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Re:XOR patent ended CD32, and Commodore-Amiga by brlewis on Thursday April 14, 2011 @09:17AM (#2446688)
It's easy for HN to see that the XOR patent is obvious, and not just in hindsight. Convincing a court is not so easy. The solution is not to get rid of quote-unquote bad software patents, but to adhere to the Supreme Court precedents that make software per se non-statutory. Any patent whose novelty and non-obviousness is claimed only in software should rightly be invalid.
Re:XOR patent ended CD32, and Commodore-Amiga by monochromatic on Thursday April 14, 2011 @10:54AM (#2447038)
> Supreme Court precedents that make software per se non-statutory

Got a citation for that? I didn't think so.

Re:XOR patent ended CD32, and Commodore-Amiga by brlewis on Thursday April 14, 2011 @11:14AM (#2447130)
I agree with the citations from the 1970s here: http://www.bitlaw.com/software-patent/history.html

I disagree with their description of the 1981 Diehr opinion as saying "the only new feature of this invention was the timing process controlled by the computer". The dissent said this, not the majority. The dissent was based on the facts of the case, not law. Diehr was not a departure from earlier precedent.

EDIT: Not only did the Court majority not say what bitlaw says in the Diehr opnion, they contradict it: "According to the respondents, the continuous measuring of the temperature inside the mold cavity, the feeding of this information to a digital computer which constantly recalculates the cure time, and the signaling by the computer to open the press, are all new in the art."

http://brlewis.com/y/2004/diehr.htm

Re:XOR patent ended CD32, and Commodore-Amiga by monochromatic on Thursday April 14, 2011 @11:47AM (#2447240)
To the extent those old cases are in conflict with Bilski, they are not binding precedent.
Re:XOR patent ended CD32, and Commodore-Amiga by brlewis on Thursday April 14, 2011 @12:15PM (#2447368)
What does Bilski say that conflicts with them?
Re:XOR patent ended CD32, and Commodore-Amiga by monochromatic on Thursday April 14, 2011 @12:19PM (#2447384)
I would argue that it doesn't say anything that conflicts with them. But you were citing old cases as authority for software being per se nonstatutory subject matter, and that's pretty clearly not true in the post-Bilski world.
Re:XOR patent ended CD32, and Commodore-Amiga by brlewis on Thursday April 14, 2011 @01:17PM (#2447616)
Theoretically, if the only opinions that conflict with those old cases are from lower courts, then they're still valid precedent. However, you're quite right that in today's world you're unlikely to get a patent overturned because of Benson or Flook. This difference between theory and practice irks me.
Re:XOR patent ended CD32, and Commodore-Amiga by monochromatic on Thursday April 14, 2011 @01:19PM (#2447630)
I meant Supreme Court's Bilski, not Fed Circuit's Bilski.
Re:XOR patent ended CD32, and Commodore-Amiga by brlewis on Thursday April 14, 2011 @03:37PM (#2448104)
Bitlaw opines that the Supreme Court's Bilski didn't clear things up. I'd be interested in seeing a concise analysis stating otherwise.

http://www.bitlaw.com/software-patent/bilski-and-software-pa...

Re:XOR patent ended CD32, and Commodore-Amiga by monochromatic on Thursday April 14, 2011 @03:43PM (#2448125)
Don't get me wrong, I don't think SCt Bilski does anything but muddy the water. But it's simply not the case that there is binding precedent that software is nonstatutory. That's all I was talking about.
Re:XOR patent ended CD32, and Commodore-Amiga by brlewis on Thursday April 14, 2011 @05:05PM (#2448452)
From a practical standpoint, you're absolutely right, and I certainly hope nobody takes what I'm saying as legal advice.

From what's actually written in the Supreme Court opinions I've read, every software patent I've seen discussed on HN should be invalid. Benson and Flook were super clear. Diehr was long and hard to read, but when you boil it down, it didn't change anything; it merely clarified that software as part of an invention doesn't automatically make the whole invention nonstatutory. I haven't read Bilski, but it sounds like SCOTUS punted on clarifying things because they think it should be Congress's job.

Until Congress steps up and clarifies, I think the previous Supreme Court decisions should be law. But they aren't. I find that extremely annoying.