In the Arrhythmia case the invention in question was directed to the analysis of electrocardiographic signals in order to determine certain characteristics of heart function. In essence, the invention was a monitoring device. It had been discovered that 15% to 25% of heart attack victims are at high risk for ventricular tachycardia, which can be treated by the administration of drugs. Unfortunately, the drugs used have undesirable and dangerous side effects, which led the inventor to come up with a monitoring device capable of determining which heart attack victims were at the highest risk for ventricular tachycardia.
Since the United States Supreme Court first addressed the patentability of computer software in Gottschalk v. Benson the law surrounding the patentability of software has changed considerably, leaving many to wonder whether software is patentable at all. Originally in Benson, the Supreme Court decided that software was not patentable, but then later retracted the blanket prohibition against patenting software.
Microsoft is trying to patent a metered pay-as-you-go computing experience, which would give Microsoft exclusive rights to giving away computers for free, or virtually for free, and then charging a user fee for every hour the computer is used. What makes this application scary is not just the fact that Microsoft filed it, but that Microsoft has such a dominant position in the market that this could realistically become the future standard.
While the Federal Circuit has not said that software cannot be patented, what they did say substantially changes the law that has prevailed over the last 10 years and will render many software patents useless. Moving forward, you can protect software, but only by protecting the machine that the software operates on, which is the way patent attorneys used to be forced to write software patent applications many years ago. What it also means is that to have any chance at protecting software with a patent you will have to be willing to spend signficant amounts of money, because simply put there is no economical way to draft patents cost-effectively given the new Federal Circuit guidelines.
The United States Court of Appeals for the Federal Circuit, the chief patent law court in the United States, today issued an Order setting In re Bilski for rehearing en banc, which means that it will be reheard by the entire court. The original hearing in Bilski was on October 1, 2007, in front of a three judge panel, which…