How The Current State Of Case Law Forces Software Patenting

athough it is negated in UK and in EU i think. software patent is not valid there I think. Yes, it is in US anyway.

Actually, a judge has given UKCorporator permission to appeal, and said he thinks they have a real chance of success.

(http://www.trimmail.com/news/elsewhere/data/1149254307.49/)

Currently, the EPO does grant software patents that make a technical contribution. The distinction is the US also grants business method patents, whereas the EPO is less likely notwithstanding some sort of technical contribution. HOWEVER, very recently, the EC stated that computer programs would be excluded from patentability in the upcoming Community Patent legislation, and the EPO will be bound by this law. See http://uk.news.yahoo.com/060524/152/gchum.html

“By the way, have you seen Steve Job’s latest patent for displaying newsfeeds?”

That’s a published APPLICATION, not a patent. Good detective work.

@Jim.
Email Battles covered the EC/EPO story a week before Yahoo got around to it.

Our story’s listed in the Email Battles Backgrounder at the foot of this article: Europe pulls welcome mat out from under software patents; NewsByte; Email Battles; 25 May 2006.
(http://www.trimmail.com/news/elsewhere/data/1148593956.42/)

@RTFA.
Thanks for your eagle eye. Correction made.

You contradict yourself in your first two lines.:
>Is a web-based, automated document assembler like ukcorporator patentable? To the casual observer, it shouldn’t be.

>It’s just a clever piece of logic that depends on a data management program like SQL, DB2 and Oracle, along with existing browsing software and operating systems.

So we’ve got a clever piece of logic… why on earth SHOULDN’t this be patentable? There are no doubt some questionable patents out there, but there always will be, and this doesn’t mean that a clever (ie NEW and UNOBVIOUS = PATENTABLE) software developer shouldn’t be rewarded if he wants.

I also take issue w/ your characterization that software developers are being forced to patent else be precluded by somebody else. There’s a much easier way to not be precluded by somebody else: publish your source code, even if just for a day, on the internet.

@Anonymous:
Sorry. I don’t see any contradictions. Clever logic is an *idea*.

There are a lot of ways to write code to come up with the correct solution for a problem.

Your code is always a collection of ideas, logic and methods expressed in your specific way, just like a book, magazine article or business method. So copyright it, encrypt it or use it only in-house (trade secrets), with my compliments.

You shouldn’t be allowed to preclude me from authoring my unique method.

As companies large and small are patenting software to preserve their ability to use their own code, it appears that few have chosen to use your “easy” prescription for patent protection.

In lieu of promoting progress, patent offices have turned programming into a 100% CYA op.

Color me against.

it really seems like this (and bs ‘business method’ patents like one-click) would be non-issues if the patent office and patent courts actually PRACTICED what patents are really supposed to be about–namely, something unique and not in the prior art and non-obvious. most business method patents are only non-obvious if you take a ride in the way-back machine to 1955. The very existance of the internet makes most business method patents patently obvious. how many s/w patents REALLY pass the prior art test? Not many I’d wager.

@Rich.
Amen, brother.

That goes for code slapped on top of database managers, too. I oughta know, having done a pretty good job of it for 20 years, with nary a patent filing, despite a ton of clever code.

Too busy programming, I guess.

What’s wrong with a prior art defense? Shouldn’t it be enough to invalidate a patent to demonstrate that your implementation predates the patent holder’s application?

Nothing’s wrong with it, but the court costs.

If patents were taken seriously the whole software industry would gring to a halt.

Patents made sense in the XIXth century. Today’s world is a crowded place where we can asphyxiate each other with patents.

This ludicrous system cannot be lived with because there is no life possible in a tangle of patents.

When the law has gone mad it cannot be abided to.

Anonymous here again… I’ll respond in part to a few different nuggets…

“You shouldn’t be allowed to preclude me from authoring my unique method.”

-> This may be @ the heart of our fundamental disagreement. Tell me, though, do you agree with patenting other technical innovations (like, for example, a new lite bulb?) If so, how do you distinguish software?

“As companies large and small are patenting software to preserve their ability to use their own code, it appears that few have chosen to use your “easy” prescription for patent protection.”
–> This is not the case. Spend some time on IP.com. Most companies don’t publish their source code because unnecessary, they instead describe their algorythm generally. Code, as long as human readable (not byte code) I think would do the same thing.

“In lieu of promoting progress, patent offices have turned programming into a 100% CYA op.”
–> This is overstated. There are some high quality, very ligitimate software patents out there. There is a huge tendancy within the anti-software-patent legions to cast an enormously overbroad net. I’m against invalid software patents… but I’m against all invalid patents. This is called throwing the baby out w/ the bathwater / a few bad apples / etc. But the patent system generally works, and it is arbitrary to just cut it off from the whole of software. After much discussion w/ my developer friends, I get them to admit that what they are really against is INVALID patents, not software patents per se. As to why it works, and an example of it working, see my next point below…

-> And somebody else posted the following:
“If patents were taken seriously the whole software industry would gring to a halt.”

I think w/ blackberry/RIM software patents are increasingly being taken seriously (to the tune of ~$650 million!), yet there’s never been more softare development than now.

Answer me this: Where do most large software companies call home? It ain’t in places with weak IP laws (generally). It is in the US, which allows software patents. If it were the case that they’re bad, these innovation hubs would flea the US. Places that don’t allow software patents have wee software companies (generally). They might do neat stuff, but it’s difficult for them to attract capital to expand, and a big US company inevitably aquires them and their trade secrets. If you’re familiar with the VC game, the name that game is patents, else other people rip you off.

When established software companies start flocking to those countries that disallow software patents I’ll start to believe they are bad for business and a bad idea. But in fact the opposite is true. The more established a software company gets, the more it tries to protect its ideas (just like most other tech. areas).

Nothing to get too excited about here; it only applies to female web users.

@AnonymousAgain: Companies flock to the USA for patents because it’s the biggest market. Duh.

@AnonymousAgain.
Your assumptions seem to be based on a notion that patent offices can distinguish between *real* inventions, prior art and obvious.

The overwhelming evidence says this is a tenuous position, at best.

To help start your research, we covered One-click, NTP’s SMTP for wireless patents?!?, USPTO’s weakening standards, the Electronic Frontier Foundation’s Patent Busting Project and the National Academy of Science position here: www.emailbattles.com/archive/battles/mobile_aadagfehig_i/.

IMHO, frivolous patents (like Amazon’s One-Click, and several of those currently plaguing mobilefolk) block innovation and create scofflaws, undermining the longterm value of legitimate Intellectual Property.

Perhaps another day we dicuss just why you believe the OneClick patent is frivolous. It is novel (or show me it isn’t — I know there’s a blogger out there who just initiated a re-examination proceeding w/ the USPTO, but this was already held by a court to be valid), and I don’t see why it is so obvious. Everything is obvious once it is done. Have you read the claims of the oneclick?

@Anonymous… Again: When I viewed the claims some time ago, I wasn’t impressed. Was One-Click “not obvious to contemporaries skilled in the relevant technology” in 1997?

We’ll find out what USPTO thinks on re-exam soon. But I’d vote against.

Again, if I may call you that, I would set the bar extremely high for patenting *any* software, as opposed to copyrighting it.

fyi: One-Click patent, United States Patent: 6907315
Abstract: A method and system for placing an order to purchase an item via the Internet. The order is placed by a purchaser at a client system and received by a server system. The server system receives purchaser information including identification of the purchaser, payment information, and shipment information from the client system. The server system then assigns a client identifier to the client system and associates the assigned client identifier with the received purchaser information. The server system sends to the client system the assigned client identifier and an HTML document identifying the item and including an order button. The client system receives and stores the assigned client identifier and receives and displays the HTML document. In response to the selection of the order button, the client system sends to the server system a request to purchase the identified item. The server system receives the request and combines the purchaser information associated with the client identifier of the client system to generate an order to purchase the item in accordance with the billing and shipment information whereby the purchaser effects the ordering of the product by selection of the order button.
(Spaces added to URL to allow wrap http://patft.uspto.gov/ netacgi/nph-Parser?Sect1=PTO1&\ 1Sect2=HITOFF&\1d=PALL&\ 1p=1&\1u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&\ 1r=1&\1f=G&\1l=50&\1s1=6,907,315.PN.&\ 1OS=PN/6,907,315&\1RS=PN/6,907,315)