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Supreme Court to examine 'obviousness' of patents
November 27, 2006 -
Supreme Court to review Microsoft patent appeal
October 27, 2006 -
Supreme Court won't review Microsoft patent appeal
October 31, 2005 -
AT&T wins round in patent case
February 10, 2004 -
Microsoft, AT&T in $5 billion pact
May 6, 1999
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The Bush administration agreed with that logic, writing in its brief that "because the master copies supplied from the United States are not installed on any of the computers at issue, petitioner has not supplied a component of those computers from the United States."
The U.S. subsidiary of Dutch-owned Philips Electronics, which filed one of three briefs in support of AT&T, took issue with those assessments.
"These arguments blithely ignore how software is developed, used and distributed in the real world," its attorneys wrote (PDF). "At minimum, when software substitutes directly for, and has the same technical effect as, a piece of specialized hardware, it must be a component just as is the specialized hardware."
Can software be patented?
Developers of free and open-source software would like the spat to prompt the high court to proclaim, once and for all, that software is not patentable.
"It is not conceptually different from a list of steps written down with pencil and paper for execution by a human being," the Software Freedom Law Center wrote in its brief (PDF).
Eben Moglen, the center's executive director, said the Federal Circuit's repeated defense of U.S. software patents defies existing Supreme Court precedent.
The justices have "consistently ruled that algorithms and mathematics cannot be patented," he said in a statement. "Since software is expressed as mathematical algorithms, it should not be patentable."
The controversial issue has received considerably more attention in Europe than in the United States. Whether the high court will take a stance is unclear.
"It is not the central issue in the case, and it does not need to be addressed by the Supreme Court in reviewing whether the Federal Circuit has misconstrued Section 271(f) of the Patent Act," said Mark Bohannon, general counsel to the Software & Information Industry Association, which filed a brief on Microsoft's behalf. The trade association's members include Adobe Systems, McAfee and Cisco Systems.
In their briefs siding with Microsoft, the U.S. government and the American Intellectual Property Law Association said they had no doubt that software is patentable.
"I believe the patentability of software in the United States is well-established, and it is unlikely the Supreme Court will disturb its prior rulings on the issue," said Richard Himelhoch, an intellectual property attorney with the firm Schwartz Cooper in Chicago.
It's notoriously difficult to predict how the court will rule, but the justices have shown a willingness to roll back lower court patent decisions in recent times. In a case involving eBay last year, the justices opted to toss a Federal Circuit-created standard that arguably made it easier for patent holders to obtain injunctions against alleged infringers--a central question in a high-profile case involving the BlackBerry mobile device. The court is expected to issue a ruling soon on the question of what makes an invention too obvious to warrant patenting.
The decision will be left to only eight justices, as Chief Justice John Roberts has recused himself from the case. Justices are not required to disclose their reasons for opting out in such situations, but the choice usually stems from the appearance of conflicts of interest, such as holding stock in companies involved or having previously worked on a case at the lower court level.
Because Microsoft lost at the trial level, it will need at least five justices on its side to prevail. A split among judges would result in automatic victory for AT&T.
The health of the entire information technology sector could rest on a favorable outcome in the case, said Microsoft general counsel Brad Smith.
"We need a global patent system that works," he said, "and that will not happen if each country tries to impose its law on others."
See more CNET content tagged:
American Software, AT&T Corp., open-source software, patent, U.S.
Sounds like a double standard to me. I don't like AT&T, but my vote is with them on this one.
Also, it's a dilemma yes, but a bad precedent here could mean worse laws and legal climates down the road.
If reducing and hopefully eliminating software patents and their problems down the road means defending MSFT in court now? Okay.
Everyone deserves to be free from being victimized by software patent laws - even those who wish to be the biggest perpetrators of it. It is in avoiding a double-standard here that we appear to be applying one elsewhere. "$Devil && $Deep_Blue_Sea" and all that.
/P
Sounds like a double standard to me. I don't like AT&T, but my vote is with them on this one.
Also, it's a dilemma yes, but a bad precedent here could mean worse laws and legal climates down the road.
If reducing and hopefully eliminating software patents and their problems down the road means defending MSFT in court now? Okay.
Everyone deserves to be free from being victimized by software patent laws - even those who wish to be the biggest perpetrators of it. It is in avoiding a double-standard here that we appear to be applying one elsewhere. "$Devil && $Deep_Blue_Sea" and all that.
/P
Master disks are not blueprints, they are product.
If Microsoft shipped the raw code to another country and compiled it there, then it would be blueprints, which I seriously doubt they would do.
This is just another example of how screwed up our current patent laws are when it comes to the digital world and our elected leaders do not understand the tech enough to fix it.
Master disks are not blueprints, they are product.
If Microsoft shipped the raw code to another country and compiled it there, then it would be blueprints, which I seriously doubt they would do.
This is just another example of how screwed up our current patent laws are when it comes to the digital world and our elected leaders do not understand the tech enough to fix it.
1) they can assert their filled-with-junk patent portfolio against all US based companies all over the world.
2) they have disincentivized Americans from going into software development, to the point where Americans and people living in America will simply desert it as a profession- since no one will be able to have a start-up anymore; the cost of starting up a company will now include exhaustive and financially exhausting patent reviews.
Given the broad and vague nature of patents, this would result in nothing but a state of total uncertainty anyway. Further, as more ideas are patented, the scope of "forbidden" ideas - which is already so big you can't code two lines without violating someone's patent - will become enormous.
There will be no more "start-ups" in the sense of a small band of developers selling software and bringing, you know, value to the marketplace- the kind of value (created with the kind of low overhead" that M$ can't compete against. )
This will in turn result in massive importation of H1Bs etc etc who are getting a better deal moving here (without a hope of starting their own company )than living where they are and selling fruit on a corner stand. That's just the kind of broken-willed,pliable and obedient servants MS needs manning its keyboards. Financial incentives for innovation will be determined not by the marketplace, but by internal M$ management and their HR departments.
2. This will give them the ability to go after any Linux distro that is sold abroad in US courts. That combined with Ballmer's reiteration of their intention to close down Linux via IP infringement lawsuits, and you see where this goes.
IF M$ loses (like they want to) , I am going to do what all smart developers are going to do. I am going to move to Canada (or perhaps the EU).
I got into this to create software, see my vision realized, bring value to society and leave the world a better place than I found it to whatever extent I am able. M$ is determined that no one be able to do this, so Ballmer and company can have more money.
If America wants, through the injection and invasion of IP laws into areas where it absolutely doesn't belong, harass , abuse, demoralize and disenfranchise it's programmer-citizens, then they're going to do what people in all places and at all times have done- leave for a part of the world where there is greater freedom and greater financial opportunity.
America, I hardly knew ye.
thought to software patents. It was useful for a time, but didn't
make much, so I resumed my career in another field.
In 04, I semi-retired and started researching another shareware
product. Then in 05 I retired fully and started developing the
thing full time. And started reading patents. The ones I have
found in my field don't seem to be nonobvious extensions of
what is in textbooks from the 1970s. As you say, you can't write
two lines without infringing something somewhere.
So my question now is, why do shareware and other small
development efforts continue to appear? Do we know something
they don't know, or vice versa? I have a feeling I am about to find
out.
infringing a patent somewhere, what does that imply for education?
Can someone who is learning to program legally write something
that infringes? I seem to recall that patents protect inventions
against infringement for any reason. You can't make something
that is patented by someone else even for you own use. Is that
correct, or am I dreaming?
1) they can assert their filled-with-junk patent portfolio against all US based companies all over the world.
2) they have disincentivized Americans from going into software development, to the point where Americans and people living in America will simply desert it as a profession- since no one will be able to have a start-up anymore; the cost of starting up a company will now include exhaustive and financially exhausting patent reviews.
Given the broad and vague nature of patents, this would result in nothing but a state of total uncertainty anyway. Further, as more ideas are patented, the scope of "forbidden" ideas - which is already so big you can't code two lines without violating someone's patent - will become enormous.
There will be no more "start-ups" in the sense of a small band of developers selling software and bringing, you know, value to the marketplace- the kind of value (created with the kind of low overhead" that M$ can't compete against. )
This will in turn result in massive importation of H1Bs etc etc who are getting a better deal moving here (without a hope of starting their own company )than living where they are and selling fruit on a corner stand. That's just the kind of broken-willed,pliable and obedient servants MS needs manning its keyboards. Financial incentives for innovation will be determined not by the marketplace, but by internal M$ management and their HR departments.
2. This will give them the ability to go after any Linux distro that is sold abroad in US courts. That combined with Ballmer's reiteration of their intention to close down Linux via IP infringement lawsuits, and you see where this goes.
IF M$ loses (like they want to) , I am going to do what all smart developers are going to do. I am going to move to Canada (or perhaps the EU).
I got into this to create software, see my vision realized, bring value to society and leave the world a better place than I found it to whatever extent I am able. M$ is determined that no one be able to do this, so Ballmer and company can have more money.
If America wants, through the injection and invasion of IP laws into areas where it absolutely doesn't belong, harass , abuse, demoralize and disenfranchise it's programmer-citizens, then they're going to do what people in all places and at all times have done- leave for a part of the world where there is greater freedom and greater financial opportunity.
America, I hardly knew ye.
thought to software patents. It was useful for a time, but didn't
make much, so I resumed my career in another field.
In 04, I semi-retired and started researching another shareware
product. Then in 05 I retired fully and started developing the
thing full time. And started reading patents. The ones I have
found in my field don't seem to be nonobvious extensions of
what is in textbooks from the 1970s. As you say, you can't write
two lines without infringing something somewhere.
So my question now is, why do shareware and other small
development efforts continue to appear? Do we know something
they don't know, or vice versa? I have a feeling I am about to find
out.
infringing a patent somewhere, what does that imply for education?
Can someone who is learning to program legally write something
that infringes? I seem to recall that patents protect inventions
against infringement for any reason. You can't make something
that is patented by someone else even for you own use. Is that
correct, or am I dreaming?
What needs to be done to fix the problem:
1) Fund the USPTO by direct appropriation.
2) Raise the salaries of the examiners, especially the starting salaries.
3) Hire more examiners.
4) Base bonuses and raises of examiners on something besides number of applications processed.
disclaimer: I am a scientist, who has procured patents. I don't have any friends or relatives at the USPTO.
software patents. Are there siginificant numbers of junk software
patents (by which I mean patents granted on obvious
improvements or outright prior art), and if there are, should
something besides litigation be done about them?
The answer is, no there's no reason for patents to be issued. My proof? I have an existence proof- the state of affairs prior to say 2000, when very few sw companies were getting patents. Lots of innovation, competition and economic activity. Market share was determined by value.
Not everyone knows the Constitution specifically mentions patents. They are to awarded for the SOLE Y for the purpose of promoting the useful arts and sciences. Absent that promotion, no patent is to be given. All "should this be patentable" questions come down to a question of social utility- does it serve the large good? The answer with sw patents, is no, it doesn't.
So we know that sw will thrive in a non patent atmosphere. Why are we patenting them?
We also know that overly broad laws and laws that unnaturally constrain people lead to contempt for government and for the rule of law generally. Want to tell tens of millions of developers that they're going to be subject to civil prosecution for writing code? Go ahead. See how that works out for you. How'd it work out for the record industry, which arguable had a good moral and legal position?
Turn us into criminals. See what happens to your society.
That alone will reduce the workload by the majority.
/P
What needs to be done to fix the problem:
1) Fund the USPTO by direct appropriation.
2) Raise the salaries of the examiners, especially the starting salaries.
3) Hire more examiners.
4) Base bonuses and raises of examiners on something besides number of applications processed.
disclaimer: I am a scientist, who has procured patents. I don't have any friends or relatives at the USPTO.
software patents. Are there siginificant numbers of junk software
patents (by which I mean patents granted on obvious
improvements or outright prior art), and if there are, should
something besides litigation be done about them?
The answer is, no there's no reason for patents to be issued. My proof? I have an existence proof- the state of affairs prior to say 2000, when very few sw companies were getting patents. Lots of innovation, competition and economic activity. Market share was determined by value.
Not everyone knows the Constitution specifically mentions patents. They are to awarded for the SOLE Y for the purpose of promoting the useful arts and sciences. Absent that promotion, no patent is to be given. All "should this be patentable" questions come down to a question of social utility- does it serve the large good? The answer with sw patents, is no, it doesn't.
So we know that sw will thrive in a non patent atmosphere. Why are we patenting them?
We also know that overly broad laws and laws that unnaturally constrain people lead to contempt for government and for the rule of law generally. Want to tell tens of millions of developers that they're going to be subject to civil prosecution for writing code? Go ahead. See how that works out for you. How'd it work out for the record industry, which arguable had a good moral and legal position?
Turn us into criminals. See what happens to your society.
That alone will reduce the workload by the majority.
/P
This is all coming from a small group of weirdo academics holed up in the basement of the Chicago School of Business and a few right-wing think tanks who have decided that IP is what makes countries rich and the more IP, the better ad that IP should be extended into any and all domains. A group of "thinkers" like that got us into Iraq. Isn't it cool what academics and greedhead business freaks can do when they get together and buy a bunch of politicans?
This is all coming from a small group of weirdo academics holed up in the basement of the Chicago School of Business and a few right-wing think tanks who have decided that IP is what makes countries rich and the more IP, the better ad that IP should be extended into any and all domains. A group of "thinkers" like that got us into Iraq. Isn't it cool what academics and greedhead business freaks can do when they get together and buy a bunch of politicans?
part of the constitution, too, and it was clear to me that software
and business method patents are not covered by that provision of
the constitution. I think that in both of those realms, what you have
are essentially mathematical formulas or algorithms. I can't imagine
what twisted logic got them included under the patent system. I
suppose I could read the relevant cases, but doubt I'd gain by such
a waste of time.
part of the constitution, too, and it was clear to me that software
and business method patents are not covered by that provision of
the constitution. I think that in both of those realms, what you have
are essentially mathematical formulas or algorithms. I can't imagine
what twisted logic got them included under the patent system. I
suppose I could read the relevant cases, but doubt I'd gain by such
a waste of time.
In the early 70s, ATT had a virtual monopoly over long distance phone service, & the were broken up into the "Baby Bells to end that situation. Mow almost all of the Baby Bells are owned by either ATT or Verizon, both of which are buying out most of the telecommunication & cable industry. MS controls about 90% of the world wide software market & are expanding into all aspects of IR, making MS an almost total monopoly. Dish Networks & Direct TV are merging, giving them a monopoly if they succeed. Do you see where all of this is heading? Monopolies are back with a vengeance. No matter who wins this case, or any other case involving these corporations, we all lose.
Government has no clue about IT issues. After reading the articles from IT people, it appears they have no clue about politics, For 16 of the past 18 years, conservatives who favor big business have controlled either the Presidency, Congress, or both. Therein lies the real problems faced by startups & open source. I normally do not endorse complete control of govt by either party, but this time I believe we have no choice but to vote the neocons out of office in both branches.
administration redeems itself somehow in the minds of the voters.
Likely? Not so much.
Both parties, both ideological poles, both groups in government are equally guilty of this crap.
Evidence? Let's start with one big fat one to show total culpability on both sides of the issue: The DMCA was signed into law by one Bill Clinton, and was bipartisan legislation by all accounts.
So, please, leave the NPR editorials and your ideological hating to radio - we have enough problems with half-informed mouth-breathers spouting off their ideology in a tech forum as it is without your adding to it.
Thx in advance,
/P
In the early 70s, ATT had a virtual monopoly over long distance phone service, & the were broken up into the "Baby Bells to end that situation. Mow almost all of the Baby Bells are owned by either ATT or Verizon, both of which are buying out most of the telecommunication & cable industry. MS controls about 90% of the world wide software market & are expanding into all aspects of IR, making MS an almost total monopoly. Dish Networks & Direct TV are merging, giving them a monopoly if they succeed. Do you see where all of this is heading? Monopolies are back with a vengeance. No matter who wins this case, or any other case involving these corporations, we all lose.
Government has no clue about IT issues. After reading the articles from IT people, it appears they have no clue about politics, For 16 of the past 18 years, conservatives who favor big business have controlled either the Presidency, Congress, or both. Therein lies the real problems faced by startups & open source. I normally do not endorse complete control of govt by either party, but this time I believe we have no choice but to vote the neocons out of office in both branches.
administration redeems itself somehow in the minds of the voters.
Likely? Not so much.
Both parties, both ideological poles, both groups in government are equally guilty of this crap.
Evidence? Let's start with one big fat one to show total culpability on both sides of the issue: The DMCA was signed into law by one Bill Clinton, and was bipartisan legislation by all accounts.
So, please, leave the NPR editorials and your ideological hating to radio - we have enough problems with half-informed mouth-breathers spouting off their ideology in a tech forum as it is without your adding to it.
Thx in advance,
/P
/P
- Looks as if Software Patents themselves may go bye-bye...
- by Penguinisto February 22, 2007 8:07 AM PST
- Man, I'm soooooo hoping the USSC ditched software patents altogether...
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