Easy Fix For Software Patents Found In US Patent Act 172
WebMink writes "What if there was an easy, inexpensive way to bring software patents under control, that did not involve Congress, which applied retrospectively to all patents and which was already part of the U.S. Patent Act? Stanford law professor Mark Lemley thinks he's found it. He asserts that the current runaway destruction being caused by software patents is just like previous problems with U.S. patent law, and that Congress included language in the Patent Act of 1952 that can be invoked over software patents just like it fixed the earlier problems. All it will take is a future defendant in a patent trial using his read of a crucial section of the Patent Act in their defense to establish case law. Can it really be that easy?"
Re:He is wrong. (Score:2, Informative)
His flaw is the assumption that software which is nothing more than math falls in the realm patents. It doesn't. Any Darwinian monkey would know this.
No, his awareness is that, however silly it may be, the courts have to this point declined to declare math implemented in a software algorithm as unpatentable. Given that reality, he outlines a possible approach to mitigating the resulting damage.
Your assumption is that common sense matter in a court of law. It does not.
Re:Betteridge's Law (Score:5, Informative)
Just for clarity. (Score:5, Informative)
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
Re:He is wrong. (Score:4, Informative)
Tightening up enablement and written description (Score:5, Informative)
What this boils down to is tightening up the enablement and written description requirements of 112 of the Patent Act, specifically with regard to the way functional claims are judged. This is not a particularly new idea, and quite a few people (including those that could be called 'pro-patent') have been saying for years that this is a reasonable way to address problems with lots of different kinds of patents, including software patents, that doesn't involve technology-specific changes to the law. I certainly have mentioned it on Slashdot many times (e.g. this comment from 2010 [slashdot.org]).
One issue is that the use of functional claiming has been in pretty steep decline [patentlyo.com] for a few decades now. So I'm not sure just how many software patents this approach will catch, but it could be that software patents are one of the last holdouts for functional claiming. Alternatively, the courts could begin to interpret software patents as using functional claiming even when they don't use the traditional "means-for" construction. This is already done in some cases (i.e. "means for" is not a necessary magic phrase), but it could become more common.
The bottom line is that this is a call to restrict patenting to only that which the inventor actually discovered and actually described in such "full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains to make and use the same." In other words, to enforce the statute as written.
Re:Judges (Score:5, Informative)
I don't think you understand courts and judges. Judges aren't sheriffs. They don't enforce the law. They're more like referees in that they make sure both sides play fair in the court of law. It's up to the lawyers to present and support their case, a judge simple decides who made their case. If a lawyer chooses the wrong cases from previous trials to support his argument (essentially, he fails to support his argument), then he loses - more specifically, his client loses.
People give lawyers and judges a hard time, but they're the one preserving our liberties. We don't give them enough credit. The people who should be blamed for our problems are the idiots who write the laws. Lately that's been private interests and lobbyists and not our representatives.
Re:Judges (Score:5, Informative)
THIS
Even if a judge knows a better argument a lawyer could be making he cannot step in and help. It's up to the lawyers to present their case as best they can.
Well not exactly.
The higher courts often reach to statutes and case law that was never mentioned by either side during their arguments.
Re:It does not matter (Score:3, Informative)
We live better today than every single human ever prior to 1850.
Ah, so the crumbs have gotten bigger, and we're supposed to not notice that all we're getting are crumbs?