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[News] Major Development: Judge Regrets Allowing Software Patents in the US

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CAFC Judge Regrets Decisions That Resulted In Software Patents

,----[ Quote ]
| As the Court of Appeals for the Federal Circuit (CAFC) is considering the 
| Bilski case, where it may finally push back on software and business model 
| patents, it's interesting to hear one of CAFC's judges admit that he 
| was "troubled by the unintended consequences" of the lawsuits (State Street 
| and AT&T) that resulted in software and business model patents being 
| effectively allowed.     


Patents as property II: Rethinking SW patents?

,----[ Quote ]
| Patents as property was also front and center in the thoughts of one judge on 
| the Court of Appeals for the Federal Circuit, the main appellate court for 
| patent disputes in the US. Senior Judge S. Jay Plager, speaking at a 
| symposium at George Mason University, called for a “rethinking” of several 
| aspects of patent law by returning to its origins in property law.    
| According to the BNA, Plager “called for a renewed focus on setting 
| recognizable patent ownership boundaries and on strengthening the notice 
| function that patents are intended to serve. Such a reevaluation might 
| require a reassessment of whether software and business methods are 
| patentable subject matter, Plager said.    


Rethinking patent law

,----[ Quote ]
| Judge Plager writes that as a former law professor who taught property law 
| for twenty-five years, he found our general thesis about analyzing patent law 
| from a property law perspective “quite comfortable.” The book argues that 
| many of the key institutional features and much of the economic performance 
| (and many of the problems) of the patent system can be analyzed by treating 
| patents as a property system. In his speech, Judge Plager suggested that this 
| approach might require rethinking the patentability of software and business 
| methods, doctrines of claim construction, patent scope and the doctrine of 
| equivalents.        


FFIP Recommends: Research on Innovation and TIIP

,----[ Quote ]
| The block quote alone is amazing and extremely important due to the subject 
| matter and the authority of US. Senior Judge S. Jay Plager.  This is the type 
| of thing that should be promoted by End Software Patents, rethinking subject 
| matter for software patents and business methods is essential if we are to 
| save the patent system.    


Judge Plager: Regrets "Unintended Consequences" of State Street

,----[ Quote ]
| [Plager] called for a renewed focus on setting recognizable patent ownership 
| boundaries and on strengthening the notice function that patents are intended 
| to serve. Such a reevaluation might require a reassessment of whether 
| software and business methods are patentable subject matter, Plager said. It 
| might lead to limiting a patent’s scope to what was known at the time of the 
| application filing, and to an abandonment the doctrine of equivalents as a 
| basis for patent infringement liability.      


Days ago:

Latha Jishnu: The mouse that bit Microsoft

,----[ Quote ]
| Here’s what Gates wrote in an office memorandum in 1991. “If people had
| understood how patents would be granted when most of today’s ideas were
| invented, and had taken out patents, the industry would be at a complete
| standstill today. . . I feel certain that some large company will patent some
| obvious thing related to interface, object orientation, algorithm,
| application extension or other crucial technique.”
| This was the year after Microsoft launched Windows 3.0, the first of its new
| operating systems that would become hugely popular across the world. Yet,
| three years down the line, Microsoft had changed from a kitten that was
| content with copyright protection to an aggressive patents tiger. In 1991,
| Microsoft had filed fewer than 50 patent applications whereas last year it
| was awarded 1,637 patents, almost a 12 per cent increase in the number of
| patents it received in 2006. According to IFI Patent Intelligence, the rise
| in Microsoft’s patents portfolio bucked the general trend in 2007 when the
| number of patents issued by the US Patents and Trademark Office dipped by 10
| per cent. Apparently several thousand of the company’s filings are still
| pending.
| All this may prompt the reader to conclude that there is indeed a direct
| correlation between IPR and growth — and wealth — as the company claims. Not
| true, says Mark H Webbink, a US Supreme Court lawyer who is a recognised
| voice on IT issues. Charting the company’s revenues, R&D spending and patent
| filings from 1985 onwards, he shows that the spike in patent filings occurred
| long after the Microsoft “had become well established and was being
| investigated for its monopolistic practices”. Webbink contends that patents
| did not spur the launch and rapid growth of the mass market software
| industry. On the other hand, patents have become a threat to software
| innovation, he warns.



Critic of Software Patents Wins Nobel Prize in Economics

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| doom writes "You've probably already heard that the Nobel Prize
| for Economics was given to three gents who were working on advances
| in mechanism design theory. What you may not have heard is what one
| of those recipients was using that theory to study: 'One recent
| subject of Professor Maskin's wide-ranging research has been on the
| value of software patents. He determined that software was a market
| where innovations tended to be sequential, in that they were built
| closely on the work of predecessors, and innovators could take many
| different paths to the same goal. In such markets, he said, patents
| might serve as a wall that inhibited innovation rather than
| stimulating progress.' Here's one of Maskin's papers on the
| subject: Sequential Innovation, Patents, limitation (pdf).

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