Linked by Thom Holwerda on Fri 7th Oct 2016 23:28 UTC, submitted by galvanash

The end may be in sight for software patents - which have long been highly controversial in the tech industry - in the wake of a remarkable appeals court ruling that described such patents as a "deadweight loss on the nation's economy" and a threat to the First Amendment's free speech protections.

There's so much good stuff in the actual ruling (I urge you to read the whole damn thing!) that I don't even know where to start, middle, and end. I think this is the best part?

It is well past time to return software to its historical dwelling place in the domain of copyright. See Benson, 409 U.S. at 72 (citing a report from a presidential commission explaining that copyright is available to protect software and that software development had "undergone substantial and satisfactory growth" even without patent protection (citations and internal quotation marks omitted)); Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1380 (Fed. Cir. 2014) (noting that "several commentators" have "argue[d] that the complex and expensive patent system is a terrible fit for the fast-moving software industry" and that copyright provides "[a] perfectly adequate means of protecting and rewarding software developers for their ingenuity" (citations and internal quotation marks omitted)); Peter S. Menell, An Analysis of the Scope of Copyright Protection for Application Programs, 41 Stan. L. Rev. 1045, 1076 (1989) (explaining that patents were historically "not seen as a viable option for the protection of most application program code" and that many software programs "simply do not manifest sufficient novelty or nonobviousness to merit patent protection").

Reading this gives me tinglies in my tummy.

I have no idea about the level of importance of this decision, how many different appeals could wreck it, or even if it is very relevant to begin with - but my god is this an absolutely amazing read that echoes everything I and many, many other people have been saying about software patents for so many years now.

Software need not have more protection than copyright on the written code itself. Anything beyond that is destructive.

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by Sauron on Sat 8th Oct 2016 02:55 UTC
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About time too. At last, someone in the legal department that has some sense. Lets just hope it stands!

Reply Score: 5

My Favorite Part
by galvanash on Sat 8th Oct 2016 03:05 UTC
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"The Constitution protects the right to receive information and ideas. . . . This right to receive information and ideas, regardless of their social worth, is fundamental to our free society." Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citations omitted). Patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse.

A Federal Circuit Judge with 30 years on the bench (and who was formerly a pro-patent chief justice in the 90s during the rise of software patents) finally comes out and embraces the argument most software developers have been making all along.


Edited 2016-10-08 03:06 UTC

Reply Score: 4

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This was a concurring opinion, not a majority opinion. From Wikipedia:

In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for his or her decision.

As a practical matter, concurring opinions are slightly less useful to lawyers than majority opinions. Having failed to receive a majority of the court's votes, concurring opinions are not binding precedent and cannot be cited as such.

In short it won't all by itself set a legally binding precedent. But it is incredibly important as it might persuade other judges to look at the issue in a different light.

Reply Score: 7

Comment by kurkosdr
by kurkosdr on Sat 8th Oct 2016 09:29 UTC
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Yeah, I wish them good luck. But too bad it ain't gonna happen.

An industry has been created around software parents, with NPEs buying software patents and then trying to convince venture capitalists that their newly acquired software parents will totally be able to milk 300 millions from Apple/Google/whatever in court or from settlements and those VCs should invest now or miss the train. Those NPEs employ lawyers who are experts in choosing software parents not for their merit but how well they can stand in court.

Anyone going against software parents is going against some of the most powerful interests in the US, lawyers and VCs.

Reply Score: 6

RE: Comment by kurkosdr
by kwan_e on Sat 8th Oct 2016 12:02 UTC in reply to "Comment by kurkosdr"
kwan_e Member since:

Anyone going against software parents is going against some of the most powerful interests in the US, lawyers and VCs.

That Farscape episode where most of the people on a planet were lawyers...

Reply Score: 3

RE[2]: Comment by kurkosdr
by JLF65 on Sat 8th Oct 2016 14:57 UTC in reply to "RE: Comment by kurkosdr"
JLF65 Member since:

It's more like that episode of Sliders where you had to fill out a mound of legal forms to buy a hamburger at a fast food joint. ;)

Reply Score: 4

RE[3]: Comment by kurkosdr
by shotsman on Mon 10th Oct 2016 06:08 UTC in reply to "RE[2]: Comment by kurkosdr"
shotsman Member since:

IMHO, you should actually have to do that for real. ;) ;)

Reply Score: 2

RE[2]: Comment by kurkosdr
by dionicio on Mon 10th Oct 2016 16:24 UTC in reply to "RE: Comment by kurkosdr"
dionicio Member since:

I know of a real city like that ;)

Reply Score: 2

Copyright Is More Appropriate, But...
by Feneric on Sat 8th Oct 2016 15:40 UTC
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Don't forget the Disney affect on copyright. It may turn out that the copyright will be more restrictive in certain areas than the present system. I'm not saying it will be, just that it's something that ought to be thought through a little.

Reply Score: 1

bnolsen Member since:

copyright already applies well enough. that part isn't going to change. copyright was the whole issue with the oracle vs google thing over android's use of java.

Reply Score: 2