Posts Tagged: "software patents"

Patent ‘gold rush’ to blame for patent sharks, patent trolls

Patent trolls – as well as calls for changes to the law to prevent them – date back to at least the 1800’s. A look at their history suggests that they have more to do with fluidity in the definition of patentable subject matter than any unique feature of a particular class of inventions… A change in a fundamental definition of what comprised patentable subject matter, and that change brought a major building block of commerce into the ambit of the patent system. In the age of the sharks, the farm remained the core of the U.S. economy, driving a gold rush of new patents covering every element of the farming process. Such a rush also encourages the formation of patent thickets, as speculators scramble for any potentially protectable chunk of the market. The same phenomenon drove the development of modern tech and software patents. In the aftermath of State Street, once again the market found that the machinery that undergirded the economy was suddenly open to being patented, leading to a similar gold rush.

Judge Michel tells Congress it isn’t helpful to talk about quality, patents are either valid or invalid

“I think at the end of the day, patents are either valid or invalid as a legal instrument and therefore it’s not very helpful to talk about quality or ‘good’ or ‘bad,” Judge Michel said. “They’re either valid or not valid and with respect to someone practicing the technology, the patent is either infringed as properly construed or it is not infringed.”

Alice Who? Over Half the U.S. Utility Patents Issued Annually are Software Related!

I have always argued that software patent eligibility is a must in a country where patent rights are guaranteed by the Constitution. That is, all fields of innovation should be treated equally under the law such that one field of endeavor (e.g., pharmaceuticals or electronics) is not deemed more “patent worthy” than other fields (i.e., computer science and information technology). This is especially true when one considers how important software is to the U.S. economy… A substantial amount of U.S. commerce is software-dependent and the associated innovation in the field – when novel and non-obvious – deserves stable and predictable patent law protection!

It is time to define the term ‘Abstract Idea’

The industry is collapsing all because no one in a black robe has the guts to define the critical term that is the core of a test that is whimsically applied in arbitrary and capricious fashion. And why? The test is whimsical, arbitrary, and capricious precisely because it is unpredictable and never repeatable. Of course, the reason it is unpredictable and never repeatable is because different judges and panel configurations apply it based on their own subjective views because no one has ever taken the time to define the key term; no one cares to even attempt to interject objectivity to what is a hopelessly subjective, unpredictable and arbitrary test.

Through the Looking Glass: Recent Federal Circuit Decisions Do Not Change the Need for Action on Alice

The few CAFC cases (since Alice) that have found inventions to be subject matter eligible is certainly a welcome development. These cases indicate that the CAFC does not believe all computer-related inventions are ineligible, and they provide helpful clues about what will weigh in favor of eligibility. Unfortunately, these cases do not demarcate the boundary between eligibility and ineligibility in any predictable, meaningful way. We still do not have an acceptable working definition of “abstract” and we likely never will. In these cases, the CAFC applied a variety of different, often inconsistent, rationale for finding the inventions at issue to be subject matter eligible.