Back in July, the USPTO issued its Interim Bilski Guidance to assist the examining corps in determining subject matter eligibility under 35 U.S.C. § 101 in view of the United States Supreme Court decision in Bilski v. Kappos. It also invited the public to comment on this guidance, with submissions closing on 27 September 2010.The FSF has provided would-be email-writers with the following suggested text to get them started:
Software patents hurt individuals by taking away our ability to control the devices that now exert such strong influence on our personal freedoms, including how we interact with each other. Now that computers are near-ubiquitous, it's easier than ever for an individual to create or modify software to perform the specific tasks they want done -- and more important than ever that they be able to do so. But a single software patent can put up an insurmountable, and unjustifiable, legal hurdle for many would-be developers.
The Supreme Court of the United States has never ruled in favor of the patentability of software. Their decision in Bilski v. Kappos further demonstrates that they expect the boundaries of patent eligibility to be drawn more narrowly than they commonly were at the case's outset. The primary point of the decision is that the machine-or-transformation test should not be the sole test for drawing those boundaries. The USPTO can, and should, exclude software from patent eligibility on other legal grounds: because software consists only of mathematics, which is not patentable, and the combination of such software with a general-purpose computer is obvious.Of course, the first paragraph amounts to a policy-statement, that has little (if anything) to do with the state of the law post-Bilski. We would not even know where to begin in pointing out the numerous inaccuracies in the second paragraph.
And neither paragraph actually addresses the matter on which the USPTO invited comments: the Interim Bilski Guidance itself. One would have to actually read the document in order to comment meaningfully on it, and we are not sure that the FSF would want to let the facts get in the way of a good Quixotic campaign!
Aside from possibly annoying the USPTO with a deluge of near-identical messages, it is difficult to imagine this campaign having any effect on examination practice.
Before You Go…
Thank you for reading this article to the end – I hope you enjoyed it, and found it useful. Almost every article I post here takes a few hours of my time to research and write, and I have never felt the need to ask for anything in return.
But now – for the first, and perhaps only, time – I am asking for a favour. If you are a patent attorney, examiner, or other professional who is experienced in reading and interpreting patent claims, I could really use your help with my PhD research. My project involves applying artificial intelligence to analyse patent claim scope systematically, with the goal of better understanding how different legal and regulatory choices influence the boundaries of patent protection. But I need data to train my models, and that is where you can potentially assist me. If every qualified person who reads this request could spare just a couple of hours over the next few weeks, I could gather all the data I need.
The task itself is straightforward and web-based – I am asking participants to compare pairs of patent claims and evaluate their relative scope, using an online application that I have designed and implemented over the past few months. No special knowledge is required beyond the ability to read and understand patent claims in technical fields with which you are familiar. You might even find it to be fun!
There is more information on the project website, at claimscopeproject.net. In particular, you can read:
- a detailed description of the study, its goals and benefits; and
- instructions for the use of the online claim comparison application.
Thank you for considering this request!
Mark Summerfield
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