Software Patent Reform Happening Now

Jim Hall writes "Many of us in IT recognize that software patents are a bad idea — you can patent just about anything if you put "on a computer" at the end of it. But now we can finally do something about it. Congress is considering the America Invents Act — your Representatives are very interested in hearing from you. Also, the USPTO is inviting public comments to change the system (you need to file by June 29, 2011.) I've written a blog post about software patents with more, starting with a primer of copyright and patents."

Comments

Re:USPTO'S RFC mischaracterized

[Jim Hall]

The RFC by the USPTO is limited in scope to restructuring the re-exam process for increased efficiency, quality, and throughput. Comments on this process will need to be framed by the current statute and case law built on the statute, because the USPTO cannot change the statute by itself. Instead, this is talking about changing internal procedure as well as possibly changing the regulations (37 CFR).

Correct, and as pointed out in TFA:

The USPTO seems open to considering this issue, and it is inviting public comments on a proposed rule to streamline patent reexamination proceedings (although you would need to file by June 29, 2011). See Docket No. PTO-P-2011-0018. As you probably know, the patent reexamination process allows a third party or an inventor to have a patent reexamined by a patent examiner to verify that the subject matter it claims is patentable. During patent reexaminations, trial proceedings may be put on hold if a judge agrees to wait for the outcome of the reexamination.

Streamlining patent reexamination proceedings could help in software patent litigation by offering a quicker and more cost effective option for invalidating software patents awarded for obvious methods. Reexaminations have been increasing steadily in recent years, and claims in almost 75% of reexaminations have been either amended or canceled - whereas in courtrooms the majority of claims are decided in favor of the plaintiff patent holders.

(emphasis mine) (TFA is mine too, actually)

Maybe I should have made it clearer that I'm advocating two separate actions here:

1. Contact your Representative and/or Senator about the America Invents Act, and talk to them about adding software patent reform.
2. Respond to the USPTO's RFC to recommend streamlining the reexamination process. This isn't the ideal solution, but if the AIA can't get amended to include real software patent reform, then a procedural change with the USPTO can at least mitigate the damage.

Don't get overexited

[ciaran_o_riordan]

This is a fourth rebranding of the proposed Patent Reform Act. Deckchairs get rearranged but there is little substance to all this and none of the driving forces have computer users in mind.

Some procedures get changed to make X more efficient and to improve quality sometimes for Y.

None of this solves the software patents problem in the USA. The software patents problem *isn't* caused by some bad apple applications slipping through the procedures. The problem is that software has to conform to standards (interfaces and data formats), and these are being covered by thickets of patents.

If there's 900 patents on something (i.e. mpeg), then weeding out the worst 10% changes nothing.

We need abolition, and we need Congress's support in this. The current Supreme Court has shown itself to be reluctant regarding substantial changes to law, and even if we won there, if we have no support in Congress then our victory would be wiped out by a legislative change.

Yes, do work on this proposal. Work to get software clearly excluded - you have to keep trying if you want to have a chance. But don't get overexcited. This is unlikely to be a big turning point - that is, of course, unless you get active and make it happen.

http://en.swpat.org/wiki/The_Patent_Reform_Act_(USA)
http://en.swpat.org/wiki/Harm_to_standards_and_compatibility
http://en.swpat.org/wiki/MPEG_LA