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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: 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.
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(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.