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Software Patent

Software Patent: State of Innovation

Software Patent: State of Innovation Software Patent: Will the Supreme Court use the In re Bilski 545 F.3d 943, 88 U.S.P.Q.2d 1385 (Fed. Cir. 2008) case to deny patent protection to information age technology? Many observes believe that this case will have major implications for software and business method patents. The Bilski patent application covered a method of hedging risks when trading commodities. The Court of Appeals for the Federal Circuit (CAFC) ruled that the Bilski patent did not fall within the subject matter of patentable material. It reached this decision based on the so called machine or transformation test. Bilski did not recite a machine or transform matter from one state to another state according to the court. Software Patent Software patents are inherently directed to a machine. As any electrical engineer knows, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time-critical solution is more likely to be implemented in hardware, while a solution that requires the ability to add features easily will be implemented in software. As a result, to be intellectually consistent, those people against software patents also have to be against patents for electronic circuits. Unless the Supreme Court is going to hold that electronic circuits are not statutory material for patents under 35 USC § 101, their decision should not affect software patents. Some people in the open source community argue that the difference between software and hardware, is software can be reproduced at virtually no cost. This argument is incorrect. Software code, which are the instructions, can be cheaply reproduced if the computer hardware already exists for the copying. The executed code or process cannot be reproduced cheaply, since it inherently requires hardware. The hardware can only run so many processes at one time and is limited in speed and power. Patents do not cover the software code, they cover the executed code or process. The Bilski decision results in an overly formalistic style of claim writing that requires hardware be recited in the claims, when the exact hardware implementing the software is irrelevant to the invention. For instance, error correction codes used in computers and communications are extremely important to our information society. Error correction codes transform a set of numbers (data) into another set of numbers (a code). The data and code are then transmitted to another location where the data is transformed and compared to the received error correction code. The patent claims and the patent specification do not need to recite the hardware by which the error correction system is implemented for an electrical engineer to understand the system. In fact, most technical and text books on coding do not refer to the underlying hardware. However, under Bilski, if the inventor does not recite some hardware then his claims will fail the machine or transformation test. What is the risk to the patent system if the inventor does not recite the hardware for an error correction code? An error correction coding scheme divorced from hardware is useless. No one is going to compute error correction codes by hand. The requirement to recite the hardware is absurd and the most likely outcome of this rule is to deny a patent to a deserving inventor. Bilski Since the Bilski patent application has never been published, it is hard to determine from the claims if its commodity hedging scheme requires a computer for any practical use. If the hedging scheme requires a computer for any practical use of the invention, then denying the patent just because it does not recite the hardware is absurdly formalistic. If the invention does not require a computer for any practical application of the invention, then it is hard to see how the invention is novel. In this case, the courts should avoid any overly broad pronouncements about business method patents or software patents and rule the invention is not patentable for lack of novelty

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