IEEE Proposes New Class of Patents

cheesedog writes "The IEEE Spectrum proposes a new type of patent that wouldn't require formal examination, would cost significantly less than traditional patents, would last only 4 years from date of first commercial product, and which wouldn't carry a presumption of validity. These 'limited patents' would be attractive to innovators in the fast-moving high-tech industry that can't wait 18-24 months for patent approval, and would help improve patent quality by populating the USPTO's prior-art database more efficiently. Additional commentary on this proposal is available."

The question is ...

... did they patent this new class of patents?

Re:Let's see....

I betcha I can come up with a method of posting even faster than THAT, using an innovative mechanism derived from non-obvious technological advances. Claim#1: ....

Re:The question is ...

I would hope that you won't be allowed to "patent" this proposal because it is not "new type of patent."
In fact, IEEE's proposal parallels the system in Australia, which allows "innovation" patents to issue without review. http://www.ipaustralia.gov.au/patents/what_innovat ion.shtml [ipaustralia.gov.au]

Australian Innovation Patents, as they are called, last a maximum of 8 years, are granted without examination within 1 to 3 months. However, before enforcement or even threatened enforcement of an innovation patent, someone (not just the owner of the patent) must request a formal examination of the patent.

These systems have their problems as well. See: http://news.bbc.co.uk/1/hi/world/asia-pacific/1418 165.stm [bbc.co.uk] in which a lawyer patented the wheel using this system.

Nevertheless, with sad state of affairs in this country, you probably could file an application and get a piece of paper back granting you a patent this "process." :)

[ Begin Rant ]

The problem with these types of "IEEE" or "innovation" patents is that they worthless.

First, without the initial review, the patent owner is left unaware if there are serious deficiencies in his patent until he tries to enforce it. Between 2000 and 2003 roughly 300,000 patent applications were filed each year. Between 2001 and 2004 roughly only half those applications matured into granted patents. http://www.uspto.gov/go/taf/us_stat.htm [uspto.gov]. During the examination process, there are ways to cure these deficiencies. For example, the inventor may amend the claims or file another application. The system currently proposed by IEEE does not serve inventors because it cannot forewarn applicants that there is a problem. (Of course, the current system is broken, but in other ways.)

Second, even if the owner has a valid patent, he would not be able to recuperate the costs of enforcing that patent. By giving a limited monopoly for 4 years, the patent owner can only recover damages for those 4 years. Take this example: Inventor A gets invents a widget and wants to bring it immediately to market (and can), so he gets an "IEEE" patent. Company B sees A widget and decides to reverse engineer and sell the widget. If it takes Company B a year to reverse engineer and market widget, then the soonest A would realize that B is infrigning is in the 2nd year of his patent's 4 year term. However, before he can even threaten B, he must have the patent reviewed by the patent office for validity. This might take 3-6 months (I am guessing). This puts him into his 3rd year. After a finding of validity, A then has to commence suit, which generally takes more than a year. So after everything is said and done, B only has to pay royalties for 3 years and can continue manufacturing the widget because A's 4-year patent term has expired by the end of litigation. What was accomplished by suing B? A expended hundreds of thousands of dollars in litigation only to gain 3 years worth of royalties, which probably weren't that much.

On the other hand, with a standard patent, the patent owner, A, could recover damages for 20 years and/or charge Company B a royalty for the remaining term of the patent. Now, if that widget was, for example, the iPod, then A would have benefited by obtaining a standard patent.

For these reasons, no major company will pursue an "IEEE" patent even if it was allowed.
[/end Rant]

So

I can just imagine what it will be like when a patent dispute happens. We already have enough BS patents out there clogging up the patent office that slow them down, how is this going to help any? I agree that patents need to be granted more quickly, but is giving out patents without formal examination really the answer?

Re:So

This has already been tried, in Australia. In fact, the law won an IgNobel prize for John Keogh and the Australian Patent Office [improbable.com] for patenting the wheel in the year 2001. Apparently he did it to demonstrate that the new patent laws were pointless. I have no idea if his patent has ever been challenged in court!

Re:So

Patent review processes that work. Patent reviewers that are skilled in the field of the patent being reviewed. Adjusting patent law back to the point where the patented idea must be nonobvious and nontrivial. Streamline the dispute process, for both sides of the dispute. I could go on, but it's lunch time.

Re:The only type

As far as software is concerned, and perhaps some other idiotic types of IP (like copyright on the "appearance" of a building in a public location), is to ELIMINATE it. Their absence is what got us where we are, but for some reason, people feel like they have to squeeze every last bit of "value" from something that is often completely intangible. The only thing it's doing is slowing things down and increasing costs. I imagine that not too long from now, the "leaders" in the US government will be scratching something, wondering why the US continues to either lag behind, or give up ground to, other countries in important areas like science and technology. The current patent system has shackled and menacled our ability to remain agile, and I fear that we will pay dearly for that over the long term.

Re:So

We already have enough BS patents out there...

Indeed; helping increase the volume of bad patents doesn't seem like a useful goal. The main problem with software (and other more abstract) patents is not the slow process for granting them, it's the fact that they keep granting idiotic patents that are very obvious to anyone even remotely skilled in the art. Searching and validating beforehand may be expensive, but is a lot cheaper than a court fight....at least in an overall sense.

On the other hand, if their intention is to fuel outrage in blogs and community websites (like /.), or provide even more material for people to make fun of them, this will be a great success.

Just FYI

In the proposed IEEE system...

I submitted a correction to /. about this, but The Powers That Be didn't bother to fix the headline, so I'll try do it here: (this is a repost of this comment)

I'm the IEEE Spectrum editor of this article, and for the record the IEEE has made no such proposal. To quote the disclaimer we run with every issue: "The editorial content of IEEE Spectrum magazine does not represent official positions of the IEEE or its organizational units."

Prof Hollaar's article is funtionally equivalent to an Op-Ed -- as a respected, knowledgedable, and articulate individual, he was given space in the magazine to share a proposal we found noteworthy. We've actually run a lot of articles on the "What To Do With Patents" theme recently, as our contribution to the patent reform debate, with authors advocating ideas ranging from replacing software patents completely with copyright, to more-or-less leaving well enough alone. I think it's great /. is debating Prof. Hollaar's idea, just note that it's not an official IEEE proposal.

Great idea!

This is a very good idea. My current patent application was filed Jan '01 and is still being reviewed!

TimJowers

4 year patents are different... why?

So a 4-year patent just means you have to pay them 4 times, and then you have procured the patent for the approximage 17 years of a regular patent. Or, perhaps longer... assuming pressure from all the companies to whack this once it goes into effect, so that they can keep their patents for cheaper. Any patent system's original rules will be altered by pressure from the largest patent holders. What we need to have happen is to force accountability for patent fees, i.e. force some kind of license limit on the amount you can ream people for off of them.

without the presumption of validity?

So all the people that have been submitting crap to the patent office that actually gets qualified as "valid", even if it isn't will have a field day patenting everything then? If the onus is on everybody else but the patent-holder to prove that it isn't valid, that kinda sucks.

-Jesse

Re:without the presumption of validity?

Exactly.

Imagine Acme Corp. files a 'limited patent' for Widget X and it's granted without examination. My widget, Widget Y does the same thing as Widget X, and it's actually got a real patent pending and has been on the market for 3 years.

However, Widget Y hasn't been selling very well due to my inability to market the product, and well, I can't afford good legal representation. So I can't sue Acme Corp. at all... worse, Acme Corp. notices my product and decides to sue me! Since Acme got their 'limited patent' first and mine is just pending, Acme wins!

Screw that. It sounds like a patent abusers' wet dream.

Pay a fee to file prior art?

Novelty could be challenged at any point by someone submitting prior art and paying a small fee.

A fee? That sounds counter-productive to encouraging prior art submissions.

Clearly someon doesn't understand patent

First, while you are in patent pending, you are protected.

Second, Patents are not expensive, paten lawyers are. You can file a patent as an individual for a few hundred dollars.

Third, a patent is a way of saying you had it first, but there are other ways.

Forth, This would be even more abused then the current system

Clearly someone doesn't know the author

You don't know what you are talking about. Professor Hollaar has an intimate understanding of these issues. He is a blue-chip expert in this arena, and your suggestions to the contrary are wholly unfounded.

Lee Hollaar is one of our nation's most brilliant non-legal scholars regarding intellectual property issues. Lee has been active in intellectual proprerty matters for decades, and is the author of the BNA publication "Legal Protection of Digital Information," which you can read for free online [digital-law-online.info] (complete with hyperlinks to case law!) at the AUTHOR's insistance. Although he is no doubt an IP maximalist, his is frequenty a reasoned and well-informed view.

He is the author of or worked closely with the authors of highly influential amicus briefs that led the United States Supreme Courts to decisions in landmark intellectual property law cases. He worked on the hill as a staffer, and also as an advisor to the Federal Circuit Court of Appeals. And he has served as technical expert and special master in many important IP and technology law cases, including United States v. Microsoft.

As it turns out, I do not agree with Lee on the necessity or benefits of his "petit patent" proposal, and might agree with a more critically worded and substantive revision of the poster's remarks. Unlikely many on this forum, I find Lee to be open to new ideas and revisions of his old ones when confronted with solid argument. This flexibility toward truth-seeking rather than lockstep ideology is one of the principal reasons he is such a formidable opponent at a debate on IP matters, and why his opinions, even when they are wrong, are highly influential.

But I would Never, NEVER suggest that the proposal was founded in ignorance. Professor Hollaar has enormous gravitas in the IP community, and his influence is well-deserved. Right or wrong (I often disagree and spar with him), your suggestions about his understanding are wholly unfounded.

Re:Clearly someone doesn't know the author

We are all impressed with his resume.

However, that still does not change the fact that increasing the number of patents and decreasing the effective duration is a dumb idea.

Just because it is shorter does not make thing better when the number of rediculous patents will explode.

The problem is not necessarily that the patents are too long or even it is too expensive to obtain. The problem is that too many non-novel ideas are granted patents.

What Professor Hollaar suggests does not address those problems at all. And that does not change no matter how well respected he is.

So...

Has anybody patented this new type of patent yet?

Wrong direction

If your "invention" isn't in the same class as Penicillin or the Cotton Gin, it's not important enough to require a patent

Patent Spam For Teh Win!!!

OMFG!! Cheap Patents!! No validation!! And it only starts ticking down after the other guy brings his product to market!! IP companies are on the up!!!! zOMFGBBQ!!!!11!11oneone!eleven!!

They'll bring the patents, and the USPTO will bring the stamps.

Reducing the time constant

The current patent duration of 20 years was established in the prior revolution, the industrial revolution. It is way to long and benefits the major corporate holds the most. A patent in todays faster moving world should be short as is being proposed. That would reduced their importance and significance. Is an "innovative" idea like one click shopping significant enough to lock up for 20 years? I don't think so. The whole idea behing the duration is to to help an inventor recover the cost of an invention and capitalize on it. Today's entrepreneurs can recover an investment much more quickly than in the past.

Teh /. summary left something out

One thing the /. summary left out is this sentence:

Inventions not actually available in the marketplace would not be protected.

The main idea is to keep people from copying your work. It doesn't stop anyone with similar ideas but different implementations.

Incomplete summary

First off, a better view of the article [ieee.org](plaintext, one page).

What the submitter failed to mention is that the patent claim is validated only when the patent owner attempts to sue an alleged infringer of that patent. FTFA: "Should the patent owner try to sue an alleged infringer, an examination for novelty would be the initial step in any litigation." And goes on to claim that this is better because the alleged violator will have to provide prior art to invalidate the patent.

This seems to increase the amount of time developers will have to spend in courts, attacking and defending, while reducing the burden on the patent office. Less chance of mistakes, but probably not a viable option for smaller developers without the resources to spend on litigation.

Also, the other linked article [blogspot.com] claims that "Novelty could be challenged at any point by someone submitting prior art and paying a small fee." Anyone have any idea where this information comes from?

Sounds more like...

Microsoft and its lackeys did tons of lobbying to get this done... just a guess. *Less* technical review for software patents? That's the worst idea I've heard in years. Most patent reviewers for IT patents are already approving the most ridiculous things... (before I get flamed, by all means, put the word "patent" into a search here for /. stories)

Examination

The IEEE Spectrum proposes a new type of patent that wouldn't require formal examination

Judging by the quality of the examination for the current types of patents, this part wouldn't be much of a change. They might as well do away with examination of patents all together, considering some of the crap that gets approved.

the really high costs...

...arise defending your patent against a challenge by a billion $ company. That is the problem that must be addressed, not changing patents themselves (though a real examination of claims by the patent office would be nice as well.)

Change the existing system, don't add to it

"would last only 4 years from date of first commercial product"

This part I can buy, and I would go further and change the entire patent system to limit to 4 years on ALL patents from date of first commercial product. After all, the original objective of the patent system was to advance science, industry, etc. in the United States, it was not intended as a means of leeching cash from a productive industry or building monopolies. Shorter terms would force the hand of patent holders to put up or shut up.

I would also implement stricter rules on acceptance of patents. Today we hear over and over the excuse that lame patents are accepted because the office is overworked. I've read the rules on the uspto.gov website and several of the questionable patents that have been in the news and from what I've seen every one of them should have been rejected in the first 5 minutes of reading the abstract and claims.

The rules are simple and most patents don't pass muster. The patent office should be pushing back on those who file patents to submit applications which easily pass the initial tests:

"The patent law specifies that the subject matter must be "useful." The term "useful" in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.

Interpretations of the statute by the courts have defined the limits of the field of subject matter that can be patented, thus it has been held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.

A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required."

http://www.uspto.gov/web/offices/pac/doc/general/i ndex.html#whatpat [uspto.gov]

And from these basic rules it becomes obvious that SOFTWARE IS NOT PATENTABLE, you use copyrights for software. And just to add to the rant, a reimplementation of a concept or idea by someone else is not infringement of a copyright. I suspect that is why we have this big mess with software patents. I also suspect that part of the problem is interference from lawyers and lawmakers who have beaten the USPTO into submission, but at some point we need to stop all this stupidity.

burnin

A REALLY bad day

...a new class of peanuts.. I must take a break and/or get some glasses.

Just limit the number

Mandatory licencing via a maximum 15% tariff on patented goods would solve the problem.

Right now the little guys get eaten alive having the burden of getting their goods to market without the propper resources to do so. With the 15% tariff all they need to do is patent their invention and the market will reap the profits for them.

Yes, big pharma might get lowballed for their R/D costs, but on the bright side they wouldn't have to spend billons on those drug ads that appear during prime time.

Also, software patents wouldn't be a problem because paying an extra 15 cents on your $1 software download isn't going to hurt much.

Trade secrets are INSTANT and FREE ....

and they last as long as you don't reveal them.

http://www.nigeljohnstone.com/archives/2006/02/eu_ eeeeeyooooo.html [nigeljohnstone.com]

I don't think so

That would allow inventors to have immediate protection against knockoffs of a technology even as they try to get broader protection by meeting the more stringent requirements for a conventional patent.

That is absolutely unacceptable because it would give people the benefits of both patent types. It would make the current situation far worse because, not only would people get the long term protection in some cases, they would get the short term protection even for the most bogus of inventions.

If people decide to use the limited patent, then they should be barred from filing the same invention under a conventional patent.

formal examination?

that wouldn't require formal examination...

Last I heard, the USPTO wasn't doing formal examinations anymore anyway They just push button than randomly accepts or rejects a patent. On fridays, they let the janitor do a couple.

How does this help

Right now the main problems are: high cost and
slow ands bad processing. The cost, btw, while
high is relatively fixed and is usually below
10K for a simple US patent.
What this does is takes the cost out of USPTO
and moves it to courtroom but you just know
this will be more expensive. For that money
you may or may not get a better patent examination
and this will then depend on how good a
lawyer you can afford.
End result: full valid patent will cost more,
be obtained as slowly or slower (our courts
aren't the fastest beasts) and bad patents
will still get through except now they will
be easier to link to the better law firms.

What we do need to do:
1. Reduce all patent validity to 4-5 years.
2. Introduce peer review where every patent
is taken through a double blind test: you
give qualified engineers a spec and see if
they propose something like the patent, in
which case it is obvious to one skilled in
the art.
3. Make it possible for people to submit
prior art within one year of patent being
granted and make a committee explicitly
biased to reject anything that even
remotely looks like it is in prior art.
4. Sponsor watchdog groups which will organize
engineers to do peer review in 3.
5. Introduce limits on examiner workload
and make sure their pay is higher than in
the industry to attract the best.

It would be nice also for the bar association
to put pressure on patent attorneys to
litigate IP cases for poor clients on a flat
fee basis. There is already pro bono system
but I have not heard of IP cases being tried
pro bono. We need an intermediate solution
where a lawyer gets paid something but the
client can know his costs in advance.

Removes non-obviousity requirement..

Currently one of the requirements for a patent to be accepted is that the invention is not obvious (to someone "skilled in the art"). In practice, a lot of obvious patents are allowed by the patent office (in the US as well as in europe).

From TFA: "That exam would take less time than a regular patent examination, because obviousness would not be considered."

A patent would get examinated only when challenged, but obviousity would NOT be taken into account.. what these people propose is to make a law of the current bad practice of allowing obvious patents.

Also the guy seems to think that the reason we have such bad software patents around is that in the past software developers were not patenting their ideas, so now there is no prior art for old ideas. This is extremely stupid since somthing doesn't have to be in a patent application to be prior art: if an academic paper described an idea ten years ago it is prior art for new patents even if nobody patented it. The same should be true for an idea implemented in the linux kernel ten years ago, although in this case I am not sure it would meet the USPTO's documental requirements for prior art.

What really would have happened if the US patenting system had allowed "techniques from the early period of computer applications" to be patented, is that IT would not have had anywhere close the development it has had, and the US would be lagging behind the rest of the high-tech world because innovation would have been stifled.

Complain, Complain, Complain

Everyone on /. consistently bashes the current IP/patent system and the PTO, always offering heaps of reasons why it sucks.

This guy, an actual *professional* in that field, comes up with some ideas and spends the time to think them through, document them, review them with peers, and even has a huge body (IEEE) behind him.

Yet 90% of the posts on here are negative, with absolutely no substantial suggestions that would improve the situation.

It sounds good until...

It makes sense until you pay attention to "until a patent is granted." That screws the whole thing up. Effectively he's proposing that patents get published immediately instead of after 18 months. Yeah, publications don't carry the same weight, but people still pay attention to them. IFF you have to decide between short and patents, then it starts sounding attractive. Maybe it needs some tweeks, but it's a start. You file, you automatically get a short patent. Validity is tested only when it's challenged, then it gets a full review. Both parties get to speak so validity is more stringent. If it passes, cool, it was deserving of a patent anyway. If it doesn't, it's dead. After 4 years, it's dead either way. If you keep the "4 years from commercialize" part, you better set a time limit on commercialization (1 year?). And you only get to have claims on that embodiment. Still, I'd go for the long patent. It often takes 4 years before something starts selling well. 20 years of protection seems safer. Maybe I like this proposal because I'd like to see others take that path.

The IEEE is not proposing anything

I submitted a correction to /. about this, but The Powers That Be didn't bother to fix the headline, so I'll try do it here:

I'm the IEEE Spectrum editor of this article, and for the record the IEEE has made no such proposal. To quote the disclaimer we run with every issue: "The editorial content of IEEE Spectrum magazine does not represent official positions of the IEEE or its organizational units."

Prof Hollaar's article is funtionally equivalent to an Op-Ed -- as a respected, knowledgedable, and articulate individual, he was given space in the magazine to share a proposal we found noteworthy. We've actually run a lot of articles on the "What To Do With Patents" theme recently, as our contribution to the patent reform debate, with authors advocating ideas ranging from replacing software patents completely with copyright, to more-or-less leaving well enough alone. I think it's great /. is debating Prof. Hollaar's idea, just note that it's not an official IEEE proposal.

Why not shorten ALL patents?

I wouldn't mind seeing the current class of patents see their terms reduced. Considering how many patents are made by those with no intention whatsoever of producing or selling their own invention, but they do it only for the lawsuit income, and also considering the current pace of advencements as well as how some areas of technology are artificially hindered by patent politics, I think technology in general would benefit from a shorter patent term today.

If someone has a truely beneficial idea, but either cannot afford patent license fees or the patent holder is absolute in their denial even if the new idea comes from a very rich inventor, then you have to wait around a number of years for anyone to benefit from such an idea. I'd like to reduce my wait, thanks.

I understand why patents were created way back when, but they've flipped-flopped from being a protection and encouragement of innovation of yesteryear to a hinderance to innovation today. I'm not saying we should get rid of patents completely, but only to adjust things to work better with today's potential pace of advancements.

Thoughts on four years & prior-art DB

"Protection would last for four years, enough time to establish a market and about the time required to process a regular patent application today."

Four years sounds better than 20 especially because software moves so quick... is four years too short or too long? What happens if someone has a brilliantly novel and innovative idea but is ready way before the market will accept the new technology? Say the inventor maxes out his credit card just to get to year four when the market is starting to pick up... then along comes GiantCompany who takes the idea and makes billions. This would make a case for trade-secrecy.

A better prior art database with an intelligent search and natural language processing might be advantageous. With software patents maybe the source code itself could be submitted and stored in a giant revision control system. A super-compiler / analyzer could characterise software and cross reference with patent application, search for prior art, maybe even access the novelty and innovation. This could speed up the whole patent system take some of the nonsense out of software patents, reduce bunk claims, and cut out the lawyer middleman. Then again it would all depend on how "fairly" the system was built and evolved.

Some additional resources...

Professor Hollaar just published a paper on this topic (probably the basis for this idea). I know for a fact that this has been in the process of being considered by the IEEE for a few years now, so it's not some half-thought-out idea.

digital-law-online.info/papers/lah/mini-patent.pdf [digital-law-online.info]

Also, some research I did for him last summer on this topic:

www.wise-intern.org/journal04/WISE2004-JeremyTunne llFinalPaper.pdf [wise-intern.org]

While I don't always agree with Professor Hollaar on every issue, I think this idea deserves some serious consideration. There are many countries out there (australia, japan, etc) who have successfully implemented it.

RTFA

I see a lot of comments from people that obviously didn't read the article. Some have made some good points, for those that did.

After reading the article, the solution proposed is a good solution IMO. A patent granted through this system solves many of the problems with the current patent process.

1. Eliminates the upfront burden on the patent office.
2. A patent is only enforceable if a commercial product is produced by the patentee. That's a biggie. This gets rid of the current batch of "IP" companies, whose sole existance is pumping out patents and litigating. No product, no enforceable patent.
3. The first step in any litigation is an examination by the USPTO.
4. These mini-patents can be challenged via prior art with a small fee.
5. It will help build up the prior art database, which should allow the USPTO to be quicker in making prior art determinations in any examinations they have to do.

Although people might bemoan the fact that this would grant a lot of trivial patents, those same trivial patents also mean that prior art has been established. Those trivial patents are meaningless unless a commercial product is produced. And if it's trivial, then chances are it will be easily refuted upon a full USPTO examination. Which means you've now established both prior art and refuted the patent, both of which can be referenced by the USPTO directly for later patent examinations, which should help them make determinations for prior art quicker.

Since the fee involved with one of these patents is small, it will also mean that people would be free to submit patents for the sole purpose of establishing prior art, even if they have no intent of bringing a product to market. This could be used to actually prevent folks from taking out trivial patents in the future, making a product, and then trying to enforce it, since a prior patent had already been issued. Even if that prior patent is not enforceable, it still establishes the prior art, thus invalidating the subsequent patent.

Would love to see someone's reasoned arguments as to what the pitfalls might be under such a system.

Nice idea...

That of making (possibly all) patents last 4 years.

Stupid

Want to jack prices up and stiffle innovation? Reduce the window of profitability. Who are these numbskulls?

Bit flipping BS....

There was a time not so long ago that patents were considered to be far more widescope in claims than the more specific nature of copyright.

Here is an idea: Lets change the public perception of what is actually what and promote a claim to present a new form of IP protection...to last a short period of time....

Hey wait a minute....wasn't "IP rights for a short period of time" the original creation of the copyright and patent office....IP granting terms????

Hmmm, isn't it like the software industry to reinvent and market as "brand new" something actually old?????

Of course the process of such a "new/old" thing would follow the same evolution....getting longer and longer in terms and less specific.... Just like it has before...

A better direction is to simple revert to the way it originally was in term length. Of course until even that is to long in terms for ever increasing advancement rate.

There is always the nature of the subject matter as to whether or not it actually qualifies for copyrightable or patentability, if either.

What is software but that is of and follows the natural laws of human mentality and the logic of physics in its application of abstraction creation and use.

Of the things not patentable (by the words of the USPTO):

Natural Law
Physical Phenomenon
abstract ideas

these are the three top primary things not patentable.

Mathmatical algorythims fall into the secondary class of what is not patentable, due to being made up of the primary three.

it all begins here:

Physics of Abstraction (abstraction physics)

Abstraction enters the picture of computing with the representation of physical transistor switch positions of ON '1' and OFF '0' or what we call "Binary" notation. However, computers have far more transistor switches in them than we can keep up with in such a low level or first order abstract manner, so we create higher level abstractions in order to increase our productivity in programming computers. From Machine language to application interfaces that allow users to define some sequence of action into a word or button press (ie. record and playback macro) so to automate a task, we are working with abstractions that ultimately accesses the hardware transistor switches which in turn output to, or control some physical world hardware.

Programming is the act of automating some level of complexity, usually made up of simpler complexities, but done so in order to allow the user to use and reuse the complexity through a simplified interface. And this is a recursive act, building upon abstractions others have created that even our own created abstractions/automations might be used by another to further create more complex automations. In general, if we didn't build upon what those before us have done, we then would not advance at all, but rather be like any other mammal incapable of anything more than, at best, first level abstraction. But we are more, and as such have the natural human right and duty to advance in such a manner.

There is an identifiable and definable "physics of abstraction" (abstraction physics), an identification of what is required in order to make and use abstractions. Abstraction Physics is not exclusive to computing but constantly in use by ... well... us humans. Elements or facets of abstraction physics include the actions of abstraction creation and use, such as defining a word to mean a more complex definition (word = definition, function-name = actions to take, etc.), Starting and Stopping (interfacing with) of an abstraction definition sequence, keeping track of where you are in the progress of abstraction sequence usage (moving from one abstraction to another), defining and changing "input from" direction, defining and changing "output to" direction, getting input to process (using variables or place holders to carry values), sequencially stepping thru abstraction/automation details (inherently includes optionally sending output), looking up t

Re:Improve patent quality?

Check out http://www.shouldexist.org/ [shouldexist.org]. ShouldExist is a superb place to anti-patent ideas. I will not be surprised if a fair number of software patents being filed have been already mentioned on ShouldExist.

TimJowers

Re:Improve patent quality?

Why not just get rid of patents?

RTFA. He spends a fair amount of time on exactly this.

Re:First to market method

First to market won't quite work, because people could put up silly "products" that incorporate an idea just to meet this requirement. I think though that a better way to achieve the same thing is to go ahead and use the standard method to grant a patent, but if it hasn't been commercialized within a certain time frame then the patent is deemed invalid. This would prevent patent squatting and would ensure that good ideas get to public domain in cases where the inventor is not able to commercialize the product.

Re:New type of patent

That is the way it is right now. Code is NOT patentable. Actual source code is only protected by copyright.