Software patents are occasionally denounced as providing improper and excessive protection. However, they continue to withstand the ridicule and procedural gauntlet placed before them. A few recent cases and activity are proving the undeniable fact that software continues to be granted patent protection.
A Missed Shot: Bilski v. Kappos
Software patents have so far avoided interpretation of patent ineligibility through careful claiming, such as using the Beauregard format, even though computer algorithms are ineligible for patent protection according to Gottschalk v. Benson (1972). Unfortunately, Bilski has done nothing to clarify that. We gain guidance that Machine or Transformation isn’t the only test into the inquiry of whether software will be considered patent eligible subject matter. Some may recall the last footnote of Stewart’s argument that if Bilski’s method were implemented on a website, it would be patent eligble subject matter. Is software enough to turn a general computer into a specialized machine? The Federal Circuit has already answered this question; software turns a general purpose computer into a particular machine according to In re Alappat (Fed. Cir. 1994) and, therefore, meets the Machine or Transformation test. The USPTO has requested guidance on granting new patents after Bilski and Red Hat answered that no software patents should be granted.
Some New Rules: 2010 KSR Guidelines Update
One of the many complaints about latest software patents is that they are too vague and misleading. (See Red Hat link above and EFF statement) New obviousness rules may effectively inhibit new software patents. The new USPTO KSR standards may increase the examiners part in ensuring quality software patents. My view is that skilled examiners are the fundamental force in ensuring quality patents and innovation, rather than vague patents which lead to endless litigation. Peer-to-Patent has released its second version of the program allowing a community of professionals to review patents alongside examiners. As this program increases, we will see better quality patents from the USPTO.
Promoting Reform: Microsoft v. i4i
Also utilizing KSR, Microsoft and an army of friends (and enemies) have come together to defend xml mapping. Problems with anticipation and obviousness may help Microsoft, but they are really looking to set a new standard. Patents are presumed to be valid according to 35 U.S.C. § 282, but there need not be a “clear and convincing” burden requirement. Microsoft and others would like to see this burden change to just a preponderance. History shows that isn’t a grand leap; in fact, the clear and convincing requirement wasn’t established until CAFC was created. This change in standard could level the playing field against trolls and invalidate vague patents. One petition wont change 70 years of patent history, however, so this will probably end up changing nothing, just like Bilski.
Offensive Defense: Disclosures & DPLs
The open source community sometimes utilize the patent requirements to keep code free (ie. Electronic Freedom Foundation has requested re-examination for C2 Communications VOIP patent based on obviousness), but the latest buzz about software patents is not having any patents at all. Twitter’s apparent patent goal is disclosure as a way to have protection without the setbacks of litigation. Another inventive form of protection is the Defensive Patent License, where open source inventors can conglomerate, such as FOSS community, their patents into a pool in order to sue those trying to take away from the public that which they already have, such as C2 VOIP patent. An example of this conglomeration taking place is the FOSS community. (See also the fair troll business model.) In the end, these creative solutions are nowhere near killing off patent protection for software. As Florian Mueller, anti-software patent activist, says, “Software patents are a fact of life. Their abolition isn’t achievable.”