The Supreme Court Should Invalidate Software Patents • Hacker News Board

Re: The Supreme Court Should Invalidate Software Patents

#41

Post by pg_bot » Thu, Jul 28, 2011, 8:35 PM UTC

ohyes wrote: post #37

pg_bot wrote: post #14

A simpler solution would involve giving the defendant of patent litigation the option of making their suit winner takes all.(All of the court fees within reason are paid by the loser) This would keep software patents but reduce frivolous lawsuits.

And make it impossible for the little guy to, for example, sue Microsoft due to the potential huge legal fees. The issue here is that patents are being used for extortion, and none of these cases ever end up going to court. Maybe what would fix this would be to not allow private entities to pursue patent infringement cases with their own lawyers. Create a Bureau of patent infringement. Make it so that when a patent i…

How would that change make it any more difficult for a little guy to sue a big corporation? I think you have missed the part of within reason, Microsoft wouldn't be able to put an individual on the hook for all of their court fees just those that a judge deems valid to pay for the suit. This change would make the patent holder vet the validity of their patent before they can automatically sue, which is the goal we are looking for. A defendant would only exercise the option if they believed the claim to be frivolous for fear of losing in court. For legitimate cases the parties either go to court or settle.

Re: The Supreme Court Should Invalidate Software Patents

#42

Post by cft » Thu, Jul 28, 2011, 8:36 PM UTC

Big companies are interested in getting rid of patent trolls, because the defense against trolls is asymmetric. They would like a system that allows them to attack or defend against other large companies, while they remain immune from trolls, such as Intellectual Ventures and its off-springs, like LodSys. One solution would be a 2 year expiration on software patents. Another idea would be to demonstrate "substantial" sales for renewals.

Re: The Supreme Court Should Invalidate Software Patents

#43

Post by scottmp10 » Thu, Jul 28, 2011, 8:37 PM UTC

chollida1 wrote: post #8

mikeknoop wrote: post #7

Earlier quoted context omitted.

Can you speculate some companies who would take issue to the abolishment of software patents?

I would imagine it would be anyone, or industry, who has a significant patent portfolio who worries that invalidating software patents would weaken their patent position. Both in dollar terms and legal terms.

Yes so there are likely some software companies that might have issues (depending on what the changes looked like) such as Microsoft, Oracle, IBM (not sure if these companies would object or not, just citing companies with large portfolios). Some non-software companies like pharmaceuticals almost certainly would oppose changes that would affect their ability to exercise their patents.

Edit: A better example might be a company like Intel that has a lot of hardware patents. It is potentially difficult to change the patent laws to prohibit software patents without affecting hardware patents.

Re: The Supreme Court Should Invalidate Software Patents

#44

Post by amitparikh » Thu, Jul 28, 2011, 8:39 PM UTC

shapoopy wrote: post #20

nostromo wrote: post #11

Of all the supreme court decisions, I wouldn't expect this to be drawn mostly on partisan lines. Yet the author makes a good case that the liberal judges would invalidate the patents and conservative judges (with Scalia an open question) would not. Why are conservative judges more likely to support software patents?

They'll tend to see them as protecting the interests of business, which has, for whatever reason, become part and parcel of supporting the "free market" in contemporary American political culture.

and that's the biggest hypocrisy... what they are really supporting are the interests of existing businesses.

Re: The Supreme Court Should Invalidate Software Patents

#45

Post by joe_the_user » Thu, Jul 28, 2011, 8:42 PM UTC

timsally wrote: post #17

It's not up to Justice Scalia to do the right thing. It's up to Congress. As Scalia is so fond of saying, garbage law in, garbage decision out. Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us. I'll preempt the constitutional argument by saying that hasn't been made yet. You underestimate how strong such an argument has to be to succeed. What SCOTUS could clarify…

I think you underestimate how much the SCOTUS considers the interests involved in a case not just the law.

That's not saying that SCOTUS would invalidate software patents, just the opposite. The SCOTUS discussion I've heard have turned on how invalidating software patents would be a fairly short step to invalidating all patents and there are too many interests involved to let that happen.

The argument in the supreme court debate I remember was essentially "software parents as a generic are absurd but tossing them out completely would be an earthquake that we don't want to play so we need a line that would allow some but not all software patents". Nothing turning on technicalities in the overall approach even if the solution they'd grope for would likely turn on said technicalities.

Re: The Supreme Court Should Invalidate Software Patents

#46

Post by praptak » Thu, Jul 28, 2011, 8:45 PM UTC

mikeknoop wrote: post #7

scottmp10 wrote: post #5

I think that it will be very difficult to have serious patent reform for the software industry without having significant effects on other industries. So while it seems like the software industry is generally behind getting rid of patents, the changes will be very difficult to isolate to software and companies outside the field will likely oppose any significant changes. FWIW, I hope they make significant changes for…

Can you speculate some companies who would take issue to the abolishment of software patents?

Excluding the patent extortion industry, any industry who believes it's hard to define a software patent. "I know one when I see it" might not cut it and there might be some nasty edge cases where an algorithm controls a physical process.

Re: The Supreme Court Should Invalidate Software Patents

#47

Post by brlewis » Thu, Jul 28, 2011, 8:45 PM UTC

Read Bilski people. Overall it was 5-4, but if you read the majority and the dissent, it was 9-0 on this sub-point: that State Street (not a Supreme Court decision) is bad precedent, and Benson, Flook and Diehr are good precedent.

Diehr is only muddied because people choose to muddy it. I'm working on an essay that details this now.

Re: The Supreme Court Should Invalidate Software Patents

#48

Post by brlewis » Thu, Jul 28, 2011, 8:49 PM UTC

Natsu wrote: post #16

tsotha wrote: post #3

Software patents are a policy issue, not a constitutional question. This needs to get fixed in Congress.

They're not making a Constitutional argument here, but suggesting that the courts fix some decades-old precedent that went astray starting with Diamond v. Diehr. That's well within the Court's powers. They created the mess, so it's not unreasonable for them to fix it. It's not as though Congress passed a law allowing software patents or something.

Not true. Diehr did not start the mess. The Diehr opinion said exactly the same thing Flook did. More to come in an essay I'm working on now.

Re: The Supreme Court Should Invalidate Software Patents

#49

Post by o_nate » Thu, Jul 28, 2011, 8:53 PM UTC

chc wrote: post #27

dantheman wrote: post #9

Earlier quoted context omitted.

You are not allowed to patent math; software is math; hence software is not patentable.

As much as I'd like it to be true, I can't help but find this line of reasoning a bit specious. As Simon Peyton-Jones is fond of pointing out with regards to Haskell's functional purity, a program that is just pure math won't do anything except make your computer heat up. Math doesn't write files, it doesn't draw on a screen, it doesn't send packets across a network. Am I wrong somewhere in there?

A program is pure math - the fact that a computer takes certain actions on the basis of the math doesn't change that. In a sense, all possible computer programs for a given architecture are implied in that architecture, even if they haven't been written yet - just like all possible novels are implied by the letters of the alphabet, even if they haven't been written yet. Like novels, programs should be copywritable but not patentable.

Re: The Supreme Court Should Invalidate Software Patents

#50

Post by prayag » Thu, Jul 28, 2011, 8:53 PM UTC

timsally wrote: post #17

It's not up to Justice Scalia to do the right thing. It's up to Congress. As Scalia is so fond of saying, garbage law in, garbage decision out. Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us. I'll preempt the constitutional argument by saying that hasn't been made yet. You underestimate how strong such an argument has to be to succeed. What SCOTUS could clarify…

This is absolutely correct. The best Supreme court could do is decide on a case-by-case basis and settle against the patents (as they did in Bilski case). They would never ever set a precedent that can potentially go as far as invalidating something that is billions of dollars worth.

This supreme court is one of the most conservative of all time in terms of interpreting the law and limitation of its own power.

The solution can only come from the congress. The present supreme court will shy from setting a strong precedent. I don't think this is a bad thing. Relying on court to change the law is a sign of an unhealthy society who cannot control its elected representatives.