Posts Tagged ‘IPR’

Supreme Court Upholds Software Patents in Bilski; “IP Sucks” Camp Mourns

Monday, June 28th, 2010

Today, the Supreme Court of the United States issued its opinion in Bilski v. Kappos, finding that Bilski’s patent was not valid, but reaffirming the patentability of methods and software.  Those in the “IP Sucks” camp were hoping the court would embrace their vision and overturn the entire concept software patents.  Thankfully, their hopes and dreams lie shattered on the floor, soaked in tears, much like my hopes for a USA semifinal birth in the World Cup.

Here is the statement I put out earlier today:

“The Supreme Court reaffirmed what we have always known: the world of software is filled with inventions deserving of protection through the patent system. Just a few minutes playing with a Tivo, an iPhone, or Adobe Photoshop proves that beyond a shadow of a doubt.

Patent quality is still clearly a problem for PTO on software and other method patents, but the Supreme Court rightfully chose not to throw the baby out with the bathwater. Bad patents are the problem, not the patentability of methods and software. What is needed is real effort to reform the system and prevent bad patents from ever being granted.”

Some key lines from the decision include:

In discussing the foundations of patent law:

Section 101 specifies four independent categories of inventions or discoveries that are patent eligible: “process[es],” “machin[es],” “manufactur[es],” and “composition[s] of matter.” “In choosing such expansive terms, . . . Congress plainly contemplated that the patent laws would be given wide scope,” Diamond v. Chakrabarty, 447 U. S. 303, 308, in order to ensure that “ ‘ingenuity should receive a liberal encouragement,’ ” id., at 308–309.

An invention need not be a machine or create physical transformation:

The machine-or-transformation test is not the sole test for patent eligibility under §101.

The Court is unaware of any ordinary, contemporary, common meaning of “process” that would require it to be tied to a machine or the transformation of an article.

Patent Law Does Not Exclude Business Methods or Software Patents:

(c) Section 101 similarly precludes a reading of the term “process” that would categorically exclude business methods. The term “method” within §100(b)’s “process” definition, at least as a textual matter and before other consulting other Patent Act limitations and this Court’s precedents, may include at least some methods of doing business. The Court is unaware of any argument that the “ordinary, contemporary, common meaning,” Diehr, supra, at 182, of “method” excludes business methods. Nor is it clear what a business method exception would sweep in and whether it would exclude technologies for conducting a business more efficiently. The categorical exclusion argument is further undermined by the fact that federal law explicitly contemplates the existence of at least some business method patents:

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Posted in Innovation and IP, Open Source, Patents | No Comments »

TADC Conference – ‘Other people’s stuff should be Free, not mine’

Monday, January 12th, 2009

Today at the Carnagie Institution the Trans Atlantic Consumer Dialogue held a conference called “Patents, Copyrights, and Knowledge Governance: The Next Four Years”. Here’s the top blurb about the event: 


As a new Administration will take office in Washington, and the European Union renews its institutions, what should the political agenda be for intellectual property? 

The globalisation of the challenges faced by consumers and rights holders have made intellectual property policy one of the main features of global trade policy, and stimulated both international and domestic debates about how best to promote innovation and access to knowledge, including "knowledge embedded" goods such as medicine, software, agriculture, inventions that address climate change, scholarly research, databases, films or recorded music. 

Both the United States and the European Union are facing demands to modify policies on patents, copyrights and other forms of intellectual property protection, coming from different perspectives. There are high profile right-owner lobbying efforts directed at higher standards and tougher enforcement of intellectual property rights, and growing interest among consumer groups, academics and many innovative businesses to protect the public domain and retain or even expand user rights. There is also much interest in exploring newer approaches to the support of creative and inventive communities, that do not rely on notions of exclusive rights. 

With the organisation of this event, the TransAtlantic Consumer Dialogue calls for two days of discussion on the assessment and on the prospective of the American and European political and policy Agenda on intellectual property practices and policies. 

The whole event is set up with a very strong anti-IP bent, and I am used to hearing that at NGO sponsored events.  But I was dismayed by the comments of Guilherme de Aguiar Patriota, the UN representative for the Government of Brazil.  Guilhereme gave a presentation very similar to one he gave back in 2002 where he said: 

“The intellectual property rights (IPRs) system, enhanced by the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), is actually hampering development of research and development (R&D) in developing countries; and industrialized countries, while heavily subsidizing science and technology (S&T) and R&D in their own countries, are placing all sorts of restrictions on attempts of developing countries to cooperate in market-oriented and commercially charged sectors of applied sciences“.


 But at today’s event he went so far as to suggest that copyright holders that expect Brazil’s schools to pay for books or software are actually hurting the children of Brazil, because it is taking money away from the kids. 

wow. 

I guess I just don’t know how to think about that in a rational way. Part of me ”gets“ what Guilherme is saying, but part of me looks at Brazil’s economic standing in a very different way than I might look at Kenya. Moreover, the fact that Brazil has the second most advanced industrial sector in the Americas means that Brazil might have to shoulder their part of the burden for education, including paying full freight for the tools developed outside their borders (if the tools are useful to them). 

But really, this issue of who pays and how much is kind of window dressing for the exchange he and I had on the fundamental concept of IP-Value. One little known reality about Brazil is that they are a leader in deep sea oil extraction and green energy. In fact, the State owned company ”Petrobras” is a major player in the field of new energy tech. But don’t trust me, here’s what Petrobras says about their own research and development laboratories: 

The technologies that are developed at the Cenpes turn Petrobras into the company that generates the most patents in Brazil and abroad. The number of patent request submissions in 2007 show the Cenpes is one of the world’s biggest applied research centers. In 2007 alone, in Brazil, 22 patents were granted and requests submitted for 59 more. Abroad, 129 requests were submitted and 29 granted. 

Given Petrobras’ success, and the vital import of green technology to the entire globe, I asked Gilhereme if, given the spirit of Access to Knowledge, Brazil should freely give up all patent rights and royalties from their energy tech. 

He did not seem to think it was a good idea. 

However, there was an interesting thread in his answer. He pointed out, with justified pride, that Petrobras was a company built in spite of all of the naysayers in the developed world who said it couldn’t be done. Gilhereme went on to point out ‘that Petrobras had poured millions into R&D to develop the technology and build it all on their own’. (I think he missed the parallelism there). 

Brazil is not alone in their call for others to give up what they themselves wouldn’t, but they are in a lead position to recognize and rethink a position that ultimately harms domestic innovation within developing countries.
I’d hope that events like the one today at Carnegie would provide a more diverse and nuanced worldview that respects the fact that there are no simple answers when it comes to judging the value of the products created by others.

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Posted in Innovation and IP, International Trade, Open Source, Patents | 2 Comments »