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."

Comments

Re:Simple solution

[causality]

As eloquently illustrated here: http://xkcd.com/435/, everything is math. So, the question, as always is where does one draw the line. There is no reason to throw the baby out with the bathwater.

How about this: you may not patent a work that is (or could be) protected by copyright. You can't copyright a physical invention like a new machine, drug, or industrial process. You can copyright manuals and other documents that describe those things, but those documents in and of themselves are not the subject of patents.

Re:Simple solution

[causality]

You can't copyright a physical invention like a new machine, drug, or industrial process. You can copyright manuals and other documents that describe those things, but those documents in and of themselves are not the subject of patents.

But you can both copyright and patent a machine's visual design, which itself can be described in a document, but the copyright and patent would be on the visual design itself, not the document. So there is precedent for software being both copyrightable and patentable at the same time.

To really complicate things, visual designs can even be trademarked in some countries (including the U.S.)

What you describe is how the system currently is. What I offered was a proposal for how the system might be improved, so naturally it won't reflect the current reality. Still, I like the idea of choosing one. Anytime a work might have multiple forms of intellectual property protection (copyright, patent, trademark, etc), the owner may choose only one. So you may copyright your software but may not also patent it. Or you can patent your software, but then we're free to pirate it :-).