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Supreme Court Weakens Patents

CmdrTaco posted more than 6 years ago | from the any-lawyers-on-the-plane dept.

Patents 331

ajakk writes "The U.S. Supreme Court, in a unanimous opinion, overturned the decades old test for determine whether a patent is obvious. The Court ruled that the Court had looked at obviousness in a "narrow, rigid manner." This should allow patents to be more easily invalidated because they are obvious."

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331 comments

Now everyone will RTFA (5, Funny)

Harmonious Botch (921977) | more than 6 years ago | (#18928195)

Now that one click is not patentable...

Re:Now everyone will RTFA (-1, Redundant)

Anonymous Coward | more than 6 years ago | (#18928249)

It is still an open question whether one-click is patentable. However, now two-click is not patentable.

Ahaa! (-1, Redundant)

Anonymous Coward | more than 6 years ago | (#18928445)

Now I shall patent the triple click!

Re:Ahaa! (1)

empaler (130732) | more than 6 years ago | (#18928695)

It bears a striking resemblance to my patented ennea-click patent!
Why, it's simply my ennea-click divided by three!

Next step (4, Insightful)

Mateo_LeFou (859634) | more than 6 years ago | (#18928479)

Stop allowing patents on what is *obviously not patentable, e.g. mathematical algorithms and software

Re:Next step (2, Insightful)

alienw (585907) | more than 6 years ago | (#18928565)

I still don't understand what makes algorithms and software OBVIOUSLY not patentable. Also, stop misusing the word "mathematical". I am not a proponent of software patents; I just don't see what makes software patents so different from other patents, and I haven't seen a single logical argument against software patents that doesn't involve circular reasoning.

Re:Next step (4, Interesting)

cpt kangarooski (3773) | more than 6 years ago | (#18928621)

I'm opposed to software patents, but not for reasons of obviousness. Rather, given that the purpose of patents is to spur inventors to invent, disclose the workings of their inventions, to bring those inventions to market, and to have the least burden on the public in terms of what they can't do, I think that software patents are inappropriate. There are other incentives to do these things besides the incentive of a patent. In the case of software and business methods, I think those other incentives are quite strong; strong enough that those fields would continue to thrive without patents (as they did until fairly recently, when patents came onto the scene in those fields) and that they'd actually do better, in fact, without the chilling effect on the market that the patents cause.

If someday those other incentives diminish, we might want to have patents there again. Certainly we should keep an eye on this. But for now, I think that we'd see much more invention, disclosure, and bringing-to-market without the burden of patents than we have now.

Does this argument satisfy you? Better still, would you agree with it?

Re:Next step (3, Interesting)

jimstapleton (999106) | more than 6 years ago | (#18928721)

I have no qualms with software patents per-se. However a better way to handle them I believe, would be to say, that provided the provider recieves no financial recompensation direct (i.e. sales) or indirect (i.e. support), that a software patent cannot be used against a software provider.

That doesn't negate any /copyright/ restrictions (i.e. you can simply steal someone's software, it doesn't leagalize piracy), but for example, a sub-pixel rendering patent could not be used against a free (as in beer) piece of sub-pixel rendering software. Now if a company got ahold of this software, and tried selling it or a set of software containing it - then that company could be held responsible, and could be required to pay royalties.

The idea is - if it can be created/distributed at such "minimal" effort that no cost is required, then it the patent is of questionable novelty.

Re:Next step (3, Insightful)

Red Flayer (890720) | more than 6 years ago | (#18929301)

That doesn't negate any /copyright/ restrictions (i.e. you can simply steal someone's software, it doesn't leagalize piracy), but for example, a sub-pixel rendering patent could not be used against a free (as in beer) piece of sub-pixel rendering software.
Hmm. The problem I see is that one can't copyright an algorithm, so by extension there would be no restriction on wholesale "theft" of software. So any patented software out there would be completely vulnerable to pirated copies under a different trademark.

Plenty of people see this as the best-case scenario, since "information wants to be free". However, in practice, this would mean that there is almost zero financial incentive to produce new innovative, software outside of the service revenue model.

I think it's tough to find a balance between "promoting the useful arts" and restricting innovation via patent lockdown, but allowing free-as-in-beer use of patented materials destroys the entire patent system for software, since there is almost no unit cost to redistribute software. Is annhiliating the patent system for software desirable? I don't know, but I do know that I don't wish to discuss it on Slashdot (been burnt one too many times).

Sorry to be so long-winded, but I feel that what you're advocating would result in the wholesale destruction of the patent system...

One last thing...

The idea is - if it can be created/distributed at such "minimal" effort that no cost is required, then it the patent is of questionable novelty.
So what you're saying is that anything produced digitally is not novel?

Re:Next step (2, Insightful)

dgatwood (11270) | more than 6 years ago | (#18929587)

Hmm. The problem I see is that one can't copyright an algorithm, so by extension there would be no restriction on wholesale "theft" of software. So any patented software out there would be completely vulnerable to pirated copies under a different trademark.

No. That would still be a very large copyright violation, just as it is now. In fact, AFAIK, wholesale copyright infringement does not cause you to infringe the patents because you are not creating an implementation of the patent.

Re:Next step (4, Insightful)

oliverthered (187439) | more than 6 years ago | (#18928681)

algorithms and software (just a bunch of algorithms ) are just representations of a mental process.
As soon as you allow them to be patented you make thought itself against the law.

Here's an argument for ye (4, Insightful)

Mateo_LeFou (859634) | more than 6 years ago | (#18928879)

Over 90% of software innovations are incremental steps on the existing set of best practices and commonly-used abstractions. If this base is screwed up by a bunch of patents, they defeat their purpose and hamper, rather than encourage, innovation.

If you live in America, you won't have to go far for an example. If you live elsewhere, then go to America and then you won't have to go far for an example.

Re:Next Step (4, Insightful)

Lockejaw (955650) | more than 6 years ago | (#18928897)

Suppose Alice patents the FOO algorithm. If Bob wants to use it in a piece of software he's selling, he obviously needs a license from Alice to use it. But since "exclusive Right to their respective Writings and Discoveries" has been taken to include non-commercial use, what else can't Bob do? Can he implement it in free (gratis) software? Can he use the algorithm in code he writes, but doesn't distribute? Can he perform the algorithm himself? Can he be paid to do so?

Since, as a sibling post stated, an algorithm is just a thought process, it's not really something to which exclusive rights should be granted.

Most of the software patents we see these days don't play by the rules as it is. Either they don't do the full disclosure that is supposedly required (really, doesn't it seem odd that a product can be both patented and a trade secret?), are trivial or obvious combinations of existing things, have a large body of prior art, or some combination of the three. Software patents that do follow those rules are essentially patents on algorithms (i.e. sets of instructions on how to perform some task or calculation).

The proper domains for proprietary software are trade secret for closed source code and copyright for open source code.

The problem is how we handle them. (5, Interesting)

Kadin2048 (468275) | more than 6 years ago | (#18928937)

I'm of the opinion that software patents are not necessarily horribly bad or wrong, at least not moreso than any other kind of patent, but it's just that the way they have been implemented currently is so far from ideal that we'd be better off eliminating patent protection from software entirely than sticking with it.

What has traditionally been patentable are particular methods of solving problems. E.g., the sewing machine we're familiar with today (with two interlocking threads, one in a bobbin, etc.) is one way of solving the "how do we attach two pieces of material together" problem. It's (or rather, was) a novel solution to the problem, it was non-obvious, and it was particular. That's an example of a pretty good, justifiable patent. (Also because it's not easy to protect by other means -- once you see a sewing machine and take one apart, you realize immediately how it works and it's trivial to re-implement it, but if you hadn't ever seen one it's not obvious that two running threads is the way to do it, hence why it took so long to be invented.)

I'm not sure that there is a good argument for preventing people from patenting the solutions to problems, where the form of the solution happens to be microcode, in the same way that the form of the solution to the sewing-machine problem was milled pieces of steel.

But the problem arises when judges and patent examiners aren't skilled and selective about what's patentable. It's much easier, with software-based inventions, to get overbroad patents that negatively impact invention; rather than patenting a particular solution, what gets patented are entire classes of mathematical functions, or all possible software implementations (solutions) of a given problem. That would be like getting a patent, not on a particular sewing machine design, but on all sewing machines generally, or even "any machine for attaching two or more pieces of fabric together."

The problem, in my opinion, with software patents isn't with the fact that they're software -- in my mind, software ought to be patented, and it ought not be protected under Copyright (unless we're willing to define it completely as "speech" with all the freedoms that entails) -- but that they're typically of very poor quality, shoddily researched, and overbroad.

For this reason, I think the Europeans have done a good thing in just avoiding the issue entirely, because the cost of overbroad patents on innovation is far worse than no patents of a particular type at all. (I think this is trivially obvious but there are a lot of historical examples where overbroad patents have been problematic and basically stymied development that was otherwise ongoing -- the old internal-combustion patents are a prime example.)

We have the legal framework to deal with software, but unfortunately we just haven't used it correctly, and until we're willing to do it correctly -- and that means we're going to need to apply a lot more resources to the task of ensuring that patents are novel, non-obvious, narrow in scope, and deserving of protection -- they're a lot more trouble than they're worth.

Re:Next step (3, Insightful)

Chris Burke (6130) | more than 6 years ago | (#18929019)

Math is not patentable. Software is nothing but a computer-understandable representation of math. A software patent however does not involve such a computer-understandable representation, it merely covers the idea. The idea behind software is pure math. Therefore a software patent is a patent on math, and should not be granted.

That may seem circular, but math not being patentable is a matter of law. Not to mention a good idea, since math is the fundamental language of the universe, it is the language by which we describe all scientific progress. To patent math is to patent the foundation of science, and will cripple progress. Just like software patents are crippling progress.

Have you ever seen a patent on a math book? Of course not, math isn't patentable. Yet suddenly when you encode that math in a computer language, it is patentable? Hell, with a program like Maple the content of the math book could be "computer readable", so does Maple mean math textbooks can be patented?

copyright (5, Insightful)

zogger (617870) | more than 6 years ago | (#18929223)

Software is typed up stuff, written in a language or languages, and as such, is more akin to written books or articles or say like musical scores, and should only be allowed copyright, not patents. Patents should be restricted to tangible products. In addition, the software industry itself has insisted and got granted immunity from normal consumer warranties, which is clearly evidence they don't see their own typed up stuff as a "normal product". It's *special*.

They shouldn't have it both ways when no other industry can claim that. If it is patentable, it should come with a minimum implied normal warranty (suitable for use, no glaring and or dangerous defects, etc). No warranty should mean no patent, copyright only.

I hope that is linear enough to answer your question.

Re:Next step (1)

omeomi (675045) | more than 6 years ago | (#18929343)

I still don't understand what makes algorithms and software OBVIOUSLY not patentable.

I think one problem with software patents is that many companies have patented technology, that while it may not be a 100% obvious technology, is something that another entity could come up with completely on their own, without even knowing that somebody else has patented the idea. I have no problem with a patent preventing someone from steeling a technology, but I find it very disturbing when companies apply for patents just to keep others from using a technology...for instance, Vonage v. Verizon.

The algorithm argument (2, Informative)

mfeldstein (119843) | more than 6 years ago | (#18929609)

According to United States law, you can't patent algorithms for the same reason that you can't patent blueprints, i.e., patents apply to useful inventions, to things that work in the world, as opposed to abstract ideas.

To get a sense of the distinction, it may be helpful to think about the Supreme Court's *other* big patent ruling today, i.e., Microsoft v. Alcatel-Lucent. In this case, both companies admitted that Windows infringes on Lucent's speech recognition patents. Normally, these patents would not apply to products in other countries, which are governed by their own patent laws. This explicitly includes cases in which somebody sells a blueprint to somebody else in another country, who then uses that blueprint to manufacture a product that infringes on a US patent. The exception in US law is if you ship components of an infringing product overseas and then have them assembled over there. Congress correctly perceived such an act as an attempted end-run around US patent laws and said that, whether or not it is assembled in the US, a product that is manufactured in the United States and infringes on US patents is subject to US patent law.

Microsoft ships a master DVD overseas, where it is duplicated and installed on computers there. Alcatel-Lucent argued that this is fundamentally similar to assembling a US-manufactured product overseas and that Microsoft should pay damages. (A lower court awarded them $1.5 billion.) Microsoft argued, however, that shipping a master DVD is more like sending a blueprint for products that are then manufactured overseas. The Supreme Court concurred, ruling in favor of Microsoft 8-1.

Now here's the key twist. In an Amicus brief that was probably not appreciated by Microsoft and apparently not embraced by the court, the SFLC argued that *all* software is like a blueprint or an algorithm, as this weird test case of installing it overseas versus installing it domestically demonstrates (in their view). Therefore, software should be fundamentally unpatentable.

The whole opinion (4, Informative)

Anonymous Coward | more than 6 years ago | (#18928221)

Re:The whole opinion (1)

ari_j (90255) | more than 6 years ago | (#18928709)

In case anyone else is as confused as I was when I saw two AC comments in a row, both +4 Informative at the time I am writing this with links to different Supreme Court opinions: Both opinions are referred to in TFA. The article mentions the opinion linked to from this comment [slashdot.org] first and to the parent of the comment you are reading second. The first is KSR v. Teleflex; the second is Microsoft v. AT&T. Please don't mod either of them redundant, and enjoy. :)

KSR INTERNATIONAL CO. v. TELEFLEX INC. ET AL. (5, Informative)

Anonymous Coward | more than 6 years ago | (#18928227)

Check out SCOTT v. HARRIS instead (4, Interesting)

platyk (696356) | more than 6 years ago | (#18929173)

Are you bored by legal technicalities? Would you rather be watching a 90 mph police car chase that ends in a cataclysmic crash?? Well the SCOTUS has delivered just what you want in their other big decision today: SCOTT v. HARRIS.

Yes, seriously here is the 93MB RealPlayer video: http://www.supremecourtus.gov/opinions/video/scott _v_harris.rmvb [supremecourtus.gov] There are actually two videos of the chase back to back--the second one is better. Choice quote: "Let me have him 78, my car is already tore up!"

(I guess it is ironic that RealVideo format is probably heavily protected by patents.)

If you want the boring legal details of the case they are here: http://www.supremecourtus.gov/opinions/06pdf/05-16 31.pdf [supremecourtus.gov]

And here's a news story about it: http://abcnews.go.com/Politics/wireStory?id=310057 5 [go.com]

Re:Check out SCOTT v. HARRIS instead (1)

ubuwalker31 (1009137) | more than 6 years ago | (#18929303)

I wish I had mod points to mod you up, but I don't, so I added you as a friend. That being said, this is the first time that I have seen the court release a video on the internet that was relevant to the case. This is sort of huge, since we now know that the court has the capability to make and publish videos. I hope live broadcasts of oral arguments are next!

Re:Check out SCOTT v. HARRIS instead (0)

Anonymous Coward | more than 6 years ago | (#18929533)

(I guess it is ironic that RealVideo format is probably heavily protected by patents.)

The file in question contains RV40 video and ATRAC3 audio. ATRAC was invented by our friends at Sony, and I don't know what claims they make on it. The ffmpeg project [ffmpeg.org] recently published an open-source decoder for ATRAC3, and Sony doesn't apper to be harassing anyone over it. RV40 is who-knows-what as it hasn't yet been reverse engineered. It's suspected to be based on H.264. The patent status of H.264 is unclear, although a federal court recently threw out some patents held by Broadcom. [slashdot.org]

The logo should be changed (3, Interesting)

arivanov (12034) | more than 6 years ago | (#18928233)

I think the tagline logo for patents should now be changed. All you can eat is over.

Re:The logo should be changed (2, Interesting)

ClamIAm (926466) | more than 6 years ago | (#18928419)

Personally, I feel the icon is still valid. Mostly because we still allow patents on things that don't actually cost anything to manufacture, such as software and "business methods".

Re:The logo should be changed (2, Insightful)

liliafan (454080) | more than 6 years ago | (#18928639)

Personally, I feel the icon is still valid. Mostly because we still allow patents on things that don't actually cost anything to manufacture, such as software and "business methods".
Okay firstly I will point out I don't agree with software patents, they are destructive to innovation, however, how can you possibly say software doesn't cost anything to manufacture?

There is lots of costs involved in software development, nothing in this world is free, even from the view of some geek sat at home hacking away at his favorite opensource application, there is time involved, there is development environments, there is debuggers, there is electricity to run the system. So that is a minor example of very low cost since.

On the other end of the spectrum you have a large company that is developing software, how about their costs? Hiring developers, QA people, office space, standard overheads.

Software development does cost money.

Re:The logo should be changed (2, Insightful)

Forseti (192792) | more than 6 years ago | (#18928885)

how can you possibly say software doesn't cost anything to manufacture? There is lots of costs involved in software development [...]

Not design; manufacture. Designing a chair costs money, making replicas of that chair at a factory in order to sell them also costs money. Designing software costs money, but once that's done, there is no additional cost to manufacture, unless you count the box, CD and jewelcase, which are no longer needed. Selling one copy or one billion copies costs the same, and someone getting a copy for free doesn't "cost" you anything.

Re:The logo should be changed (1)

Mister Whirly (964219) | more than 6 years ago | (#18929651)

Aren't you talking about distribution, and not manufacturing? Making physical copies of software certainly requires money to manufacture,(equipment, raw materials, labor, etc.) but distibuting digital copies of software would not involve the same costs...

Re:The logo should be changed (1)

Bloke down the pub (861787) | more than 6 years ago | (#18928687)

things that don't actually cost anything to manufacture, such as software
I need some really tedious file reformatting and data entry programs writing. How nice of you to offer to do it for nothing while I nip out for a pint or ten.

SCOTUS Overlords (-1, Offtopic)

smartr (1035324) | more than 6 years ago | (#18928299)

One thing is for certain, there is no stopping them; the laws will soon be here. And I, for one, welcome our new SCOTUS overlords.

Re:SCOTUS Overlords (0)

Anonymous Coward | more than 6 years ago | (#18928551)

SCOTUS has always been just as powerful and either Congress, or the POTUS.

Finally... (2, Interesting)

tshillig (1095223) | more than 6 years ago | (#18928337)

Isn't this exactly what we wanted to happen? What kind of repurcussions is this going to have on patent-crazy companies like Microsoft?

Re:Finally... (2, Informative)

Harmonious Botch (921977) | more than 6 years ago | (#18928443)

Accoding to TFA, MS was one of the companies that filed an amicus brief
in favor
of the ruling. They see themselves, apparently, as victims of excess patent litigation.

MS-bashing not quite appropriate here. (4, Informative)

Kadin2048 (468275) | more than 6 years ago | (#18928451)

Isn't this exactly what we wanted to happen? What kind of repurcussions is this going to have on patent-crazy companies like Microsoft?

This is one of the reasons why it's good to RTFA ... Microsoft was actually the appellant in this case -- the losing party who pushed the case to the USSC, and just won -- they were fighting AT&T, who claimed that U.S. patents basically could be enforced extraterritorially.

The whole issue was whether Microsoft, a U.S. corporation, was responsible for violating AT&T's U.S. patents (which are not, by and large, enforceable elsewhere, for instance in Europe and Asia -- there's no patent equivalent to the Berne Convention on copyright, really) if they only ever violated them in places where AT&T's patents didn't apply (outside the U.S.).

So if Microsoft went and sold AT&T-patent-encumbered software, but only in Europe, AT&T wanted to sue them for patent infringement here in the U.S. This was obviously a Bad Thing, and would have been a major expansion of patentholder's rights.

The WSJ article [wsj.com] about it today was pretty good. (I think that link should work, since it has the "googlenews_wsj" in the URL to bypass their 'Free Preview' bullshit.)

So in this case, Microsoft was actually the good guy.

Re:MS-bashing not quite appropriate here. (1)

creimer (824291) | more than 6 years ago | (#18928603)

So in this case, Microsoft was actually the good guy.

I think Microsoft is the lesser of two evils as calling them the good guy would be an oxymoron and a trademark violation [thegoodguys.com.au] . :P

Re:MS-bashing not quite appropriate here. (1, Informative)

Anonymous Coward | more than 6 years ago | (#18929167)

"...it's good to RTFA.. "

Yes, so why didn't you?

You are talking about a different case.

Re:MS-bashing not quite appropriate here. (2, Informative)

optimus2861 (760680) | more than 6 years ago | (#18929415)

This is one of the reasons why it's good to RTFA ... Microsoft was actually the appellant in this case -- the losing party who pushed the case to the USSC, and just won -- they were fighting AT&T, who claimed that U.S. patents basically could be enforced extraterritorially.

Actually, TFA isn't about the Microsoft/AT&T patent case, it's about another patent case, KSR International v. Teleflex, in which Microsoft came down on the side of KSR, who were challenging a Teleflex patent on adjustable gas pedals as being too obvious. The Microsoft/AT&T decision is briefly mentioned but it's not the focus of the article. I don't know whether to fault the submitter for not pointing out which case was being referred to, or the editor for not catching it, or both.

Microsoft approved, actually. (RTA) (3, Informative)

Etherwalk (681268) | more than 6 years ago | (#18928461)

The major tech companies wanted the patent reform--they tend to be victims of spurious patent cases. Microsoft, CISCO, Intel, Etc... (And Time Warner) are more concerned about protecting themselves from being sued by a patent squatter than they are about most of their own patents. Also, this lets them hijack other people's ideas more easily.

The major drug companies didn't want the reform, because patents are their life blood. It will get harder for them to patent obvious changes to medicine, such as combining multiple medications in one pill. (Though in some cases they'd still get away with it, I'd imagine, if they can demonstrate that there's some kind of real innovation going on in the time-delay mechanism or something. Or at least they'll argue that...)

Re:Microsoft approved, actually. (RTA) (1)

networkBoy (774728) | more than 6 years ago | (#18928539)

In fact in the case of MS, Intel, and Cisco, I think most of their patent chest is defensive rather than offensive...
-nB

Re:Finally... (1)

jellomizer (103300) | more than 6 years ago | (#18928497)

Well some of their patents will get denied. Actually I think this will actually Help Microsoft. A lot of times they makes these patents not as much to stop competition. But to stop someone else making the patent first and then suing Microsoft. Microsoft has been playing a Patent War that contains both Offensive and Defensive Patents. Some of them they will use to oppress competition others they use to protect themeless from others who would make the patent and shove it in their face. These new rules will probably be helpful for MS. Because it will reduce the number of Patent Holders knocking on the door saying they violated their patents. And for a company who is so Uninovative as MS. It is probably much better then it is harmful to them.

Re:Finally... (1)

theantipop (803016) | more than 6 years ago | (#18928515)

It's very difficult to tell from the article. I haven't read the summary yet, but even that will probably be a bit vague. The courts help narrow the scope of patent code, but they rarely spell everything out enough to remove all ambiguity.

Re:Finally... (1)

vidarh (309115) | more than 6 years ago | (#18928619)

Yes it's a good thing, but RTFA. Microsoft was one of a group of companies that wanted SCOTUS to make this decision. Obvious patents cost Microsoft far more in litigation than what they can expect to lose in licensing revenue.

Finally... (1)

Jaysyn (203771) | more than 6 years ago | (#18928341)

... a little more common sense on the patent front?

Re:Finally... (2, Insightful)

Chris Burke (6130) | more than 6 years ago | (#18928933)

FTA: "Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress," Justice Anthony Kennedy wrote for the court.

Which, yes, is exactly the kind of common sense that seems to have been lacking and that I'm very glad the Court supported. That's the whole problem with patenting "obvious" things -- other people, perhaps many other people, would come up with the idea anyway in the course of solving whatever problem they are working on. Yet if it is patented, then suddenly the idea they would have come up with independently as a solution becomes instead a roadblock that they either have to find a way to work around (and work arounds may be very non-obvious) or pay royalty fees. I think anyone who works in technology developent has seen this happen.

Personally I would probably extend the court's reasoning beyond what they mean, because I think even in cases of real innovation (granted a difficult definition) patents often retard progress. It's all in the phrase I used above "in the course of solving whatever problem they are working on". The vast majority of the time patents are not submitted by a lone inventor who came up with a neat idea they want industry to pay for if they use it, nor are they submitted by a company whose sole desire is to create IP. Normally, it's a company that is trying to make a product, and in the course of creating it they come up with some stuff and decide to patent it. Those patents are mostly there to be weapons in the event of patent litigation, to force negotiations.

Take an example in a field I'm familiar with. Intel and AMD file many patents a year. Yet that IP is not their business. Creating processors that deliver the performance and features customers want, and better than the competition, is their business. They spend years creating a new design with the sole intention of meeting their perf/power/feature/price goals. In the course of so doing, they will come up with quite a few tricks some of which undeniably fit the definition of "real innovation". These will be patented, but again, that patent does little for the company except give them more armament should a patent suit be brought against them. The patent itself doesn't help the goal of creating better processors, because you can't necessarily just slap some random idea into an existing design, and a new design that uses the patent would take years to make and even then would only be a small part of a huge design. Yet those patents also get in the way of anyone else who, in the course of trying to make a microprocessor, would come across the same idea.

That's really part of the fundamental problem. Even things which pass the smell test of "non-obvious" may be independently invented by multiple people. There is basically no thought so unique that it cannot be thought twice. That doesn't mean they shouldn't be patentable, but it does mean that if no patent is necessary (when the idea in the patent is a tiny part in the solution to the company's real problem) then innovation is being unecessarily hindered. Companies like Intel and AMD use their patents as a way to stiff-arm competitors, and as a way to prevent lawsuits from aggressive patent-IP-lawsuit firms, who are in my opinion the real problem. They invent nothing, create nothing, but buy up proprietary ideas as if they were pieces of furniture and use them to attack companies doing real work.

That rant got off track. Suffice to say I'm very glad SCOTUS ruled that an overly limited definition of obvious is contradictory. The fewer "obvious" ideas that can be patented, then the fewer patents will be filed by companies that don't necessarily get any direct benefit from patents but feel they must due to the way patent law works.

P.S. The Microsoft ruling just boggles me, though. Jurisdiction is one of the things all courts seem to be sticklers about, readily stating that some case or part of a case involves actions outside their jurisdiction. Microsoft selling software in Asia et. al. seems to be a really obvious one, so I'm just surprised that the lower court ruled as it did. Again, kudos to SCOTUS for common sense.

Vonage (2, Insightful)

Caffeinate (1031648) | more than 6 years ago | (#18928351)

So does this mean that the scourge of the telecom industry may manage to survive?

Re:Vonage (2, Informative)

maczealot (864883) | more than 6 years ago | (#18928593)

IANAL, but this does seem to suggest that Vonage's lawbots could file something regarding the obviousness of Verizon's patents.

Here are the patents Verizon has, just a cursory reading makes them seem REALLY obvious imho(but then again I am a Vonage customer):
Patent Uno [uspto.gov] Patent Dos [uspto.gov] Patent Tres [uspto.gov]

IANAL (2, Interesting)

Short Circuit (52384) | more than 6 years ago | (#18928375)

I'm not a lawyer, but wouldn't ex post facto prevent this from being used to overturn patents already in place? Or does that only apply to congressional law?

Re:IANAL (1)

jcr (53032) | more than 6 years ago | (#18928459)

wouldn't ex post facto prevent this from being used to overturn patents already in place?

It would probably keep litigants who lost a patent suit from challenging the patent again, which is bad news for RIM. For current litigation though, defendants in patent infringement actions are likely to have a much easier time of it than they did before this decision.

-jcr

Re:IANAL (1)

tricorn (199664) | more than 6 years ago | (#18928771)

No, the law hasn't changed, only the interpretation of it. Plenty of now-obvious patents could now be challenged again.

In addition, even if it was a change in the law, there's nothing that says that can't happen. See, for example, the extension of copyright terms to works already in existence.

Re:IANAL (5, Insightful)

Anonymous Coward | more than 6 years ago | (#18928469)

No. Patents can be re-examined at any time with this ruling in mind. This will apply to every flimsy patent issued because of a bad CAFC ruling made years ago. This is the first time SCOTUS has weighed in on this topic since the Graham v. Deere case that established the rules for Obviousness. By calling for more re-examinations (poor patent office might get overrun), these old patents can and should be overturned. The screaming you hear is the big pharma who are going to lose their butts on this. The people who are happy, well believe it or not, they are the software folks (and patent examiners, who will like being able to reject patents without nearly as much effort as before).

Also, people can use this case as precedent to have patents that they are being sued with overturned, showing that they do not have the strength to overcome obviousness over prior art. (Basically, SCOTUS just re-defined obviousness in prior art. Now that prior art has changed, patents can be overturned on prior art they previously were not able to be.)

Re:IANAL (1)

smartr (1035324) | more than 6 years ago | (#18928509)

SCOTUS interprets the laws. They don't make them. So I'd say no... IANAL

Re:IANAL (1, Insightful)

Pharmboy (216950) | more than 6 years ago | (#18928753)

SCOTUS interprets the laws. They don't make them. So I'd say no... IANAL

Oh really? Ever heard of Roe vs. Wade? Brown vs. Board of Education? Plus a whole string of cases that forces racial quotas in schools via busing, under court order.

Not making a statement as to the wisdom, but these were clearly cases where the court took a stand and created law.

Re:IANAL (1)

rhakka (224319) | more than 6 years ago | (#18929439)

They created nothing. They can strike down laws as unconstitutional which may have the side effect of legalizing something that was previously held to be illegal, but they cannot create law, that is the job of congress. The executive branch signs the law, and the supreme court can overturn the law... that's it.

Re:IANAL (1)

smartr (1035324) | more than 6 years ago | (#18929469)

Most rulings they make are going to have a bearing on how the law is applied. Interpreting the law is arguably more significant of a power than creating law. The main power of the other branches stems more from the ability to allocate funds and war. Either way, I think it is odd how little attention is paid to judges in comparison to representatives.

Re:IANAL (3, Informative)

Anonymous Coward | more than 6 years ago | (#18928547)

"I'm not a lawyer, but wouldn't ex post facto prevent this from being used to overturn patents already in place? Or does that only apply to congressional law?"

No. In a highly technical sense, ex post facto laws as used in the U.S. constitution refer only to laws that affect criminal punishment, either by increasing the punishment for a crime or defining a new crime. There is no per se constitutional prohibition against ex post civil laws, although some retroactive laws might violate due process.

In a more general sense, the court has not changed the law - the Federal Claims interpretation was always subject to alteration by SCOTUS. In essence, the decision today says that this is what the law has always said, and so is not a change at all.

Re:IANAL (1)

ChronosWS (706209) | more than 6 years ago | (#18928667)

The purpose of the ex post facto clause in the US Constitution generally is applied to laws passed by Congress, stating essentially that you cannot make something illegal after the fact. Thus, if it was legal to sell cars a year ago, Congress cannot today pass a law saying that selling cars a year ago was illegal and then put you in jail for having broken a law which didn't exist at the time you committed the act. However, they could pass a law saying that selling cars NOW is illegal, and you'd have to stop immediately. I don't know exactly how this applies to priviledges granted by Congress (vis-a-vis patent law.) Congress could, by law, invalidate all existing patents I imagine. Similarly, SCOTUS can invalidate laws which grant priviledges to persons and corporations, and this happens all the time. So it would seem to me, not being a lawyer, that if the patents are no longer valid because of this ruling, then it is as if they never existed in the first place. Remember, it's not that those patents are now being made illegal (which is where I'd think ex post facto would apply,) they are simply being made invalid and unenforceable. What will probably happen now is that a whole host of lawsuits seeking to overturn obvious patents will arise, and a bunch will get tossed under the new rules. But I am not a lawyer :)

Re:IANAL (1)

udippel (562132) | more than 6 years ago | (#18928895)

No. I still have to read the gory details, but in any case: There is no new law here, but the Supreme Court has helped the lower courts with their definition of 'obvious'.
At least, next time someone starts to sue for infringement, it is easier to get the patent revoked for obviousness.
And the USPTO will sweat about getting the new stand into their guidelines and procedures.

Still, the Supreme Court has not taken any decision about software patents; only on obviousness. In the end it was them who forced the USPTO to grant software patents.

No, not everything is in order from now onwards. It will get slightly less silly.

Windows vs AT&T has some very strange phrasing (4, Interesting)

argent (18001) | more than 6 years ago | (#18928385)

The first point is interesting, reading in part...

Until expressed as a com-
puter-readable "copy," e.g., on a CD-ROM, Windows--indeed any
software detached from an activating medium--remains uncom-
binable. It cannot be inserted into a CD-ROM drive or downloaded
from the Internet; it cannot be installed or executed on a computer.
Abstract software code is an idea without physical embodiment, and
as such, it does not match 271(f)'s categorization: "components"
amenable to "combination." Windows abstracted from a tangible copy
no doubt is information--a detailed set of instructions--and thus
might be compared to a blueprint (or anything else containing design
information). A blueprint may contain precise instructions for the
construction and combination of the components of a patented device,
but it is not itself a combinable component.
What exactly is this "Windows in the abstract" separate from "a copy of Windows"? Do they mean that if I copy a software program that incorporates a patented invention, until that copy is converted into a deliverable form it's actually not an implementation of the patented invention. So, for example, software distributed as source code can't violate a patent until it's compiled?

Microsoft may have laid up a whole heap of trouble for themselves here.

Re:Windows vs AT&T has some very strange phras (1)

ThunkDifferent.com (1095229) | more than 6 years ago | (#18928521)

It makes you wonder if Xerox will jump on the bandwagon, no?

Re:Windows vs AT&T has some very strange phras (1)

rjstegbauer (845926) | more than 6 years ago | (#18928697)

OK...I'll bite.

Why would Xerox care about this more than any other company that files offensive and defensive patents?

Does this have something to do with their historically GREAT decisions on what to market and sell?

Sometimes, I play Mr. Obvious and you have to hit me on the head with a hammer.
Randy.

Re:Windows vs AT&T has some very strange phras (1)

RingDev (879105) | more than 6 years ago | (#18928569)

"So, for example, software distributed as source code can't violate a patent until it's compiled?"

That was my reading of it, but IANAL.

-Rick

Re:Windows vs AT&T has some very strange phras (3, Interesting)

NeutronCowboy (896098) | more than 6 years ago | (#18928617)

Interesting... it sounds like they are saying that code itself - i.e. the stuff you get on a printout, on a t-shirt, anything that isn't part of an executable - is not patentable because it is a set of instructions, rather than a device.

If that's true, all I can say is... Wow. All software patents will basically have to be revisited, because on the face of it, it sounds like software cannot be patented anymore.

Am I missing something here? Or can I start the happy software-patents-are-dead dance?

Re:Windows vs AT&T has some very strange phras (1)

mhall119 (1035984) | more than 6 years ago | (#18928901)

That is why most software patents contain language like "Methods and apparatus to ...", followed by what the software will do. You can't patent 2+2=4, but you can patent an apparatus and methods that would compute 2+2=4. The problem I have with software patents is that they are patenting the results, and not the process and mechanisms to achieve the results. My example above would cover any implementation of a calculator, without having to actually "innovate" a calculator, meaning you don't have to figure out how to perform the calculation, you just patent a device that can do it and wait for someone else to implement such a device, then sue them for their hard work.

I think software patents would be beneficial to society if their lifetime were representative of the fast pace of software evolution (meaning less than the current 20 years), and if the submitter were required to include the "blueprints" for the methods and apparatus like they do for patents on physical objects, meaning the source code implementation of the methods, and the hardware implementation of the apparatus. This would mean that patent trolls would have to actually create an implementation of what they are trying to patent, and let everyone know how they did it. The provided material would also go a long way towards showing whether a patent is obvious or not.

Re:Windows vs AT&T has some very strange phras (1)

mike2R (721965) | more than 6 years ago | (#18928955)

Unfortunately I think you may be over interpreting the decision - IANAL and haven't finished the opinion yet. The key phrases seem to me:

While reading 271(f) to exclude from coverage foreign-made copies of software may create a "loophole" in favor of software makers, the Court is not persuaded that dynamic judicial interpretation of 271(f) is in order; the "loophole" is properly left for Congress to consider, and to close if it finds such action warranted. Section 271(f) was a direct response to a gap in U. S. patent law revealed by Deep-south Packing Co. v. Laitram Corp., 406 U. S. 518, where the items exported were kits containing all the physical, readily assemblable parts of a machine (not an intangible set of instructions), and those parts themselves (not foreign-made copies of them) would be com-bined abroad by foreign buyers. Having attended to that gap, Congress did not address other arguable gaps, such as the loophole AT&T describes. Given the expanded extraterritorial thrust AT&T's read-ing of 271(f) entails, the patent-protective determination AT&T seeks must be left to Congress. Cf. Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 431. Congress is doubtless aware of the ease with which electronic media such as software can be copied, and has not left the matter untouched. See the Digital Millennium Copyright Act, 17 U. S. C. 1201 et seq. If patent law is to be adjusted better to account for the realities of software distribution, the alteration should be made after focused legislative consideration, not by the Judiciary forecasting Congress' likely disposition.

ie this decision is based on the court's interpretation of Congress's intention of a specific exception to current law which purely applies in the area of exports.

From the paragraph immediately above comes an interesting and somewhat heartening passage to a non-American:

Foreign conduct is generally the domain of foreign law, and in the patent area, that law may embody different policy judgments about the relative rights of inventors, competitors, and the public. Applied here, the presumption tugs strongly against construing 271(f) to encompass as a "component" not only a physical copy of software, but also software's intangible code, and to render "supplie[d] . . . from the United States" not only exported copies of soft-ware, but also duplicates made abroad. Foreign law alone, not United States law, currently governs the manufacture and sale of components of patented inventions in foreign countries. If AT&T de-sires to prevent copying abroad, its remedy lies in obtaining and en-forcing foreign patents.

Changes very little. (1)

pavon (30274) | more than 6 years ago | (#18929307)

If that's true, all I can say is... Wow. All software patents will basically have to be revisited, because on the face of it, it sounds like software cannot be patented anymore.
This has always been true - you cannot patent algorithms, just devices. However, software running on a computer is a device, and this ruling does not change that. Therefore, it will only change a few corner cases, where the software is not "combined with a device" (installed or executed) in the US.

Re:Windows vs AT&T has some very strange phras (1, Interesting)

Anonymous Coward | more than 6 years ago | (#18928657)

So, for example, software distributed as source code can't violate a patent until it's compiled?

Software can't violate a patent until it's executed on a computer because software is not patentable. What they patent is the functionality of the software as part of a computing device (have fun with the analogies). Unlike copyright law, it is not the distributor that is liable for infringement but the end-user.


Yes, algorthims are not patentable just devices. (1)

pavon (30274) | more than 6 years ago | (#18929171)

So, for example, software distributed as source code can't violate a patent until it's compiled?
Actually the Supreme Court took it one step farther - patents are not enforceable on software until it is combined with (installed on) a device that can run the software.

You cannot patent algorithms, just devices - this has been true since the beginning. The Supreme Court has never ruled that software is patentable, just that a device implemented using software is just as patentable as one implemented using hardware. It has long been believed that source code would not be considered a device, but just a description of a device, and is thus no more protected by patent law than a technical spec or published paper. However, programs running on a computer have been ruled to be a device, and therefore in practice sofware is patentable, even though technically it is not.

This case focused in part on the question of whether compiled code is a device - and the answer was no, it too is just a description. In practical terms this means very little for domestic software producers - since you can't run software without a computer, either you or your customer will be breaking the law if one of you does not license the patents, and knowingly selling software that needs patents licenses, without informing your customers about it will get you in bit trouble. Furthermore, even if you do inform your customers, you could have problems depending on the circumstance.

As far as international trade, it has the effect that patent export laws do not apply to software. With a physical device if you build it here and ship it abroad you have to pay patent royalties, but if you send the plans abroad and produce and sell it there, then US patent laws don't apply. Since software is simply a description, as long as the computer (or embedded device) is produced abroad, and the software is installed abroad, you don't have to pay US patent royalties. Of course you do still have to pay patent royalties in the other country if they apply.

Another area that it could have an impact in is open source drivers, especially firmware. You could argue that anyone that uses the software has paid for any required patent licenses when they bought the hardware in question. And since the court ruled that there is no difference between machine language and source code as far as patents go, they are no longer an excuse for providing binary only drivers. (Of course all the companies that are claiming "patent issues", are really probably trying to protect trade secrets).

Re:Windows vs AT&T has some very strange phras (1)

theantipop (803016) | more than 6 years ago | (#18929187)

Software per se is not patentable. It is considered an abstract idea in the realm of algorithms and natural phenomenon. How people get around this is to patent that same software on a physical medium that is then used to produce some kind of tangible or usable result.

Re:Windows vs AT&T has some very strange phras (1)

deblau (68023) | more than 6 years ago | (#18929213)

If I have the source code of Windows in my head, that's "Windows in the abstract". In order to install it on a computer, I have to make a tangible representation of that source code (i.e., I have to write it down). This is the master disc. As far as I can tell, when the court talks about copying, they mean physical copies.

The quoted language says that my 'idea' of Windows can't be a component of a patented item. A blueprint may tell how to build something, but only the piece once built may be a component. The court doesn't decide whether the master disc itself could be a component if it were used to install Windows directly, since it wasn't actually used for that in this case, but leaves open the possibility. That's the issue with 'footnote 14'.

Did he just say that? (2)

Red Flayer (890720) | more than 6 years ago | (#18928405)

``Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress,'' Justice Anthony Kennedy wrote for the court.
I'd like to reword that a bit:

"Granting patent protection to advances that would occur in the ordinary course without real innovation is the progress of retards"
Seriously, though, maybe it's just the nature of the patent-related articles I see on Slashdot, but the real quote seems like the most concise statement on obviousness I've read.

The good news is that this court apparently recognizes the original purpose of patents.

The bad news is that this blindingly obvious quote was selected for inclusion in the article because the patent system has been viewed as a driver-of-revenue instead of a driver-of-innovation for so long.

Some common sense, at last! (2, Informative)

boxless (35756) | more than 6 years ago | (#18928427)

IANAL, but this ruling seems so clear and unabiguous, I've got to believe it will put a dramatic damper in patent troll activity. The decision (I've only read the summary) seems to be fairly even-handed. The old teaching-suggestion-motivation test might be a reasonable test to use in some cases, but not at the expense of common sense.

I think the justices 'got it'.

from the ruling:
Inventions usually rely upon building blocks long since uncovered, and claimed discoveries almost necessarily will be combinations of what, in some sense, is already known. Helpful insights, however, need not become rigid and mandatory formulas. If it is so applied, the TSM test is incompatiblewith this Court's precedents. The diversity of inventive pursuits and of modern technology counsels against confining the obviousness analysis by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasizing the importance of published articles and the explicit content of issued patents. In many fields there may be little discussion of obvious techniques or combinations, and market demand, rather than scientific literature, may often drive design trends. Granting patent protection to advances thatwould occur in the ordinary course without real innovation retardsprogress and may, for patents combining previously known elements,deprive prior inventions of their value or utility.

Positive patent reform in America? (1)

orclevegam (940336) | more than 6 years ago | (#18928537)

I'm pretty sure that's one of the signs of the apocalypse.
Now, if we can just get this whole copyright thing straightened out a little bit (like maybe reducing the lifetime of a copyright instead of increasing it for a change), and repeal all the legislation on software patents, we may just get somewhere.

Concise explanation? (1)

porcupine8 (816071) | more than 6 years ago | (#18928609)

TFA doesn't give much details. I tried reading the ruling, but I just don't have enough background knowledge for it to be clear.

Can someone give concise, easy-to-understand answers to these questions:

1. What was the old, "rigid" definition of obvious?

2. What does this decision change about that definition?

Re:Concise explanation? (2, Informative)

blckbllr (242654) | more than 6 years ago | (#18928717)

Porcupine8,

I'll try to address the first question, and then return later to address the second question, unless someone finishes the opinion before me.

KSR International Co. v. Teleflex Inc., isn't so much about "obviousness" per se, but about the "teaching-suggestion-motivation" prong of the obviousness inquiry. According to the Manual of Patent Examination and Procedure, an Examiner can establish a prima facie case of "obviouness" by showing that:

"First, there must be some suggestion or motivation, either in the references themselves or in the knowledge generally available to one of ordinary skill in the art, to modify the reference or to combine reference teachings. Second, there must be a reasonable expectation of success. Finally, the prior art reference (or references when combined) must teach or suggest all the claim limitations." MPEP Section 2143 [uspto.gov] .

To understand the "teaching-suggestion-motivation" to combine prong of the "obviousness" inquiry, I would suggest reading MPEP Section 2143.01 [uspto.gov] .

I've briefly read what the Supreme Court said about the Federal Circuit's decision, but I haven't had time to digest it yet. It seems somewhat amorphous to meet at this point, or in other words, there doesn't seem to be a definitive holding (e.g., "We hold that...") at this point.

The views expressed herein are in no way associated with any private entity or government organization

Re:Concise explanation? (1)

BadMrMojo (767184) | more than 6 years ago | (#18929333)

Depending upon the GP's level of comfort, that may or may not actually be legible. blkbllr clearly knows his shit, so I'll defer to him on any details, but if you're looking for a slightly simpler - although less factually accurate - explanation:

Any invention is assumed to be made up of previously invented components, combined in some fashion. Part of the test to see if a particular combination of components is obvious is the TSM method described by the parent.

The previous practice is to try to tell if an average professional in the field ("one of ordinary skill in the art") who had the same components would put them together in the same way in order to solve the same problem. If so, the 'invention' is not patentable because it is obvious.


(Please let me know if that is too much of a simplification to be considered remotely accurate.)

Re:Concise explanation? (1)

udippel (562132) | more than 6 years ago | (#18929289)

We will have to see. There is new case law to be established. At first glance, this part of the second decision sounds quite orthogonal to what we have had to read before:

When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense.

That is quite remarkable, considering that the invention consisted of replacing a mechanical transfer of throttle (pedal position) by an electronic sensor. Something like this used to have good chances for success before. On the silly reasoning that electronics has less wear and tear it could be considered 'advantageous' and non-obvious.
With this decision Supreme Court defined that combining an existing system (pedal) with an electronic sensor as 'normal', 'non-inventive'. It explicitely (and I guess intentionally) used the term 'anticipated success', effectively removing hindsight as argument for non-obviousness; as long as the outcome remains 'expected' and does not yield non-anticipatory results. Like the system prducing sliced bread miraculously as well ... .

I wonder how the European Patent Office is going to react ? Anyone from there reading /. and has some inside info ?

If you want serious change.. (2, Interesting)

Anonymous Coward | more than 6 years ago | (#18928615)

The US is relying on IP to carry the current standard of living forward. The US does not export or make much of anything any more. IP is a growing percentage of the US exports and "ownership". The US can not maintain its economy on hard physical goods any longer and IP is the only alternative means of money producing items.

If you want serious change, you have to understand the motivation that put many of these laws into place and keeping these laws tough. That is why there is resistence. Take any company with a strong IP portfolio, what do they actually produce and would they have the income they did if IP was not involved? See why there is resistance to change?

Re:If you want serious change.. (0)

Anonymous Coward | more than 6 years ago | (#18928803)

When the west no longer manufacture anything these "IP" portfolios will be useless, the cost of labor in the west is going to have to fall in line with the developing world. An "IP" cartel (AKA: "information based economy") is a short term solution that is provably harmful.

Taken (1)

Tablizer (95088) | more than 6 years ago | (#18928623)

I already patented the combination of common sense and judge mental processes. Thus, the Court owes me!

I thank You for 7our time (-1, Troll)

Anonymous Coward | more than 6 years ago | (#18928631)

mem3erS are

One of these things is not like the others (2, Interesting)

$RANDOMLUSER (804576) | more than 6 years ago | (#18928659)

Companies that are frequent targets of patent-infringement claims urged the Supreme Court to overturn the Federal Circuit test. The group included Intel, Cisco, Microsoft, Time Warner Inc., Viacom Inc., Micron Technology Inc. and automakers General Motors Corp., Ford Motor Co. and DaimlerChrysler AG.
And what, pray tell, is Time Warner getting patent infringement suits over? Or patenting themselves for that matter?

Re:One of these things is not like the others (0)

Anonymous Coward | more than 6 years ago | (#18928809)

Doesn't Time Warner own AOL? Wouldn't AOL be party to certain technological innovations that might get Time Warner in a Bind?

Re:One of these things is not like the others (1)

cswiger (63672) | more than 6 years ago | (#18929085)

And what, pray tell, is Time Warner getting patent infringement suits over? Or patenting themselves for that matter?

Cable set-top boxes & internet routers. Mechanisms for correcting the optical dispersion of long-distance fibre runs. Fibre or coax in-line amplifiers. Stuff like that.

Re:One of these things is not like the others (0)

Anonymous Coward | more than 6 years ago | (#18929603)

AOL is a part of Time Warner and has a patent for IM for starters

Damn (1)

Dunbal (464142) | more than 6 years ago | (#18928693)

Thanks to the Supreme Court, now I'll never be able to get my patent for using written tokens to represent phonetic sounds approved. Hey, wait a second... the Supreme Court just denied me potential profit. I guess I will now file a MAFIAA type lawsuit against them for lost potential income and claim that they've put "thousands of people" out of work by this decision...!

does this now mean I can't... (1)

davygrvy (868500) | more than 6 years ago | (#18928733)

patent my "ball shaped protrusion for entry-way passage"? I was getting the language patent ready with such phrases like "the device claims an easy hand accessible shape installed at an appropriate height for easy use to open a passage-way". and my favorite "The device claims child safety by being too large to fit a child's hand".

SCOTUS gets it - see this statement: (5, Insightful)

boxless (35756) | more than 6 years ago | (#18928815)

At the end of the full ruling is this little chestnut:

We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, 8, cl. 8.

So how does this benefit Vonage (1)

kilodelta (843627) | more than 6 years ago | (#18929341)

I would think Vonage has a shot at overturning the verdict against them now. Good, and hopefully they'll file anti-trust against Verizon.

Impact on Software Patents (2, Insightful)

UnknowingFool (672806) | more than 6 years ago | (#18929495)

I thought this part had the most impact on software patents:

Third, the court [Federal Court of Appeals] erred in concluding that a patent claim cannot be proved obvious merely by showing that the combination of elements was obvious to try. When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp.

After all, there are only so many ways to code 1 + 1 = 2. Many tech companies like IBM, MS, Sun, etc have huge portfolios of patents mostly for defensive purposes. With this ruling, it would seem that some of their patents are unenforceable.

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