II. Software Patentability
A. Intent of USCS Const. Art. I § 8, Cl 8
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”
Does current practice of software patent holders “promote the Progress of Science and useful Arts”?
“USCS Const. Art. 1 § 8, cl 8 authorizes Congress to promote useful arts by securing for limited times to inventors exclusive right to their discoveries. Congress may set conditions and tests for patentability; as corollary to grant of any power under Article 1, Congress may implement stated Constitutional purpose by selecting policy that in its judgment best effectuates Constitutional aim. Graham v John Deere Co. (1966) 383 US 1, 15 L Ed 2d 545, 86 S Ct 684, 148 USPQ 459.
“Patent Act of 1952 changed the slow but steady drift of judicial decisions hostile to patents; the test laid down in Hotchkiss v Greenwood (1850) 11 How (US) 248, 13 L Ed 683 still has nominal authority, although little remains in actual application. Congress restored the old definition, raising it from “judicial gloss to statutory command.” Reiner v I. Leon Co. (1960, CA2 NY) 285 F2d 501, 128 USPQ 25, cert den (1961) 366 US 929, 6 L Ed 2d 388, 81 S Ct 1649, 129 USPQ 502, reh den (1961) 366 US 978, 6 L Ed 2d 1268, 81 S Ct 1918.”
In 1952, Congress attempted to take patent policy out of the hands of the courts by clarifying the role of the renamed Patent and Trademark Office. Subsequent updates to patent law via the American Inventor's Protection Act of 1999, Pub. L. 106-113, the Intellectual Property and High Technology Technical Amendments Act of 2002, Pub. L. 107-273, and the Leahy-Smith America Invents Act, Pub. L. 112-29, have attempted to modernize the patent process, with mixed results.
David Kappos, director of the United States Patent and Trademark Office, defends AIA’s improved procedure for awarding software patents, as noted by Ars Technica’s Timothy B. Lee in an article published on November 20, 2012. However, AIA has done little to quiet the critics of current software-patent procedures. Pablo Chavez, Google’s director of public policy, says the law fails to stem the patent wars between patent trolls who acquire patents only to wield in infringement suits, and software developers who arm themselves with thousands of patents they intend to use only as a defense against patent-infringement claims by others. CNET’s Declan McCullogh describes Chavez’s remarks on the subject at the Technology Policy Institute conference in August 2012.
In an opinion piece published on Wired.com in November 2012, Richard Stallman proposes changing patent law so that “developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement.” Stallman argues that changing the effect of software patents rather than their patentability is the only practical way to protect software developers and software users.
Congress clearly intended to include true software innovators under the protections afforded by Article 1 § 8, cl 8 of the U.S. Constitution and subsequent legislation, as manifest in 35 USCS § 1 et seq. Providing software developers and users with immunity from infringement claims for software developed, distributed, and run on general-purpose hardware may prevent legitimate software-patent holders from being fairly rewarded for their “useful” inventions.
The Electronic Frontier Foundation is one of several technology organizations that propose requiring all applications for software patents to include executable code that demonstrates the material covered by their proposed patents. Whether such a codebase for patented software conforms to the goals and requirements of current patent regulations and procedures is researched in this pathfinder.
B. 35 USCS § 101
Does current practice of software patent holders “promote the Progress of Science and useful Arts”?
“USCS Const. Art. 1 § 8, cl 8 authorizes Congress to promote useful arts by securing for limited times to inventors exclusive right to their discoveries. Congress may set conditions and tests for patentability; as corollary to grant of any power under Article 1, Congress may implement stated Constitutional purpose by selecting policy that in its judgment best effectuates Constitutional aim. Graham v John Deere Co. (1966) 383 US 1, 15 L Ed 2d 545, 86 S Ct 684, 148 USPQ 459.
“Patent Act of 1952 changed the slow but steady drift of judicial decisions hostile to patents; the test laid down in Hotchkiss v Greenwood (1850) 11 How (US) 248, 13 L Ed 683 still has nominal authority, although little remains in actual application. Congress restored the old definition, raising it from “judicial gloss to statutory command.” Reiner v I. Leon Co. (1960, CA2 NY) 285 F2d 501, 128 USPQ 25, cert den (1961) 366 US 929, 6 L Ed 2d 388, 81 S Ct 1649, 129 USPQ 502, reh den (1961) 366 US 978, 6 L Ed 2d 1268, 81 S Ct 1918.”
In 1952, Congress attempted to take patent policy out of the hands of the courts by clarifying the role of the renamed Patent and Trademark Office. Subsequent updates to patent law via the American Inventor's Protection Act of 1999, Pub. L. 106-113, the Intellectual Property and High Technology Technical Amendments Act of 2002, Pub. L. 107-273, and the Leahy-Smith America Invents Act, Pub. L. 112-29, have attempted to modernize the patent process, with mixed results.
David Kappos, director of the United States Patent and Trademark Office, defends AIA’s improved procedure for awarding software patents, as noted by Ars Technica’s Timothy B. Lee in an article published on November 20, 2012. However, AIA has done little to quiet the critics of current software-patent procedures. Pablo Chavez, Google’s director of public policy, says the law fails to stem the patent wars between patent trolls who acquire patents only to wield in infringement suits, and software developers who arm themselves with thousands of patents they intend to use only as a defense against patent-infringement claims by others. CNET’s Declan McCullogh describes Chavez’s remarks on the subject at the Technology Policy Institute conference in August 2012.
In an opinion piece published on Wired.com in November 2012, Richard Stallman proposes changing patent law so that “developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement.” Stallman argues that changing the effect of software patents rather than their patentability is the only practical way to protect software developers and software users.
Congress clearly intended to include true software innovators under the protections afforded by Article 1 § 8, cl 8 of the U.S. Constitution and subsequent legislation, as manifest in 35 USCS § 1 et seq. Providing software developers and users with immunity from infringement claims for software developed, distributed, and run on general-purpose hardware may prevent legitimate software-patent holders from being fairly rewarded for their “useful” inventions.
The Electronic Frontier Foundation is one of several technology organizations that propose requiring all applications for software patents to include executable code that demonstrates the material covered by their proposed patents. Whether such a codebase for patented software conforms to the goals and requirements of current patent regulations and procedures is researched in this pathfinder.
B. 35 USCS § 101
Copyright 2014-2015 by Dennis O'Reilly/Rag Hall -- All rights reserved.