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Roy Schestowitz at TechRights reports
Further reinforcing the current trend, software patents' demise in the United States has just been ascertained again.
[...] The latest decision[PDF] [...] from the Court of Appeals for the Federal Circuit (CAFC) is eye-catching, but either it hasn't caught the eye of legal firms or they're just trying to ignore it, so we'll be covering it more than we usually cover such decisions.
[...] The ruling is very important because it serves to demonstrate a loss for patent trolls and for software patents (or patent trolls that use software patents, which is typical). The decision criticises patent trolling as well.
[...] So far, based on our research, only one press article has been published about this decision. It's titled "Here's Why Software Patents Are in Peril After the Intellectual Ventures Ruling".
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.
The ruling, issued on Friday [September 30] by the U.S. Court of Appeals for the Federal Circuit, found that three patents asserted against anti-virus companies Symantec [...] and Trend Micro were invalid because they did not describe a patentable invention. The patents were owned by Intellectual Ventures, which has a notorious reputation in the tech world as a so-called "patent troll", a phrase that describes firms that buy up old patents and wage lawsuits in order to demand payments from productive companies.
Software Patents as a Threat to Free Speech
Friday's ruling is also significant because Judge [Haldane Robert] Mayer eschews the insider baseball language that typically dominates patent law, and addresses patents in the broader context of technology and government monopolies.
Pointing out that intellectual property monopolies can limit free speech, Mayer notes that copyright law has built-in First Amendment protections such as "fair use" and that patent law must include similar safeguards. He suggests that the safeguard comes in the form of a part of the Patent Act, known as "Section 101", which says some things--including abstract ideas--simply can't be patented in the first place.
(Score: 3, Interesting) by DannyB on Tuesday October 04 2016, @07:00PM
I agree that software is technology.
But software does not deserve patent protection. Copyright protection is fitting. Someone should not be able to rip off your work.
But you should not be able to exclude someone from doing their own work, their own implementation.
Most new software gets the reaction, it is obvious how to implement that. It just takes the roll up your sleeves work to do it. Nothing magic.
It is rare that new software contains a secret sauce that is non obvious to most people. Which gets the reaction "how did they do that?"
I think it is sufficiently rare that software should not be patentable at all -- in order to avoid all the common abuses -- just to protect the exceedingly rare "how did they do that?" software. Keep it a trade secret and copyright it. Use a EULA.
But here's the other thing. It is simply a fact of life that sooner or later someone is going to re-implement it. Their own implementation effort. So if you've got something truly new and great, use your market lead advantage.
Also, if you could get a patent and licensed it at a reasonable price, everyone would just pay and be done with it. Or if you keep it to yourself and sell your product at a reasonable price (especially software only product), then everyone will just buy it. But the problem is that greed kicks in and seems to lead to this "I must have it all!" mentality.
Example: Apple. The Mac was made only by Apple. It was vastly ahead of competitors. It had, at one point, a commanding 25 % of the market -- and that over pathetic MS-DOS machines, not windows yet. The best thing Apple could have done would be to have licensed the OS. But that would mean some PC makers might make PCs that don't conform to Apple's sense of style and taste. Other PC makers aren't just going to go home and cry and not make PCs anymore. Once some other software, even inferior, comes along, they are going to use that. And Apple can't out compete everyone else put together. Sooner or later the innovation will gradually move to the other platform.
Next, the iPhone. Again, ahead of the game. They should have licensed it. But that would mean some phone makers would not conform to Apple's sense of style and taste. Other phone makers are not just going to go home and cry and stop making phones. Especially since some of them had been in the business long before Apple. When some alternative OS comes along, they're going to use that. And Apple can't out compete everyone else put together. Sooner or later the innovation will gradually move to the other platform.
Software patents are a bad idea. This is how we got to slide to unlock (yes really) and round rectangles (yes really) being worth over a billion dollars. Back in the classic Mac days, with Apple's regular tech notes, there was a tech note describing the coming software patents and the disaster they would be. You wouldn't be able to write software without having a lawyer. And every prediction in that tech note came true.
Hypothetical engineering problem: (prior to introduction of iPhone) You're handed this problem. This phone has one button. But you don't want a push of the button in your pocket to activate it. The only other input device is the screen. So how do you prevent accidental device activation in someone's pocket or purse? Do you really think some sort of slide gesture is not obvious?
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(Score: 2) by SecurityGuy on Tuesday October 04 2016, @07:15PM
I read a probably apocryphal example once. Guy's in a trial over whether his patent is obvious or not. As an example, he hands out eggs to the jury and tells them to balance them on one end without using any props. They all struggle for a while, and finally give up. Guy picks up an egg, smacks it on it's end into the table, and balances the apparently hard-boiled egg on it's now-crushed end. The test should not be "Is it obvious now that someone shows you how to do it?" Is it obvious BEFORE anyone shows you how to do it. Light bulbs are a great example. Lots of people were trying to create light bulbs. To us, it's obvious, but only because we've seen the method that works.
Two words: Reverse engineering. That's exactly the thing patents protect against in the real world. I can just take your physical product apart and see how it works. There's nothing to keep me from doing so...except patents.
Nope. I've already said a number of times I think most software patents fail the non-obvious test.
(Score: 2) by stormreaver on Tuesday October 04 2016, @08:17PM
Guy picks up an egg, smacks it on it's end into the table, and balances the apparently hard-boiled egg on it's now-crushed end.
At that point, the judge/jury should have invalidated the patent for failure to disclose pertinent conditions: the egg had to be hard boiled. Without that little, crucial, piece of information, the demonstration would not have worked. But this guy would have then sued anyone who crushed a hard boiled egg to balance it on its end.
This is the kind of stuff that supports the abolition of software patents.
(Score: 2) by FatPhil on Wednesday October 05 2016, @08:28AM
I have some topological background, and will simply lay it on the table carefully, and when it comes to rest define the point of contact as the "end". If he's going to say "no, only that point there is the end" then I'm going to say "your smashed end isn't just that point there".
Hucksters shouldn't be given patents.
Great minds discuss ideas; average minds discuss events; small minds discuss people; the smallest discuss themselves
(Score: 2) by DannyB on Tuesday October 04 2016, @08:27PM
In the Reverse Engineering situation, this would be when the software does something which gets the reaction "how did they do that?". Rather than, I could build that same thing. Just need to roll up my sleeves and do the work. In other words, implementation is obvious.
The Reverse Engineering situation is what I argue is the rare case. Not worth giving that software patent protection. Not when balanced against the vast majority of cases (like today) where we have ridiculous obvious patents being granted and lawsuits for HUNDREDS OF MILLIONS or even over a BILLION dollars.
Too bad about that rare case. But letting it have a patent means that the entire rest of everyone else, every company, is hindered by in a morass of patent litigation and lawyers. Innovation is slowed down, just so that an occasional software item could get the patent that it might deserve.
I just don't see the patent system ever being truly fixed. And even in some fairytail world where it could be, it wouldn't stay fixed. It would quickly slide back to what we have now, or worse.
Sometimes there is a rare piece of software that deserves a patent. (Although I don't even know of a good example.) But the cost to everyone else for that to happen is just too high.
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(Score: 2) by SecurityGuy on Tuesday October 04 2016, @08:42PM
I can't really argue with that. Should software be patentable? IMO, yes. Is the current system, specifically that the USPTO grants patents to things they shouldn't, relying on the courts to sort it out, so unworkably broken that the cost of permitting software patents exceeds the benefit of them? Yeah, I'll grant that's possible. I certainly don't have a lot of hope of getting the USPTO to stop issuing bad patents.
(Score: 2) by DannyB on Tuesday October 04 2016, @08:35PM
What is a good software equivalent of that?
Like your light bulb, the vast majority of software, once you see a demonstration, it is obvious how to implement it yourself.
But it would have been as easy to implement yourself.
I would argue the software didn't take the kind of sweat and research that the light bulb took. I think the idea of incandescent bulbs were even known. It was just how to make it work -- which took a lot of experimentation. And inventions that require that kind of experimentation tend to be hardware. ("How to build a better flat panel display.", "how do we make these flip flops toggle faster?")
Unless we're talking about something that is a breakthrough (your manager says: "I need a working AI system with speech recognition and emotions."). Usually the case is your manager says "I need X". And it is just a matter of building X.
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(Score: 1) by terryk30 on Wednesday October 05 2016, @07:47AM
To further your contrasting of hardware invention as often requiring experimentation, the world of hardware throws up unexpected constraints from quirky materials and snags in working and tooling, unlike the world of software where the mere specification or outline of the problem essentially implies its own solution (to those skilled in the art) because the medium of realization is idealized general-purpose computing machinery.
IIUC linking the latter to math and Turing machines has been one basis for banning software patents as a class (rather than just banning them based on their generally lower degree of nonobviousness), but in persuading non-CS types of this (or ultimately the public) I've wondered if there also hasn't been enough explicit contrasting with the former - that is, with the constraints of the world of hardware. I.e.: the lack of physical constraints make software inventions intrinsically "less nonobvious" than physical inventions.
(Score: 2) by FatPhil on Wednesday October 05 2016, @08:20AM
No, not at all.
Round rectangles are a "design patent". They're at least as bogus as software patents, because at least software patents cover how a thing functions, but design patents only cover how it looks. Something which was already protected by the concept of trade dress (related to trademark law) and even copyright (if there was an actual artistic design being pretected).
Great minds discuss ideas; average minds discuss events; small minds discuss people; the smallest discuss themselves