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05.23.11

Patent Lawyers Boast New Tricks for Patenting Software

Posted in Patents at 8:15 pm by Dr. Roy Schestowitz

“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway.”

Marshall Phelps, Microsoft

Summary: Microsoft is not alone among those who utilise and exploit ambiguities to get patents on software where it is not legal

SOFTWARE patents are very unpopular these days. There is very vocal opposition to them and even patent lawyers shy away from defending the practice of software patenting in public as it invites backlash.

Occasionally we still see firms that try to monetise the broken system. They put out press releases that redefine reality and this nonsense spreads around. Have a taste of this:

“At Chipworks, we help companies outside of the chip market strengthen their patent licensing position by leveraging systems and software patents,” said Terry Ludlow, CEO and Founder of Chipworks.

They even take pride in “leveraging systems and software patents”.

Well, following the Bilski case we have some tests that address the blurring of gaps between hardware and software. Chipworks is trying to hack around it. It latches onto big brands by writing: “It is reinforced by mergers and acquisitions, such as Microsoft and Skype and by high profile court cases including Nokia vs. Apple, and Eastman Kodak vs. Apple and Research In Motion Ltd. (RIM).” There is no need to blur any gaps though. Software is simply not physical. Period. To quote this new post about the ” Bilski Machine or Transformation Test”:

The court granted defendant’s motion to dismiss for failure to state a claim and concluded that plaintiff’s patents did not satisfy the transformation prong of the machine-or-transformation test under In re Bilski, 130 S. Ct. 3218 (2010).

A patent lawyers’ blog speaks of expansion of other tests:

To be eligible, the pending application must not have more than three independent and twenty total claims all directed to a single invention (i.e., not subject to a restriction requirement). To participate, an applicant must electronically file a request for a first action interview at least one day before an Office action is entered into PAIR. An application that does not originally fit within the requirements can become eligible through a preliminary amendment.

What a load of bureaucracy. No wonder there is soaring unrest around the patent system. As one blog explains it, “The US patent system has its own place within the national psyche.” To quote further:

It is timely to examine this now, as the US Congress considers legislation to reform the system in a number of respects, but most controversially to replace the ‘first-to-invent’ principle with a ‘first-inventor-to-file’ approach more closely aligned with the rest of the world. It is said by some that this unique feature of the US patent law finds its origins in the articles of the Constitution upon which the Nation was founded, and that placing the individual at the heart of the system, as the source of all innovation, has contributed to America’s great economic and cultural success.

The criteria for acceptance in general, be these the shallow prior art search (restricted to published patents) or the series of tests that are easy to hack (like Bilski test), make the system prone to abuse and more trouble than a blessing. It probably won’t be long before change is enforced.

Over in Europe, gullible politicians still try to pass “The Single European Patent”, which may sound good (they greenwash software patents with that photo in there), but it actually an intrusion vector for software patents in Europe.

We have also just found out that the UK-IPO is involved with Peer To Patent, which is not necessary a good thing. Webbink might support this conformist approach (it is professionally close to him), but many groups would not. To quite the site:

In my time at the IPO I have visited many Patent Offices around the world. One topic for discussion that has come up on many of these visits is patent quality and what can be done to ensure it. Peer To Patent is one initiative aimed at helping offices in this area. Earlier this year I was in Washington where I had a very useful discussion on the US project with the head of the USPTO, David Kappos and their Peer To Patent Project Leader Jack Harvey. The USPTO is very positive about Peer To Patent. From the figures they gave me about their first pilot, comments provided by the public though their Peer To Patent website were helpful to the Examiner in about 15% of the cases in their pilot. On this evidence they started a second pilot last October.

Back in the UK we’re working with New York Law School towards the 1st June launch of www.peertopatent.org.uk. Over the next 3 months we will be uploading about 200 patent applications in the computing field to the website. The website then allows members of the public (like you) to view these applications and identify documents or leave comments that they think will be useful for the examiner to consider

This only legitimises software patents around Europe. “Legal” people like patents because it means business to them. What we really need is abolition.

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