Software and business method patents take a hit

Software and business method patents take a hit

Summary: Certainly we are not at the end of this, but for the first time in a long time advocates of software patents have been put on the defensive. This is really big.

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Scales of JusticeWhat the courts giveth, other courts can taketh away.

Such may be the case with the famous (or infamous, depending on your point of view) State Street decision which legalized software and business method patents a decade ago

Thursday, in a case called in re: Bilski, the U.S. Court of Appeals for the Federal Circuit seems to have partly overturned State Street, throwing many of these patents into doubt.

This is the best legal news in a decade for open source. And open source was most definitely involved, evidenced by a Red Hat amicus brief in the case.

Pop some champagne! writes Groklaw. " At issue was whether an abstract idea could be eligible for patent protection. The court says no."

The British term seems appropriate here. I am gobsmacked. If you can't patent how you hedge risks in commodities, you can't very well patent simpler business processes like, say, one-click ordering.

The authors at PatentlyO do not think this eliminates well-written software patents, but many of those who commented on the post had their doubts.

Certainly we are not at the end of this, but for the first time in a long time advocates of software patents have been put on the defensive. This is really big.

Topics: Software, CXO, Legal, IT Employment

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22 comments
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  • If you want to see technology take off...

    completely do away with patents and copyrights. Once you free new technology to be improved by all and not just its owner, technology will finally reach its potential.
    bjbrock
    • Totally WRONG!!

      Patents protect the little people and the people who spent tons of money on R&D to develop a product.

      There is nothing wrong with patents and copyright ... as long as they are applied to actual products, not abstract ideas with no real implementation.

      Without patents, I could develop something like a medical scanner (think StarTrek) and some big company could buy (or steal) one, take it apart, reverse engineer it and build their own without paying me a dime.

      The problem is when abstract ideas are allowed to be patented. Or worst ... when a patent is given for a product or idea that is being on the market for years.
      wackoae
      • "Patents protect the little people"

        Only in a perfect world. Unfortunately, the world within which we live is NOT perfect.

        It is refreshing to hear about a judge who is honest and brave enough to enforce the law to protect the little people, instead of: Damn the little people, full speed ahead.

        Patents presently protect the people who have the money to pay the lawyers to twist the law around to run in any direction they choose, and it seems to be ALWAYS in their direction.

        Patent reform is sooooooooorly needed.
        Ole Man
        • Remember why reform has failed

          Patent law does not operate the same in all
          industries. In the pharmaceutical industry, for
          instance, the present law is seen as a positive boon
          by the industry.
          DanaBlankenhorn
          • Lot's of drugs being recalled.

            Not to mention the effectiveness of others (statins come to mind) being called into question. And why no cure for cancer or the common cold? Sure patents are a boon to the industry but they are killing everyone else.
            bjbrock
          • Maybe so.........

            but you didn't include "the pharmaceutical industry" in your title.

            Besides, the same principles apply to ALL patents, using the Golden Rule (he who has the gold (or money)..... rules).
            Ole Man
      • I suspect that's what he meant.

        I have 5 patents, all for in use complete product implementations. They are absolutely needed. It is the idea that are so vague such as "a Windowing method to display a page" or other such earth shattering concepts that are just plain stupid.

        MP3 format is a patentable technology, it is, it has been protected, but "hey, let's compress an audio stream" is not patentable.

        TripleII
        TripleII-21189418044173169409978279405827
        • You shouldn't be able to patent math

          That's all I have to say.
          daengbo
      • I agree

        Software algorithms, in the end, are just math.
        Business method patents don't just patent the how you
        did something, but the something itself -- the concept
        of a mousetrap rather than just a better one.

        Neither helps in the way we want patents to help.
        Software can be protected by copyright, and business
        methods don't deserve that kind of protection.
        DanaBlankenhorn
        • Everything is math

          if your a physist, but thats not the point, its a silly argument that math should not be patented.

          clicking on an icon to purchase an item is not something that should be patantable, thats silly.

          its not a method used on a device or machine, code IS.

          Code or software is PHYSICAL its real, you can measure and weight it, it has mass, just like a steam engine or light globe.

          yes, even just electrons in RAM are "things" physical entities.

          Dont belive me, stick your tongue in a power socket and if you live tell me thats not real or physical !!!

          FOSS what to be able to steal other peoples idea, fair enough, its easier than coming up with their own.

          After all Linux is a CLONE of UNIX, if the structure of UNIX had of been properly patented and protected, Linux would have to come up with their own technologies and techniques.

          As it stands its clear FOSS and Linux are not good at innovation, they think innovation is the ability to be able to steal others ideas and build (ride on the back) of others smart ideas.

          Its a flawed model, and required copying and stealing to work, copying othesr work ensures you are always one or more steps behind everyone else.

          This is time and again proven by the fact that linux is behind everyone else.

          Still cloning an OS that was developed in the 1950's and trying to make it current in 2009 is a joke.

          best of luck foss you really need it, and you need to work out what innovation actually is.
          Aussie_Troll
          • Someone should patent the English language

            And sue you for infringement, regardless of whether you "cloned" it, copied it, read it, or just memorized it.

            Put your brain in gear before releasing the clutch on your tongue, and quit stealing intellectual property while you are trying to upbraid others for doing the same.
            Ole Man
          • THats what it IS !

            www.kernel.org

            Linux is a clone of the operating system Unix, written from scratch by Linus Torvalds with assistance from a loosely-knit team of hackers across the Net. It aims towards POSIX and Single UNIX Specification compliance.

            (clone = steal someone elses idea because you cant come up with something better yourself)
            Aussie_Troll
          • Nonesense!

            2+2 does NOT = 17

            "Written from scratch" does NOT = "clone"

            Why do you persist in demonstrating your ineptitude?
            Ole Man
      • Man has advanced through accumulated...

        knowledge. The wheel only had to be invented once. All patents do is slow down this process. Allowing someone to tie up new knowledge year after year instead of making it readily available for others to expand upon is only slowing man's progression and making a few money. They serve man but not mankind.
        bjbrock
        • Well said

          You couldn't have been more succinct.

          Just that we would all like our "excellent" ideas to be rewarded.
          Arun (sreearun)
  • Good news for technology consultants

    The biggest winners from the Bilski decision might be technology consultants. As a US patent agent specializing in business method patents, one of the strategies I???ve emphasized for financial professionals seeking a patent is for them to spend a little extra money to hire a technology consultant (e.g. actuary, IT professional, etc.) to spec out the technical implementation of their inventions. We then include those specifications in the patent application with the tech consultant as a coinventor.

    The strategy has been very successful and with Bilski taking such a strong stand on the importance of tying a new financial invention to a ???particular machine???, it should be even more so in the future.
    Mark Nowotarski
    • Every change is good for consultants

      That's written by someone who once consulted himself.
      DanaBlankenhorn
      • every change is good for consultants

        true that
        Mark Nowotarski
        • Ask not what you can do for technology

          But what technology can do for you......

          Or is that the other way around?

          Either way nothing will get done unless you do it, or have plenty of dough for patent holders, lawyers, greasing palms, licenses, permits, insurance, security, fees, and labor. Oh!, and consultants to tell you how to do it.
          Ole Man
  • Should repeal all ridiculous patents

    Such as if patents office write a program that retrieve data from database, dataset, and apply linear regression to predict next year's patent application numbers or tariff, the patent office is infringing the patent. I am sure the patent office is infringing this patent! Stop ridiculous patenting generic methods!
    no nonsense