legalpad.blogs.fortune.cnn.com — Attempting to ride a wave of corporate and judicial disenchantment with aspects of the current patent system, a new project was unveiled Thursday designed to, as its name bluntly indicates, End Software Patents.
Feb 28, 2008 View in Crawl 4
cmisterFeb 28, 2008Submitter
More detail from Fortune:<a class="user" href="http://legalpad.blogs.fortune.cnn.com/2008/02/28/e">http://legalpad.blogs.fortune.cnn.com/2008/02/28/e</a> ...Still, Klemens expects his group to find much common ground with the more moderate IT industry reformers, as well as with those whose main bugaboo is business-methods patents. “Pretty much every argument we make, top to bottom, applies to business methods as well,” Klemens says. In addition, the group’s supporters hope that the major tech players are coming to conclude that the vast number of software patents they have accumulated is part of the problem. “There are so many rights in so many hands,” says Moglen, of the Software Freedom Law Center, “everybody is at risk all the time.”In any case, even if End Software Patents’ goals are extreme, they are not far-fetched. The U.S. Supreme Court has never ruled on the patentability of software, and at one time the predominant assumption among lawyers was that it could not be, because it amounted to nothing more than mathematical algorithms, which, in turn, were considered nonpatentable “laws of nature.”That assumption was gradually turned upside down through a series of decisions rendered in the 1990s by the U.S. Court of Appeals for the Federal Circuit, a specialized court that had been set up to handle patent appeals, among other things, in 1984. Those decisions suggested that even if pure software itself was not patentable, software when loaded onto a general-purpose computer created, in effect, a new physical device that could then be patented. Some of the same rulings that opened the door to software patents effectively opened the door to “business method” patents, too.In the past two years, however, it has become clear to all that the U.S. Supreme Court is extremely unhappy with the patent environment that the Federal Circuit has fostered in the two decades since its creation. In eBay v. MercExchange (May 2006), the Court unanimously junked one longstanding rule of that court, and last term, in KSR International v. Teleflex (April 2007), it unceremoniously dispatched another. (In eBay, the Supreme Court ruled that judges need not always enjoin defendants from infringing, even after a patent-holder has proven its case, and in KSR it made it much easier for judges and patent examiners to invalidate patents due to obviousness.)For Klemens, however, the most encouraging ruling for his agenda was one that, technically, wasn’t. In LabCorp v. Metabolite Laboratories (June 2006), the Supreme Court had been asked to review the Federal Circuit’s precedents on patentability – the issue that ultimately also determines whether software patents and business-method patents are permissible. After hearing oral argument, the Court punted, deciding that, for technical reasons, it never should have heard the case in the first place. But three justices dissented, writing that they would have overturned the Federal Circuit and invalidated the patent in question, because it clearly amounted to an attempt to patent a nonpatentable “natural phenomenon,” though the phenomenon had been recast in the patent application as a patentable “process.” For that opinion, see here. Klemens contends that software patents amount to much the same thing.Though only three justices signed the dissent, it does appear that it, in combination with the Supreme Court’s back-of-the-hand treatment of other key Federal Circuit precedents, has led the patent appeals court to engage in some soul-searching. Just two weeks ago, it announced, without having been spurred to do so by the parties, that it would rehear an important patentability case, In re Bilski. (See generally here.) It even asked the parties to brief whether a key ruling it rendered in 1998, State Street Bank & Trust v. Financial Signature Group – one of the pivotal ones greenlighting software and business-method patents — was correctly decided.“There are test cases all over the place,” observes Klemens. Plainly, his timing is propitious.
xmlblogFeb 29, 2008
Just to clarify - we're talking about software patents in particular, not patents as a whole. Donald Knuth wrote a very thoughtful essay on this topic quite some time ago: <a class="user" href="http://lpf.ai.mit.edu/Patents/knuth-to-pto.txt">http://lpf.ai.mit.edu/Patents/knuth-to-pto.txt</a>
savageblackcatFeb 29, 2008
Tremendously bad idea.
pyro789xFeb 29, 2008
Technically it will not lead to increased innovation, as the concept has already been discovered, and innovation is defined as something new and different. Abolishing them will, however, lead to a greater variety in products that use or incorporate the same technology, without acting as a hindrance to the programmers.
lunarbunnyFeb 29, 2008
I'm still waiting for Namco's loading screen minigame patent to get struck down.
bincoderFeb 29, 2008
The way patents are used is a disaster. The entire software program should be protected but not each and every little function it contains. That is like claiming copyright on words such as 'and' 'or' 'is'. Every little thing is patented now on non-software items, I wish someone could build a cheap and efficient sterling engine for example. But that cannot be done because someone, somewhere owns the rights to any little piece of it. Same with solar power, fusion, and nearly everything else. That is nothing but pure greed and practically eliminates any further development or improvement in a product or idea. If a patent holder can't make a decent profit after 5 years, it's time for 'their' idea to go into public domain.
Closed AccountMar 1, 2008
This is the biggest pile of BS I have ever seen.Fact is paid employees do far better work than hobbyist programmers. I would never dare use tools beyond the set of software made by Adobe for my job. The Gimp, while a fine program for amateur somethingawful.com photo manipuloations, is completely unsuited for real-world business purposes with the lack of a Pantone system or native CMYK support.Likewise compare "free" gaming mods to professionally made games that cost money. I also still insist, you are a total hypocrite if you program or make changes to the code of open-source software and then put such experience on your resume to get a paid job. If you really are doing something for free to change the world you wouldn't use it as a means as a stepping stone to get paid with your skillset elsewhere. Why should companies that spend money to pay their employees, attract investors, keep the lights turned on etc. be forced to open up their code to a bunch of pimply faced high school nerds?
blackadderiiiMar 1, 2008
Welcome to comments on technology-related news.
funkywoodMar 1, 2008
Since the typical lifespan of a software product is way less than a drug or complex engineering project how about a compromise of them lasting 5-10 years? That would be a good start.While were at it all patents should gradually be reduced in length as all technology (including drug research) advances quicker.If it was viable then having the length of any patent be proportionate to the time and money spent on R&D would be fairest.
lolo2007Jun 23, 2008
The way patents are used is a disaster. The entire software program should be protected but not each and every little function it contains. That is like claiming copyright on words such as 'and' 'or' 'is'. Every little thing is patented now on non-software items, I wish someone could build a cheap and efficient sterling engine for example. But that cannot be done because someone, somewhere owns the rights to any little piece of it. Same with solar power, fusion, and nearly everything else. That is nothing but pure greed and practically eliminates any further development or improvement in a product or idea. If a patent holder can't make a decent profit after 5 years, it's time for 'their' idea to go into public domain.<a class="user" href="http://download.paramegsoft.com/">http://download.paramegsoft.com/</a><a class="user" href="http://vb.paramegsoft.com/">http://vb.paramegsoft.com/</a><a class="user" href="http://ladies.paramegsoft.com/">http://ladies.paramegsoft.com/</a><a class="user" href="http://game.paramegsoft.com/">http://game.paramegsoft.com/</a>
a7md2008Jan 9, 2009
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