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Fixing the Software Patent Problem

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Samantha Sneed

on 17 April 2013

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Transcript of Fixing the Software Patent Problem

Fixing the Software Patent Problem Absolutists Everyone
Else Economics Textualism Idealism Software is NOT
Patentable Subject Matter Battle of Words Federal Authority U.S. Const. Art. I, §8 cl. 8
"To promote the Progress of Science and useful Arts,
by securing for limited Times to Authors and Inventors
the exclusive Right to their respective
Writings and Discoveries." Patent Code Litigation Industry USPTO 15-20 hours Quality of examination? Enormous caseload 500,000+ per year Non-Practicing Entities (NPEs)
The Trolls Under the Innovation Bridge Authorizes Patent Law (Knowledge) Authorizes Copyright Law Copyright Term - Life + 70 years
Patent Term - 20 years exception:
"laws of nature, natural phenomena, and abstract ideas." Economic Incentive A patent for a claimed invention may not be obtained ... if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Time and Money Difficult to communicate technical issues "Magic Words" Overloaded courts Expensive witnesses Long, complicated trials Enablement and Written Description the littlest Billy Goat is usually the one eaten of all companies sued of all defenses 37% Example of Patentable Invention Link: http://www.google.com/patents/US8307476 Subject Matter Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent ... 35 USC § 101 - Inventions patentable: 35 USC § 112 - Written Description and Enablement: (a) The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same ...
(b) The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. Non-Obviousness "It's in here somewhere!" (a) A person shall be entitled to a patent unless—

(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention ... Novelty Hotchkiss v. Greenwood (1851) “there was an absence of that degree of skill and ingenuity which constitute essential elements of every invention” Already Known in the Art Too Obvious Mathematics are abstract ideas? Discovered or made by a human? The Knowledge Must Flow Level the Playing Field Patent Pools Pigovian Taxes & Fee Shifting Shorten patent term Amnesty for Practicing Infringers Article I, Section 8, Clause 8:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" Raise patent examination standards General Public License Unitary System Sui Generis System Is Software Special? Tailored approach Hard to implement Follow single rule set Existing system No System Litigate functional claiming Short examination time Increase USPTO-industry engagement Is Software Patentable Subject Matter? direct costs paid 59% 90% SHIELD Act Require greater disclosure General Eligibility Requirements §101 Novelty Requirement Utility Requirement § 102 §103 §112 Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent ... (a) The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same ...

(b) The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. FTC Antitrust [0] CONSTITUTION [1]
PATENT CODE [2]
CURRENT STATE [3]
POLICY DIVIDE [4]
STRATEGIES Laws of nature? FRCP 12(b)(6) defense against junk patents? 1972 1981 1994 1998 2008 2011 Gottschalk v. Benson Diamond v. Diehr In re Alappat State Street
v. Signature In re Bilski CyberSource
v. Retail Decisions Algorithms NOT subject matter Consider claim as a whole (even if equations or other parts are NOT subject matter individually) Software makes a general purpose machine
into a special purpose machine Software is practical application if it's USEFUL, CONCRETE, and TANGIBLE result Overturns State Street, introduces MACHINE OR TRANSFORMATION test as POSSIBLE test Math is patentable if it is hard enough Warren Togami
Sam Sneed What's Next?

Questions?
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