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11.23.12

USPTO and SCOTUS Abducted by Corporations

Posted in Patents at 5:36 pm by Dr. Roy Schestowitz

Factory scene

Summary: Complaints about the US patent systems rise to stage or press level because of nanotechnology and software professionals, as well as the arrogant words of the IBMer who oversees the USPTO; SCOTUS too is shown to have lost its objectivity

The words of Kappos are doing him no favours, just as we expected. One radio site says:

The director of the U.S. Patent and Trademark Office offered a forceful defense of his agency and of the patentability of software amid an ongoing debate over whether software ought to be entitled to patent protection.

While USPTO chief David Kappos acknowledged software is a challenging topic, critics need to let the system work as various updates to the nations’ patent laws come into effect, he said Tuesday in a speech at the Center for American Progress

“Stallman’s got company,” says another article as “researcher wants nanotech patent moratorium” (we covered this days ago). To quote the article:

Software patents have long been contentious things, but patents in other areas of science are also becoming frequent subjects of editorials and court cases, with biotech and genomics making it to the Supreme Court. Now, if an editorial in Nature is to be believed, nanotechnology is set to become the latest patent battleground.

Joshua Pearce is a professor at Michigan Technological University, and he very explicitly argues for taking an open-source and open-access approach to nanotechnology research. But he also goes well beyond that, calling for a patent moratorium and a gutting of the law that governs tech transfers from government-funded university research. At stake, he argues, is the growth of a field that could be generating trillions of dollars of economic activity within a few years.

There is systemic corruption at the USPTO, which comes to sight in terms of revolving doors (Kappos came from IBM). The SCOTUS too [1, 2] got corrupted by corporate interests, as this look at history reveals:

On November 20, 1972, the Supreme Court handed down its first ruling on the patentability of software. In Gottschalk v. Benson, the Supreme Court invalidated a patent on a method for converting numbers from one binary format to another, “The mathematical formula involved here has no substantial practical application except in connection with a digital computer,” wrote Justice Douglas for a unanimous court. That, in his view, meant that the patent would “wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.” Mathematical algorithms are not eligible for patent protection, so the Supreme Court invalidated the patent.

Of course, a similar argument could be made about any software patent. A computer program is nothing more than a sequence of mathematical operations—a complex mathematical formula. Therefore, any patent that claims a method of solving a problem by programming a general-purpose computer is, like the patent the high court struck down 40 years ago, effectively a patent on a mathematical algorithm.

TechDirt wrote about it too:

Over at Forbes, Tim Lee has reminded us that it’s the 40th anniversary of the case in which the Supreme Court really banned software patents, arguing that they were really just math, and you can’t patent math. That case, Gottschalk v. Benson, had been seen to suggest that software programs, by themselves, could not be covered by patents.

We are not alone in pointing out that SCOTUS serves corporate interests now, and not just when it comes to patents.

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