USPTO Seeks Community Input on Software Patents

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Editor’s Note: As part of IPEye’s focus on bridging the gap between understanding and analyses of IP issues in emerging and emergent nations, our new guest contributor, Amisha Manek, begins with a commentary on patent reform in the US, specifically in relation to software patents. This ongoing series will examine pertinent issues and draw comparisons between patent reform policies between the emerging and emergent worlds.

 

In the wake of a particularly litigious year for the tech industry, the US Patent and Trademark Office (USPTO) has announced its intention to work closely with the software community through the formation of a “Software Partnership” and a series of roundtable discussions.  These discussions will focus on enhancing the quality of software-related patents and will be open to the members of the public.  The USPTO has scheduled the first two roundtables for later this month in Palo Alto and New York City.

Software-related patents have long been the subject of dissatisfaction.  Detractors claim that the current patent system impedes innovationby discouraging inventors who lack the means to engage a patent attorney.  These inventors are usually individuals or small businesses and are often forced to buy licenses under the threat of expensive lawsuits.  Even if these inventors believe that their use is non-infringing, they often relent to buying licenses rather than go through unpredictable and endless litigation.

Other critics point to the poor quality of software patents.  According to some estimates, the USPTO issues an average of 40,000 software patents per year.  Many of these patents are for basic technologies, like the one-click shopping patent held by Amazon, and the (now expired) patent for hyperlinks held by British Telecom.  The latter was so broad that it encompassed the entire Internet.  The high volume of software patents also makes searching for prior art a daunting task, requiring resources that independent inventors and small businesses cannot afford.

In announcing the Software Partnership, the USPTO says that it is responding to last year’s patent-wars and public commentary.  First on the agenda is a discussion on “establishing clear boundaries for claims that use functional language.”  Such claims tend to be overly broad in nature and describe a software invention simply by what it does.  The inventor claims to have ownership of the function itself, rather than just the underlying technology.  The aforementioned Amazon one-click shopping patent is an example of a functional claim.

As part of the Software Partnership, the USPTO is also looking for public input for future discussion topics.  There are also plans to issue a Request for Comments on the preparation of patent applications.  The roundtables are likely to attract parties from both sides of the debate: those who wish to see reform, as well as those who point to the prosperity of the software industry to claim that the patent system is working.  While it is too early to speculate on the efficacy of the Software Partnership, it is certainly a step in the right direction.

This article is part of a series on software-related patents in the United States.  The next installment will focus on the impact of the America Invents Act on the software industry.   

 

Photo Credit: Riebart, Flickr

 

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About: Amisha Manek

Amisha Manek is a first year law student at UCLA School of Law, with an interest in patent law and telecommunications law. Prior to joining law school, she worked as a consultant with the Telecommunications, Media and Entertainment practice at Capgemini North America. Amisha has a graduate degree in Electrical and Computer Engineering from Georgia Tech.

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