Abstract software patents struck down by Supreme Court
eff.org
eff.org
Doesn't the Federal Circuit have something of a history on cases such as this, where they essentially say 'fuck it, we're not listening to the SCOTUS', and continue to rule as they please? What's to stop them from just doing business as usual in defiance of the Supreme Court?
The Federal Circuit court has been, essentially, ignoring the supreme court, and has had just about every decision its made on patents in the last 2 years overturned upon appeal to the supreme. I talked to the EFF and they couldn't explain why the circuit was so fucked up. No one's really sure, but they clearly don't listen to the supreme court.
And, I don't think there isn't anything anyone can do about it. Is there even a precedent for a lower court blatantly ignoring the decisions of a higher one, at this level? Is there anything that can be done about it short of an act of Congress (which we can safely assume would never ever happen)?
It also means that, if you have a patent case, you must be ready to go to the supreme court. That's a shit ton of money...
Jim Crow era Southern courts and practices like lynching had a lot in common with the CAFC's software patent jurisprudence.
The Supreme Court affirmed the Federal Circuit in this case.
So, insofar as the precedent on this issue which the Supreme Court applied in this case, its pretty hard to say that the Federal Circuit was ignoring it.
The Federal Circuit sees 1000 patent cases a year. The Supreme Court has amped up it usual zero or one patent cases reviewed per year to five this past session. And those Supreme decisions have been largely 9-0 against the Federal Circuit. But about 99.5% of CAFC decisions utterly escape Supreme review.
Remember that WildTangent is still on the books as good CAFC precedent holding the exact opposite of Alice. The CAFC can pick whichever it prefers.
The Federal Circuit court has been, essentially, ignoring the supreme court
This is true. It will continue to do so. It will continue to be a corrupt juggernaut focused on bleeding our industry for grifters and trolls and the patent bar.
I talked to the EFF and they couldn't explain why the circuit was so fucked up
It's simple. Courts with general geographic jurisdiction get disinterested generalist judges who try to do a good job being fair and applying the law. Even if they get bad judges, the others on the circuit balance them out because they don't all belong to the same interest. Specialist courts with exclusive subject matter jurisdiction get judges beholden to special interests that promote abuse and parasitism for their own benefit.
My next question is, of course, what's the solution? I can't tell from your comment (being unversed in this landscape) who the 'specialist courts' you reference are -- the Federal Circuit themselves? Some subset of FC?
Or is there some mechanism that assigns these kinds of IP/patent cases to FC, or to that subset of FC, which might be tweaked?
The CAFC has limited jurisdiction. It mostly hears patent cases, but also hears federal employee claims and some foreign trade cases. All judges on the court are equal but they have different backgrounds. Judges Dyk and Prost write the most rational and evenhanded decisions on the court and have little background in patents and technology policy. Prost was a labor lawyer and Dyk worked on First Amendment cases before being appointed. The worst judges worked for big science organizations in government and industry, but they write as if they were completely ignorant of science in order to grind down innovators in favor of government granted privileges.
[0] This link is worth reading: http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea...
There is no such thing as "good precedent" from a circuit court that contradicts Supreme Court precedent on the same issue. (Leaving aside the question of whether there really is a direct conflict between WildTangent and Alice given the procedural differences in the cases.)
And the CAFC chooses which precedents it likes to follow however it likes. Supreme Court precedents have no special power over the CAFC. Just look at how Benson is treated by State Street Bank or Alappat.
Kind of like how the Mob do business but will gavels instead of baseball bats.
"Ya know, that's a really nice bench ya got there. It'd be a pity if something were to happen to it..."
PS: I think the premise of the Supreme Court justices enforcing their judgments, Mafia enforcer-style, would make a great graphic novel. I can see Ginsburg going all Tommy DeVito on some Federal Circuit judge's ass and burying the body in the Rose Garden.
The Supreme Court itself, and, ultimately -- assuming they care -- Congress.
But, in any case, this "new filter on patentability" isn't new with this decision, really -- its a fairly direct application of previous USSC decisions in similar cases -- and isn't contrary even to the CAFC en banc decision in the same case, which came to the same substantive conclusion, with the dominant (though plurality) decision applying broadly similar logic applying the same precedent.
So while the "out of control CAFC defying the Supreme Court on patent issues" story might have some relevance, it really doesn't on this case.
(There's always the problem that what a larger en banc panel might do is different than what the smaller panels of the same court that hear appeals first would do, but that's not a particular problem of the CAFC but of the way circuit courts work in general. If you picked random three-judge panels of the Supreme Court to hear appeals to that court first and had to petition separately by a hearing of the full court, well, I'd expect a panel composed of Thomas, Alito, and Scalia (or, alternatively, Sotomayer, Kagan, and Breyer) would tend to return decisions on lots of issues that wouldn't look like the decisions the full court would return.
This opinion gives me hope that reform is possible & that the U.S. government still works with reason.
Now the question is are patents still relevant in today's world of internet, rapidly accelerating innovation, and evidence that free/open source research reduces costs?
"Accelerating innovation" is something which, if it exists, touches only a few areas of engineering. In most areas of engineering, innovation has gotten more expensive, not less. Very few things are amenable to a distributed group of hackers working on it. Jet engines are still best designed by a roomful of PhD's. And those cost lots of money.
We can argue about how necessary patents ever were, but I don't think they're any less necessary today.
The question, in my opinion, isn't whether patents are still relevant. Its whether we can draw lines better to leave out less useful ones while keeping that exception from swallowing the patent system. E.g. if a power control module for an LTE radio is patentable if implemented in an ASIC, should it become unpatentable when you implement it in a DSP? If not: how do you allow those patents while invalidating Amazon's One Click shopping patent? To a certain extent, its tempting to just say: "its too hard to draw the lines, its not worth the trouble." That's easy to say if you're not Qualcomm and don't have a dozen companies who'd love to use your work for free.
Possibly the wrong example for your argument :) Jet engines can now be designed by a team at SpaceX rather than at NASA, and the team can 3D-print them. That seems like reduced-cost innovation compared to decades past.
http://www.fool.com/investing/general/2014/06/02/elon-musk-m...
(PS - I definitely don't disagree with your general point, but it might be becoming harder to know which areas need patents and which don't.)
It's worth drawing a line between "a particular solution to the problem of power control on LTE radios" and "any method of doing power control on LTE radios". Far too many software patents seem to cover any solution to the same problem, not just a particular implementation.
(Note that the software in the DSP also gets the benefits of copyright protection)
I really strongly disagree with this. Supreme Court decisions are usually quite readable and will give a you a nuanced overview of the legal background and justifications for the ruling. They're usually very accessible and not nearly as crammed with legal jargon as you might guess. I try to read as many important decisions as I can and I have no legal training at all. I only occasionally have to look up a term. I would say they're easier, on average, for me to read than a CS paper. And after reading a few Scotus papers, you'll have a much deeper understanding of how our legal system works, and of course a great deal more about the individual decisions. You'll even read news articles about a decision and say, "That's not what the decision was about at all!"
Supreme Court rulings are, of course, quite long, and there's nothing wrong with a summary article like this one. But my point is that you shouldn't fear the legalese.
Interestingly, judges such as Richard Posner think recent opinions are too long.
http://www.law360.com/articles/455840/posner-says-justices-s... (Ignore the linkbait title; the article really is quite good.)
More accurately, this press release puts the spin of an interest group popular on HN on the decision; it is not a neutral explanation of the decision.
From looking at examples, "abstract" seems to mean trivial. By trivial, I don't mean obvious or silly, I mean small; i.e. an idea that can be reduced to one or two sentences, like "e-commerce shopping cart."
Otherwise it's pretty hard to distinguish ideas about software from ideas about hardware and explain why one is more patentable than the other.
Maybe what is meant by "abstract idea" is really "an idea in the abstract," i.e. an idea that is not used to make a machine can't be patented; it's the employment of the idea that is patentable.
Ok, you patent a machine. But that statement is vague and ambiguous at best. If I patent a machine that I built, then how could the patent apply to a different machine that I didn't build? Yet, that's the whole point: they apply to classes of machines, including machines that haven't even been built at the time that the patent is granted. The class would seem to be inherently something abstract.
If you invent a new piece of hardware, it's concrete. The ideas embodied are abstract. If you came up with hardware that works differently in a concrete way (e.g. you figured out how to use carbon in place of silicon, opening the door to entirely new categories of manufacturing) then it would be potentially patentable. Your methods would be concrete methods involving substances which are not abstract.
HTH
What's not patentable is "old idea, now on a computer for the first time" -- covering any implementation of "old idea" that nobody thought to put on a computer before, "but on a computer." That's clearly abstract. It's not an implementation. There are no implementation-specific details to put in the patent as claims (they would have to stand up to the obviousness test either individually or as a group). With nothing new except "on a computer" or "on a mobile device" it's not novel or specific and therefore not patentable.
I'm actually not going to argue the point "now if you HAD a specific implementation" because I'm not sure I actually believe in patents (or more specifically software patents) at all, but I do believe that even without a patent: if you have some source code that your competition doesn't, and you made it... and they acquire it somehow without getting a license, there are already copyright laws that protect you (so long as you can establish your own original ownership of that work) if they should decide to rip it off wholesale.
In addition, approving a patent takes almost no work while not approving one takes significantly longer and can have more bouts of back and forth.
The USPTO right now operates on a very loose definition of 'patentability' simply because it is more convenient to do so and the course will sort it out eventually anyways.. and there's absolutely no downside for them other than their own conscious.
Despite inane anonymous commenting syndrome, you are a person, you are not evil, you are just a person.
The abuse has been evil.
Land mines for example.
It's much harder for the law (I would say impossible) to actually judge stuff that is obvious. For example wavelet patents in certain video codecs are absurd - improving fourier transforms in a very very obvious way - but it won't be obvious to a judge or a jury and certainly isn't covered by this supreme court decision.
The more specialised people become in certain fields the more 'obvious' discoveries become. The law has no means to understand what rights it's protecting, and for how long they should be protected, which means it will never police the patent's system effectively, no matter what this judgement says.
Given how fast software patents and technology change and that the law can't judge them effectively I would suggest that instead of all this mess can we not just have software patents that last a maximum of 5 years.