Comments on: Just because you used a computer doesn't make your idea new.

Just because you used a computer doesn't make your idea new.

atbash — Thu, 19 Jun 2014 10:32:52 -0800

We hold that the claims at issue are drawn to the abstract idea of intermediated settlement, and that merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention.
...
We must first determine whether the claims at issue are directed to a patent-ineligible concept. We conclude that they are.

The United States Supreme Court has ruled 9-0 [pdf], invalidating many but by no means all software patents, in Alice v CLS Bank.

Analysis from the usual suspects:
End Soft Patents Patently O IPWatchdog

By: Mitrovarr

Mitrovarr — Thu, 19 Jun 2014 10:43:29 -0800

It sounds like this will invalidate a lot of the stupider software patents (the ones that are essentially "let's do X, but on a computer!") It will be interesting to see if the ones that are more complex (such as the ones that say "Let's do this complicated algorithm, but on a computer") pass muster or not. I'm going to guess that the big winners in this case will be the people developing UIs, since in many cases that's what UI patents boil down to.

By: Jpfed

Jpfed — Thu, 19 Jun 2014 10:44:39 -0800

*fist pump*

By: zarq

zarq — Thu, 19 Jun 2014 10:47:44 -0800

Wow. 9-0? Good.

By: atbash

atbash — Thu, 19 Jun 2014 10:51:32 -0800

Wow. 9-0? Good. If you read the opinion (it's only 21 pages and you can skip a fair amount and still get the gist of it), it's actually 6 in the majority, 3 concurring, and none dissenting. Thomas wrote the opinion, which surprised me some. The concurring opinion's difference is quite small.

By: Another Fine Product From The Nonsense Factory

Another Fine Product From The Nonsense Factory — Thu, 19 Jun 2014 10:52:23 -0800

This was a precedent ruling. They had clear cases Bliski, Benson, Parker they could use and seems like no-one on the court was spoling for a fight over a more expansive attack on software patents or a more comprehensive defence of them. A good row back of the worst excesses.

By: sbutler

sbutler — Thu, 19 Jun 2014 10:55:17 -0800

[nelson.jpg] This has to be one of those cases where the plaintiffs really regret litigating this far. If they'd stopped after the district or appeals court they would have lost the patent. But now they've lost an entire class of patents, potentially their entire portfolio. Not that I'll be shedding any tears over this ruling. This should have happened a long time ago.

By: Diablevert

Diablevert — Thu, 19 Jun 2014 10:58:52 -0800

Tell me tell me tell me that this bankrupts Nathan Myhrvold. Please.

By: Jasper Fnorde

Jasper Fnorde — Thu, 19 Jun 2014 10:59:22 -0800

[nelson.jpg]? I don't get it.

By: gsteff

gsteff — Thu, 19 Jun 2014 11:00:19 -0800

Does this mean that Android can now let content bounce when you scroll past it?

By: RustyBrooks

RustyBrooks — Thu, 19 Jun 2014 11:01:44 -0800

Nelson is the Simpon's character who always say "ha ha"

By: absalom

absalom — Thu, 19 Jun 2014 11:03:10 -0800

Unanimous? Wow. *mic drop* Wow, this is a pleasant surprise, I must say.

By: klangklangston

klangklangston — Thu, 19 Jun 2014 11:06:38 -0800

Unanimous and Thomas woke up to write it? Damn, you just got sonned, Alice. Go check Bob!

By: briank

briank — Thu, 19 Jun 2014 11:10:21 -0800

[nelson.jpg]? I don't get it. In his spare time, Lord Nelson was a big-time patent troll.

By: klangklangston

klangklangston — Thu, 19 Jun 2014 11:10:34 -0800

Also, lol: Gene Quinn is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103)" AWARDS FROM THE FUTURE HOW CAN YOU ARGUE WITH THAT

By: atbash

atbash — Thu, 19 Jun 2014 11:11:44 -0800

and Thomas woke up to write it? I kind of assume some clerk actually does that?

By: Cash4Lead

Cash4Lead — Thu, 19 Jun 2014 11:23:57 -0800

It sounds like the ruling could be used to as the basis for invalidating all software patents or just those that are excessively vague or abstract. It really depends on what lower courts do with the ruling. Is that right?

By: sammyo

sammyo — Thu, 19 Jun 2014 11:25:46 -0800

Wow, posted and commented here long before slashdot or reddit, gett'n to be the hotbed of nerdism news on the blue.

By: sammyo

sammyo — Thu, 19 Jun 2014 11:27:25 -0800

So will we be getting a one click shopping cart for donations here soon?

By: mbrubeck

mbrubeck — Thu, 19 Jun 2014 11:30:22 -0800

James Grimmelmann (University of Maryland professor of intellectual property law) wrote on Twitter:

1. Very tentative, but I read CLS Bank to eliminate "do X using software" patents but not patents on new software techniques. 2. To expand on that idea, a patent on a new technique for memory defragmentation would, I think, pass muster.

If so, that would be a great improvement over the previous status quo.

By: ardgedee

ardgedee — Thu, 19 Jun 2014 11:33:40 -0800

In my extremely cursory reading of a couple blog posts, am I correct in suspecting that this mostly affects process patents (eg, shopping cart) and UI patents (eg, pull-to-refresh), but leaves alone things like algorithm patents (eg, search engine rankings)?

By: Kadin2048

Kadin2048 — Thu, 19 Jun 2014 11:37:30 -0800

If they'd stopped after the district or appeals court they would have lost the patent. But now they've lost an entire class of patents, potentially their entire portfolio. From what I can tell, in this case the plaintiff (Alice) is basically a patent troll set up with a very small number of closely-related patents and a mandate to use them offensively to ~~extort~~ obtain licensing fees. They either win, or die. I don't think there was an opportunity for them to lose partially; the patents are too closely related. Given that, who else goes down with them if they lose isn't their problem. In fact, it might be better to scorch the earth if they're going to lose, rather than lose only their patent; if they lose only their patent, then they lose individually. If they escalate to the point of having an entire class of patents invalidated, then their loss is also their competitors' loss.

By: wemayfreeze

wemayfreeze — Thu, 19 Jun 2014 11:38:23 -0800

I'm seeing a variety of reactions from the wonks. Not sure if there's consensus yet on what this means. For a good lay overview I liked the Ars Technica article.

By: wemayfreeze

wemayfreeze — Thu, 19 Jun 2014 11:40:33 -0800

ardgedee I'm curious to see a post that argues this invalidates UI patents. Link?

By: anotherpanacea

anotherpanacea — Thu, 19 Jun 2014 11:46:13 -0800

and Thomas woke up to write it? Thomas is a super-sharp jurist with a coherent judicial philosophy. Pretending otherwise is racist, and any liberal who doesn't take his move from Malcolm X to originalism seriously is, well, not serious. He's conservative, and there's good reason to reject that conservatism. But don't pretend he's dumb or lazy; you sound racist.

By: gyc

gyc — Thu, 19 Jun 2014 11:47:39 -0800

I'm also doubtful that this ruling would affect most UI patents.

By: b1tr0t

b1tr0t — Thu, 19 Jun 2014 11:51:08 -0800

It may be a bit premature to celebrate. My understanding of this ruling is that the class of patents that are now invalid are those of the form "we do [pre-existing thing] on a computer!" So a one-click patent that just claims to patent the process of buying stuff with a computer would be invalid, but a one-click patent that describes the process of conducting a transaction over HTTP would probably still stand. If my understanding is correct, this is certainly bad for patent trolls and good for everyone else. But it still leaves the door open to patent trolls - they just need to be a bit more descriptive in their patents. The net result is that they might need to file ten different patents to cover implementations of a concept, rather than one broad patent. IANAL.

By: fifthrider

fifthrider — Thu, 19 Jun 2014 12:01:35 -0800

Pretending otherwise is racist I get the feeling that klangklangston was probably alluding to Thomas' notorious tendency to all-but-sleep-through oral arguments because he thinks they're superfluous to the decision-making process. But feel free to persist in a persecution fantasy.

By: sparklemotion

sparklemotion — Thu, 19 Jun 2014 12:07:21 -0800

Thomas is a super-sharp jurist with a coherent judicial philosophy. Pretending otherwise is racist. Whoa, I think that's going a little far. There are plenty of reasons not to like Thomas that have nothing to do with his race. He's (probably) a sexual harasser, he doesn't recuse himself from cases that maybe he should (maybe!), he doesn't ask any questions at oral argument, he's very conservative in an "originalist when I agree with what the founders said" kind of way. You may disagree with one or all of those reasons (I've started to come around to his side about not asking questions), but "and Thomas woke up to write it" is not a racist statement, nor is a dislike him necessarily based on race at all.

By: drezdn

drezdn — Thu, 19 Jun 2014 12:07:27 -0800

endorfireworks.gif

By: sparklemotion

sparklemotion — Thu, 19 Jun 2014 12:15:48 -0800

And back on topic: This decision annoys me because it doesn't really say anything. Invalidity here hinges on the Alice patent being, at its core, an abstract idea. But what is an abstract idea? I feel like using a photovoltaic substance to convert sunlight into electricity sounds pretty abstract to me, but no one would claim that a new type of solar panel is not patent eligible subject matter.

By: wemayfreeze

wemayfreeze — Thu, 19 Jun 2014 12:18:33 -0800

Yeah a vote for moderation in responses to klangklangston's comment. As a super lay observer of SCOTUS I was also under the impression at one point that Thomas didn't do much in general due to his much talked–about silence during oral arguments. Certainly we can't remove race from the equation (because USA) but an ignorance of Thomas's activities on the court in my mind doesn't equate to racism.

By: lumpenprole

lumpenprole — Thu, 19 Jun 2014 12:20:46 -0800

Does this invalidate that guy who's trying to claim podcasts are the same as his idea to mail cassettes of news programs to people?

By: ardgedee

ardgedee — Thu, 19 Jun 2014 12:22:49 -0800

> ardgedee I'm curious to see a post that argues this invalidates UI patents. Link? I was guessing at what the ruling would affect. Since a lot of process concepts involve distinct UI (eg, one-click checkout), I was assuming there would be sufficient overlap to affect both aspects. But I don't know, which is why I asked.

By: stoneweaver

stoneweaver — Thu, 19 Jun 2014 12:24:14 -0800

Well, this is gonna be interesting.

By: gyc

gyc — Thu, 19 Jun 2014 12:29:29 -0800

It certainly appears that the SCOTUS is hinting at going down the European route of requiring a technical effect.

By: CBrachyrhynchos

CBrachyrhynchos — Thu, 19 Jun 2014 12:37:13 -0800

But what is an abstract idea? I feel like using a photovoltaic substance to convert sunlight into electricity sounds pretty abstract to me, but no one would claim that a new type of solar panel is not patent eligible subject matter. Apparently, it's already a qualification for patents, intended to limit the applicability of patents to specific innovations. You can't (or shouldn't be able to) patent the concept of converting light to electricity, since that's a concept so broad that it includes coal-fired power-plants. You can patent specific processes for producing or improving photovoltaic materials.

By: ardgedee

ardgedee — Thu, 19 Jun 2014 12:40:04 -0800

For whatever it's worth I suspect the major software companies (Apple, Microsoft, Google, Amazon, Adobe...) are quietly happy about this, even if they aren't certain of the consequences yet either. Whatever protections they gain for themselves through software patents, they are each having to spend hundreds of millions of dollars a year on the costs of constructing defensive patent portfolios, defending lawsuits from real competitors and patent trolls alike, on licensing existing patents, on managing the licenses they grant to others... This could stand to be an entire class of expenses that don't have to happen and are probably routinely costing them more money than they earn on their own patents.

By: Kadin2048

Kadin2048 — Thu, 19 Jun 2014 12:44:59 -0800

You wouldn't patent "using a photovoltaic substance to convert sunlight into electricity", and you're correct in thinking that's pretty abstract. You could, probably, patent using some specific substance, perhaps also arranged in a particular way, to convert sunlight to electricity; the "not abstract" part is the specificity of the substance and/or arrangement. Obviously, people filing patents want those patents to be as broad as possible, so they are going to constantly push the boundaries of what the USPTO will allow. The PTO at various times has had very robust standards for patentability (cf. 19th c. patent models), but then the courts got involved and since then it's been pretty much "anything goes! patent all the things!" ... so it's nice to see the court rein that in.

By: klangklangston

klangklangston — Thu, 19 Jun 2014 12:49:40 -0800

"But don't pretend he's dumb or lazy; you sound racist." He barely participates in oral arguments (hence "wake up"), and he's so often off on his own even on concurrences that when he delivers the majority opinion, it tends to be unanimous and a slam dunk. For the last essentially unanimous opinion I remember on a similar issue, AMP v. Myriad, Thomas also delivered pwnage.

By: bruceo

bruceo — Thu, 19 Jun 2014 12:55:46 -0800

Alex Tabarrok posits that this is the Supreme Court smacking down the Federal Circuit.

By: enn

enn — Thu, 19 Jun 2014 13:00:50 -0800

It certainly appears that the SCOTUS is hinting at going down the European route of requiring a technical effect. I was curious so I tried to read the Wikipedia page that talks about technical effect in European patent law and it makes no sense to me. What is a technical effect, exactly? What would be an example of a software-related patent that might fail the technical effect test?

By: zachlipton

zachlipton — Thu, 19 Jun 2014 15:29:45 -0800

What's amazing is that it is 2014 and we are still squabbling over the basics here. Think of the many thousands of patents, millions in legal and patent agent fees, and repeated Supreme Court decisions and we're still at the point where the Court has to repeatedly remind the Federal Circuit (let alone the patent office) that there's some kind of basic standard for patentability.

By: ChurchHatesTucker

ChurchHatesTucker — Thu, 19 Jun 2014 16:18:32 -0800

By: jepler

jepler — Thu, 19 Jun 2014 16:53:35 -0800

"A generic computer [performing] generic computer functions" might not be a category which includes, say, a patent in which an otherwise generic computer acts on signal from an accelerometer. Looking just cursorily at the '479 patent, the most "esoteric" physical components of the system seem to be telephone modems connecting computers in a way that was decidedly common already on the patent's priority date in 1992, and an element which I assume Alice Corp. would have argued was not essential (in case someone said, "but we connect our computers with fibre channel not telephone modems"). On the other hand, that line of reasoning indicates that at some point the connection of an accelerometer to a generic computer plus some possibly-novel software would no longer be a patentable combination. I am comfortable with this consequence.

By: klangklangston

klangklangston — Thu, 19 Jun 2014 17:27:29 -0800

"... it notes that you can't get a patent if each step claimed in the patent "does no more than require a generic computer to perform generic computer functions." Except, uh, many people will point out that's all that software does." That's a bit of a weird misread, so far off that from another outlet I'd assume it was intentional. The missing part there would be that what is patentable would be describing SPECIFIC METHOD that the computer was utilizing. It's not enough to say that the computer should, say, check some numbers and run a formula, then update the numbers. It would have to describe what the formula is, how that formula works and why that's a technical innovation. It's a higher level of specificity.

By: CBrachyrhynchos

CBrachyrhynchos — Thu, 19 Jun 2014 17:44:20 -0800

... it notes that you can't get a patent if each step claimed in the patent "does no more than require a generic computer to perform generic computer functions." Except, uh, many people will point out that's all that software does. I'd say that a most software beyond "echo 'Hello world!'" does more than just shuffle data from one register to the other. That is, we don't give patents just because the innovation in question was built in a machine shop, or synthesized in a test tube. We should give patents just because the claimed innovation runs on a Turing system either. If we go there, we end up with patent trolls like the guys who are suing cities because moving a document from office to office is such a radically new idea if the document is digitized in transit.

By: ChurchHatesTucker

ChurchHatesTucker — Thu, 19 Jun 2014 18:26:15 -0800

I'd say that a most software beyond "echo 'Hello world!'" does more than just shuffle data from one register to the other. Such as...? Seriously, we should be at the point where "... on a computer" is obvious by now.

By: CBrachyrhynchos

CBrachyrhynchos — Thu, 19 Jun 2014 20:39:39 -0800

Such as...? Transforming that data in various novel and useful ways. Whether those transformations are worthy of patent protection is another matter altogether. To use an example cited by the decision, turning voltage from a thermocouple into information about the the process of curing rubber apparently is patent-worthy.

By: taz

taz — Thu, 19 Jun 2014 23:51:58 -0800

[A couple of comments deleted; please drop the Clarence Thomas derail.]

By: IAmBroom

IAmBroom — Fri, 20 Jun 2014 11:33:42 -0800

zarq: Wow. 9-0? Good. atbash: If you read the opinion (it's only 21 pages and you can skip a fair amount and still get the gist of it), it's actually 6 in the majority, 3 concurring, and none dissenting. Thomas wrote the opinion, which surprised me some. The concurring opinion's difference is quite small. So, what you're saying is: "9-0"?

By: ROU_Xenophobe

ROU_Xenophobe — Fri, 20 Jun 2014 12:26:14 -0800

A six member opinion with three concurrences isn't the same thing as a truly 9-0 opinion.

By: IAmBroom

IAmBroom — Fri, 20 Jun 2014 12:48:36 -0800

Yes, I get that, and yet, it still it effectively the same. Pedantic shaved hairs aside, the notion that vague-assed software patents have some sort of bounds on their idiocy has been unanimously affirmed.

By: ROU_Xenophobe

ROU_Xenophobe — Fri, 20 Jun 2014 13:06:16 -0800

It really depends on the nature of the concurrence. They can be anywhere from "I have some minor differences" to "You people are morons who only made the correct decision by blind luck. "

By: feckless fecal fear mongering

feckless fecal fear mongering — Fri, 20 Jun 2014 13:49:55 -0800

Tell me tell me tell me that this bankrupts Nathan Myhrvold. Please. While he is a patent troll, he isn't all evil. I'd point you at things like Modernist Cuisine for one (and his continued dedication to innovation in the culinary world), a novel approach for killing malaria-bearing mosquitoes with lasers, etc.

By: IAmBroom

IAmBroom — Fri, 20 Jun 2014 14:53:57 -0800

It really depends on the nature of the concurrence. They can be anywhere from "I have some minor differences" to "You people are morons who only made the correct decision by blind luck. " ROU_Xenophobe, that's nice in an academic sense, but in the situation we're actually discussing, "The concurring opinion's difference is quite small." So, I concede the point: 6 + 0.999*3 is not equal to 9. Except for all practical purposes.

By: atbash

atbash — Fri, 20 Jun 2014 21:32:35 -0800

So, what you're saying is: "9-0"? I mean, yeah, the reason I said 9-0 in the post and explained the nuanced difference in a comment when somebody made a note of it is that it's nuance.

By: Sticherbeast

Sticherbeast — Sat, 21 Jun 2014 04:45:30 -0800

Yeah, the "score" on a SCOTUS decision only refers to the votes for and against what the Court held. Concurrences still count toward's the Court's holding. It's like how Brazil had a 3-1 game over Croatia. You don't mention in the score itself that Croatia's one point was actually an "own goal" by Brazil. That would only come up in the commentary on the game. But, when a person points out that Croatia's one point was an own goal, they're not contradicting the 3-1 score. They're just providing more detail.