USPTO: Here are some ideas for your guidelines

The US patent office (USPTO) is asking for patent granting guidelines after the Supreme Court had a chew at their machine or transformation -test. Here is what I would suggest the USPTO should do to get rid of "abstract ideas" as the constitution stipulates. The problem is urgent with the terrible quality of software patents issued and used. A new paper concludes that the survival rate of software patents that go to court is below 15%! At the core of the problem we have the problem that software is inherently abstract.

Here are some ideas for the guidelines:

1. Publication should never be an infringement. Information is the most abstract matter.
   Yet USPTO allows claims for "record on a carrier". Thats absurd!
2. Patents should not be allowed to claim generic computations and use of software. It means:
   - That a computerized anti-brake-system can be patented, as long as the merits lie outside the abstracts of software. Using software does not add to the invention.
   - That optimizing calculation steps or memory use are abstract matters, just as with pen and paper.
3. Execution of software is abstract for generic computers. By extension, running software cannot constitute a patent infringement alone. The same also applies to interaction, interoperability and communication with software. It also applies to compression, networking, business and virtualization in software however real world related the variables might be.

So in terms of the questions USPTO asked:


1. What are examples of claims that do not meet the machine-or-transformation test but nevertheless remain patent-eligible because they do not recite an abstract idea?

There are no such claims that we can think of. But if someone would for instance interpret software as a specific purpose machine, then the test would be quite broken. Obviously such a claim would cover publication of software, where information/instructions/software is clearly abstract matter protected under copyright.  

2. What are examples of claims that meet the machine-or-transformation test but nevertheless are not patent-eligible because they recite an abstract idea?

There could be cases where the "claim as a whole" would be mainly about abstract matter. 

3. The decision in Bilski suggested that it might be possible to “defin[e] a narrower category or class of patent applications that claim to instruct how business should be conducted,” such that the category itself would be unpatentable as “an attempt to patent abstract ideas.” Bilski slip op. at 12. Do any such “categories” exist? If so, how does the category itself represent an “attempt to patent abstract ideas?”

I would say that US Patent Class 705 "Business methods and data processing" is quite clear cut for in this aspect. Perhaps the entire 700 class "DATA PROCESSING: GENERIC CONTROL SYSTEMS OR SPECIFIC APPLICATIONS".

Another way would be to look at what the European Patent Convention deems as abstract matters in their exclusion list under Article 52(2) :"in particular 1. discoveries, scientific theories and mathematical methods; 2 aesthetic creations; 3schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; 3 presentations of information."
More examples of abstract ideas is not a bad, but we need to put the machine-or-transformation test to the test some more to see if they are necessary. I think its a good test to start with. 

References:

Swpat.org page about the consultation - last day!

Techdirt on courts rejecting more software patents than other patents.

Abstract patents in the recent Microsoft vs SalesForce case.

Abstract patents in the recent Apple vs HTC case.

Abstract patents in the recent Oracle vs Google case.

Are there any "good" software patents. (work in progress)

EU-Court publishes its opinion on proposed EU-patent court

The EU-Court of Justice, General Advocate, finally releases its opinion on the EU-Councils proposal for a new patent court system in EU.
As we heard in rumors earlier, the court and its general advocate finds patent granting too isolated from EU-law and oversight. Hear-Hear!

 I'd say its a win for FFII:s fight against an independent EPO-patent granting machine. IPjur and ipkitten comments.

Now we have to watch how the EU-Council will try to circumvent this statement. They apparently kept this document from the public since May.

Ugly EU-Council politics is trying to give the EPO immunity in patent granting on abstract matters. That would be a big disaster for EU-innovation.

Java strangled by Oracle's patent offensive

It seems patents are no longer used just for defense in software. In Apple vs HTC, Microsoft vs TomTom, Microsoft vs SalesForce and now Oracle vs Google patents and lawyers are out for a fight. This will certainly be another public show case of whats rotten in the state of patents today. Its all about abstract properties piled up so tall that we cant see where uses of information and calculation is someones exclusive rights.

Its a shame since Java and the Java VM had so much community going for it. Now everyone will be less interested in building on something that you might as well be sued for contributing to.

I will just refer to the swpat.org page about this case at:
http://en.swpat.org/wiki/Oracle_v._Google_%282010,_USA%29

USPTO asks for help on "abstract ideas" after Bilski

Groklaw and others comments on USPTOs request for comments and materals how to avoid patents on "abstract ideas" after the Supre Court ruling in the Bilski case. They seem to ask in relation to the "machine-or-transformation test" that the court down-played:

1. What are examples of claims that do not meet the machine-or-transformation test but nevertheless remain patent-eligible because they do not recite an abstract idea?

2. What are examples of claims that meet the machine-or-transformation test but nevertheless are not patent-eligible because they recite an abstract idea?

3. The decision in Bilski suggested that it might be possible to "defin[e] a narrower category or class of patent applications that claim to instruct how business should be conducted," such that the category itself would be unpatentable as "an attempt to patent abstract ideas." Bilski slip op. at 12. Do any such "categories" exist? If so, how does the category itself represent an "attempt to patent abstract ideas?"

I hope the community find lots of good answers. I'll get back with my own thoughts about this soon.
"Comments should be sent to Bilski_Guidance (at) uspto (dot) gov and must be received
by September 27, 2010."

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:

• Groklaw:The Bilski Decision Is In: Buh-Bye [Most] Business Methods Patents - As text - Updated
  http://www.groklaw.net/article.php?story=20081030150903555
• Techdirt: Supreme Court Rules Narrowly In Bilski; Business Method & Software Patents Survive
  http://www.techdirt.com/articles/20100628/0759029989.shtml
  Techdirt x2: Second Thoughts On Bilski: Could Another Case Get A Direct Ruling On Business Method Patentability?
  http://www.techdirt.com/articles/20100628/0945579990.shtml
• Dr Dobbs:
  http://www.drdobbs.com/blog/archives/2010/06/software_patent.html
• NetworkWorld:
  http://www.networkworld.com/community/node/63009
• IEEE commentary (IEEE has a weakness for software patents)
  http://spectrum.ieee.org/at-work/innovation/commentary-businessmethod-patentsdown-but-not-out
• WSJ: "Patent-lawyers, rejoice"
  http://blogs.wsj.com/law/2010/06/28/a-business-method-patent-is-dead-long-live-business-method-patents/ 

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

Indications that ECJ agrees with us on patent court oversight

The rumor says the European Court of Justice (now Court of Justice of the European Union) thinks different than the EU-Council about the separation of the proposed EU patent court from the EU-system. The Council argues litigation costs prohibits further oversight, but are also protecting the responseless behavior from the European Patent Office.  Keeping things intact could possibly fix the the European Patent Office mess with patents on abstract matters and the resulting patent inflation that is taxing innovation and growth. Axal Horns at IPJUR comments on notes from a unofficial hearing between the Council and the ECJ.

This would be a relief as of late since after EPO even chopping own tail trying to make anything patentable.

Microsoft infringes on all our innovation

ZDNet:s Mary-Jo Foley reports that Microsoft sues Sales Force for patent infringements. This is a new and offensive course for Microsoft. Exposing patents is more straightforward than just rattling them for payments as we are used see in these cases. I like that the supposed "innovation" shows after Apple did the same thing.

The Microsoft PR says:
"Microsoft has been a leader and innovator in the software industry for decades and continues to invest billions of dollars each year in bringing great software products and services to market. We have a responsibility to our customers, partners, and shareholders to safeguard that investment, and therefore cannot stand idly by when others infringe our IP rights."

So its time to review that leadership by looking at the patents in question. Can we expect Microsoft to prove its innovation claim?
-Well...  The patents are better described as an infringement on innovation. Its as horrible as we could expect. But could we have asked for more? ZDNet lists them (I add links for each of them):

• 7,251,653 “method and system for mapping between logical data and physical data”
• 5,742,768 “system and method for providing and displaying a web page having an embedded menu”
• 5,644,737 “method and system for stacking toolbars in a computer display”
• 6,263,352 “automated web site creation using template driven generation of active server page applications”
• 6,122,558 “aggregation of system settings into objects”
• 6,542,164 “timing and velocity control for displaying graphical information”
• 6,281,879 “method and system for identifying and obtaining computer software from a remote computer”
• 5,941,947 “system and method for controlling access to data entities in a computer network”

They are just as broad and trivial as in what you guess from the titles. Innovations... its just the opposite.

Update:
TechDirt: Microsoft Decides It Can't Compete With Salesforce.com; Sues For Patent Infringement Instead

/jonas

The European Patent Office bites its tail in order blur whats patentable - again

This week, we finally learned that the questions The European Patent Office (EPO) sent two year ago to clarify what can be patented where inadmissible by its own patent high court, The Extended Board of Appeals (EBA). Its all the usual mess from EPO with slippery and indecisive wordings creating endless loops without clarifications.

EPO seems unable to repair itself...

EPO issues criticized software and business method patents even though its ruled by a convention excluding patents on calculations, information and software. The Appeals Courts of the EPO circumvented those rules by allowing something already known like a pen and paper to play that "non excluded" part. By separating whats "new" from whats "excluded" in patent claims they created a loophole rendering anything abstract patentable.

This has created an inflation in broad and abstract information and business patents flooding the European market, creating a legal mine field for anyone wanting to participate. Its a land grab for lawyers and patent trolls.

As EPO is clearly incapable making sense out of its own conventions and rulings, its high time for politicians to step in. These uncertainties cost an increasing risk to business in the European market.

To put an extra spin on this mess, the EPO PR interpret this non decision as a win for software patents. Hilarious and said, since this is just right - leaving questions unanswered and matters diffused is just what  made this situation from the start.

 Se also:
ComputerWorld UK
-
-
-


/Jonas Bosson

Apple makes war with silly broad patents

No Mr Jobs, Those patents require no innovation.

Most software and Internet firms have pledged not to sue unless someone first sues them. Sun, Google, Oracle, Cisco and many more think that patents would have an ugly effect on the market otherwise. Apple appears to have left that defensive ideal by waging patent war with Android using HTC as its proxy.

By threatening companies that deliver with Android software - they probably hope scare them off. Perhaps like when Microsoft sued Tom Tom or used SCO to ram Linux. Apple uses 20 patents that are terribly week to any person skilled in software, but as with many patents take their toll on common sense in litigation.

Engadget has the full list of Apple patents in this suit and they represent the sorry standard for what is patentable today. This has little to do with innovation, but rather by pushing overly broad claims on what is possible trough a patenting office unfit to manage or deal with abstract matters such as software.

This is yet another reason, after EOLAs return, why we need to scrap software patents to save innovation.

Shame on Apple.
/Jonas Bosson

IPWatchdog thinks those "not interested in software patents are not innovators"

I have long kept an eye on IPWatchdog, a popular patents law blog authored by Gene Quinn, a patent attorney in the US. I have valued his reports for some time even though we have quite different ideas about what should be patentable. But sadly now, in the wake of the Supreme Court Bilski case, it seems he has gone over the edge with blatant statements like:
"Those in the software industry who are not interested in software patents are not innovators, they are copiers. They steal the work of others. " in The Fundamental Unfairness of Retroactively Applying Bilski

I think this started when Mr Quinn totally flipped in his comments in this previous post where Ian Clark, a highly regarded software engineer and entrepreneur took issue with the attorneys ideas.

However blatant, this kind of proves him wrong on so many levels it also gives me good hope for reforms in the patent area in 2010! Innovation is not just about patents Mr. Quinn and certainly proven so in the software field.

/jonas

Software is a special purpose machine says microsoft

In Microsofts brief to the Supreme Court in the Bilski case, Microsoft tries to duck the nonpateneable abstracts of data processing by arguing that software configures PC into a specific machine. Groklaw member PoIR makes a good case as to why this reasoning is wrong.

The main objections are well put:

• The Brief fails to mention the Turing machine in the evolution of general purpose computing
• The focus is on the special purpose machine ENIAC not the general purpose machine we call PC
• Modern day computing is nowhere near industrial age computers as described in the brief

EOLAS proves the point

Ars Technica reports that EOLAS who sued Microsoft for almost $600M and got away with it is now suing Google, Apple and many more for using AJAX and embedding components as in the first case. I think this is just the reminder we need to send the Supreme Court that is currently deciding if software patents bear legal ground, are abstract or not and fills the purpose to promote innovation. Well, we all know the answer to that one. Here are some well written letters to the court on the subject:

• FFII: s brief
• RedHats brief (on groklaw)
  
• SFLC:s brief (on groklaw)
  
• ... and other. (I think w3c should write something too .. see this EOLAS FAQ)
  

Patents in the lawsuit:

• US 5,838,906
• US 7,599,985

On the other side are some large corporations that seem to thrive from the uncertainty that these patents create, asking the court to keep software patents. More on this later...



/jonas

"Something will need to be done"

The conclusions in a new paper on European patent litigation ends by citing Joff Wild's article on EPO:s attack on UK judges: "the bottom line is that something will need to be done at
some stage to clarify how European patent law should be interpreted. Whether this is
through a Community patent, a pan-European litigation system, a series of directives or a
combination of them, we cannot have the situation in which different parts of what is
supposed to be a single market either do, or have the ability to do, interpret patent law in
completely different ways. If such a situation does persist, then the entire economic
premise of the European Union is completely undermined. It seems to be that it is that
serious."

And this is where it stands. The problem is the power play that puts patent interpretation outside the reach from the EU. The work in establishing a central court outside EU moving forward.

The paper can be found here:
http://igitur-archive.library.uu.nl/dissertations/2009-0901-200115/luginbuehl.pdf

I am trying to get through the paper right now. Lots of case-law and other stuff to digest. Missing stuff on UPLS though.

Obvious makes stupid

Michael Masnick at TechDirt has a good article on how obvious it is that the obviousness test doesn't work for patents.
There are quite a lot of good comments too, I especially like some laywers lobbying for software patents.

Just like the EPO, the USPTO has turned to old patents in order to establish un obviousness. The real clue is likely not there, its in the tacit knowledge of persons skilled in the art, just as the law states. Just because its new doesn't mean its not obvious as Michael says.

Thimothy B Lee at the Cato Institute writes a good introduction to software patents in context of the upcoming Supreme Court decision in the Bilski case. The article is filled with good references to research and court decisions.

I'll get back soon. I just recently had a son.

Threats in a Patent litigation treaty

Benjamin, president at ffii.org has written an excellent article to explain the threats in UPLS (Untied Patent Litigation System). The article gives more reasons to stay clear of any treaties like this until we have a better community patent implemented in the EU to work with. Otherwise it would be like a roof with no pillars.

The second question makes the threats in the treaty so very concrete for us programmers:

"Q2: If software patents are enabled by the UPLS, what might be the effects on how computer programmers work? Please give examples"

The reply is divided into:
1. Higher total costs of litigation
2. EU-wide injunctions to stop a software product
3. Out of court settlements for most of European players
4. Loss of legal certainty

Finally Bejamin gives a short pros and cons list:

Pros:

1. EU-wide injunctions and damages for patent holders
2. EU-wide revocation of a patent for defendents
3. Possible invalidation of software patents EU-wide (not very likely, but possible)
4. High costs of litigation, good for the patentee to reach a deal out of court
5. Uniform caselaw developed for software and biotech patents
6. No diverging decisions over the same patent by multiple courts

Cons:

1. No real legislator to correct decisions of such international patent court
2. No divergence of decisions which might show to the legislator where to intervene
3. Possible validation of software patents EU-wide (very likely)
4. Possible forum-shopping with a pro-patent court located in Turkey, Latvia or somewhere else
5. More incentives for patentees to litigate and enforce their patents
6. Pro-patentee courts
7. Raise of the costs of litigation for most member states and stakeholders, due to the specialisation of the courts
8. Possible EU-wide injunctions to stop a product (think to the Blackberry removed at the scale of the EU)
9. No judicial review to correct the eventual deviance of such specialized courts
10. Potential higher costs of litigation for the patent holder

A recommended read.

Also see the EU-Councils request (9669/09) for comments from the European Court of Justice, ECJ, on the UPLS draft (7928/09). Lets hope that the ECJ can see the obvious conflict of interests with the IPRE-Directive and innovation policy legislation within EU. The UPLS process is one of the top priorities for the Swedish presidency until the end of 2009. The pressure is high.

/jonas