Posts Tagged: "robert plotkin"

I would love to see patent eligibility reform in Congress that would overrule Mayo, Myriad and Alice. I would also love to see meaningful copyright reforms and/or real Internet industry cooperation that recognizes the important rights of content creators, both large and small. I would also like to see federal trade secret legislation, which is critically important given the erosion of patent rights over the last several years. Until Congress realizes just how damaging the Supreme Court has been over the last decade more innovators will need to rely on trade secret protection, and having one regime rather than 51 regimes (i.e., 50 states plus the District of Columbia) makes no sense given the national and international scope of business in today’s global economy.

It is one again time to take a moment to look back on the year that was, reflecting on the biggest, most impactful moments of the year. For us that means looking backward at the most impactful events in the world of intellectual property. Unlike in years past where we would get a variety of different perspectives from industry insiders, there…

The environment for patent applicants and examiners that has resulted from such inconsistent treatment of Alice by the USPTO is one in which neither examiners nor applicants have clear guidance about how the USPTO is interpreting and intends to apply the Alice decision. This makes it difficult for examiners to know whether and how to issue Alice-based rejections, and for applicants to know how to respond to such rejections. In this environment, software patents are not dead; instead, they are, like Schrödinger’s cat, in an indeterminate state, simultaneously dead and alive until examined by an observer. In this case, the uncertainty over the impact of Alice on patent prosecution will only be dispelled when the USPTO analyzes the Alice opinion thoroughly and announces the Office’s interpretation of that opinion with a clear and unified voice. At that point, inventors, business owners, patent prosecutors, and patent examiners will be able to return to playing their respective roles within a rational patent system in which all parties involved seek to promote innovation according to fair, clear, and consistently-applied rules.

I am pleased to announce that IPWatchdog.com was selected by the readers of the ABA Journal as their favorite IP Law blog for 2010 ABA. I am also pleased to announce that for 2010 we had over 2,000,000 visits, delivered nearly 11.8 million pages, our homepage was viewed 3.06 million times and we averaged over 67,000 unique monthly visitors! Thanks to all our readers for coming back day after day, and thanks to all of our Guest Contributors!

I am pleased to announce that the Editors of the ABA Journal yesterday announced they have selected IPWatchdog.com as one of the top 100 best law blogs by lawyers, for lawyers. Now readers are being asked to vote on their favorites in each of the 4th Annual Blawg 100’s 12 categories. IPWatchdog.com is in the “IP Law” category. To vote, please visit The 2010 ABA Journal Blawg 100.

Even a very conservative reading of the opinions indicates that the Justices intended to leave the status of software as patent-eligible subject matter unchanged, and for further refinements to be worked out by the lower courts and USPTO. A more liberal reading indicates an intent to enable the scope of patent-eligible subject matter to expand in light of technological developments. In either case, the decision in Bilski fails to provide patent examiners and defendants in patent cases with any substantial new ammunition for rendering software patent claims unpatentable or invalid for lack of patentable subject matter, and weakens the ammunition previously in their arsenals. Therefore, despite any ambiguities which may exist in the language of the decision, the practical effect of Bilski will almost certainly be to bolster the patent-eligibility of software both in patent prosecution and in litigation in the U.S.

If you are pro-software patent you need to read this book because it will likely give you some wonderful insights that you can use to help you convince non-believers, and maybe even persuade a patent examiner or two. If you are anti-software patent I would also recommend you read this book as well. Plotkin’s positions are somewhat radical in that not only does he think software should be patented, but he wishes should be patentable as well, and that is exactly what will happen as computer automated inventing becomes increasingly more realistic.

Critics of software patents often argue that software should not be patentable because software is too “abstract” to be patented. The patent system was created to protect nuts-and-bolts machines like the steam engine and the cotton gin, not “intangible” creations like software, so the argument goes. In this article I will argue that not only should software be patentable, but…