Archive for the ‘patents’ Category

Everyone in patent law (and in software, and in pension management) is waiting breathlessly for the Supreme Court to issue an opinion in Bilski.  Everyone agrees that it’s probably Justice Stevens (who is regarded as a patent minimalist) authoring the opinion.  Likewise everyone agrees that the decision, when it comes,  will be bad for business-method patents.  People with idiot business-method patents, like Jeff Bezos and his infamous Amazon 1-click patent, are sad about this.  On the other hand, most people who actually create and invent stuff are genuinely happy.  The only real controversy at this point is how far the court will go: will it strike only business method patents, or will it rule that no software should be included in the list of patentable subject matter.  But the thing is, it’s (at least nominally) Bilski bringing this fight, trying to keep his ridiculous business method patent alive!  If it seems so clear that he’s going to lose, why not just give up now and avoid setting precedent?

I make no bones about my position- I’m anti-patent in general, and anti-biz-method / software patent in particular.

So when I saw this post from George Washington Law Prof John Duffy at Patently-O, I was afraid at first that he was giving Bilski to escape being hoist on his own flawed petard.  But when you get to the end of the article you find this gem:

I had previously thought that “irrational exuberance” provided the best answer—that the Bilski petitioners were likely to remain unrealistically optimistic about their chances for success right up to the end. But the presence of a multibillion-dollar corporation controlling the litigation decreases the chances that the strategy is due to simple inventor over-optimism.

It seems that Bilski sold the patent at issue … to a corporation that apparently wants to have business method patents killed off entirely.


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another link from Wired this morning: pro bono group’s challenge to patent on naturally-occurring genetic material allowed to proceed:

U.S. District Judge Robert W. Sweet of New York, in ruling that the case may proceed to trial, noted that the litigation might open the door to challenges of a host of other patented genes. About one-fifth of the human genome is covered under patent applications and claims.

Allowing patents on genes isolated from living things is bad policy, because it delays and imposes costs on important research even while it raises administrative costs by promoting speculative land-rush patent filing. The patent act was never meant to encompass natural phenomena, and the last 20 years of biotech patenting can only be explained by the fact that 20 years ago, patent examiners and judges didn’t understand the science well enough to reject these claims on the grounds that the claimed “invention” was occurring on its own, naturally, without human intervention.

Hopefully this is just another sign of an ongoing rollback in the scope of patentable subject matter. If Bilski ends the era of business method patents, it will probably have the collateral effect of putting a stake through the heart of software patents at the same time. If this case about gene patents is also carried through effectively, we’ll have come a long way back towards sanity in the US patent system.

And, incidentally, created a lot of work for patent litigators specialized in challenging business method, software, and gene patents on behalf of new market entrants.

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Final exams this week and next.  Light law-type blogging to resume just in time for Christmas.  And as Slashdot notes, today is the anniversary of the Amazon 1-click patent lawsuit filed against Barnes & Noble.  Perhaps in time we’ll be able to look back at that action and decide that it was the first clear demonstration why software should be excluded from the definition of patentable subject matter.

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Via the Register, you can learn more about the USPTO’s decision to strike down Amazon’s infamous one-click “business method” patent.  Amazon will surely appeal this decision.  And they will surely lose the appeal, as this patent never should have been granted.  For the record, I think that all business method patents and all “algorithm” or “software implementation” patents are invalid as a matter of law.  It’s not the 80s anymore.  Whatever your business may be, “doing X with a computer” just doesn’t express the requisite novelty to merit patent protection.  In this case, the guy who made the request for re-examination is not a lawyer, and he filed his request BEFORE the new KSR v. Teleflex decision came down.  One can only imagine how much easier it would have been to write the brief with Teleflex as precedent.

Less clear to me is whether Amazon will now be forced to refund all of the fees that they have extorted from other businesses by menacing them with infringement lawsuits based on this patent.  When the USPTO revokes a patent grant, does it dissolve the rights of the patent holder ab initio, or only for future disputes?  Does Amazon have any lawsuits currently pending based on the one-click patent?

Today at the SCOTUSblog, there is a link to a new publication from the University of Michigan, something about a patent symposium over the import of the new “obviousness” test that has emerged from Teleflex.  I wonder if any of the speakers have heard the news about Amazon.

Just for good measure, Wired has republished a list put out by the Electronic Frontier Foundation of the ten worst patents currently in effect.

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Sounds like a pretty good deal to me.   Should keep the technology transfer offices at UO busy.   Of course what they don’t get to until 9 paragraphs deep in the article is that they expect the universities to make up any tax the state forefeits by licensing revenues and royalties from inventions.   But I guess that’s how research works these days.

And someone will have to negotiate all of those license agreements…

PORTLAND — (Oct. 4, 2007) — A 60 percent income tax credit is now available to Oregon taxpayers who contribute to a new program designed to fast-track commercialization of research discoveries at Oregon’s eight public universities. . .  “This tax credit is one of a kind,” Oregon State Treasurer Randall Edwards told a capacity crowd at a Portland event hosted by the Oregon Innovation Council (Oregon InC) and the Oregon University System (OUS) to publicly launch Oregon’s University Venture Development Fund.  “No other state has a program where donors can receive such a generous tax credit in return for helping move research from lab to market,” Edwards said.

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A one-two punch of court decisions handed down Sept. 25 and Sept. 26 cast further doubt on Vonage’s (VG) future and halved the market value of the beleaguered Internet-calling provider.

The rest of the story is here.  Looks like they’re toast; too bad.  I liked the idea of paying for naked DSL, no voice service from the phone company, and then running all of my calls from home through Verizon.  But we never signed up for the service, becuase the first one of these patent infringement lawsuits kicked off just after we moved here.  I realize that these losses don’t impact their actual delivery of service, and for some people Vonage still makes a lot of sense.  But I don’t imagine lots of people are eager to sign up for a year-long contract with a phone company which might not be around six months from now.

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As the WSJ Lawblog so dutifully notes, change is in the wind for US patent policy.

 “It’s a victory against patent trolls,” Goldin told the Times. “This has changed the landscape. The days of coming up with an obvious idea and patenting it and using legal extortion are over.”

One can only hope he’s right.

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