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New USPTO Test Could Limit Software-Based Patents
bizwriter writes "The high tech industry has been waiting for a Supreme Court decision in the Bilski case to decide fundamental questions, like when you can patent software. But there's a new test from the Board of Patent Appeals and Interferences (PDF) that just became precedential, meaning that it offers new grounds on which the US Patent and Trademark Office can deny patents on machines that use mathematical algorithms."
Contrary to this popular belief, lots of patent applicants want a patent to start their business and many others want to have a portfolio for defensive purposes. I'll also throw this out there, most of the patent applicants are not the same party that ends up litigating the patent. Many inventors and most companies cannot finance patent litigation. Even if they can finance the litigation, they're too risk adverse to monetize it this way. There is a lot of risk in patent litigation. It's much easier to take a lowball license fee than it is to risk/pay for 1) reexamination and 2) actual litigation.
The most notorious group of patent litigators are usually companies that have acquired the patent for a nominal amount from the original inventors either through a bankruptcy, auction, or, occasionally, via a firesale when a company is in dire straights. Once they have it, they have little or no emotional attachment to the invention and there is little life left in the patent (term is about to expire) so they don't worry about making broad sweeping allegations of infringement for fear of invalidating the patent. They also don't fear invalidating the patent because they don't have any incentive to use it defensively since they have no products of their own.
Finally, I'll note that only the tiniest minority of patents ever see the light of day. Most collect dust on someone's shelf.
I'll be damned if the USTPO hasn't awarded some of the dumbest, most wide-ranging generalizations
In Australia John Keogh managed to patent the wheel. It was later struck down (probably because of prior art, dunno for sure...), but it was issued.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
because you can substitute anything for those variables, i.e.
today's date = a
friday = 10
and using Dirichlet functions you can define this algebraically.
This is a silly proposal.
Well, in the US (unlike the rest of the world), patents are filed in the name of inventor. However, since patents and patent applications are like any personal property, they can be sold. The law really doesn't limit to whom a seller (the individual inventors) may sell his or her patents, but see my point below.
This wouldn't change a thing. You can structure a license to effectively be a "sale" without calling it a sale. [As an aside, there is a line of cases that distinguish between a license and a "sale of substantially all the rights" (aka an assignment)]. If there is some limit on what part of the whole you're allowed to license then people that intend to "sell" the patent will go right up to that line.
Also, this doesn't make much sense in the real world.
First, if you're a company that employs the inventor, you're going to be pretty annoyed when that inventor walks and takes the invention with him to your competitor.
Second, it also doesn't make sense if you're selling your business, going into bankruptcy, trying to use the patent as collateral for a loan, etc.
Finally, there are probably all kinds of weird tax issues with the license-only, no sale provisions.
It turns out that there are lots of responses to your criticisms and questions. I will go over a few of the main ones.
First, patents are for 'concrete stuff.' The patent statute makes this quite clear. "The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." 35 USC 112 (emphasis added). Furthermore, "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains...to make and use the same." Id (emphasis added).
Now, a common rejoinder here is that many patents have very broadly written claims and weak specifications. This has not gone unnoticed, and there is a trend in Federal Circuit decisions to tighten down the requirement that the claims indeed be fully supported by the specification, which will tend to result in narrower claims and more detailed specifications. Furthermore, many broad claims that get through prosecution end up being invalidated on reexamination or during litigation; broad claims are easier to invalidate than narrower claims. Personally I support eliminating the strong presumption of validity for patents, which would make all patents easier to invalidate.
Second, copyright is not for 'abstract stuff.' Quite the opposite, in fact: copyright protects the concrete expression of an abstract idea. In software this has been interpreted quite narrowly; as long as the source code, object code, and UI elements have not been copied or derived from, one is generally free to duplicate what a program does. This is because copyright explicitly does not cover the functional aspects of a work, only the creative, non-functional aspects. "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 USC 102(b).
Thus, if only copyright were available for software and not patents, there would be at least two major gaps in protection. First, functional aspects of a program could not be protected. All technical innovations would be up for grabs. Second, copyright does not protect against independent implementation, so even the creative aspects would not be protected against clean-room reverse-engineering.
This is all without really getting into the fact that copyright is free and automatic whereas patents are expensive and must be applied for, that a copyright in one country is generally a copyright worldwide whereas patents are territorially limited, that patents have a limited duration whereas copyright is practically forever, or that patents can be invalidated due to obviousness whereas there is no clear equivalent to that doctrine in copyright. All of these and more are reasons why copyright in software cannot simply substitute for patents.
Now one can argue that the patent system has its faults as implemented (and I would agree) or that it doesn't encourage innovation (and I would generally disagree) or even that all software should be open source by statute (and I would certainly disagree), but on at least a theoretical level the different kinds of intellectual property serve different, complementary purposes.
IAaIPL with a pretty big lawfirm, so I'll take a crack at this:
There is no "instead." Currently you can obtain both: one for "original work of authorship fixed in a tangible medium of expression" (i.e., copyright), and one for the "new, useful, non-obvious" "process, machine, manufacture, or composition of matter, or any new and useful improvement thereof" (i.e., patent).
Well, I'm sure that one make the concrete industry happy, but I don't think it is a logical policy distinction.
Snark aside, there are a few easily articulated reasons. First, it really depends on what you mean by "concrete stuff" and "things." There are lots of "things" that aren't concrete (we usually say "tangible"). But interpreting what you mean by "concrete" from your subsequent bullet, I'll tell you that your conception of the dichotomy between patents and copyrights is almost 100% inverted. Patents are essentially stakes in the ground around an idea whereas copyright is the protection of the actual expression of an idea. As it relates to software, it's the difference between the idea for the code and the code itself.
Second, the statutory classes include non-concrete things such as processes. This is the "because the law says so" argument.
Third, it's not just tangible things because it's very difficult to draw the line between "concrete stuff" and the not-so-concrete stuff. If you look at the claims at issue in this case, they're not just the algorithm. It's a computer programmed to do the algorithm.
Think about it like this: a lever and a fulcrum are essentially the mechanical expression of using a physics equation for leverage. If you were the first person to think of how to apply the leverage equation to lift things, that would be quite an advance--I have assumed away the obviousness issues since the inventor is the first person to ever think of it and focused only on whether it would be patentable at all.
It's not the "abstract stuff" that is covered at all. It is the actual expression of the abstract stuff that is covered. You do not get a copyright for your incorrect ideas about intellectual property, only the expression of it.
If you've ever been involved in a copyright dispute, you'd recognize how little protection that actually offers you. Furthermore, if you've ever been involved in a major software development project, the amount of time actually writing a specific piece of code is diminishingly small compared to the other time, effort and energy expended to get to that point: design, plan, etc.
Viewed in this lens, protecting only the expression is not a lot of protection since it's easy to copy the idea without copying the code.
Your individual experience says little about whether patenting and copyrighting advances or encourages innovation. Patents and copyrights offer some additional incentives. Those incentives are not enough for you, clearly. You are not along, there is a whole world of trade secrets for innovations that would be under-rewarded via patents and copyrights.
But your argument is really a push for MORE benefits; not less. You would be unmotivated to contribute to innovation under the current system. The absence of that system would not provide MORE innovation from you.