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Should software be patentable?

February 13, 2013 0 Comments

Intellectual PropertyI have been writing quite a bit lately about those nasty patent trolls who contribute nada to innovation, force my clients to spend valuable resources on sending me to court (when I could be negotiating productive business deals), and otherwise make my favorite judges overworked and cranky when I do have a legitimate reason to seek judicial review of something. Evidently the United States Patent and Trademark Office (USPTO) got the software community’s memo and decided to do something about it:

In January, the USPTO announced the Software Partnership, a partnership between USPTO and the software community to explore ways to improve the quality of software patents.

[T]he USPTO sought comments on a proposal for new patent application drafting practices that would help improve patent quality.  The proposal considers various ways to clarify the scope of patent claims, such as by:

  • requiring claims to be presented in a standard template format;
  • requiring applications to specify where each claim element is discussed in the detailed description;
  • requiring applications to state whether terms of degree (“substantially,” “approximately,”  ”about,” etc.) have a lay or technical meaning and explaining the scope of such terms; and
  • including a glossary of specialized terms and designating a default dictionary for other terms.

On February 12, Jon Potter, of Application Developers Alliance, made recommendations for improving the patent application system. He recommended as follows:

  • USPTO “should require software patents applications to be written in plain language to be easily understood by coders and reasonably smart people”
  • “Patent examiners should be trained to reject applications that do not clearly describe the invention and precisely set out the limits of patent claims.”
  • Additionally, the patent application must describe the invention with enough detail that a reader could actually make and use it. Without sufficient detail, neither an examiner nor the public can be sure that there is really an invention being patented, or whether it is only an unpatentable idea.

I very much agree with Mr. Potter’s suggestions. I will also add that while these suggestions seem to be geared at making it harder for everyone (including trolls) to register software patents, as an attorney for tech companies I can confirm that many of my clients — legitimate entrepreneurs — do not bother applying for software patents for the basic reason that most software “inventions” do not have sufficient novelty to withstand a reexamination process, even if they do get through the initial threshold of patentability.

Thus any USPTO changes that make it harder to patent software in the first place will really only affect the trolls… which is fine by me.

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