On Friday, April 12, 2013, i will be at American University Washington College of Law for a program titled Patent Subject Matter Eligibility Today: Software, Genomics, and Business Methods. I will be participating on a panel that begins at 10:15am, which is titled CLS Bank en band: Are Software Methods Patentable? The event is free to attend. To register to attend you can visit WCL Event Registration.
Topic for Discussion
The following is what our panel will discuss regarding application of Section 101 to software:
(1) For many years, a large segment of the software industry viewed patent protection as inappropriate for software, relying instead on a mixture of copyright and trade secret law. At a high level, should software be patentable?
(2) Two common criticisms of software patents, as compared to patents in the pharmaceutical and biotech sectors, are (a) the relatively low cost of invention; and (b) the relative ease of implementation. Are these the right factors for us to be considering for purposes of inventiveness?
One of the things that makes protecting computer related inventions tricky is that first you have to define the invention, and defining the invention is not something that is altogether easy when the invention is a computer process or relates to software. Sure, it is easy enough to define a list of desired functionality, and if you have some computer programming skills it is easy enough (after investing the requisite time) to write the code that will enable the functionality, but that which can be protected via patent lies somewhere between the desired functionality and the code, making the defining of the invention rather elusive for some, particularly those who are new to the patent arena.
Further complicating the matter is the reality that over the last several years the law of patent eligibility in the United States has been in flux. It did become largely settled with respect to software and business methods thanks to Bilski v. Kappos, which was decided by the United States Supreme Court. This case left the industry with the so-called “machine or transformation” test, which requires a process to be tied to a particular machine or apparatus, or transform an article into a different state or thing, in order to be patentable subject matter. The Supreme Court determined in Bilski that the machine-or-transformation test is not the only test for patent eligibility, but rather that it was an important clue. But what exactly does that mean?
On January 21, 2013, I interviewed Manny Schecter, Chief Patent Counsel for IBM. In Part I of the interview we discussed IBM’s commitment to remaining the top patenting company in the United States, their commitment to research and development and the process by which decisions are made on what patents to keep and which to let fall into the public domain.
In Part II of the interview, which is the final segment, we discuss how IBM keeps a watchful eye on the industry to learn from the mistakes of others, what the conversion to first to file will mean for IBM patents, how Watson is being deployed and David Kappos leaving the USPTO.
QUINN: Let me pick up on that for a minute. As you know we talk about this with some frequency, and I’ve always been interested in the IBM model because it’s successful. And I always try to tell small business, why would you ever try and pick a company that has not been successful and imitate them? And one of the things I keep thinking about more and more lately — I wonder whether one of the tricks in life and in business is to create systems of infrastructure that in some way save you from yourself. Realizing what you just said that even Babe Ruth is going to strike out. So even IBM no matter how careful you guys are are going to make some mistakes. But if you have the infrastructure in place and the processes and procedures in place to guard against that and to give you a longer horizon to let things develop, as the result of process you’re going to minimize those mistakes.
Manny Schecter is Chief Patent Counsel for IBM, and someone who is always willing to take a pro-patent, pro-innovation position. For example, on Saturday, January 26, 2013, Schecter tweeted: “Mechanical logic = patent, electric circuit logic = patent, but no patent for software logic? Makes no sense – would be going backward!” Indeed, I agree with Schecter wholeheartedly. The patentability of software is one of the things I spoke with him about when I interviewed in on January 21, 2013.
The point of the interview was not to discuss software specifically, but when the conversation turned to how IBM is deploying Watson, the genius computer that dominated Jeopardy, the topic of software patents came up. What provoked my request for an interview, however, was news that for the twentieth straight year IBM has been the top patenting entity in the United States.
Whenever there is interesting IBM news of a patent variety Schecter has been gracious enough to make time to chat. The news of IBM’s patent supremacy wasn’t just any run-of-the-mill news, at least not in my opinion. The commitment to innovation and belief in the patent system has served IBM well for many decades, and twenty years as #1 at anything is astounding in a world dominated by parity and antitrust regulators that don’t want any single company to succeed too much.
Earlier today in the Federal Register the United States Patent and Trademark Office (USPTO) announced that it was seeking to form a partnership with the software community to enhance the quality of software-related patents.
Say it all together — Hakuna Matada! That will be a phrase you are going to want to keep handy throughout this article. Whenever you start to get dizzy or nauseated simply say — Hakuna Matada! I find that it sometimes helps, at least momentarily.
From the “oh my gosh, no way, are they really serious” department comes an announcement that the USPTO is forming a Software Partnership that will enable stakeholders to come together through a series of roundtable discussions to share ideas, feedback, experiences, and insights on software-related patents. Never has the word “stakeholders” been quite so ominous. I certainly hope the anti-patent “stakeholders” don’t show up with actual stakes, or perhaps pitch-forks, and proclaim themselves ready to storm the castle! Hakuna Matada!
Pulling the plug and letting out the baby with the bath water is ridiculous, on that everyone can agree. What people can’t agree on, surprisingly, is selecting a path for the future from the playbook of winning plays. Time and time again any more “do-gooders” seem to want to call plays from the playbook of plays that have never succeeded. In what universe does that make any sense whatsoever? When will they realize that plays that have not worked have failed for a reason? Success is not overdue. Get a grip!
With a firm grasp of some alternate reality, critics of the patent system, and specifically the critics of software patents, would have the United States forfeit the future in favor of something that has never worked. Curtailing patent rights has never worked to produce more innovation anywhere it has been tried. The inconvenient truth is that there is no evidence that a weaker patent system fosters innovation, but there is overwhelming evidence that a strong patent system does foster innovation, leads to growth, investment from abroad and a growing more prosperous economy. Indeed, weak patent rights virtually guarantee innovation simply won’t happen.
So what is fueling the anti-software patent hatred and ridiculous claims that software patents are somehow evil? It is a particular world-view or ideology that approaches religious zealotry. It certainly isn’t anything that resembles factual truth or reality.
EDITORIAL NOTE: What follows are the prepared remarks of David Kappos, Under Secretary of of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, delivered at the Center for American Progress in Washington, DC, on November 20, 2012. This is reprinted here with permission.
Thank you, Winnie, for that kind introduction. Good morning, everyone. It’s great to be here at the Center for American Progress. I’m pleased to be able to talk about intellectual property and the role that intellectual property rights play in enabling innovative goods and services to come to market. And specifically, I’m going to focus my remarks on software patents and the so-called smartphone “patent wars,” which have become front page news in the last year or so.
It is increasingly clear that intellectual property, or IP, is a key driver of economic growth, exports, and job creation. IP rights are the global currency for creating value for products and services, for all innovators, in all markets. And the protection provided by patents is critical to the innovation ecosystem. In fact, last spring, the U.S. Commerce Department released a report that found IP-intensive industries support at least 40 million jobs and contributes more than $5 trillion to our economy, accounting for 35 percent of America’s gross domestic product. So it is in this context that we are seeing multi-billion dollar acquisitions of patent portfolios and a number of high profile patent lawsuits, involving some of the most innovative companies on the planet, who are producing some of the most popular technologies ever created.
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