Tuesday, May 23, 2006

More on "software" patents.

In discussing "software" patents, one has to have a definition. One can't have a patent on an operating system, or a programming language. One can obtain copyright protection. Ask Apple about that issue.

People do talk about "software" patents. Shane Glynn wrote Rationalizing Software Patents: Suggestions for a Livable System which appears in 28 Hastings Comm. & Ent. L.J. 287 (Winter 2006).

Shane began:

In October 2004, a federal jury found that Sun Microsystems' Java
programming language violated a patent owned by the Eastman Kodak Corporation. n1
This decision was notable for two reasons: first, it was a high-profile
patent case between large corporations that involved a potential
billion-dollar damages award n2 and second, this case involved a software patent, a new and relatively controversial form of intellectual property.

Shane noted it was a METHOD patent:

The patent covered a method by which one computer program can "ask for help" from another program.

This is in the realm of what others call a business method patent.

Shane discussed some history, including the Benson case:

The Supreme Court has, until relatively recently, been skeptical of
claims involving software or computer algorithms. Benson was one of the first
Supreme Court cases that dealt with an attempt to patent a software algorithm.
n29 The respondents in Benson attempted to patent a computer algorithm used to
convert numbers from binary coded decimal (BCD) notation into pure binary
numbers. n30

Shane discussed Diamond v. Diehr:

Justices Stevens [IPBiz: part of the concurring Kennedy opinion in eBay], Brennan, Marhsall, and Blackmun disputed this conclusion. They argued in dissent that the claims at issue were not a process but a computer algorithm for measuring cure time, similar to the algorithm for calculating "alarm limits" rejected in Flook as nonstatutory under section 101. (...) Diehr did not hold that software was
patentable subject matter, only that the inclusion of software in a process claim
was not fatal.

Of Alappat in 1993: Software patents, although not fully endorsed by
Alappat, were now one step closer to express validity under section 101.

[IPBiz post 1599]


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