Supreme Court Reins in Obvious Patents

Ars Technica reports on today’s Supreme Court ruling rejecting the standard for obviousness the Circuit Court has been using to determine patentability.

[T]he Federal Circuit had adopted a higher standard, ruling that those challenging a patent had to show that there was a “teaching, suggestion, or motivation” tying the earlier inventions together.

[The Supreme Court found] that the Federal Circuit had failed to apply the obviousness test. “The results of ordinary innovation are not the subject of exclusive rights under the patent laws,” Justice Anthony Kennedy wrote for the Court. “Were it otherwise, patents might stifle rather than promote the progress of useful arts.”

I’m not quite ready to forgive Kennedy, but it’s nice to see the Court upholding the obviousness test. As my previous posts illustrate, lately a lot of stupidly obvious inventions have been given patents. Especially in software, the result has been much more stifling than promotion of good ideas.


Patent Law: Pharma vs. Tech

The Washington Post has a good backgrounder on the politics of the patent debate. I’ve written before about the problems with software patents.

As much as tech companies use and abuse the patent system, there is a basic understanding that patents on the tools of the trade are a roadblock. You either have to challenge them, pay off the patent holder, or as commonly happens, counterclaim patent infringement using your own patents. Even the biggest patent holders, e.g. Microsoft or IBM, would agree that this wastes resources.

On the other hand, for pharmaceutical companies, patents on the tools of the trade are the lifeblood of the business. So these two huge industries are fighting over patent reform. Congress seems to enjoy getting paid by both sides to wind up doing nothing, while the unfairness, stifling of innovation, and costs of the current broken patent system continue to screw the public.

We’ll see what happens: yesterday the 2007 Patent Reform Act was introduced to the House and Senate. [Ars Technica]


WIPO Broadcast Treaty — Your Chance to Speak

Boing Boing points out the upcoming public hearing on May 9 about the WIPO Broadcasting Treaty.

The Broadcast Treaty is a proposal to let broadcasters (and “webcasters” — people who host files and make them available to the Internet) claim a copyright to the stuff that they transmit. Broadcasters get this special right even if the stuff they’re sending around is in the public domain, or Creative Commons licensed, or not copyrightable (like CSPAN’s broadcasts of Congress). Fair use doesn’t apply to this right.

Seems ridiculous, right? Weigh in!


Blackboard's Dangerous Patent

EFF lawyer Jason Schultz says Learning Management System vendor Blackboard’s broad patent for e-learning gives it too much power over educational institutions. Ars Technica covers the story.

The patent, which covers an “Internet-based education support system and methods,” could potentially threaten increasingly popular open-source course management platforms like Moodle and subject universities to the risk of litigation. … Although Blackboard has publicly pledged not to enforce its patent against open-source software distributors, universities, or non-commercial entities, there are many gray areas that make it difficult to guess what is permissible and what is not. For instance, Schultz points out that the pledge allows Blackboard to sue proprietary software vendors that incorporate open-source software components into their offerings.

This situation parallels the Novell – Microsoft patent non-enforcement agreement I previously discussed. Even in the best of contingent circumstances, when the patent holders pledge good behavior, users live under the coercive effects of this contingency. Colleges and universities are uniquely dedicated to freedom of information, and we need tools that fit with that dedication.

The whole point of the patent system is to bring proprietary inventions and novel methods into the public domain by legitimizing the inventor’s right to license the technology. Software patents allow the inventor to set license terms that are incompatible with free software. Charging fees was once no impediment to patent licensing because the only licensees would be commercial entities. With software, there is no inherent need to recoup costs commercially — whence free software — so charging fees now reduces public access to patented technology. Patent holders are also allowed to restrict the modification of their licensed technology, which is incompatible with free software.

I am not claiming that colleges and universities must use only free software. But we do need the freedom to choose between free and commercial models as they affect our sometimes conflicting educational objectives — e.g. freedom of information vs. access to robust tools. It’s hard enough finding an LMS that does what we need at an affordable cost (whether commercial software, paid support for free software, or employees to roll our own) without the additional anticompetitive force of potential patent litigation.


Amazon Granted Patent on Mechanical Turk

Slashdot points out Amazon’s latest patent, which covers its implementation of the Mechanical Turk, a particular stalking horse of this blog. (See past entries.)

Rough Type helpfully summarizes Amazon’s claim:

The patent, as Amazon describes it, covers “a hybrid machine/human computing arrangement which advantageously involves humans to assist a computer to solve particular tasks, allowing the computer to solve the tasks more efficiently.” It specifies several applications of such a system, including speech recognition, text classification, image recognition, image comparison, speech comparison, transcription of speech, and comparison of music samples. Amazon also notes that “those skilled in the art will recognize that the invention is not limited to the embodiments described.”

Here’s the full claim. Considering that “the Turk” originated in 1770, I think there may be a case for prior art. But seriously, this is the same scheme used by Project Gutenberg to correct scanned books. Not that prior art carries much weight with the Patent Office lately. In fact it seems you can get a patent for just about anything. Case in point: this patent for a method of swinging on a swing.

The deeper problem is with patenting software at all; see Richard Stallman on software patents.


GPL v.3 Draft Released

The new version of the Gnu General Public License (GPL) moves one step closer to release today as the third draft is released for public discussion. The GPL is the basic legal tool by which free software is kept free, and it has held up for many years (v.1 was released in 1989). Recent developments in the commercialization of open source software have shown up some loopholes and weaknesses in the license.

Richard Stallman, president of the FSF and principal author of the GNU GPL, said, “The GPL was designed to ensure that all users of a program receive the four essential freedoms which define free software. These freedoms allow you to run the program as you see fit, study and adapt it for your own purposes, redistribute copies to help your neighbor, and release your improvements to the public. The recent patent agreement between Microsoft and Novell aims to undermine these freedoms. In this draft we have worked hard to prevent such deals from making a mockery of free software.”

Incorporating public and expert comments on previous drafts (the second draft was released in July 2006), this latest draft is open to comment for 60 days and then will be made official 30 days later.

For background on the Microsoft/Novell agreement, see Novell’s take vs. the protest. See also: a nice allegory explaining the situation.


Supreme Court Considers Software Patents

Ars Technica covers the latest case, Microsoft v. AT&T, concerning liability for patent infringement for the distribution of software outside of the United States. At stake is the legal status of software: is it more like machines or more like math?

The Ars piece links to an amicus brief filed by the Software Freedom Law Center:

“In contrast to the Federal Circuit, the Supreme Court has maintained limits on patentable subject matter throughout U.S. history,” said Eben Moglen, Executive Director of SFLC. “The Supreme Court has consistently ruled that algorithms and mathematics cannot be patented. Since software is expressed as mathematical algorithms, it should not be patentable.”


Software Patent Trends

The Patent Prospector reports on IP Law 360’s 2006 survey [subscription required] of tech patent litigation. Increasingly, new product launches are met with lawsuits, and more often from non-practicing patent holders (“trolls”) or patent licensing companies working for them. As you might expect, Microsoft is the #1 target.

The patent system is a mess. The House of Representatives acknowledged as much this week, holding patent reform hearings. But in particular, software patents are a huge problem.

To get an idea of what’s at stake, let’s start with some background: Bitlaw’s history of software patents. Why are software patents problematic? Amazon’s “One Click” patent is a classic example. To many people, a patent for clicking the “Buy” button seems ridiculous. Richard Stallman has been particularly outspoken and lucid on this point.

In the past year, there have been new attempts to improve the patent process like IBM’s IP marketplace manifesto. Interestingly, large, established corporations like Microsoft and Oracle are leading the push in the tech sector for patent reform. This is largely due to the ease with which big tech companies exchange patent licenses — quickly resolving patent disputes is a way of life.

New York Law School’s Peer to Patent Project made headlines in May 2006 with the US Patent and Trademark Office agreeing to a pilot peer-review program. Unfortunately there has been no news out of USPTO since then. Check out the Peer to Patent proposal.

We only grant the limited monopoly of a patent in return for the benefit of the innovation entering the public sphere. With the Free Software movement gaining traction, we may eventually decide that software openness is so fundamental that we shouldn’t pay for it at all. But either way, opening the patent process to peer review is the first step to allowing that decision to be made by the public.