In the absence of any really interesting e-signature news I decided to opine on an important intellectual property case that will be heard by the Supreme Court in November. The Supreme Court has agreed to hear arguments on “in re Bilski” where the Federal Court of Appeals imposed a “machine or transformation test” (i.e. did you decribe a machine or a method for transforming something?) on business process patents and upheld the USPTO decision to reject a patent on a process for hedging commodities trades.
Not surprisingly the Free and Open Source community is filing briefs in support of the decision and patent attorneys and large patent holders such as IBM are filing briefs urging the court to overturn the Circuit Court’s decision and/or test. For a some coverage of the range of opinions this article in The H is informative, even though it arises from an “Open Source” perspective. And for a nicely written brief in support of the Circuit Court and the “machine or transformation” test Red Hat’s amicus brief is a fairly readable statement of many of the arguments in defense of open software.
Then there is a Microsoft et. al. brief which supports rejecting Bilski’s patent but also rejects the “machine or transformation” test and strongly supports the patentability of software, reaching way back for precedent:
To be patent-eligible, therefore, a claimed method must involve one or more disclosed physical things–that is, it must describe a series of steps that use physical means to produce a result or effect in the physical world.
Indeed, this standard (and not “machine-or-transformation”) has been the law for more than a century. See Tilghman, 102 U.S. at 727 (“Whoever discovers that a certain useful result will be produced, in any art [i.e., process], machine, manufacture, or composition of matter, by the use of certain means, is entitled to a patent for it”) (emphasis added). As explained in a Nineteenth Century treatise, the patentee must describe “a practical application to some useful purpose . . . and his specification must show the application of the principle to such a special purpose, by its incorporation with matter in such a way as to be in a condition to produce a practical result.” George Ticknor Curtis, A Treatise on the Law of Patents for Useful Inventions as Enacted and Administered in the United States of America § 242 (4th ed. 1873) (emphasis added).
I don’t know much about Mr. Curtis’ Treatise but it sounds pretty authoritative. In fact the filers of the brief even chose to add emphasis to the parts that one presumes make their software patentable!
The “machine or transformation” test is a major bone of contention for many of the “in support of neither party” briefs. These are often filed by patent attorneys or companies such as Microsoft, IBM and Yahoo that own lots of patents and spend lots of money on patent attorneys.
So you may have concluded that eSignature is sympathetic to the arguments of the Software is Free group and you would be correct! My sympathies originate from the pragmatic perspective that it is almost impossible for a small software business to be certain that they aren’t violating somebody’s patent. This is made even more odious by patent trolls and world domination quotes from the likes of Mr. Gates and Mr. Myhrvold. This can’t be good for encouraging innovation and rewarding invention.
I am strongly in favor of copyright protection for software. I believe that copyright protection combined with compilation and obfuscation should be adquate protection for software. Awesome algorithms should be worth something!
I once asked a very smart friend that had invented some speech algorithms and founded a speech recognition software company if his company had many patents. His reply was no, they published instead. Not enough detail to give away their secrets but enough to “make sure nobody else can patent it.” This struck me as a beautiful thing at the time.
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Guess not much going on blog-wise, but it’s been a long time since I last visited.
All ideas, software or not, have the problem of determining if it’s been done before and patented. The level of “true inventiveness” has often been quite low historically, allowing patents on all sorts of common thoughts — though many would claim they are only “common” now because they invented it and it became successful.
But the number of patents being filed has grown exponentially, meaning that more and more ideas are being locked up to benefit the few. Patents certainly play a bigger part for big corporations than they do for small guys, even though the small guy needs a patent to protect himself from the big guy who will just steal it.
However, patents don’t protect anything. They just give you the right to attempt to police it yourself. You first have to find someone you think may be violating your patent. Then you have to press charges in a legal system that will surely cost you $10,000 to $50,000 just to get it going to the point where you’ll have to decide if it should go to court or not, and once it goes to court, you can add one or two zeros to that sum.
So if you are small, trying to outspend a big company is a huge gamble. The big guys often will throw their portfolio of patents back at you.
There may have been a time when patents were useful, but with capitalism and education in such force today around the world, I don’t think they are as useful as they used to be. They tend to lock up ideas that then slow future invention, and they put fear in many who have to wonder if whatever they are doing will just be taken away from them (someone else patented your hard work, even though you had no knowledge of that patent, or perhaps even recognize your creation as being in violation of that patent).
It becomes all legalese and nuance of the “claims” of the patent rather than what the patent actually describes. Even if your invention is dramatically different from what the patent describes, if they can twist their claims, which are written as broadly as possible because it’s really easy to tweak just about anything and be different, to show they cover what you did, you are in violation.
I’d bet that very few patents actually make money through licensing, and those that do tend to be owned by big companies, not small inventors.
I agree with you that copyright applies to software (it’s written, like a novel, not built like a machine), and of course trade secrets when desired.
Bilski v. Kappos turned out to be somewhat of a dud. There was a great opportunity for proscribing the patent-ability of ideas, but instead throwing out Bilski’s patent was supported under narrower grounds. Meanwhile the door is left open for others to continue patenting business methods and other abstract, intangible concepts.