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Medicine Patents The Courts Science

Supreme Court Orders Do-Over On Key Software Patents 167

Posted by samzenpus
from the no-trade-backs dept.
Fluffeh writes "It seems that the U.S. Supreme Court has an itch it just can't scratch. A patent granted to the Ultramercial company covers the concept of allowing users to watch a pre-roll advertisement as an alternative to paying for premium content and the company is demanding fees from the likes of Hulu and YouTube. Another company called WildTangent, however, is challenging Ultramercial's 'invention' as merely an abstract idea not eligible for patent protection. Add to this a recent ruling by the Supreme Court restricting patents — albeit on medical diagnostic techniques — and you get into a bit of a pickle. The Supreme Court is now sending the Ultramercial case back to the lower courts for another round, which doesn't mean that the court disagrees with the original ruling, but rather that it thinks it is a patent case that is relevant to the situation and they want to re-examine it under this new light."
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Supreme Court Orders Do-Over On Key Software Patents

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  • by LordNicholas (2174126) on Thursday May 24, 2012 @10:00AM (#40099801)

    This nonsense is crushing innovation. It's one more in a long line of examples of how we need to reevaluate how we govern ourselves.

    • by Anonymous Coward on Thursday May 24, 2012 @10:21AM (#40100019)

      Patents have never been an innovation incentive, hell look at what Alexander Graham Bell did with telecom, his company sat on patents and expanded glacially making sure to profit from a few key technologies in what would become backbone areas, it was only when patents started expiring that telephones started spreading, and even then his legacy is still apparent in monopolies across North America

      Imagine if Nikola Tesla had defended the design of the electric motor as viciously as Bell had telecom, the mind boggles...

      • by subreality (157447) on Thursday May 24, 2012 @03:01PM (#40103047)

        Patents were never intended to be an incentive for innovation. They're incentive to document and disclose the invention so that after the patent expires everyone gets to benefit from it instead of it remaining a trade secret forever.

        Unfortunately they've never done a good job of that either. Most things that are patented are either sufficiently obvious once you see them that no documentation was really necessary (eg, the cotton gin), or for non-obvious things (like a process to manufacture a chemical economically) the patents tend to be sufficiently obfuscated to make them essentially impossible to follow.

    • by isopropanol (1936936) on Thursday May 24, 2012 @10:22AM (#40100031) Journal
      Hell froze over; I'm siding with WildTangent.
    • Re: (Score:2, Interesting)

      by Anonymous Coward

      Blame useless congress for patents and how asinine its become. When did the supreme court started having to do Congress job. Congress has become such a joke.

    • by magarity (164372) on Thursday May 24, 2012 @11:24AM (#40100591)

      This nonsense is crushing innovation. It's one more in a long line of examples of how we need to reevaluate how we govern ourselves.

      Sure it's nonsense, but I appreciate how the Supreme Court moves slowly and thoughtfully compared to the other branches of government. Perhaps they move a bit too slowly some times but the other two move so knee-jerk quickly most of the time that maybe the SC needs to be even slower to balance it out.

      • by Rob Y. (110975) on Thursday May 24, 2012 @01:05PM (#40101655)

        ...except on deciding that 'money == speech'. They were quick as bunnies deciding that. Faster than you can say "money also == bribery".

      • I personally think the only reason they're considering getting rid of this patent is, it could hold back corporations from shoving advertisements down your throat, which is something they really want to do. If the only people interested in this were millions of hardworking American citizens, nothing would be done about it.
    • by Blindman (36862)
      You can't talk about crushing innovation in the abstract. First, what affect if any does patent protection have on this type of "invention"? Absent a patent, would somebody have done this anyway? You can't crush the inevitable. Second, the question in this context is whether this patent should be entitled to patent protection. Stated another way, is this a patent to an idea or an application of that idea? Is this a special way of allowing users to watch a pre-roll advertisement or is it the idea itsel
  • by betterunixthanunix (980855) on Thursday May 24, 2012 @10:00AM (#40099811)
    Try as I might, I seem to be unable to get a patent on Euclid's algorithm.
  • by chemicaldave (1776600) on Thursday May 24, 2012 @10:00AM (#40099813)
    How is that even possible? What if someone had patented the concept of "auctions" or "transportation of persons other than by foot"?
    • How is the concept of computing something substantially different from an algorithm that computes something? Patents are supposed to be on physical inventions, not abstract ideas. The formal, "When run on a computer," clause does not mean a math^H^H^H^Hsoftware patent is somehow not a patent on an abstract idea.
      • Patents are supposed to be on physical inventions, not abstract ideas.

        35 USC 101 states that "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Processes aren't "physical inventions".

        • Except that the process clause is meant to cover industrial processes that are not strictly machines, but which are physical inventions nevertheless (at least in the sense that they transform physical material from one form to another).
          • Except that the process clause is meant to cover industrial processes that are not strictly machines, but which are physical inventions nevertheless (at least in the sense that they transform physical material from one form to another).

            Agreed... But that doesn't mean that the "process" is a "physical invention," but rather that it must operate on a machine or perform a transformation of some physical material, no (hence the old CAFC test). At which point, software that operates a controller counts.

            • Sure, and that was the original logic behind the first software patent. The difference is that today's software patents are not on industrial processes, they are on pure mathematics, which is not supposed to be patentable.
              • Sure, and that was the original logic behind the first software patent. The difference is that today's software patents are not on industrial processes, they are on pure mathematics, which is not supposed to be patentable.

                But they're not. As noted above, today's software patents "operate on a machine or perform a transformation of some physical material" - such as "operat[ing] a controller". There aren't any "pure mathematics" patents.

                • by betterunixthanunix (980855) on Thursday May 24, 2012 @12:07PM (#40100991)

                  There aren't any "pure mathematics" patents.

                  What about these:

                  https://en.wikipedia.org/wiki/ECC_patents [wikipedia.org]

                  Or these:

                  http://blogs.teamb.com/craigstuntz/2012/04/04/38707/ [teamb.com]

                  Or any of the hundreds of other patents on mathematics? What specific machine or material does a patent on finite field representations cover? Keep in mind that Certicom claims that its patents cover all computer architectures equally.

                  These are not industrial processes, these are not specific machines, these are patents on pure math with a formal statement about running the software on some computer.

                  • There aren't any "pure mathematics" patents.

                    What about these:
                    https://en.wikipedia.org/wiki/ECC_patents [wikipedia.org]
                    Or these:
                    http://blogs.teamb.com/craigstuntz/2012/04/04/38707/ [teamb.com]
                    Or any of the hundreds of other patents on mathematics?

                    That's a link to wiki and a blog. Neither of those are patents. Is there a specific patent number you're referring to?

                    These are not industrial processes, these are not specific machines, these are patents on pure math with a formal statement about running the software on some computer.

                    So, in other words, they're not patents on pure math?
                    It would be easier to discuss this if you'd provide a specific patent number so that we can discuss a set of claims, rather than a wiki page or blog post about someone's interpretation of some "hundreds of other patents" that are not in front of us. I'm happy to discuss any patent number you name.

                    • by betterunixthanunix (980855) on Thursday May 24, 2012 @12:46PM (#40101419)
                      OK, we can go through these patents, if you want:

                      http://www.google.com/patents?vid=6563928 [google.com]

                      Can you even see what machine this patent refers to? The closest thing to that is in claim 122,

                      a data communication system

                      Which may not even refer to a machine, since we can communicate by shouting at each other across a room, by writing numbers of sheets of paper, etc. This is not even a formal reference to using a computer; it is just a vague reference to the concept of communicating electronically. Otherwise, these claims all cover pure math.

                      http://www.google.com/patents?vid=6782100 [google.com]

                      Tell me if you can find a claim that even vaguely refers to a machine, because I cannot.

                      http://www.google.com/patents?vid=5854759 [google.com]

                      Again, I am not seeing a claim that mentions a machine, but maybe you can point it out for me.

                      The ball is in your court; tell us how these patents are somehow not actually patents on pure math.

                    • If the only input is data and the only output is data (rather than running a motor controller or servo or something) then I would argue that we're talking about an algorithm, i.e. pure math.

                      The fact that it runs on a computer is beside the point, you could in theory do it with pen and paper or in your head.

                    • OK, we can go through these patents, if you want:
                      http://www.google.com/patents?vid=6563928 [google.com]

                      Claims must be read in light of the specification as it would be understood by one of ordinary skill in the art. The "broadest possible reading" of a term applies during prosecution, but in litigation, the claims must be interpreted more narrowly based on the spec. In this case, the claims recite correspondents, which the spec describes as including a random number generator and performing computing functions. While it's possible to read these as humans, I think a more reasonable reading is that they're c

                    • If the only input is data and the only output is data (rather than running a motor controller or servo or something) then I would argue that we're talking about an algorithm, i.e. pure math.

                      The fact that it runs on a computer is beside the point, you could in theory do it with pen and paper or in your head.

                      On the contrary, if the patent claims require a computing device, then you cannot, by definition, do it in your head. You could perform the same algorithm, but you wouldn't infringe the patent - hence the patent isn't claiming the algorithm.

                    • While it's possible to read these as humans, I think a more reasonable reading is that they're computers.

                      I do not agree with that; that is a common use case, but patents do not apply only to common use cases.

                      That one's even easier. Claim 1 recites a cryptosystem, which is illustrated in FIG. 2 including an ALU and RAM.

                      Fair enough, although this is still very vague and non-specific. It is basically saying that the patent covers any electronic computer that runs the algorithm -- which includes computers that have not even been invented yet. If you had no familiarity with computers, and I asked you to describe the machine that this patent covers, I doubt that you would be able to give an answer that even remotely res

                • http://www.google.com/patents/US6384822 [google.com]

                  This seems pretty "pure mathematics" to me. I suppose the phosphors of a monitor count as a physical material, but I think that's stretching it a bit.

                  • http://www.google.com/patents/US6384822 [google.com]

                    This seems pretty "pure mathematics" to me. I suppose the phosphors of a monitor count as a physical material, but I think that's stretching it a bit.

                    Claim 1: "1. A 3-D graphics method performed by a computer for real-time rendering of shadows in 3-D scenes to be displayed on a computer monitor..."

                    The claim explicitly requires a computer and a monitor. That's not pure mathematics. The pure mathematical algorithm is outside of the claims - if you did it in your head, by definition, you could not possibly infringe the patent.

                • by hairyfeet (841228)
                  How do you explain MPEG-LA and H.26x then? that is ALL using math for compression or decompression of a file, yet they've managed to get over 2000+ patents filed on various parts of H.26x. if they were for how a chip can do these calcs efficiently then i'd agree, but as it is no matter how you compress or decompress a video you will most likely step in the H.26x minefield.
                  • How do you explain MPEG-LA and H.26x then?

                    They're video compression algorithms. I thought we were talking about patents.

                    that is ALL using math for compression or decompression of a file, yet they've managed to get over 2000+ patents filed on various parts of H.26x. if they were for how a chip can do these calcs efficiently then i'd agree, but as it is no matter how you compress or decompress a video you will most likely step in the H.26x minefield.

                    So you agree that the base ideas would be patentable if they were embodied in a hardware chip? Then how is that different from embodied in software and executed by a hardware chip?

        • by Billly Gates (198444) on Thursday May 24, 2012 @10:16AM (#40099981) Journal

          That is a new law.

          The original constitution states "physical inventions".

            If it subverts the original meaning that is grounds for the supreme court to throw it out. The second issue is math should not be patentable because they are laws of nature and not manmade. Computer algorithms are just this and a process is simply math. Laws of nature have been ruled not to be patentable as well in the past and I think your text from the America Invents act are clearly unconstitutional but I am no lawyer.

          What I want to know is if laws of nature as unpatentable are a European idea or American or both? The grandparent is correct in that original patents were for physical inventions with a prototype already functional only. Not for an idea. Otherwise everyone would be quite wealthy or broke as nothing could be made without infringing on everyone else.

          • That is a new law.

            "New" as in from 1790. Specifically, the 1790 Patent Act [ipmall.info] - passed just 3 years after the Constitution was drafted - included as patentable subject matter "any useful art, manufacture, engine, machine, or device, or any improvement therein." The term "useful art," as it was known at the time, meant an industrial process.

            The original constitution states "physical inventions".

            Au contraire. The Constitution grants Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." [archives.gov]

            The phrase "physical inventions" does not appear in the Constitution.

            In fact, the word "physical" does not appear in the Constitution.

            If it subverts the original meaning that is grounds for the supreme court to throw it out.

            First, as noted above, the same people who wrote the Constitution wrote the Patent Act, passing it just a couple years later. Thomas Jefferson was the first Patent Examiner. It's a pretty tough argument to say that the founders didn't understand what the founders intended.

            Second, the patent clause of the Constitution is one of the explicitly enumerated powers of Congress, and Congress has the power to pass any laws "necessary and proper" to performing those powers. Which means that the Supreme Court is supremely deferential when it comes to whether Congress has the power to pass a law regarding one of those enumerated powers. Basically, if Congress says that "useful arts" includes processes, the Supreme Court isn't going to reverse that by arguing they lack the power to define "useful arts".

            Third, as noted, the Constitution doesn't include "physical inventions" as a limitation. Accordingly, it's a misreading to say that by allowing patenting of processes, they are "subverting the original meaning". I think you're getting confused with an entirely different clause - the "to promote the progress of [the] useful arts". Whether patenting processes subverts that is an entirely different question, which as of yet, you've not raised.

            The second issue is math should not be patentable because they are laws of nature and not manmade. Computer algorithms are just this and a process is simply math.

            You're right, and that's why computer algorithms are not patentable by themselves. Instead, they must be explicitly tied to a machine or performed by a machine, because machines are not laws of nature, nor are they man-made.

            Laws of nature have been ruled not to be patentable as well in the past and I think your text from the America Invents act are clearly unconstitutional but I am no lawyer.

            I have no idea what part of the AIA you're referring to. It says nothing about patenting laws of nature. Would you care to quote a passage?

            What I want to know is if laws of nature as unpatentable are a European idea or American or both?

            Both. However, "software patents" are patentable in both Europe and America, provided they are tied to a physical machine. It is software per se that is unpatentable.

            The grandparent is correct in that original patents were for physical inventions with a prototype already functional only. Not for an idea.

            As noted above, the grandparent is provably wrong, based on the Constitution and the original Patent Act of 1790. Additionally, the requirement of a prototype went away in 1880.

            Otherwise everyone would be quite wealthy or broke as nothing could be made without infringing on everyone else.

            And yet the economy continues and Apple

            • Laws of nature are math. Plain and simple and should not be patentable PERIOD. Infact a process is math where you do this, then, do that. It doesn't matter where its performed. Just because a computer does it doesn't make it patentable and no longer laws of nature or math. If laws of nature are ruled unpatentable then most of these patents need to be thrown out! A process can not be patentable therefore they need to be thrown out as well.

              The arts are refering to blue prints for industrial designs. Not expre

              • Laws of nature are math. Plain and simple and should not be patentable PERIOD.

                And they aren't. I already said this, you don't need to keep repeating it as if you've said something new.

                Infact a process is math where you do this, then, do that. It doesn't matter where its performed. Just because a computer does it doesn't make it patentable and no longer laws of nature or math. If laws of nature are ruled unpatentable then most of these patents need to be thrown out! A process can not be patentable therefore they need to be thrown out as well.

                But processes are explicitly patentable under 35 USC 101, provided they're not merely the mathematical steps.

                The arts are refering to blue prints for industrial designs. Not expressions as is the common definition of arts today.

                No, they aren't. As it was used in 1787, the term "useful arts" referred to any industrial process, including smelting, forging, shaping, etc. Interestingly, the term "science" referred to expressions of knowledge. Amazing how language changes.

                But "blueprints"? No.

                I can make a patent for anything and just say "Used in a tablet/computer .." otherwise and get away with patenting math or any other law of nature.

                First, no, you can't. Find me a

                • by Chirs (87576)

                  Find me a patent that includes a mathematical algorithm, the phrase "used in a computer", and nothing else. I'll wait.

                  Second, even if you could, then you wouldn't be patenting the math. It could still be freely used outside of a computer.

                  How about Apple's "slide to unlock" patent?

                  http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7,657,849.PN.&OS=PN/7,657,849&RS=PN/7,657,849 [uspto.gov]

                  "...detecting contact with the touch-sensitive display while the device is in a user-interface lock state; moving an unlock image along a predefined displayed path on the touch-sensitive display in accordance with the contact, wherein the unlock image is a

                  • How about Apple's "slide to unlock" patent?

                    http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7,657,849.PN.&OS=PN/7,657,849&RS=PN/7,657,849 [uspto.gov]

                    "...detecting contact with the touch-sensitive display while the device is in a user-interface lock state; moving an unlock image along a predefined displayed path on the touch-sensitive display in accordance with the contact, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; transitioning the device to a user-interface unlock state if the detected contact corresponds to a predefined gesture; and maintaining the device in the user-interface lock state if the detected contact does not correspond to the predefined gesture."

                    Basically you touch an unlock image and slide it along the path shown on the screen to unlock. Yes, there is a physical device involved, but this is fundamentally a concept rather than an implementation of the concept.

                    But, as you note, there's a physical device involved. It's not just a mathematical algorithm. You could not possibly infringe that claim with a pad of paper and a pen or by doing math in your own head.

            • by neoshroom (324937) on Thursday May 24, 2012 @11:23AM (#40100579)

              The second issue is math should not be patentable because they are laws of nature and not manmade. Computer algorithms are just this and a process is simply math.

              You're right, and that's why computer algorithms are not patentable by themselves. Instead, they must be explicitly tied to a machine or performed by a machine, because machines are not laws of nature, nor are they man-made.

              Ah, I see you are one of those religious fundamentalists. Machines are far too complex to be man made! All those intricacies and complexities. They must be made by God. Amen brother!

              On the 1st day God created computers. On the 0th day he rested. Then there was a recursive loop, a segfault and a buffer overflow, and that explains how things came to be. Hallelujah!

            • The term "useful art," as it was known at the time, meant an industrial process.

              Exactly—and an industrial process is a specific way of making a physical product. This is completely separate from the abstract processes under discussion, which are aspects of mathematics—natural laws—waiting to be discovered, not applications of those laws invented to further the production of a specific material good, which is the essence of a "useful art".

              The critical term, of course, isn't "useful arts" (which only occurs in the justification, not the actual power) but "Inventors". Algorithms aren't invented. Like other natural laws, they're discovered. Invention requires the application of the laws thus discovered toward a specific, concrete end.

              The second issue is math should not be patentable because they are laws of nature and not manmade. Computer algorithms are just this and a process is simply math.

              You're right, and that's why computer algorithms are not patentable by themselves. Instead, they must be explicitly tied to a machine or performed by a machine, because machines are not laws of nature, nor are they man-made.

              While this is a very common argument, making it requires one to be (deliberately?) obtuse. A patent on an algorithm[1] running on a general-purpose computer is indistinguishable from a patent on the algorithm itself. The algorithm, as a universal natural law, is not eligible. The general-purpose computer was not invented by the applicant, and the use of one to evaluate any algorithm is obvious, as this is the purpose and nature of any general-purpose computer. What is left to patent?

              If Google is to be believed, we'll have wearable heads-up displays by the end of the year. I mean, come on - that's freakin' science fiction right there.

              Only if they can navigate the patent minefield, and manage to get it to market without anyone blocking it with an injunction. The way the mobile market is looking right now (approaching a complete all-vs.-all digraph of lawsuits), that's not looking very likely.

              Moreover, it's not like the primary roadblock preventing use from having these sorts of wearable HUDs was ever in the software to begin with. It's just taken this long to develop the miniaturized logic circuits, displays, and batteries necessary to make it practical. Are you really trying to argue that no one would develop the (rather trivial) algorithms needed for HUDs without software patents?

              [1] There are no "computer" algorithms, just universal mathematical algorithms which computers happen to be able to evaluate.

              • Mod parent up!

                That is the point. I can't patent respiration as an example because it is a nature and not man-made. Can I then patent respiration while typing on a laptop computer. The patent trolls say yes!

                I say BS. It is still nature and is abstract and not applicable if you did not invent the computer. Its just another way to patent something when used X. Displaying an AD is abstract and not a process of manufacturing and has been done before. Just not on a computer screen.

              • Exactly—and an industrial process is a specific way of making a physical product. This is completely separate from the abstract processes under discussion, which are aspects of mathematics—natural laws—waiting to be discovered, not applications of those laws invented to further the production of a specific material good, which is the essence of a "useful art".

                Yes, and? The original discussion was whether "process" is not included in the patent act as a patent-eligible category. As you agree, it is. And I agree, abstract processes - a subset of "processes" - are not patentable.

                The critical term, of course, isn't "useful arts" (which only occurs in the justification, not the actual power) but "Inventors". Algorithms aren't invented. Like other natural laws, they're discovered. Invention requires the application of the laws thus discovered toward a specific, concrete end.

                Agreed. Fortunately, patents claim applications of those laws, and not the laws themselves.

                While this is a very common argument, making it requires one to be (deliberately?) obtuse. A patent on an algorithm[1] running on a general-purpose computer is indistinguishable from a patent on the algorithm itself.

                Says you. A patent on a computer running an algorithm explicitly does not cover performing the algorithm in your head, on a pad of paper, inherently when you do some other function, etc. It is quite d

                • A patent on a computer running an algorithm explicitly does not cover performing the algorithm in your head, on a pad of paper, inherently when you do some other function, etc. It is quite distinguishable.

                  What is the significant difference between evaluating an algorithm in your head, and doing the same thing with computer assistance, which would justify a patent? What is the novel, non-obvious change in the state of the art which such a patent would document? We agree that it's not the algorithm, or the computer; what's left?

                  More specifically, what is it about "evaluate this algorithm with a computer" which would make it patentable, which would not also apply to "evaluate this algorithm with pencil and pape

            • by oxdas (2447598) on Thursday May 24, 2012 @12:19PM (#40101119)

              Wow, where should I begin; false dilemma, straw man, coincidental correlation? False dilemma: Just because there are significant innovations now, does not mean that there would not be more significant innovations without software patents. Straw man: Stifling innovation is not the same as making "it so unprofitable to innovate that no one does it", which is the point you go on to attack. Coincidental correlation: Just because we have patents and then innovation does not prove that patents cause innovation.

              Considering that innovation predates patents (so there cannot be an exclusive causal effect), where is your evidence that patents further innovation?

              (Personally, I believe patents can encourage innovation, but I also believe in the proverb "too much of a good thing, is a bad thing.")

            • And yet the economy continues and Apple is the wealthiest company in the world. People complain that the patent act stifles innovation or makes it so unprofitable to innovate that no one does it, but they have no evidence for this other than gut feelings, and it's contraindicated by the incredible innovations being made right now. If Google is to be believed, we'll have wearable heads-up displays by the end of the year. I mean, come on - that's freakin' science fiction right there.

              Sooo... You admit that the people saying that patents stifle innovation have no evidence for their claims? Then you must also realise WHY we have no evidence, and only gut feelings. How do you like these apples:

              And yet the human race and its society prospered, became the wealthiest species on the planet. People say that the having patents spurns innovation or makes it innovation worth investing in, but they have no evidence for this other than gut feelings, and it's contraindicated by the incredible in

              • Your arguments are RETARDING.

                I'm sorry, I came here for an argument, not abuse.

                As a pro-tip, if you want people to debate you, you have to first not come off as a jackass.

          • by blueg3 (192743)

            The original constitution states "physical inventions".

            What original constitution are you referring to?

            Certainly the U.S. Constitution itself doesn't say "physical inventions": "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

            The 1790 Patent Act says: "any useful art, manufacture, engine, machine, or device, or any improvement thereon not before known or used".

            In 1793, it was amended to say: "any new and useful art, machine, manufacture o

            • by Svartalf (2997)

              The real problem lies in what's getting patented in the software space.

              IF you accept that much of the software space is a process description (I have a few issues with this...), then the bulk of the stuff out there is NOT novel. In many cases, you just call it being implemented in software, on the internet, on a smart phone and it's magically novel enough to merit a patent.

          • Like hell it is new law. The very first US patent issued in 1790 is for an improved process for the manufacture of potash.

            http://en.wikipedia.org/wiki/File:FirstUSpatent.jpg [wikipedia.org]

        • by mark-t (151149)
          Processes aren't necessarily abstract ideas either. Although you're right that patents can apply to things other than physical inventions, they are *NOT* supposed to apply to abstract ideas.
      • by chad_r (79875)

        How is the concept of computing something substantially different from an algorithm that computes something? Patents are supposed to be on physical inventions, not abstract ideas. The formal, "When run on a computer," clause does not mean a math^H^H^H^Hsoftware patent is somehow not a patent on an abstract idea.

        The concept is different from an algorithm when your patent is on the end result and not the process. That's the problem; there is no way to work at a different solution because the patent covers EVERY solution. What patent abusers really want to patent is the idea -- an auction, meeting scheduling, one-click ordering, etc. (on the INTERNET!, to boot) - but those aren't allowed. So they describe what are obvious (to anyone learned in the art of software design) steps to perform their idea. This is where I s

    • by KermodeBear (738243) on Thursday May 24, 2012 @10:04AM (#40099859) Homepage

      Someone already has won [thenextweb.com] a patent [uspto.gov] on the concept of online auctions. All you have to do is take anything people do anyway, add "but do it online!" and you have your new patent. It's pretty awful.

    • by hairyfeet (841228) <.bassbeast1968. .at. .gmail.com.> on Thursday May 24, 2012 @01:11PM (#40101719) Journal

      It is simple, all empires must fall. looking at history i believe there is a pattern there that simply can't be altered, which is first grow and innovate, then the ultra rich use their power to consolidate, then they try to stifle and crush those that could compete, which thanks to the stagnation allows others in other places to rise and the empire falls.

      Look at how the USA got to where it is, by "stealing" the ideas of Europe which had become buried under patents, innovating, and coming with new and fresh ideas and ways of doing things. And now the east is doing the same exact thing to us because our rich have consolidated as much as they can and now are using patents and copyrights to lock up as much for themselves. Again with this comes stagnation until it finally all just falls to crap. Hell we went from a manufacturing powerhouse to "lawsuit land" in less than 50 years.

      It seems we are forever doomed to repeat history, because the rich and powerful simply don't see we ALL stand on the shoulders of giants, that is how new ways of doing are born. No idea is truly just born of the ether, all are influenced by those around them and their betters in their field. You mark my words, what you will see now is ever deeper stagnation as more and more toll booths and roadblocks are put up by those that wish to own a market and would rather crush an enemy than compete while the east will learn from our ideas and make them better.

      Look at the Chinese gov owned loongson chip company, they are mixing hardware x86 emulation into a MIPS chip, that is new and different but of course since that's all patented and copyrighted up the ass here you could never do that on American soil. Now imagine say doing that with ARM, having a specialized emulation chip that would allow some X86 to run while turning itself off when X86 was not required. or hell build some more simplistic X86 chips like Atom and bobcat that could be switched on and off on the fly with a quad ARM and a decent GPU...all on one die and able to communicate VERY fast with each other because they were all part of the same silicon. wouldn't that be awesome? Can't build that here though. in the future i bet you'll hear that more and more, "couldn't build THAT in the USA!" and that is why we will lose to the east. the IP laws here encourage not innovation but stagnation.

  • by perpenso (1613749) on Thursday May 24, 2012 @10:03AM (#40099843)
    Saying "let's think about this a little more" is a step in the right direction.
    • by Nerdfest (867930)

      Eliminating software patents completely then re-instating any provisions that are still required after some thought would more quickly get to a working solution. Taking a small step towards a goal that you are very far from is not much on an improvement, and I think most people (who are not lawyers) know that the goal is much closer to "no software patents" than it is to "you can patent the idea for any software".

  • If Ultramercial has a patent covering forced-viewing advertising, doesn't that cover virtually every DVD made?

  • by avgjoe62 (558860) on Thursday May 24, 2012 @10:12AM (#40099945)

    Isn't the concept of an advertisement running before you see content as old as radio and TV? Didn't I have to watch Timex commercials to see the TV shows they sponsored?

    I think this is just another example of "Same old stuff, but now on the Interwebs!"

    Unless there is an actual physical product. patents are inappropriate. Copyright a presentation of an idea, but patenting a thought is a path to policing thought... and wasting time having the courts arbitrate such.

    • That's horse manure. Patents have always covered non-physical inventions, such as improved chemical processes. In fact the very first US Patent issued was a improved process for the manufacture of potash. Which comes from horse manure.

      What has to be gotten rid of is software and business process patents. That's what is gumming up the works.

      • by avgjoe62 (558860)

        There is a product there -chemicals or potash. You improved a method for creating a physical thing, not expressed an idea on how to put a thought in someone's head. An expression of an idea can be copyrighted - a process that leads to a product can be patented.

    • by psxndc (105904)

      No, that is not what the patent is about.

      It's about offering the content for sale AND offering it for free, but you only get it for free if you watch an ad first.

  • by Rogerborg (306625) on Thursday May 24, 2012 @10:21AM (#40100021) Homepage

    Then we need people to sue the USPTO. I mean big, honking, megabucks style, at a bare minimum to get back their fees for defending against utter abominations like this ludicrous "invention".

    Yes, I know that will come out of the public purse and into the pockets of - FSM help me - lawyers, but what other option is there?

    • by medv4380 (1604309) on Thursday May 24, 2012 @10:36AM (#40100177)
      The USPTO is the victim here. If it doesn't approve a patent it goes into appeal until it does. So they are left with approve a patent, and clog up the legal system and themselves, or reject a patent and clog up the legal system and themselves. The system needs an overhaul.
      • That's easy to solve, at least: Use the number of appeals as an exponent of a base cost to file the appeal. Say the first appeal costs $100. The second appeal would cost $1,000, third would be $10,000, fourth would be $100,000 and so on.

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      I know that will come out of the public purse

      Make the employees responsible along with every manager above them. They should have to pay the costs. Bankrupt them, I don't care.

      We need some new rules stating that a person can't hide behind "I was told to". If it's found to be immoral/unethical, then the person doing it should be held responsible. If said person can point a finger at a superior, then the superior takes more of the fault, but not all of it.

      We need people to start taking responsibility for their actions.

      If you think you're being tol

      • by Svartormr (692822)

        We need some new rules stating that a person can't hide behind "I was told to". If it's found to be immoral/unethical, then the person doing it should be held responsible. If said person can point a finger at a superior, then the superior takes more of the fault, but not all of it.

        I thought the "I was following orders" defence got trashed in the Nuremburg Trials.

  • I never thought I'd agree with WildTangent on something. They have been the bane of freelance PC support techs for a long time and I wish they would just shrivel up and die. But I guess self-interest and politics can make strange bedfellows.

  • by Trepidity (597) <delirium-slashdot@@@hackish...org> on Thursday May 24, 2012 @01:03PM (#40101641)

    This is a fairly common procedural follow-up to a Supreme Court ruling that might have implications for other cases. The situation is roughly like this:

    1. Cases A, B, and C, on related but not identical subjects, file for Supreme Court review of a lower-court decision.

    2. The Supreme Court hears A, and issues a significant new ruling. This ruling might have implications for B and C, but they weren't considered by the Court, because the Court only heard A.

    3. Now the question is, what should the Supreme Court do with B and C, whose appeals are still pending? They could accept the cases for hearing and decide them, too. If they were on exactly the same issue as A, the Court could've consolidated A/B/C and issued one ruling. But in the more common case where they have potential but not 100% overlap, the Supreme Court doesn't usually want to hear all three cases. Instead they pick a representative one, in this case A, and issue a ruling. But if A overlaps with B/C, it could lead to an injustice if they just reject the B/C appeals.

    4. There is basically a new question: in light of the Supreme Court's recent decision in A, are the lower-court decisions in B and C still correct, or should they be modified?

    5. The principle is that the lower courts are supposed to look at such questions first, so the Supreme Court orders that lower courts reconsider cases B and C in light of the recent opinion in A. It's up to the lower courts then to look into whether their original decisions should now be modified. Then once they issue a new ruling, this can be appealed to the Supreme Court again.

  • I wonder why this application was not initially examined in class 725, but was instead searched only in business methods class 705?

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