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.

Comments

Software already has IP protection

[mark-t]

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.

Re:This is what you get

[hey!]

It actually wouldn't be so bad if those politicians were just pro-corporation. But what they are is pro-their-donors, which makes them pro status quo. It is in their interests to protect their donors against the entry of new competitors to the market.

Many years ago I was CTO in a small startup and every so often someone would come into my office and say, "Hey, listen to this. There's this patent..."

And I'd stop him right there. "STOP. This is going to be some bullshit patent where they took stuff people have been doing for years with LORAN, but do it with GPS instead or something like that."

"Well, yeah. So what they did was..."

And I'd have to stop him again. "STOP. I can't hear this. If this is something we're already doing and they find out, we'll have to negotiate a settlement. But if I've heard what this patent does, we'll have to negotiate while facing treble damages."

Software patent examiners were so bad, they frequently enabled trolls and entrenched players block new competitors from using long established practices in conjunction with commonplace new technologies. And they remained bad for so many years, not despite stifling new competition. If politicians were pro competition that problem would have been fixed immediately.

This made looking at patents an extremely risky for a working software engineer. That undermines the whole basis of the patent system, which isn't there to benefit only inventors. The patent system is at its root a deal: you the inventor get a limited time, government enforced monopoly on your invention in return for disclosing how the invention works. That disclosure means that at the conclusion of the patent the ideas go into the public domain as common knowledge.