Friday, July 25, 2008

Software Patents to be Invalided?

Patently-O a patent law blog writes, "The Patent and Trademark Office has now made clear that its newly developed position on patentable subject matter will invalidate many and perhaps most software patents."

" In a series of cases including In re Nuijten, In re Comiskey and In re Bilski, the Patent and Trademark Office has argued in favor of imposing new restrictions on the scope of patentable subject matter set forth by Congress in § 101 of the Patent Act. In the most recent of these three—the currently pending en banc Bilski appeal—the Office takes the position that process inventions generally are unpatentable unless they 'result in a physical transformation of an article' or are 'tied to a particular machine'.”

I'll have to think about those restrictions but it does seem good that the PTO is trying to bring sanity to software patents.

So is a living organism a particular machine? I'd guess not. So does this mean genes and DNA tweaks aren't patentable either? Or are those physical transformations? I'd argue it's the same bits v atoms difference as software.

1 comment:

Richard said...

God I hope so. I don't personally deal with software patents (except as a consumer of software) but I see a hint of the minefield that the industry appears to have become in my internet reading.

Everyone knows that the purpose of patents is to give a limited monopoly for inventors to recoup the costs of development and encourage that development. They also are supposed to encourage innovation by forcing people to invent new technologies to get around the current art. Often they are just a hindrance since it seems that the novelty requirement of issued patents seems to be lacking in my opinion.

One point that most new to the patent art don't realize is that a patents true scope is understood until it has been litigated. Yes, the claims of the patent seem to cover something and a lot of companies use that power to rightly or not-so-rightly protect their technology. But if you have the money or intestinal fortitude to go to court, that is place where the final clarity on the claims can occur.

I spend far too much of my time worrying about patents (in a different field than software) and I have seen only one example of innovation in my work and many more examples of hindrance and lack of novelty. I wouldn't mind a shakeup in patent law with regard to software patents, biology patents and the concept of novelty. It would be quite exciting. I see these industries fighting to stop such a thing from happening however.