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  • Aug 16th, 2011 @ 8:00am

    Purpose of Patents; Software Patents?

    The U.S. Constitution (Article I, Section 8, Clause 8) set forth the patent, though not in so many words. IMO, the primary purpose of the patent is to act as a bargained-for exchange: inventor tells how to make and use his/her invention and gets to have the right to exclude others from making and using that invention for a limited time. This serves two purposes, IMHO: it disseminates knowledge gained from innovation, and it gives an inventor an extra window of opportunity to profit from and/or keep others from profiting from his/her invention until the patent lapses. A patent does not guarantee any kind of financial return. I do not believe the Founders intended that the U.S. patent grant serve the same function as Letters Patents granted, for example, in England, in which they often really were given to favorites of the Crown. How the patents granted by the U.S. are used by patent owners, be they corporations or individuals, is another matter.Regarding software patents, these aren't technically allowed in the U.S. - you can't patent software per se, though the test for how tied to the physical world the claimed invention is and whether a given software implementation is actually statutory subject matter is ill-defined. That said, there are ways to patent software in the U.S., Europe, and many other domains around the world, so long as you craft the claims and disclosure to provide the right elements.Regarding the "first to get [there]," the U.S. has long, if not always, provided that the first to invent gets the patent where two or more applications are filed claiming the same invention. That led to the creation of an "Interference Proceeding," in which evidence of date of invention is reviewed to determine who was the first to invent. This is going to change to the first to file, but the inventor named must still have invented the claimed material.This post sets forth my own opinions and does not constitute the opinions of any entity with which I am associated, nor does it constitute legal advice in any possible manner, nor does it render the reader my client in any way, shape or form.