The article this week revisits the idea of patent validity. Even in the past cases, it is clearly shown that the Supreme Court has difficulty coming to a consensus on issues including the Bilski case and Alice vs. CLS Bank case even on the basis of obviousness. With the patent landscape filled with patent trolls, it has become more important for patents to be shown to be non-obvious.
For some larger companies, there is a push for patents especially for software patents in proving that the patents are actually necessary. What is interesting is patent holders are pushing for a section 101 test rather than a 103 test (basis on obviousness). However, it may make sense since software patents are different other types given the patent can last for 20 years. The patent could become obvious over the 20 year duration especially if other competitive software can replicate the same features.
Another interesting point is that different companies want to push for different patent tests. The two tests of interest are section 101 and section 103. Groups like Google, Microsoft and Netflix seem to champion a section 101 test on the abstractness of the patent claim to accelerate the processing. However, other groups like IBM seem to want section 103 tests to be adopted more widely to allow better patent processing especially since they do focus on many software patents.
It seems that it may be difficult to determine the best way or if a combination of patent tests need to be done upfront to minimize damage from patent trolls. Despite this issue, it is important to filter patents that seem obvious even if they are obvious.
http://arstechnica.com/tech-policy/2014/03/how-far-will-the-supreme-court-go-to-stop-patent-trolls/
http://www.patentdocs.org/articles_cases_obviousness/
http://www.washingtonpost.com/blogs/the-switch/wp/2014/04/02/fungb-2/?tid=hpModule_1728cf4a-8a79-11e2-98d9-3012c1cd8d1e
Great choice of topics Norman, keep up the hard work.
ReplyDeleteOver the past few weeks, I have realized how ridiculous it is that thousands of obvious and otherwise useless patents are approved by the USPTO per year. If we want to get to the root of the "Supreme Court confusion on obviousness" issue, I feel that USPTO reform should be more of the focus. Opinions?
ReplyDeleteHi Norman! So why is proving that patents are actually necessary even greater for software patents than other patents? Is it because for software patents, it is much easier to tweak the code a little bit (i.e. make small changes in the code) and then patent it again? I do understand the difficulty in the fact that with how fast improvements and developments in software are going, a piece of code that was non-obvious 10 years could be obvious now. I can see how it would be difficult to figure out the most efficient and optimal way to minimize damage from patent trolls.
ReplyDeleteAs I am not an expert in the software field, it is difficult more me to fully grasp how the difference between utilizing section 101 vs 103 would shape the progress of different software companies. 101 is more geared towards the abstract while 103 is focused on the obviousness. It is interesting to me that the difference of which type of argument presides over the other could determine the course of how the software industry could shape up in the future! What's even scarier is that software was only in it's early stages 20 years ago so who knows what new product we will try to determine to address next!
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