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[News] Free Software Helps Invalidate Patents

  • Subject: [News] Free Software Helps Invalidate Patents
  • From: Roy Schestowitz <newsgroups@xxxxxxxxxxxxxxx>
  • Date: Thu, 15 Oct 2009 13:12:21 +0100
  • Followup-to: comp.os.linux.advocacy
  • Newsgroups: comp.os.linux.advocacy
  • User-agent: KNode/4.3.1
Hash: SHA1

Open source software as prior art in patent oppositions 

,----[ Quote ]
|     You and your readers may be interested in 
|     six oppositions currently pending at the 
|     EPO. The opposed patents are those subject 
|     to the appeal decision T424/03 cited by the 
|     president in the referral. The patents in 
|     question are EP0717354, EP1028372, 
|     EP1028373, EP1028374, EP1028376 and 
|     EP1028377 ("Expanded Clipboard Formats") 
|     granted to Microsoft Corporation. 
|     The principal ground for opposition is 
|     novelty and, interestingly, the prior art is 
|     open source software. These oppositions may 
|     also be of interest to the open source 
|     community who may make observations to the 
|     EPO under Article 115 EPC".


An Entrepreneur Weighs In

,----[ Quote ]
| In closing I would like to point out that if you 
| affirm software/technical processes as patentable a 
| firestorm of litigation will ensue, resulting in a 
| massive and unjust transfer of resources. The 
| resulting effect on innovation in the US would lead 
| to the inevitable question: Why would we expose our 
| company to the risk of crushing litigation in the 
| United States when our markets are just as 
| accessible through the Internet?



NPEs and Abstract Patents

,----[ Quote ]
| 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.


Is it Patentable?

,----[ Quote ]
| 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."


The post-Bilski era begins

,----[ Quote ]
| The In re Bilski (545 F.3d 943 [Fed. Cir. 2008]; hereâs a PDF of the
| decision) court decision placed significant new limits on so-called âprocessâ
| or âbusiness methodâ patents, which possible implications for many software
| patents.


The Post-Bilski Era Gets Underway

,----[ Quote ]
| 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).

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