Bilski Continues To Cause Software Patents To Get Rejected

from the some-good-news... dept

Right after the Bilski ruling that greatly limited software and business method patents, lawyers who were in favor of such patents held a conference call, where they basically said the ruling wouldn't change anything. They claimed that the only patent that would be impacted would be Bilski's, and that everything else would be just like normal. It seems they forgot to tell the Patent Office, which has continued to reject patents based on this new ruling that, in all likelihood, would have made it through prior to the ruling. That's not to say that all of the problems associated with such patents are now done with -- but it does seem like the lawyers on that conference call were doing a bit more wishful thinking than honest assessment of the situation.

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  1. identicon
    John Wolpert, Mar 5th, 2009 @ 5:09am

    Invention is Killing Innovation

    From TheThreePercent, February 5, 2009

    I just stood there in disbelief. A lab director was shutting down a promising cancer research project before my eyes, simply because someone had muddied the “intellectual property” landscape with dubious patents, patents the “inventor” never intended to use for any other purpose but to get licensing deals. How many people in the future might have been saved by a therapy that will now never be developed? I wonder.

    The perpetrator here is not what you might think. The dubious patent filer in this case was not a so-called patent troll, just a normal operating company - one that makes real products…though no products remotely related to the patents they filed. (They have a practice of rewarding inventive employees who file lots of patents.)

    Inventions are the nouns of innovation. But if you intend to do nothing with your invention but frame it and stick it on a wall, then you have an Invention without an Intention - a noun without a verb.

    Just today I saw this tragedy again. A promising new company is at a stand-still as it wonders whether a patent filed years ago by someone who did nothing with it will result in their potential funders pulling the plug for fear of infringement or being slapped with exhorbitant licensing fees (or worse, legal fees fighting the dubious “inventor’s” claims).

    A lawyer colleague tells me that she sees friends in her firm and others spending weekends just writing patents that come to their mind. Some of these people are making $100k a month extorting money from startups who “invented” a similar process or method entirely separately but who actually intend to use it.

    This has to stop. This is not what Hamilton (no, it wasn’t Jefferson, who opposed all forms of monopoly, including patents) and the Framers had in mind when they wrote the patent and copyright clause into Article II of the US Constitution.

    Fortunately there has been some progress. I nearly wept with joy when the Bilski decision was handed down by the US Federal Circuit Court, striking into the ditch many so-called business and method patent claims.

    But until we require that an inventor show that he is putting his invention to practical use before issuing him a patent, we will continue to stifle innovation for the sake of invention.

    reply to this | link to this | view in thread ]

  2. identicon
    Willton, Mar 5th, 2009 @ 6:25am

    Re: Invention is Killing Innovation

    You would be more persuasive if you had your facts right. The "patent and copyright clause" is in Article I, not Article II.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Mar 5th, 2009 @ 8:02am

    Re: Re: Invention is Killing Innovation

    You throw out someones entire argument because they may have hit I twice by accident?

    reply to this | link to this | view in thread ]

  4. identicon
    John Wolpert, Mar 5th, 2009 @ 8:11am

    Re: Re: Invention is Killing Innovation

    Nice catch. Thanks. Article I, Section 8, Clause 8. It's sometimes called the "copyright clause" but covers both copyright and patents.

    reply to this | link to this | view in thread ]

  5. identicon
    Michael, Mar 5th, 2009 @ 8:51am

    Re: Invention is Killing Innovation

    Reform that fixes -this- is what would really stimulate the economy, and it would actually SAVE the government money, not cost it!

    reply to this | link to this | view in thread ]

  6. identicon
    Gene Cavanaugh, Mar 5th, 2009 @ 10:49am

    Bilski case

    Right on, Michael!
    But your article also makes me feel good about the USPTO. Even though they depend on fees from filing to pay their own way (and as you have pointed out, a business model that pisses off your "customers" seems like a bad one) they have people who really care enough about their country to at least try to stop bad patents (thereby losing business for themselves).
    Of course, when the USPTO makes a real attempt, Congress (and the lobbyist who own them) step in - they fired Lehman for that (supposedly because he was gay, but the real reason was he wanted the USPTO to uphold the Constitution, and big business told Congress to get rid of him.
    Oh! How we need campaign finance reform!

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, Mar 5th, 2009 @ 5:00pm

    Re: Re: Invention is Killing Innovation

    Willton -> "You would be more persuasive if you had your facts right. The "patent and copyright clause" is in Article I, not Article II."

    Is that all you have to say?
    I thought the post was very persuasive.

    reply to this | link to this | view in thread ]

  8. identicon
    Thomas Jefferson, Mar 5th, 2009 @ 8:19pm

    Re: Invention is Killing Innovation

    Just remember what I said, young man: An inventor ought to be allowed a right to the benefit of his invention for some certain time.

    Yes, though I opposed monopolies because I was concerned about them, also remember that I was quite surprised, only two months after signing the patent law that it is has "'given a spring to invention beyond [my] conception.] In spite of my misgivings, the patent law certainly did increase much needed invention in our new Republic.

    reply to this | link to this | view in thread ]

  9. identicon
    Willton, Mar 5th, 2009 @ 8:46pm

    Re: Re: Re: Invention is Killing Innovation

    Well, I suppose that I could talk about how anecdotal evidence such as that given by Mr. Wolport can be matched, story for story, with tales of how intellectual property secured protection for medical inventions that were extremely expensive to fund but, once created, were extremely cheap to copy, and that if the intellectual property protection were not available, the medical research would not have gotten off the ground.

    I suppose I could also point out all the holes in Mr. Wolport's proposed rule regarding who may obtain a patent. I could explain to him that his solution of only giving patent protection to practicing entities would be devastating to small entities who do not have the funding to create a product based upon the patented invention, thereby allowing anyone with the capital to profit off of the invention of the small entity without needing to give just compensation to said small entity. I could explain how such a rule would discourage small entities from inventing things that are expensive to fund but can be easily reverse engineered, thereby leaving such innovation only to the large entities who already have de facto monopolies on their respective markets. I suppose I could also explain how such a rule would encourage small entities to keep their inventions secret for as long as possible, even though doing so would be extremely expensive for some very valuable things, such as medical, surgical, and prosthetic devices.

    But, yes, I think that is all I have to say.

    reply to this | link to this | view in thread ]

  10. identicon
    Marble Host, Mar 5th, 2009 @ 10:43pm


    We get a lot of questions about the mechanics of filibusters and the very loosely true claim that budget bills can't be filibustered (hint: it's not that simple). So this evening TPMDC's Elena Schor walks us through

    reply to this | link to this | view in thread ]

  11. identicon
    MikeIP, Mar 25th, 2009 @ 11:35am


    Yes, patent applications may very well be rejected that would have been allowed prior to Bilski. However, you simply cannot say that with any certainty. Unless you are currently an Examiner, which you are not.

    Section 101 has *always* required either production of a physical object or transformation of a physical object. Bilski merely made that requirement clearer - and says that data representative of a physical object is OK.

    The reason the attorneys said in their presentation that Bilski would not greatly affect the patent bar as a whole is simple. The claims at issue in Bilski were poorly written - they clearly weren't up to snuff for a 101 analysis. The patent bar would be better off if a better application had been used to press this issue.

    In the end, face it, software and business method patents are here to stay. They just have to be well written.

    reply to this | link to this | view in thread ]

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