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EFF Proposes a Working Code Requirement For Software Patents 130

Posted by Soulskill
from the system-and-method-for-manipulating-0s-and-1s dept.
Juha Saarinen sends news that the Electronic Frontier Foundation has proposed a fix for software patents in general and patent trolls in particular: requiring applicants to provide specifics about their solution. They say the applications should include working code, or at least "detailed, line-by-line notations explaining how their code works." "And if they do get a patent, they should be limited to the invention they claimed. We think software patents are bad news, and incredibly harmful to our society and economy. We wish we didn’t have to deal with them at all. But by fixing the functional claiming problem, and limiting patentees to a narrow invention that they actually came up with, we would also limit the amount of harm those patents could cause. The Patent Office does not (yet) have the power to get rid of software patents entirely, but it can fix the functional claiming problem."
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EFF Proposes a Working Code Requirement For Software Patents

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  • by DickBreath (207180) on Friday February 15, 2013 @01:36PM (#42912361) Homepage
    It's not a complete solution to patent reform. It's just a small part. It raises the bar. Instead of just filing a patent on some idea, you at least must have something that works.

    I worked as an 'expert' defense witness on a patent case where the patent was just a 'paper patent'. (This was because I had co-developed a product and still had a shrink wrapped boxed copy from way back when.) The patent had many internal inconsistencies. The parties ended up 'settling' after I provided a working implementation that had been sold and offered for sale over a decade earlier. I assume the 'settling' meant the troll went back under the bridge.

    If this specific patent had been required to have a working implementation, it would never have been granted in its current form.
  • Functional Claiming (Score:4, Informative)

    by Grond (15515) on Friday February 15, 2013 @02:17PM (#42913069) Homepage

    What the EFF is specifically decrying is functional claiming. That is, an element of a claim described not in terms of what it is but in terms of its function. For example, instead of claiming a nail or a screw, claiming "a means for mechanically fastening" or, even more broadly, "a fastening means." This is allowed under 35 U.S.C. 112 6, now 112(f):

    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.

    In other words, you can use functional claiming, but you have to explain what you mean in the specification, and you only get what you describe there, plus equivalents. If you don't describe what you mean then the claim is invalid as indefinite.

    In the case of software, generically claiming an algorithm (e.g. "sorting means") requires describing in the specification what you mean by that. There has to be some corresponding structure. Failure to properly support a functional claim has bitten many a patentee. This happened just recently in a software patent case involving Google as a defendant, for example. Function Media, L.L.C. v. Google Inc. [patentlyo.com]. Overall, the popularity of functional claiming has been dropping like a rock. From ~1992 to 2011 the percentage of newly issued patents with at least one "means for" claim fell from ~45% to ~10% [patentlyo.com]. It has since fallen to almost 5%.

There is no distinction between any AI program and some existent game.

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