Supreme Court orders do-over on key software patent ruling | Hacker News Reader

Supreme Court orders do-over on key software patent ruling

arstechnica.com

34 pointsllambda13 comments

I never saw this one the first time around, but the judge's ruling sounds crazy to me. It basically boils down to "I don't understand this, so it must be patentable."

I'm really staring to rethink my opinion on those "learn to program"/"don't learn to program" arguments. Certainly for anyone making descisions that affect software development - a first year computer science student could see that showing an ad before showing a video is trivial.

Why would this take any sort of CS education? They've patented when to show a commercial.

If you dress any action up with enough fancy technical terms, you can easily confuse the non-technical into thinking what you are doing must be pretty advanced and thus worthy of some sort of protection.

Or, y'know, find someone who can program and ask them.

Yes, that's one option. But the question is then "who do I ask?" If you don't understand the field yourself (at least to some degree) it's just as easy to get suckered into asking the wrong person for an opinion.

It's hard to say, though, what "to some degree" should be. How much do we expect judges to know about automobiles, or construction, or medicine or whatever other fields they need to make judgments on? It seems to me you can't expect a judge to be completely ignorant of a field and still make valuable judgments on it.

This is exactly what expert witnesses are for. They're accredited "experts" in their field who are called to explain technical issues to the judge and jury.

The problem here is that there isn't a "Professional Engineer" license for software/computer engineering(whether or not there should be is a totally different discussion). That makes it really difficult to get expert witnesses who can explain the terminology and give commentary.

CS professors often are called for this role, but there aren't that many of them for all of the cases.

Samuels [of the EFF] also argued that "merely tying an abstract idea to the Internet" isn't enough to render it patentable. "Everything we're doing is online" these days, she said. Under the reasoning of the original Ultramercial decision, people can "take all kinds of abstract ideas, say it's happening on the Internet, and get a patent."

This covers so many bad patents in the wild right now... Make it wireless or put it on the internet and suddenly it's a new idea/invention. BS.

> "The Supreme Court has ruled several ideas to be outside the bounds of what can be patented, including an algorithm for converting between binary number formats, the concept of hedging against the risk of commodity price changes, and the process of adjusting the dosage of a drug based on measured levels of a particular chemical in a patient's blood."

These all sound so fluffy but I guess there must be people out there trying to patent these type of things. Are they saying you can no longer patent a 'process'?

Regardless of the argument about whether this is an abstract idea or a patentable invention, how the heck did this even pass the "obvious" test?

What's painfully pedestrian to the proficient can be profoundly esoteric to the uninitiated.

But it's not about whether it's esoteric to the uninitiated, right? Rejecting patents over obviousness is about obviousness to someone proficient in the field. http://en.wikipedia.org/wiki/Person_having_ordinary_skill_in...

It's a bit tricky, though, because typically it's people who are not skilled in the art who must decide whether it would have been obvious to someone skilled in the art. Of course, if it goes to trial they can have expert witness testimony and attempt to build a clearer understanding of its (non-)obviousness, but ultimately the question doesn't get decided by a panel of experts skilled in the art.

And both sides can usually readily find an expert witness to argue their side of the case. Unfortunately, deciding which one's got the plausible story and which one is just blowing smoke and mirrors might be something that only an expert is competent to do. Judges and juries, maybe not so much.

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