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[News] Microsoft's Patent Threats Become Almost Useless

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Bilski - What It Means, Part 5 (Conclusion) -- What About Microsoft's Patent

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| Speaking for myself, I'd have to say I feel a lot less threatened by 
| Microsoft than I did a year ago. Don't you? I can't help but wonder if there 
| ever would have been a "patent peace" deal between Novell and Microsoft if 
| Bilski had been decided earlier.   


Patent Bar Is Atwitter About Bilski Decision

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| In yesterday's 9-to-3 decision upholding the PTO's ruling, the court wrote 
| that in order for a business method to receive patent protection, it would 
| need to either "transform [an] article to a different state or thing" or 
| be "tied to a particular machine." "The court went back to principles 
| articulated in earlier Supreme Court decisions and said that for a method to 
| be patentable it either has to be transformative or it needs to be a method 
| that is employed specifically with a machine or an apparatus," said Wilmer 
| Cutler Pickering Hale and Dorr partner William Lee, who argued for an amicus, 
| the Financial Services Industry, in the case. (For Wilmer's insightful 
| analysis of the Bilski ruling, click here.) Another amicus filer, Ropes & 
| Gray's James Myers, told sibling publication Legal Times that the Federal 
| Circuit's newly articulated machine-or-transformation test "shifts away from 
| State Street and brings the Federal Circuit more in alignment with the 
| Supreme Court." Myers predicts that the next wave of business method 
| litigation will focus "on what degree of computerized involvement you have to 
| have in order to meet the threshold."               



Patent troll lopes after Facebook

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| Nick O’Neill of AllFacebook thinks Facebook might have to pay up (and he has
| a copy of the patent up on his site, for the curious). I’m not sure. A top
| patent court has recently ruled against the validity of patents that don’t
| involve some sort of “machine or transformation” — I wonder what “machine or
| transformation” Leader has to offer here? I’m no legal expert, but it’s not
| clear to me, after reading through the patent. I’m guessing Facebook, if not
| the rest of the web-based tech industry, won’t be losing too much sleep over
| it tonight.


Fish & Richardson Special Federal Circuit Bulletin: In re Bilski

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| Clients with issued software patents, medical method patents, and other
| similar patents may want to run a "Bilski test" on the claims of those
| patents, particularly if there is a likelihood that the patents will be
| asserted in the future. If those patents raise any concerns, it may be
| advisable to correct potential problems or insure against them (e.g., by
| adding new, more-patentable claims) via reissue proceedings or continuation
| practice. However, clients should understand that amendments made in a
| reissue proceeding can provide competitors with additional defenses against a
| patent. As for patent applications that are still pending, applicants should
| develop strategies for adding the sorts of elements identified by the Federal
| Circuit to the claims - in most cases, we expect this can be done without
| significantly affecting the strength of the claims. For patents currently in
| litigation, defendants should re-check their defenses, but should be careful
| not to over-read Bilski, and plaintiffs may really want to look into
| correcting suspect patents.


Bilski ruling: a victory on the path to ending software patents

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| As opinions form about the extent to which the Court ruling impacts the
| patenting of software, one thing is clear. The State Street ruling that in
| 1998 opened the flood gates to the patenting of business methods and software
| has been gutted, if not technically overturned.


Latha Jishnu: Bilski and the madness of methods

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| Why, you may well ask, is the denial of patent to Bernie Bilski for a method
| of managing weather-related risk in commodities making the software open
| source community jump up in joy? A particularly happy lot is the lobby
| campaigning against software patents in India.


Patent decision: New Roadblock to Software/Tech Patents

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| On October 30th a leading U.S. federal court decided the major case of In re
| Bernard L. Bilski. This 100+ page court case could have a major impact on
| software and technology companies, especially those trying to obtain or
| enforce software patents in the U.S.


United States: Long-Awaited “Bilski” Decision Restricts Patentability Of
Software, Business Methods

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| The Bilski decision is significant because it may affect a patentee's ability
| to enforce existing patents, the prospects for pending patent applications
| and the decision whether to file new patent applications directed to
| so-called "business methods" and software-related innovations....


Bilski - What It Means, Part 4 - The Microsoft Brief

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| The Microsoft brief was filed along with Dell and Symantec, and it's an
| attempt to get the court to deny the Bilski claims while at the same time
| trying to keep the court from going all the way and deciding software should
| not be patentable. There are some logic bumps along the way, as you will see.
| The court diverged from Microsoft's argument about three-quarters of the way
| through, and it didn't directly address software patents, except in one
| footnote, mainly because Bilski wasn't about software. So it left unaddressed
| Microsoft's chief argument about why software should patentable, namely
| because of what it does to a computer. There will be future cases, though,
| that certainly will be on this point, so it seems a good time to point out
| everything we can think of to help the court understand what's wrong with the
| Microsoft-Dell-Symantec position. I'll start, but jump in any time. You'll
| see more than I will, since so many of you are programmers.


USPTO does not like killing business method patents?

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| The New York Times has an article about the recent Bilski decision. The USPTO
| has requested a change in the title of the article.
| [....]
| If Mrs Jennifer Rankin Byrne could point out where she sees the term computer
| in the Bilski decision, that would help to back her statement.


Reactions to the Bilski decision begin to roll in

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| Not being a US patent attorney and not possessing any expertise in US patent
| law, I am not in a position to comment on the CAFC’s Bilski decision handed
| down yesterday. However, I do know a few people who are, so I have been in
| touch with them to get their reactions. Below is what I have had so far. I
| will continue to add to these until the beginning of next week (3rd/4th
| November will be the cut-off).


In regards to In re Bilski

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| On the key question of when information becomes a machine, the ruling does
| provide some clues: “First, [...] the use of a specific machine or
| transformation of an article must impose meaningful limits on the claim's
| scope to impart patent-eligibility. [...] Second, the involvement of the
| machine or transformation in the claimed process must not merely be
| insignificant extra-solution activity.” For more on extra-solution activity,
| have a look at my law review article (PDF) that focuses heavily on the idea.


US court narrows scope for business method patents

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| "While looking for 'a useful, concrete and tangible result' may in many
| instances provide useful indications of whether a claim is drawn to a
| fundamental principle or a practical application of such a principle, that
| inquiry is insufficient to determine whether a claim is patent-eligible," it
| said.


Bilski: Almost the Big One

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| The big question is what effect, if any, this decision will have on the
| current referral of a “point of law” concerning software patents by the
| President of the European Patent Office (EPO) to the EPO “Enlarged Board of
| Appeal”, something I wrote about earlier this week. It would be ironic if, at
| a time when the US courts begin to move away from patenting software “as
| such”, the EPO started allowing precisely that through a relaxation of its
| own rules.


So are software patents dead or not?

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| My opinion is that it's going to get harder and harder to patent anything. Of
| course there will be a big push back from business, so this won't happen over
| night, but I think the concept of patents will eventually disappear entirely.


US Court Throws Out Most Software Patents

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| The IT Examiner also observes that "Microsoft has a problem" and that "Much
| of the patent portfolio of some of the world's biggest software companies has
| become worthless overnight, thanks to a ruling yesterday by the US patent
| court."


Court Reshapes Patent Reform Debate

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| In a ruling with huge implications for the technology sector, the U.S. Court
| of Appeals for the Federal Circuit said Oct. 30 pure software or business
| method patents that are neither tied to a specific machine nor change
| something into a different state are not patentable.


In Huge Shift, Court Ruling Effectively Denies Software-Only Patent Rights

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| The case originally centered on a patent for "a method of managing the risk
| of bad weather through commodities trading"—which falls more under
| the "business process" bucket, but the same ruling effectively makes
| patenting a specific software process impossible. The previous ruling allowed
| such patents, so long as computers were involved and the process produced
| a "useful, concrete, and tangible result." This ruling rejects that premise,
| favoring instead an older test that only allows patents for things involving
| an actual machine or a transformation of a tangible object into a different
| state.


Professor Collins: In re Bilski: Tangibility Gone “Meta”

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| Although they are both legitimate questions, this short comment addresses
| neither whether there is a legitimate statutory basis for this test nor
| whether Supreme Court precedent should be interpreted so as to mandate (or
| even support) this test. Rather, it focuses solely on the criteria that the
| court offers to draw the line between patentable and unpatentable
| transformations. The Federal Circuit has added a new twist to the tangibility
| test that has for many years played a role in determining patent-eligibility:
| the tangibility test has gone "meta." The tangibility of the formal data that
| is actually transformed by a method of processing information is not relevant
| to patent-eligibility, but the tangibility of the things that the data is
| about—the tangibility of the informational content of the data or the things
| to which the data refers—now appears to be dispositive.


Bilski: What It Means, Part 1 -- Red Hat on What It Means for FOSS

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| means to everyone: You can't get patents any more on a pure mental process.
| You can no longer patent a process that you can think through all in your
| mind. In other words, abstract ideas are not patentable. There has to be
| either a particular machine or a transformation in the process. So
| pure "ideas" or "mental processes" are over. That means most business methods
| patents are no longer valid because they are outside the parameters of what
| is eligible for patenting. In simple terms, it means this:
|     The End for the stupidest of the stupid patents.
| Yay! It means that the tide is turning. There could still be an appeal of
| Bilski, and even without one, there are ways to chip away at this decision's
| new standard for patentability, to try to get over the new turnstile, so to
| speak, and strategies on how to do that have begun already. I've spent the
| days since the decision issued researching for you, so I can explain Bilski
| to you. There is too much material for just one article. So, I'll break it up
| into parts. My purpose is to make sure you understand fully, so you can be
| helpful with your ideas and so you can explain this issue to others, so they
| understand what is involved for FOSS. If there are parts you don't
| understand, ask. If I don't know the answer, I can ask someone.


US patent ruling bodes well for tech

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| The case in question was rejected because the patent at issue was a process
| not tied to a "machine", which is one standard for patentability.
| [...]
| "The standard articulated in this case should limit the outrageous business
| method and software patents that we have recently seen, without undermining
| the incentive to innovate in these areas."


In re Bilski and the future of business method patents

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| Duffy stressed that the patent at issue in State Street, the 1998 decision
| that gave the OK to software and business method patents, would be fine and
| dandy under the new test—it's just the test itself that changed. The court
| maintained the "core holding" of State Street, said Duffy, merely changing
| the "verbal formulation" required. (And the number of BM patents that will
| still be strong?—Many! Most! Almost all!)


CLE: How to Draft Software Claims under Bilski

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| Going forward, I do not believe that these limitations will have a
| significant impact on a skilled practitioner's ability to patent software
| innovations.


Patent Court: You Can No Longer Patent Thin Air

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| In essence, the ruling means that business ideas in and of themselves aren’t
| patentable. In addition to Amazon’s “one-click” patent, which is the concept
| of purchasing something via credit card by just clicking a single website
| link, Friendster’s patents on social networking also come to mind as being
| unpatentable based on this judgement. That patent covers a “system, method
| and apparatus for connecting users in an online computer system based on
| their relationships within social networks” and a “method of inducing content
| uploads in a social network,” amongst other claims.


Court limits 'business method' patents


Federal Circuit Enforces Limit on Business Method Patents

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| The result: While the court did not categorically exclude business method
| patents, it held fast the idea that any method, whether business-related or
| not, must be tethered to a machine or some sort of physical transformation,
| says Stephen Maebius, a partner at Foley & Lardner.

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