Ex-Microsoft CTO Checks In On Patent Reform

theodp writes "Defending his controversial Intellectual Ventures in a less-than-hard-hitting CNET interview, ex-Microsoft CTO Nathan Myhrvold finds it peculiar that some people get really wound up over patents. 'People generally don't have any problem with the patent system,' quipped Myhrvold, the inventor of Microsoft's patented Television scheduling system for displaying a grid representing scheduled layout and selecting a programming parameter for display or recording, which allows you to more efficiently select shows like Elimidate for viewing."

Comments

He's attacking Straw Men

[Alsee]

He rants about people wanting to "abolish the patent system". Yeah, right. Damn straw man arguments. The controversy is over software patents.

The European Patent Convention says that software is not an invention and cannot be patented.

That the US Supreme Court has said in various rulings in software cases that:

Transformation and reduction of an article to a different state or thing is the clue to the patentability of a process claim

Whether the algorithm was in fact known or unknown at the time of the claimed invention, as one of the "basic tools of scientific and technological work," it is treated as though it were a familiar part of the prior art.

insignificant post-solution activity will not transform an unpatentable principle into a patentable process

If you invent something like a new and nonobvious physical rubber manufacturing process it is certainly a patentable physical process whether it mentions software or not. Software does not prevent a an otherwise patentable invention from being patentable.

Software is not a "process". Any possible software is to be treated as a "familiar part of prior art". You cannot turn unpatentable software into a patentable process without some signifigant post solution physical activity. All from the Supreme Court.

Lower US courts have violated those Supreme Court rulings, particularly in the State Street Bank case which esentially ushered in software patents. Software patents which were previously and properly rejected. These lower court rulings upholding software patents only remain standing because the US Supreme Court has entirely neglected patent law for far too long.

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Re:He's attacking Straw Men

[mavenguy]

One thing you have pointed out to those who are flaming the PTO for granting software patents at all is that the PTO pretty much has no choice but to examine such applications for novelty and unobviousness; they can not just make policy to not grant "Software Patents" as failing to meet 35 USC 101 (The issue of "silly", "stupid" or obvious patents is a whole other, separate issue, distinct from this utility issue and which merits a whole other discussion).

The Office has traditionally been opposed to software patents (along with business methods; take a look at this site for one discussion of this) and so rejected it, but the US Court of Appeals for the Federal Circuit (CAFC) and it's predecessor, the Court of Customs and Patent Appeals (CCPA), have been hot to trot to permit software patents. This position ended up in the Supreme Court with the Benson case back in the 1960s; the CCPA had reversed the PTO, who o appealed to the Supreme Court, who finally ruled in favor of the PTO (i. e., reversing the reversal of the CCPA).

Scrambling to recover from this smack down, the CCPA and successor CAFC have strained to interpret Benson and other cases as narrowly as possible; as I recall they reversed a PTO rejection of a natural language algorithm, stating Benson only applied to "mathematical" algorithms.

As you have said, the CAFC continues to follow its "Anything under the sun is potentially patentable subject matter" concept as far as it thinks it can stretch beyond the wording of the Benson and Diehr cases; it will take a flat reversal by the Supreme Court or an act of Congress to change this, neither of which looks likely any time soon.