Posts Tagged: "Bilski"

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…

I spent the better part of last week in Washington, DC conducting Examiner interviews for some of my clients that have pending software patent applications. The great news is that I believe we now have a handle on the ever changing Bilski ruling. I know it sounds like a misstatement to say that the Bilski ruling is ever-changing, but apparently,…

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…

The United States Supreme Court granted cert. in Bilski v. Doll. This means that the last chapter on business methods and software has not yet been written, which could be good news or bad news depending upon your particular take. I have wondered out loud about allowing software patents as patentable subject matter, which I think is the right thing to do myself.

Ever since this decision was rendered there has been rampant speculation as to what Bilski means and how it will be interpreted. As one who works in this area and one with my own patent application pending in class 705, I was greatly interested both professionally and personally. Thankfully, I can report that it does not seem as if Bilski is turning out to be the impediment to patentability that many feared. In fact, based on what is going on at the USPTO one could make a convincing argument that it is actually getting easier to obtain patents that related to software and computer related processes.

President Obama is interested in moving the United States federal government away from proprietary software to open source solutions. I am not sure this ought to a top priority that is so important that it is on his mind during his first 48 hours in Office, but it is apparently ahead of a lot of things.

Microsoft is trying to patent a metered pay-as-you-go computing experience, which would give Microsoft exclusive rights to giving away computers for free, or virtually for free, and then charging a user fee for every hour the computer is used. What makes this application scary is not just the fact that Microsoft filed it, but that Microsoft has such a dominant position in the market that this could realistically become the future standard.

It is impossible to argue that software code does not employ mathematical influences, because it does. Having said this, the fact that mathematical techniques are employed does not as a matter of fact mean that software is mathematical. Under the US patent laws you cannot receive a patent that covers a mathematical equation or a law of nature. You can certainly use mathematical equations and laws of nature as the building blocks to create something that is new and nonobvious that is patentable. So even if software used mathematical equations there would be no prohibition against the patenting of software under a true and correct reading of the US patent laws.

What is the harm in allowing software patents? Isn’t the problem that patent offices, particularly the United States Patent Office, are increasingly doing a poor job of finding relevant prior art and weeding out what is new and non-obvious from what is old and obvious? If prosecution were more meaningful, what is the harm in granting software patents? I see none because there is none. We should not tolerate intellectual dishonesty because it is expedient. The trouble is that patents are being granted on “inventions” that are not new or which are obvious. The problem is not that software presents an inherent evil.

While the Federal Circuit has not said that software cannot be patented, what they did say substantially changes the law that has prevailed over the last 10 years and will render many software patents useless. Moving forward, you can protect software, but only by protecting the machine that the software operates on, which is the way patent attorneys used to be forced to write software patent applications many years ago. What it also means is that to have any chance at protecting software with a patent you will have to be willing to spend signficant amounts of money, because simply put there is no economical way to draft patents cost-effectively given the new Federal Circuit guidelines.