Software Patent Strategies If Federal Circuit Decisions Results in a Change to the Law

In an earlier article I discussed a recent Federal Circuit decision, and the possibility that it may be an outlier or the start of a change in United States law regarding software patents. If this decision is the start of a change, patent applications for software innovations would do well to anticipate likely changes in the law.

I don't know if or how software patent law will change, but I can make a good guess based on prominent decisions from the past. Judges like to at least appear to make decisions that are consistent with past rulings, even when they are dramatically changing the law. By looking at some important software decisions, one can anticipate and prepare for even significant changes.

In the Supreme Court's recent decision on software patents, the Court changed the law so as not to limit "software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals...." With such strong, recent support for protection for software inventions, a change in the law is unlikely that would eliminate software patents entirely.

However, an even earlier Supreme Court ruling, found fault with a software patent claim that was so abstract that it covered all uses of a particular conversion. If patentability for software innovations is narrowed, it is very likely that applicants will be required to claim a specific, well-defined use of an algorithm or process. Therefore applicants should include descriptions of very specific, limited uses of an algorithm or process in their applications.

The Supreme Court's earlier decision also held that a purely mental process that could be done by a person was unpatentable even if performed by a computer. So if software patents are restricted, it is also likely that processes that claim only steps that can also be done by a person will not be allowed. A machine must be integral to the invention.

To anticipate a change to the law that restricts patents for processes that can be done only by the mental effort of a person, one should include support for limiting claims to include hardware actions that can't be performed by a human. For example, a rendering of results, digital communications through specific hardware, or direct communications with a digital interface may be enough to distinguish a patentable invention from purely mental process.

Finally, there is international precedent for allowing operations to be patented that include a hardware limitation as part of a key inventive element. China and the European Patent Office ostensibly do not allow algorithms to be patented. Yet these jurisdictions regularly allow patents where hardware is key to an important step of the invention.

To anticipate a similar legal doctrine in the US, a software application should now include hardware descriptions and distinctions relating to the key operations and actions. If needed these descriptions and distinctions could be used to show that the invention is more than an abstract algorithm.

By including elements like these in a software patent application, an inventor can prepare for changes to the law that might otherwise prevent the granting of protection for a software invention. We don't know if the law will change, but being prepared never hurts.

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Are Patent Laws Impeding Innovation in the Software Sector?

The other day, I was discussing the challenges with patent law in the computer programming and software sector. My acquaintance, Troy LaClaire a fellow think tanker type were contemplating a new device for computer gaming and personal tech, which would require some rather unique coding and software to do something which has not been done yet, to our knowledge anyway. Well it turns out that Sony already has some patents, 8-years old for the application of video games, but apparently the patent was vaguely worded and could be interpreted as any computer device.

Yes, they definitely locked that one down tight and of course any large corporation in that sector would have done the same, well any smart company. Troy stated; "and yet it seems that they haven't really done anything with it and one reason why I think we need more patent limitations, as some people would be to afraid to proceed on such a project as they would be to worried about violating patents already in place."

Indeed, now that is a really good point, and yet, I guess I have many mixed emotions on the whole US patent and trademark office for the same reasons. Sometimes it helps industry to spend the money in research and development knowing that they have a patent they will recoup their money, and other times it just prevents innovation from moving forward, and prevents very decent technologies from coming to market. And all these lawsuits over patents are just a nightmare, and all those court awards do nothing but raise the price for consumers, often needlessly.

Troy also reminded me that our patent laws definitely have their benefits; in that companies can review patents someone else owns, and then contact that person on licensing the rights to the patent, without the designer risking losing the idea to someone else. However it has become a method for companies to prevent others from working on similar things, by patenting things that they may never produce.

Okay so, that is very true, and yes, sometimes our free-market loses, consumer loses, and humanity loses, which is not so good. Now then could our concept really make it in the real world, in that free market system, I often speak so highly about? We must also understand as Troy noted to me in our conversation that he doesn't see the overall system changing anytime soon, as there were just recently a number of changes, and even those were not huge changes although they will affect many companies with large patent portfolios, but as Troy says "so we must learn to work within the system and figure out how to use it for our own needs for the current time."

We also agreed as you perhaps do if you are in the software sector, that for these reasons, someday, I think we need to redo the patent system, and especially put in a limit on patents. Such a limit should allow for a longer patent period for something that is actually in production, but on the flip side have early expiration for things that are not being produced, especially software systems tech and consumer electronics.

Lastly, Troy brought up another decent point here; the main problem with software, is for a specific action there may only be so many different ways you can do something. Once all of these are patented, the small developer who may have a new product cannot release it because some small piece may violate a patent/copyright.

And so if a small developer doesn't do it, and a big corporation decides not to, then there is a chance that nothing gets done, thus, nothing gets created. See that point?

Patent Riches Through Licensing   New Simplified Process of Filing of PCT National Phase Applications in India   Patenting Homeopathic Medicines   What Happens After You File A Patent Application?   What to Do With Your Great Idea - Should You Trademark, Copyright or Patent?