Subj : Re: Software Patents
To   : comp.programming
From : Rob Thorpe
Date : Fri Jul 08 2005 10:35 am

mr_reznat@yahoo.com wrote:
> 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.

Regarding Submarine patents, doing this is extremely easy.  It can be
done by hiding the patent in the huge number of patents that exist
today.

Let's say for example I'm an immoral person who has invented a new type
of valve.  This invention may make various new processes/products
possible.

It may for example be useful in oil rigs, whether it is or isn't
doesn't really matter, what matters is convincing a patent examiner
that it could be.  Then, instead of patenting a valve I patent
something like "Method and apparatus for extracting oil".  My
competitors will have difficultly finding such a patent, since it won't
appear to be about valves.

This still leaves a difficulty though, my competitors could simply
search for my companies name as assignee.  To reduce this threat I
simply set-up a shell company to own the patent that is owned by my
company.

Alternatively (if I'm a large company) I generate so many patents
no-one can possibly read them all.

These and other methods have proved very successful recently.  In
particular for Qualcomm and Rambus, both of whom managed to get
patented technology incorporated into standards without the standards
bodies being aware of the patents.

.