US Patent & Trademark Office spoiling for a patent fight

John F. Duffy, a professor of Law at The George Washington University Law School, recently wrote that the United States Patent and Trademark Office has increasingly taken stands on patents that "will invalidate many and perhaps most software patents." If only.

Duffy worries that "the PTO's new interpretation of patentable subject matter provides a clear avenue to reject patent applications and to invalid issued patents on all such innovations without regard to how meritorious or creative the innovation is," but he both overstates his case and understates just how important it would be for the US PTO to actually carry through on this threat.

Patents have proved to be weak spurs to cash (and, hence, invention) in software. Regardless, given the fast pace of software technology, patents are effectively of an infinite duration: Even if they worked, they work for far too long.

I congratulate the US PTO on its newfound strength against the deleterious effects of patents on the software industry. Sanity...at last.

[jrepenning]

Duffy's analysis of the PTO rulings seems sound to me (including his "Kafkaesque" characterization of the idea that things that use two processors are patentable even though things that use only one are not!). But his own underlying argument or position seems even less tenable than the PTO's. So near as I can tell, Duffy's position is "anything that someone is today making money on should be patentable." I can't help thinking that there needs to be some way to extend patents beyond the physical machinery world where they were invented, but "anything anyone presently turns to profit" is surely not the right test, either!

[The_Decider]

Given that every software patent is invalid it is about time and nothing but positive effects would occur for software users and the computer industry alike.

That it would hurt patent trolls makes it doubly good!

[dinnertime]

there would be far less hand wringing over patents, software or otherwise, if those who were so quick to demonize had more knowledge of them. For example, ann wang?s patent for magnetic memory hinged on his insight that the way to get around the problem that every time you read from it the contents were erased. His solution was to write it back. Simple enough, but before him no one could figure out how to solve the problem. Often there is a single moment of light that leads investigators to sensible and at times brilliant solutions...inventions.

Please note that the US Constitution provides for patents for discoveries, ?securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries?. Whatever field they may entail, they are deserving of protection. If we cannot protect our discoveries we will not invent.

Call it what you will...patent hoarder, patent troll, etc. It all means one thing: ?we?re using your patent and we?re not going to pay.

All this talk of a need for patent ?deform? is but a red herring fabricated by a handful of large tech firms as a diversion away from the real issue...that they have no valid defense against charges they are using other parties' technologies without permission. It?s not about reforming the system. It?s about legalizing theft!

The objective of these large firms is not to fix the patent system, but to destroy it or pervert it so only they may obtain and defend patents; to make it a sport of kings. Patents are a threat against their market dominance. They would rather use their size alone to secure their market position. Patents of others, especially small entities, jeopardize that. For example, the proposed change to eliminate the use of injunctions would only further encourage blatant infringement. Any large company would merely force you to make them take a license. They would have little to lose. Everything would be litigated to death -if a small entity can come up with the cash to pursue. That's what these large multinationals are betting against. This legislation in regressive, not progressive.

Sadly, some legislators and other parties have been duped by these slick firms and their well greased lawyers, lobbyists (some disguised as trade or public interest groups), and stealth PR firms...masquerading as reporters. Don't be surprised to find the Washington lobbyist scandal spreading into the patent deform proceedings.

When corporate America agrees to not use our inventions without consent, American inventors and small entities will agree to stop suing them.