For those unfamiliar with the history, that is the court that all patent cases go to. They've been co-opted by patent lawyers, and decide very much in favor of patent holders. Every so often the Supreme Court takes the time to review one of their decisions, and inevitably overrules them. So in their next ruling they find a way to pay lip service to the Supreme Court while ignoring what that court said.
So the rhythm goes like this. You go to your local court, and win or lose based on the jury. Then if the patent holder does not like the decision, you go to the U.S. Court of Appeals for the Federal Circuit. And pretty much inevitably will win. If the challenger is very, very lucky, the Supreme Court will have time to hear the case. And you'll get a balanced decision for the challenger. (I mean that literally. The Supreme Court does not have time to hear many of these, so they just pick the most egregious, and issue a balanced decision. But since they picked egregious cases, the patent holder always loses.)
If we could just replace the one court in the middle with one that actually listened to the Supreme Court, then patent trolling would be dealt a fatal blow. I shudder to think of how much its existence costs legitimate business in this country every single year.
Co-opted? It's been run by patent lawyers pretty much from the start. See http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea... for a history of the place.
In this case, the decision is by chief judge radar, who believes the court's goal should be to strengthen intellectual property protections.
How do i know this?
He told me (and the rest of the class) this, when I took his class on the federal circuit in law school many years ago.
Silly me, of course, always thought courts were there to decide law, not have policy goals.
In any case, this is one of a long line of the federal circuit giving the middle finger to the supreme court. Judge radar and others basically believe the supreme court is not helpful to them when they are trying to create rules practitioners can follow, so he tries to ignore them when possible.
He also cites his completely ridiculous reasoning from CLS Bank:
At bottom, with a claim tied to a computer in a specific
way, such that the computer plays a meaningful role in the
performance of the claimed invention, it is as a matter of
fact not likely to pre-empt virtually all uses of an
underlying abstract idea, leaving the invention patent
eligible
(My point of view is that we would be better off without software patents. It would be hard to find a US patent lawyer or court who would agree.)
Also a random note in case anyone gets confused. There is only one such court, but cases are often heard by a subset of the justices. So what result you get can depend on which justices hear the case. Mark Lemley's claim is that there is a sharp divide between the justices.
The judges are appointed not just from the patent bar but all the areas of jurisdictional experience.
Today there are six patent lawyers and four others on the CAFC with one of each awaiting confirmation. There is a rumor that Obama's patent lawyer appointment is actually better than average, but we won't know for a while; the Senate isn't approving new judges much anymore and vacancies continue to accumulate throughout the system.
The CLS bank v. Alice decision this spring came down 5-5. The Alice patent was one of those egregiously bad, transparently fraudulent, and obviously invalid ones we hear about so often. It claimed a monopoly over most any kind of traditional escrow process organized by a third party over a computer network. The CAFC found it valid initially and then threw it out -- barely and over the technicalities of a tie vote.
The final decision was five patent lawyers in favor of validity and four non-patent lawyers joined by one patent lawyer finding invalidity. The dissenting opinions were particularly virulent and nasty in defending the patentability of everything you can imagine and wanting every bad and destructive monopoly to be found valid and granted repeatedly forever.
It's a funny thing; I once thought the way to clean up medical malpractice litigation would be a board of expert judges or advisors who knew when the science was real or just made up for the case. In fact, now I see that system would be even worse. There might be fewer decision made by juries on the basis of gross scientific illiteracy, but the new judges would become throughly corrupt and abuse the system mercilessly. In fact, every kind of special purpose court is probably worse than the cost of ignorance and random wrong decisions that generalist courts make.
My brother was starting a real estate app company and was sued for breaching the patent that allowed one to "find an address using a mobile device." The patent was filed in 1989, with no technology behind it whatsoever, just someone saying, "You know, I bet in the future someone will..."
You could patent "a car that flies in the air without touching the ground" today without having any idea how to build it (except I'm sure that's been patented). That should be step one for legislators to kill.
Here is an excerpt from [1]: "Second, if the inventor did possess a best mode, it must be determined whether the written description disclosed the best mode such that a person skilled in the art could practice it."
I have heard that the recent changes to the US patent laws have weakened this [2], though I have never read the details.
[1] http://www.uspto.gov/web/offices/pac/mpep/s2165.html
[2] http://www.patentlyo.com/patent/2013/05/best-mode-only-mostl...
Right now these patent laws are being used to tax engineers in order to pay lawyers. The lawyers produce nothing. The laws are set up so we can't do business without shelling out thousands and thousands of dollars to them monthly. This makes it so its harder for us to bootstrap. When we try to get to MVP our attention is divided from the things that matter to all this other bullshit that the lawyers have cooked up. If you are lucky to get a good lawyer, maybe you don't have much of a headache.
But even with the best lawyer, if you see some modest success, the leeches come out of the swamp to suck at your blood ... I mean the patent trolls, and various other lawsuits. The laws make you a criminal no matter how honestly you do your work. You could sit in a clean room and make something all on your own. When you emerge, the leeches will still be granted a right to suck at your revenues. That's how this blasted patent system works today.
Are we going to organize ever and reverse this trend? Probably not. We are all too busy trying to run businesses. You know who isn't busy? You know who has every incentive to spend every waking hour in Washington DC to make sure nothing changes? The patent trolls and the patent lawyers.
As we say after playing a game of Starcraft: GG.
I do agree about your general point, which is that the new generation of engineering companies should lobby for reforms that they think necessary. Though I'd be interested to see if they have the same sort of principled objections to the trademark regime that is the bedrock of the advertising industry that is now their lifeblood.
Likewise there are problems with copyright, but -- unless you're really an infringer -- not on one thousandth the scale of patents. And boat hull registratons, trade secrets, plant breeders' rights, design patents, and trade dress are similar. It's only utility patents that are rotten and systematically corrupted.
This is in fact, why I went to law school after getting my CS degree, and why i'm a patent lawyer. Because I hope that some day, maybe there will be more of us than there are of them.
However, it would be a great start if, rather than rail against this stuff on the internet, people actually showed up to do something about it when push came to shove. Instead, they complain that they shouldn't have to, and the problem should simply solve itself, and then go back to burying their head in the sand.
Existing advocacy efforts by organizations (EFF, etc) and companies (Google, etc) would be enhanced 100x if they could get even 100k people to give enough of a shit on a regular basis to write a congressman.
The cost of a successful lobbying presence is measured in the tens of millions of dollars a year, which is chump change for an industry as big and influential as the tech industry. Heck, construction companies have a much more organized and effective lobby, and they basically make no money at all (see the article on the front page about their 1% margins). Really, it's not that much money. Raise it on Kickstarter or whatever.
There is a bizarre mental block/persecution complex/"I'm going to take my balls and go home" phenomenon at play in the tech industry that's makes no sense to me. Silicon Valley isn't a special snowflake and Congress isn't going to divine its needs and tend to them. You've got one side telling Congress that absolutely everything needs to be patentable to keep the Chinese from stealing all our technology, and nothing but deafening silence in response. What exactly do you expect to happen in that circumstance?
Because, truly, this one isn't egregiously bad in its phrasing. It's at least as well-defined as any number of such patents that have held up under re-examination.
And therein lies the larger problem.
>> I'm going to patent everything
See my comment here: https://news.ycombinator.com/item?id=5934890
The following are the requirements for filing a patent:
1. Usefulness
2. Novelty: The invention must not have existed from before
3. Non-obviousness: The invention must not be obvious to those skilled in the prior art.
When filing a patent application, you are required to describe the invention in full, including the best mode.
So while a working prototype is not required, satisfying 1, 2 and 3 above is still theoretically hard and requires a lot of work for filing a good patent. The issue is that the system is abused as each one of 1, 2 and 3 are subjective more or less.
While not explicitly stated, I believe the concept described in the application must be correct [1]! Since a prototype is not required, it is sometimes the case that things that do not even work the way inventors thought get the patent granted anyways.
Finally, just for completion sake, there are things that cannot be patented like laws of physics, theorems in mathematics, and material that is a subject for copyrights instead.
[1] I am not sure of this. There may or may not be specific legal criteria on this.
Not since 1880.
"If that's not the case I'm going to patent everything, but with quantum computers. And then everything, but with nanotechnology."
This is essentially what patent troll corporations do -- patent obvious mashups of New Technology X with Old Use Case Y. This sort of idea canvassing has been going on for a very long time.
A. Abstract and not patentable: "Instead of charging your audience for your service, allow others to advertise to them via your service and charge the advertisers."
B. Patentable and not abstract: "Instead of charging website users for the use of your website, allow others to display advertisements on your website and charge the advertisers."
There is something about patents that seems to melt the brains of certain judges.
Not that this patent makes sense even then, but B is much more limited.
Having said that, is anyone else bothered by the (to my ear) misuse of "let alone"? The phrase "Not X, let alone Y" is supposed to have Y be more extreme than X, right? Implying "certainly not Y, because not even X, so we can let Y alone and not even talk about it."
I disagree ads are what keeps the internet alive. What keeps it alive are hackers and artists. They share this: an itch to create. They will create even for free. But we would have been so much ahead in creative business models that they could explore (see Kickstarter) in an alternate reality where ads did not exist.
The Internet didn't always run on big business - business gradually shaped it into the way it is today.
Can you think of good examples where this will not work, where we really should grant the patent but coming up with the invention was neither time consuming nor expensive? Of course, proving how much the invention cost you and that it could not have been done with considerably less effort is a non-trivial problem on its own.
Make sure one of the co-founders is a kick-ass patent lawyer?
Don't?
Moving to another country is problematic. Other countries have their own software patent quagmires too (though, admittedly usually less developed ones). You're also probably going to want to sell to US customers at some point and then...
In the past, I'd have said don't make money, but in a world where patent trolls target end users of things like scanners, I no longer think that's enough.
More seriously, there's just too much risk and uncertainty with software patents. I think the only realistic option is to accept that risk and move on with the rest of your startup.
The concept has to be novel to be patentable. You cannot get a patent on something that is already publicly known.
Existence of information on a publicly accessible website (even if not indexed by a search engine or behind a pay wall like for a journal publication) is considered to be public knowledge and a patent cannot theoretically be obtained on the concepts covered by that website.
Dear Patent Court Judge:
Don't worry, I'm not going to throw rotten tomatoes at you now. And, no, I didn't slash the tires on your BMW 7 Series.
But here's what's wrong with likely most software patents (or patents on devices consisting of routine computer hardware but with some new software).
We start with three parts: (1) Real problem to be solved. (2) Some "abstract" ideas for how to solve the problem. (3) Using the abstract ideas, some software to solve the problem. The users/customers use the software.
Okay, now we understand that solving real problems (1) is important but that we can't patent abstract ideas (2).
For more clarity an abstract idea might be just how to manipulate some data in a way a clerk could be taught to do. We can't patent the clerk or their work, right?
Well, for more, the abstract idea might be some applied math or some of the math of physics or engineering. Since that's abstract stuff, we can't patent it, right? Moreover, before computers, mathematicians and scientists commonly did such mathematical manipulations by hand arithmetic, that is, with paper and pencil. No opportunity for patents there, right?
So, on to the software (3): Assume, as is usually the case, the software is just something routine (for software) to have a computer do the data manipulations specified by the abstract idea, what we could teach a clerk, what's in the math, or what the person with the abstract idea 100 years ago likely did with paper and pencil. That is, the person with the abstract idea 100 years ago could tell a clerk how to do the data manipulations and not get a patent but now can tell a computer how to do the same data manipulations but get a patent? Something's fundamentally wrong here.
In particular, assume that without the abstract idea, the clerk would have no idea at all how to do the data manipulations and the computer programmer would have no idea at all how to write the software. So, all that's crucial or original is just the abstract idea and not the routine software. That is, between (2) the abstract idea and (3) the computer software, only (2) is crucial or original and (3) is routine.
So, with this scenario, why the heck grant a patent on the computer software (3) when we can't get a patent on the abstract idea (2)?
But not all software is like that. Instead, some software is tricky stuff. E.g., how the heck to backup a relational database while it is being used and changed? One might argue that just how to do that could be, and really should be, written up as an abstract idea and maybe even some form of math and, thus, not be patentable, but sometimes all there is is the computer software. So, maybe, maybe, I'm not fully sure, such software, or a computer with it, could deserve a patent.
Generally, then, I conclude that most software patents have to be based on bad thinking when we can't patent the crucial, logically prior abstract idea.
Finally, let me be helpful: When you get a case of a software patent, just rule right away that the patent is invalid and take a nice long vacation with the time you would have spent listening to nonsense about that case! Take along some good hiking shoes or a good book!