Linked by Thom Holwerda on Thu 19th Jun 2014 23:59 UTC
Legal

The US Supreme Court has made it ever so slightly harder to patent software.

The patent claimed a method of hedging against counter-party risk, which is a fancy word for the risk that you make a deal with someone and later he doesn't uphold his end of the bargain. The Supreme Court unanimously held that you can't patent an abstract concept like this merely by stating that the hedging should be done on a computer. This kind of abstract patent is depressingly common in the software industry, and the CLS ruling will cause lower courts to take a harder look at them.

It's a small victory, but hey, I take whatever I can. Sadly, the SCOTUS also states that "many computer-implemented claims" are still eligible for patent protection, without actually explaining which claims. So, while appending "on a computer" to an obvious abstract concept does not make it patentable, the actual concept of patenting software is still very much allowed.

Even if the SCOTUS had completely abolished software patents, however, we still would have to deal with them for more than a decade - existing software patents would not magically vanish, and would still require lengthy and expensive court cases to be invalidated. Something bullies like Microsoft and Apple can afford easily, while many others cannot.

Sorry for not putting a smile on your face, but reality is reality. Sadly.

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Well ...
by WorknMan on Fri 20th Jun 2014 04:29 UTC
WorknMan
Member since:
2005-11-13

I'm not sure that software patents should be done away with ENTIRELY, but just the overly broad ones. In other words, if you can sit down and accidentally violate somebody else's patent, it's probably too broad.

But if somebody, for example, comes up with a compression algorithm that allows streaming of 4k video on a 3mbps connection, I do think they should be able to patent that. Not necessarily the idea, but the specific implementation. In other words, if I spend hundreds of hours, and thousands of dollars to develop such a thing, and then you come along, reverse engineer the protocol, and give it away for free, that ain't right. I wanna get paid, dammit ;)

I know there are some people who feel like it is their god given right to have the fruits of somebody else's hard labor for nothing, but I'm not one of those people. On the other hand, when you've got companies that patent the concept of '1 click checkout', something is definitely wrong.

Edited 2014-06-20 04:30 UTC

Reply Score: 2

RE: Well ...
by Fergy on Fri 20th Jun 2014 07:08 UTC in reply to "Well ..."
Fergy Member since:
2006-04-10

But if somebody, for example, comes up with a compression algorithm that allows streaming of 4k video on a 3mbps connection, I do think they should be able to patent that. Not necessarily the idea, but the specific implementation.

So if somebody would use code that looks 99% like his code you would say that he has stolen it from the first guy? Copyright.

In other words, if I spend hundreds of hours, and thousands of dollars to develop such a thing, and then you come along, reverse engineer the protocol, and give it away for free, that ain't right. I wanna get paid, dammit ;)

How can you see the difference between reverse engineering and just coming up with the same idea? I always thought that reverse engineering is legal because of this problem. And how did the new guy write the same 'program' as you did but _you_ want to get paid _and_ you want to get paid for his work?

Edited 2014-06-20 07:10 UTC

Reply Score: 5

RE[2]: Well ...
by WorknMan on Fri 20th Jun 2014 08:35 UTC in reply to "RE: Well ..."
WorknMan Member since:
2005-11-13

How can you see the difference between reverse engineering and just coming up with the same idea?


You mean, how can I tell whether the product you came out with 6 months later that works the exact same way as mine is either reverse engineered or just a different implementation of the same idea? I guess sometimes you can't tell. Other times, it would be quite obvious.

It's like proprietary devs who use open source code in violation of the license; sometimes they get caught red-handed doing so, which I'm guessing happens because of some quirk in the way the software works:

http://en.wikipedia.org/wiki/Sigma_Designs#Xvid_controversy

Obviously, some cases will be harder to prove than others. For example, if it is a particular file format that's patented, and you release a piece of software that can open and save to that exact format, then I think we have a pretty open and shut case.

Edited 2014-06-20 08:39 UTC

Reply Score: 1

RE[3]: Well ...
by Alfman on Fri 20th Jun 2014 14:42 UTC in reply to "RE[2]: Well ..."
Alfman Member since:
2011-01-28

WorknMan,

Obviously, some cases will be harder to prove than others. For example, if it is a particular file format that's patented, and you release a piece of software that can open and save to that exact format, then I think we have a pretty open and shut case.


I assume you mean ruling in favor of patenting the file format. That is one of the worst kinds of uses of patents in my opinion. Consider all these operating systems which re-implement microsoft's VFAT patents, they're not doing it because engineering alternatives is too difficult, they're doing it because most external consumer media uses microsoft's format as a defacto standard. The same applies to file formats, which one should always be legally free to re-implement for interoperability sake.

I know there are some people who feel like it is their god given right to have the fruits of somebody else's hard labor for nothing, but I'm not one of those people.


Well, this actually happens as a result of software patents too. With patents, one person is granted the right to their work, but everyone else who implements a similar construct is denied the right to theirs. Generally the victim in software patent lawsuits is the party who, in the course of solving their own problems, implemented code that happens to infringe that of a patent holder. Given the sheer number of software developers and software patents, it should not be a surprise that this is the norm rather than the exception. Thus, it's often the "infringing" party who is being denied the fruits of their labor and the patent holder who's collecting royalties for someone else's hard work.

It's good to protect software with copyrights because that doesn't deprave other developers of the right to create their own implementations through their own efforts.

Edited 2014-06-20 14:51 UTC

Reply Score: 6

RE[4]: Well ...
by WorknMan on Fri 20th Jun 2014 17:07 UTC in reply to "RE[3]: Well ..."
WorknMan Member since:
2005-11-13

The same applies to file formats, which one should always be legally free to re-implement for interoperability sake.


Why? If I go through the trouble of creating a format that is used by millions of people, and you come along and piggyback off my hard work, then I want a small cut of whatever you're making (royalties). If you're doing it for non-commercial purposes, I might let you use it for $0. Otherwise? Pay up, bitch... or build your own damn format. There ain't no free lunch ;)

Edited 2014-06-20 17:10 UTC

Reply Score: 2

RE[5]: Well ...
by JLF65 on Fri 20th Jun 2014 18:27 UTC in reply to "RE[4]: Well ..."
JLF65 Member since:
2005-07-06

If you don't understand why standards are important, you have no right to call yourself an engineer/programmer. Go back to school and reenter the conversation when you've learned something, you ignorant schmuck! ;)

Reply Score: 4

RE[5]: Well ...
by Alfman on Fri 20th Jun 2014 18:45 UTC in reply to "RE[4]: Well ..."
Alfman Member since:
2011-01-28

WorknMan,

Why? If I go through the trouble of creating a format that is used by millions of people, and you come along and piggyback off my hard work, then I want a small cut of whatever you're making (royalties). If you're doing it for non-commercial purposes, I might let you use it for $0. Otherwise? Pay up, bitch... or build your own damn format. There ain't no free lunch ;)



This is non-sequitur, it's not piggybacking of your hard work at all. Third party developers still need to dedicate their own hard work to achieve compatibility with popular formats. All developers should be free to access whatever file formats they want to using their own code implementations to read/write the format. It doesn't make logical sense to deny us this right.

You may object to third parties piggybacking off of your popularity, but nobody should feel entitled to a legal monopoly on popularity. And frankly if a defacto standard is going to exist, you should be so lucky that it's yours and not someone else's ;)


You did not respond to this paragraph, so did you agree that the patent system can deprave some developers of their own hard work?

Thus, it's often the "infringing" party who is being denied the fruits of their labor and the patent holder who's collecting royalties for someone else's hard work.


Edited 2014-06-20 18:52 UTC

Reply Score: 3

RE[6]: Well ...
by WorknMan on Fri 20th Jun 2014 19:40 UTC in reply to "RE[5]: Well ..."
WorknMan Member since:
2005-11-13

All developers should be free to access whatever file formats they want to using their own code implementations to read/write the format.


Okay, fine. Then I should be free to use whatever GPL'd code I want in my proprietary projects, and never give the source code back. I mean, if you as a developer are going to make up arbitrary rules about what you're allowed to do with other people's file formats, protocols, codecs, etc, then two can play this game ;)

You did not respond to this paragraph, so did you agree that the patent system can deprave some developers of their own hard work?


With the software patent system being so out of whack as it is now, sure. That's why I'm talking about reform here.

Reply Score: 2

RE[7]: Well ...
by Alfman on Fri 20th Jun 2014 19:58 UTC in reply to "RE[6]: Well ..."
Alfman Member since:
2011-01-28

WorknMan,

Okay, fine. Then I should be free to use whatever GPL'd code I want in my proprietary projects, and never give the source code back. I mean, if you as a developer are going to make up arbitrary rules about what you're allowed to do with other people's file formats, protocols, codecs, etc, then two can play this game ;)



Let's not conflate copyright and patents, they're very different and I can agree with one while disagreeing with the other. To keep the example "apples to apples", then you as a proprietary developer are free to re-implement the GPL project functionality in your own software, but you'd have to write your own source code.


With the software patent system being so out of whack as it is now, sure. That's why I'm talking about reform here.


But mutual exclusivity is one of the fundamental underpinnings of a patent system, is it not? How would you reconcile one developer's right to independently develop something with another developer's right to own a monopoly on it? I don't believe this is fixable, but I'm curious to hear what you have to say.

Edited 2014-06-20 20:03 UTC

Reply Score: 3

RE: Well ...
by CaptainN- on Fri 20th Jun 2014 15:08 UTC in reply to "Well ..."
CaptainN- Member since:
2005-07-07

Software is written, so copyright applies. People who write software should be called software writers, instead of engineers - that alone would clear up a lot of this mess. The dynamics of writing software are much more like writing a book than building a bridge.

Also, patents in general suck, even for physical things. It was always just a gambit - an trick meant to promote the power of corporate owners (economic royalists), and dressed up in some inventor protection propaganda. Patents were never meant to protect individual inventor's rights, and they never have.

Reply Score: 1

RE[2]: Well ...
by Alfman on Fri 20th Jun 2014 16:31 UTC in reply to "RE: Well ..."
Alfman Member since:
2011-01-28

CaptainN-,

There may be some industries where patents work. Though I'm not in the pharmaceutical business (and therefor I could be way off), I understand conceptually how lab costs are prohibitively expensive and without patents the risk is high that knockoffs come along and sell an identical product leaving the inventors with no way to recoup their investment. I don't know to what extent this applies to other various industries, but with software it's outrageous that companies spend thousands and millions of dollars for patent protection against what amounts to a week's worth of work, if even that. It's absolutely ludicrous.

The patent system would be far less harmful if patent holders were only entitled to enough compensation to recoup reasonable development costs and that's it. But, honestly, most software patent holders never cared about recouping their development expenses, their intention was always to use the patent system as a legal weapon to sue competitors over in court.

Today's patent system is a huge burden on the software industry. While some people feel that the patent system can be fixed for the software industry, I don't think they were ever necessary to begin with and I'm curious if anyone can point to an instance where it's done more good than harm? For all the overhead that it necessarily imposes, what have really gotten out of it?

Edited 2014-06-20 16:46 UTC

Reply Score: 4

RE[3]: Well ...
by CaptainN- on Fri 20th Jun 2014 18:16 UTC in reply to "RE[2]: Well ..."
CaptainN- Member since:
2005-07-07

In medicine, the kinds of life saving research that lead to improved living standards are done at universities (even though big pharma can claim they owned it thanks to the deals universities make with them for funding). Bit pharma mostly only does research into fat pills and sex pills - things they can sell at a profit.

Patents are just a way for large companies to get a 30 year monopoly on a thing. Most of the things that improve lives don't actually need patent protection, because the people who invent these things didn't do it to earn a patent.

Reply Score: 2

RE: Well ...
by shmerl on Fri 20th Jun 2014 18:50 UTC in reply to "Well ..."
shmerl Member since:
2010-06-08

I'm not sure that software patents should be done away with ENTIRELY

Why not? There is not a single case when they served any useful purpose for technology (except when used as defense against other software patents, but that in turn is only possible because they exist in the first place and are easily abused). They are like nuclear weapons. I.e. the world would be better without them altogether.

Edited 2014-06-20 18:51 UTC

Reply Score: 2

RE: Well ...
by shmerl on Fri 20th Jun 2014 18:53 UTC in reply to "Well ..."
shmerl Member since:
2010-06-08

Not necessarily the idea, but the specific implementation. In other words, if I spend hundreds of hours, and thousands of dollars to develop such a thing, and then you come along, reverse engineer the protocol, and give it away for free, that ain't right. I wanna get paid, dammit

No you shouldn't get paid, if someone develops the same thing independently without relying on your research. Current patent system doesn't allow though. In practice, patents in software are not needed for R&D. Practice proves this left and right.

Edited 2014-06-20 18:54 UTC

Reply Score: 2

It's better than you think
by ciaran on Fri 20th Jun 2014 16:40 UTC
ciaran
Member since:
2006-11-27

> "many computer-implemented claims" are
> still eligible for patent protection

That doesn't necessarily mean software patents.

That could be washing machines with an improved spin cycle which is controlled by a microchip (a "computer"). Or it could mean inventions like the rubber-curing machine of the Diehr ruling in 1981.

Patents on those things are not a problem for software developers.

Here's my analysis of the ruling:

http://en.swpat.org/wiki/Alice_v._CLS_Bank_ruling_by_US_Supreme_Cou...

This is a big victory: some software patents are now invalid, and this ruling doesn't uphold even a single software patent. (It left some questions for future rulings, but it never said they're patentable.)

Reply Score: 3

RE: It's better than you think
by TemporalBeing on Fri 20th Jun 2014 17:09 UTC in reply to "It's better than you think"
TemporalBeing Member since:
2007-08-22

> "many computer-implemented claims" are
> still eligible for patent protection

That doesn't necessarily mean software patents.

That could be washing machines with an improved spin cycle which is controlled by a microchip (a "computer"). Or it could mean inventions like the rubber-curing machine of the Diehr ruling in 1981.


To be fair, they specifically talked about the Deihr ruling and stated that it was not the software that allowed the patent but the thermonuclear temperature sensor connected to the computer, allowing for adjustments and precise timing which combined revolutionized the process. The software was called out as being ineligible on its own even in that case in this just filed opinion.


Patents on those things are not a problem for software developers.

Here's my analysis of the ruling:

http://en.swpat.org/wiki/Alice_v._CLS_Bank_ruling_by_US_Supreme_Cou...

This is a big victory: some software patents are now invalid, and this ruling doesn't uphold even a single software patent. (It left some questions for future rulings, but it never said they're patentable.)


Agreed.

Reply Score: 4

RE[2]: It's better than you think
by ciaran on Fri 20th Jun 2014 18:33 UTC in reply to "RE: It's better than you think"
ciaran Member since:
2006-11-27

That's why I think Diehr's a good example.

The problem is that "computer-implemented" is doesn't say what the relationship is between the computer and the invention. Is the invention realised "by" the computer or "on/in" the computer?

Thomas could easily see Diehr's machine as being a computer-implemented invention. The invention was rubber-curing, and the inventors implementation used a computer.

We had this already in the EU, with the software patents directive that was finally thrown out in 2005. The pro-patent camped managed to get it called the "computer-implemented inventions" directive, and this was a constant source of problems.

Our suggestions were to replace that term with "computer-controlled inventions" or "computer-assisted inventions" (both of which would include Diehr). "Inventions realised on a computer" would exclude Diehr.

None of the pro-patent statements in Thomas's opinion clearly indicate that he thinks any type of software patent is necessarily valid.

Reply Score: 3

TemporalBeing Member since:
2007-08-22

Quite agree.

They did write a lot, and reading it it almost seemed to be very redundant. But they seemed to keep coming back to that computer implementations did not necessarily mean there was anything worth patenting - it had to also improve something, at the very least the computer.

What I am curious about is whether they would say that a program that adds a new feature (e.g a type of file transfer) to a computer system would qualify as an improvement to the general computer sufficiently to warrant a patent. If so, it's not much of a victory. If not, then we're certainly on the right track.

I think they'd lean to not as that would come down to the art of the patent writer to be able to word it correctly to sound patentable, which they also call out as something they frown upon.

Reply Score: 4

jimmy59
Member since:
2014-06-21

Well.. what needs to happen now is retribution. I believe any patent suits using overbroad method patents that clearly could have been invalidated, yet used to extort, should in fact be investigated by the FTC under Anti-Trust and Anti-Competitive laws. Furthermore, I believe treble damages should be awarded to patent troll defendants for any legal fees and lost revenue due to the trolling. Something needs to be done to take it back. If you've been sued with a Patent lawsuit and found it anti-competitive in nature, you should contact the FTC immediately. Get the ball rolling.

Also, the patent attorneys that brought forth the patent troll litigation should indeed be required x amount of community hours put forth towards invalidating these bogus patents.

Next, let's take a look at unfavorable settlements forced upon by patent lawsuits. I've seen ones that completely muzzle the defendant, pushes them into non-compete which forces them out of their trade, and the final insult to revoking all of your rights is usually a "No-Challenge" clause in the agreements, stating that the defendant (including all parties known or unknown related or working for) cannot challenge the patent asserted in the USPTO. By the way, the Second Circuit Court upholds that No-Challenge Clauses are unenforceable and void. I believe a swath of these settlement agreements were signed "UNDER DURESS" and have enough proof any attorney can have them void.

Finally, I hope this prompts Congress to say "WTF?" and step in and finally get some of the other topics on patent reform enacted into law.

Reply Score: 3