Re: US Court tosses most Software Patents

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Ronald J Riley \(RJR-com\)" <rjr () rjriley com>
Date: October 31, 2008 10:08:20 PM EDT
To: "'David Farber'" <dave () farber net>
Subject: FW: [IP] US Court tosses most Software Patents

Dave, for IP.

This is WAY overblown.  Media coverage is so far in left field it is
pathetic.  The majority of software patents will be fine and where  
business
methods are concerned this will change the way they are prosecuted.  In
fact, people with existing patents can go through a reexamination and in
many case reform their patents to pass muster.

It is important to recognize that most large companies use patents as a
defensive weapon where small entities use them to create new markets  
or to
take market share and to create companies and protect their market share
while they grow.  Older less inventive companies generally prevail in a
market based on other factors than patents.

Supporting documentation follows my sig. file.

Ronald J. Riley,


Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org Executive Director -
www.InventorEd.org - RJR at InvEd.org Senior Fellow - www.patentPolicy.org
President - Alliance for American Innovation Caretaker of Intellectual
Property Creators on behalf of deceased founder Paul Heckel  
Washington, DC
Direct (202) 318-1595 - 9 am to 9 pm EST.

====

By David Pressman (who you should invite to IP),

For what it's worth, here is my report on and opinion of the Bilski  
case:

In re Bilski Changes Standard For Subject-Matter Patentability Of  
Processes:
For about the past 10 years, the standard for patentability for  
process or
method claims was that they had to define an invention that produced a
useful, concrete, and tangible result." This rule was based mainly on  
the
1998 State Street v. Signature case in the Court of Appeals for the  
Federal
Circuit (CAFC). On 2008 Oct 30, the CAFC changed this standard in the  
In re
Bilski case. They reinterpreted Sec. 101 of the patent laws, which  
broadly
states that statutory subject matter embraces any new and useful  
process,
machine, manufacture, or composition of matter. Under Bilski, a  
process, to
satisfy Sec. 101, must now recite a process that is either (1) tied to a
particular machine or apparatus, or (2) transforms an article into a
different state or thing. The court said that electrical signals and  
data
are considered articles if they represent physical objects or  
substances.
The purpose of this ruling is to prevent someone from monopolizing a
"fundamental principle", i.e., laws of nature, natural phenomena, and
abstract ideas. Bilski said that processes that merely cover the
transformation of legal objects, relationships, business risks, or  
"other
such abstractions" are considered non-statutory subject matter. But it  
also
said that if a process is tied to a particular machine, it is statutory
subject matter. Nevertheless they also said, "[w]e leave to future  
cases . .
. "whether or when recitation of a computer suffices to tie a process  
claim
to a particular machine."

I disagree strongly with the decision since the court is usurping the  
role
of the legislature when it effectively narrows the accepted definition  
of
"process." This decision will cast a cloud on the validity of many  
patents
and pending applications. Also if an inventor discovers a process that  
meets
the other statutory requirements for patentability (usefulness,  
novelty, and
unobviousness), why shouldn't the inventor be able to patent all uses of
this "fundamental principle," just as inventors can now do with other
fundamental discoveries in the areas of machines, articles, and
compositions? I believe that the court has failed to keep the law up  
with
modern technology and hope Bilski can successfully appeal to the Supreme
Court or that Congress will legislatively overrule it. I am optimistic  
for a
Supreme Court reversal since in 1980, in the Chakrabarty case, they  
said,
"We have cautioned that courts should not read into the patent laws
limitations and conditions which the legislature has not expressed" and
Congress had intended patentable subject matter to "include anything  
under
the sun that is made by man."

Dave

David Pressman, Patent Lawyer, SF
Author, Patent It Yourself (Nolo Press)
World's Best-Selling Patent Guide
13th Ed.. 2008 www.PatentItYourself.com
Updates: http://patentityourselfupdates.blogspot.com
Email: DavidP () PatentItYourself com

Additional Sources:

http://271patent.blogspot.com/2008/10/cafc-decides-bilski-rules-in-favor-of 
.
html

http://www.patentlyo.com/patent/2008/10/in-re-bilski.html




-----Original Message-----
From: David Farber [mailto:dave () farber net]
Sent: Friday, October 31, 2008 5:55 PM
To: ip
Subject: [IP] US Court tosses most Software Patents



Begin forwarded message:

From: Randall <rvh40 () insightbb com>
Date: October 31, 2008 1:07:23 PM EDT
To: Dewayne Hendricks <dewayne () warpspeed com>, johnmacsgroup () yahoogroups com
, David Farber <dave () farber net>
Subject: US Court tosses most Software Patents

http://www.itexaminer.com/us-court-throws-out-most-software-patents.aspx
(Lotsolinks@ the site)
US court throws out most software patents

Microsoft has a problem

By John Oram @ Friday, October 31, 2008 4:56 AM


Much of the patent portfolio of some of the world's biggest software
companies has become worthless overnight, thanks to a ruling yesterday  
by
the US patent court.
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.

Randy Lipsitz, a patent specialist at Kramer Levin in New York, said the
ruling is likely to hit certain industries very hard, especially  
insurance,
banking, accounting, and software.

The decision is great for open source advocates. But it could mean a
permanent change in the value of intangible assets, which comprise
approximately 70 per cent of the average high-tech company's market
capitalisation. With the world's economy sliding downhill at an  
increasing
pace each day, this decision could cost US companies billions of  
dollars.

Pamela Jones at Groklaw told the Examiner that because Microsoft doesn't
make many machines, much of its patent portfolio just went up in  
smoke. She
said that a special thanks should go to Red Hat software for the  
wonderful
amicus brief that it filed in this case, representing the community's
interests, and getting certain issues on the court's radar. She said  
there
will be more information on her website, and recommended reading Gene
Quinn's patent blog at the Practicing Law Institute.

Many people say the problem with a lot of business and software  
patents is
that they describe simple things that many people consider normal daily
procedures. In 1833, the New York City Sun newspaper was founded.  
Benjamin
Day, the publisher, didn't file for a patent on his innovative business
practices of selling advertising and using news boys to distribute his
papers. All up and down the eastern seaboard, newspapers popped up. It  
is
very doubtful that this industry would have come about had the Sun's
business practices been patented.

We spoke to one Silicon Valley executive who saw a silver lining,  
suggesting
that this decision will save a lot of companies cash by removing the  
need
for endless patent protection schemes. He said his company and its niche
industry will protect its practices, just as Coca Cola has protected its
secret formulas for over 100 years.

Right now there is a lot of speculation in the blogs as to whether there
will be an appeal in the US Supreme Court. Some legal experts say yes;
others say it's not very likely because of the way the decision was  
worded.

So good luck to Microsoft, Oracle and a lot of American high-tech  
companies
in attempting to protect their software's market value. The world is  
going
through a financial overhaul and only the nimble will survive. X


--
The war on privilege will never end. Its next great campaign will be  
against
the privileges of the underprivileged. H. L. Mencken





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