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07.29.14

New Optimism in the Age of Doubt Over Software Patents

Posted in Patents at 5:19 am by Dr. Roy Schestowitz

Marching against software patents has finally paid off

Marching

Summary: As the tide turns against software patents, even in their country of origin, their opponents come out of the woodwork to celebrate

The CAFC, which brought software patents to the world (starting in the US), is now a disgraced and gradually-weakening institution because of scandals. Its legacy too — including software patents — is now in a state of disarray.

There are real changes afoot. The patent debate around around the world has quickly shifted (or been shifted) so as to focus again on software patents. Last year and the year before that the debate shifted from software patents to patent trolls after giant corporations had lobbied for a change that benefits only them. That was when we stopped covering the topic. We nearly gave up.

In Thailand, patent lawyers from this law firm called DFDL choose to focus on trolls and make the following observations about Tesla's PR stunt and about patent scope in Thailand:

Yet perhaps Tesla’s is a unique case, and one motivated by self-interest rather than altruism. For electric cars to occupy a prominent place in the world’s car markets there must be adequate infrastructure to support them (eg charging stations), consumer acceptance of the product and the unit costs of production must decrease. By providing their intellectual property to competitors Tesla may have decreased its potential market share, but it has increased the chances of there being a viable market at all.

The last troll you saw was probably in The Hobbit. But patent assertion entities, better known as “patent trolls”, are more threatening to your way of life than their mythical brethren. Patent trolls are in the business of buying up broad patents for the express purpose of suing infringers to obtain settlement payments or licensing fees. They neither produce nor invent anything, and they add to the costs of doing business for those who do. For example, an alleged patent troll has claimed that it has a patent that covers serialised downloadable podcasts and it is suing several of the top podcasting entities. The problem generally relates to software patents, and whether what is arguably just an abstract idea should be patentable. The big battle is currently occurring in the US, in the small, patent-troll friendly jurisdiction of Marshall, Texas, in particular. But the problem is global, which is another reason that the granting of patents requires careful consideration in each jurisdiction.

[...]

What isn’t patentable? Under Section 9 of the Patent Act, inventions are not patentable if they are (i) naturally occurring in microorganisms and their components; (ii) scientific or mathematical rules or theories; (iii) computer programs; (iv) methods of diagnosis, treatment or cure for human and animal diseases; and (v) contrary to public order, morality, health or welfare.

This article focuses on trolls more than it focuses on software patents, but it towards the end mentions patent scope as well. It is important that we do not lose sight of the real problem. It seems like the real enemy now is lawyers and lobbyists (of large corporations), to whom the debate about patent scope seems like a threat. They try hard to dodge the subject and divert attention to phantom enemies.

An article posted by Groklaw on Sunday, which recently became active again (see “Groklaw Stirs from its Deep Sleep”), covers new scope limitations at the USPTO, inspired by a case that Groklaw covered for a long time. Dennis Crouch writes: “Based on information from several sources, it appears that the USPTO is now taking a more aggressive stance on subject matter eligibility and is particularly re-examining all claims for eligibility grounds prior to issuance. This is most apparent in technology centers managing data-processing inventions classes (Classes 700-707).”

Pamela Jones, speaking online for the first time in about 8 months, writes: “Ask yourself: when the Alice Corp. case was first decided, is this outcome analysts told you to expect?”

The smiley face after that shows that Jones is happy. There are many victories these days, not only loses (to privacy, free speech and so on).

“I hope PJ comes back,” wrote a reader to us, “but it is more likely that she might be continuing just the NewsPicks.”

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