VII. Brief Summation
The patent system is intended to benefit society by encouraging the development of innovations while also awarding innovators for the duration of the patent. Software patents are often used not to promote innovation but to discourage it. Two trends converge and interrelate: the award of vague and overbroad software patents; and inconsistent decisions in court cases related to software-patent awards and infringement claims.
Some of the blame for inappropriate software-patent awards is placed on overworked USPTO patent-application reviewers who are unable to recognize the obviousness of some software-patent claims, which results in the award of overbroad patents.
If all software-patent applications required executable code demonstrating the “process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” (35 USCS § 101) at the core of the proposed patent, the resulting codebase would serve as a signature for the algorithms and other code in the application that is novel, useful, and non-obvious.
In addition to providing a precise description of the operation and scope of the proposed software patent, the codebase would facilitate searches for prior art by USPTO officials and by software developers working on products which may include patentable material. It would also serve as a resource for software developers to discover potential software-patent infringement.
The examples supra demonstrate the inconsistent interpretation by courts of prior art, novelty, and non-obviousness as applied to software-patent infringement claims. While codebases of open software exist, the broad scope of such a software-patent codebase would require a tremendous development and management effort. Also, a technology as complex and multifaceted as software will never be fully accommodated by a single approach to specification, demonstration, and discoverability of patent claims.
This research pathfinder merely scratches the surface of the requirements of an effective protocol for the examination of software-patent applications in accordance with 35 USCS § 1, et seq.
VIII. Appendix A: Design Innovation Proposal for Software-patent Reform
Some of the blame for inappropriate software-patent awards is placed on overworked USPTO patent-application reviewers who are unable to recognize the obviousness of some software-patent claims, which results in the award of overbroad patents.
If all software-patent applications required executable code demonstrating the “process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” (35 USCS § 101) at the core of the proposed patent, the resulting codebase would serve as a signature for the algorithms and other code in the application that is novel, useful, and non-obvious.
In addition to providing a precise description of the operation and scope of the proposed software patent, the codebase would facilitate searches for prior art by USPTO officials and by software developers working on products which may include patentable material. It would also serve as a resource for software developers to discover potential software-patent infringement.
The examples supra demonstrate the inconsistent interpretation by courts of prior art, novelty, and non-obviousness as applied to software-patent infringement claims. While codebases of open software exist, the broad scope of such a software-patent codebase would require a tremendous development and management effort. Also, a technology as complex and multifaceted as software will never be fully accommodated by a single approach to specification, demonstration, and discoverability of patent claims.
This research pathfinder merely scratches the surface of the requirements of an effective protocol for the examination of software-patent applications in accordance with 35 USCS § 1, et seq.
VIII. Appendix A: Design Innovation Proposal for Software-patent Reform
Copyright 2014-2015 by Dennis O'Reilly/Rag Hall -- All rights reserved.