Silver Linings: Bilski Ruling Does Seem To Be Limiting Some Software Patents

from the marginal-improvement dept

Fri, Aug 5th 2011 4:05am — Mike Masnick

Lots of folks were upset with how the Supreme Court ruled so narrowly in the Bilski case and how they refused to make a clear statement on the patentability of software. It did seem clear that some judges didn't believe that software should be patentable, and we were just discussing how the Supreme Court might still invalidate software patents, if given a good case on the subject. In the meantime, though, as a small silver lining, it does appear that the Bilski ruling has resulted in at least some software patents tossed.

A new study, covering the year since the Bilsky ruling, found that the Board of Patent Appeals appears to be more willing to reject software patent claims. On top of that, the district courts' ruling on software patents also seem willing to take the Bilski lead and invalidate software patents (though, here, we're talking about the ridiculously small sample size of four -- though in all four cases, the patents were rejected). While, obviously, many would prefer a more bright line rejection of software patents, it's at least good to see that the courts and the BPAI seem to be somewhat cognizant of the idea that the bar for such patents should be reasonably high.

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Filed Under: bilski, patents, software patents

9 Comments

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Nicedoggy, 5 Aug 2011 @ 5:10am

People apparently are complaining about a SOFTWARE(i.e. app) that will only be available to iOS(IOW: iPhone, iPad, only) and not to a variety of platforms.

Not the music in specific the APP!

Quote:
Biophilia is a multi-media project comprising a studio album and an app featuring a game for each of the 10 new tracks, as well as a new website, custom-made musical instruments, live performances, and educational workshops.

Source: http://drownedinsound.com/news/4143233-bj%C3%B6rk-trusts-pirates-will-crack-biophilia
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Nicedoggy, 5 Aug 2011 @ 5:12am

Re:
Oops! wrong thread.
Sorry.
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Ninja (profile), 5 Aug 2011 @ 6:27am

Sanity? The beginning of the remake of the patent system?

DREAM?
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Anonymous Coward, 5 Aug 2011 @ 7:48am

Sort of classic Techdirt thinking here. The Bilski ruling was so narrow as to have very little effect, and when that little effect does happen, it's somehow a silver lining?

4 rejected patent? Oh no, the patent world is ending. Come on Mike, how many patents were approved in the same time period? hundreds? Thousands?

Yup, classic Techdirt logic at work!
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abc gum, 5 Aug 2011 @ 9:01am

Re:
"how many patents were approved in the same time period? hundreds? Thousands?"

And how many of those actually deserve patent protection?
Based upon past history, I would guess very few.
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Anonymous Coward, 6 Aug 2011 @ 1:12am

Re:
so narrow as to have very little effect

That's why he said lining rather than a big honking chunk of silver.
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Gene Cavanaugh (profile), 6 Aug 2011 @ 1:43pm

Software patents
Former software engineer; now IP attorney - I have never seen, nor do I ever expect to see, a software patent that should have been granted.
Hopefully the courts will set aside the "presumption of validity" normally accorded to the USPTO for software patents.
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staff, 7 Aug 2011 @ 9:21am

To promote the Progress of Science
In Federalist No. 43, James Madison wrote regarding constitutional rights of inventors, "The utility of the clause will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of the individuals."

The Constitution says �To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries�. Therefore, if an invention is useful and promotes science, it should be patentable. It�s that simple.
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Eric, 8 Aug 2011 @ 12:53am

software patents?
The problem with most software patents is that we were doing what is patented many years before the patent was applied for. The infamous one click patent...Was a DBIII system in the late 80's, games across a network (which is just information in the form of packets) is no different than e-mail (invented in 1969). There are not too many software patents that are not re-inventing some thing that was done long ago.

I would agree that if some software is "useful and promotes science", it should get a patent...but there is not much that does.
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