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Oct 21, 201312:28 PMLegal Login

with Mindi Giftos

Whatever happened to software patents?

(page 1 of 2)

As the need for software technology continues to explode, the patentability of software technology continues to implode. The U.S. Supreme Court and U.S. Court of Appeals for the Federal Circuit continue to tirelessly push software patents out of reach. Meanwhile, the U.S. Patent & Trademark Office (USPTO) is so backlogged and understaffed in the area of software technology that even if one could outmaneuver the latest court decisions, receiving a software technology patent would take about five years.

With the path to software patents becoming expensive, time consuming, and unpredictable, many are led to question if they should bother seeking software patent protection any longer.

One may ask, how did software patents — along with their twin brother, business method patents — become the scourge of the patent world? Actually, it was a group effort, headed by a court that could not foresee the pervasive effect that computers (i.e., processors) would have on every facet of our lives. This is followed by overreaching abuse by non-practicing entities (“patent trolls”), who collect patents from inventors and use them to shake down every corporation with a mailing address and a computer. Even the USPTO did its part to set these wheels in motion, although much like the courts, it simply lacked the ability to foresee the inevitable.

The problem arguably began in 1998, when the U.S. Court of Appeals for the Federal Circuit reversed a district court’s finding of invalidity for a patent claiming a computer-implemented data-processing method. (State Street Bank & Trust v. Signature Financial Group, 149 F.3d 1368, 47 U.S.P.Q.2d [BNA] 1596 [Fed. Cir. 1998].) The lower court had invalidated the patent, claiming that it lacked patentable subject matter. The appeals court disagreed, stating that patentability can be found if the invention produces a useful, concrete, and tangible result. The appeals court further emphasized that the validity of such patents should hinge more on the issues of novelty and obviousness. This decision provided the clear precedent needed to open the floodgates for generating patent applications directed to computer-implemented processes that the USPTO was ill prepared to handle.

Once the burden fell on the USPTO to allow or disallow computer-implemented processes based on novelty or obviousness, it discovered a problem. Due to the rapidly evolving nature of computer technology, the USPTO simply lacked the necessary references required to demonstrate obviousness or a lack of novelty. Without such “prior art” references, which include patent applications, patents, etc., the USPTO was unable to set forth arguments to deny broadly claimed computer-implemented processes. This resulted in the issuance of countless software and business method patents that, to this day, require corporations to spend millions of dollars to judicially invalidate, or be forced to pay a license fee.


Dec 9, 2013 05:14 am
 Posted by  Carrie

I think software is an algorithm so that is why there should not be any patent related to the softwares.I think software patents are avoiding the developers to get benefit out of it.

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About This Blog

Mindi Giftos and her colleagues in Husch Blackwell’s Technology Law group handle a wide variety of issues related to emerging and established technologies, including intellectual property, development and licensing, commercial contracting, and corporate transactions across a broad range of industries.

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