As the Court of Appeals for the Federal Circuit (CAFC) is considering the Bilski case, where it may finally push back on software and business model patents, it's interesting to hear one of CAFC's judges admit that he was "troubled by the unintended consequences" of the lawsuits (State Street and AT&T) that resulted in software and business model patents being effectively allowed.
Patents as property was also front and center in the thoughts of one judge on the Court of Appeals for the Federal Circuit, the main appellate court for patent disputes in the US. Senior Judge S. Jay Plager, speaking at a symposium at George Mason University, called for a “rethinking” of several aspects of patent law by returning to its origins in property law.
According to the BNA, Plager “called for a renewed focus on setting recognizable patent ownership boundaries and on strengthening the notice function that patents are intended to serve. Such a reevaluation might require a reassessment of whether software and business methods are patentable subject matter, Plager said.
Judge Plager writes that as a former law professor who taught property law for twenty-five years, he found our general thesis about analyzing patent law from a property law perspective “quite comfortable.” The book argues that many of the key institutional features and much of the economic performance (and many of the problems) of the patent system can be analyzed by treating patents as a property system. In his speech, Judge Plager suggested that this approach might require rethinking the patentability of software and business methods, doctrines of claim construction, patent scope and the doctrine of equivalents.
The block quote alone is amazing and extremely important due to the subject matter and the authority of US. Senior Judge S. Jay Plager. This is the type of thing that should be promoted by End Software Patents, rethinking subject matter for software patents and business methods is essential if we are to save the patent system.
It might lead to limiting a patent’s scope to what was known at the time of the application filing, and to an abandonment the doctrine of equivalents as a basis for patent infringement liability.
--Linus Torvalds
Comments
Needs Sunlight
2008-08-11 14:54:59
However, it also indicates a blatant misunderstanding of the problem. Patents do not apply to expression like copyright does, but to activities. Thus it's not possible to "innovate around" vague patents if it is the patented activity or method that is required.
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/08/317&source=boycottnovell.com
The European Patent Office has been granting junk patents, which are not valid. The treaty, the 1974 European Patent Convention, specifically declares that software, algorithms, formulas and business methods are not patentable. So, the EPO, and many member states like Sweden for example, needs to get incompliance with EU law and "harmonize" with the treaty under which they are obligated to comply.