Posts Tagged: "software patent"

Corporate investment into research and development at John Deere has also fallen slightly but the company did manage to maintain a $341.1 million R&D investment during the most recent fiscal quarter. Since the beginning of 2015, Deere & Company has received a total of 92 patents from the U.S. Patent and Trademark Office. According to Innography’s text cluster (see left), much of Deere’s innovation is focused on work vehicles, tractors and harvesters. We were intrigued to note, however, that a sizable chunk of Deere’s recent inventions relate to a display screen with icon, indicating a healthy amount of software development at the company.

The idea that the Supreme Court is at all capable of understanding — let alone deciding — issues of a technical nature is ridiculous. Yet their individual and collective lack of knowledge hasn’t prevented them from reaching misguided decisions in a variety of cases. Like an Emperor without any clothes the Supreme Court seems blissfully ignorant of their own ignorance. Indeed, you would have to go out of your way to find nine less qualified people to decide issues of a technological nature.

If U.S. patent eligibility rules were more clear and predictable, the useful art of software development would be more prevalent. The “notorious computer” of the European Patent Office offers a viable option for reaching this objective. This approach would make business less uncertain as to whether not their proposed investments in software could receive patent protection. And reducing this risk would promote the future useful art of software development.

Changing the rules of the game is fundamentally unfair, which would be obvious to everyone if we were talking about football, soccer or playing a board game. Somehow common sense is abandoned when dealing with patents. Changing patent laws in midstream seems particularly un-American, both because it disturbs vested property rights and because it is quintessentially anti-inventor. If we want to maximize a property rights regime it must be certain, stable and predictable. Patents are no exception.

Interestingly, we noted a great number of innovations filed by IBM that extend into the field of financial services. The company has already been working to develop Bitcoin-style systems, especially the “blockchain” digital currency transaction list supporting Bitcoin, that are capable of serving as digital cash and payment mechanisms for major currencies.

”Whether in a software product or to embody the invention in a hardware product, is often nothing more than a design choice. Whether an innovation is embodied in software or hardware feels like it should be irrelevant to whether or not it’s patentable. The law should be agnostic as to whether it’s embodied in software or hardware. We should let the debate be whether or not this invented concept is worthy of patent protection, whether it be on subject matter grounds or whether it be on 102 or 103 grounds. I don’t see that being discussed very often, but I think it should.”

”A few years ago we ramped up our foreign filings and recognized that we’re writing this one document, this one patent application for so many different audiences. We started settling in on the European technical standard as a guide for how to draft, how to cover the innovation from that vantage point, in order to try to write this document that would satisfy the USPTO as well as the EPO, Chinese Patent Office, the Japanese Patent Office, and so on. So for me, what this environment means as a practitioner has more to do with how the patent is drafted and how we capture the innovation, and not really a huge difference about what the underlying innovation is or how it’s implemented.”

I will be criss-crossing the country again in March 2015, with stops in Washington, DC, Chicago, Michigan, and San Fransisco. What follows is my schedule for the month. If you are in the area come out to say hello.

I do feel that the whole notion of trying to find an “inventive concept” is really challenged. While the Supreme Court went out of its way to say we are really not putting Sections 102 or 103 in here, I think what’s happening is the Courts are basically trying to do that. And they’re looking deeply into prior art in some cases to knock out patents under Section 101 and whittle away the invention, and trying to find the abstract idea by doing a prior art analysis, and I think that’s troubling.

On January 20, 2015, I interviewed Fatih Ozluturk, a prolific inventor who has close to 200 patents to his credit and a similar number of patent applications still pending. His inventions have been licensed by every major cellular OEM, and have created over $1 billion in licensing revenue. Today Ozluturk continues as an inventor himself, but he is also now an…

Whether Alice v. CLS is a ”good” decision depends on your perspective. Certainly, Alice could have said Diamond v. Diehr was overruled, it could have said that software was patent ineligible, it could have said that business methods were patent ineligible. So it could have been worse, that is absolutely true, but I don’t know that makes it a good decision.

”Even a startup with strained resources can afford to file provisional applications. As a result of the American Invents Act and the fact that the United States is now a first inventor to file country, it is advisable for any company to file provisional applications as soon as they have a meaningful invention and have the ability to put it down in an application and file it. So, that would be the most important advice I can give.”

It would be extremely unsettling if the Supreme Court has weakened Judge Lourie’s resolve to independently and properly interpret the Patent Act. If there is another explanation for his flip-flop on matters of patent eligibility I would love to hear it, but so far an explanation for diametrically different opinions has not been forthcoming. I don’t expect Judge Lourie to make a speech or hold a press conference like a politician, but if he is going to make diametrically opposite decisions in the same case, on the same facts, relating to the same claims, he owes litigants and the industry an explanation. Without an explanation it makes the entire process seem nothing more than arbitrary and capricious.

Based on the Supreme Court decision and the Patent Office guidelines it is clear to me that the Alice Supreme Court decision is a major victory for patenting computer-implemented (software) inventions. When the Supreme Court unanimously agreed that the critical issue is whether there is an inventive concept (and not on how an invention is implemented) the Supreme Court finally ended the debate on whether computer-implemented inventions are patentable.

If you have any software patent that is essentially a software version of a human practice — something that was done in human practice — and you decide to write up a patent, even if you automated it in such a way and did things that the human brain could never do it will be problematic. If you can look at the patent and then make an argument that humans were doing this outside the software realm before you implemented it in software, under Alice, I think you’ve got a big problem.