Abstract software patents struck down by Supreme Court

https://www.eff.org/deeplinks/2014/06/bad-day-bad-patents-supreme-court-unanimously-strikes-down-abstract-software

by chaqke • 12 years ago

280 59 12 years ago

chc2• 12 years ago

This is about the same thing that's already on the front page with 70 comments, including a great one by grellas. I'd go there if you're interested in this: https://news.ycombinator.com/item?id=7916160

Zigurd• 12 years ago

But now I'm looking at it on a mobile device. That's totally novel.

greenyoda• 12 years ago

That post was just a link to the actual Supreme Court decision. This article explains what it's about in language that's easier for people who aren't legal scholars to understand, so I think it serves a useful purpose.

icambron• 12 years ago

This article explains what it's about in language that's easier for people who aren't legal scholars to understand

I really strongly disagree with this. Supreme Court decisions are usually quite readable and will give a you a nuanced overview of the legal background and justifications for the ruling. They're usually very accessible and not nearly as crammed with legal jargon as you might guess. I try to read as many important decisions as I can and I have no legal training at all. I only occasionally have to look up a term. I would say they're easier, on average, for me to read than a CS paper. And after reading a few Scotus papers, you'll have a much deeper understanding of how our legal system works, and of course a great deal more about the individual decisions. You'll even read news articles about a decision and say, "That's not what the decision was about at all!"

Supreme Court rulings are, of course, quite long, and there's nothing wrong with a summary article like this one. But my point is that you shouldn't fear the legalese.

dragonwriter5• 12 years ago

This article explains what it's about in language that's easier for people who aren't legal scholars to understand

More accurately, this press release puts the spin of an interest group popular on HN on the decision; it is not a neutral explanation of the decision.

briantakita• 12 years ago

the Supreme Court reaffirmed that merely adding “a generic computer to perform generic computer functions” does not make an otherwise abstract idea patentable. This statement (and the opinion itself) makes clear that an abstract idea along with a computer doing what a computer normally does is not something our patent system was designed to protect.

This opinion gives me hope that reform is possible & that the U.S. government still works with reason.

Now the question is are patents still relevant in today's world of internet, rapidly accelerating innovation, and evidence that free/open source research reduces costs?

rayiner2• 12 years ago

Each generation of CPU design or gas turbine design or wireless baseband design, drug design, or nuclear power plant design still takes more R&D money than the last. And nobody was working on a competitive open source LTE baseband last I checked.

"Accelerating innovation" is something which, if it exists, touches only a few areas of engineering. In most areas of engineering, innovation has gotten more expensive, not less. Very few things are amenable to a distributed group of hackers working on it. Jet engines are still best designed by a roomful of PhD's. And those cost lots of money.

We can argue about how necessary patents ever were, but I don't think they're any less necessary today.

The question, in my opinion, isn't whether patents are still relevant. Its whether we can draw lines better to leave out less useful ones while keeping that exception from swallowing the patent system. E.g. if a power control module for an LTE radio is patentable if implemented in an ASIC, should it become unpatentable when you implement it in a DSP? If not: how do you allow those patents while invalidating Amazon's One Click shopping patent? To a certain extent, its tempting to just say: "its too hard to draw the lines, its not worth the trouble." That's easy to say if you're not Qualcomm and don't have a dozen companies who'd love to use your work for free.

richardw2• 12 years ago

Jet engines are still best designed by a roomful of PhD's. And those cost lots of money.

Possibly the wrong example for your argument :) Jet engines can now be designed by a team at SpaceX rather than at NASA, and the team can 3D-print them. That seems like reduced-cost innovation compared to decades past.

http://www.fool.com/investing/general/2014/06/02/elon-musk-m...

(PS - I definitely don't disagree with your general point, but it might be becoming harder to know which areas need patents and which don't.)

pjc50• 12 years ago

a power control module for an LTE radio is patentable

It's worth drawing a line between "a particular solution to the problem of power control on LTE radios" and "any method of doing power control on LTE radios". Far too many software patents seem to cover any solution to the same problem, not just a particular implementation.

(Note that the software in the DSP also gets the benefits of copyright protection)

ajb• 12 years ago

I'm sceptical that patents are an essential part of the ASIC business either. Hardware designs would still be covered by copyright law, so a competitor would still have to reimplement it from scratch. Which is actually more work than doing so for software because hardware languages use a lower level of abstraction, and the design needs to be tested much more thoroughly because you can't fix bugs post-hoc. Also, giant SoCs present a natural barrier to entry to new companies because a new company needs to have all the blocks, not just one or two. There may be a dozen companies trying to make LTE basebands today, but that situation is unsustainable and we are already seeing exits. In short: ASIC innovation would be profitable even without patents. Also, we seem the same kind of behavior in the hw sector: Qualcomm was found to be abusing its patents: https://en.wikipedia.org/wiki/Qualcomm_Inc._v._Broadcom_Corp.

deciplex2• 12 years ago

We will work to ensure the Federal Circuit—the court that hears all patent appeals—diligently applies the new filter on patentability.

Doesn't the Federal Circuit have something of a history on cases such as this, where they essentially say 'fuck it, we're not listening to the SCOTUS', and continue to rule as they please? What's to stop them from just doing business as usual in defiance of the Supreme Court?

tzakrajs• 12 years ago

Sure, but then it would probably get appealed...

VonGuard2• 12 years ago

Yup. Just wrote about this, actually: http://www.sdtimes.com/content/article.aspx?ArticleID=71372&...

The Federal Circuit court has been, essentially, ignoring the supreme court, and has had just about every decision its made on patents in the last 2 years overturned upon appeal to the supreme. I talked to the EFF and they couldn't explain why the circuit was so fucked up. No one's really sure, but they clearly don't listen to the supreme court.

dzink• 12 years ago

Yep, the Federal Circuit court has a way of interpreting around SCOTUS decisions if they don't like them. The Circuit court sees a lot of Patent cases and they do whatever they can to avoid reversing past decisions. There are a lot of second and third order consequences to this judgement. Hopefully it will stick.

jackgavigan2• 12 years ago

Chief Justice Roberts will send Justices Kennedy and Ginsburg around to make an example of one of the Federal Circuit justices.

Kind of like how the Mob do business but will gavels instead of baseball bats.

"Ya know, that's a really nice bench ya got there. It'd be a pity if something were to happen to it..."

PS: I think the premise of the Supreme Court justices enforcing their judgments, Mafia enforcer-style, would make a great graphic novel. I can see Ginsburg going all Tommy DeVito on some Federal Circuit judge's ass and burying the body in the Rose Garden.

zedadex• 12 years ago

One of my favorite Onion videos to date is "Supreme Court Rules Death Penalty 'Totally Badass'." Complete with court sketches and everything.

spacemanmatt6• 12 years ago

There should be a threat of Supreme review and it should be random. And the Supreme reviewers should have the option of firing the judge.

Eric_WVGG• 12 years ago

or Sotomayor all Robert Rodriguez style

WildUtah5• 12 years ago

Judge Scalia:

http://boingboing.net/2011/07/13/tom-the-dancing-bug-57.html

More: https://www.google.com/search?q=judge+scalia+site:boingboing...

dragonwriter5• 12 years ago

What's to stop them from just doing business as usual in defiance of the Supreme Court?

The Supreme Court itself, and, ultimately -- assuming they care -- Congress.

But, in any case, this "new filter on patentability" isn't new with this decision, really -- its a fairly direct application of previous USSC decisions in similar cases -- and isn't contrary even to the CAFC en banc decision in the same case, which came to the same substantive conclusion, with the dominant (though plurality) decision applying broadly similar logic applying the same precedent.

So while the "out of control CAFC defying the Supreme Court on patent issues" story might have some relevance, it really doesn't on this case.

(There's always the problem that what a larger en banc panel might do is different than what the smaller panels of the same court that hear appeals first would do, but that's not a particular problem of the CAFC but of the way circuit courts work in general. If you picked random three-judge panels of the Supreme Court to hear appeals to that court first and had to petition separately by a hearing of the full court, well, I'd expect a panel composed of Thomas, Alito, and Scalia (or, alternatively, Sotomayer, Kagan, and Breyer) would tend to return decisions on lots of issues that wouldn't look like the decisions the full court would return.

jebblue• 12 years ago

Despite EFF syndrome, patents are a tool, they are not evil, patent trolls are evil, patents are just tools.

rando289• 12 years ago

EFF didn't say patents were evil. I can do that too:

Despite inane anonymous commenting syndrome, you are a person, you are not evil, you are just a person.

r0s• 12 years ago

Absurdly oversimplified.

spacemanmatt6• 12 years ago

Patents are a tool that was being abused so badly that the Supreme Court has been taking multiple cases just to try to set things straight.

The abuse has been evil.

noonespecial• 12 years ago

Some tools empower evil more than good or even just accidentally do more harm than good more often than not.

Land mines for example.

andy_ppp2• 12 years ago

This was always going to be the case eventually (a task that was already performed, this just invalidates adding "on a computer").

It's much harder for the law (I would say impossible) to actually judge stuff that is obvious. For example wavelet patents in certain video codecs are absurd - improving fourier transforms in a very very obvious way - but it won't be obvious to a judge or a jury and certainly isn't covered by this supreme court decision.

The more specialised people become in certain fields the more 'obvious' discoveries become. The law has no means to understand what rights it's protecting, and for how long they should be protected, which means it will never police the patent's system effectively, no matter what this judgement says.

Given how fast software patents and technology change and that the law can't judge them effectively I would suggest that instead of all this mess can we not just have software patents that last a maximum of 5 years.

higherpurpose• 12 years ago

My favorite part about this is that it shows how idiotic USPTO is for approving such patents in the first place. Hopefully, this will make them reconsider whether they should be approving other types of patents, too, before the Supreme Court puts them in a bad light again, but I'm not holding my breath.

spacemanmatt6• 12 years ago

They do not care.

moron4hire• 12 years ago

They can't care. They don't set policy, Congress does. They just act out Congress' laws.

euank• 12 years ago

There are no ramifications for the USPTO.

In addition, approving a patent takes almost no work while not approving one takes significantly longer and can have more bouts of back and forth.

The USPTO right now operates on a very loose definition of 'patentability' simply because it is more convenient to do so and the course will sort it out eventually anyways.. and there's absolutely no downside for them other than their own conscious.

spacemanmatt6• 12 years ago

This is great ammo for all the jack-wagons I encounter in daily life who counter my position on patents with the genius position, "What if someone came and just took your house, or your car away. That's your property and you wouldn't like it, would you?"

lostinpoetics• 12 years ago

while the decision is pretty tightly tailored, it seems like it's SCOTUS' way of opening the door for subsequent arguments regarding pure software patents. take google's page rank patent[1]. one could argue that assigning scores to, say, academic papers based on references cited and then doing that repeatedly is an "abstract idea" and google's recitation of "apply[ing] it" using a computer is not enough to enter into patent eligible subject matter. if you read/listen to the oral argument, the counter argument that doing so on a massive scale is impracticable was flatly rejected. indeed, a million monkeys counting the citations of scholarly pubs could probably perform that method on a decent sized corpus. is the method therefore inherently abstract? will be interesting to see if Alice alters the analysis (albeit slightly) for these types of questions and whether we'll see a pure software issue (without the negative financial/business method clouds in the background) sooner rather than later.

[1] http://www.google.com/patents/US6285999

dsplatonov• 12 years ago

"Admittedly, the Supreme Court did not offer the clearest guidance on when a patent claims merely an abstract idea, but it did offer guidance that should help to invalidate some of the more egregious software patents out there." Where can i find this guidance?

mtdewcmu3• 12 years ago

What exactly is an abstract idea? Is it possible for an idea to be concrete?

From looking at examples, "abstract" seems to mean trivial. By trivial, I don't mean obvious or silly, I mean small; i.e. an idea that can be reduced to one or two sentences, like "e-commerce shopping cart."

Otherwise it's pretty hard to distinguish ideas about software from ideas about hardware and explain why one is more patentable than the other.

nardi2• 12 years ago

An abstract idea isn't physical. You can patent a machine, or a drug. You can't patent a method for dividing two numbers. However, a machine for dividing two numbers—assuming it's novel, not obvious, etc.—is fair game.

mtdewcmu3• 12 years ago

Ok, but what's actually protected is the idea behind the machine, right? A different machine that employed the patented idea would infringe the patent.

Maybe what is meant by "abstract idea" is really "an idea in the abstract," i.e. an idea that is not used to make a machine can't be patented; it's the employment of the idea that is patentable.

spacemanmatt6• 12 years ago

Correct, ideas are abstract. Mathematics (including computer science) is abstract. If you invent a new math, or a new piece of software, it is abstract and thus non patentable.

If you invent a new piece of hardware, it's concrete. The ideas embodied are abstract. If you came up with hardware that works differently in a concrete way (e.g. you figured out how to use carbon in place of silicon, opening the door to entirely new categories of manufacturing) then it would be potentially patentable. Your methods would be concrete methods involving substances which are not abstract.

HTH

yebyen• 12 years ago

I would argue (playing devil's advocate in favor of software patents) that a new /piece of/ software is decidedly not abstract, it is concrete and it has an abstract part that is (in the US today) patentable.

What's not patentable is "old idea, now on a computer for the first time" -- covering any implementation of "old idea" that nobody thought to put on a computer before, "but on a computer." That's clearly abstract. It's not an implementation. There are no implementation-specific details to put in the patent as claims (they would have to stand up to the obviousness test either individually or as a group). With nothing new except "on a computer" or "on a mobile device" it's not novel or specific and therefore not patentable.

I'm actually not going to argue the point "now if you HAD a specific implementation" because I'm not sure I actually believe in patents (or more specifically software patents) at all, but I do believe that even without a patent: if you have some source code that your competition doesn't, and you made it... and they acquire it somehow without getting a license, there are already copyright laws that protect you (so long as you can establish your own original ownership of that work) if they should decide to rip it off wholesale.

Abstract software patents struck down by Supreme Court

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