back to article Yes, software can be patented, US Supremes say

The US Supreme Court on Monday preserved the right of inventors to patent software and other intangible business methods in a highly anticipated ruling that disappointed critics who say such patents stifle competition and innovation. The ruling came in a case in which plaintiffs Bernard Bilski and Rand Warsaw tried to patent a …


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  1. Destroy All Monsters Silver badge
    Thumb Down

    The US is just annoying anymore.

    Freedom. Innovation. Liberty. Courage. Relevance.

    Not over there.

    1. Anonymous Coward


      It seems strange that you would use a distinctive Americanism ('anymore' meaning 'nowadays') to dismiss the USA.

  2. sisk
    Thumb Down

    Another Supreme Court fail

    Once again the Supreme Court fails us. Here they had a chance to fix a huge problem and bring us in line with the rest of the world on software patents and instead they make the problem worse. Idiots.

    1. Lou Gosselin

      Re: Another Supreme Court fail

      The only people in a position to fix anything are also the same people who have a disincentive of doing so. The best lawyers work for corporate america. For them it's not about being right or wrong, it's about making maximizing profits for oneself by sacrificing the public well being and overall soundless of legal policy. Sure there may be a decent one here and there, but they loose out financially to those who have no quips about selling out.

      It's why we have a backwards patent system for software. It's why high tech jobs are being offshored at alarming rates, and also why product quality has turned to crap across the board at the same time as being more expensive due to inflation.

      It's about time government started honoring it's obligations to the public rather than the corporations which have become all too powerful.

    2. Tom 13

      It is not SCOTUS that failed, but Congress

      SCOTUS must be bound by the words of the laws Congress passes, or the words of the Constitution itself lest it become a tyrant. We're sort of sensitive on that point over here, Ms Kagan and Sotomayor not withstanding.

      But, I concur our IP laws suck and require a major overhaul with the generous application of horse sense.

  3. Goat Jam


    The U.S. is a blight on the planet. It is a cancer that is inexorably spreading to the rest of the world.

    U.S. "allies" are forced to enter in to damaging trade agreements that infect their own nations with idiotic ideas such as this whilst their increasingly disaffected and alienated young people are steadily being bombarded with the magnificence of American Ghetto Kulture to the point that all they want from life is a crack habit and a prison tattoo.

    Countries that are not allies of the U.S. fare somewhat better, only having to contend with missile strikes, prison camps and squads of jack booted redneck patriots stamping around inside their borders.

    At least *those* people have a real enemy that they can fight back against.

  4. JeffyPooh

    Let me put this in the public domain before it's too late

    10: PRINT "Hello"

    20: GOTO 10

    Phew, that was close...

    1. Ragarath

      Can I Have...

      10 PRINT "Hello World"

      20 GOTO 10


  5. Gannon (J.) Dick
    IT Angle

    Magic Snake Oil

    The IT Industry is the last large consumer. Good luck with that guys.

  6. Graham Marsden
    Thumb Down

    "much money has been wasted and much innovation obstructed"

    And that pretty much sums up the idea of patenting software.

  7. Blue Pumpkin


    Maybe then I could patent the process underpinning the legal procedures of patent disputes .....

  8. Anonymous Coward

    So in other words...

    When it comes to litigation, he who has the deepest pockets will win.

    BigCorp 10, OSS author 0.

    No change there then.

  9. gimbal


    Am I misreading the article? Doesn't it say that they upheld the *denial* of a patent? So what *are* people barking about, here?

    Now, what is it - the court's double-talk, about it - though?

    Is there anyone around, in El Reg readership, who might actually understand the ruling, and then who would be able to summarize it, in actual, practical terms? No doubt, their decision would serve to establish a legal precedent, if their decision (including the decision as to what they'd say about the ruling) if only it could be *actually* understood.....

    1. Tom 35


      This patent failed. It was too general.

      But they ruled that other patents of this type are fine if they are not too general.

      So at best nothing has changed, at worst they can say that this type of crap patent is approved by the supreme court.

    2. David Kelly 2

      The system works.

      What the Supreme Court said was that there was nothing new in using weather forecasts to predict future commodity pricing. That the parameters selected and their weighing were not patentable. This was a correct decision.

      The anti-software patent people are wrong. Just because something is implemented in software doesn't make it any less real or useful. If it wasn't useful the freetards wouldn't be complaining about being denied the use of it, they'd happily continue to use what they had before someone invented and patented it. The problem is that it wasn't until after someone else invented it that they knew it was a good idea. That is what patents are all about, protecting those who actually come up with good ideas. In exchange for patent protection for a mere 20 years the idea becomes public domain.

      There are problems with the patent system. Placing movies on a hard drive should not be patentable, even if it is in a satellite receiver. Hard drives are generic digital data storage devices, long covered under many different patents. Methods for encoding movies into digital bit streams are patentable, but once one has a digital bit stream it is a natural for anyone practiced in the art to stash the bit stream on a hard drive for later playback. Just as its natural for anyone buying commodities futures to study the weather before deciding on prices they are willing to pay.

      1. gnufreex

        The system is broken!

        "If it wasn't useful the freetards wouldn't be complaining about being denied the use of it, they'd happily continue to use what they had before someone invented and patented it."

        You are wrong on so many levels but this sentence shows best that you have no idea what are you talking about. If I (a "freetard") use some piece of Free Software (like GNU/Linux for example) freely today, and tomorrow someone who didn't write it (Microsoft for example) comes to claim some kind of property and asks royalty.... that shows how system is broken.

        This is real example. Microsoft is going after people to license Linux without even showing patents they claim. Look at Amazon deal for example.

        Programmers who work for companies who patented their inventions often admit that they themselves can't recognise their own inventions in a patent. Patent applications are that vague and confusing.

        Patents are a way for a companies to claim ownership to something that they didn't made. Plain and simple. Nothing more than that. Anyone supporting US patent system is either hopelessly biased or does not really know what is talking about.

  10. Paul 129

    Full and particular description

    <ignorant comtard>

    Maybe the way to address software patents is the requirement for a "Full and particular description".

    I thought the patent process was to allow protection where the process was to be made public, in time.

    ie Software patents should require full explination, and description such that the work may be reproduced by another. (source code)

    </ignorant comtard>

    1. Lou Gosselin

      @Paul 129

      In the US, any patent which is granted is also made public

      See for actual examples.

      One problem is that by far and large, many of the software/algorithms that gets patent protection don't take long to implement independently. Consider that patented algorithms are often mathematically derivable such that multiple developers will necessarily end up with the same result. Thus, by merely solving mathematical equations for a problem, one can easily run afoul of existing and pending software patents.

      In a computer science class, as an assignment, we had to work on a developing a huffman encoding algorithm independently from external sources. This algorithm was patented by unisys, which meant that theoretically we could be sued for using our own code without a patent license. If a handful of students can develop an algorithm by themselves in a short time, then why in the world would the government grant a 17 year monopoly on it?

      In granting these software patents, a huge financial burden is placed upon all developers, who necessarily have to divert resources from R&D and increase customer prices. Diverted resources must be able to cover legal fees and pay into the government sanctioned monopoly's licensing fees. This disproportionately affects the small developers who don't have a legal department or a large patent portfolio to counter sue.

      1. Dave Bell

        Good summary

        It's the duration of patents, in a one-size-fits-all manner, that may be the biggest problem.

        There's an argument, for instance, that pharmaceutical patents, because of the lengthy test/approval process before they can be exploited, should have a longer life. There are precedents for this--some patents on TV technology were extended because WW2 halted TV broadcasting in the UK.

        And 17 years for a software patent is likely to be too long. It's not something that needs a couple of years to build a new factory before you can exploit it.

        But I'm a fool. I'm expecting a rational decision on these issues. Just look at what happens with copyright.

  11. wsm
    Thumb Down

    Stevens got it right

    Of course, the majority opinion can't make sense and be clear. This is the Supreme Court.

  12. heyrick Silver badge

    "return to the Supreme Court after much money has been wasted and much innovation obstructed.”

    They see it as money *wasted*. The lawyers see it as money *earned*. No wonder a bunch of legal bods made a crap decision to rake in loadsa extra cash for other legal bods. After all, it's the capitalist way, right?

    [ @ sisk : seriously... it's America... did you expect them to actually FIX patents, when they can be used by wonderful American companies to clobber the bejesus out of troublesome foreign adversaries in one of the largest markets around? ]

  13. Lou Gosselin

    Nothing new here.

    No doubt, this is a major disappointment since patents are responsible for just about all the ridiculous litigation for software developers, but it is not a surprise. The court merely confirmed what was already known, that software and algorithms are eligible for patenting in the US, judges cannot rewrite law from the bench.

    Patents make the software field less competitive. They are an impediment to independent developers who cannot afford the increasing costs of patent protection and litigation, but who are otherwise very talented at contributing both commercial and open source software.

    The entire system would collapse if it wasn't for the fact that most companies get by ignoring the patent system until they're sued at a time when they're more profitable.

    It's impossible to develop modern software without infringement. There are simply too many developers working worldwide to track each invention. Even if this were possible, the notion that they wouldn't bother developing without patent protection is ludicrous.

    Patent documents are written by and for lawyers, the benefit of having them published to disclose how they work is completely useless to the modern software engineer. Resources made available on the modern WWW are simply higher quality than patent documents ever could be.

    Clearly the world would be better off without software & mathematical patents, but now that we have them, patent trolls feel entitled to them and they have the resources to ensure it stays that way.

    1. Anonymous Coward

      And of course...

      ......if enough people ignore them for long enough it becomes impossible to enforce, as at the end of the day the US courts system can only deal with a finite number of cases, the ultimate result of any large scale disobedience.

      The end of the US is in sight, everbody is employed in the legal system, all sueing one another for breach of business process patents, and no one is actively producing anything.

      Sounds like the UK except here we already have in excess of 50% of the population either in receipt of benefit or dependent on Governement for their incomes, eventually down the plug hole it must go.

  14. heyrick Silver badge

    Yay for the Supreme Court

    On the day El Reg reports this bit of nonsense, said court also decides that banning handguns in that old hotbed of Gangster activity that is Chicago is, um, "unconstitutional". So a document written a long time ago in a different world for a different set of reasons will be upheld to the letter in a country with a serious gun problem. The lack of doing anything useful about guns controls. The lack of doing anything useful about patents. Pussies, the lot of 'em...

  15. jake Silver badge

    How can you patent the written word?

    Patents, copyrights & trademarks are all different ... for a reason.

    So-called "software"[1] is, by definition, human-readable, and thus copyrightable, but not patentable or trademark-able.

    The Supremes fucked this one up. Clueless idiots.

    [1] So-called software is merely the definition of the current state of the hardware.

  16. Stephen Booth

    Business Process

    Business Processes cannot be patented?

    Well I guess you don't want the person paying the lawyer being sued for copying the other guy.

    Now all we need is a ruling that software counts a business process and we can all get on with our jobs.

  17. Anonymous Coward

    Invade US!

    In the name of freedom the rest of the world should now invade US and make world free from their oppressive and arrogant patent dictatorship! (as they to this to other nations which are standing in their way to prosperity & development).

  18. Mark Eaton-Park

    XOR cursor anyone?

    Patents = money for lawyers

    judges = old lawyers

    US law = what is good for lawyers

  19. Harry

    It is deeply loathsome ...

    ... that so much time and money is wasted discussing what the current law means, when what is clearly needed is a rewrite of the law to unambiguously any such borderline material altogether.

  20. nobby

    i've got this idea called "Adding"

    it lets me take two small numbers, do this "thing" to them and end up with a third number (most of the time)

    its quite a simple process but i feel i should patent it now, in case someone else gets there first.

    Maybe Newton should have patented his "calculus" so Liebniz would have been unable to publish; then maybe we wouldn't have had to learn calculus at school, 'cos like, well it's a patented process so we can't afford to teach that to you, the licence is too restrictive..


    1. Gannon (J.) Dick


      Good Point. Cooler heads prevailed and eventually math boffins realized Newton and Liebniz were saying the same thing. The problem with SCOTUS reasoning in this case is they bought into marketing over math and form over substance. The math boffins who bailed us out before have been ambushed by lawyers brandishing Chaos (incorrectly, as Anti-Determinism).

      It shouldn't be too long before the US Patent System self-destructs from the Anti-Determinism Standard. What that self-destruction will look like, in the case of one system, is the Space Shuttle blowing up.

      "For a successful technology, reality must take precedence over public relations, for Nature cannot be fooled." --Feynman

      We pretty much know the end game of that single system scenario. When two or more identical systems are involved, two or more shiny but indistinguishable objects will make it into orbit. However, as the purchasing of shiny, indistinguishable objects is now random the premise that to make a Ferrari you have to re-invent a lot of wheels will have been disproved. Sadly, this knowledge will come too late to save the Dinosaurs from extinction or Mosquitoes from survival. Darwin and Feynman, as usual have the last laugh.

  21. MyHeadIsSpinning
    Gates Horns

    This situation can't last forever

    Because people will eventually see the USA as being too risky a market to invest in; if every time they release a product they get sued for patent infringement (even where prior art is invoked).

    The situation will soon become too silly to bear for much longer.

  22. Graham Bartlett

    The system doesn't work

    A few years ago, I was doing some work for Ford, during the course of which I got slightly involved in how cruise control does its thing.

    It's a standard closed-loop algorithm on speed, I hear you cry. Speed gets too high, it reduces power; speed gets too low, it increase power. PID loop. Classical control theory as invented by Laplace and Leibniz way back when.

    Not so. Some other vehicle manufacturer owns a patent on closed-loop control of speed, distance or acceleration. I shit you not. So anyone wanting to do closed-loop control with those parameters either has to license the patent from this other company, or they have to split their closed-loop control over multiple separate software modules which communicate using different units (which according to the lawyers is acceptable).

    On the same project, a couple of the guys got patents awarded to them. Their patented discovery? The fact that if you've got multiple speed sensors across different areas of a gearbox, you know what the gear ratios should be so you can tell if the gearbox is broken (or more likely, if a sensor is faulty). Obvious? You betcha. Patentable? Ditto.

    The problem is that you can patent damn near anything, and it's the other guy's problem to prove that it's obvious, or that there was prior art. Which costs money.

    1. Tom 13

      You've summed up the IP law problem rather succinctly in the middle of that rant:

      "Obvious? You betcha. Patentable? Ditto."

      Fix that and the rest will probably sort itself out. I'd concur on the earlier remarks about having different lengths of patents for different things. My strawmen are 3 years for software patents, 17 for mechanical gizmos and drugs, and a return to 75 for corporate copyrights and until death for individuals.

      1. Chris Hance

        Not sure about that last part...

        Forget legal battles. If a copyright's still in private ownership, "death for individuals" could be an incentive to... accelerate things.

        "You see this knife? Look closely and you'll see the words 'public domain' etched in the blade. You should've entered your works into public domain, now public domain is going to enter you."

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