On the same day – October 22, 2009 – that an Apple patent application relating to embedded advertisements in an operating system published, the Redmond Giant, Microsoft Corporation, had US Patent Application 20090265604 publish, which seeks to protect a method for displaying a graphical representation of the vitality of a social network. This patent application was filed on April 21, 2008, and is one of many related to social networking that Microsoft has pending presently.  A search of Patent Office recordings using FreePatentsOnline.com shows there are 19 issued US patents to Microsoft containing the term “social network” or “social networking” and 279 pending US patent applications filed by Microsoft containing one or the other of those terms.  This has become an all to familiar business plan for Microsoft, namely scrambling to catch up with whatever the current hot trend is.  Of particular note, Microsoft has in recent years been late to the party with respect to portable MP3 players, only introducing the Zune once the iPod had established industry dominance.  Microsoft has also been late to the search engine business, feverishly attempting to catch up to Google; they have come to the video gaming market only to be behind Sony PlayStation; and they have famously struggled with operating system failures, requiring a completely new OS to be unveiled just days ago in order to address the embarrassing failure of Vista.

Over the last week a heated debate has been raging here on IPWatchdog.com regarding whether patents should exist at all. See Reality Check: Anti-Patent Patent Musings Simply Bizarre and Responding to Critics: My View on Patents & Innovation. I have offered a point by point debate where everyone answers the same question in 300 to 500 words, and as yet I have no takers, so you can decide yourself why that is.  Notwithstanding, this firestorm started when I questioned why any inventor or company would want a patent attorney representing them who has as his articulated position that 0 years of patent term is the most appropriate solution. If there are those out there who think a patent without any term or exclusive rights is best then they have the right to exercise their preference by simply ignoring patents altogether. Of course, when other companies do get patents and do use the rights and law to their benefit these same folks cry foul. Simply put, you cannot have your cake and eat it too! If you don’t like patents then don’t get them, but then also expect to be a target of all those in your industry who do get patents.

I seem to have started a firestorm by writing a post openly questioning how a patent attorney (i.e., Stephan Kinsella) could be of the opinion that it is preferable to have weak patent rights.  I openly questioned how and why any individual or corporation would hire a patent attorney who does not believe in the patent system and seems to think that patents are bad, perhaps even evil, and certainly the preferable model would be to have exceptionally limited rights.  I appreciate the debate that is ongoing in the comments to that article, but I remain extremely confused regarding the irrational arguments being made.  It seems facts are largely being ignored, and when they are being used they are distort reality, history and truth.  When I make direct statements about facts and history off handed non-responsive and dismissive statements are made along the lines of “if you hold that belief it is obvious you don’t understand.”  Saying that is fine, but that needs to be backed up with facts and argument, which is not happening.  We all know why that isn’t happening, namely because there are no facts or legitimate arguments that can be made to counter what I am saying, so rather than addressing them an artificially zen approach to deflecting and recasting, even ridiculing, is preferred.  Notwithstanding, below are my thoughts regarding some of what is being said.

This post is long over due, and quite frankly it is because I thought I had already posted it several months ago. As I am getting back into the swing of things and gearing up to write more about software, software patents, Parts III and IV of the History of Software Patents (see Part 1 and Part 2), I want to highly recommend The Genie in the Machine: How Computer-Automated Inventing is Revolutionizing Law and Business, written by Robert Plotkin (who not too long ago wrote Why Wishes Should be Patentable for this blog), a patent attorney located in Boston, MA, who is also an Adjunct Professor of Law at Boston University. 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.

Last week I was at the Patent Office interviewing a case along with Mark Malek, who was in town from Florida to talk firm business, look for office space and interview some patent agents regarding coming to work with us.  The interviews lined up for this trip were all “Bilski-related,” in that the CAFC decision in In re Bilski was creating patentability issues.   We learned that the sand is shifting with respect to the way the Patent Office is handling Bilski.  What we learned is that things that we were doing in previous months are no longer acceptable.  It seems that early last week a memo went out from the powers that be to the examiners handling Bilski-related applications, and in the memo it was explained that merely putting “computer implemented method” in the preamble of the claim is not something that will any longer work to overcome a patentable subject matter rejection under 35 U.S.C. 101. It seems that now you need to have “computer implemented method” in the preamble and there must also be positive recitation of “a computer” in the body of the claim.  So the claims will now read something like “a computer implemented method… wherein the above steps are performed on a computer.”  As Mark said, “talk about the Department of Redundancy Department!”

I have long since lost hope that those who are truly anti-patent and anti-software zealots will ever come to accept that software should be patentable. For reasons that are beyond me they will not even admit that software can be patented. Talking to such a lunatic fringe is hardly worth the time it takes, or the adjida it causes, and seems to approximate a real life Monty Python sketch where the people who claim to have the far superior intellect have such narrow minds that even in the face of overwhelming proof they cling to the irrational and simply incorrect view that software is in fact math and everyone knows math isn’t patentable. Yes, the lunacy is high, very high indeed. So high that the only reason worth continuing to write articles like this is to hopefully prevent the overall anti-patent and anti-invention hysteria that seems to be gaining steam. But the real goal is to try and make sure that any policy makers, decision makers and even those who wear black robes and work at that hallowed place on the corner of First Street, NE and East Capitol Street understand that the steam engine of the 21st century is software, and software must be patentable!

Robert Plotkin, author of "The Genie in the Machine"

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 that inventions that are even more “abstract” should be patentable – inventions that I call “wishes” in my recent book, The Genie in the Machine: How Computer-Automated Inventing is Revolutionizing Law and Business.

Those familiar with the ongoing debate regarding the patentability of software and business methods know, the United States Supreme Court has decided to take up In re Bilski during its next term, which will start in October 2009.  In the meantime, what exactly do you do if you want to patent software or computer related inventions?  My firm has developed a specialty in handling these types of inventions, and we had success pre-Bilski, and we are having success post-Bilski.  As it turns out it might not be as difficult to obtain a patent on software or a computer related invention as was previously feared by some, including myself, in the immediate aftermath of the Bilski decision rendered by the United States Court of Appeals for the Federal Circuit.  Nevertheless, there are many attorneys who are advising clients that software is no longer patentable at all.   Recently I obtained a client who had been told that he did not have anything that could be patented thanks to the Bilski decision.  After we (Mark Malek and myself) looked at the invention we came to the same conclusion.  There is no single invention here that can be patented, rather there are about 8 to 12 different inventions that can be patented, depending upon how the patent examiner wants to issue restrictions.  The omnibus patent application we will soon be filing covers a really exciting innovation, will be the foundation of what could be a rather large portfolio and should be extremely lucrative for the client.