Posts Tagged: "Software"

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.

The reason the abstract idea doctrine is unworkable is because the Supreme Court has never defined what is an abstract idea. The Supreme Court has treated the term “abstract idea” much as they have the term “obscenity”; they know it when they see it. Such a level of subjectivity leads to chaos, which is exactly how the Judges on the Federal Circuit can manage to find themselves evenly split on the issue of whether software is patent eligible. The Supreme Court abhors bright line rules unless they are the ones who announce them. Such an irrational fear of certainty and predictability is curious given how those concepts are so fundamentally important to a functioning judicial system. Still, if they don’t like bright line rules that everyone can follow as announced by the Federal Circuit they at least owe us a workable test that they are willing to endorse.

Article written by Martin Goetz… Over the years the term “software” has been terribly abused when a patent application has a computer in its specifications. We hear the terms abstract, ideas, laws of nature, mathematical algorithms when those against “software patents” argue their case. But true inventions — whether specified in hardware, software, solar power, gears, or what have you — must stand on their own two feet and meet the test of an invention as specified in the US Patent law. Additionally, the USPTO states that an invention is defined in its claims and not by its specification. Unfortunately, many USPTO examiners have been issuing patents for very questionable inventions that only computerize (or automate) a manual process or computerize a new, but obvious, use of a computer.

As the end of 2013 approaches and I look back on what has transpired I am saddened to see that through the year patent rights have continued to erode. Make no mistake about it, at every turn patent rights are eroding. You might think that there has been some collective, open-air discussion about whether this is a good idea. Nope! It seems government you get is the government you can afford, and those who have the ear of decision-makers on Capitol Hill are the extraordinarily well funding big tech companies that want to weaken patent rights or do away with them altogether. Indeed, there has been scant consideration paid to the effect of weakening patent rights. The erosion of patent rights is exceptionally alarming given the fact that the Founding Fathers thought it was self evident that a strong patent system was essential for America. The Founders believed the importance of patent rights to be so self evident that little debate was had on the topic. How the pendulum has swung!

A computer is, at a fundamental level, simply a clump of electrical switches each of which are in either an on or an off position. Whether and when a given switch is on or off is the result of the code that configures the switche(s) to be on/off and the subsequent result of passing small amounts of electrical charge through these switches (gates) and observing the output…. Software (and a power supply) is what makes a computer what we have, by now, come to know as a “computer”, i.e., our smart phone, laptop, or tablet. A computer, as a bundle of configurable switches; it is the “clay” a programmer uses to “sculpt” possibilities of outcomes based on a predigested set of inputs. The more the clay, the more the possibilities and the more “capable” a computer can become. Hence, each new chip with more switches, provides more possibilities, i.e., more and faster clay. The computer is the sculpted clay we hold in final form as determined by the program. The programmer, then, is the “artist” that creates the form, i.e, the utility. A program cannot manifest except on a computing device and the program running on a that computer is what defines that device (i.e., Windows, Mac, etc.). Will it ever think? Not in the same way you or I think, but maybe that is not a bad thing. We self program based on morality and context that we learn through a variety of inputs and adopt or reject as we roll through life. The circumstances that led to one decision when we were 18 lead, thankfully, to a different decision now!

The clearly erroneous Wall Street Journal article in question was published on December 15, 2013, under the title Jimmy Carter’s Costly Patent Mistake. The article, written by Gordon Crovitz, seems to take the position that patents stifle innovation, although Crovitz thesis is not explicitly stated. As ridiculous as it is to suggest that patents stifle innovation, this ill-defined Crovitz thesis isn’t the major issue with the fiction published by the Wall Street Journal. Crovitz erroneously states that software was not patentable until the Federal Circuit changed the rules of patent eligibility. That is simply false. There can be no dispute or argument to the contrary. Crovitz is wrong.

my iPhone can be a bell that you physically shake and it goes “ding” like a hotel desk bell; or it can be a carpenter’s level to help hang pictures, level a cabinet; or, it can be a compass that swings this way and that just like the one from a long ago scouting exercise; or it can be a flashlight. Clearly, one can patent a bell, level, or compass in whatever form it exists, it is a device. That much is not in dispute. But, what about the “code” that creates that “device”. It is now that we have the conundrum: is software (the code that both creates and instructs the machine) patentable apart from the machine? The answer to this question, when phrased in this way, is self-evident; yes, of course it is patentable. For the same reasons machines have always been patentable, they are a part of the “useful” arts. You see, the software is the machine. The machine is software. These are one in the same “thing”. If this is all so simple, then what is the argument about?

Deriving energy from the sun has been aggressively, albeit periodically, pursued since at least the 1970s when the U.S. suffered through several gas shortages. But over time gas prices decreased, the technology could not compete with cheap alternatives, so interest waned, although it never thoroughly disappeared… The Obama Administration, which seems exceptionally cozy with Google, seems to have real disdain for software patents, which is the Google articulated position. Thus, it is hard to reconcile the Obama Administration positions that are in favor of alternative energy but which are also against the patent eligibility of software. So many alternative energy innovations today and in the future will incorporate software.

We’ve got a couple cases following CLS Bank that give us clues as to what a computer-related claim should look like post-CLS Bank. In the Ultramercial v. Hulu case, Rader and Lourie are surprisingly on the same side. The patent covers a method relating to a user seeing an advertisement before getting exposure to his desired media content. A point that I’ll circle back to in a minute is that there were 11 steps recited in the method claims in Ultramercial. As expected, Rader writes an opinion saying this stuff goes on in a computer so we find it’s patent eligible– think Diehr/CLS Bank logic. What’s interesting is Lourie writes a concurring opinion, using as precedent his oh-so-decisive plurality opinion in CLS Bank. He found that unlike in CLS Bank where intermediation was too abstract a concept and the claims added nothing inventive, in this case the limitations represent significantly more than the underlying abstract idea of using advertising.

Today, after several years of substantial turmoil, patent eligibility in a variety of economically significant technologies is extremely uncertain, including software, natural products, medical diagnostics and personalized medicine. It is with great irony that one of the few things we know with any degree of certainty is that business methods are patent eligible… If you haven’t noticed, overwhelming portions of the U.S. economy are tied to the biotechnology and software sectors. Are we about to throw away our economic leadership? There are already some lawyers talking openly with clients about whether they may be able to in some cases actually get broader, more certain protection outside the United States.

How is it possible that no one is going to jail for this? How is it possible that there were no fines levied by the FTC? According to the FTC’s complaint, Aaron’s franchisees used the software, which surreptitiously tracked consumers’ locations, captured images through the computers’ webcams – including those of adults engaged in intimate activities – and activated keyloggers that captured users’ login credentials for email accounts and financial and social media sites. Under the terms of the proposed consent agreement with the FTC, Aaron’s will be prohibited from using monitoring technology that captures keystrokes or screenshots, or activates the camera or microphone on a consumer’s computer, except to provide technical support requested by the consumer.

Not surprisingly, the decision of the latest Federal Circuit case on software patent eligibility – Accenture Global Services, GMBH v. Guidewire Software, Inc. – could be predicted from the makeup of the CAFC panel. Judge Lourie, joined by Judge Reyna, issued the majority opinion that the system claims were invalid. The Court followed the analysis for determining patent eligibility from CLS Bank, 717 F.3d 1269 (Fed. Cir. 2013) and affirmed the district court’s finding that the system claims of U.S. Patent No. 7,013,284 (“the ‘284 patent”) were ineligible. Judge Rader predictably dissented from the majority and stated that he would hold the system claims to be patent-eligible subject matter. One takeaway from this decision is that the Court remains predictably divided. In this case, all three judges on the panel ruled in a way that was consistent with their ruling in CLS Bank, 717 F.3d 1269 (Fed. Cir. 2013).

Notwithstanding Google’s Jekyll and Hyde approach to patents, Figure 14 together with the associated textual discussion is extremely interesting because it shows rather conclusively that “software” isn’t really all that “soft.” Even many so-called math experts and mathematicians refuse to acknowledge what is really happening on the basic level within a computer when “soft”—ware is being used, instead preferring to pretend that it has to do with basic math rather than manipulation of logic gates and switches. We can complain and lament their lack of understanding if it makes us feel better, but in the meantime we need to realize that their ignorance with respect to what is really occurring is having an enormously negative impact on the future of software patentability.

As in the U.S., when drafting claims in China, one must describe the invention sufficiently to enable a person skilled in the art to make and use the claimed invention. For software patents, a flow chart and explanation should be included, along with drawings and description of associated hardware. Portions of the source code may be included for reference. Software claims may be drafted as either method or apparatus claims. However, Justin Shi, patent attorney at Sony Mobile Communications in Beijing, warns that apparatus claims may be deemed invalid if they are phrased only in means-plus-function language and fail to describe the apparatus or its embodiments.

Despite the turmoil surround software patent eligibility I believe with great certainty that software will remain patent eligible in the United States. The extreme decisions of the PTAB and viewpoints of those on the Federal Circuit opposed to computer implemented methods will not prevail because they are inconsistent with the Patent Act and long-standing patent law jurisprudence. After all, the Supreme Court itself explicitly found software patent eligible in Diamond v. Diehr. In the meantime, while we wait for the dust to settle, we need to engage in a variety of claiming techniques (i.e., methods, computer readable medium, systems claims, means-plus-function claims and straight device claims). Thus, if you are interested in moving forward with a patent application it will be advisable to file the application with more claims than would have been suggested even a few months ago. Patent attorneys also must spend increased time describing the invention from various viewpoints, which means specifications should increase in size. This all means that there is no such thing as a quick, cheap and easy software patent application – at least if you want to have any hope of obtaining a patent in this climate.