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ThomasHouFirstPaper 15 - 14 Jan 2012 - Main.EbenMoglen
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< | Revisions are ready for review. Your comments or suggestions are welcome! | | | Patentability of Software after Bilski and KSR: Looking Back and Looking Forward
-- By ThomasHou - 19 Oct 2011 | | | Section I: Bilski's Indirect and Unfinished Effect on Computer Software as Eligible Subject Matter | |
<
< | For patent law and software aficionados who were expecting the Supreme Court to make a definite pronouncement on the patentability of process patents such as computer software, the Court's decision in Bilski v. Kappos was a letdown. The Court declined to "comment[] on the patentability of any particular invention" and left to the Federal Circuit ("FedCir") to develop doctrine according to the Supreme Court's precedents (including categories of unpatentable subject matter, such as abstract ideas). For software, neither the Supreme Court nor the FedCir? addressed in the Bilski decisions whether mere recitation of a computer could satisfy the "special purpose machine" of the FedCir? 's machine or transformation test, or a computer specifically adapted to the claimed process was necessary. | >
> | For patent law and software aficionados who were expecting the Supreme Court to make a definite pronouncement on the patentability of process patents such as computer software, the Court's decision in Bilski v. Kappos was a letdown. The Court declined to "comment[] on the patentability of any particular invention" and left to the Federal Circuit ("!FedCir") to develop doctrine according to the Supreme Court's precedents (including categories of unpatentable subject matter, such as abstract ideas). For software, neither the Supreme Court nor the FedCir addressed in the Bilski decisions whether mere recitation of a computer could satisfy the "special purpose machine" of the FedCir's machine or transformation test, or a computer specifically adapted to the claimed process was necessary.
Nonetheless, decisions from the PTO, BPAI, and district courts are suggesting a more exacting review of software patent applications.
That was also true
before Bilski. Bilski is demonstrably the product rather than
the cause of that change.
Since Bilski, the PTO and BPAI have begun to deny a large number of software-only patent applications, albeit without establishing clear doctrine. A July 2011 study of post-Bilski BPAI and district court cases on patentability found that a majority of software patent applications were invalidated, mostly because they were deemed abstract ideas. On that level, the lower courts and administrative bodies are heeding the Supreme Court's earlier precedents, especially Gottschalk v. Benson, which held that inventions cannot substantially preempt the use of an abstract idea. The PTO and BPAI have not definitely commented on the "special purpose machine" definition from In re Bilski. The FedCir has not had an opportunity to rule on the eligible subject matter for pure software, which explains why the doctrine remains unsettled.
I don't understand this
comment. The Federal Circuit could make a broad ruling on that topic
in any case presenting the denial of a patent for a
software-implemented invention, of which it always has many. Nor do
I know what "pure software" is.
In the upcoming years, I anticipate that the PTO, BPAI, and district courts will continue to examine and adjudicate on various software patents, whose filings have not diminished. | | | | |
<
< | Nonetheless, decisions from the PTO, BPAI, and district courts are suggesting a more exacting review of software patent applications. Since Bilski, the PTO and BPAI have begun to deny a large number of software-only patent applications, albeit without establishing clear doctrine. A July 2011 study of post-Bilski BPAI and district court cases on patentability found that a majority of software patent applications were invalidated, mostly because they were deemed abstract ideas. On that level, the lower courts and administrative bodies are heeding the Supreme Court's earlier precedents, especially Gottschalk v. Benson, which held that inventions cannot substantially preempt the use of an abstract idea. The PTO and BPAI have not definitely commented on the "special purpose machine" definition from In re Bilski. The FedCir? has not had an opportunity to rule on the eligible subject matter for pure software, which explains why the doctrine remains unsettled. | >
> | What would be the
alternative anticipation? Isn't this a statement of the obvious
masquerading as an educated judgment or analytic conclusion?
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<
< | In the upcoming years, I anticipate that the PTO, BPAI, and district courts will continue to examine and adjudicate on various software patents, whose filings have not diminished. Although Jonathan Masur points to institutional incentives for the PTO to expand the boundaries of eligible subject matter, I find recent developments from the Supreme Court through its patent cases and Congress through the America Invents Act tempering the PTO's ability. Ultimately, the FedCir? must rule on the patentability of software and define what constitutes "special purpose machine", either from patent applications denied by the PTO or from invalidity arguments raised during one of these patent wars cases. Bilski only started the debate, and without a definite answer, needless litigation and reexaminations will continue. | >
> | Although Jonathan Masur points to institutional incentives for the PTO to expand the boundaries of eligible subject matter, I find recent developments from the Supreme Court through its patent cases and Congress through the America Invents Act tempering the PTO's ability. Ultimately, the FedCir must rule on the patentability of software and define what constitutes "special purpose machine", either from patent applications denied by the PTO or from invalidity arguments raised during one of these patent wars cases.
Must? Nothing you have
said so far shows any reason to go beyond "might."
Bilski only started the debate, and without a definite answer, needless litigation and reexaminations will continue.
I'm not sure what makes
litigation or reexamination needless. Do you mean that if the cases
were decided as you wish them to be decided, no one would bother
trying to invalidate patents? Or that there would be no patents to
invalidate? In the latter case, isn't it the patents that are needless,
rather than the effort to prevent injustice arising from the thuggish
enforcement of illegal monopolies? | | | Section II: KSR's Heightened Nonobviousness Test to Bar Trivial Software Patents
Even though Bilski and eligible subject matter are dominating headlines in patent law, they are not the sole area in flux. After all, patentability also requires utility, novelty, and nonobviousness, the latter of which has long been the gatekeeper and the hardest for patentees to satisfy. The Supreme Court's fairly recent decision in KSR Int'l Co. v. Teleflex Inc. seems to and should be having a similar effect on nonobviousness as Bilski had on eligible subject matter. | |
<
< | Several aspects of KSR are similar to Bilski and indicate a similar trickle effect on lower courts and the PTO and BPAI. First, the Court emphasized that its precedents called for a flexible and functional approach and rejected the FedCir? 's rigid, narrow test for obviousness. Second, the Court advised courts to look broadly at various factors, such as "interrelated teachings of multiple patents; the effects of demands . . . in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art." Third, the Court recognized that market demand will often drive design trends, especially in the informational economy: "When there is a design need or market pressure to solve a problem . . . a person of ordinary skill has good reason to pursue known options within his or her technical grasp." This insight may be particularly pertinent to software. Finally, the Court left many questions unanswered and implicitly instructed the lower courts, including the FedCir? , to develop nonobviousness doctrine.
Contrary to popular belief that KSR had meager effect on nonbviousness outcomes, an empirical study has found that the FedCir? and district courts have started to invalidate more patents for obviousness because of KSR. For software, the obvious-nonobvious percentage is somewhat close to 50-50, which a 2010 WilmerHale study of FedCir? decisions since KSR found. Going forward, I see the FedCir? and district courts continuing to grapple with nonobviousness doctrine, including for software patents. KSR has elevated the threshold and more software, even if they are deemed statutory subject matter, may be subject to a finding of obviousness. However, I don't see the Supreme Court or FedCir? en banc deciding this area anytime soon. Most of the action will be at the district court or PTO/BPAI level, which may lead to divergences in what is already a fact-intensive area. | >
> | I thought you said the
effect of Bilski on eligible subject matter was slight, incomplete,
and ambiguous. Do you mean that's also the effect of KSR? Why is
that the effect the case should have? I thought that was the
effect you thought Bilski shouldn't have.
Several aspects of KSR are similar to Bilski and indicate a similar trickle effect on lower courts and the PTO and BPAI. First, the Court emphasized that its precedents called for a flexible and functional approach and rejected the FedCir's rigid, narrow test for obviousness. Second, the Court advised courts to look broadly at various factors, such as "interrelated teachings of multiple patents; the effects of demands . . . in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art." Third, the Court recognized that market demand will often drive design trends, especially in the informational economy: "When there is a design need or market pressure to solve a problem . . . a person of ordinary skill has good reason to pursue known options within his or her technical grasp." This insight may be particularly pertinent to software.
Why? Seems to me it's
just the usual crap said in the usual way. No one takes it seriously
with respect to pharmaceuticals, either.
Finally, the Court left many questions unanswered and implicitly instructed the lower courts, including the FedCir, to develop nonobviousness doctrine.
Isn't that pretty much
the only thing the Supreme Court can do in patent cases? The
Justices are terrified about what they don't understand, and
particularly fearful of the unintended consequences of decisions that
will be implemented not primarily by the Federal Circuit, but by the
uniquely outmoded and ridiculous form of bureaucracy that is the
Patent Office.
Contrary to popular belief that KSR had meager effect on nonbviousness outcomes, an empirical study has found that the FedCir and district courts have started to invalidate more patents for obviousness because of KSR.
No. The study shows, at
most, that more patents are invalidated for obviousness, and (totally
unsurprisingly) every judgment to that effect is accompanied by an
opinion that cites KSR. That's not the same thing at all. Every
opinion finding a patent non-obvious cites KSR too, and there are
still many more of those overall.
For software, the obvious-nonobvious percentage is somewhat close to 50-50, which a 2010 WilmerHale study of FedCir decisions since KSR found. Going forward, I see the FedCir and district courts continuing to grapple with nonobviousness doctrine, including for software patents.
Another non-conclusion
conclusion?
KSR has elevated the threshold and more software, even if they are deemed statutory subject matter, may be subject to a finding of obviousness. However, I don't see the Supreme Court or FedCir en banc deciding this area anytime soon. Most of the action will be at the district court or PTO/BPAI level, which may lead to divergences in what is already a fact-intensive area.
Wouldn't that be the
other way around? All decisions involve the PTO, some involve the
BPAI, a tiny number involve the District Courts,
right? | | | Section III: What This Means for Software, Software Users | |
<
< | Many people, including free software advocates, have long decried software patents as hindrances to innovation and sharing. The recent populist efforts to petition the Obama administration to end software patents show they are not alone. However, given Congress's inability to grapple with this issue (or any other matter), change must come from elsewhere. The flux in the doctrine in eligible subject matter and nonobviousness is a step in the right direction. Those sued by patent holders have greater likelihood of success to invalidate software patents under Sections 101 and 103. Perhaps one day proprietary holders of software patents will find the patent system and courts not worth their effort and costs. Or change may come from the market. The patent wars have already shown the inefficiencies with the software patent system, and with free software offering an alternative for users and other stakeholders, perhaps that would sound the death knell. | >
> | Many people, including free software advocates, have long decried software patents as hindrances to innovation and sharing. The recent populist efforts to petition the Obama administration to end software patents show they are not alone. However, given Congress's inability to grapple with this issue (or any other matter), change must come from elsewhere.
I don't understand what
this supposed inability is. Congress just spent more time and moved
a larger revision of the US patent law than anytime this
generation.
The flux in the doctrine in eligible subject matter and nonobviousness is a step in the right direction.
Flux in doctrine is a
step in the right direction? Wouldn't that mean that the right
direction is back and forth? Or do you mean that current doctrine is
bad, so that even back and forth is a better direction than forth?
Those sued by patent holders have greater likelihood of success to invalidate software patents under Sections 101 and 103.
That's a conclusion for
which no evidence has been presented. At most you have shown, on the
basis of one rather weak survey produced in an unrefereed context by
an interested party, that judgments finding obviousness have
increased. Even if the data are persuasive, and in addition to being
persuasive are correct, and in addition to correct are also
representative of the situation overall, they still don't support
your conclusion. The results noted could have been in declaratory
actions brought by those who have not been sued. They could have
resulted from the fact that defendants have less chance of
prevailing, are licensing and paying royalties more often, and only
were the case against the patent is strong are they willing to
proceed to trial. And so on.
Perhaps one day proprietary holders of software patents will find the patent system and courts not worth their effort and costs.
But the reality, as you
half-mention at one point, is that we are in the early stages of a
patent war rapidly spreading throughout the IT industry, in which the
price of absurdly lousy patents of all sorts has gone up by an order
of magnitude. A major industry participant, to my knowledge, paid
more than a million dollars recently for an expired patent. An
attempt to describe what's going on without actually even more than
barely mentioning what's going on does not seem very promising to
me.
Or change may come from the market. The patent wars have already shown the inefficiencies with the software patent system, and with free software offering an alternative for users and other stakeholders, perhaps that would sound the death knell.
That makes no sense to
me. The force explosively driving up the price of IT patents is
the market. Capitalism is doing what it always does: trying to
destroy the free market in favor of monopoly. Dominant firms
(Microsoft and Apple) who can only benefit from the prohibition of
innovation are spending billions of dollars to buy up dubious
government-issued monopoly rights to exclude innovators. Monopolists
in adjacent business segments, with different "business models"
exploiting different bottlenecks, are attempting disruptive
innovation elsewhere in order to expand their area of dominance,
sometimes in alliance with the free world, which—being
non-capitalist—actually believes in the free market. The
anti-innovation monopolists have always regarded the free world as an
existential threat to them, which indeed we are. They therefore
attach great importance to the patent system, because state
prohibition of innovation is the only force that can even
substantially slow down our efforts to eliminate them. We are now
forcing them to spend billions of dollars on worthless theoretical
rights, and to compete in the destruction of those rights against
other oligopolists who are temporarily on our side. That doesn't
sound at all like the process you are describing, so one of us
probably misunderstands the situation. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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ThomasHouFirstPaper 14 - 23 Nov 2011 - Main.ThomasHou
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< | Revisions and final edits will be finished by 23 November. Your comments or suggestions are welcome! | >
> | Revisions are ready for review. Your comments or suggestions are welcome! | | | Patentability of Software after Bilski and KSR: Looking Back and Looking Forward
-- By ThomasHou - 19 Oct 2011 | |
<
< | Section I: Bilski's Unfinished Effect on Computer Software as Eligible Subject Matter | >
> | Section I: Bilski's Indirect and Unfinished Effect on Computer Software as Eligible Subject Matter | | | For patent law and software aficionados who were expecting the Supreme Court to make a definite pronouncement on the patentability of process patents such as computer software, the Court's decision in Bilski v. Kappos was a letdown. The Court declined to "comment[] on the patentability of any particular invention" and left to the Federal Circuit ("FedCir") to develop doctrine according to the Supreme Court's precedents (including categories of unpatentable subject matter, such as abstract ideas). For software, neither the Supreme Court nor the FedCir? addressed in the Bilski decisions whether mere recitation of a computer could satisfy the "special purpose machine" of the FedCir? 's machine or transformation test, or a computer specifically adapted to the claimed process was necessary. | |
<
< | Nonetheless, decisions from the PTO, BPAI, and district courts are suggesting a more exacting review of software patent applications. Since Bilski, the PTO and BPAI have begun to deny a large number of software-only patent applications, albeit without establishing clear doctrine. A July 2011 study of post-Bilski BPAI and district court cases on patentability found that a majority of software patent applications were invalidated, mostly because they were deemed abstract ideas. On that level, the lower courts and administrative bodies are heeding the Supreme Court's earlier precedents, especially Gottschalk v. Benson, which held that inventions cannot substantially preempt the use of an abstract idea. The PTO and BPAI have not definitely commented on the contours of the "special purpose machine" definition from In re Bilski. Most notably, the FedCir? has not had an opportunity to rule on the eligible subject matter for pure software, which explains why the doctrine remains unsettled. | >
> | Nonetheless, decisions from the PTO, BPAI, and district courts are suggesting a more exacting review of software patent applications. Since Bilski, the PTO and BPAI have begun to deny a large number of software-only patent applications, albeit without establishing clear doctrine. A July 2011 study of post-Bilski BPAI and district court cases on patentability found that a majority of software patent applications were invalidated, mostly because they were deemed abstract ideas. On that level, the lower courts and administrative bodies are heeding the Supreme Court's earlier precedents, especially Gottschalk v. Benson, which held that inventions cannot substantially preempt the use of an abstract idea. The PTO and BPAI have not definitely commented on the "special purpose machine" definition from In re Bilski. The FedCir? has not had an opportunity to rule on the eligible subject matter for pure software, which explains why the doctrine remains unsettled. | | | | |
<
< | In the upcoming years, I anticipate that the PTO, BPAI, and district courts will continue to examine and adjudicate on various software patents, whose filings have not dropped. Although Jonathan Masur points to institutional incentives for the PTO to expand the boundaries eligible subject matter, I find recent developments from the Supreme Court through its many patent cases and Congress through the America Invents Act tempering the PTO's ability. Ultimately, the FedCir? must rule on the patentability of software and define what constitutes "special purpose machine", either from patent applications denied by the PTO or from invalidity arguments raised during one of these patent wars cases. Bilski only started the debate, and without a definite solution, needless litigation and reexaminations will continue. | >
> | In the upcoming years, I anticipate that the PTO, BPAI, and district courts will continue to examine and adjudicate on various software patents, whose filings have not diminished. Although Jonathan Masur points to institutional incentives for the PTO to expand the boundaries of eligible subject matter, I find recent developments from the Supreme Court through its patent cases and Congress through the America Invents Act tempering the PTO's ability. Ultimately, the FedCir? must rule on the patentability of software and define what constitutes "special purpose machine", either from patent applications denied by the PTO or from invalidity arguments raised during one of these patent wars cases. Bilski only started the debate, and without a definite answer, needless litigation and reexaminations will continue. | | | Section II: KSR's Heightened Nonobviousness Test to Bar Trivial Software Patents | |
<
< | Even though Bilski and eligible subject matter are dominating headlines in patent law, they are not the sole area in flux. After all, patentability also requires utility, novelty, and nonobviousness, the latter of which has long been the gatekeeper for patentability and the hardest for patentees to satisfy. The Supreme Court's fairly recent decision in KSR Int'l Co. v. Teleflex Inc. seems to and should be having a similar effect on nonobviousness as Bilski had on eligible subject matter. | >
> | Even though Bilski and eligible subject matter are dominating headlines in patent law, they are not the sole area in flux. After all, patentability also requires utility, novelty, and nonobviousness, the latter of which has long been the gatekeeper and the hardest for patentees to satisfy. The Supreme Court's fairly recent decision in KSR Int'l Co. v. Teleflex Inc. seems to and should be having a similar effect on nonobviousness as Bilski had on eligible subject matter. | | | Several aspects of KSR are similar to Bilski and indicate a similar trickle effect on lower courts and the PTO and BPAI. First, the Court emphasized that its precedents called for a flexible and functional approach and rejected the FedCir? 's rigid, narrow test for obviousness. Second, the Court advised courts to look broadly at various factors, such as "interrelated teachings of multiple patents; the effects of demands . . . in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art." Third, the Court recognized that market demand will often drive design trends, especially in the informational economy: "When there is a design need or market pressure to solve a problem . . . a person of ordinary skill has good reason to pursue known options within his or her technical grasp." This insight may be particularly pertinent to software. Finally, the Court left many questions unanswered and implicitly instructed the lower courts, including the FedCir? , to develop nonobviousness doctrine. | |
<
< | An empirical study has found that the FedCir? and district courts have started to invalidate more patents for obviousness because of KSR. For software, the obvious-nonobvious percentage is somewhat close to 50-50, which a 2010 WilmerHale study of FedCir? decisions since KSR found. Going forward, I see the FedCir? and district courts continuing to grapple with nonobviousness doctrine, including for software patents. KSR has elevated the threshold and more software, even if they are deemed statutory subject matter, may be subject to a finding of obviousness. However, I don't see the Supreme Court or FedCir? deciding this area en banc anytime soon. Most of the action will be at the district court or PTO/BPAI level, which may lead to divergences in what is already a fact-intensive area. | >
> | Contrary to popular belief that KSR had meager effect on nonbviousness outcomes, an empirical study has found that the FedCir? and district courts have started to invalidate more patents for obviousness because of KSR. For software, the obvious-nonobvious percentage is somewhat close to 50-50, which a 2010 WilmerHale study of FedCir? decisions since KSR found. Going forward, I see the FedCir? and district courts continuing to grapple with nonobviousness doctrine, including for software patents. KSR has elevated the threshold and more software, even if they are deemed statutory subject matter, may be subject to a finding of obviousness. However, I don't see the Supreme Court or FedCir? en banc deciding this area anytime soon. Most of the action will be at the district court or PTO/BPAI level, which may lead to divergences in what is already a fact-intensive area. | | | Section III: What This Means for Software, Software Users | |
<
< | Many people, including free software advocates, have long decried software patents as hindrances to innovation and sharing. The recent populist efforts to petition the Obama administration to end software patents show they are not alone. However, given Congress's inability to grapple with this issue (or any other matter), change must come from elsewhere. The flux in the doctrine in eligible subject matter and nonobviousness is a step in the right direction. Those sued by patent holders have greater likelihood of success to invalidate software patents under Sections 101 and 103. Perhaps one day proprietary software holders of patents will find the patent system and courts not worth their effort and costs. Or change may come from the market. The patent wars have already shown the inefficiencies with the software patent system, and with free software offering an alternative for users and other stakeholders, perhaps that would sound the death knell. | >
> | Many people, including free software advocates, have long decried software patents as hindrances to innovation and sharing. The recent populist efforts to petition the Obama administration to end software patents show they are not alone. However, given Congress's inability to grapple with this issue (or any other matter), change must come from elsewhere. The flux in the doctrine in eligible subject matter and nonobviousness is a step in the right direction. Those sued by patent holders have greater likelihood of success to invalidate software patents under Sections 101 and 103. Perhaps one day proprietary holders of software patents will find the patent system and courts not worth their effort and costs. Or change may come from the market. The patent wars have already shown the inefficiencies with the software patent system, and with free software offering an alternative for users and other stakeholders, perhaps that would sound the death knell. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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ThomasHouFirstPaper 13 - 22 Nov 2011 - Main.ThomasHou
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< | Revisions are ongoing and should be finished by 21 November. Your comments or suggestions are welcome! | >
> | Revisions and final edits will be finished by 23 November. Your comments or suggestions are welcome! | | | Patentability of Software after Bilski and KSR: Looking Back and Looking Forward
-- By ThomasHou - 19 Oct 2011 | |
<
< | Section I: Bilski's Indirect Effect on Computer Software as Eligible Subject Matter | >
> | Section I: Bilski's Unfinished Effect on Computer Software as Eligible Subject Matter | | | For patent law and software aficionados who were expecting the Supreme Court to make a definite pronouncement on the patentability of process patents such as computer software, the Court's decision in Bilski v. Kappos was a letdown. The Court declined to "comment[] on the patentability of any particular invention" and left to the Federal Circuit ("FedCir") to develop doctrine according to the Supreme Court's precedents (including categories of unpatentable subject matter, such as abstract ideas). For software, neither the Supreme Court nor the FedCir? addressed in the Bilski decisions whether mere recitation of a computer could satisfy the "special purpose machine" of the FedCir? 's machine or transformation test, or a computer specifically adapted to the claimed process was necessary.
Nonetheless, decisions from the PTO, BPAI, and district courts are suggesting a more exacting review of software patent applications. Since Bilski, the PTO and BPAI have begun to deny a large number of software-only patent applications, albeit without establishing clear doctrine. A July 2011 study of post-Bilski BPAI and district court cases on patentability found that a majority of software patent applications were invalidated, mostly because they were deemed abstract ideas. On that level, the lower courts and administrative bodies are heeding the Supreme Court's earlier precedents, especially Gottschalk v. Benson, which held that inventions cannot substantially preempt the use of an abstract idea. The PTO and BPAI have not definitely commented on the contours of the "special purpose machine" definition from In re Bilski. Most notably, the FedCir? has not had an opportunity to rule on the eligible subject matter for pure software, which explains why the doctrine remains unsettled. | |
<
< | In the upcoming years, I anticipate that the PTO and BPAI will continue to examine and adjudicate on various software patent applications, the number of which have not dropped. Although Jonathan Masur points to institutional incentives for the PTO to expand the boundaries eligible subject matter, I find recent developments from the Supreme Court through its many patent cases and Congress through the America Invents Act tempering the PTO's ability. Ultimately, the FedCir? must rule on the patentability of software and define what constitutes "special purpose machine", either from patent applications denied by the PTO or from invalidity arguments raised during one of these patent wars cases. Bilski only started the debate, and without a definite solution, needless litigation and reexaminations will ensue. | >
> | In the upcoming years, I anticipate that the PTO, BPAI, and district courts will continue to examine and adjudicate on various software patents, whose filings have not dropped. Although Jonathan Masur points to institutional incentives for the PTO to expand the boundaries eligible subject matter, I find recent developments from the Supreme Court through its many patent cases and Congress through the America Invents Act tempering the PTO's ability. Ultimately, the FedCir? must rule on the patentability of software and define what constitutes "special purpose machine", either from patent applications denied by the PTO or from invalidity arguments raised during one of these patent wars cases. Bilski only started the debate, and without a definite solution, needless litigation and reexaminations will continue. | | | Section II: KSR's Heightened Nonobviousness Test to Bar Trivial Software Patents | |
<
< | Even though Bilski and eligible subject matter are dominating headlines in the patent law world, they are not the sole area in flux. After all, patentability also requires utility, novelty, and nonobviousness, the latter of which has long been the gatekeeper for patentability and the hardest for patentees to satisfy. The Supreme Court's fairly recent decision in KSR Int'l Co. v. Teleflex Inc. is having a similar effect as Bilski on determining the nonobviousness of patents, including computer software. | >
> | Even though Bilski and eligible subject matter are dominating headlines in patent law, they are not the sole area in flux. After all, patentability also requires utility, novelty, and nonobviousness, the latter of which has long been the gatekeeper for patentability and the hardest for patentees to satisfy. The Supreme Court's fairly recent decision in KSR Int'l Co. v. Teleflex Inc. seems to and should be having a similar effect on nonobviousness as Bilski had on eligible subject matter. | | | | |
<
< | Several aspects of KSR are similar to Bilski and point to similar trickle effects on lower courts and the PTO and BPAI. First, the Court emphasized that its precedents called for a flexible and functional approach and rejected the FedCir? 's rigid, narrow test for obviousness. Second, the Court advised courts to look broadly at various factors, such as "interrelated teachings of multiple patents; the effects of demands . . . in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art." Third, the Court recognized that market demand will often drive design trends, especially in the informational economy: "When there is a design need or market pressure to solve a problem . . . a person of ordinary skill has good reason to pursue known options within his or her technical grasp." This insight may be particularly pertinent to computer software. Finally, the Court reemphasized looking at its precedents on nonobviousness and by applying them to the facts of the case, instructed lower courts to do the same. | >
> | Several aspects of KSR are similar to Bilski and indicate a similar trickle effect on lower courts and the PTO and BPAI. First, the Court emphasized that its precedents called for a flexible and functional approach and rejected the FedCir? 's rigid, narrow test for obviousness. Second, the Court advised courts to look broadly at various factors, such as "interrelated teachings of multiple patents; the effects of demands . . . in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art." Third, the Court recognized that market demand will often drive design trends, especially in the informational economy: "When there is a design need or market pressure to solve a problem . . . a person of ordinary skill has good reason to pursue known options within his or her technical grasp." This insight may be particularly pertinent to software. Finally, the Court left many questions unanswered and implicitly instructed the lower courts, including the FedCir? , to develop nonobviousness doctrine. | | | | |
<
< | An empirical study has found the FedCir? has invalidated more patents for obviousness because of KSR. Having a high threshold is important for assessing the patentability of software, for nonobviousness limits the granting of exclusive rights to software whose inventiveness is trivial and which would have been obvious to the ordinary-skilled software inventor (whose skill would be quite high today). The field of software is broad and its prior art reaches beyond computer programs to that of the electrical arts and other fields. To encourage free software, the Federal Circuit and PTO should not relax the high threshold for nonobviousness. Furthermore, the Federal Circuit has traditionally relied on secondary considerations such as commercial success, long-felt but unsolved need, and failure of others when nonobviousness is at a balance. With software creation increasingly having a marginal cost of zero, the importance of those secondary considerations should be reconsidered. After all, their use is optional and depends on the context. The Federal Circuit should be wary of using secondary considerations to uphold the nonobviousness of software when the main Graham analysis is close. | >
> | An empirical study has found that the FedCir? and district courts have started to invalidate more patents for obviousness because of KSR. For software, the obvious-nonobvious percentage is somewhat close to 50-50, which a 2010 WilmerHale study of FedCir? decisions since KSR found. Going forward, I see the FedCir? and district courts continuing to grapple with nonobviousness doctrine, including for software patents. KSR has elevated the threshold and more software, even if they are deemed statutory subject matter, may be subject to a finding of obviousness. However, I don't see the Supreme Court or FedCir? deciding this area en banc anytime soon. Most of the action will be at the district court or PTO/BPAI level, which may lead to divergences in what is already a fact-intensive area. | | | | |
<
< | But I still don't know, after two full readings of the essay, what
it is about. Case summaries don't teach me anything, and what
little here isn't a glorified West headnote is passing
editorialization, with no discipline or data specified. What we most
need here is a thesis, after which it should be possible to figure out
how to use the remainder of the essay to explicate it, respond to
its critics, and indicate its implications. | >
> | Section III: What This Means for Software, Software Users
Many people, including free software advocates, have long decried software patents as hindrances to innovation and sharing. The recent populist efforts to petition the Obama administration to end software patents show they are not alone. However, given Congress's inability to grapple with this issue (or any other matter), change must come from elsewhere. The flux in the doctrine in eligible subject matter and nonobviousness is a step in the right direction. Those sued by patent holders have greater likelihood of success to invalidate software patents under Sections 101 and 103. Perhaps one day proprietary software holders of patents will find the patent system and courts not worth their effort and costs. Or change may come from the market. The patent wars have already shown the inefficiencies with the software patent system, and with free software offering an alternative for users and other stakeholders, perhaps that would sound the death knell. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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ThomasHouFirstPaper 12 - 22 Nov 2011 - Main.ThomasHou
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Revisions are ongoing and should be finished by 21 November. Your comments or suggestions are welcome! | | | Section I: Bilski's Indirect Effect on Computer Software as Eligible Subject Matter | |
<
< | For patent law and software aficionados who were expecting the Supreme Court to make a definite pronouncement on the patentability of process patents such as computer software, the Court's decision in Bilski v. Kappos was a letdown. The Court declined to "comment[] on the patentability of any particular invention" and left to the Federal Circuit ("FedCir") to develop doctrine on the patentability of process patents according to the Supreme Court's precedents (including unpatentable subject matter, such as abstract ideas). For computer software, neither the Supreme Court nor the FedCir? addressed whether recitation of a general computer could satisfy the "special purpose machine" of the FedCir? 's machine or transformation test, or a machine specifically adapted to the claimed process was necessary. | >
> | For patent law and software aficionados who were expecting the Supreme Court to make a definite pronouncement on the patentability of process patents such as computer software, the Court's decision in Bilski v. Kappos was a letdown. The Court declined to "comment[] on the patentability of any particular invention" and left to the Federal Circuit ("FedCir") to develop doctrine according to the Supreme Court's precedents (including categories of unpatentable subject matter, such as abstract ideas). For software, neither the Supreme Court nor the FedCir? addressed in the Bilski decisions whether mere recitation of a computer could satisfy the "special purpose machine" of the FedCir? 's machine or transformation test, or a computer specifically adapted to the claimed process was necessary. | | | | |
<
< | Nonetheless, decisions from the PTO, BPAI, and district courts are suggesting a more exacting review of software patent applications. Since Bilski, the PTO and BPAI have begun to deny a large number of software-only patent applications, albeit without establishing clear doctrine. A July 2011 study of post-Bilski BPAI and district court cases on patentability found that a majority of software patent applications were invalidated, mostly because they were deemed abstract ideas. On that level, the lower courts and administrative bodies are heeding the Supreme Court's earlier precedents, especially _ Gottschalk v. Benson_, which held that patentable inventions cannot substantially preempt the use of an abstract idea. The PTO and BPAI have not definitely commented on the contours of the "special purpose machine" definition from In re Bilski. Most notably, the FedCir? has not had an opportunity to rule on the limits of patentability for pure software, which explains why the doctrine remains unsettled in this area. | >
> | Nonetheless, decisions from the PTO, BPAI, and district courts are suggesting a more exacting review of software patent applications. Since Bilski, the PTO and BPAI have begun to deny a large number of software-only patent applications, albeit without establishing clear doctrine. A July 2011 study of post-Bilski BPAI and district court cases on patentability found that a majority of software patent applications were invalidated, mostly because they were deemed abstract ideas. On that level, the lower courts and administrative bodies are heeding the Supreme Court's earlier precedents, especially Gottschalk v. Benson, which held that inventions cannot substantially preempt the use of an abstract idea. The PTO and BPAI have not definitely commented on the contours of the "special purpose machine" definition from In re Bilski. Most notably, the FedCir? has not had an opportunity to rule on the eligible subject matter for pure software, which explains why the doctrine remains unsettled. | | | | |
<
< | In the upcoming years, I anticipate that the PTO and BPAI will continue to examine and adjudicate on various software patent applications, whose filings have not dropped. Although Jonathan Masur points to institutional incentives for the PTO to expand eligible subject matter, I find recent developments from the Supreme Court, FedCir? , and in fact Congress, tempering the PTO's ability. Ultimately, the FedCir? must rule on the patentability of software and define what constitutes "special purpose machine", either from patent applications denied from the PTO or invalidity arguments raised during one of these patent wars cases. Without settled doctrine from the FedCir? , much of the law will be in flux. | >
> | In the upcoming years, I anticipate that the PTO and BPAI will continue to examine and adjudicate on various software patent applications, the number of which have not dropped. Although Jonathan Masur points to institutional incentives for the PTO to expand the boundaries eligible subject matter, I find recent developments from the Supreme Court through its many patent cases and Congress through the America Invents Act tempering the PTO's ability. Ultimately, the FedCir? must rule on the patentability of software and define what constitutes "special purpose machine", either from patent applications denied by the PTO or from invalidity arguments raised during one of these patent wars cases. Bilski only started the debate, and without a definite solution, needless litigation and reexaminations will ensue. | | | Section II: KSR's Heightened Nonobviousness Test to Bar Trivial Software Patents |
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ThomasHouFirstPaper 11 - 19 Nov 2011 - Main.ThomasHou
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< | Revisions are ongoing and should be finished by 19 November. Your comments or suggestions are welcome! | >
> | Revisions are ongoing and should be finished by 21 November. Your comments or suggestions are welcome! | | | | |
<
< | Patentability of Software after Bilski, KSR, and the America Invents Act: Looking Back and Looking Forward | >
> | Patentability of Software after Bilski and KSR: Looking Back and Looking Forward | | | -- By ThomasHou - 19 Oct 2011
Section I: Bilski's Indirect Effect on Computer Software as Eligible Subject Matter | |
<
< | For patent law aficionados who were expecting the Supreme Court to make a definite pronouncement on the patentability of process patents such as computer software, the Court's decision in Bilski v. Kappos was a letdown. The Court declined to "comment[] on the
patentability of any particular invention" and left to the Federal Circuit ("FedCir") to develop doctrine on the patentability of process patents according to the Supreme Court's precedents (including unpatentable subject matter, such as abstract ideas). For computer software, the Supreme Court and the FedCir? both failed to address whether a general purpose computer could satisfy the machine prong of the FedCir? 's machine or transformation test, or a machine specifically adapted to the claimed process was necessary. | >
> | For patent law and software aficionados who were expecting the Supreme Court to make a definite pronouncement on the patentability of process patents such as computer software, the Court's decision in Bilski v. Kappos was a letdown. The Court declined to "comment[] on the patentability of any particular invention" and left to the Federal Circuit ("FedCir") to develop doctrine on the patentability of process patents according to the Supreme Court's precedents (including unpatentable subject matter, such as abstract ideas). For computer software, neither the Supreme Court nor the FedCir? addressed whether recitation of a general computer could satisfy the "special purpose machine" of the FedCir? 's machine or transformation test, or a machine specifically adapted to the claimed process was necessary. | | | | |
<
< | Since Bilski, the PTO and BPAI have in fact begun to deny a large number of software-only patent applicationS, albeit without establishing clear doctrine. A July 2011 study of post-Bilski BPAI and district court cases on patentability found that a majority of software patent applications were invalidated, mostly because they were deemed abstract ideas. It is yet unclear the PTO and the BPAI's position whether a general purpose or a specially adapted machine is required. Most notably, the FedCir? has not had an opportunity to rule on the limits of patentability for pure software, which explains why the doctrine remains unsettled in this area. Nonetheless, a clear trend is observable that the Supreme Court's Bilski decision had trickle down effects on how lower courts assess patentability of computer software claims. | >
> | Nonetheless, decisions from the PTO, BPAI, and district courts are suggesting a more exacting review of software patent applications. Since Bilski, the PTO and BPAI have begun to deny a large number of software-only patent applications, albeit without establishing clear doctrine. A July 2011 study of post-Bilski BPAI and district court cases on patentability found that a majority of software patent applications were invalidated, mostly because they were deemed abstract ideas. On that level, the lower courts and administrative bodies are heeding the Supreme Court's earlier precedents, especially _ Gottschalk v. Benson_, which held that patentable inventions cannot substantially preempt the use of an abstract idea. The PTO and BPAI have not definitely commented on the contours of the "special purpose machine" definition from In re Bilski. Most notably, the FedCir? has not had an opportunity to rule on the limits of patentability for pure software, which explains why the doctrine remains unsettled in this area. | | | | |
<
< | Or, to put it another
way, that would be following the position of the Federal Circuit
itself, in the portion of its decision in Bilski to which the
Supreme Court's subsequent decision is not
incongenial. | >
> | In the upcoming years, I anticipate that the PTO and BPAI will continue to examine and adjudicate on various software patent applications, whose filings have not dropped. Although Jonathan Masur points to institutional incentives for the PTO to expand eligible subject matter, I find recent developments from the Supreme Court, FedCir? , and in fact Congress, tempering the PTO's ability. Ultimately, the FedCir? must rule on the patentability of software and define what constitutes "special purpose machine", either from patent applications denied from the PTO or invalidity arguments raised during one of these patent wars cases. Without settled doctrine from the FedCir? , much of the law will be in flux. | | | | |
<
< | However, the PTO has endorsed the general purpose computer option and with few contrary indications from the Federal Circuit, meager disagreement exists about the subject matter eligibility of computer software, at least in the courts. | >
> | Section II: KSR's Heightened Nonobviousness Test to Bar Trivial Software Patents | | | | |
<
< | I don't think that
summarizes the position of the PTO or the BPAI correctly at all. I
see lots of rejections that suggest a different reading of the
"machine or transformation test" and doubt about whether "the
Internet" is a machine either. So if your position here results from
your own assessment of evidence, it would be good to read more about
what you looked at and how you reached your
conclusion. | >
> | Even though Bilski and eligible subject matter are dominating headlines in the patent law world, they are not the sole area in flux. After all, patentability also requires utility, novelty, and nonobviousness, the latter of which has long been the gatekeeper for patentability and the hardest for patentees to satisfy. The Supreme Court's fairly recent decision in KSR Int'l Co. v. Teleflex Inc. is having a similar effect as Bilski on determining the nonobviousness of patents, including computer software. | | | | |
<
< | Section II: The Continued Viability of Nonobviousness to Bar Trivial Computer Software Patents | >
> | Several aspects of KSR are similar to Bilski and point to similar trickle effects on lower courts and the PTO and BPAI. First, the Court emphasized that its precedents called for a flexible and functional approach and rejected the FedCir? 's rigid, narrow test for obviousness. Second, the Court advised courts to look broadly at various factors, such as "interrelated teachings of multiple patents; the effects of demands . . . in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art." Third, the Court recognized that market demand will often drive design trends, especially in the informational economy: "When there is a design need or market pressure to solve a problem . . . a person of ordinary skill has good reason to pursue known options within his or her technical grasp." This insight may be particularly pertinent to computer software. Finally, the Court reemphasized looking at its precedents on nonobviousness and by applying them to the facts of the case, instructed lower courts to do the same. | | | | |
<
< | Before software patentees get too excited, they should remember the Supreme Court's counsel that eligible subject matter is a mere floor and claimed inventions must also be "novel, nonobvious, and fully and particularly described. These limitations serve a critical role . . . ." The nonobviousness requirement under Section 103 of the Patent Act has long been the gateway for patentability and the hardest for patentees to satisfy. The Supreme Court laid out the standard test in its Graham v. John Deere Co. decision. In the early case of Dann v. Johnston, the Court applied the Graham factors and held a computer software program to help bank customers invalid for obviousness. The Court's most recent case on nonobviousness is illustrative and useful for testing this requirement against claimed computer software.
In KSR Int'l Co. v. Teleflex Inc., the Supreme Court considered the nonobviousness of a patent for an adjustable electronic pedal with a fixed pivot point used for vehicle control. The Court emphasized that its precedent called for a flexible and functional approach and rejected the Federal Circuit's exclusive reliance on its teaching, suggestion or motivation test. For patents claiming combinations of prior art elements, courts should be cautious and look at "interrelated teachings of multiple patents; the effects of demands . . . in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art." The Court recognized that market demand will often drive design trends: "When there is a design need or market pressure to solve a problem . . . a person of ordinary skill has good reason to pursue known options within his or her technical grasp." The Court held the patent at issue obvious and cautioned courts not to stifle the progress of the useful arts by applying rigid and narrow tests for obviousness.
Through KSR, the Supreme Court maintained the traditional threshold Graham factors test for nonobviousness for the Federal Circuit to follow. Having a high threshold is important for assessing the patentability of software, for nonobviousness limits the granting of exclusive rights to software whose inventiveness is trivial and which would have been obvious to the ordinary-skilled software inventor (whose skill would be quite high today). The field of software is broad and its prior art reaches beyond computer programs to that of the electrical arts and other fields. In Muniauction, Inc. v. Thomson Corp., the Federal Circuit considered the nonobviousness of a software system for auctioning and bidding for municipal bonds using a web browser. Finding little difference between the systems in the prior art and the use of a web browser well-known, the Federal Circuit invalidated the patent. To encourage free software, the Federal Circuit and PTO should not relax the high threshold for nonobviousness. Furthermore, the Federal Circuit has traditionally relied on secondary considerations such as commercial success, long-felt but unsolved need, and failure of others when nonobviousness is at a balance. With software creation increasingly having a marginal cost of zero, the importance of those secondary considerations should be reconsidered. After all, their use is optional and depends on the context. The Federal Circuit should be wary of using secondary considerations to uphold the nonobviousness of software when the main Graham analysis is close.
You begin by talking about scope, or section 101 if you want to be statutory about it, and then move without any transition to obviousness under section 103. That these involve entirely different procedural environments for challengers passes without discussion, which it shouldn't.
Nothing here discusses the real importance of Bilski, which is not its effect on new patent applications, but the light it sheds on the validity vel non of tens of thousands of high-abstractness patents created in a more lenient period, when the state-granted monopoly was available to anyone corrupt enough to apply for it. Even after the Supreme Court dithered its way to the conclusion that there may be patents on software and business method claims that are valid even though there is no special-purpose machine or transformation of matter, the litigation prospects of patents that evidently don't contain any such graces, like the ones that are purely patents on mathematical operations, are lousy. Yet patents of that type are currently being brandished by all sorts of fools trying to extort all sorts of parties (including even some free software developers), and are being sold as weapons at pretty high prices. If you're really trying to figure out the significance of Bilski, that's where you'd want to look. | >
> | An empirical study has found the FedCir? has invalidated more patents for obviousness because of KSR. Having a high threshold is important for assessing the patentability of software, for nonobviousness limits the granting of exclusive rights to software whose inventiveness is trivial and which would have been obvious to the ordinary-skilled software inventor (whose skill would be quite high today). The field of software is broad and its prior art reaches beyond computer programs to that of the electrical arts and other fields. To encourage free software, the Federal Circuit and PTO should not relax the high threshold for nonobviousness. Furthermore, the Federal Circuit has traditionally relied on secondary considerations such as commercial success, long-felt but unsolved need, and failure of others when nonobviousness is at a balance. With software creation increasingly having a marginal cost of zero, the importance of those secondary considerations should be reconsidered. After all, their use is optional and depends on the context. The Federal Circuit should be wary of using secondary considerations to uphold the nonobviousness of software when the main Graham analysis is close. | | | But I still don't know, after two full readings of the essay, what
it is about. Case summaries don't teach me anything, and what | | | how to use the remainder of the essay to explicate it, respond to
its critics, and indicate its implications. | |
<
< |
Section III: How the America Invents Act Ducks the Questions Regarding Computer Software Patents | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line: |
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ThomasHouFirstPaper 9 - 17 Nov 2011 - Main.ThomasHou
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> | Revisions are ongoing and should be finished by 19 November. Your comments or suggestions are welcome! | | | | |
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< | Patentability of Software after Bilski: How the Federal Circuit Will and Should Refine Patentable Subject Matter and Nonobviousness Doctrine to Encourage Free Software | >
> | Patentability of Software after Bilski, KSR, and the America Invents Act: Looking Back and Looking Forward | | | -- By ThomasHou - 19 Oct 2011 | |
<
< | Section I: Bilski's Minimal Effect on Computer Software as Eligible Subject Matter | >
> | Section I: Bilski's Indirect Effect on Computer Software as Eligible Subject Matter | | | | |
<
< | The Supreme Court's decision in
Bilski v. Kappos was anticipated to remake the groundwork for patentable
subject matter, including that of computer software. The Court had to
decide whether a method of hedging risk in commodities trading
constituted a "process" under Section 101 of the Patent Act, which the
Federal Circuit answered no according to its machine-or-transformation
test. The Court affirmed but criticized the Federal Circuit for
relying exclusively on the machine-or-transformation test, and also
held that business methods were not per se unpatentable. The Court
relied on its earlier precedents on process patents to hold that the
claimed invention was an unpatentable abstract idea. For computer
software, the Supreme Court declined to "comment[] on the
patentability of any particular invention" and left to the Federal
Circuit to develop doctrine on the patentability of process patents.
Except for the section
title, one gains no idea from the introduction to your essay what the
idea of the essay is. That's a waste of one of the two most
important places in the essay. The first paragraphs are where you
catch the reader's attention and provide an idea that makes the
reader want to keep going. We need to know what you have to offer,
and if what you have is summaries of cases we've read, that won't
hold our attention worth a damn.
The Federal Circuit has recognized the patentability of computer software ever since its en banc decision in In Re Alappat.
"Ever since" calls for a
date. Making someone read the case to find out you're talking about
1994 is a bad idea.
Recent developments in its doctrine and that of the Supreme Court have hardly thrown that into doubt.
Really? That's why the
Supreme Court keep reserving the question in one decision after
another and the PTO has started denying large-numbers of
software-only applications? I'm not so sure. Maybe you should have
stated the ground for this conclusion.
In its most recent decision on this matter, Cybersource Corp. v. Retail Decisions, Inc.,
"Most recent" will
become wrong immediately. At least one important case has come down
since. If you really need to write about cases, which I'm not sure
you do because I still don't know what your idea in this essay is,
how about "In a recent decision, ..."
the Federal Circuit considered the patentability of a method for detecting credit card fraud by using information from Internet addresses and a computer readable medium containing instructions for executing that method. The Federal Circuit held the method was an unpatentable mental process that a human mind could perform and the usage of computers to gather the data did not save the claim from unpatentability. For the medium, the Federal Circuit emphasized that it must look at the underlying invention and recitation of a computer without the computer placing a significant limit on the scope of the claim does not save it from unpatentability.
Still no idea of yours,
just case summaries....
Going forward, the Federal Circuit will continue to uphold computer software as eligible subject matter under its machine-or-transformation test. Having taken a beating in Bilski and other recent Supreme Court decisions, the Federal Circuit will likely be flexible in its approach and look at the software claims holistically.
Meaning what? Is this your thesis: "The result of Bilski is holism?" If that's the thesis, you should design the word.
Most software are sufficiently tied to a machine to satisfy the machine-or-transformation test.
"Software" is singular.
Whether this sentence is true depends on whether the "special purpose
machine" of Bilski means "a general purpose machine with no special
purpose." In that case, your statement might be correct. But that
would be a peculiar interpretation, don't you think?
| >
> | For patent law aficionados who were expecting the Supreme Court to make a definite pronouncement on the patentability of process patents such as computer software, the Court's decision in Bilski v. Kappos was a letdown. The Court declined to "comment[] on the
patentability of any particular invention" and left to the Federal Circuit ("FedCir") to develop doctrine on the patentability of process patents according to the Supreme Court's precedents (including unpatentable subject matter, such as abstract ideas). For computer software, the Supreme Court and the FedCir? both failed to address whether a general purpose computer could satisfy the machine prong of the FedCir? 's machine or transformation test, or a machine specifically adapted to the claimed process was necessary. | | | | |
<
< | Nonetheless, one aspect that the Bilski decisions did not clarify was whether a general purpose computer could satisfy the machine prong, or a computer specifically adapted to the claimed process is required. As Jonathan Masur points out, this question can important in limiting the grant of computer software patents. | >
> | Since Bilski, the PTO and BPAI have in fact begun to deny a large number of software-only patent applicationS, albeit without establishing clear doctrine. A July 2011 study of post-Bilski BPAI and district court cases on patentability found that a majority of software patent applications were invalidated, mostly because they were deemed abstract ideas. It is yet unclear the PTO and the BPAI's position whether a general purpose or a specially adapted machine is required. Most notably, the FedCir? has not had an opportunity to rule on the limits of patentability for pure software, which explains why the doctrine remains unsettled in this area. Nonetheless, a clear trend is observable that the Supreme Court's Bilski decision had trickle down effects on how lower courts assess patentability of computer software claims. | | | Or, to put it another
way, that would be following the position of the Federal Circuit | | | Supreme Court's subsequent decision is not
incongenial. | |
<
< | To encourage more free software, the Federal Circuit should rule for the latter.
Nonsense. Free software has less at stake in the massive foolishness that is patenting of software than proprietary software has. Our production processes don't depend on revenue-bearing operations that can be held up for royalties, so we are in general not worth suing. Our processes are also inherently international and non-hierarchical, so we are resistant to the very limited forms of available injunction. Downstream from our producers there are commercial redistributors and large enterprise users who are subject to disruption, but that's true of the users whether they are using free or proprietary software, and the redistributors have interests aligned with but severable from our own.
Free software makers—and I on their behalf—were early and vigorous opponents of patenting software, because we are vigilant about freedom, but as the present patent wars are showing, we are hardly the primary victims of the system's madness.
| | | However, the PTO has endorsed the general purpose computer option and with few contrary indications from the Federal Circuit, meager disagreement exists about the subject matter eligibility of computer software, at least in the courts.
I don't think that | | | | |
>
> | Section III: How the America Invents Act Ducks the Questions Regarding Computer Software Patents | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line: |
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ThomasHouFirstPaper 8 - 07 Nov 2011 - Main.EbenMoglen
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< | One layer of changes just to correct unreadable markup. Citations are now set correctly.
| | | Patentability of Software after Bilski: How the Federal Circuit Will and Should Refine Patentable Subject Matter and Nonobviousness Doctrine to Encourage Free Software | | | patentability of any particular invention" and left to the Federal
Circuit to develop doctrine on the patentability of process patents. | |
<
< | The Federal Circuit has recognized the patentability of computer software ever since its en banc decision in In Re Alappat. Recent developments in its doctrine and that of the Supreme Court have hardly thrown that into doubt. In its most recent decision on this matter, Cybersource Corp. v. Retail Decisions, Inc., the Federal Circuit considered the patentability of a method for detecting credit card fraud by using information from Internet addresses and a computer readable medium containing instructions for executing that method. The Federal Circuit held the method was an unpatentable mental process that a human mind could perform and the usage of computers to gather the data did not save the claim from unpatentability. For the medium, the Federal Circuit emphasized that it must look at the underlying invention and recitation of a computer without the computer placing a significant limit on the scope of the claim does not save it from unpatentability. | >
> | Except for the section
title, one gains no idea from the introduction to your essay what the
idea of the essay is. That's a waste of one of the two most
important places in the essay. The first paragraphs are where you
catch the reader's attention and provide an idea that makes the
reader want to keep going. We need to know what you have to offer,
and if what you have is summaries of cases we've read, that won't
hold our attention worth a damn.
The Federal Circuit has recognized the patentability of computer software ever since its en banc decision in In Re Alappat.
"Ever since" calls for a
date. Making someone read the case to find out you're talking about
1994 is a bad idea.
Recent developments in its doctrine and that of the Supreme Court have hardly thrown that into doubt.
Really? That's why the
Supreme Court keep reserving the question in one decision after
another and the PTO has started denying large-numbers of
software-only applications? I'm not so sure. Maybe you should have
stated the ground for this conclusion.
In its most recent decision on this matter, Cybersource Corp. v. Retail Decisions, Inc.,
"Most recent" will
become wrong immediately. At least one important case has come down
since. If you really need to write about cases, which I'm not sure
you do because I still don't know what your idea in this essay is,
how about "In a recent decision, ..." | | | | |
<
< | Going forward, the Federal Circuit will continue to uphold computer software as eligible subject matter under its machine-or-transformation test. Having taken a beating in Bilski and other recent Supreme Court decisions, the Federal Circuit will likely be flexible in its approach and look at the software claims holistically. Most software are sufficiently tied to a machine to satisfy the machine-or-transformation test. Nonetheless, one aspect that the Bilski decisions did not clarify was whether a general purpose computer could satisfy the machine prong, or a computer specifically adapted to the claimed process is required. As Jonathan Masur points out, this question can important in limiting the grant of computer software patents. To encourage more free software, the Federal Circuit should rule for the latter. However, the PTO has endorsed the general purpose computer option and with few contrary indications from the Federal Circuit, meager disagreement exists about the subject matter eligibility of computer software, at least in the courts. | >
> | the Federal Circuit considered the patentability of a method for detecting credit card fraud by using information from Internet addresses and a computer readable medium containing instructions for executing that method. The Federal Circuit held the method was an unpatentable mental process that a human mind could perform and the usage of computers to gather the data did not save the claim from unpatentability. For the medium, the Federal Circuit emphasized that it must look at the underlying invention and recitation of a computer without the computer placing a significant limit on the scope of the claim does not save it from unpatentability.
Still no idea of yours,
just case summaries....
Going forward, the Federal Circuit will continue to uphold computer software as eligible subject matter under its machine-or-transformation test. Having taken a beating in Bilski and other recent Supreme Court decisions, the Federal Circuit will likely be flexible in its approach and look at the software claims holistically.
Meaning what? Is this your thesis: "The result of Bilski is holism?" If that's the thesis, you should design the word.
Most software are sufficiently tied to a machine to satisfy the machine-or-transformation test.
"Software" is singular.
Whether this sentence is true depends on whether the "special purpose
machine" of Bilski means "a general purpose machine with no special
purpose." In that case, your statement might be correct. But that
would be a peculiar interpretation, don't you think?
Nonetheless, one aspect that the Bilski decisions did not clarify was whether a general purpose computer could satisfy the machine prong, or a computer specifically adapted to the claimed process is required. As Jonathan Masur points out, this question can important in limiting the grant of computer software patents.
Or, to put it another
way, that would be following the position of the Federal Circuit
itself, in the portion of its decision in Bilski to which the
Supreme Court's subsequent decision is not
incongenial.
To encourage more free software, the Federal Circuit should rule for the latter.
Nonsense. Free software has less at stake in the massive foolishness that is patenting of software than proprietary software has. Our production processes don't depend on revenue-bearing operations that can be held up for royalties, so we are in general not worth suing. Our processes are also inherently international and non-hierarchical, so we are resistant to the very limited forms of available injunction. Downstream from our producers there are commercial redistributors and large enterprise users who are subject to disruption, but that's true of the users whether they are using free or proprietary software, and the redistributors have interests aligned with but severable from our own.
Free software makers—and I on their behalf—were early and vigorous opponents of patenting software, because we are vigilant about freedom, but as the present patent wars are showing, we are hardly the primary victims of the system's madness.
However, the PTO has endorsed the general purpose computer option and with few contrary indications from the Federal Circuit, meager disagreement exists about the subject matter eligibility of computer software, at least in the courts.
I don't think that
summarizes the position of the PTO or the BPAI correctly at all. I
see lots of rejections that suggest a different reading of the
"machine or transformation test" and doubt about whether "the
Internet" is a machine either. So if your position here results from
your own assessment of evidence, it would be good to read more about
what you looked at and how you reached your
conclusion. | | | Section II: The Continued Viability of Nonobviousness to Bar Trivial Computer Software Patents | | | Through KSR, the Supreme Court maintained the traditional threshold Graham factors test for nonobviousness for the Federal Circuit to follow. Having a high threshold is important for assessing the patentability of software, for nonobviousness limits the granting of exclusive rights to software whose inventiveness is trivial and which would have been obvious to the ordinary-skilled software inventor (whose skill would be quite high today). The field of software is broad and its prior art reaches beyond computer programs to that of the electrical arts and other fields. In Muniauction, Inc. v. Thomson Corp., the Federal Circuit considered the nonobviousness of a software system for auctioning and bidding for municipal bonds using a web browser. Finding little difference between the systems in the prior art and the use of a web browser well-known, the Federal Circuit invalidated the patent. To encourage free software, the Federal Circuit and PTO should not relax the high threshold for nonobviousness. Furthermore, the Federal Circuit has traditionally relied on secondary considerations such as commercial success, long-felt but unsolved need, and failure of others when nonobviousness is at a balance. With software creation increasingly having a marginal cost of zero, the importance of those secondary considerations should be reconsidered. After all, their use is optional and depends on the context. The Federal Circuit should be wary of using secondary considerations to uphold the nonobviousness of software when the main Graham analysis is close. | |
>
> | You begin by talking about scope, or section 101 if you want to be statutory about it, and then move without any transition to obviousness under section 103. That these involve entirely different procedural environments for challengers passes without discussion, which it shouldn't. | | | | |
>
> | Nothing here discusses the real importance of Bilski, which is not its effect on new patent applications, but the light it sheds on the validity vel non of tens of thousands of high-abstractness patents created in a more lenient period, when the state-granted monopoly was available to anyone corrupt enough to apply for it. Even after the Supreme Court dithered its way to the conclusion that there may be patents on software and business method claims that are valid even though there is no special-purpose machine or transformation of matter, the litigation prospects of patents that evidently don't contain any such graces, like the ones that are purely patents on mathematical operations, are lousy. Yet patents of that type are currently being brandished by all sorts of fools trying to extort all sorts of parties (including even some free software developers), and are being sold as weapons at pretty high prices. If you're really trying to figure out the significance of Bilski, that's where you'd want to look.
But I still don't know, after two full readings of the essay, what
it is about. Case summaries don't teach me anything, and what
little here isn't a glorified West headnote is passing
editorialization, with no discipline or data specified. What we most
need here is a thesis, after which it should be possible to figure out
how to use the remainder of the essay to explicate it, respond to
its critics, and indicate its implications.
| | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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ThomasHouFirstPaper 7 - 07 Nov 2011 - Main.EbenMoglen
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<
< | Ready for edits and comments. | >
> | One layer of changes just to correct unreadable markup. Citations are now set correctly.
| | | Patentability of Software after Bilski: How the Federal Circuit Will and Should Refine Patentable Subject Matter and Nonobviousness Doctrine to Encourage Free Software | | | Section I: Bilski's Minimal Effect on Computer Software as Eligible Subject Matter | |
<
< | The Supreme Court's decision in _Bilski v. Kappos_ was anticipated to remake the groundwork for patentable subject matter, including that of computer software. The Court had to decide whether a method of hedging risk in commodities trading constituted a "process" under Section 101 of the Patent Act, which the Federal Circuit (the "FedCir") answered no according to its machine-or-transformation test. The Court affirmed but criticized the FedCir? for relying exclusively on the machine-or-transformation test, and also held that business methods were not per se unpatentable. The Court relied on its earlier precedents on process patents to hold that the claimed invention was an unpatentable abstract idea. For computer software, the Supreme Court declined to "comment[] on the patentability of any particular invention" and left to the FedCir? to develop doctrine on the patentability of process patents. | >
> | The Supreme Court's decision in
Bilski v. Kappos was anticipated to remake the groundwork for patentable
subject matter, including that of computer software. The Court had to
decide whether a method of hedging risk in commodities trading
constituted a "process" under Section 101 of the Patent Act, which the
Federal Circuit answered no according to its machine-or-transformation
test. The Court affirmed but criticized the Federal Circuit for
relying exclusively on the machine-or-transformation test, and also
held that business methods were not per se unpatentable. The Court
relied on its earlier precedents on process patents to hold that the
claimed invention was an unpatentable abstract idea. For computer
software, the Supreme Court declined to "comment[] on the
patentability of any particular invention" and left to the Federal
Circuit to develop doctrine on the patentability of process patents. | | | | |
<
< | The FedCir? has recognized the patentability of computer software ever since its en banc decision in _In Re Alappat_. Recent developments in its doctrine and that of the Supreme Court have hardly thrown that into doubt. In its most recent decision on this matter, _Cybersource Corp. v. Retail Decisions, Inc._, the FedCir? considered the patentability of a method for detecting credit card fraud by using information from Internet addresses and a computer readable medium containing instructions for executing that method. The FedCir? held the method was an unpatentable mental process that a human mind could perform and the usage of computers to gather the data did not save the claim from unpatentability. For the medium, the FedCir? emphasized that it must look at the underlying invention and recitation of a computer without the computer placing a significant limit on the scope of the claim does not save it from unpatentability. | >
> | The Federal Circuit has recognized the patentability of computer software ever since its en banc decision in In Re Alappat. Recent developments in its doctrine and that of the Supreme Court have hardly thrown that into doubt. In its most recent decision on this matter, Cybersource Corp. v. Retail Decisions, Inc., the Federal Circuit considered the patentability of a method for detecting credit card fraud by using information from Internet addresses and a computer readable medium containing instructions for executing that method. The Federal Circuit held the method was an unpatentable mental process that a human mind could perform and the usage of computers to gather the data did not save the claim from unpatentability. For the medium, the Federal Circuit emphasized that it must look at the underlying invention and recitation of a computer without the computer placing a significant limit on the scope of the claim does not save it from unpatentability. | | | | |
<
< | Going forward, the FedCir? will continue to uphold computer software as eligible subject matter under its machine-or-transformation test. Having taken a beating in Bilski and other recent Supreme Court decisions, the FedCir? will likely be flexible in its approach and look at the software claims holistically. Most software are sufficiently tied to a machine to satisfy the machine-or-transformation test. Nonetheless, one aspect that the Bilski decisions did not clarify was whether a general purpose computer could satisfy the machine prong, or a computer specifically adapted to the claimed process is required. As Jonathan Masur points out, this question can important in limiting the grant of computer software patents. To encourage more free software, the FedCir? should rule for the latter. However, the PTO has endorsed the general purpose computer option and with few contrary indications from the FedCir? , meager disagreement exists about the subject matter eligibility of computer software, at least in the courts. | >
> | Going forward, the Federal Circuit will continue to uphold computer software as eligible subject matter under its machine-or-transformation test. Having taken a beating in Bilski and other recent Supreme Court decisions, the Federal Circuit will likely be flexible in its approach and look at the software claims holistically. Most software are sufficiently tied to a machine to satisfy the machine-or-transformation test. Nonetheless, one aspect that the Bilski decisions did not clarify was whether a general purpose computer could satisfy the machine prong, or a computer specifically adapted to the claimed process is required. As Jonathan Masur points out, this question can important in limiting the grant of computer software patents. To encourage more free software, the Federal Circuit should rule for the latter. However, the PTO has endorsed the general purpose computer option and with few contrary indications from the Federal Circuit, meager disagreement exists about the subject matter eligibility of computer software, at least in the courts. | | | Section II: The Continued Viability of Nonobviousness to Bar Trivial Computer Software Patents | |
<
< | Before software patentees get too excited, they should remember the Supreme Court's counsel that eligible subject matter is a mere floor and claimed inventions must also be "novel, nonobvious, and fully and particularly described. These limitations serve a critical role . . . ." The nonobviousness requirement under Section 103 of the Patent Act has long been the gateway for patentability and the hardest for patentees to satisfy. The Supreme Court laid out the standard test in its _Graham v. John Deere Co._ decision. In the early case of _Dann v. Johnston_, the Court applied the Graham factors and held a computer software program to help bank customers invalid for obviousness. The Court's most recent case on nonobviousness is illustrative and useful for testing this requirement against claimed computer software. | >
> | Before software patentees get too excited, they should remember the Supreme Court's counsel that eligible subject matter is a mere floor and claimed inventions must also be "novel, nonobvious, and fully and particularly described. These limitations serve a critical role . . . ." The nonobviousness requirement under Section 103 of the Patent Act has long been the gateway for patentability and the hardest for patentees to satisfy. The Supreme Court laid out the standard test in its Graham v. John Deere Co. decision. In the early case of Dann v. Johnston, the Court applied the Graham factors and held a computer software program to help bank customers invalid for obviousness. The Court's most recent case on nonobviousness is illustrative and useful for testing this requirement against claimed computer software. | | | | |
<
< | In _KSR Int'l Co. v. Teleflex Inc._, the Supreme Court considered the nonobviousness of a patent for an adjustable electronic pedal with a fixed pivot point used for vehicle control. The Court emphasized that its precedent called for a flexible and functional approach and rejected the FedCir? 's exclusive reliance on its teaching, suggestion or motivation test. For patents claiming combinations of prior art elements, courts should be cautious and look at "interrelated teachings of multiple patents; the effects of demands . . . in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art." The Court recognized that market demand will often drive design trends: "When there is a design need or market pressure to solve a problem . . . a person of ordinary skill has good reason to pursue known options within his or her technical grasp." The Court held the patent at issue obvious and cautioned courts not to stifle the progress of the useful arts by applying rigid and narrow tests for obviousness. | >
> | In KSR Int'l Co. v. Teleflex Inc., the Supreme Court considered the nonobviousness of a patent for an adjustable electronic pedal with a fixed pivot point used for vehicle control. The Court emphasized that its precedent called for a flexible and functional approach and rejected the Federal Circuit's exclusive reliance on its teaching, suggestion or motivation test. For patents claiming combinations of prior art elements, courts should be cautious and look at "interrelated teachings of multiple patents; the effects of demands . . . in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art." The Court recognized that market demand will often drive design trends: "When there is a design need or market pressure to solve a problem . . . a person of ordinary skill has good reason to pursue known options within his or her technical grasp." The Court held the patent at issue obvious and cautioned courts not to stifle the progress of the useful arts by applying rigid and narrow tests for obviousness. | | | | |
<
< | Through KSR, the Supreme Court maintained the traditional threshold Graham factors test for nonobviousness for the FedCir? to follow. Having a high threshold is important for assessing the patentability of software, for nonobviousness limits the granting of exclusive rights to software whose inventiveness is trivial and which would have been obvious to the ordinary-skilled software inventor (whose skill would be quite high today). The field of software is broad and its prior art reaches beyond computer programs to that of the electrical arts and other fields. In _Muniauction, Inc. v. Thomson Corp._, the FedCir? considered the nonobviousness of a software system for auctioning and bidding for municipal bonds using a web browser. Finding little difference between the systems in the prior art and the use of a web browser well-known, the FedCir? invalidated the patent. To encourage free software, the FedCir? and PTO should not relax the high threshold for nonobviousness. Furthermore, the FedCir? has traditionally relied on secondary considerations such as commercial success, long-felt but unsolved need, and failure of others when nonobviousness is at a balance. With software creation increasingly having a marginal cost of zero, the importance of those secondary considerations should be reconsidered. After all, their use is optional and depends on the context. The FedCir? should be wary of using secondary considerations to uphold the nonobviousness of software when the main Graham analysis is close. | >
> | Through KSR, the Supreme Court maintained the traditional threshold Graham factors test for nonobviousness for the Federal Circuit to follow. Having a high threshold is important for assessing the patentability of software, for nonobviousness limits the granting of exclusive rights to software whose inventiveness is trivial and which would have been obvious to the ordinary-skilled software inventor (whose skill would be quite high today). The field of software is broad and its prior art reaches beyond computer programs to that of the electrical arts and other fields. In Muniauction, Inc. v. Thomson Corp., the Federal Circuit considered the nonobviousness of a software system for auctioning and bidding for municipal bonds using a web browser. Finding little difference between the systems in the prior art and the use of a web browser well-known, the Federal Circuit invalidated the patent. To encourage free software, the Federal Circuit and PTO should not relax the high threshold for nonobviousness. Furthermore, the Federal Circuit has traditionally relied on secondary considerations such as commercial success, long-felt but unsolved need, and failure of others when nonobviousness is at a balance. With software creation increasingly having a marginal cost of zero, the importance of those secondary considerations should be reconsidered. After all, their use is optional and depends on the context. The Federal Circuit should be wary of using secondary considerations to uphold the nonobviousness of software when the main Graham analysis is close. | | | |
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ThomasHouFirstPaper 6 - 29 Oct 2011 - Main.ThomasHou
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| META TOPICPARENT | name="FirstPaper" |
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<
< | Note: I have finished up my research and am starting to write my draft, which will be finished and ready for your edits by Thursday, October 27. Any suggestions or insights on what I should focus on or change are welcome. | >
> | Ready for edits and comments. | | | | |
<
< | Patentability of Software after Bilski: How the Federal Circuit Will and Should Define Patentable Subject Matter and Nonobviousness Doctrine to Encourage Free Software | >
> | Patentability of Software after Bilski: How the Federal Circuit Will and Should Refine Patentable Subject Matter and Nonobviousness Doctrine to Encourage Free Software | | | -- By ThomasHou - 19 Oct 2011
Section I: Bilski's Minimal Effect on Computer Software as Eligible Subject Matter | |
<
< | The Supreme Court's decision in _Bilski v. Kappos_ was anticipated to lay the groundwork for patentable subject matter, including patentability of computer software. There, the Court had to decide whether a method of hedging risk in commodities trading constituted a "process" under Section 101 of the Patent Act, which the Federal Circuit (hereinafter the "FedCir") answered no according to its machine-or-transformation test. The Court affirmed but criticized the FedCir? for relying exclusively on the machine-or-transformation test, and also held that business methods were not per se unpatentable. The Court relied on its earlier precedents on process patents to hold that the claimed invention was an unpatentable abstract idea. For computer software though, the Supreme Court declined to "comment[] on the patentability of any particular invention" and left to the FedCir? to develop doctrine on the patentability of process patents. | >
> | The Supreme Court's decision in _Bilski v. Kappos_ was anticipated to remake the groundwork for patentable subject matter, including that of computer software. The Court had to decide whether a method of hedging risk in commodities trading constituted a "process" under Section 101 of the Patent Act, which the Federal Circuit (the "FedCir") answered no according to its machine-or-transformation test. The Court affirmed but criticized the FedCir? for relying exclusively on the machine-or-transformation test, and also held that business methods were not per se unpatentable. The Court relied on its earlier precedents on process patents to hold that the claimed invention was an unpatentable abstract idea. For computer software, the Supreme Court declined to "comment[] on the patentability of any particular invention" and left to the FedCir? to develop doctrine on the patentability of process patents. | | | | |
<
< | The FedCir? has recognized the patentability of computer software ever since its en banc decision in _In Re Alappat_. Recent developments in its doctrine and that of the Supreme Court have hardly thrown that into doubt. In its most recent decision on this matter, _Cybersource Corp. v. Retail Decisions, Inc._, the FedCir? considered the patentability of a method for detecting credit card fraud by utilizing information from Internet addresses and a computer readable medium containing instructions for executing that method. The FedCir? held the method an unpatentable mental process that a human mind could perform and the usage of computers to gather the data did not save the claim from unpatentability. For the medium, the FedCir? emphasized that it must look at the underlying invention and recitation of a computer without the computer placing a significant limit on the scope of the claim does not save it from unpatentability. | >
> | The FedCir? has recognized the patentability of computer software ever since its en banc decision in _In Re Alappat_. Recent developments in its doctrine and that of the Supreme Court have hardly thrown that into doubt. In its most recent decision on this matter, _Cybersource Corp. v. Retail Decisions, Inc._, the FedCir? considered the patentability of a method for detecting credit card fraud by using information from Internet addresses and a computer readable medium containing instructions for executing that method. The FedCir? held the method was an unpatentable mental process that a human mind could perform and the usage of computers to gather the data did not save the claim from unpatentability. For the medium, the FedCir? emphasized that it must look at the underlying invention and recitation of a computer without the computer placing a significant limit on the scope of the claim does not save it from unpatentability. | | | | |
<
< | Going forward, the FedCir? will continue to uphold computer software as eligible subject matter under its machine-or-transformation test. Having taken a beating in Bilski and other recent Supreme Court decisions, the FedCir? will likely be flexible in its approach and look at the software holistically. Most computer software are sufficiently tied to a machine to satisfy the machine-or-transformation test. Nonetheless, one aspect that the Bilski decisions did not clarify was whether a general purpose computer could satisfy the machine prong, or a computer specifically adapted to the claimed process is required. As Jonathan Masur points out, this question can important in limiting the grant of computer software patents. The PTO has endorsed the general purpose computer option and with few contrary indications from the FedCir? , there seems to be meager argument about the scope of subject matter eligibility of computer software, at least in the courts. | >
> | Going forward, the FedCir? will continue to uphold computer software as eligible subject matter under its machine-or-transformation test. Having taken a beating in Bilski and other recent Supreme Court decisions, the FedCir? will likely be flexible in its approach and look at the software claims holistically. Most software are sufficiently tied to a machine to satisfy the machine-or-transformation test. Nonetheless, one aspect that the Bilski decisions did not clarify was whether a general purpose computer could satisfy the machine prong, or a computer specifically adapted to the claimed process is required. As Jonathan Masur points out, this question can important in limiting the grant of computer software patents. To encourage more free software, the FedCir? should rule for the latter. However, the PTO has endorsed the general purpose computer option and with few contrary indications from the FedCir? , meager disagreement exists about the subject matter eligibility of computer software, at least in the courts. | | | Section II: The Continued Viability of Nonobviousness to Bar Trivial Computer Software Patents | |
<
< | Before computer software patentees get too excited, they should remember the Supreme Court's counsel that eligible subject matter is a mere floor and claimed inventions must also be "novel, nonobvious, and fully and particularly described. These limitations serve a critical role . . . ." The nonobviousness requirement under Section 103 of the Patent Act has long been the gateway for patentability and the hardest for patentees to satisfy. The Supreme Court laid out the standard test in its _Graham v. John Deere Co._ decision. In the early case of _Dann v. Johnston_, the Court applied the Graham factors and held a computer software program to help bank customers invalid for obviousness. Even so, the Court's most recent case on nonobviousness is illustrative and key for testing this requirement against claimed computer software. | >
> | Before software patentees get too excited, they should remember the Supreme Court's counsel that eligible subject matter is a mere floor and claimed inventions must also be "novel, nonobvious, and fully and particularly described. These limitations serve a critical role . . . ." The nonobviousness requirement under Section 103 of the Patent Act has long been the gateway for patentability and the hardest for patentees to satisfy. The Supreme Court laid out the standard test in its _Graham v. John Deere Co._ decision. In the early case of _Dann v. Johnston_, the Court applied the Graham factors and held a computer software program to help bank customers invalid for obviousness. The Court's most recent case on nonobviousness is illustrative and useful for testing this requirement against claimed computer software. | | | In _KSR Int'l Co. v. Teleflex Inc._, the Supreme Court considered the nonobviousness of a patent for an adjustable electronic pedal with a fixed pivot point used for vehicle control. The Court emphasized that its precedent called for a flexible and functional approach and rejected the FedCir? 's exclusive reliance on its teaching, suggestion or motivation test. For patents claiming combinations of prior art elements, courts should be cautious and look at "interrelated teachings of multiple patents; the effects of demands . . . in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art." The Court recognized that market demand will often drive design trends: "When there is a design need or market pressure to solve a problem . . . a person of ordinary skill has good reason to pursue known options within his or her technical grasp." The Court held the patent at issue obvious and cautioned courts not to stifle the progress of the useful arts by applying rigid and narrow tests for obviousness. | |
<
< | Through KSR, the Supreme Court maintained the traditional threshold Graham factors test for nonobviousness for the FedCir? to follow. Having a high threshold is important for assessing the patentability of computer software, for nonobviousness limits the granting of exclusive rights to software whose inventiveness is trivial and which would have been obvious to the ordinary-skilled software inventor (whose skill would be quite high these days). The field of software is broad and its prior art reaches beyond computer programs to that of the electrical arts and other fields. In _Muniauction, Inc. v. Thomson Corp._, the FedCir? considered the nonobviousness of a software system for auctioning and bidding for municipal bonds using a web browser. Finding little difference between the systems in the prior art and the use of a web browser well-known, the FedCir? invalidated the patent. Furthermore, the FedCir? has traditionally relied on secondary considerations such as commercial success, long-felt but unsolved need, and failure of others when nonobviousness is at a balance. With software production increasingly having a marginal cost approaching zero, the importance of those secondary considerations should be reconsidered for determining the nonobviousness of software. | >
> | Through KSR, the Supreme Court maintained the traditional threshold Graham factors test for nonobviousness for the FedCir? to follow. Having a high threshold is important for assessing the patentability of software, for nonobviousness limits the granting of exclusive rights to software whose inventiveness is trivial and which would have been obvious to the ordinary-skilled software inventor (whose skill would be quite high today). The field of software is broad and its prior art reaches beyond computer programs to that of the electrical arts and other fields. In _Muniauction, Inc. v. Thomson Corp._, the FedCir? considered the nonobviousness of a software system for auctioning and bidding for municipal bonds using a web browser. Finding little difference between the systems in the prior art and the use of a web browser well-known, the FedCir? invalidated the patent. To encourage free software, the FedCir? and PTO should not relax the high threshold for nonobviousness. Furthermore, the FedCir? has traditionally relied on secondary considerations such as commercial success, long-felt but unsolved need, and failure of others when nonobviousness is at a balance. With software creation increasingly having a marginal cost of zero, the importance of those secondary considerations should be reconsidered. After all, their use is optional and depends on the context. The FedCir? should be wary of using secondary considerations to uphold the nonobviousness of software when the main Graham analysis is close. | | | | |
<
< | Section III: What Free Software users should consider when confronted with a patent infringement claim | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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ThomasHouFirstPaper 5 - 27 Oct 2011 - Main.ThomasHou
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| META TOPICPARENT | name="FirstPaper" |
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Note: I have finished up my research and am starting to write my draft, which will be finished and ready for your edits by Thursday, October 27. Any suggestions or insights on what I should focus on or change are welcome. | | | Section II: The Continued Viability of Nonobviousness to Bar Trivial Computer Software Patents | |
<
< | Before computer software patentees get too excited, they should remember the Supreme Court's counsel that eligible subject matter is a mere floor and claimed inventions must also be "novel, nonobvious, and fully and particularly described. These limitations serve a critical role . . . ." The nonobviousness requirement under Section 103 of the Patent Act has long been the gateway for patentability and the hardest for patentees to satisfy. The Supreme Court laid out the standard test in its _Graham v. John Deere Co._ decision. In the early case of _Dann v. Johnston_, the Court applied the Graham factors and held a computer software program to help bank customers invalid for obviousness. However, the Court's most recent case on nonobviousness is illustrative and key for testing this requirement against claimed computer software. | >
> | Before computer software patentees get too excited, they should remember the Supreme Court's counsel that eligible subject matter is a mere floor and claimed inventions must also be "novel, nonobvious, and fully and particularly described. These limitations serve a critical role . . . ." The nonobviousness requirement under Section 103 of the Patent Act has long been the gateway for patentability and the hardest for patentees to satisfy. The Supreme Court laid out the standard test in its _Graham v. John Deere Co._ decision. In the early case of _Dann v. Johnston_, the Court applied the Graham factors and held a computer software program to help bank customers invalid for obviousness. Even so, the Court's most recent case on nonobviousness is illustrative and key for testing this requirement against claimed computer software. | | | | |
<
< | In _KSR Int'l Co. v. Teleflex Inc._, the Supreme Court | >
> | In _KSR Int'l Co. v. Teleflex Inc._, the Supreme Court considered the nonobviousness of a patent for an adjustable electronic pedal with a fixed pivot point used for vehicle control. The Court emphasized that its precedent called for a flexible and functional approach and rejected the FedCir? 's exclusive reliance on its teaching, suggestion or motivation test. For patents claiming combinations of prior art elements, courts should be cautious and look at "interrelated teachings of multiple patents; the effects of demands . . . in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art." The Court recognized that market demand will often drive design trends: "When there is a design need or market pressure to solve a problem . . . a person of ordinary skill has good reason to pursue known options within his or her technical grasp." The Court held the patent at issue obvious and cautioned courts not to stifle the progress of the useful arts by applying rigid and narrow tests for obviousness.
Through KSR, the Supreme Court maintained the traditional threshold Graham factors test for nonobviousness for the FedCir? to follow. Having a high threshold is important for assessing the patentability of computer software, for nonobviousness limits the granting of exclusive rights to software whose inventiveness is trivial and which would have been obvious to the ordinary-skilled software inventor (whose skill would be quite high these days). The field of software is broad and its prior art reaches beyond computer programs to that of the electrical arts and other fields. In _Muniauction, Inc. v. Thomson Corp._, the FedCir? considered the nonobviousness of a software system for auctioning and bidding for municipal bonds using a web browser. Finding little difference between the systems in the prior art and the use of a web browser well-known, the FedCir? invalidated the patent. Furthermore, the FedCir? has traditionally relied on secondary considerations such as commercial success, long-felt but unsolved need, and failure of others when nonobviousness is at a balance. With software production increasingly having a marginal cost approaching zero, the importance of those secondary considerations should be reconsidered for determining the nonobviousness of software. | | |
Section III: What Free Software users should consider when confronted with a patent infringement claim |
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ThomasHouFirstPaper 4 - 27 Oct 2011 - Main.ThomasHou
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| META TOPICPARENT | name="FirstPaper" |
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<
< | Note: I have finished up my research and am starting to write my draft, which will be finished and ready for your edits before Thursday, October 27. Any suggestions or insights on what I should focus on or change are welcome. | >
> | Note: I have finished up my research and am starting to write my draft, which will be finished and ready for your edits by Thursday, October 27. Any suggestions or insights on what I should focus on or change are welcome. | | | | |
<
< | Patentability of Software after Bilski: How the Federal Circuit Will and Should Develop Doctrine to Encourage Free Software | >
> | Patentability of Software after Bilski: How the Federal Circuit Will and Should Define Patentable Subject Matter and Nonobviousness Doctrine to Encourage Free Software | | | -- By ThomasHou - 19 Oct 2011 | |
<
< | Section I: Although Bilski represents an opportunity to shape eligible subject matter doctrine, the Federal Circuit will be unlikely to limit it for computer software. | >
> | Section I: Bilski's Minimal Effect on Computer Software as Eligible Subject Matter | | | | |
<
< | The Supreme Court's decision in Bilski v. Kappos (130 S.Ct. 3218) was anticipated to lay the groundwork for patentable subject matter, including patentability for computer software. However, it did little in changing substantive law and left much of the law to the Federal Circuit (the "FedCir") to develop, subject of course to the Supreme Court's precedent. So, in the field of computer software, where so many people have different views on its patentability, the FedCir? will again be the chief engine to define the scope of its patentability. | >
> | The Supreme Court's decision in _Bilski v. Kappos_ was anticipated to lay the groundwork for patentable subject matter, including patentability of computer software. There, the Court had to decide whether a method of hedging risk in commodities trading constituted a "process" under Section 101 of the Patent Act, which the Federal Circuit (hereinafter the "FedCir") answered no according to its machine-or-transformation test. The Court affirmed but criticized the FedCir? for relying exclusively on the machine-or-transformation test, and also held that business methods were not per se unpatentable. The Court relied on its earlier precedents on process patents to hold that the claimed invention was an unpatentable abstract idea. For computer software though, the Supreme Court declined to "comment[] on the patentability of any particular invention" and left to the FedCir? to develop doctrine on the patentability of process patents. | | | | |
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< | Subsection A: It is well-entrenched in Federal Circuit jurisprudence that computer software is eligible subject matter, which Bilski did not disturb. | >
> | The FedCir? has recognized the patentability of computer software ever since its en banc decision in _In Re Alappat_. Recent developments in its doctrine and that of the Supreme Court have hardly thrown that into doubt. In its most recent decision on this matter, _Cybersource Corp. v. Retail Decisions, Inc._, the FedCir? considered the patentability of a method for detecting credit card fraud by utilizing information from Internet addresses and a computer readable medium containing instructions for executing that method. The FedCir? held the method an unpatentable mental process that a human mind could perform and the usage of computers to gather the data did not save the claim from unpatentability. For the medium, the FedCir? emphasized that it must look at the underlying invention and recitation of a computer without the computer placing a significant limit on the scope of the claim does not save it from unpatentability. | | | | |
<
< | Looking at the Federal Circuit's precedent, free software advocates should not be optimistic. Although computer software were hardly patented at all in the 1960s or 1970s, they became gradually well-accepted by the PTO and FedCir? . That trend started after the Supreme Court's decision in Diamond v. Diehr (450 U.S. 175), which impliedly granted the patentability of software. In the 1980s and especially the 1990s, software patent applications skyrocketed and the PTO mostly granted them. In In re Alappat (33 F.3d 1526), the FedCir? sitting en banc held explicitly that computer software were patentable subject matter and mathematical algorithms were not a judicial category of ineligible subject matter (which were limited to laws of nature, physical phenomena, and abstract ideas). The FedCir? 's latest en banc decision in In re Bilski that adopted the machine-or-transformation test summarized the decades-long precedent underlying process patents and did not throw the patentability of software into any doubt. In fact, software arguably could satisfy either prong of the machine or transformation test. | >
> | Going forward, the FedCir? will continue to uphold computer software as eligible subject matter under its machine-or-transformation test. Having taken a beating in Bilski and other recent Supreme Court decisions, the FedCir? will likely be flexible in its approach and look at the software holistically. Most computer software are sufficiently tied to a machine to satisfy the machine-or-transformation test. Nonetheless, one aspect that the Bilski decisions did not clarify was whether a general purpose computer could satisfy the machine prong, or a computer specifically adapted to the claimed process is required. As Jonathan Masur points out, this question can important in limiting the grant of computer software patents. The PTO has endorsed the general purpose computer option and with few contrary indications from the FedCir? , there seems to be meager argument about the scope of subject matter eligibility of computer software, at least in the courts. | | | | |
<
< | Subsection B: Bilski offers several guidelines for the Federal Circuit to limit computer software patents. | >
> | Section II: The Continued Viability of Nonobviousness to Bar Trivial Computer Software Patents | | | | |
<
< | The Supreme Court's decision in Bilski v. Kappos held that the machine or transformation test of the FedCir? was an important clue for patentability of process claims, but not the exclusive test. Furthermore, business methods, which are similar to software, are not per se unpatentable. The Supreme Court remanded for the FedCir? to define the contours of patent law subject to its precedents, specifically its decisions in Gottschalk v. Benson (409 U.S. 63), Parker v. Flook (437 U.S. 584), and Diamond v. Diehr (450 U.S. 175). Those precedents, as well the FedCir? 's most recent decision on patentability of software, serve good clues on its jurisprudence going forward. | >
> | Before computer software patentees get too excited, they should remember the Supreme Court's counsel that eligible subject matter is a mere floor and claimed inventions must also be "novel, nonobvious, and fully and particularly described. These limitations serve a critical role . . . ." The nonobviousness requirement under Section 103 of the Patent Act has long been the gateway for patentability and the hardest for patentees to satisfy. The Supreme Court laid out the standard test in its _Graham v. John Deere Co._ decision. In the early case of _Dann v. Johnston_, the Court applied the Graham factors and held a computer software program to help bank customers invalid for obviousness. However, the Court's most recent case on nonobviousness is illustrative and key for testing this requirement against claimed computer software. | | | | |
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< | Subsub 1: The Supreme Court's early jurisprudence concerning abstract ideas and mental processes can be used to invalidate many potential computer software patents. | >
> | In _KSR Int'l Co. v. Teleflex Inc._, the Supreme Court | | | | |
<
< | Subsub 2: The machine-or-transformation test for process patents can be stringently interpreted to require tying the software to a particular type of machine or transformation, rather than to computers in general.
Section II: Bilski does not foreclose the use of other substantive requirements for patentability, which should be raised high for computer software patents.
Subsection A: The nonobviousness requirement should be construed strictly, and include broad consideration of pertinent prior art and secondary factors.
This aspect is not often explored and I might just write on non-obviousness (partly to fit the 1000-word limit). What do you think?
Subsection B: Institutional changes for the Federal Circuit and PTO are necessary for others to challenge the novelty of computer software patents, especially using third-party introduced prior art. | | | Section III: What Free Software users should consider when confronted with a patent infringement claim |
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ThomasHouFirstPaper 3 - 24 Oct 2011 - Main.ThomasHou
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | >
> | Note: I have finished up my research and am starting to write my draft, which will be finished and ready for your edits before Thursday, October 27. Any suggestions or insights on what I should focus on or change are welcome. | | | Patentability of Software after Bilski: How the Federal Circuit Will and Should Develop Doctrine to Encourage Free Software | | | Section I: Although Bilski represents an opportunity to shape eligible subject matter doctrine, the Federal Circuit will be unlikely to limit it for computer software. | |
>
> | The Supreme Court's decision in Bilski v. Kappos (130 S.Ct. 3218) was anticipated to lay the groundwork for patentable subject matter, including patentability for computer software. However, it did little in changing substantive law and left much of the law to the Federal Circuit (the "FedCir") to develop, subject of course to the Supreme Court's precedent. So, in the field of computer software, where so many people have different views on its patentability, the FedCir? will again be the chief engine to define the scope of its patentability. | | | Subsection A: It is well-entrenched in Federal Circuit jurisprudence that computer software is eligible subject matter, which Bilski did not disturb. | |
>
> | Looking at the Federal Circuit's precedent, free software advocates should not be optimistic. Although computer software were hardly patented at all in the 1960s or 1970s, they became gradually well-accepted by the PTO and FedCir? . That trend started after the Supreme Court's decision in Diamond v. Diehr (450 U.S. 175), which impliedly granted the patentability of software. In the 1980s and especially the 1990s, software patent applications skyrocketed and the PTO mostly granted them. In In re Alappat (33 F.3d 1526), the FedCir? sitting en banc held explicitly that computer software were patentable subject matter and mathematical algorithms were not a judicial category of ineligible subject matter (which were limited to laws of nature, physical phenomena, and abstract ideas). The FedCir? 's latest en banc decision in In re Bilski that adopted the machine-or-transformation test summarized the decades-long precedent underlying process patents and did not throw the patentability of software into any doubt. In fact, software arguably could satisfy either prong of the machine or transformation test. | | | Subsection B: Bilski offers several guidelines for the Federal Circuit to limit computer software patents. | |
>
> | The Supreme Court's decision in Bilski v. Kappos held that the machine or transformation test of the FedCir? was an important clue for patentability of process claims, but not the exclusive test. Furthermore, business methods, which are similar to software, are not per se unpatentable. The Supreme Court remanded for the FedCir? to define the contours of patent law subject to its precedents, specifically its decisions in Gottschalk v. Benson (409 U.S. 63), Parker v. Flook (437 U.S. 584), and Diamond v. Diehr (450 U.S. 175). Those precedents, as well the FedCir? 's most recent decision on patentability of software, serve good clues on its jurisprudence going forward. | | | | |
<
< | Subsub 1: The machine-or-transformation test for process patents can be stringently interpreted to require tying the software to a particular type of machine or transformation, rather than to computers in general. | >
> | Subsub 1: The Supreme Court's early jurisprudence concerning abstract ideas and mental processes can be used to invalidate many potential computer software patents. | | | | |
<
< | Subsub 2: The Supreme Court's early jurisprudence concerning mathematical formula and abstract ideas can be used to invalidate many potential computer software patents. | >
> | Subsub 2: The machine-or-transformation test for process patents can be stringently interpreted to require tying the software to a particular type of machine or transformation, rather than to computers in general. | | |
Section II: Bilski does not foreclose the use of other substantive requirements for patentability, which should be raised high for computer software patents.
Subsection A: The nonobviousness requirement should be construed strictly, and include broad consideration of pertinent prior art and secondary factors. | |
>
> | This aspect is not often explored and I might just write on non-obviousness (partly to fit the 1000-word limit). What do you think? | | | Subsection B: Institutional changes for the Federal Circuit and PTO are necessary for others to challenge the novelty of computer software patents, especially using third-party introduced prior art.
Section III: What Free Software users should consider when confronted with a patent infringement claim |
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ThomasHouFirstPaper 2 - 21 Oct 2011 - Main.ThomasHou
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | -- By ThomasHou - 19 Oct 2011 | |
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< | Section I: Although Bilski represents an opportunity to shape eligible subject matter jurisprudence, the Federal Circuit will be unlikely to limit it for computer software. | >
> | Section I: Although Bilski represents an opportunity to shape eligible subject matter doctrine, the Federal Circuit will be unlikely to limit it for computer software. | | | Subsection A: It is well-entrenched in Federal Circuit jurisprudence that computer software is eligible subject matter, which Bilski did not disturb. | |
<
< | Subsection B: Bilski offers several opportunities for the Federal Circuit to limit computer software patents. | >
> | Subsection B: Bilski offers several guidelines for the Federal Circuit to limit computer software patents. | | | | |
<
< | Subsub 1: The machine-or-transformation test for process patents can be stringently interpreted to require tying the software to a specific type of machine or transformation, rather than to computers in general. | >
> | Subsub 1: The machine-or-transformation test for process patents can be stringently interpreted to require tying the software to a particular type of machine or transformation, rather than to computers in general. | | | | |
<
< | Subsub 2: The Supreme Court's early jurisprudence concerning mathematical formula and abstract ideas can be expanded to invalidate many potential computer software patents. | >
> | Subsub 2: The Supreme Court's early jurisprudence concerning mathematical formula and abstract ideas can be used to invalidate many potential computer software patents. | | | | |
<
< | Section II: Bilski does not foreclose the use of other substantive requirements for patentability, which should be raised high for computer software patents. | >
> | Section II: Bilski does not foreclose the use of other substantive requirements for patentability, which should be raised high for computer software patents. | | | | |
<
< | Subsection A: The nonobviousness requirement should be construed strictly, and include broad consideration of pertinent prior art and secondary factors of the software field. | >
> | Subsection A: The nonobviousness requirement should be construed strictly, and include broad consideration of pertinent prior art and secondary factors. | | | | |
<
< | Subsection B: Institutional changes for the Federal Circuit and PTO are required for others to challenge the novelty of computer software patents, especially using third-party introduced prior art. | >
> | Subsection B: Institutional changes for the Federal Circuit and PTO are necessary for others to challenge the novelty of computer software patents, especially using third-party introduced prior art.
Section III: What Free Software users should consider when confronted with a patent infringement claim | | |
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ThomasHouFirstPaper 1 - 19 Oct 2011 - Main.ThomasHou
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Patentability of Software after Bilski: How the Federal Circuit Will and Should Develop Doctrine to Encourage Free Software
-- By ThomasHou - 19 Oct 2011
Section I: Although Bilski represents an opportunity to shape eligible subject matter jurisprudence, the Federal Circuit will be unlikely to limit it for computer software.
Subsection A: It is well-entrenched in Federal Circuit jurisprudence that computer software is eligible subject matter, which Bilski did not disturb.
Subsection B: Bilski offers several opportunities for the Federal Circuit to limit computer software patents.
Subsub 1: The machine-or-transformation test for process patents can be stringently interpreted to require tying the software to a specific type of machine or transformation, rather than to computers in general.
Subsub 2: The Supreme Court's early jurisprudence concerning mathematical formula and abstract ideas can be expanded to invalidate many potential computer software patents.
Section II: Bilski does not foreclose the use of other substantive requirements for patentability, which should be raised high for computer software patents.
Subsection A: The nonobviousness requirement should be construed strictly, and include broad consideration of pertinent prior art and secondary factors of the software field.
Subsection B: Institutional changes for the Federal Circuit and PTO are required for others to challenge the novelty of computer software patents, especially using third-party introduced prior art.
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