Posts Tagged: "software patent"

What If you created an automobile engine that could deliver 500 miles per gallon of gasoline would you seek a patent? I suspect you would because that type of engine would almost certainly be revolutionary. So why wouldn’t you think about patenting a software system that more efficiently manages power consumption for a large office building? If you could reduce energy consumption by 25% wouldn’t that be noteworthy? Of course, and it should be patentable as well. Legally it doesn’t matter whether the advantage is created by an old world mechanical gadget or thanks to the constant monitoring and manipulation of parameters via a computer following instructions. Both are innovations and both are patentable, and rightly so.

The patent application was originally filed June 28, 2007, and as a result of delay by the Patent and Trademark Office Apple will be entitled to a patent term that is extended by 830 days. While patent term extension seems to be a growing problem due to the backlog of applications, let’s not focus on the patent term, but rather look at the core of what is being protected and how this patent was obtained. I’m not going to defend the patentability of this invention, but rather try use this as an illustration of how to read a patent and search for clue in the file history regarding how and why claims are awarded. It should also demonstrate how easy it can be to distinguish prior art references and overcome rejections if you know what you are doing or are represented by someone who does.

Listening to those who code complain about patents is nearly hysterical. They still haven’t figured out that by and large they are not innovators, but rather merely translators. Perhaps that is why they so frequently think that whatever they could have come up with themselves is hardly worthy of being patented. Maybe they are correct, but that doesn’t mean that an appropriately engineered system isn’t patentable, it just means that those who code are not nearly as likely to come up with such a system in the first place because they rarely, if ever, seem to approach a project as an engineer would. Rather, they jump right in and start coding. In the engineering world that is a recipe for disaster, and probably explains why so much software that we pay so much money for today is hardly worthy of being called a beta, much less a finished product.

President Obama reportedly asked McNealy to prepare a report on how the federal government could employ open source software, but as yet, some 26 months later there has been no mention of the report or across the board government adoption of open source software. The fact that open source software is given away to be used freely demonstrates the problem with finding a sustainable business model and may explain why the Obama Administration hasn’t yet presented the report on how the government can use open source software to decrease costs. You really have a hard time staying in business and focusing on the research, development and product advancements when the product you offer is given away to be used free, or the underlying code that makes it work can be copied and used by competitors without consequences.

The gene patents issue had been simmering in Australia for some time, with a Senate Enquiry into the subject having been underway for over a year, but with the Myriad decision in the US, and the Australian litigation, it exploded into the headlines. Within the space of a few months, gene patents became the subject of numerous news articles and opinion pieces (including one by the former leader of the Opposition, and current Shadow Minister for Communications and Broadband, Malcolm Turnbull), and a major report on the Australian national broadcaster’s flagship current affairs program Four Corners. Almost all of this coverage was generally critical of ‘gene patents’, without ever providing a satisfactory definition of the term.

What do you think of my jumping buddy over there? Let’s call him “George”. George is just one example of the enormous number of inventions being made to serve our newly emerging social networking economy. George was created using a patent pending process called Evolver. He’s an avatar that can be transported to any number of different full immersion virtual world networking sites. Many new companies are forming to commercialize these new social networking innovations. They are also filing patent applications. They have many challenges ahead of them to get those patents.

As the open source movement grows Microsoft, which is always the 800 pound gorilla in the room, may consider bringing patent infringement suits. It seems that is the worry of at least one open source group who claims that it is particularly troubling that Microsoft, along with a group of tech companies that includes Apple, is seeking to purchase the Novell patent portfolio. According to the Open Source Initiative, the Microsoft coalition seeking to purchase the Novell patent portfolio has “no incentive to support open source as a competitive alternative to proprietary software.”

There is an important role that open source could play moving forward, and that role is to set the foundation of innovation and technology, which is no small task in terms of importance and seems to perfectly fit with open sources strengths. But too many open source regimes are like the Borg of Star Trek fame, or a little like the Mafia. Once you are a member you simply cannot get out. With too many open source regimes once you join and take then anything that you produce must be free to be taken by other members of the consortium. It really is akin to a patent deal with the devil, and ignores human tendencies. Ingrained in almost everyone is a feeling they should be able to profit from their own work, and most would feel injured if they worked and others were allowed to take without some kind of in kind return.

Whether the “open source means free” community ever chooses to acknowledge it, the truth is that a patent is a business tool; an asset. If you are serious about being in business in the software space you absolutely must have patents. Yet, there are those in the “open source means free” community, which simply a naive anti-patent sector, would have those throughout the open source community incorrectly think patents are evil. They complain that patents shouldn’t be protected by patents and copyrights are enough. They claim it is too hard to figure out if you are infringing. What they are really saying is that they choose not to operate their business affairs in a business appropriate fashion and in order for them to succeed while ignoring best practices and being responsible like every other business and industry they need patents on software to cease. This chicken little approach proves only that they are not business savvy, and that they aren’t paying attention to developments in the industry.

Even a very conservative reading of the opinions indicates that the Justices intended to leave the status of software as patent-eligible subject matter unchanged, and for further refinements to be worked out by the lower courts and USPTO. A more liberal reading indicates an intent to enable the scope of patent-eligible subject matter to expand in light of technological developments. In either case, the decision in Bilski fails to provide patent examiners and defendants in patent cases with any substantial new ammunition for rendering software patent claims unpatentable or invalid for lack of patentable subject matter, and weakens the ammunition previously in their arsenals. Therefore, despite any ambiguities which may exist in the language of the decision, the practical effect of Bilski will almost certainly be to bolster the patent-eligibility of software both in patent prosecution and in litigation in the U.S.

So now what does SCOTUS’ ruling in Bilski “really” mean to us “mere mortals”? First, we’ve got two “wild cards” to deal with as noted above: (1) Stevens has retired; and (2) what does Scalia’s refusal to join Parts II B-2 and C-2 of Kennedy’s opinion for the Court signify. Some aspects of “wild card” #2 are dealt with above, but as also noted, there are still some aspects which are unclear or at least ambiguous as to how this refusal by Scalia should be viewed. This lack of clarity/ambiguity will require some sorting out by the Federal Circuit, which may come as early as the reconsideration by the Federal Circuit of Prometheus, Classen, or even the appeal in AMP v. USPTO involving the gene patenting controversy. In AMP, District Court Judge Sweet’s invalidity ruling regarding the method claims for determining a pre-disposition to breast/ovarian cancer using the BRCA1 and BRCA2 genes relies at least in part upon the “M or T” test which, as noted above, SCOTUS unanimously relegated to “second class” status in Bilski as not the only test for patent-eligibility.

As a result of the useful, concrete and tangible result test and in conjunction with the disposition of the business method exception that never existed in the first place, software could come out of the closet and out into polite patent society. Gone were the days that patent attorneys would protect software by pretending that it was the hardware that presented the magic. So rather than claim a machine that accomplished a certain task patent attorneys could acknowledge that the machine is not the piece that makes things unique, but rather the software that drives the machine is the patentable innovation, of course presuming that it is new and nonobvious.

The pen and paper myth goes like this: software should not be patentable because anything that can be done with pen and paper is not an invention and exclusive rights should not be given to any one person or entity. Presumably the thought process here is that if you patent software you would prevent someone from engaging in the method using pen and paper. Of course, that is not true, but why would a little thing like reality get in the way of making an otherwise absurd and provably incorrect statement? Such provably wrong statements are rampant in the patent world today, particularly in light of what appears to be an all out media assault on technology and innovation that would make the persecutors of Galileo proud.