Since the 2007 MedImmune v. Genentech case it has been very difficult for a patentee to discuss potential infringement or licensing with another party without creating declaratory judgment jurisdiction. DJ jurisdiction allows the alleged infringer to file a suit for a declaratory judgment that the patent is invalid, unenforceable, or uninfringed (or some combination). The big advantage is that it lets the alleged infringer pick the time and place of the suit. So patentees have become more likely to file suit and talk about settlement later rather than trying to negotiate a license and then filing a suit only if that fails.

A state did challenge the federal government over that very thing. It lost. The decision was 7-2, and with the current makeup of the Court it's unlikely that it would hear a similar case.

What's "a single mechanical device"? Do the multiple tools in a fancy CNC machine make it multiple devices? What about the fact that a CNC mill is really a combination of the tools, the mill, and the software and hardware that control it? What if the various parts can be interchanged and upgraded?

And what's "the output?" If I build a new type of wrench using a forge, a hammer, and an anvil (multiple devices), that's patentable under your theory. But if the exact same wrench gets built using a CNC mill, it isn't? What if it could be made with a CNC mill but wasn't? Why should it matter how the invention was developed?

And what if I design the invention using multiple tools and get a patent but then someone else builds the product using a single specialized device? Under your theory, is that infringement or not? Why or why not?

What I'm trying to underscore in my comments on this story is that drafting laws is hard to do well. I'm not sure why people think Stallman would be particularly good at it. He spends a lot of time thinking about programming, philosophy, and policy. I don't get the impression that he's thought very deeply about how best to implement policy through legislation. It seems like a classic case of Engineer's Disease, assuming that competency in one area automatically imbues one with competency in another.

For the cost of a high-end computer you can also buy a CNC mill or a 3D printer. Should mechanical device patents also be abolished, since just about any device can be designed and built in a person's home?

Ah, right. That's why computer science had a massive explosion of ideas in the 30s and 40s and then has been completely stagnant ever since. It was all so obvious!

That's not how patent damages work. Damages don't start accruing until after the infringer has notice of the patent (actual or constructive). Actual notice means actually being aware of the patent. Constructive notice requires that the patentee sell a product marked with the patent number, which means doing more than just waiting around until others start to use the invention.

Why? Stallman just talks about "generally used computing hardware." What does that have to do with programmability?

You've stated a conclusion without giving any reasons. What does "generally used" mean? What does generally mean? A majority of people in the market? What's the market? Used for a long time? How long? What does used mean? Used in a way that would be infringing or used for any purpose? Used by whom? What is "computing hardware?" Is an abacus computing hardware? What about a special-purpose chip that can't be used for general purpose computation? And once you've defined these terms in a rigorous way, please explain why FPGAs don't fit the criteria.

Right, you just have to much with the definition of "a program" and "generally used computing hardware." So you do have to muck with the definitions of software ("programs") and hardware after all, plus whatever "generally used" means.

Stallman's suggestion has nothing to do with general purpose hardware, only generally used hardware, which may or may not be general purpose.

This is not true and hasn't been for a long time, if it ever was. Lawyers have not been a majority of members of Congress since at least some time before 1945. The 92nd Congress (71-73) did have a bare majority of lawyers in the Senate, but that's about it. The percentage of lawyers is presently only around 25% for the House and around 38% for the Senate, and the percentage has been declining for decades, particularly in the House.

It's a long-standing principle dating back to McClurg v. Kingsland, 42 US 202 (1843). But even if a patent could be retroactively invalidated by legislative fiat or effectively invalidated by making it (virtually) unenforceable, the Fifth Amendment's Takings Clause would likely entitle the patent owner to just compensation.

Most of Apple and Google's patent-related spending was not on litigation but rather patent purchases, such as Google buying Motorola primarily for its patent portfolio. But the value of those patents is part of what enabled Motorola to invest in the R&D that produced those inventions in the first place. Effectively, Apple and Google financed R&D done at other companies. I don't think it's meaningful to draw such a bright line between "spending on patents" and "spending on R&D."

Actually, Uniloc has sued Microsoft, Sony, Adobe, Electronic Arts, and a host of other companies large and small. Some of those suits (such as those against Mojang and EA) were based on the same patent as the suit against Laminar Research. It seems to me that the defendants should try to work out a shared defense, since it's in all of their interests to see the patent invalidated.

I'll also note that it's interesting that Google has apparently not tried to intervene in the suit. Compare that to the Lodsys suit in which Apple intervened on behalf of iOS developers.

What this boils down to is tightening up the enablement and written description requirements of 112 of the Patent Act, specifically with regard to the way functional claims are judged. This is not a particularly new idea, and quite a few people (including those that could be called 'pro-patent') have been saying for years that this is a reasonable way to address problems with lots of different kinds of patents, including software patents, that doesn't involve technology-specific changes to the law. I certainly have mentioned it on Slashdot many times (e.g. this comment from 2010).

One issue is that the use of functional claiming has been in pretty steep decline for a few decades now. So I'm not sure just how many software patents this approach will catch, but it could be that software patents are one of the last holdouts for functional claiming. Alternatively, the courts could begin to interpret software patents as using functional claiming even when they don't use the traditional "means-for" construction. This is already done in some cases (i.e. "means for" is not a necessary magic phrase), but it could become more common.

The bottom line is that this is a call to restrict patenting to only that which the inventor actually discovered and actually described in such "full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains to make and use the same." In other words, to enforce the statute as written.

Note that patent cases are not unique in this regard. In 2011, only 1.1% of civil cases in federal district court reached trial. Some of the other 98.9% were disposed of through summary judgment or involuntary dismissal, but the great majority settled. The statistics are not skewed by a large number of patent cases, either. In 2011 there were only 3,337 patent suits filed, compared to 301,474 total civil cases. In other words, patent cases made up 1.1% of federal civil cases. And of that 3,337, 868 (26%!) of them didn't involve any court action past filing the suit.

Now, it is true that patent litigation is one of the more expensive kinds of litigation, and I favor a strong fee-shifting policy in order to reduce the leverage that plaintiffs have to extract nuisance settlements (i.e. settling for just under the cost of litigation). But it's not as though patent defendants are unusually likely to settle rather than go to trial. In fact, the patent trial rate is one of the highest in federal litigation, at 3.2%.

It's not actually true, though. The Eastern District of Texas is not the fastest district for patent cases. Virginia Eastern and Wisconsin Western are both significantly faster (29 months to jury trial versus 12 and 13 months, respectively). Nor are its rulings "usually" (i.e. more often than not) in favor of patent owners. These days it's about average, relative to other popular patent litigation districts.

And given the change in the law of venue I'd be surprised if the case stayed in Texas Eastern. Neither Apple nor the university have a significant presence there (Apple's Austin campus is in Texas Western), and it's become significantly easier to get out of an inconvenient forum in patent cases in the past couple of years.

"Invention" means "invention or discovery." 35 USC 100(a). Further, the Constitution's Patent and Copyright Clause refers to "discoveries," not "inventions."

Anyway, gene patents do not cover "a gene." They cover an isolated, purified DNA sequence, which does not occur in nature. It's no different from patenting an isolated, purified drug naturally found in a non-isolated, impure state in a plant.