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08.19.11

Discussions About the United States Court of Appeals on Software Patents

Posted in Site News at 5:53 pm by Dr. Roy Schestowitz

Shield on floor

Summary: Debate over whether or not software patents are dying in the United States and, if so, which ones or what type

Mr. Masnick elaborates (in relation to this) on the demise of the system as we know it (a subject wrote about yesterday) and his analysis makes it into Slashdot. The general theme is software patent potentially dying in the States following an important ruling. The reality is, the ruling is applied to only an unspecified subset and such rulings can be ignored or reversed.

Timothy B. Lee has a less optimistic interpretation. To quote:

On Tuesday, the United States Court of Appeals for the Federal Circuit rejected a patent on a method of detecting credit card fraud. The result was unsurprising, but the court broke new ground with its reasoning. Citing the Supreme Court’s famous rulings against software patents from the 1970s, the court ruled that you can’t patent mental processes—even if they are carried out by a computer program.

Of course, all computer programs implement mathematical algorithms that could, in principle, be implemented with a pencil and paper. So is this the end of software patents? Unfortunately not. The court ruled that the no-patenting-math rule doesn’t apply if the math in question complicated enough that “as a practical matter, the use of a computer is required” to perform the calculations.

Groklaw has a law professor telling us how to read it:

If you can do it in your head or simply with a paper and pencil, simply claiming to perform the mental task on a computer or over the internet or storing it on computer readable media will not make it patent eligible. That is the conclusion of the Federal Circuit in the recently decided case of Cybersource Corporation v. Retail Decisions, Inc. [PDF]

In its decision the Court reaffirmed the use of the “machine-or-transformation test” as one tool for assessing the patent-eligibility of subject matter, and then extended its analysis with the observation that mere mental tasks that are not tied to other patentable subject matter are not, in themselves, patent eligible.

Read on. Fascinating. Are we finally seeing a major breakthrough?

Katherine Noyes has become more active in the fight against software patents. In her second piece on this subject in recent days she quotes a fellow Canadian as saying: “The USPTO has allowed US businesses to descend into a depressing state of paranoia and mindless violence. The USPTO has issued thousands of worthless patents that can do $millions of damages per patent in legal fees and blocking commerce. … [Patents have] warped into weapons of mass destruction in the hands of corporations.”

Moreover, a new article has just been published to highlight the fact that patents are harming small businesses. Mainstream sources are finally starting to get it and they openly discuss the issue without descending to the self-justifying circle of patent lawyers. To quote part of the article:

The United States patent laws are supposed to keep the intellectual property developed by individuals or businesses from being used without compensation to the developer. Instead, these laws are being used to make money for patent owners who have no plans of actually developing the product.

They’re called patent trolls by technology CEOs in Silicon Valley and around the world. Patent trolls purchase patents from inventors and later use those patents to sue other companies who they say are infringing on the patent. Some patent trolls have tens of thousands of patents in their portfolio which can net them a lot of money, mostly from lawsuits that are settled out of court.

This is something which patent lawyers always benefit from. It is increasingly being pointed out that everyone else loses. The patent system as it stands cannot last for much longer. Unless it spreads to other countries, it will falter.

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