07.29.17
Gemini version available ♊︎Loud Proponents of Software Patents Continue to Bemoan Alice and Seek Workarounds
A purse by another name is still a purse, like software patents by any other name…
Summary: Disguising software patents as something that they clearly are not might be enough to fool/bypass patent examiners, but not patent courts
THE USPTO may continue granting software patents, but courts repeatedly slap these patents down. So what’s the point pursuing such patents in the first place?
“Typically, nowadays, there are attempts to paint software as something which it’s not (e.g. a device). Buzzwords like “AI” and “cloud” get used a lot.”Watchtroll admitted yesterday: “Whereas patenting in the software space was a lot more open 10 to 15 years ago when there was less prior art in the field, court decisions like Alice have lessened the degree of freedom patent practitioners enjoy in the software sector.”
Tyler Tassone from The Legal Intelligencer tries to teach people how to fool/manipulate examiners into granting software patents. From the outline (the rest is behind a paywall):
Patent applications increasingly encounter subject matter eligibility rejections under 35 U.S.C. Section 101, particularly those applications directed to software and business methods. These rejections can be difficult to overcome, even for experienced patent practitioners due to lack of clear precedent and continuously evolving case law. The Supreme Court decisions in Mayo v. Prometheus (US 2012), and Alice v. CLS Bank International (US 2014), set forth the current framework for determining patentable subject matter eligibility under Section 101.
Typically, nowadays, there are attempts to paint software as something which it’s not (e.g. a device). Buzzwords like “AI” and “cloud” get used a lot.
“We certainly hope that in spite of all the lobbying on Section 101 (we wrote 3 articles about that lobbying in the past week) the patent office will heed the warning and learn from courts that software patents are passé”A day earlier Bloomberg wrote about oil/gas companies (like Halliburton, whose push for software patents — even at the EPO — we covered here six years ago). Here is the part about patents on drilling and potentially software/gas (it would not be hard to disguise the software as pertaining to a physical “effect”). To quote: “Halliburton Co., the largest provider of fracking services, bought Summit ESP, a company armed with 44 patents for technology to improve production. That followed by two months Helmerich & Payne Inc.’s acquisition of Motive Drilling Technologies Inc., with 14 patents, another dozen pending, and software in hand that can robotically steer drill bits located more than a mile underground.”
We certainly hope that in spite of all the lobbying on Section 101 (we wrote 3 articles about that lobbying in the past week) the patent office will heed the warning and learn from courts that software patents are passé. █
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