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Software Patents Poised To Make a Comeback Under New Patent Office Rules (arstechnica.com)
Ben Klemens writes via Ars Technica: A landmark 2014 ruling by the Supreme Court called into question the validity of many software patents. In the wake of that ruling, countless broad software patents became invalid, dealing a blow to litigation-happy patent trolls nationwide. But this week the US Patent and Trademark Office (USPTO) proposed new rules that would make it easier to patent software. If those rules take effect, it could take us back to the bad old days when it was easy to get broad software patents -- and to sue companies that accidentally infringe them.
The Federal Circuit Appeals Court is the nation's highest patent court below the Supreme Court, and it is notoriously patent friendly. Ever since the Supreme Court's 2014 ruling, known as Alice v. CLS Bank, the Federal Circuit has worked to blunt the ruling's impact. In a 2016 ruling called Enfish, the Federal Circuit ruling took a single sentence from the Supreme Court's 2014 ruling and used it as the legal foundation for approving more software patents. This legal theory, known as the "technical effects doctrine," holds that software that improves the functioning of a computer should be eligible for a patent. A version of this rule has long held sway in Europe, but it has only recently started to have an impact in U.S. law.
This week, the Patent Office published a new draft of the section on examining software and other potentially abstract ideas in its Manual of Patent Examination Procedure (MPEP). This is the official document that helps patent examiners understand and interpret relevant legal principles. The latest version, drawing on recent Federal Circuit rulings, includes far tighter restrictions on what may be excluded from patentability. This matters because there's significant evidence that the proliferation of software patents during the 1990s and 2000s had a detrimental impact on innovation -- precisely the opposite of how patents are supposed to work.
The Federal Circuit Appeals Court is the nation's highest patent court below the Supreme Court, and it is notoriously patent friendly. Ever since the Supreme Court's 2014 ruling, known as Alice v. CLS Bank, the Federal Circuit has worked to blunt the ruling's impact. In a 2016 ruling called Enfish, the Federal Circuit ruling took a single sentence from the Supreme Court's 2014 ruling and used it as the legal foundation for approving more software patents. This legal theory, known as the "technical effects doctrine," holds that software that improves the functioning of a computer should be eligible for a patent. A version of this rule has long held sway in Europe, but it has only recently started to have an impact in U.S. law.
This week, the Patent Office published a new draft of the section on examining software and other potentially abstract ideas in its Manual of Patent Examination Procedure (MPEP). This is the official document that helps patent examiners understand and interpret relevant legal principles. The latest version, drawing on recent Federal Circuit rulings, includes far tighter restrictions on what may be excluded from patentability. This matters because there's significant evidence that the proliferation of software patents during the 1990s and 2000s had a detrimental impact on innovation -- precisely the opposite of how patents are supposed to work.
It's called copyright.
And at least with copyright, you may be able to make a fair use claim when you make a copy that is strictly for personal use... with patents, no fair use exemption exists.
File under 'M' for 'Manic ranting'
when you've got a government staffed with pro-corporate politicians from top to bottom. Start showing up to your primaries folks if you want any of this to change. And start demanding politicians who refuse corporate PAC money, like these.
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
I patent useing the letter E in software!
Every single judge in the ninth circuit that votes to ignore the Supreme Court needs to be impeached and removed from office. I would also be favorable to giving some of them jail time.
dont have a office in the USA or bank account (you can still accept US dollars etc )
USA is the last place you want to pay tax's
If your selling software even a small amount do as the large corporate entities do and pay no tax... It's the American Corporate Way
vote with your dollars and tax then they might get the message...
As I see it, one problem with the Federal Circuit handling all patent cases is that there's never a circuit split, which means less threat of the Supreme Court accepting a case to resolve an interpretation.
Software is not an abstract idea nor has that ever been the argument.
Furthermore, these are not "proposed new rules" but new guidance and they are already "in effect" as noted later in the last paragraph. This new guidance is a good thing as it helps promote consistency and ends the craziness that erupted with the Alice decision. It is also entirely consistent with recent court rulings, the problem was that patent examiners are typically not lawyers and are not easily persuaded by legal arguments. By incorporating recent decisions in updated guidance, more consistency in granted patents can be achieved and less effort and money is wasted. This is all a good thing, it does not, in any way, make "software patents" easier to obtain.
In short, everything about this is wrong and the author is ignorant.
Although parts of the federal government have experienced a lapse in appropriated funding, the USPTO remains open for business as normal. This is possible because the agency has access to prior-year fee collections, which enables the USPTO to continue normal operations for a few weeks. Should the USPTO exhaust these funds before a partial government shutdown comes to an end, the agency would have to shut down at that time, although a small staff would continue to work to receive new applications and any other examination, post-examination, post-issuance, and PTAB or TTAB filings; receive payments related to such filings; and maintain IT infrastructure, among other functions.
Ask the government to terrorize your competitors.
Governments claim to oppose monopolies, yet they are the only way a real monopoly can be achieved.
The software world has been going so well with open source and lack of suffocation by government.
This is a major blow to improvements in the field.
Thank you, Bradley Manning, Edward Snowden and so many others, for courageously defending humanity, my freedom and more!
Correct, and furthermore, the entire purpose of patents is to teach others your inventive ideas to further technical advancement.
That is the purported purpose of patents. It is not in practice the actual purpose of them as things stand today. The de-facto purpose of patents is to protect the profits of the company holding the patent. It's fairly rare that patents today ever describe something that would be unknown otherwise to practitioners in the field. This is not to say patents are pointless/useless but they certainly have been co-opted and are in need of reform.
The suggestion that patents lack "faIr use" is absurd.
This is by and large correct. If I copy someone's patented widget in my own garage for my own use, nobody is going to give a shit. Companies only care about patents to the extent they can either profit from them or protect their profits with them.
Copyrights and patents do not overlap and serve different purposes.
The very fact that software can be both copyrighted and patented shows your argument to be incorrect as a practical matter. Furthermore the core purpose of both is to address the free rider problem. Copyright deals with it for documented creative works and patents are supposed to deal with it for tangible practical inventions but they are solving the same problem in two different domains with different practical requirements.
The existence of copyright does not mean that patents don't apply to software.
Obviously but one can make a very reasonable argument that because software is copyrighted, patents should not and need not apply to software. Software at its core is nothing more than a fancy math formula. It's instructions to a machine. I have yet to see any credible argument detailing how society benefits if we should allow patents on mathematical formulas or any other intangible idea like a business process.
"proposed new rules that would make it easier to patent software."
It's worth noting that these are not "new rules." Instead, it's just a memo that attempts to summarize existing law. The memo doesn't change anything re the patentability of software.
While they do overlap, GP is right that they serve different purposes.
Of course copyright and patents do have different intents and apply to very different sorts of works. But it does not follow that some works could not be in principle covered by both.
And if machines are patentable, why shouldn't a process using those machines be patentable?
To answer that question you have to answer what the harm versus benefit to society is from allowing them or not. It's a reasonable question to ask. Speaking broadly I would argue that there are several reasons to not allow them:
1) The free rider problem does not cause sufficient economic harm to justify allowing them (this is the biggest reason)
2) Practical difficulty that these sorts of patents tend to too broad in scope due to difficulty in description.
3) No compelling value proposition to the public in allowing process patents
4) If the object being made with the process is patented then there is no need to patent the process
I would argue that item 1 alone is sufficient. There is just no compelling evidence that economic harm to society will result if we don't allow process or software patents.
Or, looked at another way, any software can be implemented in hardware elements (FPGAs, ASICs, etc.). Why should one implementation be patentable while another is not?
Because the hardware implementations are invariably more than just software in a crunchy shell. That said it's a reasonable question. My take on it is that the hardware could be patented if it involves sufficiently novel physics but the code should be adequately covered by copyright. Words on a page versus words on a monitor are still words. The exact medium the come on is (or should be) irrelevant for copyright purposes.
Hope all those coders who lost their jobs because no one is incentivized to write software anymore get rehired.