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US court throws out most software patents(?)

Very very interesting, if this article indeed a true account of what happened and the new situation. Quote:

The US Court of Appeals for the Federal Circuit (CAFC) in Washington DC has decided that in the future, instead of automatically granting a patent for a business practice, there will be a specific testing procedure to determine how patentable is that process.

The decision is a nearly complete reversal of the court’s controversial State Street Bank judgement of 1998, which started the stampede for patenting business practices.

Perhaps in that brave new world, startup-wannabees will focus on actually getting something to market? That’d be great!

Update: Australian-based Brendan Scott of Open Source Law has written about this also: Bilski Decision Swacks Business Method Patents (US), with some additional links.

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3 thoughts on “US court throws out most software patents(?)

  1. Wow, that article is interesting. Courts are part of the 3-part checks and balances system in the US. That court does not actually grant patents, according to the Wikipedia entry it:

    hears all appeals from United States district courts arising from non-tort monetary complaints against the federal government under $10,000 (the “Little Tucker Act”). It also hears all appeals from any of the United States district courts where the original action included a complaint arising under the patent laws, but, as the Supreme Court has decided, not if the patent claims arose solely as counter-claims by the defendant.[3] Though other appellate courts can now hear patent counter-claims in theory, this has not happened often.

    Also, the example they give for a bad patent idea is a bad one, as patents applied to products only until recently. Business procedures in the US have only been patentable for the last 2 decades or so (otherwise my father would have made my family very, very rich). This is because it has recently become difficult for the patent office to distinguish whether a new technology is a product or a business procedure.

    So I’m not sure what that court can do given that decision. The Patent Office doesn’t have to change the ways they operate. The only thing I can think of is if a patent claim of less than $10,000 makes its way to that court, it may review the patent and deem it invalid because it wasn’t sufficiently patentable at the time the patent was granted.

    Which, of course, would make those who seek patents want the Patent Office to test the idea for patentability.

    A patent is granted to a technology or procedure. This is different from copyright, which determines who owns and can distribute works. Both are extremely important in terms of the open source world…..

    But mostly, in computer terms, you copyright code, and you patent algorithms. What parts of an operating system are code, versus what parts are algorithms, how something works? The lines are very unclear.

    Any software patents that would be thrown out are ones that would be thrown out if they were tested in a lawsuit. And I can’t imagine the Court is going to make the Patent Office review hundreds of thousands of existing software patents…..so in the end, if this article is accurate, the only software patents that would actually be thrown out are the same ones that are ruled invalid now anyway — nothing changes, except that fewer lawsuits are actually brought about.

  2. There hasn’t been a new algorithm in software engineering and related science since 1985 or so. It’s all applied maths, or simply recycled stuff in a different context. It’s not actually genuinely new foo.

    The biggest problem with invalid patents is the bullying, or even the potential of bullying. If that somehow gets taken away, that’d be great for innovation and the market in general. Plus small fry shouldn’t even have to bother patenting their nifty little idea, they should just get on with getting to market.

  3. I was making an analogy. Code is text, algorithm is a process.

    And yes, that was my point with “fewer lawsuits are actually brought about”.

    My apologies for not making that clear.

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