Judge Mayer rules that software is not patentable
 

The USA Federal Appeals Court for the Federal Circuit is the court which hears all patent appeals. A three judge panel of that court has ruled that a software patent is invalid in the case of Intellectual Ventures v. Symantec. All three judges ruled that the software patent is invalid. Two judges wrote an opinion giving the reasons why the software patent is invalid. The third judge, Judge Mayer, wrote a concurring opinion in which he agreed with the other two judges and added two more reasons why the software patent is invalid. One of his reasons is that ALL software patents are invalid i.e. software is not patentable. You can read Judge Mayer's opinion here:

http://patentlyo.com/patent/2016/10/...y-reaches.html

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Steve Stites

Looks like the judges got it right for once, any program is built up out of generic commands and so you cant int my opinion patent the finished code, u might just as well try to patent a wall built out of discreet bricks.

Moderator response
 

Moved: This thread is more suitable in <General> and has been moved accordingly to help your thread/question get the exposure it deserves.

Well, it's off to Congress, then ... and undoubtedly to the Supreme Court.

Realistically, it's going to (finally) have to go to Congress, and they're going to have to deal with probably a general overhaul of patent law, not just for software.

Thousands of new patent applications arrive at the USPTO every day. So, let's be realistic: what do they do with them? Yeah, they stamp them and mail-out the shiny certificate. They don't seriously evaluate the patent, and, well, how could they? So it goes out to feed the "patent trolls," who immediately file lawsuits ... not to win or lose the case, but to force the defendant to settle. The settlement then feeds the patent trolls, and pretty much no one else.

And this has been the way that it has been for many decades. (As the Judge observes, "over 250,000 patents apply to a smart phone.")

In the case of software, the Judge's decision contains a very juicy and very true observation: Nevertheless, the matter will ultimately have to be resolved with new law, to finally batter-out exactly what protections ought to be in place for this new thing called software. Trying to bridle it using laws that were meant to protect "improvements to cooking stoves" is just not the right answer.

Judge Mayer giveth software patents and Judge Mayer taketh away.
 

You are quite possibly correct. But it is also possible to correct the software patent problem in the Supreme Court. I have been active trying to abolish software patents for ten years both through Congress and through the courts. During that time the court system, which created software patents in the first place, has moved a fair distance in the direction of abolishing software patents while Congress has done nothing in any direction on software patents.

The court which has done the most to create and expand software patents is the United States Court of Appeals for the Federal Circuit. The greatest expansion in what software is patentable occurred when Judge Mayer was chief judge of the USCAFC. Judge Mayer oversaw the creation of software patents. Now Judge Mayer has written an opinion which fully agrees with the points made by any of the anti-software patent people, including me.

There is a very good explanation of both the legalities and politics of Judge Mayer's ruling in techdirt.

https://www.techdirt.com/articles/20...ents-bad.shtml

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Steve Stites

The first absurd-patent that I stumbled upon was in the source-code to IBM's VM/SP: it supposedly covered the notion of using a "compare double and swap" (analogous to the LOCK prefix on x86 chips) to manage the head-pointer of a linked list.

Never mind that this is used as an example in operating-system textbooks when this type of machine instruction is discussed ... :rolleyes:

However, I'm not quite convinced that "copyright" protection, alone, is sufficient for computer software. A completed piece of software is "a software machine." I don't think that it is quite correct to say that "a generic computer" is simply, in effect, "reading a book." I'm not entirely persuaded that computer software is a "language." It's more like a blueprint. (Is it at all like a silicon-chip mask?) I don't think that it is music, and I don't think that it is literature. The computer hardware does not "appreciate" the software: it obeys it.

The problem is closely tied, in my mind, to reverse engineering. Of course, this is what busted-open the original IBM PC, but if you truly have invented a piece of software that truly is "novel and not-obvious," you ought to have something to license. Maybe. (For instance, I thought that Phil Katz (RIP) should have made some real money from his PKZip invention, instead of dying as he did: a pauper. Because he really did a helluva job with it, because "by gawd, it did good compression and it was f-a-s-t." This, on a slow and tiny machine.

But the Judge hit the nail squarely on the head when he talked about people high-tailing it to the PTO to patent what is at that point effectively a notion, so that they can hit people who actually implement something with lawsuits.

I think that we simply do not have the law ... or perhaps, even the legal principles ... that are really sufficient to fairly protect software while encouraging its development.

I fear that Judge Meyer said too much, partly because he did not have to say anything and yet he did. I'm therefore afraid that his decision will be overturned on appeal and that we'll wind up where we are now. (Partly because "where we are now" is so damned lucrative to groups like Intellectual Ventures!)

Member response
 

Hi,

Patent law is not the real problem but the legislatures that do not understand the underlying factors of software or hardware therefore not able to write proper law.

A hobbyist would have a better understanding than most people who are delegated to write the laws of the U.S. Sure some members of the legislature do use advisors but those advisors do have a reason or investments in how the cake is baked. So you sometimes get that loop hole that someone will use to their advantage.

Yes, by using the IBM example for the PC being released to the public. That was on part do too the persons who actually reversed the BIOS and then others that reversed the hardware designs so a independent could actually develop a clone of the first PC with a proper BIOS and hardware. Somewhere I do have the first schematics that were released to the public. And I do have the BIOS that was released by IBM to slight Microsoft's claims. So Thanks to IBM!!

And yes you will always have the vultures that will circle to find the means to sue someone for anything.

Hope this helps.
Have fun & enjoy!
:hattip:

Judge Mayer's opinion cannot be used as precedence. He was part of a three judge panel so the majority opinion is the decision and his minority opinion cannot be cited as precedence.

However if the case is appealed to the Supreme Court then his minority opinion will be part of the case being reviewed by the Supreme Court. So his concurring minority opinion could be looked at as a plea to the Supreme Court to force the appeals court (all nine judges) to interpret the Supreme Court Alice decision as banning all software patents.

Here's hoping that Intellectual Ventures appeals the decision to the Supreme Court.

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Steve Stites

From the court website:

"HALDANE ROBERT MAYER has been a member of the court since 1987. He served as Chief Judge from 1997 to 2004....He assumed senior status on June 30, 2010."

Being a senior judge is a form of retirement. A senior judge is no longer required to hear cases. He only hears cases, if any, that he wants to hear. Judge Mayer heard this case because he wanted to.

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Steve Stites