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08.28.14

We Are Gradually Winning the Battle Against Software Patents

Posted in Interview, OSI, Patents at 4:18 pm by Dr. Roy Schestowitz

Summary: The once-elusive war on software patents is finally leading to some breakthrough and even the Federal Circuit reinforces the trend of software patents’ demise

Software patents are gradually losing their grip on the industry, not just in the world at large but also in the US (genesis of software patents). A few days ago an interview was published in which Simon Phipps (OSI) spoke about the goal of eradicating software patents and explained the latest turn of events as follows: “The Supreme Court in their judgment created a very clear test to work out whether a software patent was going to be valid or not. What they said was that, they said that there could still be software patents, but that simply taking something that is not patent‑eligible like an algorithm and then claiming that it’s patentable because it runs on a computer is not sufficient to actually establish patentability.

“They said that to get a software patent, the software that you have has got to improve the computer significantly. Because of that, the standard for getting software patents has been dramatically increased by the Alice decision.

“The federal circuit court then referred to the Alice decision, and decided not even to proceed to find out if there had been infringement on the Digitech case because they declared that the image processing software was not a significant improvement to the computer. Rather, it was a computer implementing a non‑patent‑eligible technique.”

Based on the article “Appeals court knocks out computer bingo patents” and some that are citing it, yet another software patent has just dropped dead. “Silly software patents are finally on notice at the Federal Circuit,” says the summary and lawyers do some legal analysis (not challenging the ruling but interpreting it). Progressive sites like TechDirt use a clever headline and say: “Another day, another story of stupid software patents getting stomped out of existence thanks to the Supreme Court’s Alice v. CLS Bank ruling. As we’ve been noting, this ruling is looking like it’s going to invalidate a ton of software patents (and that’s a good thing). The latest one dumped was an attempt to patent bingo online. Yes, bingo. The lower court had already rejected the patent using previous Supreme Court rulings against patenting “abstract ideas.” Now, with the Alice ruling in hand, the Appeals Court for the Federal Circuit (CAFC) completed the stomping out of the bingo patent.”

Based on this same site, citing the post “Patent Troll Landmark Technology Sues eBay For Challenging Its Patents; EBay Responds With Anti-SLAPP Motion”, there is bullying over the suggestion that some patents need re-examining. To quote: “Over at Popehat, there’s a fascinating story about the depths to which patent trolls will go to “protect” their business models. The story involves Landmark Technologies, a troll we wrote about earlier this year for its rather aggressive take on patent trolling. Landmark holds patent 6,289,319: ‘Automatic Business and Financial Transaction Processing System.’ Or, as the EFF puts it more succinctly: paying with a credit card online. eBay recognized that Landmark’s trolling was bad news, and filed with the US Patent and Trademark Office (USPTO) for a re-exam of three patents. The USPTO initially recognized eBay’s request, noting that there were “substantial” questions about the patentability in those patents. While it eventually left two of the patents alone, it dumped many of the claims in a third patent.”

Remember how back in early August an invalidated patent caused much trouble for that aggressor called Apple.

There is a real opportunity here for change. Patents on software can now be eliminated. Rather than actively fight software patents Google is just promising not to sue. What a wasted opportunity and misguided strategy.

Back in 2013, Google announced its plans to not sue anybody who had implemented open-source versions of its MapReduce algorithm. Since then, the company has expanded what it calls its “Open Patent Non-Assertion Pledge” to a number of other patents. Today it is announcing its largest expansion of this program to date, with the addition of 152 additional patents. This brings the total number of patents included in this program to 245.

Google ought to do more to end software patents, not just acquire some and then promise not to sue.

Meanwhile down in New Zealand, a lawyers’ site claims that changes are coming:

On 13 September the new Patents Act will come into force – whether you’re ready for it or not. So, too, will the Patents Regulations 2014 which were ratified by an Order in Council on 11 August.

Everything, then, is set. This article thus serves as something of a recap on the extent of the changes under the new regime.

Many of the provisions of the new Act are the same as the current Patents Act 1953. There will then be some continuity for patentees and businesses. However, two very significant changes are being implemented which concern how IPONZ examiners consider patent applications and the limits placed on the patentability of software.

IPONZ examiners will shortly have to examine patent applications to determine whether the claims made in respect of, for example, a product involve “an inventive step”. The inclusion of the law of “inventive step” in the new Act represents a higher threshold for hopeful patentees to meet.

There was lobbying by proprietary software giants to bring software patents to this island, but they have not been exceptionally successful. This is of course good news that reminds us that the end of software patents as elusive as we once assumed it to be.

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