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Supreme Court Orders Do-Over On Key Software Patents 167

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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  • 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".

  • That is a new law.

    "New" as in from 1790. Specifically, the 1790 Patent Act [] - 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." []

    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

  • by betterunixthanunix ( 980855 ) on Thursday May 24, 2012 @01:07PM (#40100991)

    There aren't any "pure mathematics" patents.

    What about these: []

    Or these: []

    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.

  • by betterunixthanunix ( 980855 ) on Thursday May 24, 2012 @01:46PM (#40101419)
    OK, we can go through these patents, if you want: []

    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. []

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

    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.

  • by Trepidity ( 597 ) <delirium-slashdot.hackish@org> on Thursday May 24, 2012 @02:03PM (#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.

  • by UnknownSoldier ( 67820 ) on Thursday May 24, 2012 @04:00PM (#40103017)

    Spot on for the wired telephone.

    You missed Canadian Reginald Aubrey Fessende for the wireless telephone ;-)

            Who first used the word and the method of continuous waves?
            Who was first to transmit voice over radio?
            Who devised a detector for continuous waves?
            Who first used the method, and the word heterodyne?
            Who was first to send two-way wireless telegraphy messages across the Atlantic ocean?
            Who was first to send wireless telephony (voice) across the Atlantic Ocean?
            Who made the world's first wireless broadcast (voice and music)?

    Fascinating read! []

Executive ability is deciding quickly and getting somebody else to do the work. -- John G. Pollard