Posts Tagged: "software patents"

Writing Software Patent Applications

Collecting the information necessary to prepare a patent application covering a computer related invention can be quite challenging. Typically, most computer related inventions today relate at least in some way to software, which is at the core of the challenge. This software challenge stems from the fact that the software code is not protected by patent law, but rather how the software operates is protected. This means that the description needs to be one that can be replicated by others regardless of how they choose to write code to accomplish the necessary tasks.

Fixing the Patent System to Improve Innovation

Settling nuisance value perpetuates the cycle, as the automobile industry discovered in the 1980s and early 1990s. Show a willingness to pay extortion-like demands and you will see more lawsuits filed. It is an endless cycle, at least until it gets broken. The solution is an easy one — fight at least occasionally, or at least one! Because the easy solution isn’t pursued and instead the industry pursues a strategy akin to a Buck during deer hunting season I have to assume that they really don’t want a solution. What other conclusion can you reach when intelligent people ignore the obvious?

Patent Eligibility Today: Are Software Methods Patentable?

Two common criticisms of software patents, as compared to patents in the pharmaceutical and biotech sectors, are (a) the relatively low cost of invention; and (b) the relative ease of implementation. Are these the right factors for us to be considering for purposes of inventiveness? It seems to me that if we are going to be perfectly honest and engage in a discussion that embraces the realities of the industry we have to recognize that this criticism from those who detest software patents is based on factual fallacies. If software is so easy to create and implement why then does software of all sorts suffer from so many problems, require so many fixes and crash without warning?

A Guide to Patenting Software: Getting Started

Any good patent application that covers a software related invention will need to put forth three specific pieces of information. First, you need to describe the overall computer architecture of the system within which the software will exist. Second, you need to prepare a single flowchart that depicts the overall working of the software. Third, you need to prepare a series of flow charts that show with painstaking detail the various routines and subroutines that together connect to create and deliver the complete functionality of the computer system as enabled by the software.

On the Record with Manny Schecter, Part II

In Part II of the interview, which is the final segment, we discuss how IBM keeps a watchful eye on the industry to learn from the mistakes of others, what the conversion to first to file will mean for IBM patents, how Watson is being deployed and David Kappos leaving the USPTO.

On the Record with Manny Schecter, IBM Chief Patent Counsel

Whenever there is interesting IBM news of a patent variety Schecter has been gracious enough to make time to chat. The news of IBM’s patent supremacy wasn’t just any run-of-the-mill news, at least not in my opinion. The commitment to innovation and belief in the patent system has served IBM well for many decades, and twenty years as #1 at anything is astounding in a world dominated by parity and antitrust regulators that don’t want any single company to succeed too much. We discuss the commitment to excellence required to stay #1 for twenty years, the process for deciding which patents to keep paying maintenance fees on, what may change once the U.S. converts to first-to-file on March 16, 2013, how Watson is being put to use and the parting of USPTO Director David Kappos.

USPTO Seeks Comment on Software Patent Quality

The Patent Office says that each roundtable event will provide a forum for an informal and interactive discussion of topics relating to patents that are particularly relevant to the software community. So will this be a free-for-all whereby everyone with an opinion, even an ill-formed opinion not based in fact, will be allowed time to rip the patent system and software patents specifically? There is no way of knowing what will actually happen at these roundtable events, and while patents don’t generally generate protests I have sneaky suspicion that we may see something that we have never seen before, which is an unruly crowd of protesters. Perhaps I am worrying to much, we shall see.

Forfeiting the Future Over Irrational Fear of Software Patents

If you haven’t noticed America doesn’t make anything any more, at least nothing that is tangible. Everything we buy is made in China, or Mexico or Viet Nam or somewhere else. The U.S. economy is based on intellectual property and the foundational intellectual property we have for the 21st century innovation based economy is software. We know from history that where patent rights are strongest is where companies locate, innovate and grow. Where patent rights are weakest there is no foreign direct investment, companies do not go there and economies suffer. Once upon a time the UK dominated in biotechnology, but now the U.S. is dominant thanks to a strong and liberal patent system. If we curtail software patents we will be forfeiting not a single industry, but an enormous software industry AND any number of other industries and sub-industries in various other technology fields that rely upon the development of software. Think bio-informatics, for example.

An Examination of Software Patents

Software patents, like all patents, are a form of innovation currency. They are also ecosystem enablers, and job creators. The innovation protected by software patents is highly integrated with hardware. All of it must remain eligible for protection. The current software patent “war” is hardly the first patent war—and unlikely to be the last in our nation’s patent history. Whenever breakthrough technologies come onto the scene, market players find themselves joined in the marketplace by new entrants. The first instinct of the breakthrough innovators is to bring patents into play. This is not only understandable, it is appropriate. Those who invest in breakthrough innovation have a right to expect others to respect their resultant IP. However, in the end, as history has shown time and time again, the players ultimately end up agreeing to pro-consumer solutions via licenses, cross-licenses or joint development agreements allowing core technologies to be shared.

The Illogic of the Algorithm Requirement for Software Patent Claims

Recently, patent scholar Mark Lemley has renewed attention to software claims under 35 U.S.C. 112, sixth paragraph. Lemley encourages strict application of the algorithm requirement to police software patents and resolve these concerns. Unlike Lemley, I am convinced that the algorithm requirement makes no sense. The problem is not that the concern about broad software claims is unjustified. The problem is that, even if the concern is justified, the algorithm requirement does not solve it. At least, the requirement does not solve the problem in an appropriate way.

What the NY Times Doesn’t Understand about the Patent System

These first-level-thinkers just assume that information would be disseminated at the same rate without a patent system, which is so ridiculous it is hard to take anyone seriously who actually professes to believe such nonsense. Can anyone really believe that? This is why it seems overwhelmingly clear to me that there is an anti-patent agenda in many newsrooms across the country. No intelligent person who has reviewed history and has any knowledge about how business works would think that businesses would randomly disclose proprietary information in the volume that occurs today absent a patent system that incentivizes such disclosure.

CLS Bank v Alice – Federal Circuit Orders en banc Rehearing

It is arguable that neither view is beyond criticism and that any emergent legal test as to patent-eligibility demands further development. There is much to commend the majority view that each of §§101, 102, 103 and 112 serves a different purpose and presents different questions and that under §101 only when it is apparent that the claimed subject-matter is a manifestly ineligible abstract idea should that subject-matter be excluded. Significant involvement of a computer in the working of the invention points towards invention.

All In! Doubling Down on Erroneous Attacks on the Federal Circuit

In a recently published Forbes.com article titled”The Federal Circuit, Not the Supreme Court, Legalized Software Patents,” Lee doubled down with his absurd and provably incorrect assertions regarding the patentability of software patents. But he also more or less sheepishly admitted that his reading of the most relevant case is not one that is widely accepted as correct by anyone other than himself. He wrote: “To be clear, plenty of people disagree with me about how Diehr should be interpreted.” Thus, Lee admits that his primary assertion is one he created from whole cloth and contrary to the widely held views to the contrary. Of course, the fact that his radical views are in the minority was conveniently omitted from his ?Ars Technica? article. If Lee has any integrity he will issue a public apology to the Federal Circuit and issue a retraction. If Lee doesn’t come to his senses and do the right thing in the face of overwhelming evidence that he is wrong then Forbes.com and Ars Technica should step in and do what needs to be done.

Lies, Damn Lies and Media Hatred of Patents (and the CAFC)

Indeed, few articles have struck a nerve in me quite the way that a recent Ars Technica article did. The article is titled How a rogue appeals court wrecked the patent system??. It is a cheap shot, factually inaccurate and embarrassingly incorrect “news” story that concludes the Federal Circuit is at the heart of all the problems in the patent system. A real Pinocchio tale. Ars Technica? should be ashamed at having published such an inaccurate attack piece. If they are not going to properly vet articles in advance of publication then what have they become? Little more than an online technology specific version of those tabloids with the salacious headings. The patent system is far to important to the U.S. economy and our way of life to suffer from that level of journalistic ignorance and bias.

Business Methods (and Software) are Still Patentable!

For at least the past 15 years, the legal, technical and academic communities have been debating the patentability of business methods and software. Despite much negative press ink, talk, legislative activity and court opinions, the answer with respect to patent eligibility is still a resounding and categorical “yes.” That’s the easy part. What types of business methods and software exactly are patentable? That is the difficult question to answer.