Posts Tagged: "software patents"

With apologies to the great humorist, the report of the death of software patents is an exaggeration. The Court set forth a two-step test grounded in Bilski v. Kappos and Mayo v. Prometheus. While the Court may not have defined a clear boundary for so called “abstract ideas” specifically, it did squarely place this case within the “outer shell” of the law set forth in Bilski and Mayo. In doing so it articulated an approach that focuses not on finding the boundary line, but rather on the core properties of an ineligible patent claim.

The United States Patent and Trademark Office (USPTO) will host its next Software Partnership Meeting on Tuesday, July 22, 2014, at the USPTO headquarters in Alexandria, Virginia, from 1:00 pm – 4:30 pm.

There are those who argue against the patentability of software as a whole – never mind finding a test as to what software (or computer-implemented) claims should be patentable. We disagree. Why? Well, the notion that software should not be patentable necessarily indicates that the software industry itself is not capable of innovation worthy of patent protection! Yet, in a country where patent rights are guaranteed by the Constitution, should not all fields of innovation be treated equally under the law? Should we not avoid becoming a country where one field of endeavor (e.g., pharmaceuticals or electronics) is deemed more “patent worthy” than other fields (i.e., computer science and information technology)!? To answer these questions in the negative seems silly to us.

Certain things are obvious. It was obvious in the oral arguments that it was a challenge for both the Supreme Court judges and the lawyers to distinguish between abstract ideas, ideas, computer programs, technological innovations, patentable subject matter, and inventions. This confusion also showed up in the seven different written opinions of the judges in the Appeals Court review of this same case… Mr. Perry was wrong about word processing and e-mail. Providing a “technical solution to a then unmet problem” and providing a “technological advance” often does not constitute making an invention. That’s because with computers you can often make a technical advance that is obvious.

Many, many, many patents have issued to cover the physical elements and intuitive steps to make this familiar sequence possible and increasingly reliable and refined. Mechanical elements, i.e., rotating shafts with a gears on each end, have been replaced by a toothed wheel and magnetic sensor and a wire, but the information about where the engine is in its cycle of rotation is the same… To illustrate to the lay person that just because software is the ”tool” being used to “do” things, we are still ”doing” the same things in the same ways for the same reasons. To wit: That, in the modern era, the execution of the ”useful arts” is done using software does not change what is done or the fact that it is a ”useful art”; and, the patentability thereof should be unaffected simply because we ”do” it differently now as compared with how we ”did” it then.

What if (Almost) Everything You Thought You Knew About America’s “Broken” Patent System Was Wrong? What follows is the fourth and final installment in the “Myths of the Patent Wars” series. The necessary legislative effort to curb bad actors in the patent industry has been “hijacked” by a small handful of very powerful global technology companies intent on forcing broader…

It seems undeniable that Alice missed many opportunities to score easy points. Indirect arguments were made by Alice that didn’t seem very persuasive. Indeed, if one is to predict the outcome of the case based on oral arguments alone it did not go well for Alice today. Only three things give Alice supporters hope after this oral argument as far as I can tell. First, the government seems to be asking the Supreme Court to overrule precedent in Bilski that is not even four years old, which simply isn’t going to happen. Second, the egregious overreach and outright misleading nature of the CLS Bank argument should raise a legitimate question or two in the mind of the Justices. Third, the reality simply is that at least the systems claims recite numerous specific, tangible elements such that it should be impossible to in any intellectually honest way find those claims to cover an abstract idea.

BEAR: ”When the Constitution was written, there was no concept of software. Nor was there computer hardware. We had physical, you know, very physical mechanical inventions. And computers have come around and software has come around, and the interpretation of these statutes has had to shift with the technology. And as unimaginable as it may seem to us here in 2014, there’s something in our future as unimaginable as software was when the Constitution was written. Inventions in that future domain need to not be shut down because of the way we rule today on §101. So the request for not having a real hard line – a bright line – is important. It protects the possibility of fostering future inventions in domains we can’t even imagine.”

Supporters of CLS Bank have largely responded that software patents hurt innovation. But that can’t be! One of the areas critics always say has been allegedly hamstrung by patents, the smartphones industry, is barely over 6 years old. Have patents stopped innovation of smartphones? Hardly. In fact, with every new version companies tout just how much more the phones do and how they are so far superior to the previous model. Thus, it is easy to see that those claiming that software patents block innovation simply ignore market reality and how the functionality of current devices (which is thanks to software) match up with previous generations of devices over the last 6 years. Corporate critics must also ignore their own marketing of new smartphones, which directly contradicts the ridiculous claim that software patents are preventing innovation. Still they make these and other specious arguments as if they are true.

That only three briefs are filed in support of Alice Corporation is a little misleading in this case, however, since many of the briefs that were filed in support of neither party come out and directly support the patent eligibility of software. For example, the IBM amicus brief, which was filed in support of neither party, concludes that a Section 101 patent eligibility analysis is the wrong analysis to use in this and similar cases since the abstract idea doctrine is unworkable and yet to be defined by the Supreme Court. IBM suggests the Court use Section 103, the obvious analysis and the well developed case law under KSR, to determine patentability in this and similar cases. Thus, while IBM did not take a position on the specific merits of the case, as with many of the briefs filed, if the Supreme Court were to follow the IBM counsel it would lead to an Alice victory. Even Microsoft/Adobe/HP, which does not support Alice on these claims urged the Supreme Court to find software patent eligible. Thus, characterizing the position of the amici based on whether the support Alice, support CLS Bank or support neither party has proved quite difficult in this matter.

By Martin Goetz, inventor on the first software patent granted by the USPTO: “Much of this negativism is based on the poor job the US patent examiners have done in weeding out those many patent applications where the so-called invention is just one of the almost infinite, but obvious, ways one can automate a manual or semi-automatic process or procedure. But there are also true inventions that use a computer as part, or all, of the implementation of the invention. There is no reason to throw out the baby with the bathwater. So it is of utmost importance that we examine the many falsehoods related to software patents.”

Chief Judge Michel’s brief makes two major recommendations regarding the essential question of software’s patentability. First, Michel states that the criteria for patent eligibility under Section 101 should only exclude those inventions that are clearly patent-ineligible… In his conclusion, Michel argues that, although all patent applications must first be reviewed under Section 101 for eligibility, the evaluations that take place under Sections 102, 103 and 112 should be applied in the overwhelming majority of patent validity cases. In the case of an implied exclusion under Section 101, as in this case, ineligibility should only be applied in the clearest cases where the patent would preempt the most fundamental building blocks of technology.

Broadly construing and applying the abstract ideas exception would jeopardize countless patents and patent-fostered innovations that are providing real, tangible benefits to all levels of society, and that are helping to fuel the domestic and global economies. Indeed, it is impossible to overstate the economic importance of software and other computer- implemented inventions. Virtually all industries now use computer-implemented inventions in some way… Notably, and notwithstanding the alarmist complaints of some interested parties that are most dependent upon computer-implemented technologies, high-tech industries are neither stagnating nor suffering from a dearth of innovation. To the contrary, these industries are highly competitive, vibrant fonts of innovation and economic vitality. The availability of patent protection for computer-implemented inventions has been a spur, not a bane, to their growth and development.

… in order to handle the messy reality that the system claims, illustrated above, are clearly not abstract under any intellectually honest definition, they merely say that if the method and computer readable medium claims are not patent eligible neither are the system claims because… well just because. It seems inventions rise and fall based on what the applicant really wants to protect, not the claims… Assuming you have snapped back from the Twilight Zone yourself you may be hearing in your head the clanking of coconuts as several Monty Python players exit stage left in search for the holy grail! Of course, regardless of whether the coconuts migrate, those coconuts are are obviously abstract and not tangible, clearly not patent eligible and a fiction of your imagination. Therefore, you really can’t be hearing the coconut clanking noise because imaginary non-migratory coconuts that don’t exist can’t be banged together to make a sound.