Good News: US Patent Office Now Rejecting A Lot More Software Patents

from the good-news-all-around dept

Tue, Oct 14th 2014 9:26am — Mike Masnick

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

27 Comments

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rw (profile), 14 Oct 2014 @ 8:33am

I don't think she means innovations in software. I think she means innovations for lawyers getting easy money.
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Anonymous Coward, 14 Oct 2014 @ 9:31am

Re:
Exactly what I came here to post. She's not concerned with technology innovation. She's only interested in legal innovation.
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Anonymous Coward, 14 Oct 2014 @ 9:31am

Necessity is the mother of all invention.
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Michael, 14 Oct 2014 @ 10:01am

Re: Re:
Legal Innovation

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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John Fenderson (profile), 14 Oct 2014 @ 10:17am

And there was much rejoicing
It's fantastic step in the right direction. Keep it up, patent office!!
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Anonymous Coward, 14 Oct 2014 @ 10:21am

This will stifle innovation because all software patents are being hit with the same stick as 'business method' patents.
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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Anonymous Coward, 14 Oct 2014 @ 10:34am

While it's good news that the patent office is now rejecting many software patents, a key question remains: what happens to all those patents that should never have been approved? Will the patent office ever re-examine them, or will any software patent invalidation require a hard-fought court battle?
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Anonymous Coward, 14 Oct 2014 @ 10:37am

Re:
You completely missed the boat, missed it so much that is not coming back around to pick you back up. There are just not enough words invented to probably change your mind either. You fundamentally lacked any knowledge of what a patent is for.

Copyright covers all of the protection necessary for these guys, patent is completely not valid here.
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John Fenderson (profile), 14 Oct 2014 @ 10:39am

Re:
"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."

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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Anonymous Coward, 14 Oct 2014 @ 10:42am

Re:
The government is too lazy to go back and fix problems. They like to let the rich folks with money to fight through the court systems to sort the rest.

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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Anonymous Coward, 14 Oct 2014 @ 10:43am

Re:
I would agree with your reasoning IF the software patents were granted on actual products with demonstrated features. Since patents can be granted on anyone taking a real world product + works on a computer / works on internet, wrapped up in patent-legalese AND THEN TAX real innovators which ACTUALLY CODE AND DEVELOP THE PRODUCT.

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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Anonymous Coward, 14 Oct 2014 @ 10:49am

Re: Re:
Under your patent rules the same problem persists... they would easily drop dime on a cheap barely functional device to get that juicy patent... you are like the original poster... missed the boat on what a patent is for.

Patents should only be applied to physical devices, never software.
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Anonymous Coward, 14 Oct 2014 @ 10:50am

Re:
I don't think anyone is claiming that software isn't an innovative, inventive process. What's at issue is whether the ability to patent software enhances or retards this innovation. Although one could argue that software patents do some good, they have also become an obvious drag on this sector. Many of the things patented are obvious and broad, forcing those who independently arrive at the same ideas to constantly question whether they're on solid legal ground. If a person can invent something, but then be sued by a patent holder who thought of a broad idea without implementing it, the system is broken.

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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Anonymous Coward, 14 Oct 2014 @ 10:51am

Re:
Unlike copyright, patents expire.

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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Anonymous Coward, 14 Oct 2014 @ 10:51am

Re:
Unlike copyright, patents expire.

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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Anonymous Coward, 14 Oct 2014 @ 10:52am

Re: Re:
Sorry for the double post.
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Anonymous Coward, 14 Oct 2014 @ 11:05am

Re:
You appear to have missed the point ofxkcd Tasks. Float your cursor over the cartoon and read the comment, the idea of recognizing object in a photo was proposed by Marvin Minsky 50 years ago, and it is still not solved. Such problems are solved by multiple people building on the work of others, and can only progress if there are no patents to get in the way, and code is freely shared. This is the sort of problem where patents on partial solutions can hold up progress for the life of the patent.
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Anonymous Coward, 14 Oct 2014 @ 11:20am

Re: Re:
"In 20 years, all these old patents will have expired"

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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John Fenderson (profile), 14 Oct 2014 @ 11:34am

Re: Re: Re:
The 20 year duration is another enormous problem for applying patents to software. It guarantees a 20 year delay before patented software can be used and, as you say, 20 years is effectively forever in the software business.
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Anonymous Coward, 14 Oct 2014 @ 2:06pm

Re: Re: Re: (20 years)
And what software on your computer is 20 years old?
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Anonymous Coward, 14 Oct 2014 @ 2:18pm

Re: Re: Re: Re: (20 years)
The basic GNU userland tools, including vim, sed, grep, awk, dd etc.
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Anonymous Coward, 14 Oct 2014 @ 5:56pm

Re:
u mad bro
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Eldakka (profile), 14 Oct 2014 @ 6:21pm

Most of those are closer to 40 years old than 20.
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Eldakka (profile), 14 Oct 2014 @ 6:22pm

Re:
Oops was meant as a reply to
"The basic GNU userland tools, including vim, sed, grep, awk, dd etc."
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Anonymous Coward, 15 Oct 2014 @ 1:16am

Re: Re:
She's only interested in legal innovation.

If it wasn't for lawyers, we wouldn't need lawyers
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John Fenderson (profile), 15 Oct 2014 @ 8:13am

Re: Re: Re: Re: Re: (20 years)
I'm not sure that counts. Although that software was originally written that long ago, it hasn't remained unchanged in the meantime. Implementation details may have changed over time.
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Anonymous Coward, 29 Oct 2014 @ 12:12pm

Does this mean many eBay patents are invalid?
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