How would the industrial age have looked if Ford could have patented the concept of the assembly line? It probably would have looked a lot like the current stage of the information age, where broad patents over business practices represent the legal foundation of American intellectual property law as it applies to software. Now, the Supreme Court is hearing a case that could blast those foundations with a truckload of dynamite -- and no one has a clue how they might rule.
At issue is a case called Bilski vs. Kappos, in which the plaintiff, Bilski, attempted to patent a method for managing consumption risk in commodities markets. The U.S. Patent and Trademark office ruled that Bilksi’s methodology did not meet the existing legal requirements for patent eligibility because it was not “tied to a particular machine” and “did not transform any article into a different state or thing.” According to prior court rulings, “abstract ideas” are not patent eligible (neither, for the record, are “natural phenomena” or “laws of nature”).
Bilski and company argued that their methodology was in fact an innovation tied to a machine -- a computer -- because it was embedded in software code. Lower courts affirmed the USPTO’s rejection of the patent application; Bilski appealed, and so the case headed to the Supreme Court.
During oral arguments last week, the justices appeared to take an extremely skeptical view toward the plaintiff’s broad interpretation of intellectual property. Justice Scalia wondered whether horse whispering could be patented. Justice Breyer inquired about patenting his “wonderful, really original method of teaching antitrust law that kept 80 percent of the students awake.”
Things got interesting for the legal departments of Amazon.com Inc. (Nasdaq: AMZN), Apple Inc. (Nasdaq: AAPL), Microsoft Corp. (Nasdaq: MSFT), and everyone else in the high-tech industry when Chief Justice John Roberts, à propos a footnote in the legal brief, started wondering if it really made a difference whether a particular business idea was tied to a computer. “Looking [up a business contact] in the Yellow Pages [or] on the computer… that makes all the difference to you?” he asked.
Justice Stevens then began asking whether the act of programming a computer with new software “caused it to be a patentable different machine from the one that existed previously… I don’t understand how that can be a patent on a machine if the only thing novel is the process that the machine is using.”
Boom goes the dynamite! What did he just say? “The process that the machine is using” -- the software -- might not be patentable under U.S. law?
That, in fact, is the conclusion that some hope the court might reach in its final opinion, expected later this spring. Many in the open-source community believe that the ability to legally lock up vague concepts like “look and feel” or broad capabilities like “one-click purchase” unfairly inhibits innovation and gives big commercial software companies a stranglehold on the market that hurts consumers.
Red Hat Inc. (Nasdaq: RHAT), among others, filed an amicus brief urging the justices to reject the whole notion of the patentability of software functionality (even though the code itself would still be protected under copyright).
One of the most frustrating situations that sometimes arises is that corporations will patent a business process that has been around for years, which no one else thought was patentable, and then send all pre-existing competitors “cease and desist” letters. Earlier this month, such a situation emerged when Microsoft successfully filed a patent around selective user privilege escalation, which may affect a common Linux- and Unix-based tool called sudo.
This stuff happens all the time, which is why many hope that the court will issue an authoritative ruling in Bilski that either affirms the prevailing conventions around software patents or, possibly, scraps the whole system and tosses it back to Congress.
If the court decides on the latter course -- and the direction of the oral arguments indicates that at least a few of the justices are prepared to consider it -- the legal framework of the information age could completely change its trajectory.
I hope so! Copyrights were meant for creative contributions to our culture: books, music, and artwork. We should, and do add software to that list. Those entities are creative expresions in disparate languages. Software is a creative expresion in code. If the patent office had any idea of what software is, perhaps they would not have allowed this confusion. The theme of Bethoven's 9th symphony is one of the great themes in music. It is not patentable.
I am the owner of a business process patent, United States Patent 7421322. When it comes to business process patents
I think that these types of business process patents are absurd.
I think that companies that don't pursue them are missing the boat because they can't afford to let a competitor patent something like this and hold it over their head.
I hope the Supreme Court case results in a better definition of what is patentable. I think that software is patentable - not all software is obvious and I hope the justices don't go that far.
I am proud to own the patent because it was the right thing to do given the current laws and we executed it well.
Now let's change the interpretation of the patent law to be more realistic and end this silliness.
Again Internet Evolution and Mr. Salkowittz post an article that nails the key issues that we must be addressing regarding the Web's role in society. And correctly, may I say, the Supreme Court Case carries in its consideration what could be a definitive milestone in the Web as we know it or in factm, as it may come to be known after a decision is made.
The complexities of the case are sufficient to require lenghty discussions and profound position papers on subjects such as patentability, programs and programing, machines, computers, etc. So much so, any comment that myself or anyone can post in this discussion will be for reasons of space and capability, incomplete and most probably insufficient.
However, Mr. Salkowitz is absolutely correct in his appreciation of the case and the urgence and critical need of his article is crucial. The Supreme Court case in fact goes to the ontology of the internet, or the Web as we say in familiar terms. The issues, arguments and reasoning that arise from the case imply, by their consideration, that any decision will alter in any or other way the nature itself of the Web.
It is posible that due time has come to enter into this arena and the posibility exists that current issues require such a case definition. The crux of the matter is, in fact, that this Supreme Court case must not continue out of the radar of our scrutiny and its due process should be closely monitored. Internet Evolution must be a prime actor in this history unfolding.
1. A version of the assembly line was patented and our present is a consequence of the Ford Company's reinvention of the assembly line using conveyor belts apparently. And doesn't anyone teach about Eli Witney's contributions during the Revolutionary War, anymore? http://www.ideafinder.com/history/inventions/assbline.htm
2. So if Bilski burned his methodology to ROM, could he patent his implementation? Would he then be protected from another party implementing it in software? CPU's are patentable of course but what about the prototype operating in simulation?
Kudos to the supreme court for denying the patent. The basic criteria for granting patent is usually the functionality and originality, adding a new software to the same machine is hardly anything original. I think the inventors are acting like a spoilt child who just refused to share his new toy.
Thanks for the great comments so far folks! This is a tough one, because I think we can all agree that there is such a thing as intellectual property, and the public is better served when innovators feel they can profit fairly from their original ideas. There's something wrong with current law if software isn't specifically protected, except by this "machine" provision, which, as the justices seemed to suggest with their inquiry, is logically flawed. Software, and software-like IP ("programming" of molecules, etc.) is an increasingly valueable output of our economy, and it needs to be protected by legal language that applies specifically to this kind of activity, rather than being grandfathered in to some awkward industrial-age legal construct. Doing so might also have the benefit of correcting these overly-broad patents that everyone complains about, and making the process fairer to innovators and competitors alike.
Unfortunately, the Court can't act affirmatively on this: they can just toss out the existing interpretation, and leave it to Congress to fix. As if Congress has the appetite (or the aptitude) to takcle this subject right now.
I agree with you, Paul, that we will have to work through these issues.
The problem, as Rob points out, is if they take out these protections and do not thoughtfully protect the legitimate patents, what replaces the current system? Do we have the Wild West again?
I think it is an interesting dynamic. If we are thoughtful, we may begin to think of the patents more in terms of true intellectual property, with the knowledge to improve a process, more than relying on the result in the change to the computer or just the production of code.
perhaps we could say "but this relies on other technologies that may be old or need application in parallel with others - but then, I'm sure the pharohs building the pyramids could be accused of applying old and parallel technologies, or the Romans building the aqueduct.
i just think it might be time for a new present day, present minded agency to throw up some guardrails - right now, it seems like as good a time as any to do so, and maybe some sharper thinking will come through.
I won't say that I stay up at night worrying about whether I am infringing upon a software patent -- it's one of those areas where following a parallel "don't seek, don't tell" logic is all for the best.
But, after over 30 years in the software business, I have to say that software patents are truly a pain. Maybe for 1 in 50 I will say -- "what a great idea, these folks deserve some profit for their ingenuity!"
But, for those other 49 out of 50, I just have to groan. It is either "I was doing something awfully similar to this 10 years ago" or "that's a nice way of doing it but it sure relies on all of these other ideas that have been in common use for a long time".
I don't specifically blame the patent office -- after all, they haven't been working in the field forever and have no idea what people actually do and know.
If the Supreme Courth overturned all of the software patents it would be unfair to a few -- but really help the industry and small businesses.
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