Software patents are crumbling, thanks to the Supreme Court

http://www.vox.com/2014/9/12/6138483/software-patents-are-crumbling-thanks-to-the-supreme-court

by mcfunley • 12 years ago

290 98 12 years ago

Well, I'm glad SCOTUS seems to be doing something right. So much of their decisions seem to be on the side of entrenched/powered/moneyed interests, whether its the dismantling of the Voting Rights Act and campaign finance reform, or the granting of increasing rights to corporations (like Hobby Lobby).

marcosdumay• 12 years ago

Whatever they bias is, invalidating software patents is an action that favours entrenched/moneyed interests. It favours them almost as much as it favours small inovative firms and sole professionals.

briantakita• 12 years ago

invalidating software patents is an action that favours entrenched/moneyed interests

Not true. Large firms & patent trolls hold the patents and have the resources to deal with the legal expenses. Small innovative firms & sole professionals tend to not have legal departments, large amounts of capital (& time) to spend on legal "non-innovative" matters, nor do they have patent troves.

Invalidating the software patents increases freedom to create & innovate and reduces centralization of power, legal trifling, and bureaucracy.

rayiner5• 12 years ago

Its a conservative Supreme Court that had come down strongly in favor of free expression and religious freedom. E.g. Brown v. EMA, the video game free speech case. Different sides of the same coin.

What is insane to me are people who agree with Brown but disagree with Citizens United. A political movie isn't free speech, but Grand Theft Auto is?!

ghaff2• 12 years ago

Well, and for that matter, Hobby Lobby.

To me, the common thread is that they all come down on the side of greater freedom of expression and freedom to take actions consistent with beliefs. But both the Citizens United and Hobby Lobby decisions are anathema in circles such as many tech communities. I suspect a lot has to do with personal disagreement with the beliefs of the organizations involved even though the discussion often gets reframed. Around catchphrases like "corporate personhood" in the case of Citizens United.

nknighthb8• 12 years ago

Nobody was stopping them from making or distributing the movie. The case concerned restrictions on the airing of ads in a narrow window of time to prevent unlimited use of money for electioneering purposes.

wildgift3• 12 years ago

The issue was who made the political speech and whether it was electioneering (promoting a candidate). Before CU, corporations, associations, and unions could not spend their money on buying ads or air time to do electioneering.

I think the point of this law was to control the effect of money on politics. If these independent expenditures (IEs) were restricted, then campaign spending would be done through the campaign.

Campaign donation limits would further decrease the influence of the wealthy and organizations on elections. Again, these limits exist specifically for this purpose.

These laws just dealt with the obvious: money has a huge influence on how much speech you have, and the only way to make speech more equal is to put restrictions on how much money you're allowed to spend on speech. The laws were limited to political speech during elections.

Furthermore, there is a distinction between personal and commercial speech and election speech, and election speech is more tightly regulated, and always has been. Our system is supposed to be one-person-one-vote, and likewise, the restrictions on speech are used to try and achieve one-person-one-voice in elections.

Citizens United was a bad decision because it extended the general personal free speech rights to election-related speech by corporations, associations, and unions.

It's led to the creation of associations that accept donations, and then produced electioneering materials and buy media as IEs.

I work for the AFL-CIO union, and the leaders at the national level happen to think that Citizens United was a bad decision, as well. They've issued statements about it.

RexRollman• 12 years ago

One can hope.

ChuckMcM• 12 years ago

Glad to see how the courts are taking this up. Maybe they will torch the laser pen pointer annoying cats patent too!

gbhn• 12 years ago

It's time for Congress to do their bit and suspend assumed patent validity for this broad class of patents. Its clear the review process was yielding vast quantities of invalid patents. Making the courts invalidate them one-by-one is crazy. Classifying them all as assumed-invalid would send a very clear message to the patent office that it seriously fouled up and needs to straighten up in evaluations, and also let patent trolls know that their payday is over. Proving validity puts the technical burden on the patent troll, which in almost all cases would be nearly insurmountable, since virtually all these patents would likely be recognized by juries as obvious and invalid.

cordite• 12 years ago

You'll have IBM and many others throwing a fit when their licensing deals are invalidated indiscriminately.

cscurmudgeon• 12 years ago

Yes! Throwing out the baby with the bathwater is always the sane and rational thing to do. Always.

ejr• 12 years ago

It's worth noting that the ubiquity of these "on a computer" type patents and similarly questionable other software patents is directly a result of the poor handling of the entire patenting process as well as general incompetence Ex: http://arstechnica.com/science/2014/02/uspto-issues-patent-f...

roye• 12 years ago

Nice development for trivial patents, but it makes me wonder if this could lead to people having to defend their (e.g., algorithm) patents by appeal to computational complexity or the physical constraints of human vs. computer memory, etc.

WildUtah3• 12 years ago

Most of these are district court cases. The USA has a patent appeals court, the Court of Appeals for the Federal Circuit [0], that takes all patent appeals nationally. The doctrine about "do it on a computer" patents will be formed by three judge panels chosen randomly from that appeals court, not by the districts.

But the very good sign from these cases is most were decided on the pleadings. That means there was no expensive discovery or claim construction procedure, much less a jury trial. A decision on the pleadings means that even in the best possible light, the patent holder doesn't have a case at all according to the judge. There is no cheaper way to dispose of an expensive and lengthy lawsuit. And a rule that can be disposed of on pleadings is exactly what reformers wanted from the Supreme Court.

The CAFC has seen a few of these and so far Taranto and Hughes, two of the newest Obama judges, have acquitted themselves superbly. We have well written and conclusive decisions from them calling the whole "do it on a computer" mess ineligible.

We'll have to wait and see how the more enthusiastic radicals for patenting everything influence the outcomes. Three judges that wanted to hand a monopoly on the centuries old, trillion dollar financial settlement industry to Alice even when no technological procedures were disclosed in their patent are still on the court: Moore, O'Malley, and Newman. Lourie was the swing vote in that decision and also says that Ultramercial [1] should have a monopoly on interstitial internet advertising because they wrote the century old idea up with 'on the internet' tacked onto the end. There are eleven judges and one empty slot on the CAFC so those four make up a large minority that will likely press for "on a computer" patents to come back.

Chief Judge Prost, Judge Dyk, and the three new Obama appointees seem much more rational and good for our industry. We should hope they are the ones who shape the interpretation of Alice in the future.

And remember that while "on a computer" patents -- the ones that describe a conventional business and add "on a computer" or "on the internet" without anything added to known technology -- are falling, lots of damaging software patents are still out there and apparently unharmed. The h.264 and mp3 patents that block open and free media players and browsers are still functioning. The ZFS and JFS patents that make BTRFS illegal are still out there. The compiler and VM patents from IBM, Sun, and others that hang over the head of anyone who writes either still exist. The long filename patents and others that Microsoft uses to tax Android are still taxing. The UI patents on smartphones that drive the smartphone wars are still driving them. New patents on computer vision, deep neural nets, machine learning, GPU computation, multithreading techniques, and more are being granted every tuesday.

Lucky for us, software patents that are on actual software are a lot less lucrative than the ones on business "on a computer." Even in smartphone litigation, most of the money verdicts depend on the shape of the box a smartphone comes in; don't steal the idea of a rounded rectangle and your lawsuit will be for tens of millions instead of billions. Still, every kind of software patent is bad, dishonest, and harmful to our industry and progress. They all need to go.

[0] http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_...

[1] http://www.patentdocs.org/2013/06/ultramercial-inc-v-hulu-ll...

yuhong• 12 years ago

I think the H.264 and MP3 patents basically patents math. I wonder if it can be invalidated using similar reasoning. The aforementioned Microsoft patents are on my wishlist for Satya BTW: http://yuhongbao.blogspot.ca/2014/08/my-wishlist-for-satya.h...

jandrewrogers2• 12 years ago

Algorithm patents do not patent math, they patent processes that are describable with math. It is the difference between patenting the concept of "sorting" and patenting a specific sorting algorithm; only the latter is allowed. The conceptual test for patentability of an algorithm in most countries is that it is directly reducible to practice as a novel electronic circuit design.

All patentable subject matters are directly describable with math in exactly the same way as proper algorithm patents, and chemical process patents have an identical abstract structure (just change "bits" to "atoms"), so any specific argument against algorithm patents would consistently apply to most or all patentable subject matters.

DannyBee• 12 years ago

"Most of these are district court cases. "

Yes, but there is hope at CAFC:

See, for example, Buysafe v. Google

"The compiler and VM patents from IBM, Sun, and others that hang over the head of anyone who writes either still exist. "

I'm not sure IBM belongs on this list. When I worked at IBM, they were generally fine with pledging a ton of patents to open source, including any compiler patents that were interesting.

For example, we got the graph coloring register allocation patents pledged.

teachingaway• 12 years ago

> "Most of these are district court cases."

3 out of 11 are Federal Circuit cases, and one of the District Court cases was actually decided by Federal Circuit Judge Bryson (Loyalty v. American).

I'd count that as 4 out of 11 being Federal Circuit cases. Its certainly a trend.

WildUtah3• 12 years ago

Senior (semi-retired) Judge Bryson was taking district level cases by designation in East Texas ... because that's where abusive patent cases get filed. Bryson doesn't have as much impact as a full time CAFC judge, and can't vote in essential en banc cases.

And two of the CAFC cases were rump panels with Taranto and Hughes. Rader's retirement left the panels short.

But I hope it's a trend!

sgt1012• 12 years ago

"Still, every kind of software patent is bad, dishonest, and harmful to our industry and progress. They all need to go."

I don't agree.

If a genuine invention is made which contributes to the state of the art and is significant then there are two options for monetizing it. It can be patented, or it can be kept secret.

Which is more damaging?

DanBC• 12 years ago

Look at the one-handed half-keyboard patent owned by Matias. You have half a keyboard and holding space swaps between them.

This was patented. It was also independantly discovered by several different people, who were hit with patent claims and forced to stop.

Hardware half keyboards are currently only available from Matias for ~$600, which seems sub-optimal.

pluma2• 12 years ago

This is a false dichotomy.

If someone makes such an invention, there is no incentive to keep it perfectly secret (i.e. hide it in a filing cabinet and make no use of it that might hint towards its existence) -- other than sheer paranoia or vanity.

Instead they will either sell it like any other trade secret or make use of it. If they make use of it and it gives them a notable advantage over competitors, the competitors will seek to either reverse engineer the invention or invest in finding something that works equally well or even better. If the competitors succeed, the original invention becomes obsolete (rendering knowledge of it less valuable) or common knowledge.

What's more, a competitor or a non-commercial organization might decide to publish their findings for various reasons ranging from harming the original inventor by eliminating their advantage to benevolence / publicity / "fostering innovation".

In the current situation a lot of patents are flat-out useless to anyone but the holder. They either describe something that is blindingly obvious ("X on a computer"), something that is already common knowledge (but nobody bothered patenting before) or that is so vague the description itself is worthless to anyone seeking to copy the idea when the patent has expired.

Patents are supposed to be a fair deal between the public and the applicant: the applicant is offered legal protection to maintain a monopoly in a technology they created for a limited amount of time but in return they have to disclose their technology so anyone can copy it once the protection expires.

If you take away that benefit to the public, it's just a blessed monopoly that can be used to extort anyone who independently comes up with the same idea (or shares the same common knowledge on which it is based). Even with that benefit to the public most software patents would still be harmful because of their insane longevity -- the software industry is disrupted on a monthly, weekly or even daily basis, but patents can be maintained for more than a decade.

What's so bad if software patents were abolished? Copyright would still exist. Trade secrets would still exist. Trademarks and trade dress would still exist. NDAs and other legally binding agreements would still exist. At this point the benefits of software patents are theoretical at best -- every single tech company out there could potentially be sued into oblivion if they were to pop up on the radar of a patent troll. Patent infringement has become SOP for software companies -- not because they don't care about other people's IP but because it's simply impossible to license every single "invention" your company uses (and let's not get started on what the situation looks like for contractors).

loup-vaillant6• 12 years ago

DanBC just gave one example, but independent invention tend to be the norm. Strike out patents, and inventions will likely flow anyway —if one keeps it secret, others will publish it. It doesn't really matter that inventors "deserve" a reward: the cost monopoly is just too high for society at large.

Besides, you forgot a third option: "first to market".

Yardlink• 12 years ago

It's debatable that H.264 and MP3 patents are bad. These were non-trivial to invent and are worlds apart from slide to unlock or hold-the-shutter-button-to-record-video. They don't patent the general process of compressing video and audio.

nitrogen• 12 years ago

They don't patent the general process of compressing video and audio.

I get the impression from reading about Daala, VP8/VP9, and x264 that there are fundamental building blocks that are patented and used in threats. We have open source researchers who are just as willing to make high quality codecs as the MPEGLA members, but their time is wasted by fear of lawsuits and working around obvious patents.

I'd suggest that anything that becomes an international standard should have FRAND licensing for all patents, enforced by treaty.

pluma2• 12 years ago

I'm not convinced these encodings couldn't be protected sufficiently with copyright, trademarks, licensing and the DMCA alone.

loup-vaillant6• 12 years ago

The question is not whether they are non trivial, and useful. The question is whether they (or something like they), would have existed at all.

Once granted, a patent give a benefit to the inventor, as well as a cost to society at large: monopoly. I think it is fair to say that the costs of monopoly always exceeds the benefits: you can't justify having the society as a whole pay such a cost for the benefit of a lone entity.

The only way to justify such a cost to society, is an equivalent benefit to society. If it turns out an invention would not have existed without the patent then the patent may not be that bad. But if would have existed anyway, then the patent is a net cost —bad.

Reading my sibling comments, it seems H.264 and MP3 patents were not instrumental in the coming of those technologies (efficient audio and video compression). Those technologies would have been invented anyway. Which means these patents didn't serve any real purpose, and their costs (monopolies) are therefore unjustified.

In a word, Bad.

drzaiusapelord• 12 years ago

Is "on a computer" the real problem here? The problem I'm seeing is that we have things like displaying a linked list, which is trivial, being awarded patents by appending "on a mobile device" or "on a web page" or "On a payment system."

I just don't think its possible to have software patents that make sense. Abolishment of software patents seems to be the only sane move here.

monochromatic• 12 years ago

we have things like displaying a linked list, which is trivial, being awarded patents by appending "on a mobile device" or "on a web page" or "On a payment system."

Citation needed.

TheMagicHorsey• 12 years ago

I'm not so optimistic as the article. The CAFC has lots of judges that came up as patent attorneys, and who are true believers in the patent system. The June decision by SCOTUS wasn't the first time the Court slapped down abstract patents. The CAFC always finds new ways to get around what SCOTUS has tried to be clear about.

On top of that, people underestimate the amount of shenanigans that patent prosecutors pull during patent drafting and prosecution.

I don't think we will see an improvement to the trolling situation until Congress steps in and changes some of the burdens and fee-shifting standards for patent litigation.

Trolls need to have less weapons they can deploy to raise litigation cost, and they need to be made to suffer for bringing BS cases against innocent companies. Only Congress can make that happen.

Intellectual Ventures and its ilk are not going to sit idly while entrepreneurs and tech companies go to Congress to get reform laws passed. They will bring out the big cash piles, just like Comcast does for Net Neutrality.

And patents isn't even as cut and dry as Net Neutrality. The minute you start talking about patent reform, some well meaning person, who has no idea what they are talking about, will bring up that movie about that inventor, who was cheated by that big company, out of his hard earned inventions.

shmerl• 12 years ago

and who are true believers in the patent system

You meant believers in the patent racket system ;)

steveeq1• 12 years ago

Yes, reminds me of that movie "Hot Coffee". Basically negated by "Enigma Cheers" on amazon.com:

http://www.tripperjones.com/stuff/hot_coffee_critique.txt

sytelus• 12 years ago

This might explain layoffs at king of all patent trolls IV: http://www.businessweek.com/articles/2014-08-19/intellectual...

VikingCoder• 12 years ago

Superman III and Office Space being mentioned in a District Court decision. That's awesome.

martin1975• 12 years ago

Can't wait to see Amazon's "One Click Buy" patent dismantled. It's way overdue.

stormqloud• 12 years ago

What exactly can you say except, about fucking time!

A small amount of common sense finally managed to stick to lawyers and the legal profession.

Probably won't last. Lawyers get jealous when they can't control and manipulate the little people.

afarrell• 12 years ago

Why do you say that about lawyers moreso than software engineers or doctors?

spacemanmatt4• 12 years ago

Statistical representation in society's positions of power

ryandrake• 12 years ago

Software patents exist, in part, because the programmers writing the software are helping to patent their "inventions". Often the programmer's employer offers a juicy cash bonus for each patent filed or granted. If you want to help end software patents, put your money where your mouth is and refuse to participate when your employer waves a $1,000 check at you to help them patent your linked list visualizer.

loup-vaillant6• 12 years ago

You can't expect people to pay a great personal (opportunity) cost for the benefit of society. Some do (give to charity and all), but most don't.

'Cause it's not just the $1000 check. If you refuse, that will likely be bad for your career. Don't underestimate the nuisance power of your boss.

jokoon• 12 years ago

this article is about patents, and there's a mention of superman in there.

Software patents are crumbling, thanks to the Supreme Court

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