A fix for software patents?

Discussion in 'Off-topic Zone' started by Sam I Am, Sep 14, 2012.

  1. Sam I Am

    Sam I Am Unfriendly and Aloof!

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    Interesting read. It seems Congress rewrote the Patent Act in 1952 to curb a similar issue with other patents.

    The following is just the abstract of the full paper, but I've also provided a link to the full paper in PDF format.


    Software Patents and the Return of Functional Claiming

    Mark A. Lemley
    Stanford Law School

    July 25, 2012

    Stanford Public Law Working Paper No. 2117302

    Commentators have observed for years that patents do less good and cause more harm in the software industry than in other industries such as pharmaceuticals. They have pointed to a variety of problems and offered a variety of solutions.

    While there is some truth to each of these criticisms, the real problem with software patents lies elsewhere. Software patent lawyers are increasingly writing patent claims in broad functional terms. Put another way, patentees claim to own not a particular machine, or even a particular series of steps for achieving a goal, but the goal itself. The resulting overbroad patents overlap and create patent thickets.

    Patent law has faced this problem before. The Supreme Court ultimately rejected such broad functional claiming in the 1940s as inconsistent with the purposes of the patent statute. When Congress rewrote the Patent Act in 1952, it adopted a compromise position: patentees could write their claim language in functional terms, but when they did so the patent would not cover the goal itself, but only the particular means of implementing that goal described by the patentee and equivalents thereof. These “means-plus-function” claims permitted the patentee to use functional language to describe an element of their invention, but did not permit her to own the function itself however implemented.

    Most software patents today are written in functional terms. If courts would faithfully apply the 1952 Act, limiting those claims to the actual algorithms the patentees disclosed and their equivalents, they could prevent overclaiming by software patentees and solve much of the patent thicket problem that besets software innovation.

    Number of Pages in PDF File: 57

    Download the full paper in PDF format.

    EDIT: Adding a link to an InfoWorld article about it.
  2. Sam I Am

    Sam I Am Unfriendly and Aloof!

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    I actually thought I would have had some response to this thread by now. I suppose only the lawyer types would have actually read the link. :(

    I promise you, the link's text isn't complete lawyer jargon. :laugh2:

    Software patents are in a serious mess. Most people are unaware of this. The worst part is most people are too busy with their social or family lives to care. They should, since it definitely affect both their family, social, and even private lives directly. Technology rules most peoples lives today and that technology runs on both hardware and *software*.

    If you aren't aware, you are acting the part of the sheep. That makes you part of the problem. I have no idea if this guy's thoughts are part of the answer to the software patent issue, but people definitely need to make themselves aware. It's the people who can bring about change.

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