Difference between revisions of "Patent Absurdity/Italiano (Italian)"
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Revision as of 11:34, 20 April 2010
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NOTE: The first 1 minute 16 seconds has a licence problem. We can't use a non-commercial CC licence. That would probably block the film from being shown at film festivals. It might even block the film from being linked to by websites that have advertisements.
1 00:00:08,776 --> 00:00:14,314 Queste persone si sono riunite per assistere alla discussione della prima causa di brevetto software portata dinanzi alla Suprema Corte in quasi 30 anni
2 00:00:14,564 --> 00:00:16,990 - Potete presentarvi e scandire i vostri nomi?
3 00:00:17,882 --> 00:00:21,729 - Certo, uh, uh, Bernie Bilski. B - I - L - S - K - I
4 00:00:24,180 --> 00:00:30,302 - Rand - R - A - N - D, Warsaw - W-A-R-S-A-W
5 00:00:30,552 --> 00:00:33,268 - Potete dirci in breve cosa avete inventato?
6 00:00:33,318 --> 00:00:39,498 - L'invenzione è una fattura dell'energia garantita, che è come un bilancio senza aggiustamenti,-
7 00:00:39,748 --> 00:00:46,768 - ed è un metodo per tutelare entrambe le parti di una transazione. Così, anziché dare ai consumatori,-
8 00:00:47,018 --> 00:00:50,518 -consumatori di energia, una fattura energetica garantita. Ci sono un sacco di meccanismi.
9 00:00:50,768 --> 00:00:54,468 E questi coinvolgono transazioni finanziarie tra consumatori d'energia,
10 00:00:54,718 --> 00:00:58,218 o clienti, e fornitori di energia.
11 00:00:58,468 --> 00:01:03,830 QUEST'UOMO SPERA DI ACQUISIRE UN BREVETTO SU UN METODO FINANZIARIO PER LA TUTELA DEL RISCHIO
12 00:01:04,066 --> 00:01:08,994 E questa è l'invenzione in breve. E' un metodo per generare fatture garantite-
13 00:01:09,244 --> 00:01:12,744 -per i clienti e, anche, per proteggere i guadagni delle aziende di energia.
14 00:01:12,994 --> 00:01:16,743 Il risultato della causa avrà profonde ricadute nel software
NOTE: The "non-commercial" licence problem ends here. (see "NOTE" at top of page). For the remaining translation, please us the CC-BY or CC-BY-SA licence.
15 00:01:17,020 --> 00:01:22,190 - The Bilski Case itself is someone applied for a patent on a business method or software,-
16 00:01:22,440 --> 00:01:27,396 -and patent office rejected it. And now this is that person suing the patent office, saying-
17 00:01:27,396 --> 00:01:30,390 -"You have to grant me that patent."
18 00:01:30,640 --> 00:01:34,140 This case is about what does it mean to be a patentable process.
19 00:01:34,390 --> 00:01:38,913 And so, since software patents fall under the category of processes, because they are not-
20 00:01:39,163 --> 00:01:43,166 -the machine, and they're not a composition of matter, which are some of the other categories-
21 00:01:43,413 --> 00:01:47,357 -of things that are patentable. This case will define what it means to be a patentable process.
22 00:01:52,257 --> 00:01:54,276 - What about justice Roberts? He said, you know,
23 00:01:54,468 --> 00:01:57,452 basically your patent involves people picking up the phone and calling other people.
24 00:01:57,770 --> 00:02:03,065 - It could be reduced to that level, as the certain acts that are performed, but it's much more than that.
25 00:02:03,365 --> 00:02:08,438 It has to do with selling commodity that effects price to one party, selling to a different party
26 00:02:08,738 --> 00:02:12,706 at a different fixed price, identifying counter risk positions.
27 00:02:12,956 --> 00:02:18,668 If you look at claim four in the patent, we have things called claims which describes what the invention is, -
28 00:02:18,668 --> 00:02:25,318 -there's a long mathematical formula in there, that didn't exist in nature or anywhere in the literature,
29 00:02:25,502 --> 00:02:28,110 that these very inventive folks come up with.
30 00:02:28,352 --> 00:02:32,052 - Once upon a time math was not patentable. And nowadays we can have someone -
31 00:02:32,302 --> 00:02:37,812 -like Bilski coming in and saying: "You know, I worked hard on this mathematical equation -"
32 00:02:38,012 --> 00:02:41,564 "- and therefor I should have a patent on this information processing method here."
33 00:02:41,814 --> 00:02:45,249 - You mention in your claim that there's a very long calculation shown there.
34 00:02:45,464 --> 00:02:50,710 Do you think a strong calculation or good math is a basis for a patent?
35 00:02:50,910 --> 00:02:51,714 - It can be.
36 00:02:51,964 --> 00:02:57,710 - The basic process of writing software is that you take a broad algorithm of some sort, you know, -
37 00:02:57,960 --> 00:03:01,760 -some means of doing something with abstract data, and then you apply variable names.
38 00:03:02,010 --> 00:03:05,910 - So for our first derivation let's start with a simple matrix, a matrix of values.
39 00:03:06,160 --> 00:03:11,830 And we'll find the mean of each column, mu one, mu two, mu three.
40 00:03:12,030 --> 00:03:21,184 And we're gonna define Y to be X minus mu for each column.
41 00:03:21,434 --> 00:03:29,468 Now if we have some other factor, X, we can take X dot S and find the projection of X onto this space.
42 00:03:29,718 --> 00:03:31,950 This is called the singular value decomposition (SVD).
43 00:03:32,200 --> 00:03:41,609 Now, here's the trick. Here's the great part. Let's say that this first row, X1, equals sexuality.
44 00:03:41,859 --> 00:03:45,359 Let's say X2 equals "Do you own cats?"
45 00:03:47,126 --> 00:03:51,836 And X3 equals, I dunno, affection.
46 00:03:55,022 --> 00:04:05,502 Ok, so, now we'll also say that, let's take a factor J1 equals Jane's responses on this survey.
47 00:04:05,752 --> 00:04:10,086 Let's say J2 equals Joe's responses.
48 00:04:10,336 --> 00:04:21,308 Now let's do the same projections as we did before. We're gonna take J1 dot S subtract J2 dot S.
49 00:04:21,558 --> 00:04:27,062 We're gonna find the distance between these two points, and we're gonna call that compatibility.
50 00:04:28,414 --> 00:04:35,901 And in that simple step, we've derived patent number 6 735 568.
51 00:04:37,750 --> 00:04:44,286 The trick of our derivation was that before with the SVD, we had abstract numbers.
52 00:04:44,536 --> 00:04:49,974 What the guys at eHarmony did to get this patent, was to assign names to our variables.
53 00:04:50,224 --> 00:04:55,870 So instead of an abstract X1 we have sexuality, instead of X2 we have a preference for cats.
54 00:04:56,120 --> 00:04:59,948 And by making those assignments, by setting variable names in this matter, -
55 00:05:00,198 --> 00:05:05,390 -they were able to take an abstract concept and turn it into a patentable device.
56 00:05:06,440 --> 00:05:13,569 - What we want to do according to the heads of our patent institutions, is take mathematics and
57 00:05:13,819 --> 00:05:18,246 slice it up into as many slices as possible, and hand those slices out. And, say, if you do a
58 00:05:18,496 --> 00:05:26,238 principle component analysis, if you multiply matrices for dating sites, we'll give that to eHarmony.
59 00:05:26,488 --> 00:05:31,532 If it's for equities we'll give that to State Street. And so on and so forth.
60 00:05:31,782 --> 00:05:39,718 And what we're giving out is basically exclusive rights to use mathematics, -
61 00:05:40,083 --> 00:05:44,883 -to use a law of nature, in whatever context. And what we get in return is basically nothing.
62 00:05:45,733 --> 00:05:52,121 - The patents is a government grant, in the US it arises out of the constitution.
63 00:05:52,471 --> 00:05:58,721 - The Framers included the provision for granting exclusive rights to inventors in our constitution,
64 00:05:58,971 --> 00:06:06,093 and the belief was that that was important in order to reward people who had made technological -
65 00:06:06,243 --> 00:06:09,343 - advances that would benefit society.
66 00:06:13,272 --> 00:06:18,156 - The rights that they are granted are not the rights to do the things that they invent, -
67 00:06:18,406 --> 00:06:21,409 -but the right to exclude others from doing that thing.
68 00:06:21,659 --> 00:06:28,345 - So the idea was you have a machine or a thing, which is not previously described in any literature, -
69 00:06:28,595 --> 00:06:34,449 -and which no skilled mechanic could figure out how to make given what is described in literature, -
70 00:06:34,699 --> 00:06:36,457 -and for that you get a patent.
71 00:06:36,707 --> 00:06:42,550 - The basis for determining what is patentable subject matter has continued to evolve -
72 00:06:42,800 --> 00:06:46,300 - over the last 200 years of our national existence.
73 00:06:46,550 --> 00:06:54,588 - In 1953 the Patent Act was modified by Congress, to add the words "or processes" to the word -
74 00:06:54,838 --> 00:06:57,697 - "product" in describing what could be patented.
75 00:07:04,760 --> 00:07:10,833 The Congress which did that was plainly thinking of processes of industrial manufacture. Processes -
76 00:07:11,083 --> 00:07:19,481 - that produced something at the other end. Float glass on molten tin, and it'll become flat, or whatever.
77 00:07:19,731 --> 00:07:25,065 - And it's unlikely that anybody thought of process at that time in terms of computer software, -
78 00:07:25,315 --> 00:07:33,748 -because we didn't have applications on computer software for many years after that last revision -
79 00:07:33,998 --> 00:07:36,998 - of the Patent Act.
80 00:07:46,267 --> 00:07:52,282 - Back in the late 70s the patent law was interpreted such that you couldn't patent software. It was -
81 00:07:52,532 --> 00:07:55,449 - considered a mathematical algorithm, a law of nature.
82 00:08:01,821 --> 00:08:09,430 The legal world changed. The environment was quite different starting with some decisions by-
83 00:08:09,649 --> 00:08:11,254 - the Supreme Court, like Diamond v. Diehr.
84 00:08:11,504 --> 00:08:17,905 - The patent applicant was coming in with a new process for curing rubber. The temperature, and-
85 00:08:18,155 --> 00:08:23,873 - the preciseness of the temperature is essentials in curing rubber well. And the innovation -
86 00:08:24,123 --> 00:08:30,753 -that was being patented in this case was an algorithm to monitor a thermometer -
87 00:08:31,003 --> 00:08:37,038 - that was basically in the process and determined when the rubber needs to be released and cooled.
88 00:08:37,288 --> 00:08:42,505 - And they said "Processes for curing rubber are patentable, there's nothing new about that, -"
89 00:08:42,755 --> 00:08:47,526 "- the fact that they use a computer in implementing it shouldn't change anything."
90 00:08:55,602 --> 00:09:00,070 - The Supreme Court makes it clear that you can't patent software, because it's only a set of -
91 00:09:00,320 --> 00:09:09,300 - instructions, or an algorithm. Abstract laws of nature, algorithms, are unpatentable in the US itself.
92 00:09:09,550 --> 00:09:17,209 However, then there was the creation of the Court of Appeals of the Federal Circuit.
93 00:09:17,459 --> 00:09:24,657 - The problem being solved, in some sense, begins with the fact that trial court judges always -
94 00:09:24,907 --> 00:09:27,180 - hate patent cases.
95 00:09:27,430 --> 00:09:35,310 And the reason they hate patent cases is, for a single trial judge, a lawyer who has spent his/her life-
96 00:09:35,560 --> 00:09:43,914 -doing litigation, a patent case in which she/he is going to be required to find detailed facts about how paint is-
97 00:09:44,164 --> 00:09:52,713 -made or how computers work or how radio broadcast- ing operates, is an opportunity just to made into a fool.
98 00:10:00,133 --> 00:10:05,369 - Congress is attempting to change the system in which patent cases are litigated.
99 00:10:05,619 --> 00:10:11,934 But instead of changing who tried patent cases, Congress left a non-specialist district judge-
100 00:10:12,184 --> 00:10:17,326 -in charge of the trial. And then created a new court of appeals called the Federal Circuit,-
101 00:10:17,576 --> 00:10:22,081 -who's job it was to hear all appeals from patent cases.
102 00:10:22,331 --> 00:10:25,313 Rapidly, of course, this court filled up with patent lawyers.
103 00:10:25,563 --> 00:10:32,622 And the patent lawyers then made the law in the court of appeals that applied to all those district judges-
104 00:10:32,872 --> 00:10:37,556 -who were still making non-specialist decisions of which they were afraid.
105 00:10:37,806 --> 00:10:42,721 Naturally the Federal Circuit turned out to be a place which loved patents.
106 00:10:42,971 --> 00:10:49,537 And it's chief judge, Giles Rich, who lived to be very very old and died in his late 90s,-
107 00:10:49,787 --> 00:10:53,068 -was a man who particularly loved patents on everything.
108 00:10:53,318 --> 00:11:00,273 The Federal Circuit court under Giles Rich sort of broke Diamond against Diehr lose from it's original meaning,-
109 00:11:00,523 --> 00:11:05,068 -and came to the conclusion that software itself could be patented.
110 00:11:05,318 --> 00:11:09,609 - The Supreme Court basically left everything to this court to decide.
111 00:11:09,859 --> 00:11:16,473 - The PTO actually used to reject patents on software, like in the early 1990s, and they did not allowed them.
112 00:11:16,723 --> 00:11:20,223 And the applicants would appeal those rejections to the Federal Circuit.
113 00:11:43,280 --> 00:11:46,798 - In the world of machines you show the Patent Office the machine,-
114 00:11:47,048 --> 00:11:51,697 -and you've got a Patent Office who's claims were "I claim this machine."
115 00:11:52,946 --> 00:11:56,636 In the world of computer software there was no way of defining what the unit was.
116 00:11:56,886 --> 00:12:03,777 I don't claim a program, I claim a technique that any number of programs doing any number of things could-
117 00:12:04,027 --> 00:12:11,492 -possibly use. The consequence of which is very rapidly we began to build up as real estate that somebody-
118 00:12:11,742 --> 00:12:19,014 -owned and could exclude other people from a whole lot of basic techniques in computer programming.
119 00:12:19,314 --> 00:12:24,516 - What happened was, starting in the mid-90s, the number of patents on software started soaring.
120 00:12:24,766 --> 00:12:27,806 An industry attitude started changing too.
121 00:12:28,056 --> 00:12:32,558 So you had Microsoft, which originally didn't deal with software patents very much at all,-
122 00:12:32,808 --> 00:12:36,885 -I guess they got sued in the early 90s by Stac and lost a, uh,-
123 00:12:37,085 --> 00:12:40,817 -significant judgment against them, they started patenting.
124 00:12:41,067 --> 00:12:43,932 - They're gonna have their own set of patents.
125 00:12:44,182 --> 00:12:49,116 So that if a major patent holder threatens them, they can fire back.
126 00:12:49,366 --> 00:12:55,382 - Gradually companies like Oracle were forced to set up patent departments just for defensive reasons.
127 00:12:55,632 --> 00:13:00,481 They had to patent their stuff so that they had some- thing to trade with the companies that had patents.
128 00:13:00,731 --> 00:13:10,945 Mark Webbink: - And so the arsenal started to develop. By year 2001 Microsoft now holds thousands of software patents.
129 00:13:11,195 --> 00:13:15,350 Oracle was probably approaching a thousand software patents. Adobe...
130 00:13:15,600 --> 00:13:19,713 James Bessen: - All of them become more and more aggressive. Patenters and some of the ones who were against-
131 00:13:19,963 --> 00:13:25,516 -software patents ended up suing other companies, and so what you had is an explosion of patenting first-
132 00:13:25,766 --> 00:13:27,729 -and then an explosion of litigation.
133 00:13:32,484 --> 00:13:37,404 By the late 90s about a quarter of all patents granted were software patents.
134 00:13:38,551 --> 00:13:44,233 About a third of all litigation, patent litigation, involves software patents.
135 00:13:44,483 --> 00:13:50,329 About 40% of the cost of litigation is attributable to software patents.
136 00:13:50,579 --> 00:13:52,631 And those numbers have been going up.
137 00:13:52,881 --> 00:13:59,270 So Charles Freeny invented a kiosk that goes in retail stores, and the idea is you'd come in,-
138 00:13:59,520 --> 00:14:05,306 -you could select the music selection, swipe your credit card, put in a blank 9 track tape,-
139 00:14:05,556 --> 00:14:10,917 -and this is is how long ago this patent was, and it would write that music selection onto the tape-
140 00:14:11,167 --> 00:14:13,988 -and you could go away with it.
141 00:14:14,238 --> 00:14:21,649 The patent was drafted in a very vague language so there were terms like "point of sale location",-
142 00:14:21,899 --> 00:14:25,060 -and "information manufacturing machine".
143 00:14:25,310 --> 00:14:32,902 And Freeny eventually sold this patent to somebody who wanted to interpret those terms very broadly.
144 00:14:33,352 --> 00:14:36,652 To basically cover e-commerce.
145 00:14:36,902 --> 00:14:44,956 So here was this very limited invention for this kiosk, and he wanted to interpret those terms in such a-
146 00:14:45,206 --> 00:14:50,102 -broad way so that it would cover transactions that took place over the Internet,-
147 00:14:50,352 --> 00:14:56,228 -you could make them in your office, in your bedroom, in your house, anywhere.
148 00:14:56,478 --> 00:15:00,817 And so it covered virtually all of e-commerce.
149 00:15:01,067 --> 00:15:08,382 The courts initially didn't agree with that interpretation but they appealed it, and the appellant court largely-
150 00:15:08,632 --> 00:15:16,254 agreed with them, and they were able to extract some settlements out of well over a hundred companies.
151 00:15:16,504 --> 00:15:23,452 But the significant thing is, here is this patent you can't tell what it's boundaries were until you get to-
152 00:15:23,702 --> 00:15:29,236 -the appellant court. What most people thought it's boundaries were turned out to be wrong.
153 00:15:29,486 --> 00:15:32,644 - One of the key properties of programming languages is they're very very precise.
154 00:15:32,894 --> 00:15:39,292 You can look at any program language in any language, in C, Python, any language like this,-
155 00:15:39,542 --> 00:15:43,910 -and you know exactly what it's doing. You can look at two pieces of service code and you can say-
156 00:15:44,160 --> 00:15:48,662 "Are this doing the same thing or different things?" And we do this because computers are very picky-
157 00:15:48,912 --> 00:15:53,801 -and we need to tell the computer exactly what we need to do in order to accomplish some task.
158 00:15:54,051 --> 00:15:57,551 The language of patents is almost the opposite.
159 00:15:57,801 --> 00:16:03,001 There's an advantage in being vague, and being broad, being non-specific, because the broader your language-
160 00:16:03,251 --> 00:16:06,751 -the more things you, sort of, catch in your net.
161 00:16:07,001 --> 00:16:12,361 - So it is a large problem in our patent system just defining simply what is the context or the borders-
162 00:16:12,611 --> 00:16:16,148 -of the patent. And what does it cover, and what does it not cover.
163 00:16:16,398 --> 00:16:21,658 And that ambiguity causes a lot of chilling effects, because people are going to avoid doing anything-
164 00:16:21,908 --> 00:16:27,013 -that could possibly be covered by the patent, even if in reality the patent wouldn't cover what they wanna do.
165 00:16:27,263 --> 00:16:33,406 - Let's imagine that in the 1700s the governments of Europe had decided to promote the progress of-
166 00:16:33,656 --> 00:16:41,162 -symphonic music, or as they thought, promote it. Will a system of musical idea patents, meaning-
167 00:16:41,412 --> 00:16:48,306 -anybody who could describe a new musical idea in words could get a patent which would be a monopoly-
168 00:16:48,556 --> 00:16:54,998 -on that idea and then he could sue anybody else that implemented that idea in a piece of music.
169 00:16:55,248 --> 00:17:09,121 So a rhythmic pattern could be patented, or a sequence of chords, or a set of instruments to use together,-
170 00:17:09,371 --> 00:17:17,212 -or any idea you could describe in words. Now imagine it's 1800 and you're Beethoven, and you want to write-
171 00:17:17,462 --> 00:17:23,748 -a symphony. You're gonna find it's harder to write a symphony that you won't get sued for, than write-
172 00:17:23,998 --> 00:17:29,102 -a symphony that sounds good. Because to write a symphony and not get sued you're gonna have to-
173 00:17:29,302 --> 00:17:34,638 -tread your way around thousands of musical idea patents.
174 00:17:34,888 --> 00:17:40,388 And if you complained about this, saying it's getting in the way of your creativity, the patent holders would-
175 00:17:40,638 --> 00:17:44,484 -say "Oh, Beethoven you're just jealous because we had these ideas before you."
176 00:17:44,651 --> 00:17:46,873 "Why should you steal our ideas?"
177 00:17:47,123 --> 00:17:52,634 - People has been making music for thousands of years. There were never any need for patents in-
178 00:17:52,884 --> 00:18:01,148 -the field of music. And since the computer industry has made programming possible, people have been-
179 00:18:01,398 --> 00:18:07,054 -developing software as well, since right from the beginning, there was never a need to have patents-
180 00:18:07,304 --> 00:18:10,516 -in this field in order for the activity to happen.
181 00:18:10,766 --> 00:18:20,582 - Almost everything we were doing back before 1980, 1981, those things, patent played no role in it.
182 00:18:20,832 --> 00:18:30,324 Cut & paste, the embedded ruler in a word processing, word wrapping, a lot of the things that are real-
183 00:18:30,574 --> 00:18:37,566 -important and we take for granted, and that are much more innovative in many ways than patents we have-
184 00:18:37,816 --> 00:18:44,198 -today, 'cos patents can be on some very minute things, that's the way the law works.
185 00:18:44,448 --> 00:18:49,841 Those things happened, we had great advances without patents.
186 00:18:50,091 --> 00:18:54,100 - One of the worlds most respected computer scientists,
187 00:18:54,350 --> 00:19:02,422 Donald Knuth, has said that if software patents had been available in the 1960s and 70s when he was-
188 00:19:02,672 --> 00:19:07,084 -doing his work, that it's probably the case that computer science wouldn't be where it is today.
189 00:19:07,334 --> 00:19:15,164 There would be blockades on innovation that could've seriously prevented the kinds of technical solutions-
190 00:19:15,414 --> 00:19:17,942 -that we take for granted today.
191 00:19:18,192 --> 00:19:24,137 - The programmer writing a long program might conceivably need to check whether 500 or-
192 00:19:24,387 --> 00:19:28,622 -thousand different techniques are patented, and there is no way that she possibly could.
193 00:19:28,872 --> 00:19:35,590 - The Patent Office issues hundreds of software patents all the time. Every Tuesday they issue 3,500 patents-
194 00:19:35,790 --> 00:19:41,032 -and a large number of those relate to software. It's just impossible to review all those patents every week-
195 00:19:41,232 --> 00:19:43,580 -to make sure you're not doing something that could infringe them.
196 00:19:43,830 --> 00:19:53,505 - So there's a provision in the US patent laws that basically holds patent infringers, ahem, at I guess-
197 00:19:53,755 --> 00:20:01,117 -a greater liability if they are shown to willfully infringe. So basically the idea is that if you knew-
198 00:20:01,367 --> 00:20:07,094 -about a patent and you infringed on it, you should have a stricter penalty than if you didn't know about it.
199 00:20:07,344 --> 00:20:14,356 But what this results in is a situation where there is a real disincentive to follow what patent has been made-
200 00:20:14,606 --> 00:20:21,228 -and what new inventions there has been through the patent system, because if you read every patent or-
201 00:20:21,478 --> 00:20:28,070 -there's evidence to show that you have read patents, then you are liable for willful infringement, you knew-
202 00:20:28,320 --> 00:20:32,737 -about the patent and you infringed it anyway, and the penalty is triple damages.
203 00:20:32,987 --> 00:20:39,137 - A number of people suggested that software should be removed from the-
204 00:20:39,387 --> 00:20:40,760 -scope of patentability. Can you comment on that?
205 00:20:41,010 --> 00:20:45,894 - Yes, well, I obviously disagree with that. And I don't believe that software should ever be removed.
206 00:20:46,144 --> 00:20:51,441 It's one of our greatest sources of technical innovation in this country. And to come up with a test that would-
207 00:20:51,691 --> 00:20:55,230 -somehow eliminate software would, I think, be a disaster for the economy.
208 00:20:55,480 --> 00:21:01,852 WOULD IT THOUGH? - Mike and I estimate that outside of pharmaceuticals and chemicals the patents, sort of, are acting like-
209 00:21:02,102 --> 00:21:10,454 -10 or 20 percent tax. You know, the small developer developing something, down the road he has to pay-
210 00:21:10,704 --> 00:21:18,892 -that tax. And every small company I know in software, as long as they've been around a few years and hit-
211 00:21:19,142 --> 00:21:26,950 -the market, somebody is asserting a patent against them, they're running into some potential difficulties.
212 00:21:27,200 --> 00:21:31,609 They very frequently feel obligated to get patent themselves for defensive purposes.
213 00:21:31,859 --> 00:21:40,646 So all of that activity is a tax. It's not something that's helping them innovate, it's an unnecessary activity.
214 00:21:40,896 --> 00:21:47,313 - The primary thing we do is an issue tracking system called RT, or Request Tracker, so it's customer service,-
215 00:21:47,563 --> 00:21:53,506 -help desk, bug tracking, network operations, anything were you've got a whole bunch of tasks that need to-
216 00:21:53,756 --> 00:21:58,089 -get kept track of. And you need to know what happened, what didn't happen, who did it,-
217 00:21:58,339 --> 00:22:04,609 -who didn't do it, when. It's kind of a to do list on steroids designed for a whole organization.
218 00:22:04,859 --> 00:22:10,297 Pretty much everything is open source or free software, under one license or another.
219 00:22:10,547 --> 00:22:18,009 We'll get consulting customers or support costumers who add indemnification language to our standard-
220 00:22:18,259 --> 00:22:27,038 -contract or need us to sign theirs. And it says, in the standard legalities, it's gonna say something like-
221 00:22:27,288 --> 00:22:34,324 -we indemnify and hold them harmless and agree to pay their legal fees and sacrifice our firstborn, if-
222 00:22:34,574 --> 00:22:41,468 -something happens and someone discover that our software is violating a somebody else's patent.
223 00:22:41,718 --> 00:22:46,276 It's very very rarely the case that we end up signing something that has that kind of language in it.
224 00:22:46,526 --> 00:22:48,476 But it eats up a lot of legal fees.
225 00:22:48,726 --> 00:22:59,648 - Look at the innovative people in software in ICT, and ask "Would they be better of if the patent system-
226 00:22:59,898 --> 00:23:03,161 -was abolished?" The answer is probable "Yes".
227 00:23:03,411 --> 00:23:11,472 - Who's benefiting? Patent lawyers is number one. Number two, you've a small number of so called-
228 00:23:11,722 --> 00:23:17,822 -trolls who are benefiting, but it's not clear even most of them is making much money.
229 00:23:18,072 --> 00:23:25,580 You're seeing more recently, in the last 4 or 5 years, companies like Intellectual Ventures and-
230 00:23:25,830 --> 00:23:32,364 -hedge fonds who are acquiring large volumes of these trash patents and using them to extract hundreds-
231 00:23:32,614 --> 00:23:38,129 -of millions of dollars from companies. They're benefiting, they maybe the biggest beneficiaries.
232 00:23:38,379 --> 00:23:42,872 - There's a lot of bad press in the last few years about the harm that's caused by software patents.
233 00:23:43,122 --> 00:23:49,268 And we think that's had a political influence on the PTO to get them to slow down their issuance and start-
234 00:23:49,518 --> 00:23:51,444 -rejecting them, and that's what has resulted in the Bilski case.
235 00:24:00,270 --> 00:24:07,630 - Well the biggest, first bad press story was the Blackberry patents, where all the Congressional-
236 00:24:07,880 --> 00:24:12,228 -representatives have their Blackberrys and there was a company called NTP that sued the manufacture of-
237 00:24:12,478 --> 00:24:17,425 -Blackberry saying that all Blackberrys infringed it's patent. Well, NTP was this company which is just a-
238 00:24:17,675 --> 00:24:22,532 -one person holding company, they didn't make any products or services themselves, and so-
239 00:24:22,782 --> 00:24:29,764 -this got a lot of attention in the Wall street Journal and Washington Post, and Congress persons were really-
240 00:24:30,014 --> 00:24:34,039 -upset that they may lose their Blackberrys and they may not be able to communicate efficiently.
241 00:24:34,289 --> 00:24:40,950 So that caused a lot of attention, then you had all these patents on banking methods and imaging for checks,-
242 00:24:41,200 --> 00:24:44,188 -those patent holders were asserting against the banking industry, and the banking industry has-
243 00:24:44,438 --> 00:24:47,686 -a lot of influence on Capitol Hill, and so they've been going down there and saying "Look, these types of-
244 00:24:47,936 --> 00:24:52,553 -patents are causing us lots of harm." Then you add into that the whole patent troll phenomenon in-
245 00:24:52,803 --> 00:24:58,457 -Eastern District of Texas, with small patent holders suing large IT companies like Google, Microsoft-
246 00:24:58,707 --> 00:25:04,293 -IBM and Hewlett Packard. And all these companies also have legislative influence, and they've said-
247 00:25:04,543 --> 00:25:08,612 -"These types of patents are causing real harm to our business, they're costing us jobs, they're increasing-
248 00:25:08,862 --> 00:25:13,881 -the price of products and services that we offer to our customers, and you need to do something about it."
249 00:25:21,620 --> 00:25:27,428 - The situation we find ourselves in is that the lower court, the Court of Appeals of the Federal Circuit,-
250 00:25:27,678 --> 00:25:32,140 -is essentially a court for patents, for hearing patent cases.
251 00:25:32,390 --> 00:25:40,741 And this is the first time the Supreme Court has taken up that scope of patentability.
252 00:25:40,991 --> 00:25:47,852 And specifically this test that was implemented by lower court, does talk to software patents.
253 00:25:48,102 --> 00:25:55,724 And so, it's basically a 20 year history of software patents being granted due to the lower court.
254 00:25:55,974 --> 00:26:01,286 And so, we're hoping that the Supreme Court will clear up the mess that the lower courts created.
255 00:26:01,536 --> 00:26:06,065 And restamp it's authority which basically said that you cannot have software patents.
256 00:26:06,315 --> 00:26:12,078 - When you saw the arguments that where brought by Bilski's lawyer, the patent bar is in some sense-
257 00:26:12,328 --> 00:26:21,238 -an organized lobby. And an expansive subject matter that's available to be patented is in their interest.
258 00:26:21,488 --> 00:26:26,406 And it's clear that that was frustrating to some of the justices. Some of them were frustrated by how-
259 00:26:26,656 --> 00:26:28,685 -expansive patentable subject matter has become.
260 00:26:28,935 --> 00:26:34,553 - They seem somewhat dismissive of the idea that you could patent this particular idea.
261 00:26:34,803 --> 00:26:40,169 - I think people has a hard time getting over the idea that you can get a patent on hedging commodity-
262 00:26:40,419 --> 00:26:45,580 -risk. But if you actually look at the claims and look at what's in there, it is a process and it's no-
263 00:26:45,830 --> 00:26:50,080 -different than any other process. It just may be that it's not the way that they thought of patent-
264 00:26:50,330 --> 00:26:51,817 -law in the past.
265 00:26:52,067 --> 00:26:56,321 - We were encouraged by the comments by the justices which showed that they were skeptical-
266 00:26:56,571 --> 00:27:02,630 -and which suggested that they understood that software is little more than a series of steps,-
267 00:27:02,880 --> 00:27:08,441 -that could be written out as mathematical formula, or written out on a piece of paper, or, as was-
268 00:27:08,659 --> 00:27:11,638 -mentioned by one of the justices, typed out on a typewriter.
269 00:27:11,809 --> 00:27:17,117 - Software patents on a general purpose computer have never been explicitly endorsed by this court.
270 00:27:17,367 --> 00:27:23,798 And this court has also shown no compunction about reversing rules that've held for a very a long time.
271 00:27:24,048 --> 00:27:27,662 They clearly thought that the petitioners here was trying to get a patent on something very basic,-
272 00:27:27,912 --> 00:27:29,924 -some basic forms of human activity.
273 00:27:30,174 --> 00:27:34,861 MORE THAN 200,000 SOFTWARE PATENTS HAVE BEEN GRANTED IN THE U.S.
274 00:27:35,611 --> 00:27:42,489 PROGRAMMERS FIND IT INCREASINGLY DIFFICULT TO WRITE SOFTWARE THEY WON'T BE LIABLE TO BE SUED FOR
275 00:27:42,739 --> 00:27:46,239 NOW IMAGINE...
276 00:28:39,908 --> 00:28:46,257 Transcript version 2.0 by Martin Karlsson. Licensed under CC-BY-NC-SA