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Easy Fix For Software Patents Found In US Patent Act
WebMink writes "What if there was an easy, inexpensive way to bring software patents under control, that did not involve Congress, which applied retrospectively to all patents and which was already part of the U.S. Patent Act? Stanford law professor Mark Lemley thinks he's found it. He asserts that the current runaway destruction being caused by software patents is just like previous problems with U.S. patent law, and that Congress included language in the Patent Act of 1952 that can be invoked over software patents just like it fixed the earlier problems. All it will take is a future defendant in a patent trial using his read of a crucial section of the Patent Act in their defense to establish case law. Can it really be that easy?"
It's relieving to hear somebody may have found an existing law which would end the patent debacle, but the problem remains that the law is not clear to the average person. Even this paper hoping to clarify what the law says just looks like 57 pages of MSWord to me, and I feel at the whim of the high powered attourneys and politically charged judges to interpret it.
Herman Cain may not have been a quality pick for president, but I'm beginning to think his mantra of "simplify the law so the public understands it" has something to it.
Finding a case that leads to a statute is a bit different than simply interpreting a very well known law. But I grant your point that the body of law is so vast that it is not possible for someone to know everything, which makes it entirely possible to have an Aha moment. I just don't see this particular interpretation to be novel. It reminds me more of Eben Moglen's approach to fixing copyright by arguing that the current copyright system provides for essentially infinite copyright, which is unconstitutional. Pretty much everyone knew that that was the case in practicality, but he still got roundly shot down before the Supreme Court.
Those who can, do. Those who can't, sue.
This is not insightful. It's ignorant of history, truth, and completely hyperbolic.
The truth is that the US judicial system has been *the* floodgate that opens to change from status quo rather consistently. Civil rights, women's rights, rights to contraception and inter-racial marriage. The three branches of our government all have their flaws, but the one that has consistently had less to do with bribes and pressure has always been the judicial.
Defeatism is surrender to the cause you hate. Apathy is just short of volunteering for that cause you hate.
While the US legal system is such that entities can drag even blatantly bogus lawsuits out for years, so winning against individuals and smaller businesses just by attrition of legal costs, fine-tweaking the definition of bogusness wont have even the slightest effect.
I disagree.
In particular, if the courts were to adopt the proposed interpretation, the effect on patent trolls would be devastating. Defendants would be able to make a motion for summary dismissal on the grounds that the patent is a functional patent which under the 112(f) rule must be interpreted in reference to the details of the inventor's implementation, and since the inventor has no implementation there is no possibility of determining the boundaries of the patent and therefore the question is moot. And the motion would succeed. This would reduce such trials from years to weeks, because there would be no justification for a lengthy discover phase.
Even in non-troll cases, it would eliminate the need for most of the lengthy discovery that goes on now, because the defendant could easily argue that all of its internal documentation is simply irrelevant, since the case can be decided by examining the software implementations and determining if they're sufficiently similar. This would still result in trials dominated by detailed arguments from technical experts, so they'd still be expensive, but the cost would be a tiny fraction of what it is now, and it would take far, far less time without all of the extensive (and expensive) discovery.
Perhaps even better, it would encourage inventors (or their lawyers) to write patents which are very specific and narrow, specifically in order to avoid the sorts of broad functional claims which would invoke the author's interpretation of 112(f). Long-term, that would probably be the most important and most beneficial change to the status quo.
Would it be a panacea? Clearly not. But it would make the situation vastly better than it is now -- except from the perspective of patent plaintiffs pushing very broad patents.
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