Bilski v Kappos

Since the big Bilski decision is expected very soon, I'm going to hold off on my personal analysis of all this hoopla for the moment.  I just wanted to point you to this wonderful page by Awaken IP, which includes links to basically every commentary, blog post, brief, transcript, and argument ever filed for and against Bilski.

No Technological Arts Criteria

Here's a nice article from Canada discussing some recent USPTO decisions, and further criteria for patentable subject matter. In part,

Two developments in the United States may mean that it will be easier to patent business methods, software and similar types of inventions. In Ex parte Lundgren, the U.S. Patent and Trademark Office Board of Patent Appeals and Interferences ruled that U.S. law does not require that an invention meet a "technological arts" criterion in order to be patented. USPTO then released a set of interim guidelines for USPTO examiners to use in evaluating inventions. The guidelines require that an invention accomplish a "practical application" in order to be patentable. These developments appear to broaden the scope of patentable subject matter, although the subject matter must still meet the stringent "novelty" and "obviousness" standards in the United States.

Software Patents = Telegraph?

Phil Albert, a LinuxInsider columnist and partner at Townsend & Townsend and Crew LLP raises an interesting analogy on the software patent debate in this article:

Another way to frame the debate is to look at a relevant example from history: the Pony Express. The Pony Express was started in 1860. Teams of fast and daring horseback riders carried mail and packages across the U.S. within 10 days, which at the time was a remarkable achievement.

Unfortunately for the Pony Express riders, 18 months later Samuel Morse launched the telegraph. The telegraph was a creatively disruptive innovation, leading to even more amazing inventions such as the telephone and the Internet. The advent of the telegraph meant that the Pony Express became obsolete and all of its workers lost their jobs.

Should the telegraph have been put on hold because of its negative impact on the Pony Express?

More Software Patent Controversy

Over at the O'Reilly Misinformation Weblog, Bruce A. Epstein posts his thoughts on this article, relating to software patents in the EU. It begins:

Like almost everything I've read on the web in regard to patents, the preceding article is full of inaccuracies and opinion masquerading as fact. Let's not throw the baby out with the bath water. A poorly implemented patent system is bad (agreed!). But the solution is to improve the patent system, not simply discard software patents. (Disclaimer: I have a patent pending on some online collaborative database software that I've designed. The patent wouldn't cover all databases or online collaboration. It is more narrow than that, but the details aren't important for the purposes of this discussion.)

Inhibiting Innovation?

This commentary from Tech News World questions whether software and genetic patents are actually inhibiting innovation:

The question arises, if a company can crack the genetic makeup of rice and patent it, control its use and for all intents and purposes, own it, what then will happen with all these patents on human genes? Will it mean that in being born, we are infringing on a number of patents -- using the genetic code without a license?

More on Software Patents

Here is a site with a lot of links, papers, and articles relating to software patents, including The Letters of Thomas Jefferson stating no patents on ideas. Most of the views and articles linked here are opposed to software patents, so I'm going to see what I can find in support of software patents. Strangely enough, it seems like most people hate them, or those who don't mind them aren't passionate enough about it to create entire web sites about the issue.

Edited to Add: I just found a very nice (and fairly long) discussion of the debate on software patents at Answers.com, which includes the varying positions out there on software patents.

Learn to Deal With Software Patents

HP's VP of Linux speaks out on software patents:

"At the end of the day, software patents are a way of life. To ignore them is a little bit naive," Martin Fink, HP's vice president of Linux, said here at the LinuxWorld Conference and Expo. It's fine to object to software patents, but it's foolhardy not to try to acquire them, he said.

"Refusing to patent one's ideas is leaving oneself exposed for absolutely no good reason," Fink said. "For some, (getting patents) may seem like selling out. You can comfort yourself that it's what you do with the patent that matters, not the fact that you have one."

Flashback: Business Methods

State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1386 (Fed. Cir. 1998)

In 1998, the State Street decision ushered in a new era of patentable subject matter under 35 U.S.C. § 101—business method patents. Although the definition of business methods is somewhat hazy, business methods may include any method of doing business, such as delivering services or products to customers, automating financial decisions, organizing accounting methods and product mixes, and coordinating procurement decisions among input suppliers. Although business method patents were not unheard of prior to State Street, with this decision the Federal Circuit put its stamp of approval on the patentability of business methods under 35 U.S.C. § 101. The court stated:

Today, we hold that the transformation of data, representing discrete dollar amounts, by a machine through a series of mathematical calculations into a final share price, constitutes a practical application of a mathematical algorithm, formula, or calculation because it produces “a useful, concrete and tangible result”—a final share price momentarily fixed for recording and reporting purposes and even accepted and relied upon by regulatory authorities and in subsequent trades. (Emphasis added).

The Federal Circuit added that:

Whether the patent's claims are too broad to be patentable is not to be judged under § 101, but rather under §§ 102, 103 and 112. Assuming the above statement to be correct, it has nothing to do with whether what is claimed is statutory subject matter.

The State Street claims were directed to machines, although in dicta, the Federal Circuit indicated that for patentability purposes, it did not matter whether the claim was directed to a machine or a process. Still, some uncertainty remained as to whether the Federal Circuit would actually apply the same analysis to a § 101 challenge of a process patent.

AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999)

One year later in AT&T, the Federal Circuit explicitly extended the State Street holding to include process claims. Here, the patent claim covered a method of adding “PIC” indicator to a message record that is generated when a customer makes a long distance phone call. The court eliminated the requirement of physical elements, limitations, or transformation, stating that a physical transformation was “not an invariable requirement, but merely one example” of how an algorithm can be applied to create a useful, concrete, and tangible result. This second point was particularly significant for computer process claims, where nothing physically outside the computer performing the process is transformed. In both State Street and AT&T, the Federal Circuit confidently determined that the other provisions of patentability, 35 U.S.C. §§ 102, 103, and 112 would be the ultimate validity determination for business method claims.

The State Street and AT&T decisions opened the door to providing patent protection for methods of doing business on the Internet, as long as they have a “useful, concrete, and tangible result.”