Posts Tagged: "Software"

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? It seems to me that if we are going to be perfectly honest and engage in a discussion that embraces the realities of the industry we have to recognize that this criticism from those who detest software patents is based on factual fallacies. If software is so easy to create and implement why then does software of all sorts suffer from so many problems, require so many fixes and crash without warning?

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.

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. We discuss the commitment to excellence required to stay #1 for twenty years, the process for deciding which patents to keep paying maintenance fees on, what may change once the U.S. converts to first-to-file on March 16, 2013, how Watson is being put to use and the parting of USPTO Director David Kappos.

The Patent Office says that each roundtable event will provide a forum for an informal and interactive discussion of topics relating to patents that are particularly relevant to the software community. So will this be a free-for-all whereby everyone with an opinion, even an ill-formed opinion not based in fact, will be allowed time to rip the patent system and software patents specifically? There is no way of knowing what will actually happen at these roundtable events, and while patents don’t generally generate protests I have sneaky suspicion that we may see something that we have never seen before, which is an unruly crowd of protesters. Perhaps I am worrying to much, we shall see.

If you haven’t noticed America doesn’t make anything any more, at least nothing that is tangible. Everything we buy is made in China, or Mexico or Viet Nam or somewhere else. The U.S. economy is based on intellectual property and the foundational intellectual property we have for the 21st century innovation based economy is software. We know from history that where patent rights are strongest is where companies locate, innovate and grow. Where patent rights are weakest there is no foreign direct investment, companies do not go there and economies suffer. Once upon a time the UK dominated in biotechnology, but now the U.S. is dominant thanks to a strong and liberal patent system. If we curtail software patents we will be forfeiting not a single industry, but an enormous software industry AND any number of other industries and sub-industries in various other technology fields that rely upon the development of software. Think bio-informatics, for example.

Software patents, like all patents, are a form of innovation currency. They are also ecosystem enablers, and job creators. The innovation protected by software patents is highly integrated with hardware. All of it must remain eligible for protection. The current software patent “war” is hardly the first patent war—and unlikely to be the last in our nation’s patent history. Whenever breakthrough technologies come onto the scene, market players find themselves joined in the marketplace by new entrants. The first instinct of the breakthrough innovators is to bring patents into play. This is not only understandable, it is appropriate. Those who invest in breakthrough innovation have a right to expect others to respect their resultant IP. However, in the end, as history has shown time and time again, the players ultimately end up agreeing to pro-consumer solutions via licenses, cross-licenses or joint development agreements allowing core technologies to be shared.

A web analytics company has agreed to settle Federal Trade Commission charges that it violated federal law by using its web-tracking software that collected personal data without disclosing the extent of the information that it was collecting. The company, Compete Inc., also allegedly failed to honor promises it made to protect the personal data it collected. The proposed settlement will require that Compete obtain consumers’ express consent before collecting any data from Compete software downloaded onto consumers’ computers, that the company delete or anonymize the use of the consumer data it already has collected, and that it provide directions to consumers for uninstalling its software.

Recently, patent scholar Mark Lemley has renewed attention to software claims under 35 U.S.C. 112, sixth paragraph. Lemley encourages strict application of the algorithm requirement to police software patents and resolve these concerns. Unlike Lemley, I am convinced that the algorithm requirement makes no sense. The problem is not that the concern about broad software claims is unjustified. The problem is that, even if the concern is justified, the algorithm requirement does not solve it. At least, the requirement does not solve the problem in an appropriate way.

These first-level-thinkers just assume that information would be disseminated at the same rate without a patent system, which is so ridiculous it is hard to take anyone seriously who actually professes to believe such nonsense. Can anyone really believe that? This is why it seems overwhelmingly clear to me that there is an anti-patent agenda in many newsrooms across the country. No intelligent person who has reviewed history and has any knowledge about how business works would think that businesses would randomly disclose proprietary information in the volume that occurs today absent a patent system that incentivizes such disclosure.

In a recently published Forbes.com article titled”The Federal Circuit, Not the Supreme Court, Legalized Software Patents,” Lee doubled down with his absurd and provably incorrect assertions regarding the patentability of software patents. But he also more or less sheepishly admitted that his reading of the most relevant case is not one that is widely accepted as correct by anyone other than himself. He wrote: “To be clear, plenty of people disagree with me about how Diehr should be interpreted.” Thus, Lee admits that his primary assertion is one he created from whole cloth and contrary to the widely held views to the contrary. Of course, the fact that his radical views are in the minority was conveniently omitted from his ?Ars Technica? article. If Lee has any integrity he will issue a public apology to the Federal Circuit and issue a retraction. If Lee doesn’t come to his senses and do the right thing in the face of overwhelming evidence that he is wrong then Forbes.com and Ars Technica should step in and do what needs to be done.

Indeed, few articles have struck a nerve in me quite the way that a recent Ars Technica article did. The article is titled How a rogue appeals court wrecked the patent system??. It is a cheap shot, factually inaccurate and embarrassingly incorrect “news” story that concludes the Federal Circuit is at the heart of all the problems in the patent system. A real Pinocchio tale. Ars Technica? should be ashamed at having published such an inaccurate attack piece. If they are not going to properly vet articles in advance of publication then what have they become? Little more than an online technology specific version of those tabloids with the salacious headings. The patent system is far to important to the U.S. economy and our way of life to suffer from that level of journalistic ignorance and bias.

Seven rent-to-own companies and a software design firm have agreed to settle Federal Trade Commission charges that they spied on consumers using computers that consumers rented from them, capturing screenshots of confidential and personal information, logging their computer keystrokes, and in some cases taking webcam pictures of people in their homes, all without notice to, or consent from, the consumers.

For at least the past 15 years, the legal, technical and academic communities have been debating the patentability of business methods and software. Despite much negative press ink, talk, legislative activity and court opinions, the answer with respect to patent eligibility is still a resounding and categorical “yes.” That’s the easy part. What types of business methods and software exactly are patentable? That is the difficult question to answer.

The disclosure requirements for these types of patent applications has been a moving target for years, which means that whatever the most stringent disclosure requirements are should become the target regardless of the types of claims you file. To ensure your software patent application has appropriate disclosure of the invention you should accept — even embrace — the requirements for having an appropriate means-plus-function disclosure. By meeting the strict standards set forth in the mean-plus-function algorithm cases you will file more detailed applications that have better disclosure and which will undoubtedly support more claims, thus making the resulting patent or patents more valuable.