretched to cover a disembodied idea, an abstract idea that has no machine implementing anything. The court said no, that there has to be a particular machine in the process or a transformation, but what it left unexplained is what exactly is meant by a particular machine. If you want to know what Microsoft's thinking appears to be on that subject, assuming as I do that they very much want "tied to a particular machine" to mean any old desktop running Microsoft software, read their amicus brief [PDF]. Also, you might want to review this article that explains what the issues in Bilski were. Tiller on the "particular machine" requirement and what it probably will mean:

There are good arguments against a broad interpretation of “tied to a particular machine.” The Supreme Court’s Benson decision, which was a primary authority for the Bilski court, involved claims covering an algorithm implemented in software running on a general purpose computer, and the Supreme Court concluded that the process claims were not directed to patentable subject matter. Moreover, a recent PTO Board of Patent Appeals decision, Ex parte Langemyr, found that a general purpose computer was not a “particular machine” for purposes of determining whether a claimed process is patentable.

But some patent lawyers will undoubtedly argue the other way. Patent trolls and other beneficiaries of the status quo will battle fiercely to reverse Bilski if the Supreme Court reviews it, or else they will promote narrow interpretations in future cases. Failing that, they will seek new protection through federal legislation. They will lobby influential members of Congress with all the resources at their command

Here's the Langemyr ruling. And here's Benson. Ben Klemens stressed that next battle about "particular machine":
On the key question of when information becomes a machine, the ruling does provide some clues: “First, [...] the use of a specific machine or transformation of an article must impose meaningful limits on the claim's scope to impart patent-eligibility. [...] Second, the involvement of the machine or transformation in the claimed process must not merely be insignificant extra-solution activity.” For more on extra-solution activity, have a look at my law review article (PDF) that focuses heavily on the idea.
You can't just add the words "on a computer" to your patent, probably, then, and hope it will fly over the USPTO's net. So, that is the overview. If you want to see something intriguing, look at this chart, showing the percentage of patent applications approved over the years. Note the direction of the arrow. That's why some are so unhappy with the very trends that you and I find -- at last! -- so encouraging. Here's an example of the distress some patent lawyers are now feeling:
Astonishingly, the court seems to be making its own new law of patentability setting out that a software or business method patent is valid only if it (a) is tied to a particular machine or apparatus, or (b) transforms a particular article into a different state or thing. (Diamond v. Chakrabarty)

Despite the fact that Congress had earlier noted that “anything” created by humans deserves patent protection, the Federal Circuit decided that software and business methods have a new, higher standard.

I confess that I'm astonished too. But in a good way. I never expected a change like this from the US Court of Appeals for the Federal Circuit, the folks who gave us State Street. But it's here. There is more to do, helping folks to understand the new factor -- FOSS and its development model. The old ways of viewing patents when they were covering cotton gins and machinery don't fit so well in the world of software. We've made it over the first hurdle. But there are more to go.

How in the world, you ask, could anyone think that you could patent an idea or software in the first place? I think a comment the other day on Groklaw captured well the geek point of view:

Basically, we understand that programs are "speech", but the general public thinks of programs as "things". For the most part, the patent office and courts have suffered from the same sort of ignorance.

Ask the man in the street about patenting a certain type of plot line in a book, and he'll laugh the idea away as silly, assuming he understands the difference between patents and copyright. For example, no one would think it reasonable if J.K. Rowling were able to demand royalties from anyone writing any story about witches and wizards. But if you ask the same person whether a patent on file locking should be allowed, he may think of a "file lock" as if it were a Master combination lock, and thus think a patent to be OK.

So part of it is that some simply don't understand the tech very well. There are two other elements, in my view: One is greed, of course. Some simply don't care about harm to others, if there is money to be made for them. And you can make a lot of money from patents.

And there is this simple truth: Folks in the world of patents genuinely believe that patents are a good thing, that they help the economy and benefit the public by encouraging innovation. They used to, after all, when patents were about machinery. So why shouldn't the same principles apply to software and business methods, they reason? State Street was an attempt to do just that. Timothy B. Lee, in ars technica, explains:

The patent at issue in State Street was both a software patent and a business patent, and language in that decision has been used to justify both types of patents. The court's newfound skepticism about business method patents will almost certainly translate into increased scrutiny of software patents as well.
That's why everyone is so excited about Bilski, even though it didn't go all the way. It marks a clear shift, and by the very court that gave us the State Street decision. The US Court of Appeals for the Federal Circuit is all about patents. It's their area of specialty, and it would be hard to find any group anywhere that loves patents more. That is who decided State Street. It's also the same court that just gutted it. Lee:
The Federal Circuit's rejection of Bilksi's application is especially striking because in the quarter century the court has been in existence, it has been a consistent supporter of broader and stronger patent rights. A series of decisions during the 1990s abandoned earlier restrictions on software and business method patents, creating the flood of new patents that we have covered extensively here at Ars. Until recently, software patent critics have regarded the Federal Circuit as the primary villain on the patent scene.
I'd like to write a bit more about that in the next article. If we are going to explain this issue to others effectively, it's important to see the other side's point of view, not in a black and white way, but with empathy and comprehension that goes beyond the surface. So let's use the dissenting opinions in Bilski to take a look at that point of view.

  


Bilski: What It Means, Part 1 -- Red Hat on What It Means for FOSS | 416 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: Aladdin Sane on Monday, November 03 2008 @ 04:18 PM EST
Please post corrections to the article as comments beneath this one.

---
A copy of the universe is not what is required of art; one of the [darned] things is ample.
   -- Rebecca West

[ Reply to This | # ]

[NP] News Picks comments
Authored by: Aladdin Sane on Monday, November 03 2008 @ 04:20 PM EST
Comment on Groklaw News Picks here.

The News Picks are in the Right Hand Column (RHC) on the front page.

---
A copy of the universe is not what is required of art; one of the [darned] things is ample.
   -- Rebecca West

[ Reply to This | # ]

[OT] Off Topic comments
Authored by: Aladdin Sane on Monday, November 03 2008 @ 04:22 PM EST
Comment non-topically here. Please break up long strings such as URL's for us, or post as clickies. Thanks.

---
A copy of the universe is not what is required of art; one of the [darned] things is ample.
   -- Rebecca West

[ Reply to This | # ]

Bilski: What It Means, Part 1 -- Red Hat on What It Means for FOSS
Authored by: red floyd on Monday, November 03 2008 @ 04:32 PM EST
I hope this also ends the stupid patents of:

[Something incredibly obvious] -- but over the INTERNET!!!!

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Strange, this US law making
Authored by: tomw on Monday, November 03 2008 @ 04:37 PM EST
First the congress makes a law that says ' no software patents' (or something
similar). Then some judges seriously change what was intended, with huge impact
on society. And then some other judges reverse the change, again with a huge
impact on society.

I thought society changing laws were supposed to be made by democratic processes
(law makers), not by judges (law 'enforcers', how clever they may be)

Of course it is obvous that a law cannot foresee everything single detail that
surfaces in the real world. But the changes here are not small details....
Where am I wrong?
Tom

[ Reply to This | # ]

Bilski: What It Means, Part 1 -- Red Hat on What It Means for FOSS
Authored by: Anonymous on Monday, November 03 2008 @ 05:26 PM EST
Basically, we understand that programs are "speech", but the general public thinks of programs as "things". For the most part, the patent office and courts have suffered from the same sort of ignorance.
This is a poor argument, and employing poor arguments inevitably undercuts otherwise strong positions.

It is poor because programs are speech to the same degree that the specification in a patent is speech, so if you argue that being speech disqualifies programs then it clearly must also disqualify everything else.

[ Reply to This | # ]

Great article, PJ
Authored by: Aladdin Sane on Monday, November 03 2008 @ 05:28 PM EST
Thanks for explaining in a nice linear fashion.

---
A copy of the universe is not what is required of art; one of the [darned] things is ample.
   -- Rebecca West

[ Reply to This | # ]

Bilski: What It Means, Part 1 -- Red Hat on What It Means for FOSS
Authored by: tknarr on Monday, November 03 2008 @ 05:56 PM EST

IMO the problem with software patents is the blurring of the lines. In the old physical-world environment patents originated in, you can draw clear distinctions between:

  1. The abstract concept: eg., the idea of smelting iron ore and combining the pure iron with trace elements to create steel.
  2. The specific method: the description of the precise temperature profile, the exact elements and their proportions, the order and timing of the steps, the full description of exactly what you're doing to do during the smelting process, with what and to what.
  3. The concrete implementation: the exact mechanisms, machines and physical components that'll actually implement the method described.
And you'll notice that patents have never been read to protect the first two. In fact, patents require publication of the second. They don't prevent anyone from passing around the method and examining it. What they prevent is someone reducing the method to actual implementation. To take the smelting example, a patent doesn't prevent someone from coming up with a different way of smelting iron to make steel. It doesn't prevent people from discussing and analyzing your method for smelting. All it prevents is someone from building a smelter using your method without having gotten a license to do so from you.

In software, though, the lines blur. In particular it's not a big step from the description of the method to the actual implementation of it. Indeed, an entire branch of computer science is dedicated to figuring out how to take the description of the method and turn it directly into the implementation of that method. That's lead patent holders to believe the only way they can prevent others from implementing their methods is to prevent anybody from doing anything with their methods including looking at and discussing them. And once they've done that, it's but a short step from believing some methods are protectable to believing that any method must be protectable.

[ Reply to This | # ]

The human factor
Authored by: PolR on Monday, November 03 2008 @ 06:00 PM EST
To me the most important change is the reversal in a human trend.

Courts are not CPUs blinding executing instructions. They are made of humans
acting according to their beliefs. Their rulings are influenced accordingly.

Prior to Bilski we had the CAFC believing more patents is always better. It
consistently looked for excuses to broaden the scope of patentability.

Now the same CAFC understands it went too far. It now seeks to narrow down the
scope at what they think is the right level. The pending question is where they
think the line should be. They don't seem to have made their mind yet. But the
days where it was just assumed that more is better are over.

Patent lawyers will devise strategies to use whatever loopholes is left in the
ruling to the maximum effect. I don't see this being the most important point.
What is important is how the CAFC will react to these attempts. They won't
receive them with the same attitude as before. The clues they give in Bilski are
indicative of how they are likely to rule when to loopholes will be tested in
their court.

[ Reply to This | # ]

Bilski: What It Means, Part 1 -- Red Hat on What It Means for FOSS
Authored by: Anonymous on Monday, November 03 2008 @ 07:38 PM EST
Folks in the world of patents genuinely believe that patents are a good thing, that they help the economy and benefit the public by encouraging innovation. They used to, after all, when patents were about machinery.

There is plenty of controversy about some of the more famous patents. I suspect that patents were never completely good. Examples: the screw (or propeller), and the telephone.

Patents are compensation to encourage inventors to educate the public about their innovations. Our forebears felt it was better for the commonwealth when "inventers" publish rather than take technology to the grave as trade secrets.It has not been established that the patent principle is necessary in our modern society.

Are ideas so scarce that we still need the patent system?

[ Reply to This | # ]

__Stupid__ patents are the problem
Authored by: Anonymous on Monday, November 03 2008 @ 07:52 PM EST
In general the problem with stupid patents, is with "stupid", not
necessarily with the subject matter.

So if someone comes up with something ingenious, and useful, one wouldn't
necessarily complain.

So I am thinking that this court didn't address the real issue.

[ Reply to This | # ]

Bilski: What It Means, Part 1 -- Red Hat on What It Means for FOSS
Authored by: andyo on Monday, November 03 2008 @ 07:58 PM EST
Thanks, Pamela, for translating the language of patent law (sometimes hundreds of years old and reinterpreted dozens of times) into English. I think terminology has really obfuscated what the courts are trying to establish. There are many statements in various rulings that are apparently contradictory, but so vague that they provide no help at all. For instance (I can't quote precisely right now) it's not sufficient for a process to run on a general-purpose computer, but also a patent can't be denied simply because the process runs on a computer. Two negative statements: where is the overlap?

I like to think of the Bilski ruling as allowing software patents, because a software agent can be a machine. A set of directions telling people how to trade money is not a machine.

---
Andy Oram

[ Reply to This | # ]

Algorithms are inventions too
Authored by: Anonymous on Monday, November 03 2008 @ 09:12 PM EST
Despite what PJ says in the end, algorithms are in many ways similar to
"industrial processes" which are patentable. If I find a fast way to
convert iron ingots into steel wire, that's patentable. Finding a fast way to
multiply matrices is completely analogous -- it's a process for converting input
to output. Moreover, it takes investment to develop such algorithms. When you
think of "inventions" in the ordinary sense of the word, encryption
algorithms are no less inventions than better mechanical locks.

Nevertheless, I agree with PJ that algorithms should not be patentable as a
matter of policy. This is not because we should think of them as
"speech" -- we should think of them as inventions -- but because not
all inventions should be patentable. The argument should be utilitarian: almost
all algorithms are so beneficial to their inventors compared with their cost of
development that they will get developed even without monopoly protections. The
simplex algorithm, the Metropolis algorithm, the Ford-Fulkerson algorithm, the
FFT, fast matrix multiplication, etc were all developed without any patent
protections. So would lesser innovations such as xor-painted cursors.

[ Reply to This | # ]

Patents AND Copyrights...
Authored by: lnuss on Monday, November 03 2008 @ 09:30 PM EST
Ever since I first heard of software patents I've wondered how something can be
both copyrightable AND patentable -- I'd always thought the two were mutually
exclusive. Finally there's a trend back the other way, though it's nowhere near
enough.

---

Larry N.

[ Reply to This | # ]

"pure mental process"
Authored by: chrisbrown on Monday, November 03 2008 @ 11:02 PM EST
You can't get patents any more on a pure mental process. You can no longer patent a process that you can think through all in your mind.

As a programmer, I "execute" the code in my mind as I write it (algebraically). Off hand I can't think a a program someone could write that a human could not execute as a "pure mental process."

It will be an excruciatingly, infuriatingly, slow process (aided by a pencil and paper to enhance memory and do the math long-hand). But doable nonetheless.

In fact, before computing machines the term "computer" referred to a human who performed calculations, usually of a repetitive nature along with many others. This usually resulted in actuarial, nautical, or ballistics tables.

An electronic computer's job is to cost-effectively execute programs in a suitably quick time frame for the results to still be useful.

[ Reply to This | # ]

A particular machine...
Authored by: wvhillbilly on Monday, November 03 2008 @ 11:39 PM EST
My take on this is this would be a software or firmware controlled device such
as a modem, a filtering device, a robotic device, a microwave oven or some other
single purpose device, where the software is written for that specific device
and would not be of use on a general purpose computer or some other device. Thus
I would think the combination of the device and the software that controls it
would constitute software tied to a particular machine, and that would be what
is patentable, that is the machine combined with the software that controls it.

Software that could be used on a general purpose computer would not be tied to a
particular machine, as it could be used on any general purpose computer, and
thus would not be patentable under this interpretation.

IANAL. Just my opinion.

---
Trusted computing:
It's not about, "Can you trust your computer?"
It's all about, "Can your computer trust you?"

[ Reply to This | # ]

Patents OK in the machine age - are you sure?
Authored by: RTH on Tuesday, November 04 2008 @ 12:09 AM EST
I have just been reading a book about the development of railways. Apparently
Boulton and Watt had a patent on the steam engine that didn't expire until the
end of the eighteenth century. They were absolutely opposed to high pressure
steam engines, and when more power was wanted, they just built a bigger engine,
so a huge engine house was needed for an engine that would be less powerful than
a small twentieth-century steam locomotive. With pressures like 10psi, as
opposed to numbers like 250psi, which were common in modern steam locomotives,
you can see easily why moving steam engines, that is, locomotives, and thence
railways and the entire industrial revolution, was impossible until the patent
expired.

When the patent expired, the likes of Trevithick, Stephenson etc., were able to
revolutionise steam engines and the modern age could really get started. So if
we agree that patents did some good, I don't think we need agree that the idea
was really the best we could have had, even in the plain ol' machine age. And of
course, for software, the stupidity dwarfs the usefulness to an absurd degree.

[ Reply to This | # ]

What does 'In re Bilski' mean?
Authored by: Anonymous on Tuesday, November 04 2008 @ 07:26 AM EST
What does 'In re Bilski' mean?

As a native English speaker I parse that phrase as 'In the case regarding
Bilski', but context tells me that's not what it means.

Does anyone know?

[ Reply to This | # ]

Changing the law re patentability
Authored by: RichardR on Tuesday, November 04 2008 @ 08:04 AM EST
This patent lawyer's comment struck me as both very important and extremely
short-sighted:

"Astonishingly, the court seems to be making its own new
law of patentability ... Despite the fact that Congress
had earlier noted that “anything” created by humans
deserves patent protection, ..."

OK, one should not go about changing laws at the drop of a (Red) Hat, otherwise
chaos would ensue; also, I appreciate the fact that many laws laid down in the
days of the Founding Fathers have a near sacrosanct status. I guess that this
lawyer mostly objects to the fact that the court is (re)shaping the law, instead
of Congress -- but this is nothing out of the ordinary, as a court is the place
where law meets reality, and every law must be open to a certain extent of free
interpretation. There is such a thing as the "spirit of the law".

One should never forget that laws are drawn up to benefit society as a whole,
and that laws which favor few at a great cost for many should be changed or
abandoned.

Besides, this patent lawyer obviously fails to recognize that the practice of
patent law, if not the wording, has already changed dramatically over the past
two decades. Ever more patents have been granted which undoubtedly would have
been rejected out of hand fifty years earlier. The situation is even worse with
patent applications: the most outrageous (or should I say: obvious, existing and
already implemented) ideas are offered to the USPTO in a sort of crapshoot, in
the hopes to claim a piece of common human knowledge as "intellectual
property", and charge the rest of the world for using it.

This is also closely related to the "More of a Good Thing is Better"
fallacy:

"Folks in the world of patents genuinely believe that
patents are a good thing ... So why shouldn't the same
principles apply to software and business methods, they
reason?"

Sure: sufficient food, hygiene, and advances in medicine care have resulted in
doubling our life expectancy in the last few hundred years. But no-one will
argue that we'd even be better off eating and scrubbing even more, and munching
more pills. Quite the contrary, methinks.

So the question is, are these people really so blind that they genuinely believe
that laws should be ever unchanging, and that more is always better? Or perhaps
they don't see the forest for the trees? Or is it self-serving hypocrisy after
all? And of course the most important question: what can be done about it?

Richard Rasker

[ Reply to This | # ]

Patents are in the Constitution...
Authored by: tz on Tuesday, November 04 2008 @ 08:10 AM EST
The original idea was an alternative to trade secrets, where some very clever
person would come up with something, then only one factory could produce it
until another genius would duplicate it, and back then it might be a long time,
or the inventor might die without disclosing the invention. Or as happens
today, the equivalent of NDAs and things where companies insist on enslaving
your mind before you can work lest you expose a secret.

The social contract was - you publish the invention (patent is disclosure and
publication as much as protection, and this is missed - it was an original if
degenerate form of Open-Sourcing), and we will give you N years of monopoly
licensing power. Remember that things like the South Seas company and the East
India company had the same monopolies and I think they were also called
"patents".

In the modern, faster world, the reason has been turned on its head - they want
longer terms and forget the publishing or disclosure whose original purpose was
to teach and train and show how something could be done.

So it isn't that all patents are bad things, or at least we should go back to
the ORIGINAL INTENT of the patent system instead of throwing it out, much as we
should do so with the rest of the Constitution, as we seem to be trying to elect
the next four-year monarchy with renewal option.

The internet has bypassed the patent office for showing inventions. Now I just
post my really neat code and have it peer reviewed and critiqued. But my
invention becomes public instantly and I need no award. And only need things
like the GPL to prevent the idea being stolen and locked down. They do call it
"copyleft", but it is also an un-patenting.

[ Reply to This | # ]

  • Some other angles - Authored by: Anonymous on Tuesday, November 04 2008 @ 02:36 PM EST
Hazy memory
Authored by: Anonymous on Tuesday, November 04 2008 @ 11:14 AM EST
I seem to remember an Internet article about how Bill Gates had gotten the
public to accept the idea of an intangable (software) as a thing. This would be
about the time that software patents started being granted. Anyone else
remember this? :]

[ Reply to This | # ]

From Red Hat News - Bilski: What It Means, Part 1 -- Red Hat on What It Means for FOSS
Authored by: Anonymous on Tuesday, November 04 2008 @ 11:47 AM EST
"Failing that, they will seek new protection through federal legislation.
They will lobby influential members of Congress with all the resources at their
command."

It is a pity we didn't have this a little earlier. It would be interesting to
challenge the candidates on how one could go about their career, where one would
need to research over 200,000 existing patents any time you wrote a line of
code.

There has long been in the software industry a metric, of how many lines of code
an individual could write per hour/day or whatever. Obviously that
productivity would vanish to near nothing if every time you wrote a line, you
needed to research a patent database of 200000 patents. This should not be an
issue just for FOSS. Corporate giants do defend themselves with patent
portfolios, but as witness a number of cases against Microsoft and Apple, just
for example, or even Redhat recently a patent portfolio does not protect you
against some patent troll business which produces nothing but lawsuits in
attempt to "collect on royalties". But as our Republican candidates
love to extohl the small business as the engine of our economy, no small
business can withstand this extortion.

It would behove all citizens to write our congress critters to resist this
lobbying effort.

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Missed my chance
Authored by: Anonymous on Tuesday, November 04 2008 @ 12:24 PM EST
"Method of Managing a Business by Recording Income and Expenses".
Imagine how much I could make if I was due a royalty every time some shopkeeper
journalled a sale.

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Perhaps this is all we need?
Authored by: Anonymous on Tuesday, November 04 2008 @ 12:33 PM EST

to be patentable, a process must be either “tied to a particular machine or apparatus” or must “transform a particular article into a different state or thing.”

So a process may be patentable if it meets one of those two tests.

Taking the second one first: transform a particular article into a different state or thing. That doesn't seem much of a threat to GNU/Linux; all the software in a distro transforms information, not articles.

For the first one: code which will run only on one kind of CPU, for example an Intel or AMD xxx86, might pass that test. But several GNU/Linux distros, Debian for example, are released for several, completely different, machine architectures. An ARM microprocessor is quite different from an Intel or AMD xxx86 CPU. One could argue that an Intel xxx86 and an AMD cpu are basically the same. But it is not possible to argue that a Pentium is the same as an ARM CPU. They actually have almost nothing in common - none of their instructions are the same. So no software that can run on both of these 2 CPUs could possibly pass the first test. And as Debian has shown, that covers the whole of a (big) distro - Debian is one of the biggest distros there is, in terms of the number of programs packaged for it.

So it seems to me that we have what we need.

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Ghostscript---GPL, or not?
Authored by: Anonymous on Tuesday, November 04 2008 @ 12:46 PM EST
li nk A company is accusing Diebold of violating their copyright, and asking for > 150,000 damages. I checked the copy on my computer, and it was GPL. Are there different versions of Ghostscript, GPL and Proprietary? Sorry about the link.

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We're home free!! Well, err, maybe not...
Authored by: Anonymous on Tuesday, November 04 2008 @ 01:10 PM EST
PJ wrote:

"If you want to know what Microsoft's thinking appears to
be on that subject, assuming as I do that they very much
want "tied to a particular machine" to mean any old desktop
running Microsoft software, read their amicus brief."

Well, since we're only interested in any old (and I do mean
old) desktop running Linux, we're golden, right? :)

When it comes to defending their patents, I suspect that
Microsoft really means "any old desktop running any
software postdating just one of their patents", and I
suspect that PJ understands that as well.

Paul O'Bear

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What about genes ?
Authored by: Anonymous on Tuesday, November 04 2008 @ 01:53 PM EST
"There has to be either a particular machine or a transformation in the
process."

A bit offtopic (as we focus on software here) but anyway.

Does it impact patenting genes ? Biotech companies are sequencing and patenting
pretty much everything like mad ...

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Commodities
Authored by: Anonymous on Wednesday, November 05 2008 @ 12:00 PM EST
Hey, if you extrapolate this rule to other things, like
commodities or oil, you can stop food speculation !!!!!



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Bilski: What It Means, Part 1 -- Red Hat on What It Means for FOSS
Authored by: phands on Wednesday, November 05 2008 @ 06:10 PM EST
A tangential thought occurs......what does this imply for the idea of patenting
gene sequences? Particularly those which already exist in nature and/or which
have never been made......

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Bilski: What It Means, Part 1 -- Red Hat on What It Means for FOSS
Authored by: Anonymous on Thursday, November 06 2008 @ 03:15 PM EST
All patents are evil.

krp

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Patents used to bury ideas
Authored by: halfhuman on Monday, November 10 2008 @ 09:07 AM EST
What I find missing from much of the discussion of patents in the USA is the
deliberate use of patents to kill ideas.

Example: a temperature-based method for dealing with aneurisms is patented, a
company who supplies stents buys and buries it. They do so because they expect
more profits on stents. (This is described as a personal experience in "The
Dressing Station" by Jonathan Kaplan).

In other words, if you're big enough, you buy up competing patents. This is a
direct way to kill innovation through patens. Does anybody know how of any
serious assessment of the extent of this practice?

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