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Alice didn't 'disallow' software patents, as they weren't 'allowed' before Alice. In fact, software patents have never been patentable subject matter in US law.
by PatentTroll 10y ago
Alice didn't 'disallow' software patents, as they weren't 'allowed' before Alice. In fact, software patents have never been patentable subject matter in US law. While Alice certainly has made it more difficult to protect software-related inventions (lol, that's the term we use) it is still very possible to get a patent issued on an invention which you would consider a 'software patent.' So it is not at all surprising that the IPO wants to lobby against Alice and anything that makes getting patents harder. But I'll submit this to the HN community: the biggest players such as IBM will always be more likely, in the aggregate, to get patents on what they want. They have the biggest budgets, the most lawyers, and the longest term mindset to stick with it. Sometimes it can take a decade to get a patent issued. Smaller companies with limited budgets and more direct needs are, in my opinion, affected more by anything that makes patenting harder. So keep that in mind when thinking about these issues.
EDIT: to address the substance of the IPO's proposal, it's actually mostly good IMO. One big focus of this proposed amendment is to separate 101 (eligibility) from the other requirements of patent law, like 102 (novel), 103 (non-obvious), and 112 (written description). This is by and large a good thing. Whether or not a patent is eligible should not be muddied by whether or not it is actually new. It confuses the issue and has led to some really bad law. And the wording of the proposed 101(b) doesn't jump out at me as a bad idea, although I'm not sure what the hidden gems are in that language. It appears that the intent is to make an easy, bright-line rule which may be more inclusive than the current standard, but would almost certainly be easier to administer. And that is a win for everyone, because as I allude to above, the big players win when there is ambiguity. And I personally believe that software should be patent eligible, the work that a software engineer does is every bit as meaningful and important as a mechanical engineer. Every software producing professional should be on board with this. But, if it is not novel and/or obvious, then it should not be patented. But that is the realm of 102/103, not 101. Basically, the software patent 'problem' should be addressed by more flexible non-obviousness rather than blanket denials of the entire category.