Good News: US Patent Office Now Rejecting A Lot More Software Patents
from the good-news-all-around dept
The impact of the Supreme Court's ruling in Alice v. CLS Bank continues to reverberate around the industry. We've already noted that courts have been rapidly invalidating a bunch of patents, and that related lawsuits appear to be dropping rapidly as well. And, now, a new analysis from a (pro-patent) law firm suggests that the US Patent Office is rejecting a lot more software patents as well.Following the ruling, the US Patent Office issued new rules for examiners, and even withdrew some notices of allowances. And it appears all of this is having an impact. The link above is Vox summarizing some findings from patent lawyer Kate Gaudry of law firm Kilpatrick Townsend, who argues that the data suggests the USPTO is rejecting software patents at a much higher rate. In short, back in January, art units at the USPTO rejected applications based on Section 101 of US Patent law only about 24% of the time. Section 101 covers what is patent eligible, and was the key part in the decision in the Alice case. Effectively, in the Alice ruling, the Supreme Court said that just doing something on a generic computer wasn't patent eligible under Section 101. Following that ruling, in July, the rejection rate jumped to 78%. Yes, from 24% in January to 78% in June. That's massive. The data also shows that units that focus on "other kinds of technology saw little change in their rejection rates."
As the Vox story notes, Gaudry is freaked out that this will destroy innovation. "Without incentive, say goodbye to the quick pace of innovation we enjoy." But that's ridiculous, as anyone who actually works in software innovation knows. Patents have long been a drag on innovation in the field, setting up minefields and tollbooths that have worked to limit the pace of innovation, not speed it along. The idea that without patents there are no incentives is pure ignorance. The incentive is building a useful tool or service and being able to monetize it in a variety of ways. The idea that competition destroys incentives is simply ignorant of the history of innovation and basic economics.
The rapid decline in software patents is a huge boon for innovation.
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Filed Under: business method patents, patents, rejections, software patents, uspto
Companies: alice, cls bank
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1) The process of slowing innovation in an industry and diverting money to lawyers.
2) Anything new that does not impact the business models of RIAA and MPAA members - as opposed to illegal innovation.
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If it wasn't for lawyers, we wouldn't need lawyers
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And there was much rejoicing
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Start-up software companies won't be able to find investors. Before Alice investors would look for patents (or just applications) as way to show the company is serious and has a product that wouldn't be copied right away. Now that they can't get protection, why would someone spend money to start up a software business knowing everyone else can just duplicate the program once people know it's any good. What you'll end up seeing is a lot of inventors just selling to the big companies who'd steal it later anyway. So a lot less new software companies are going to be started.
On top of that, the big companies are going to hide any new developments away behind trade secret. Then no one else will get to see how the problem was solved and improve the solution or apply it in a new way - you know, innovation.
Additionally, the idea that software isn't inventive just because it can run on an existing machine is ridiculous. It's an old mind-set that doesn't acknowledge that software is a major part of computers even though they can't hold it in their hands. Coding a known process is one thing (which obviousness would address), but figuring out a new process is a very different thing. Try writing a program for speech recognition or teach a computer to identify a bird in a photo (ala XKCD).
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Copyright covers all of the protection necessary for these guys, patent is completely not valid here.
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If by "investors" you mean VCs, then this is incorrect. Most VCs have been saying for years that they don't really care about software patents.
"On top of that, the big companies are going to hide any new developments away behind trade secret."
They already do, and have been for a very, very long time. Software patents don't enter into this (the majority of software patents are worthless in terms of knowledge transfer anyway).
"doesn't acknowledge that software is a major part of computers even though they can't hold it in their hands"
Perhaps because how major a part of computer operation software is has nothing to do with whether or not software should be patentable.
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Investors should have no problem investing in a working solution (or a demo software) instead of looking at bogus patent applications.
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Patents should only be applied to physical devices, never software.
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As to whether new companies will be able to get capital: you said yourself that VCs are using patents as a proxy for the ability of the company to succeed. What Alice does is destroy this (dubious) proxy, but not the ability of a business to make a case for itself based on its implementation of a good idea. Further, I don't think it's quite as easy as you think to just copy another company's software. Good implementations are *hard* and take time giving the first company a serious edge over any followers.
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The very first mistake anyone makes is to believe that a government, any government is pro Justice or cares to equitably dispense it either.
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In 20 years, all these old patents will have expired, and if these changes hold, less new bad patents will have been granted to replace then.
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In 20 years, all these old patents will have expired, and if these changes hold, less new bad patents will have been granted to replace them.
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But 20 years is an eternity in the technology field. The Internet(WWW) itself is only about 20 years old. Waiting 20 years to get rid of hundreds if not thousands of patents that will be crippling innovation for the next two decades and should never have been approved in the first place is hardly a consolation.
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"The basic GNU userland tools, including vim, sed, grep, awk, dd etc."
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