Subj : Re: Software Patents
To   : comp.programming
From : mr_reznat
Date : Fri Jul 08 2005 09:56 am

This is an interesting thread.  I have few comments regarding a couple
of recent postings.

First of all, there is no generally accepted definition of a
"software patent."  Many devices include software as an essential
part of the device.  For example, consider a device that includes:
  - a detector that reads a signal coming from an RFID tag (using a
software-controlled computer);
  - another computer with software that makes a decision on how to
handle the item to which the RFID tag is attached; and
  - a mechanical gadget that then treats an item accordingly.

Would a claim on that device be a "software" patent?  How about if
the device had no moving parts and just had an LCD read-out?

In 1998 in the case State Street Bank v. Signature Financial Group, 149
F.3d 1368, 1373 the Court of Appeals for the Federal held that a patent
claim for "the transformation of data, representing discrete dollar
amounts, by a machine through a series of mathematical calculations
into a final share price, constitutes a practical application of a
mathematical algorithm, formula, or calculation, because it produces a
'useful, concrete and tangible result'-a final share price
momentarily fixed for recording and reporting purposes."  So the claim
represents patentable subject matter, consistent with patent law (35
U.S.C. 101):

    Whoever invents or discovers any new and
    useful process, machine, manufacture, or
    composition of matter, or any new and
    useful improvement thereof, may obtain a
    patent therefor, subject to the conditions
    and requirements of this title.

How would you rewrite the law to eliminate "software" patents?

Second, there was a mention of submarine patents.  There are very few
submarine patents any more.  Years ago an applicant could keep a patent
application secret and by various legal methods keep the application
alive for many years.  When the patent finally issued it was valid for
17 years from the date of issue.  For example, a patent application may
have been originally filed in 1970, the application was kept alive (and
kept secret) and didn't issue until 1990.  That patent would not
expire until 2007.

However under current law a patent is only in force for 20 years from
the date of application.  If a patent were applied for in 2001, it
would normally publish 18 months later.  If the patent granted in 2011,
the patent would expire in 2021, i.e. 20 years from the application
date.  Not a submarine patent.

Third item.  Earlier it was written "If patents were confined to
legitimately original inventions that took significant work to develop,
I think they'd be a positive thing."  Another poster replied "This
clause is already in the law, ..."

Actually patent law, 35 U.S.C. 103(a), states that "... Patentability
shall not be negatived by the manner in which the invention was
made."  This means that the patent office shall not consider whether
the invention is the result of many months of painstaking
experimentation or if the idea just struck like a lightening bolt.  The
manner in which the invention was made is irrelevant.

.