Silver Linings: Bilski Ruling Does Seem To Be Limiting Some Software Patents

from the marginal-improvement dept

Lots of folks were upset with how the Supreme Court ruled so narrowly in the Bilski case and how they refused to make a clear statement on the patentability of software. It did seem clear that some judges didn't believe that software should be patentable, and we were just discussing how the Supreme Court might still invalidate software patents, if given a good case on the subject. In the meantime, though, as a small silver lining, it does appear that the Bilski ruling has resulted in at least some software patents tossed.

A new study, covering the year since the Bilsky ruling, found that the Board of Patent Appeals appears to be more willing to reject software patent claims. On top of that, the district courts' ruling on software patents also seem willing to take the Bilski lead and invalidate software patents (though, here, we're talking about the ridiculously small sample size of four -- though in all four cases, the patents were rejected). While, obviously, many would prefer a more bright line rejection of software patents, it's at least good to see that the courts and the BPAI seem to be somewhat cognizant of the idea that the bar for such patents should be reasonably high.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Nicedoggy, Aug 5th, 2011 @ 5:10am

    People apparently are complaining about a SOFTWARE(i.e. app) that will only be available to iOS(IOW: iPhone, iPad, only) and not to a variety of platforms.

    Not the music in specific the APP!

    Biophilia is a multi-media project comprising a studio album and an app featuring a game for each of the 10 new tracks, as well as a new website, custom-made musical instruments, live performances, and educational workshops.


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

  2. identicon
    Nicedoggy, Aug 5th, 2011 @ 5:12am


    Oops! wrong thread.

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

  3. icon
    Ninja (profile), Aug 5th, 2011 @ 6:27am

    Sanity? The beginning of the remake of the patent system?


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

  4. identicon
    Anonymous Coward, Aug 5th, 2011 @ 7:48am

    Sort of classic Techdirt thinking here. The Bilski ruling was so narrow as to have very little effect, and when that little effect does happen, it's somehow a silver lining?

    4 rejected patent? Oh no, the patent world is ending. Come on Mike, how many patents were approved in the same time period? hundreds? Thousands?

    Yup, classic Techdirt logic at work!

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

  5. identicon
    abc gum, Aug 5th, 2011 @ 9:01am


    "how many patents were approved in the same time period? hundreds? Thousands?"

    And how many of those actually deserve patent protection?
    Based upon past history, I would guess very few.

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

  6. identicon
    Anonymous Coward, Aug 6th, 2011 @ 1:12am


    so narrow as to have very little effect

    That's why he said lining rather than a big honking chunk of silver.

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

  7. icon
    Gene Cavanaugh (profile), Aug 6th, 2011 @ 1:43pm

    Software patents

    Former software engineer; now IP attorney - I have never seen, nor do I ever expect to see, a software patent that should have been granted.
    Hopefully the courts will set aside the "presumption of validity" normally accorded to the USPTO for software patents.

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

  8. identicon
    staff, Aug 7th, 2011 @ 9:21am

    To promote the Progress of Science

    In Federalist No. 43, James Madison wrote regarding constitutional rights of inventors, "The utility of the clause will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of the individuals."

    The Constitution says “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. Therefore, if an invention is useful and promotes science, it should be patentable. It’s that simple.

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

  9. identicon
    Eric, Aug 8th, 2011 @ 12:53am

    software patents?

    The problem with most software patents is that we were doing what is patented many years before the patent was applied for. The infamous one click patent...Was a DBIII system in the late 80's, games across a network (which is just information in the form of packets) is no different than e-mail (invented in 1969). There are not too many software patents that are not re-inventing some thing that was done long ago.

    I would agree that if some software is "useful and promotes science", it should get a patent...but there is not much that does.

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

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