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Trolls, shills and astroturfers here please | 443 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Time to go on the Offensive!
Authored by: RMAC9.5 on Sunday, December 30 2012 @ 05:42 AM EST
I think now is the time for the small/independent software industry, the EFF, and the Free Software Foundation to go on the offensive by filing for exactly one software patent. I propose a software patent on using a computer to do all the things that lawyers do today like filing legal briefs, and researching legal precedents, and case law.

Once granted this software patent would, like GPL software, be freely shared with all lawyers who agree to follow its one limitation; that they will not participate in software patent suits and that if they do, they immediately lose all rights to use their computers in the practice of law.
Their tools of trade revert back to the typewriters and law books they used before computers were invented!

We have been fighting a piecemeal, defensive battle that we can never win for far too long. We have been hoping for a miracle solution (i.e. a ban on software patents) that will never come as long as some parts of corporate America believes that software patents can be/will be profitable. It is time for the legal profession to experience some of the evil that they unleashed by opening Pandora's software patent box.

[ Reply to This | # ]

Corrections here please, if needed
Authored by: tiger99 on Sunday, December 30 2012 @ 05:44 AM EST
It will assist PJ if you indicate the nature of the proposed correction in the
title of your post.

[ Reply to This | # ]

Off topic here please
Authored by: tiger99 on Sunday, December 30 2012 @ 05:46 AM EST
No on-topic (with respect to the main article) in this thread, or a suitable
punishment will be devised. Please remember the clickies.

[ Reply to This | # ]

Newspick discussions here please
Authored by: tiger99 on Sunday, December 30 2012 @ 05:48 AM EST
Please identify which Groklaw newspick item you are referring to in the title of
your post, and it will be very helpful if you make a link so that the item is
still accessible from here long after it has scrolled off the bottom of the
page.

[ Reply to This | # ]

Comes cometh here
Authored by: tiger99 on Sunday, December 30 2012 @ 05:49 AM EST
If you are helping with these very useful transcripts, you will know what to do.

[ Reply to This | # ]

  • PX01627 - Authored by: JesseW on Monday, December 31 2012 @ 12:37 AM EST
  • Comes-2841 - Authored by: JesseW on Monday, December 31 2012 @ 01:04 AM EST
    • Comes-2841 - Authored by: PJ on Monday, December 31 2012 @ 09:26 AM EST
  • PX05423 - Authored by: JesseW on Monday, December 31 2012 @ 05:37 PM EST
    • PX05423 - Authored by: PJ on Monday, December 31 2012 @ 05:57 PM EST
Trolls, shills and astroturfers here please
Authored by: tiger99 on Sunday, December 30 2012 @ 05:53 AM EST
So PJ has only to blow away this one thread to get rid of all the trash. After
we have had a good laugh at you, of course.

[ Reply to This | # ]

where is Polr info - Grolaw should file amicus..
Authored by: Anonymous on Sunday, December 30 2012 @ 07:16 AM EST
where is the wonderdul no sw "math" stuff Polr presented here.

seems that lawyers everywhere like to keep sw patents around - to argue about?

if no sw patents then no money...

and, stockholders would reject a filing that would reduce company value.

so it's greed and alove for a monopoly,wven if you don't deserve it.

[ Reply to This | # ]

Two crunch issues.
Authored by: Ian Al on Sunday, December 30 2012 @ 07:17 AM EST
The Supreme Court opinion in Mayo v. Prometheus summed up the two crunch questions that seem to be at play in CLS Bank v. Alice. I give two long quotes, but they represent just a fraction of the full, detailed and thorough opinion. I leave out the citations because most are familiar. Please also note that the Supreme Court do not say that no math is ever patentable. You should read the full text to see why and where they draw the line:
The Court has long held that this provision contains an important implicit exception. “[L]aws of nature, natural phenomena, and abstract ideas” are not patentable.

Thus, the Court has written that “a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are ‘manifestations of . . . nature, free to all men and reserved exclusively to none.’

“Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.” And monopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it.
You might consider the Oracle patent that told software writers at which point in their programs they were entitled to resolve the instructions denoted by text labels rather than numeric ones.
Third, the Government argues that virtually any step beyond a statement of a law of nature itself should transform an unpatentable law of nature into a potentially patentable application sufficient to satisfy §101’s demands (Brief for United States as Amicus Curiae). The Government does not necessarily believe that claims that (like the claims before us) extend just minimally beyond a law of nature should receive patents. But in its view, other statutory provisions—those that insist that a claimed process be novel, 35 U. S. C. §102, that it not be “obvious in light of prior art,” §103, and that it be “full[y], clear[ly], concise[ly], and exact[ly]” described, §112—can perform this screening function. In particular, it argues that these claims likely fail for lack of novelty under §102.

This approach, however, would make the “law of nature” exception to §101 patentability a dead letter. The approach is therefore not consistent with prior law. The relevant cases rest their holdings upon section 101, not later sections. (“A person may have ‘invented’ a machine or a manufacture, which may include anything under the sun that is made by man, but it is not necessarily patentable under section 101 unless the conditions of the title are fulfilled”).

We recognize that, in evaluating the significance of additional steps, the §101 patent-eligibility inquiry and, say, the §102 novelty inquiry might sometimes overlap. But that need not always be so. And to shift the patent eligibility inquiry entirely to these later sections risks creating significantly greater legal uncertainty, while assuming that those sections can do work that they are not equipped to do.
The two crunch issues can be crudely summarised as the Supreme Court saying that math, abstract ideas and laws of nature are excluded from patentability and that the §101 test for patent-eligibility must always be made because so many of the pivotal Supreme Court opinions depend on §101 and would not be answered by the later sections. Again, my quotes are not the full story and the full text is key to a detailed understanding.

In CLS Bank v. Alice, we see the Federal Circuit maintaining that patent claims violating Section 101 “should arise infrequently” and that courts may wish to delay considering Section 101 in favor of other “comprehensive” patentability requirements where those “might be discerned by the trial judge as having the promise to resolve a dispute more expeditiously or with more clarity and predictability. To paraphrase the Supreme Court, This approach, however, would make the “abstract ideas” exception to §101 patentability a dead letter.

The District Circuit would like the later sections to be considered first in order that the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea. No doubt they are pleased that the new patents extend this principle to abstract ideas on a smart mobile phone and abstract ideas, laws of nature and/or math to a touch tablet.

Again, I refer you to the Oracle patent that monopolised when a software writer could resolve an instruction from a text-based label, but only on a mobile phone. It is quite OK to write such software on-a-computer; just not on a mobile phone. “Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.” I think all the Oracle patents in the case against Google monopolized 'those tools through the grant of a patent' and impeded 'innovation more than it would tend to promote it'. Unless, of course, writing software does not qualify as technological work.

In a comment a few stories back I said that the Supreme Court really wanted to deal with these issues, a case at a time. They have no stomach for a root and branch sorting out of the District Circuit.

These amicus briefs cite each and every Supreme Court case and citation going back two centuries that cover these issues. If the District Circuit do not confirm the Supreme Court positions then the result has to be dramatic. The Supreme Court cannot ignore such an action. We will find out what happens in the US when the lower court overturns the upper court.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

The Pro-Se brief
Authored by: om1er on Sunday, December 30 2012 @ 07:47 AM EST
PJ writes:
You don't need the court's permission to file an amicus brief in this case, so there is even a pro se amicus brief arguing that software is not patentable subject matter, not that this court is likely to pay any attention to that argument, being so, so far from such a concept.

I thought that section shown from Stephen R. Stites pro se amicus brief was totally clear of fog and ambiguity. His writing showed the reasons why software is not patentable in an easily comprehensible manner.

The other writings sometimes left me feeling that there was an intentional creation of impenetrable fog. At least one of the briefs resorted to pointing out words without any definitions in order to show the mess we are in, but doing that only served to increase rather than reduce the difficulty, because the reader is left to ponder the confusion, rather than plainly see a solution. Mr. Stites side-stepped the confusion, laid out the situation clearly, and provided an obvious solution. If his brief is dismissed by the court, we will all lose. I hope that they come to see the situation as plainly as he does.

---
March 23, 2010 - Judgement day.

[ Reply to This | # ]

If the computer isn't necessary
Authored by: Wol on Sunday, December 30 2012 @ 01:21 PM EST
then it's irrelevant.

At which point the task becomes doable in your head, and the patent fails.

A simple test for patents - delete all verbiage irrelevant to the claims (like
"on a computer") and see what is actually left.

Cheers,
Wol

[ Reply to This | # ]

IBM should be ashamed
Authored by: Anonymous on Monday, December 31 2012 @ 04:58 PM EST
IMB's brief says: "That the vast majority of computer-implemented
inventions are patent eligible is beyond debate."

Shame on you, IBM. That statement is flatly false and you know it. That
statement could not possibly have been made in good faith by anyone who
understands computers or computer programming. It is the argument of greedy
rent-seekers who only want to twist the law to their own profit.

[ Reply to This | # ]

Happy New Year to all at Groklaw :-)
Authored by: SilverWave on Tuesday, January 01 2013 @ 01:24 AM EST
Happy New Year from the UK.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Copyright Tax for the Privilege of the Monopoly
Authored by: IMANAL_TOO on Tuesday, January 01 2013 @ 01:00 PM EST
Consider these:
"If it is intellectual property, why isn't it taxed?"
From http:// news.slashdot.org/comments.pl?sid=3350353&cid=42441987
"It may prove difficult in the short term to reduce the term of copyrights which have already been extended. Also, the forces pushing perpetual copyright are strong. However, there is another route, which may be easier, employing the concepts of Aikido -- moving with the strong force and redirecting it in a better way. Rather than fight to reduce the maximum term of copyrights, consider that existing and future copyrights could be taxed annually just like real estate as long as they are kept from the public domain. This uses a market-based approach to limit the external costs of copyright monopolies."
From http:/ /journalism.berkeley.edu/projects/biplog/archive/000431.html
"T he Supreme Court decided this week that the Constitution grants Congress an essentially unreviewable discretion to set the lengths of copyright protections however long it wants, and even to extend them.

While the court was skeptical about the wisdom of the extension, seven justices believed it was not their role to second-guess ''the First Branch,'' as Justice Ruth Bader Ginsburg put it. As I argued the opposite before the court for my clients, a group of creators and publishers who depend on public domain works, I won't say I agree. But there is something admirable in the court acknowledging and respecting limits on its own power.

Still, missing from the opinion was any justification for perhaps the most damaging part of Congress's decision to extend existing copyrights for 20 years: the extension unnecessarily stifles freedom of expression by preventing the artistic and educational use even of content that no longer has any commercial value."
From http://www.nytimes. com/2003/01/18/opinion/18LESS.html


These make me wonder if these ideas can be extended to patents. Even if these articles discuss copyright there may be some similarities which may be useful, or maybe not. Should patents be taxed, i.e. even if not used?



---
______
IMANAL


.

[ Reply to This | # ]

Abstract concepts in Patents
Authored by: OpenSourceFTW on Tuesday, January 01 2013 @ 03:40 PM EST
I browsed through the... gigantic thread above about patents and abstract
concepts, and I just wanted to hash some things out loud and glean some insight
from other readers. IANAL, obviously.

I am a programmer, and I understand that software is merely algorithm(s) + data.
I have to develop the algorithm in my head, otherwise how can I program it into
the computer? As they say, garbage in, garbage out. Computers are quite dumb:
they only do what we tell them to do. The algorithms are mathematical
algorithms, Boolean algebra in fact.

As a computer science student, I understand that processors merely shift,
combine, and split high and low voltages, concepts which we refer to as
"0" and "1" for our convenience. We combine enough of these
shifts into logic gates, and then into constructs that add, invert, etc. The
signals have no meaning to the hardware, it does not care if we call them hi-low
1-0, boo-goo.

Based on the fact that software is comprised of data (not patentable) and
mathematical algorithms (also not patentable), I would conclude that software by
itself is not patentable.

However, what happens when we put this in "a machine"? How does the
combination of hardware and software work with in the patent realm. If we are
just considering the hardware the software runs on, I don't think that the
combination is patentable, because you the hardware is general purpose (it may
be patentable itself, but no one is really arguing that point, a new CPU design
should be patentable obviously). You are not changing the nature of the hardware
merely by running different software on it. It is still doing the same things
(ADD, SUB, INV, STORE, etc) it was doing with any other software, just in a
different order. I fail to see how it was "transformed."As far as
"Bounce-back" is concerned, you are merely doing matrix math + Boolean
algebra, and displaying the output signal on a LED display. The algorithm is not
even that complicated.

What about if we talk about hardware in addition to the hardware the software
runs on? I think it depends on the wording of the claims. If you design a new,
better mousetrap run by a tiny computer with a sophisticated AI routine, I
believe the entire invention COULD be patentable. However, the software is
inseparable from the invention, if I take it and run it in a different kind of
mousetrap (different enough hardware-wise from the original), I would think I
would not be infringing a claim (and logically, I shouldn't be), but I probably
would in today's legal climate.

Now, here are some concepts I am still working on.

Is efficiency a determining factor in patentability?

Is doing something faster with nonpatentable components patentable?

[ Reply to This | # ]
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