Thursday, July 24, 2008

Goodbye and good riddance to software patents

The last couple have months have been exciting ones for opponents of intellectual property rights (myself included), as American courts have been considering cases that probe the essence of some of the most hated patents: software and business method patents. Whereas normal patents give the patent holder monopoly rights over a certain physical alignment of matter, software and method patents cover theoretical or digital arrangements. Over at the blog Patently-O, John Duffy examines the implications of a few landmark cases (including Bilski, which I covered a while ago), and concludes that software patents are more or less finished:

The Patent and Trademark Office has now made clear that its newly developed position on patentable subject matter will invalidate many and perhaps most software patents, including pioneering patent claims to such innovators as Google, Inc.

In a series of cases including In re Nuijten, In re Comiskey and In re Bilski, the Patent and Trademark Office has argued in favor of imposing new restrictions on the scope of patentable subject matter set forth by Congress in § 101 of the Patent Act. In the most recent of these three—the currently pending en banc Bilski appeal—the Office takes the position that process inventions generally are unpatentable unless they “result in a physical transformation of an article” or are “tied to a particular machine.”[1] Perhaps, the agency has conceded, some “new, unforeseen technology” might warrant an “exception” to this formalistic test, but in the agency’s view, no such technology has yet emerged so there is no reason currently to use a more inclusive standard.[2]

Duffy goes on to discuss the implications for a pretty famous software patent, that on Google's PageRank technology (a relatively simple algorithm for determining a page's importance based on links and the PageRank reputation of those links), which is arguable at the root of Google's internet search dominance. He believes that this patent is finished given the precedents being set by the courts. If it is indeed invalidated, it'll be interesting to see to what extent Google's success was predicated on the monopoly rights it was given by the US Patent and Trademark Office.

...and here is the archive of all my posts related to intellectual property.

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