Wednesday, May 24, 2006

In answer to a query about "software" patents

One IPBiz commenter asked why patents to Microsoft, Google, Sun, etc. are not patents on the software.

Over the years, IPBiz has been posting representative claims of some patents granted (and applied for) of these software companies. For example, on 3 November 2005, IPBiz posted the first claim of published application 20050240580 to Google:

A method of personalizing placed content, comprising: determining an interest of a user; accessing a user profile associated with the user; identifying a set of placed content that matches the interest of the user; and ordering the set of placed content in accordance with the user profile.

This is not a claim to software for a search engine. This is not a claim to software of an operating system. It is a claim to a business method.

This type of patent claim was not common in the 1980's. There were no patent legal cases in the 1980's that magically opened up this type of claim. The one thing that was true in Bessen's paper, referenced obliquely by Mike at Techdirt, is that Microsoft itself was not filing a lot of such claims even by 1995 (much less in the 1980's), although in the last five years Microsoft has been filing a lot of such claims. The paper relied upon by Mike, in getting the law and the timeline wrong, provides no support for the proposition that inventors are better off in a world without patents.

Just mindlessly citing a paper, without reviewing the contents, should not be done for "working" papers in economics or for law review articles (e.g, on patent grant rate: the citations to a 97% patent grant rate in the legal literature, long after the original authors modified the number).

[IPBiz post 1600]


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