Software Patents are Crumbling

The courts have been striking them down at a dizzying pace since June.

Patent Gavel

Timothy B. Lee notes that, since the Supreme Court’s ruling in Alice v CLS Bank in June, a slew of patents on software have been struck down by lower courts.

In recent weeks, the courts have been following the Supreme Court’s lead and ruling that these patents are illegal:

  • On July 6, a Delaware trial court rejected a Comcast patent that claimed the concept of a computerized telecommunications system checking with a user before deciding whether to establish a new connection. The court noted that the steps described in the patent could easily be performed by human beings making telephone calls.
  • On July 8, a New York court invalidated a patent on the concept of using a computer to help users plan meals while achieving dieting goals. The court was unimpressed with the patent holder’s argument that some of the details in the patent — such as the use of “picture menus” to choose meals — was sufficient to render it a patentable idea.
  • On July 17, the Federal Circuit Appeals Court (which is in charge of all patent cases) rejected a patent on the concept of keeping colors synchronized across devices by building a profile that describes the characteristics of each device. The court held that the creation and use of these profiles were merely mental steps that could be done by a human being and were therefore not eligible for patent protection.
  • On August 26, the Federal Circuit rejected a patent that claimed the concept of running a bingo game on a computer. “Managing the game of bingo consists solely of mental steps which can be carried out by a human using pen and paper,” the court ruled. Converting that process into a computer program doesn’t lead to a patentable invention.
  • On August 29, a California court struck down a patent on a method of linking a mortgage line of credit to a checking account. The court said that the generic computer functions mentioned in the patent were not enough to merit protection.
  • On September 3, a Texas trial court invalidated a patent on the concept of using a computer to convert reward points from one store to another. The court held that the “invention” claimed by the patent “not fundamentally different from the kinds of commonplace financial transactions that were the subjects of the Supreme Court’s recent decisions.”
  • In a second September 3 decision, a Delaware trial court rejected a patent on the concept of an intermediary selectively revealing information about two parties to each other — using a computer. The court noted that it has long been common for corporate headhunters to withhold certain information about an employer from potential employees (and vice versa) until both parties are ready to proceed.
  • On the same day, the same Delaware court invalidated a patent on the concept of using a computerized system to “upsell” customers who buy one product on other products that might interest them. The court pointed out that upselling is as old as commerce itself.
  • In a final decision the same day, the Federal Circuit appeals court struck down a patent that claimed the concept of using surety bonds to guarantee a transaction — using a computer. The court pointed out that surety bonds have been around since ancient times, and performing this well-known transaction with the help of a computer doesn’t turn it into a patentable invention.
  • On September 4, a California trial court rejected a patent on the concept of using a computer network to ask people to do tasks and then wait for them to do them. The court pointed out that people have done this with telephones for decades, and that doing the same thing over the internet doesn’t count as an invention.
  • On September 11, a Florida court invalidated a patent on the concept of subtracting a small amount of money from each of many payments in order to accumulate a larger sum of money — using a computer. The court noted, these kinds of schemes have been widely known for centuries. For example, the plot of Superman III involved a villain using this kind of scheme to steal from co-workers’ paychecks.

These rulings might seem like common sense, but it’s important to remember that every single one of these patents was examined and approved by the patent office. That’s because until recently, this kind of “invention” was considered eligible for patent protection. The patent office has issued hundreds of thousands of software patents over the last two decades, and many of them look like this.

It’s not at all obvious why some of these rulings are “common sense.” Pretty much EVERYTHING done by computers was previously done by human beings using more laborious methods. For that matter, so was pretty much everything done by any patented device one can imagine. By this logic, a vastly improved can opener or corkscrew, to use two simple non-computer machines, would be unpatentable because we can already open cans and wine bottles. Indeed, even the very first can opener and corkscrew would be unpatentable because, well, rocks.

Beyond that, it strikes me as fundamentally not the job of courts to make these decisions. Judges are notorious morons when it comes to technology. The Constitution gives the power to award patents to Congress, which long ago delegated the day-to-day process of reviewing and issuing them to the Patent Office, which is staffed by technical experts. They’re Constitutionally entitled to substantial deference in applying their expertise, with Congressional oversight—and, yes, I know that it has been sorely lacking across the board in recent years—as the primary backstop. The courts have no obvious role here aside from litigating the enforcement of claims, which should be on the basis of similarity of the new device/software to the patent, not on the desirability of the patent in the first place.

Now, I’m sympathetic to the notion that we grant far too many patents and, especially, that the period of exclusivity is far, far too long.  Maybe there should be some sliding scale based on the novelty of the idea and difficulty of implementation.

Lee references, for example, Amazon’s patent on 1-click shopping. It seems patently obvious (pun originally unintended) that others ought be able to copy that by now. At the same time, it’s a pretty big innovation and I have no problem with Amazon enjoying exclusive rights to it for some limited period of time. Given that the concept itself seems pretty obvious and was likely to be implemented by some other company reasonably soon, maybe Amazon ought to have enjoyed something like a 3-year head start on the competition. That’s enough to reward innovation yet not so long as to stifle the spread of good ideas.

Regardless, though, this is a job for Congress. I know the system is currently broken. That’s frustrating as hell. But it doesn’t invalidate the Constitution. Rather, it places the burden on the citizenry to demand better performance from their elected representatives or to elect better representatives.

 

FILED UNDER: Law and the Courts, Science & Technology
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. TastyBits says:

    In television if copyrights were like patents, a copyright would be issued for a character wearing a blue hat and another for a character wearing a red hat. The thumbs up would be copyrighted, and “wassup” would also be copyrighted. Car chases would be copyrighted, and zombie attacks would be copyrighted.

    In order to make a television show, the producers would need to license everything they were using that had a copyright, or they would need to cut it. They would need to copyright anything they could find for the inevitable copyright war, and they would need to keep a lot of cash on hand.

    When they were sued, they would begin trading copyright licenses. If they did not have enough copyrighted material, they would pay the other company. If the other company had a competing show, they might sue to keep the show from being aired.

    Being the first to do something is not the same as creating something.

  2. JKB says:

    Well, we only have these summations of the decisions here. But I do remember a post by on one of the blawgs that discussed that just taking an action and using a computer to do it wasn’t novel enough for a patents. That seems to be the issue being decided by many of these decisions.

    But your idea of a shorter patent period for software patents is intriguing. Given that they are quicker to perfect and faster to market than say a patent on a physical/mechanical invention, it may be a good solution. To bad Congress won’t go for it, not enough room for graft. But the truth is, not issuing patents for software inventions would probably not have an appreciable impact on the work on such inventions. As we see with the things like Linux, etc., there seems to be enough reward to spur creation even absent monopoly on the invention given by government.

  3. OzarkHillbilly says:

    Rather, it places the burden on the citizenry to demand better performance from their elected representatives or to elect better representatives.

    So, you’re in favor of the status quo, I take it? πŸ˜‰

  4. Brett says:

    Unfortunately the courts were forced to step in here.you don’t discuss at all the extreme problem of regulatory capture in the patent office. They are not entitled to deference if they are breaking the law.

  5. DrDaveT says:

    While it is certainly true that most things we do using computers were once done by hand or by personal communication, that’s not the right test. The computers themselves, and actual innovations in how to make them work, are patentable, and those patents stand — those are the ‘corkscrews’ and can openers in your analogy. The “use of a computer to do X” patents are much more like being able to get a patent on using someone else’s can opener design to open a red can, and one for 12-ounce cans, and one for aluminum cans.

    Where things get really fuzzy is the area of algorithms. If I invent a new cryptographic scheme that keeps my data more secure than yours, should I be able to patent it? It’s just a sequence of arithmetic actions, similar to those that people have been using for centuries — just better, and implementable because computers are now very fast.

    When Narendra Karmarkar invented the first practical polynomial-time algorithm for solving linear optimization problems, back in the ’80s, his employer (Bell Labs) tried to patent it. The fight that ensued both in the courts and the academic community was epic. I don’t remember whether Bell Labs lost, or whether they won but the patent definition was narrow enough that very very similar algorithms weren’t covered. (Those arrived almost immediately, reverse-engineered by the rest of the optimization community as soon as they knew it was possible) Either way, every commercial optimization package these days includes those methods, and I doubt they’re paying royalties for them.

  6. James Joyner says:

    @DrDaveT: I don’t know what the right test is exactly. But I do think writing software is a real creative skill and some of their creations ought to be protectable. Otherwise people will have to compete against those who steal their code via reverse engineering. And I think we ought have experts at software creation make those decisions rather than ordinary judges.

  7. By this logic, a vastly improved can opener or corkscrew, to use two simple non-computer machines, would be unpatentable because we can already open cans and wine bottles

    But “Can Opener” wouldn’t be patentable. To use the classic example, Thomas Edison can patent “producing light via an incandescent filament encased in an evacuated glass container”. He can’t patent “providing light to a room” and then sue window makers for violating his patent.

    Too many software patents are of the later nature.

  8. At the same time, it’s a pretty big innovation and I have no problem with Amazon enjoying exclusive rights to it for some limited period of time.

    With all due respect, it wasn’t a big innovation. It wasn’t even a small innovation. If you were actually a computer expert you’d probably realize how trivial it was. Which is of course the problem here. Most of the people at the patent office and the courts have no clue what’s involved with the technology they’re reviewing and have no way of judging the significance of anything they’re reviewing.

  9. Ron Beasley says:

    I think the difference is between code and a concept. Apple sued Microsoft over Windows and lost because they were claiming a patent on a concept not on code. Should you be able to patent code – code, yes. Should you be able to patent a concept – the answer is no..

  10. Brett says:

    @James Joyner:

    Sure, so let them copyright their works all they want. Just like other creative properties. But that doesn’t entitle them to patent protection.

  11. Gustopher says:

    Part of the requirements for a patent is that the invention has to be non-obvious. “Do X with a computer” for most values of X is incredibly obvious, whether X can or cannot be done by hand.

    Innovative user experiences are non-obvious. The one-click patent falls into that category, mostly.

    Complex security algorithms and compression schemes are non-obvious, but the idea of encrypting and compressing data using a computer is obvious.

    It’s good that the courts are beginning to figure some of this out, since improperly granted software patents have really been a plague upon the industry. The patent office really should have better examiners, but it suspect the examiners tend to follow a template of “do X using a computer was held valid by courts, so I guess do Y using a computer also is valid” where a few terrible patents early on are the precedent.

  12. DrDaveT says:

    @Gustopher:

    The patent office really should have better examiners

    Our public schools really should have better teachers, too. That’s not the non-sequitur it may sound like, because the root cause is the same — we don’t pay them enough or provide good enough working environments for the people we WANT doing those jobs to have any interest in them.

    And, as others have noted, it doesn’t help that the courts are staffed by people who are strongly self-selected for complete ignorance of science, technology, engineering, mathematics, cybernetics, etc.

  13. @Ron Beasley:

    Apple sued Microsoft over Windows and lost because they were claiming a patent on a concept not on code.

    Apple Computer, Inc. v. Microsoft Corp. wasn’t a patent infringement case, it was a copyright infringement case. Patents, copyrights, and trademarks are widely different things.

  14. DrDaveT says:

    @James Joyner:

    But I do think writing software is a real creative skill and some of their creations ought to be protectable.

    As others have noted, “creative skill” is protected by copyright, not by patent. Patent is for inventions and processes that are novel in significant ways and convey a competitive edge.

    That’s why algorithms are such a gray area. They are processes, and a new algorithm can certainly be novel, and convey a competitive advantage. But the traditions of the mathematics and computer science communities are very strongly “open source”. A patent provides a way to do both — publish the finding and get the financial advantage — but is viewed as sleazy commercialism by many practitioners.

  15. geo says:

    If cars had patents like computer software, some idiot would have patented the specific combination of turns to drive from your workplace to your house.

    Computer software patents take a machine anticipated by its designers to be an omnipotent general instruction machine and turn it into a machine regulated and limited by the specific instructions owned by a third party who may not even grasp the foresight of the original machine designers.

    The for next loop and if else decision instructions would have been patented by early computer software engineers if that had been the intent of the machines control.

  16. geo says:

    @James Joyner:

    Good software engineers DID sucessfully compete against others who used their code. They did this by writing new and better code.

    This code availability and speed of progress is why computer software advanced so quickly beforepatents came on the scene v(promoted by a desperate Microsoft losing monopoly marketshare to free software like Linux)

    The test of a good software engineer and company is continued production and innovation. Not sitting on the patent on your last code.

    And copyright IS availble to software just like music. But that doesn’t stop the new song from being written like software patents do. The best song writers succeed becuase they continually write new good songs just like the best software coders.

  17. geo says:

    I would love to know the number of software patent challenges now pending in the courts after the supreme court decision.

    For example perhaps finally coders like myself will be rid of the fear of the dreaded patents suing us on android phones (often held by Microsoft)

    I can’t wait to see this software patent extortion racket torn apart so we can get back to coding like the 1990’s .

    Regular people have NO IDEA how much software they ARE NOT SEEING WRITTEN for their phones because of the emergence of the software patent fiasco since the 1990’s.

    If cooking was similar patented no one could have a cheeseburger with anything other than American cheese and no restaurant could afford to sell one to you becuase of the license fee or threat of lawsuit by the cheeseburger patent holder.

  18. rudderpedals says:

    @geo: Great comments, I would subscribe to your newsletter. Part of what happened is that business processes became patentable and in with that came the novel concept of using a programmed computing device to perform some well known obvious procedure that used to be done on paper. Copyright wasn’t optimal but it was more appropriate in light of the way patent law precludes third parties from independently arriving at the same obvious use for a programmed computing device to do whatever.

    That’s a heckofa interesting experiment you’re running at your web site. No earthquakes here but that solar info is gold for radio enthusiasts.

  19. Franklin says:

    I’m no patent lawyer as you’ll soon find out, but …

    As I recall, one of the criteria for patents is something about how the idea needs to be something that isn’t blindingly obvious to anyone else trying to solve the same problem. As a computer programmer, almost all of these are blindingly obvious. Seriously, if I was tasked to make a bingo game, it would take a very small fraction of my skillset to pull off. And I’m not exactly John Carmack here. And if it’s simply the idea of putting bingo on a computer, I’m sorry but I don’t see where the innovation is where you transfer some existing game to a computer.

    I guess I’m slightly sympathetic to James’ argument that *just because* a human can do something, doesn’t mean that software to do the same isn’t patentable. But the examples I’m looking at above are pretty dang straightforward.

  20. Franklin says:

    Also, unless I’m mistaken, the Patent Office was virtually being run as a for-profit operation, with the goal to be to approve as many patents as possible. Every patent approved since this policy was instituted is suspect. If it takes some dinosaur judge to be the one who calls them out on this, so be it.

  21. Tony W says:

    While I benefit personally from patent protection, this sort of rent seeking from the government is yet another category in the 1%’s version of welfare. As I get older I am moving toward favoring revocation of ALL patents.

    Let corporations release products and compete on the open market. Ideas are cheap anyway – it’s what you do with the idea that really matters. I can see where certain forms of R&D (drug patents) will be dramatically affected by such a move – but I’m not sure that’s a bad thing for society.

  22. MarkedMan says:

    James, I’m curious. In what way was the Amazon 1-click innovative? I usually trot it out as an example of just how ridiculous the modern patent system has become.

  23. MarkedMan says:

    @Stormy Dragon: although you are correct that Microsoft vs. Apple wasn’t a patent infringement case, the context is important. Software wasn’t patentable until 15 or 20 years ago. Technically, it still isn’t patentable. Only physical devices are. That’s why the patents all say “use a computer to…” Or some variant of that language. The workaround some lawyer figured out was to patent the computer doing the thing enabled by the software, not the software itself.

  24. James in Silverdale, WA says:

    This needs to happen because more and more software is writing other software, which means machines are writing much more of it than humans. I have worked on projects where this nesting has been up to five levels deep, with only a tiny percent actually written by a human being. Models to predict how a five-level nested systems behave are out of the scope of this document.

    Programmers also vastly inherit what came before or no deadlines could possibly be met. Given how much software code changes in real time, patents will become increasingly unworkable for software.

  25. MarkedMan says:

    To my mind the patent office has completely dispensed with the ‘must not be obvious to one schooled in the art’, ie should take more than 5 minutes for an engineer to come up with. And it’s not just software. For instance, there are a bunch of patents held by a certain medical device company for their surgical robot. One could argue that the bulk of these are straightforward uses of pre-existing mechanism and techniques but applied during surgery.

    An analogy: if Bell got his patent for the telephone today, a hundred others would follow patenting the phone used to call your lawyer, the phone used to call your family, etc.

  26. Trumwill says:

    @TastyBits:

    In television if copyrights were like patents, a copyright would be issued for a character wearing a blue hat and another for a character wearing a red hat.

    There was a time when the combination of pretty basic superpowers resulted in a judgment for DC Comics (National Comics, at the time) that it violated their IP of Superman.

    Anyway, the example I like to use (Yglesias uses it to, though my use of it dates back before his) is that if software patents applied to the auto industry, only one company would be able to use steering wheels while others would have had to figure out joysticks or somesuch.

  27. MBunge says:

    @geo:The test of a good software engineer and company is continued production and innovation. Not sitting on the patent on your last code.

    And what happens when that software engineer gets sick or old or just spends a lot of time on an idea that never goes anywhere?

    Ridiculous patents and rent-seeking are real problems. I’m not sure they’re worse problems than being stuck on the treadmill of capitalism until you waste away and die.

    Mike

  28. george says:

    @Ron Beasley:

    I think the difference is between code and a concept. Apple sued Microsoft over Windows and lost because they were claiming a patent on a concept not on code. Should you be able to patent code – code, yes. Should you be able to patent a concept – the answer is no..

    That’s basically it. If Newton had patented F=ma or Einstein E=mc^2, or if Archimedes had patented the concept of leverage, it would have been excellent financially for them and their descendants, but it’d have been horrible for scientific and technological advance.

    Take a look through a first year science text, where they go through the basics (Faraday, Darwin, Galileo, Mendel, Ohm – and then note that just about about every discovery would be patent-able by today’s laws. And then think about how effective that would have been in slowing advance.

  29. geo says:

    @Franklin:

    You raise an important point. It was Reagan who decided the Patent Office must pay for itself which was a huge change.

    This meant higher fees for US inventors and a very compressed time period for examination becuase the examineers had to spend less time on each patent. This was the primary cause of bad patents being issued.

    The patent office should not be self supporting. It is a constitutional guarantee of the government. (patents are one of the fee things in the actual constitution they were deemed so important for progress by the founders.)

    More examineers having more time would mean less costly patent missues and save the economy billions in wasted legal misteps and economic product limitations.

    Make the patent office have whatever it needs to functions well. To hell with it breaking even.

    Ironically the need for fees means millions of small inventors can’t get patents at all. Even microentity fees are $600 per patent.

    And any inventor worth his salt comes up with hundreds of great ideas in their lifetime.

    Which makes them sit on a shelf unrevealed because the fees are unaffordable.

    And we all suffer for the shelving of some of these break through products.

  30. Tim Lee says:

    Hi James,

    Thanks for the thoughtful post! A couple of thoughs:

    * The problem with these patents isn’t simply that they perform tasks that were previously performed using more laborious non-computer methods. The problem is that the “invention” consists of nothing more than taking the sequence of mental steps people used to perform with a pen and paper (say, keeping track of a bingo game) and performing those same steps on a generic computer. The “inventor” neither came up with a better way to manage a bingo game, nor did he invent a new kind of computer. His “invention” is simply the idea of combining the two. The courts said, reasonably enough, that “hey, you could perform this computation on a computer!” isn’t a significant enough insight to merit patent protection.

    * I think the judicial activism point cuts in the opposite direction. In the 1970s, the Supreme Court twice considered the patentability of software. It concluded that the statute was ambiguous, and that it shouldn’t create a new category of patent protection without Congressional action. But then in the 1980s and 1990s the courts gradually changed the rules to allow software patents, a judicial experiment that in my opinion has worked quite badly. In this sense, CLS v. Alice simply represents the courts correcting their own mistake and recognizing that it’s the job of Congress, not the courts, to create new categories of patentable subject matter.

    * In my experience, most computer programmers don’t agree with your view that computer programs should be patentable. They think that copyright provides a sufficient incentive to creativity, and that the patent system is too cumbersome and unpredictable to help. In most cases, reverse-engineering someone else’s computer program is a lot more work than writing a new computer program from scratch, so in practice this isn’t a significant concern.

  31. MarkedMan says:

    Just some general background about patents, because there seems to be some confusion in the discussion.
    – Patents are for a limited duration. So if someone had patented a device 100 years ago, it would have been publicly available for the last 80 or so. They are not like copyright, which really do benefit the descendants. At least in the US where the duration of copyright is the age of Micky Mouse plus 20 years. Essentially anything younger than Mickey will never go out of copyright.
    – In return for getting the patent, an applicant must reveal everything necessary to recreate the invention in the patent disclosure. So not only do things go off patent, but when they do they can easily be copied. That’s why companies keep certain things secret, aka trade secrets, rather than patent them.
    – It looks like it was 1996 before it was completely established that software could be patented, although there was some successes as far back as the 70’s. Nonetheless, I know that Xerox did not patent software in the 80’s. When I worked there we copyrighted it.
    – Patents certainly encourage innovation. But they can also severely discourage it. I know that in most companies if you have an idea for a product and a search reveals someone else patented earlier but has not used it has bad effects. If the patent is still in effect there is almost never an effort to negotiate. The idea is just dropped. If the patent has expired, and the idea was essentially the basis of the product, it will also be dropped because without patent protection as soon as you come to market everyone can just copy the idea. And they won’t have to pay for the basic research as you’ve already done it.

  32. Just 'nutha ig'rant cracker says:

    @Franklin: I’m a little lost on this patenting bingo on a computer thing. I’ve been playing bingo on various game websites for about 15 years–and I’m relatively late to computer gaming because I’m so bad at it.

  33. James Joyner says:

    @MarkedMan: It made online ordering vastly easier than before.

    @Trumwill: Until DC/National debuted Superman in 1938, there were no superhero comics. The concept was “obvious” only in hindsight. And Captain Marvel/SHAZAM was in fact an obvious Superman rip-off. Ditto Plastic Man/Elongated Man, Aquaman/Submariner, Green Arrow/Hawkeye, and various others.

    @Tim Lee: All interesting points. I don’t know enough about coding to know where to draw the line. It just seems to me that there ought to be some protection for real innovation and at least a handful of the examples you cite as having been struck down struck me as actually innovative. It may be that copyright protection provides sufficient protection.

  34. Dave Schuler says:

    Not every useful device is patentable. Obviousness is one limitation. Prior art is another. Software patents are all too frequently granted in ignorance of what is obvious or prior art.

    Many software patents suffer from both problems. I recall browsing the software patents a dozen years ago and noticing the large number of patents issued to IBM for things that I knew to have been in common use years before the patent was issued.

    I’m surprised no one has mentioned the reality of our patent system—that rather than being a system “to promote the progress of science and useful arts” it has transmogrified into a a system in which large corporations beat down upstarts by threatening litigation in a court system in which the fastest hired gun wins. Although there are isolated examples in which the little guy prevails over the giant corporation the rule is that the corporations, which never invented anything, generally win.

  35. Tony W says:

    @Dave Schuler:

    Although there are isolated examples in which the little guy prevails over the giant corporation the rule is that the corporations, which never invented anything, generally win.

    A cottage industry of takers. Welfare for the 1%.

  36. MarkedMan says:

    @James Joyner: Couple of things

    – Superhero’s would be trademark for the look and feel of the characters, and copyright for the stories. They definitely wouldn’t want to patent anything even if they could – in the US (and most of the world) patents expire in 20 years and after that anyone can recreate the invention.

    – I’m still not sure why you think Amazon’s one click was “not obvious to someone versed in the arts” or, put more simply, not just a logical extension of what had come before. Maybe I just don’t know enough about it, since I’ve never clicked it (I’m not sure what would happen – does it just automatically get billed to my default credit card and shipped to my billing address?) There were lots of online shopping systems already in existence before one-click, and most of them saved your billing information. Aside from eliminating a button click, what does one-click do that those don’t?

    – Patent protection is in the the constitution (as I’m sure you know) but in the context of promoting innovation and commerce. In the intervening years the purpose has shifted so far in the publics mind to “concepts are private property and are protected just like any other private property” that we forget that’s not what it is in the constitution. And equally forget that the very idea that a concept should enjoy exclusivity was a controversial, perhaps even radical idea at one time, and with good reason.

  37. Amelia Lobos says:

    James, you write that

    I do think writing software is a real creative skill

    The problem here is that only the writing of some software is creative and encodes a novel process or method which deserves a patent.

    The vast majority of software written is decidedly not creating something new and patent-worthy.

    As many commenters here have posted, just taking a paper-and-pencil method, and encoding it in a computer language, does not generate a novel thing. Far from it.

    If we do indeed get skilled practitioners of computer science, computer engineering, and software development installed as patent examiners, congressional aides, and judges, then we can have hope that the disturbing situation around our software patents will be corrected.

    But how can we even hope for this when a skilled practitioner of the software arts can easily make a six-figure salary in the private sector, but can only expect peanuts as compensation when working as a civil servant in the executive, legislative, or judicial branches?

  38. John D'Geek says:

    @James Joyner: I haven’t had time to go through the entire discussion, so I apologize if I’m repeating someone here.

    We (I’m a Software Engineer) were talking about the software equivalent of patenting “a stack of bricks as a sitting device” back in the 90’s. Most software “patents” are ridiculously obvious to any half-way descent software engineer, so by law they shouldn’t be patent-able. Yet, thanks to the courts, they are were.

    For instance, a company was awarded a patent on a concept I used in my Master’s program years before they “invented” it (arranging things on screen in a hierarchical-bookshelf fashion; it was a human factors course).I was given a “B” because it was “too obvious” — which should have meant that it was not eligible for a patent in the first place.

    The short, oversimplified version, is that the Courts started this mess with their decisions (see other posters, above). I, for one, am glad they’re finally dealing with the mess they started.

  39. grumpy realist says:

    @James Joyner: James–I suggest you look up some of the discussions of the CLS Bank decision on the patent law forums.

    Points:
    There are a LOT of us in the patent world who think that software patents were a Bad Idea in the first place, especially in how they were implemented. Patent applicants were allowed to carve out far too general areas in the breadth of their claims, and a lot of the patents should have been denied because the algorithms and techniques were already known among those skilled in the art and thus ineligible. Unfortunately, the USPTO didn’t have enough examiners who understood what the level of art was in the software industry and thus a large number of patents were granted that should NOT have been. Everyone in the field knows this.

    It was the existence of a huge number of ill-defined claims, particularly in software, that led to the explosion of patent trolls and the damage that they have done to the industry, by the way.

    There are quite a few countries in the world who don’t grant software patents and they seem to be doing perfectly well.

    As software has become less and less tied to any particular hardware it has developed more and more into an abstraction to be implemented “in the cloud”. Thus, it is more abstract. What the Supreme Court has done is taken 101 (abstraction) from being a low bar to jump to something that has some teeth in it.

    Please, everyone–go read the CLS Bank decision. This isn’t something out of the blue. The courts have been wrestling with the whole question of abstraction for some time and they’ve decided that they are NOT going to go down the slippery slope of allowing the equivalent of Edison’s requested patent “to cover all communications, both wired and wireless, now known or to be discovered.” With CLS Bank SCOTUS is saying they are extending their interpretation of abstraction in Prometheus (biotech) to ALL patents.

  40. grumpy realist says:

    P.S. One of the problems with the development of a new field is it the USPTO ends up slotting it into the wrong area, a huge number of extremely bad decisions can be made.