The Death of Nearly All Software Patents?

[John Kintaro]

"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, including pioneering patent claims to such innovators as Google, Inc. 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 article 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.'"

http://yro.slashdot.org/article.pl?sid=08/...15&from=rss

I'm not sure what to make of this, as a programmer I think the patents office has been pretty silly, allowing patents for things incredibly simple over the last few years. Of course, there are things in software that aren't simple like compression methods (MP3) that have every right to be patented. It is things like the classic patenting of a bloody blinking cursor (yeah that actually happened) that I find silly. I don't really understand patents all that well, so I don't really understand what this recent move could mean.

[DragonMaci]

I think that they limitation of "unless they 'result in a physical transformation of an article' or are 'tied to a particular machine" is false and silly. It is true that a lot of software that should not get patents does, but the proper solution is to clean up the patent system not to virtually eliminate software patents altogether. I agree with you that some things like MP3 should be allowed to be patented.

[tito]

Don't forget, Amazon has a patent for a one-click order system! Every other webshop must use 2.

[DavidV]

FYI, I wrote a one-minute case against software patents.

[necrovore]

My own view is that you should not be able to patent something unless, by withholding your idea, you could have prevented society from having it, at least in the geographical area that the patent applies to, and for the duration of the patent.

In other words, you aren't John Galt if you can't go on strike.

It doesn't make any difference to me whether a proposed patent is "software" or not. The essential issue, which separates the good patents from the bad ones, is whether the proposed patent could have been withheld. If an idea cannot be withheld, I think no patent should be granted.

[Grames]

http://yro.slashdot.org/article.pl?sid=08/...15&from=rss

I'm not sure what to make of this, as a programmer I think the patents office has been pretty silly, allowing patents for things incredibly simple over the last few years. Of course, there are things in software that aren't simple like compression methods (MP3) that have every right to be patented. It is things like the classic patenting of a bloody blinking cursor (yeah that actually happened) that I find silly. I don't really understand patents all that well, so I don't really understand what this recent move could mean.

The primary problem with software patents was documenting the prior art. Software is almost all a trade secret, written in a obscure programming language, compiled into machine code, with features that are not documented in a systematic way which can be searched and cited by patent examiners. The patent office changed its philosophy during the Clinton-Gore administration to grant patent applications that for which specific bars to patentability could not be found (an inappropriate customer service standard that is heedless of the conflicting property claims created by bad patents). After the supreme court ruled that 'anything crafted by the hand of man' was patentable subject matter, the software patent applications flooded in and the examiners had very little documentary evidence of the prior art. Nearly everything got approved. This shifted the burden of sorting out conflicting property claims to the courts, a slow and expensive process where at least the interested parties had the time and motivation to acquire examples of the prior art.

Algorithms have never been patentable subject matter in US patent law. The USPTO appears moving toward ruling that an algorithm that "runs on a general purpose computing device" is not a specific rendering, thus algorithm plus machine isn't patentable.

In my opinion an algorithm plus machine thats creates a novel and useful output ought to be patentable.