2010-06-30

The weak and narrow Bilski descision (update)

The U.S. Supreme Court takes the easy way out of allowing abstract patent by ruling more specific than foreseeing.
I would have liked to see a clarification on whats abstract and not patentable. What we got was a loose no-no for business methods, whatever that might mean. On the other hand, business methods needs a boundary - and that might just be to the extent of what is an abstract (processes): Information and calculation.

Nothing seems to have been resolved though. When will lawyers ever understand the difference between complex (inventive step) and abstract (subject matter) - perhaps they need to study software development first? The well placed machine+transformation test was not accepted as well as the former business method enabler case "State Street". Its up to The Congress to clean or possibly corrupt the patent system further. FFII.org has a PR out:  Narrow Bilski ruling leaves all options open for the future

Some discussions:


Recently, EPO-examiners published a book about software patents for programmers:
Amazon: Patent Law for Computer Scientists: Steps to Protect Computer-Implemented Inventions

A friend suggested to replace databases with software in the following cite:

"Databases are normally protected by copyright. […] Accordingly, if the improvement which you wish to claim relates only to the content of a DB, it is rather pointless in most cases to file a patent application, because in the majority of patent systems around the world, you will automatically have almost no chance of having a patent granted, as copyright is already foreseen as the appropriate protection. Although the law-maker may appear idiosyncratic at times, usually there is some method in the madness; it would simply be illogical to deliberately provide multiple legal protection means, when that would obviously result in conflict in the courts, with cases between owners of slightly different matter but differing protection rights being unnecessarily fought out." 

That would bring us back to the discussion 1995-2000 when software patents where rare. Patents will keep expanding everywhere until we put an end to patent on information and calculation. Call them business methods, software or tax evasion methods - they are all the same and are all close to what we do with our brain. Computers are the new pens and papers where we need to keep clear from patents on use. Otherwise we all infringe on patents since its all too easy to "invent" information methods.


Update:

There is a good reference to the cost applicable to software (abstract) patents in comments by Justice Stevens:
"If business methods could be patented, then many business decisions, no matter how small, could be potential patent violations. Businesses would either live in constant fear of litigation or would need to undertake the costs of searching through patents that describe methods of doing business, attempting to decide whether their innovation is one that remains in the public domain. See Long, Information Costs in Patent and Copyright, 90 Va. L. Rev. 465, 487–488 (2004) (hereinafter Long). But as we have long explained, patents should not “embaras[s] the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith.” Atlantic Works v. Brady, 107 U. S. 192, 200 (1883).55"
 See groklaw: http://www.groklaw.net/article.php?story=20100629014657710


/jonas WZAHWHHCAMV5
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