I'm sympathetic to the situation, but legally this is the wrong approach. The Supreme Court has clearly said that software patents don't fall under the exclusion for abstract ideas, and has also said that it's unwilling to entertain categorical exclusions on the subject matter of patentability.
You're not going to convince the lower courts to ignore Supreme Court guidance on this issue, and this is a particular argument that has already lost in a relatively recent case so the Supreme Court is unlikely to revisit it any time soon.
Companies like Facebook, Google, etc, are in a far better position asking for a reevaluation of the bar for novelty and non-obviousness. There is a multi-factor test for non-obviousness, and John Deere holds that secondary factors such as "commercial success, long felt but unsolved needs, failure of others..." can speak to an invention being non-obvious.
I think an argument that evidence of independent invention should create a presumption that an invention is obvious would be far better received as well as being more consistent with the statutory framework.
> I think an argument that evidence of independent invention should create a presumption that an invention is obvious would be far better received as well as being more consistent with the statutory framework.
This seems plausible on its face, but in fact there have been lots of cases where really inventive things were conceived at nearly the same time by different inventors.
If multiple inventors independently create something, none of them should be able to take that creation from the others just by being first to the patent office. I regard the old story about Bell winning patent rights to the telephone by a narrow margin as a failure of the system.
>The Supreme Court has clearly said that software patents don't fall under the exclusion for abstract ideas
I think this statement is too broad. They've clearly said that some software patents don't fall under the exclusion for abstract ideas (as you say, no categorical exclusion). There remains an open question as to how to determine whether a given software patent covers an abstract idea, which is ostensibly what this case is about.
Even a narrow interpretation would exclude patents on math which are abstract ideas, making a particular category of software patents invalid which would help a lot.
It may be that Google, Facebook et al would like the Supreme Court to revisit the matter.
If the Supreme Court is anything like the High Court of Australia, they look dimly on requests to take on cases that haven't first been at least partly chewed on by lower courts.
Sometimes you need to go through the motions before you can go through the motions.
I think that is what they want, but the court just decided Bilski two years ago, and the guy who was in favor of categorically excluding business method patents in that case, Stevens, is no longer on the court. I just don't think it's a winning strategy is all.
I'm sure someone has, but I think this may be an example of either: 1) setting the ask for a negotiation high then bargaining down; or 2) the engineers calling the shots.
Somewhat interesting not to see Apple on there. Then again, Apple's IP portfolio is probably larger than all the cosigners combined, and they may not want to encourage legislation leading to that all being invalidated.
Actually, it's all about slowing innovation, so it can very well be used as "enforcing bogus patents": Apple is famous for recently suing competition over abstract ideas. They don't even try to hide that fact.
Still, its useful keeping "patent troll" separate to describe a particular type of company. The own patents (mostly acquired from dead companies), don't make anything and live off squeezing other companies. Most trollish in that they live off extorting "license fees" with the threat of legal action, rather than actually winning lawsuits. They are structured in ways that makes them unafraid of lawsuits and use that to intimidate companies that are.
Apple does at least build things, but it still has hundreds of bogus patents that it uses offensively to retard innovation. Perhaps we need a new derisive word to cover that behavior.
The issue is more nuanced than depicted by the title of this piece: the courts already reject patents based on abstract ideas and the real issue is how they should go about determining whether something is patent-eligible (and, hence, potentially patentable) or a mere abstract idea (and, hence, ineligible). The issue is one of trying to get the Federal Circuit to follow where these large software companies believe the recent Supreme Court precedent is trending.
"1. The CLS Bank v. Alice case, though raising an issue of vital importance, is not about 'whether software is patentable.'
2. Over the years, the Federal Circuit has notoriously broadened the scope of patent eligibility, most conspicuously in its 1998 State Street decision which essentially opened the floodgates to the modern rush of business method patents by holding that virtually any business method was patentable so long as 'it produces a useful, concrete and tangible result.' In 2010, the U.S. Supreme Court, in the Bilski case, repudiated the State Street test for patent eligibility and, though upholding software and business method patents generally, directed courts to be much more vigilant to ensure that no one gain patent rights to what are mere 'abstract ideas,' however much they may incidentally be tied to some computer mechanism in their implementation. In a follow-on decision (Prometheus), the U.S. Supreme Court similarly cut back sharply on the permissible scope of patent eligibility for claimed inventions that constituted nothing more than laws of nature.
3. In this CLS Bank case, the claimed patent involves a method for eliminating certain types of risk associated with an escrow closing and used a technological process by which to mimic a phantom version of the closing as a security check before allowing the real transaction to close. In essence, the technological aspect of this 'invention' is routine and so the question is whether anything beyond that is simply another way of trying to patent nothing more than an abstract idea. If so, it should fail under Bilski; if not, it would potentially pass the test for patent eligibility.
4. The lower court in CLS Bank held as a matter of law that the 'invention' was nothing more than an abstract idea and held it invalid as being ineligible for patent protection. On appeal, a divided panel of the Federal Circuit reversed and reinstated the patent. It did so, however, by setting out a brand new procedural rule whose effect would be to gut much of Bilski and reopen the floodgates to huge numbers of business method patents under a very loose standard - to wit, by holding, that, if it 'is not manifestly evident [my emphasis] that a claim is directed to a patent ineligible abstract idea,' then the court essentially treat the claim as eligible. What the Federal Circuit panel did, then, was to take the Supreme Court's directive for lower courts to be much stricter in evaluating dubious business method patents for patent eligibility and recast that directive in a form that said, if you as a court see that something is obviously nothing more than an abstract idea, then go ahead and reject it but you are otherwise to treat as being eligible for patent protection. In other words, the new strictness found in Bilski for evaluating such claims was once again to be transformed by the Federal Circuit into a loose standard that would let such claims coast by unimpeded.
5. Of course, this has set off alarm bells because, in effect, it represents yet one more revolt by the Federal Circuit against attempts by the Supreme Court to rein it in by bringing patent issues back to some semi-sane state. Following the panel decision (which was rendered over a sharp and stinging dissent), the losing party petitioned for a rehearing en banc (meaning by the full panoply of Federal Circuit judges as opposed to merely a 3-judge panel) and this was granted. Thus, we shall see whether the Federal Circuit is prepared once again to stick its thumb in the eye of the Supreme Court or whether it will temper its extreme pro-patent proclivities and follow the law as it has been directed.
So, this is a very important case affecting the trend of patent enforcement in a profound way but does nothing to challenge the idea of software or business methods being patentable in a general sense. For anything to change in that regard, Congress must act." [end of repost comments]
In filing this amicus brief, Google, et al. are waving the Prometheus decision up and down before the full en banc Federal Circuit and imploring it not to repeat the mistakes of the past. If they are successful, all U.S. courts will be in a much stronger position to strike down these sorts of "abstract idea" patents as invalid. The question, then, is a procedural one of how courts should go about making this determination but the results could go a long way toward tightening up standards if this is rightly decided. We shall see.
All patents, and in fact all forms of intellectual property protection, by definition apply only to abstract ideas. Legal protection of non-abstract things already exists: that's what normal property rights are.
All intellectual property laws forbid me from placing my physical property into certain arrangements. I am free to own ink and sell my products in my boxes, but if I apply that ink to the box in the form of an Apple logo I have violated trademark laws. I am free to own a hard drive and all the tiny magnetic particles therein, but if I cause those particles to take on an arrangement that represents a Beatles' MP3, then I have violated copyright laws. I am free to own a large building and a bunch of machines, but if I arrange these machines into a certain type of assembly line, I may have violated a patent on a manufacturing process.
>All patents, and in fact all forms of intellectual property protection, by definition apply only to abstract ideas.
A cotton gin is not an abstract idea, it's a thing you can put in your barn and separate your cotton with. The patent applies to the thing.
Even if a patent is inherently an abstraction, that doesn't mean it covers an abstraction. More to the point, if the thing the patent covers is an abstract idea then the patent is not supposed to be issued.
This is why you see all these nonsense patents that say "XYZ on a computer" because a computer is an actual non-abstract piece of physical existence, so then the patent lawyers can say "look see, it's not a patent on an abstract idea, it's a patent on a computer that implements an abstract idea." Even though it's really a patent on any computer that implements the abstract idea, i.e. a patent on the idea itself within the domain of computer software.
Any one cotton gin is a physical thing, yes. It should be illegal to take or damage another person's cotton gin, but that's just normal physical property rights. A patent on the cotton gin, however, has nothing to do with protecting your cotton gins from theft or vandalism. A patent prohibits you from shaping and arranging your metal into a shape that allows you to remove seeds from cotton, even if you're not even aware that someone else has patented this arrangement of metal.
What does that have anything to do with abstract ideas not being patentable? You're just arguing that a patent is an abstract idea. But a patent and the thing it covers are two different things. The thing it covers is the thing that's prohibited from being an abstract idea.
No, I'm not just arguing that a patent is an abstract idea. I'm arguing that all patents cover abstract ideas. Patents don't cover any physical cotton gin, but rather the idea of a cotton gin, i.e. the arrangement of materials that separates the seed from the fibers.
I guess I can kind of see what you're saying, but where is it supposed to lead? The courts are never going to come to the conclusion that Congress passed a patent statute intending to make nothing whatsoever patentable because all patents cover only abstract ideas and abstract ideas are unpatentable.
I think part of the trouble may be that you're finding abstraction in patents and taking that to the conclusion that patents are nothing but abstraction. Take any given patent and you can find some degree of abstraction in it. The question is in some sense whether there is anything else there too, something concrete that nails down a particular invention as distinct from the underlying idea.
Is the point that it's an amorphous and nearly unintelligible criteria? Because that's certainly a fair argument. Nobody seems to know exactly what "abstract idea" really means in this context and the courts have been little help. But the same goes for half the laws on the books, so what else is new.
Where is it supposed to lead? Ideally, to a world without intellectual property protection, but I'm not holding my breath. I'm just pointing out that even proponents of IP get nervous when they meet the logical consequences of IP law in a dark alley.
It seems like you think that baddox might be trying to make a "point" that is more complicated than what they have written in their posts.
baddox>>>All patents, and in fact all forms of intellectual property protection, by definition apply only to abstract ideas.
Looking at his posts, I'm not sure that baddox was "leading anywhere". Baddox may have just been making a simple statement of fact.
AnthonyMouse>>>Take any given patent and you can find some degree of abstraction in it. The question is in some sense whether there is anything else there too...
Correct! This is what is addressed in the lengthy amicus brief, which is summarized by the fine blog poster. Here is a quote that the blogger felt was representative of the amicus position:
>>>Many computer-related patent claims just describe an abstract idea at a high level of generality and say to perform it on a computer or over the Internet.
>>>... describe an abstract idea at a high level of generality...
I suspect that the key here is the phrase "high level of generality", not "abstract idea". So a more accurate article title could be "Companies ask courts to reject patents that are described at a high level of generality". According to current patent law, patents must be useful - a vague, broad, or general idea is not useful or difficult to create. According to current patent law, patents must be new - which currently means "non obvious to an ordinary person in the inventor's field". Patent law has changed over time as a result of legislative action and Supreme Court action, and will presumably continue to do so.
The reason why these companies signed and submitted this amicus brief is to influence the court into taking some action that will benefit them. Private citizens are permitted to submit amici as well.
There are some links about copyright below. The summaries are very accessible, but are overly simplistic. The actual text of the legislation is also overly simplistic. The Legislature may pass a law that seems fairly readable, but this is deceptive because the Judiciary and the Executive are the interpreters and enforcers of these laws. When you notice that you vehemently do not agree with an interpretation or enforcement of a law, you must communicate this in some way to the government. Citizens generally communicate by voting, direct communication(such as amicus briefs or visible protests), and civil disobedience(nonviolent but illegal actions).
And that's exactly the reason why intellectual "property" is actually the opposite of real property. It's a restriction on the ways you can use your things, a limitation of your freedoms. Every patent granted, one more thing you can't do even if you rediscovered by yourself, one bit of liberty chipped away.
Maybe one can be OK with this, but it's time to call things by their name or we'll never sort out this mess.
So maybe after all there isn't so much difference between software and hardware patents. I think it's just that few people have a factory to get bitten by hardware patents, but everyone has a computer so it's much easier both to churn out soft patents and to feel the pain from them.
And that's why the term intellectual "property" doesn't make sense. You can't own an abstract idea. Surely most of your idea was created out of prior knowledge that belongs to the "collective".
I think it's interesting that their brief doesn't provide any citations for the proposition that Mayo identified these four discrete guideposts for determining whether a claim is directed to an unpatentable abstract idea.
In fact, I'm not sure Mayo can be read as doing much at all beyond breaking the walls between the three judicially created exceptions: abstract idea, law of nature, and natural principle. After Mayo, they're sort of just one big (unworkable) exception.
Boy, I hope I don't have this wrong since I have my Patent Law final exam tomorrow morning!
Assuming that abstract ideas are usually intersected by earlier abstract ideas (since they're so broad), perhaps the insurance company could lease the patent hordes of large companies, to deny trolls' claims. That could reduce the cost of the insurance.
Assume for a second you are right (you aren't, it turns out)
Why does that matter?
IE what is the point you are trying to make by saying this?
Is it that they are self-interested?
Because if so, uh, almost all amicus briefs are filed by self-interested companies or advocacy groups.
That is in fact, one of the points of amicus briefs: To cover concerns not directly dealt with by the parties so that the court understands the broader implications of ruling one way or another.
Another point is to cover arguments the parties do not make.
The court is also free to deny them leave to file a brief if the court doesn't care.
I don't think this is true at all. Big companies can easily pay armies of lawyers to file patents on obvious ideas and then sue other companies. The ones taking a stand against this behavior don't want to do that, though. They know that implementation is the hard part in software engineering and would rather pay people to write software, even if that means some other company can "steal" their ideas.
I agree with the general notion that tech patents are too abstract, but you're right, its just too convenient for companies that don't hold many software patents to agree.
Now if a company with many software patents got behind this brief, I'd have more faith in the industry's desire to get rid of such patents.
It is becoming increasingly obvious (to some people such as myself) that the law, government, and other social institutions are obsolescent and actually restricting progress, which is always made through technology.
It won't be too many decades before all human activity is irrelevant. (I make the distinction between humans and the ultra-intelligent life forms that we will shortly invent because I think that they are fundamentally different things.)
Meh. There were 30 million e-mails being sent every month by the early 1970's (four decades ago). Heck, technology has almost not advanced at all in this decade, even in the computer sector (I don't consider Facebook, etc, to be advancements in technology in the relevant sense).
I have a question ... if many of these patents are that obvious, why doesn't Google or another company make a point (that will take 3-4 years to make) by patenting a lot of stuff it thinks will exist in 3-4 years, and then just suing everyone in sight on the internet just to prove a point? As long as their patent covers it, they will make lots of high profile cases.
Maybe the stuff isn't as obvious when it's being patented. I don't think the obviousness-at-the-time-of-patent is the problem here. The problem is that the industry moves quickly and it doesn't cost much to innovate in software as it does in, say, pharma. That's what Posner's point was.
>I have a question ... if many of these patents are that obvious, why doesn't Google or another company make a point (that will take 3-4 years to make) by patenting a lot of stuff it thinks will exist in 3-4 years, and then just suing everyone in sight on the internet just to prove a point?
They all already do the first part (filing for tons of lame patents). The second part doesn't work between large organizations because of MAD -- you have patents, they have patents, if you sue them then they sue you back and there is no predicting the ultimate outcome other than that everyone will be writing enormous checks to an army of lawyers. Why start a nuclear war, even if you think you can win? (Apple has been learning this the hard way.)
Why spend millions of dollars sending a point (and in the process end up looking to your customers like a huge jackass who prefers to compete in the courtroom instead of the market) when you can spend a fraction of that amount lobbying and filing amicus briefs and probably get the same result?
You're not going to convince the lower courts to ignore Supreme Court guidance on this issue, and this is a particular argument that has already lost in a relatively recent case so the Supreme Court is unlikely to revisit it any time soon.
Companies like Facebook, Google, etc, are in a far better position asking for a reevaluation of the bar for novelty and non-obviousness. There is a multi-factor test for non-obviousness, and John Deere holds that secondary factors such as "commercial success, long felt but unsolved needs, failure of others..." can speak to an invention being non-obvious.
I think an argument that evidence of independent invention should create a presumption that an invention is obvious would be far better received as well as being more consistent with the statutory framework.