Legal Issues

by Mike Masnick




UK Rejects Software Patents That Don't Actually Describe Process

from the a-decent-test dept

One of the reasons that defenders of the current patent system often give for the importance of keeping the system, is the idea that it benefits society by revealing ideas that otherwise would be kept secret. That is, indeed, one of the benefits... if those ideas wouldn't have come out otherwise and if the publication of the patent actually revealed anything about the invention in question. All too often we've seen that this second part is missing. Patents describe something extremely broad and general, so as to reveal as little as possible, but make sure as much as possible infringes on it. It seems like it would be a reasonable "test" of the validity of a patent to see if someone could use just the patent itself to replicate the invention in question. It seems like some judges in the UK agree. The Court of Appeals in England has ruled against two software patents, specifically noting that someone who knows the basic subject area should be able to replicate what's described in the patent with just the patent alone -- and these patents fail that test. In fact, the ruling said: "that the patent was missing vital details, contained wrong equations, demanded a higher level of expertise than allowed and that it relied on material external to the patent." In other words, the patent itself did not actually explain the invention it was trying to cover, but rather hinted at what it might be. With the huge awards for patent infringement going around, an increasing number of patents seem to be written the same way -- so it would be nice to see more examinations of patents that look at this particular factor and whether or not the patent actually does try to explain the invention for others to use, or simply word it broadly enough to catch random infringers.

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  1. identicon
    misanthropic humanist, 19 Dec 2006 @ 5:10am

    no winners really

    I was going to submit this yesterday, but anyway here's what I see...

    Halliburton vs Smith was first heard in the US where the judge screwed it up very badly by finding for Halliburton. He clearly had no clue about the technical details of the case. It turns out that the "patent" in question was for an implementation of a fairly obscure torque formula used in the design of drill bits. This formula is quite standard physics and has been known to metallurgists for eons, but was written into said software enabling the rapid development of mining drills. Since Halliburton could not obtain a patent on the physics they tried to gain a competetive advantage by claiming Smith had infinged a software patent by using the same formula in their own design tools.

    However (and here's the complicated bit (no pun)) - Halliburtons patent was vague, alluding only to the use of a particular formula in the domain of drill design. They did not specify the details of the formula or its utility in the patent itself but claimed that this was "implied" and that they held "supporting documentation" referred to by the patent which explained the process. Of course this documentation was not publicly available.

    When the case was heard in the UK they lost. Because the patent did not actually contain enough information for a skilled practicioner in the field to reproduce the solution *from the patent alone*. In other words - claiming you have a patent on a process, but not disclosing that process in detail within the patent is not acceptable.

    Halliburton appealed, Judge Jacob found against them and denied then leave to appeal again. Case closed.

    This does not represent a victory against software patents.

    It represents a victory against vague patents which do not ultimately promote innovation by publishing methodology. Halliburton tried to have it both ways, to hold a patent on a process but hide the details of that process.

    The losers are still you, me and the rest of the industrialised world since none of us can legally try to write and sell a *better* piece of drill design software using a well understood but unpatentable physical principle. The interpretation of this as a "software" patent allows them to patent the unpatentable. Meanwhile, a simple copyrighting of the source code would have served the purpose of protecting Halliburtons R&D investment and forced Smith to write their own interpretation of the physics formulas.

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