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NPEs and Abstract Patents
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| For a process to be patentable, it must involve a physical transformation to
| a different state or thing, or must be tied to a particular machine.
|
| What does that mean? The court gave examples indicating that software would
| be patentable if it represented physical objects undergoing physical
| transformation. However, it expressly reserved judgment on the alternative
| test: whether a general-purpose computer was "a particular machine." If so,
| of course, all software processes would be patentable.
|
| Not the brightest of lines, but the court didn't flinch from trying to draw
| one, despite arguments that patent lawyers would manage to circumvent any
| court-imposed limitations. The Bilski decision leaves a lot up in the air,
| but it affirms that judges will draw limits, even around patentable subject
| matter, and it offers a modest deflating of the patent bubble. It eliminates
| some of the worst excesses spawned by State Street without provoking a
| backlash. And it has breathed new life into public debate of where the limits
| should be. For those who care about how and where the line should be drawn,
| some colleagues and I have organized a conference at the Brookings
| Institution on January 14, the Limits of Abstract Patents in an Intangible
| Economy.
|
| Just as the debate has come alive in the U.S., it has also resurfaced in
| Europe three years after a proposed directive on software patents went down
| to defeat in the European Parliament. The President of the European Patent
| Office has asked the EPO's Enlarged Board of Appeals to answer four questions
| about the patentability of computer programs. The European Patent Convention
| has always specifically precluded patents on certain abstract processes,
| including computer programs and business methods, but then in the next
| section it says that these exclusions only apply to computer programs,
| etc. "as such." So decades have been spent trying to figure out what "as
| such" really means and what kind of "technical" contribution is needed to
| pass muster.
`----
http://www.huffingtonpost.com/brian-kahin/npes-and-abstract-patents_b_156350.html
Recent:
Is it Patentable?
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| Two months ago, in In re Bilski, the Federal Circuit rejected the notion that
| anything that produces a "useful, concrete, and tangible result" is
| potentially patentable. Instead, to be patent-eligible, an idea must be "tied
| to a particular machine or apparatus," or it must "transform a particular
| article into a different state or thing." (To qualify for a patent, it also
| has to meet various other requirements, such as being novel.)
|
| As to transformation, the court noted that not just any transformation will
| do. The transformation "must be central to the purpose of the claimed
| process," and the "articles" transformed must either be "physical objects or
| substances" or "representative of physical objects or substances."
`----
http://www.eff.org/deeplinks/2008/12/is-it-patentable
The post-Bilski era begins
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| The In re Bilski (545 F.3d 943 [Fed. Cir. 2008]; here’s a PDF of the
| decision) court decision placed significant new limits on so-called “process”
| or “business method” patents, which possible implications for many software
| patents.
`----
http://bfwa.com/2008/12/19/the-post-bilski-era-begins/
The Post-Bilski Era Gets Underway
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| A set of pharmaceutical process patents for 'evaluating and improving the
| safety of immunization schedules' (Classen v. Biogen et al.; see US Patents
| 6,420,139; 6,638,379; 5,728,385; 5,723,283) were held to be invalid due to
| unpatentability. The decision was appealed to the US Court of Appeals for the
| Federal Circuit, but was upheld with a terse citation to In re Bilski (which
| decision we discussed here).
`----
http://yro.slashdot.org/article.pl?sid=08/12/20/1811246
Applying Bilski to Biotechnology and the Life Sciences
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| For example, although Bilski states that a process claim is "surely"
| patent-eligible under section 101 if it complies with the
| machine-transformation test, this cannot be literally correct with respect to
| a naturally occurring biological process. Photosynthesis transforms carbon
| dioxide and water into sugar, and in Bilski the Court specifically points to
| chemical reactions as the sort of physical transformation that will render a
| process patentable, but a claim directed to photosynthesis would clearly
| violate Supreme Court precedent which bars the patenting of natural
| phenomena.
`----
http://lawbites.com/applying-bilski-to-biotechnology-and-the-life-sciences/
Vaccination
http://www.patenthawk.com/blog/2008/12/vaccination.html
Recent:
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.
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http://www.fsf.org/news/esp-bilski
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.
`----
http://www.business-standard.com/india/storypage.php?autono=339903
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.
`----
http://techjournalsouth.com/news/article.html?item_id=6395
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....
`----
http://www.mondaq.com/article.asp?articleid=69582
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.
`----
http://www.groklaw.net/article.php?story=20081112034806294
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.
`----
http://stopsoftwarepatents.org/forum/t-101849/uspto-does-not-like-killing-business-method-patents
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).
`----
http://www.iam-magazine.com/blog/Detail.aspx?g=c0d00676-2989-400a-824b-82dfc57a09b9
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.
`----
http://ben.klemens.org/blog/arch/00000009.htm
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.
`----
http://www.theregister.co.uk/2008/11/03/us_court_business_patents/
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.
`----
http://www.computerworlduk.com/community/blogs/index.cfm?blogid=14&entryid=1452
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.
`----
http://aplawrence.com/Opinion/business-method.html
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."
`----
http://blog.entchev.com/2008/10/31/us-court-throws-out-most-software-patents.aspx?ref=rss
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.
`----
http://www.eweek.com/c/a/IT-Management/Court-Reshapes-Patent-Reform-Debate/
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.
`----
http://gizmodo.com/5072858/in-huge-shift-court-ruling-effectively-denies-software+only-patent-rights
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.
`----
http://www.patentlyo.com/patent/2008/11/professor-colli.html
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.
`----
http://www.groklaw.net/article.php?story=20081103134949355
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."
`----
http://www.zdnetasia.com/news/business/0,39044229,62047897,00.htm
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!)
`----
http://thepriorart.typepad.com/the_prior_art/2008/10/in-re-bilski-decided.html
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.
`----
http://www.patentlyo.com/patent/2008/11/cle-how-to-draf.html
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.
`----
http://mashable.com/2008/10/30/patent-business-ideas/
Court limits 'business method' patents
http://hosted.ap.org/dynamic/stories/B/BUSINESS_PATENTS_COURT_CASE?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2008-10-30-15-45-15
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.
`----
http://legaltimes.typepad.com/blt/2008/10/federal-circuit-enforces-limit-on-business-method-patents.html
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