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[dayzman]

Hi,

If software patents are to be ended, then would it be likely for existing patents to still be valid? Would such 'ending' likely mean the end of new applications or the end of validity of software patents?

Thanks

[khazzah]

If software patents are to be ended, then would it be likely for existing patents to still be valid? Would such 'ending' likely mean the end of new applications or the end of validity of software patents?

Issued patents do not automatically become invalid. Each individual patent would have to be invalidated, and since 101 is not a ground for reexam, this would have to be in litigation.

That said, if a Federal Circuit decision comes down that *clearly* says patents to "software" are invalid under 101, then you can expect litigators to figure this out, and to therefore see a lot less "software" patents being asserted.

But note that even with a Federal Circuit decision that invalidates "software" patents, there is a lot of room for argument about whether a particular set of claims is "software" and is thus invalid.

[JimIvey]

What do you mean by "ending" software patents?  How would that happen?

If a novel, non-obvious computer graphics method is invalidated as "software", would that also apply to graphics chips that implement the same method in hardware?  When a computer performs a method, is the method performed by "software" or "hardware"?

Now, if an authoritative court decides that any patent claim involving use of a digital computer is invalid as ineligible subject matter for patents (Section 101), it is likely that no computer-implemented claim would be enforceable, until reasonable mind again prevail.  They wouldn't just all be stamped "invalid" immediately, but it would be difficult to defend a challenge to its validity.

Regards.

[MYK]

When even Justice Kennedy points out that Congress has explicitly provided for "business methods" as statutory subject matter, you can pretty much bet that, barring a major nuclear war, asteroid strike, nearby gamma-ray burst, or the Sun entering its red giant phase, software patents are here to stay.

[restaurantmana]

very useful and informative site.
lot of information about the software patents.
thanks for provide the information.

[Rentec]

Thanks for the info JimIvey,

My idea on "ending software patents" is that without software we could not have more knowledge to know more thing. I admit it has an advantage and disadvantage but its just the way things are. It depends on how will you use it. Do it for the good thing and you have good outcome, doing it on bad things and bad outcome will happens. That just it.

[JustAnotherExaminer]

The USPTO doesn't issue patents containing claims that are directed to an embodiment that is solely software.

See MPEP 2106.01(I).

Ergo, there are no software patents in the US.

[JimIvey]

The USPTO doesn't issue patents containing claims that are directed to an embodiment that is solely software.

See MPEP 2106.01(I).

Ergo, there are no software patents in the US.

That's either not true or so academic as to be useless.

I routinely get patents on steps performed by a computer (dictated purely by the software), the computer instructions to cause the method to be performed stored on computer readable media (software itself embodied on a computer readable medium), and a computer programmed with the software to perform the method.

As a practical matter, what part of software is left unpatentable?  Just the code in the head of the programmer?  Note that paper is a computer-readable medium with decent printing and decent OCR software.

So, if you're fine with just patenting what software causes a computer to do, storing of the software such that a computer can read it, and/or a computer in which the software is installed, the US will help you out.

Regards.

[khazzah]

Ergo, there are no software patents in the US.

That's either not true or so academic as to be useless.

I routinely get patents on steps performed by a computer (dictated purely by the software), the computer instructions to cause the method to be performed stored on computer readable media (software itself embodied on a computer readable medium), and a computer programmed with the software to perform the method.

As a practical matter, what part of software is left unpatentable? 

Software "per se". Which, as best I can tell, is software floating in the ether or in someone's head.

And I can certainly can live with not getting a patent to something floating in the ether or floating in someone's head. I can't sue either of those entities anyway.

I'll glad take a patent that covers only software that causes a computer to do something, storing of the software such that a computer can read it, and/or a computer in which the software is installed.

[JimIvey]

Software "per se".

I still don't know what that is.  I don't think I've ever seen software per se.  I wouldn't know how to claim software per se -- except for perhaps "I claim a computer program for ___ing this and ____ing that." 

But to say that there are no software patents in the US or even that "software per se" is not patentable is misleading to lay people.  If someone has an innovation realized purely in software that's novel and non-obvious, there is absolutely no problem in getting them patent protection in the US.

Ask software engineers to identify the difference between software and computer instructions realized in a computer readable medium and they'll tell you "nothing" -- or they'll look at you quizzically as if you're asking a trick question.  The difference is not in reality; it's in the law.  In the law, one's proper statutory subject matter for a patent and the other isn't.  In reality, they're one and the same.  No developer ever says "yeah, I have this software...." meaning it's in their head and not programmed in some computer somewhere.

The statement that "software per se in not statutory" is really useless -- it's just what you say before you explain that software (without "per se") is statutory, but I don't expect courts to stop introducing every 101 discussion with the statement. 

Regards.

[JustAnotherExaminer]

Well....

Every time one of these anti-software arguments comes up I immediately ask them to define what a "software" patent is, so I know one when it comes across my desk.

What they're really driving at is that they don't want "functionally claimed patents" (as opposed to structurally claimed ones).  Which is rather dumb, imo.

So I like to play devil's advocate and point out that we don't issue claims directed to software, it's always an article of manufacture (usually some form of a computer readable storage medium).

[JimIvey]

What they're really driving at is that they don't want "functionally claimed patents" (as opposed to structurally claimed ones).  Which is rather dumb, imo.

Perhaps.  I suspect they'd rather just build software without having to worry about legal consequences.  I've seen T-shirts that say "Coding is not a crime" -- of course, neither is patent infringement; it's a civil cause of action.  That's reminiscent of T-shirts like "skating is not a crime" and "mountain biking is not a crime" -- in essence, people who want to do their activity of choice without legal limits.

I'm empathetic to their sentiments.  However, I can't reconcile the wish to code without legal consequences with their day jobs of coding for companies whose very existence relies on (or once relied upon) patents covering their work.

Regards.