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ACT Member Peter Carnes Storms the House!

Thursday, July 22nd, 2010

CT member Peter Carnes (CEO of Traffax, Inc.) testified before of the House Committee on Small Business today about “The Impact of Intellectual Property on Entrepreneurship and Job Creation”. Peter shared the stage with a really diverse group of IP owners – from ABRO, which has problems protecting its trademarks, to Rick Carnes, a songwriter who has written songs for Reba McEntire and Garth Brooks. The President of the Business Software Alliance and the CEO of t3 (they sell mainframe software) rounded out the mix.

The Committee has Peter’s oral testimony up on YouTube here, but for those of you who want to read the full version, here’s a link.

Overall, the witnesses really hammered on the message that IP was a key way for America to move forward, and that it wasn’t going to happen without some help from the government. Holleyman and Rick Carnes (Songwriter’s Guild) pointed out that the BRIC nations are really doing a number on US copyright holders – stealing software, music and movies as fast as we can make them. Peter talked about the need to get the USPTO fully funded, and to get the backlog of patents dealt with so that businesses that file for patents aren’t hanging out in the wind for nearly 2 years after their patent has been published.

Peter also pointed out that adding IP to international trade agreements had an impact not just on the macro level, but in day to day business as well. He noted that he had been dealing with China for years, and he has begun to notice that IP issues have now become “part of the narrative” of business negotiations, when before they weren’t even an afterthought.

On patents, Congressman Luetkemeyer referenced a constituent of his who said ‘filing a patent lets your competitors see what you are doing, and then they just tweak it to work around, so why bother?’ Peter noted that this is the heart of the patent system; it drives innovation forward because by teaching others how you do things, they come up with ways to jump ahead. In exchange for sharing the secret of how my invention works, I get a time restricted monopoly on my design. I share so that I can get (temporary) exclusivity. But this delicate balance is being thrown out of whack by a patent system that takes far too long between publishing and granting. During that nearly 2 year gap of time the patent filer can do next to nothing to protect his idea.

We agree with Peter that something needs to be done to get USPTO on the right track of eliminating the patent backlog; in support of this, ACT has asked Congress to give the USPTO access to all the money it collects for FY2010 during FY2010, rather than wait a whole year to spend the money we’ve given them. Here’s a copy of the letter we sent to the Senate Appropriations Committee.

Finally, Peter talked about the difficulty small tech companies have had when trying to get a loan through SBA. Banks have almost no ability, and no interest, in granting loans to companies that have few tangible assets. Innovation companies don’t buy buildings, they don’t buy furniture, they don’t buy trucks, they may not even buy computers. Instead they pay wages for engineers, they hire software developers, they build and destructively test prototypes – none of which is a tangible asset that a bank can attach if you fail. Peter asked Chairwoman Velazquez to work with SBA to improve how SBA deals with IP as an asset for the purposes of securing loans.

Overall, Peter was a rockstar today, and made all of us at ACT very proud to have him as a member.

Posted in Copyright, Entrepreneurship, Innovation and IP, Patents, Tech Regulation, Uncategorized | No Comments »

Supreme Court Upholds Software Patents in Bilski; “IP Sucks” Camp Mourns

Monday, June 28th, 2010

Today, the Supreme Court of the United States issued its opinion in Bilski v. Kappos, finding that Bilski’s patent was not valid, but reaffirming the patentability of methods and software. Those in the “IP Sucks” camp were hoping the court would embrace their vision and overturn the entire concept software patents. Thankfully, their hopes and dreams lie shattered on the floor, soaked in tears, much like my hopes for a USA semifinal birth in the World Cup.

Here is the statement I put out earlier today:

“The Supreme Court reaffirmed what we have always known: the world of software is filled with inventions deserving of protection through the patent system. Just a few minutes playing with a Tivo, an iPhone, or Adobe Photoshop proves that beyond a shadow of a doubt.

Patent quality is still clearly a problem for PTO on software and other method patents, but the Supreme Court rightfully chose not to throw the baby out with the bathwater. Bad patents are the problem, not the patentability of methods and software. What is needed is real effort to reform the system and prevent bad patents from ever being granted.”

Some key lines from the decision include:

In discussing the foundations of patent law:

Section 101 specifies four independent categories of inventions or discoveries that are patent eligible: “process[es],” “machin[es],” “manufactur[es],” and “composition[s] of matter.” “In choosing such expansive terms, . . . Congress plainly contemplated that the patent laws would be given wide scope,” Diamond v. Chakrabarty, 447 U. S. 303, 308, in order to ensure that “ ‘ingenuity should receive a liberal encouragement,’ ” id., at 308–309.

An invention need not be a machine or create physical transformation:

The machine-or-transformation test is not the sole test for patent eligibility under §101.

The Court is unaware of any ordinary, contemporary, common meaning of “process” that would require it to be tied to a machine or the transformation of an article.

Patent Law Does Not Exclude Business Methods or Software Patents:

(c) Section 101 similarly precludes a reading of the term “process” that would categorically exclude business methods. The term “method” within §100(b)’s “process” definition, at least as a textual matter and before other consulting other Patent Act limitations and this Court’s precedents, may include at least some methods of doing business. The Court is unaware of any argument that the “ordinary, contemporary, common meaning,” Diehr, supra, at 182, of “method” excludes business methods. Nor is it clear what a business method exception would sweep in and whether it would exclude technologies for conducting a business more efficiently. The categorical exclusion argument is further undermined by the fact that federal law explicitly contemplates the existence of at least some business method patents:

Tags: bilski, IP, IPR, supreme court, uspto, world cup
Posted in Innovation and IP, Open Source, Patents | No Comments »

Antitrust Experts Engage Debate (Virtually) Merits of FTC’s Use of Section 5 Authority in Intel Case

Monday, April 19th, 2010

Over the past few weeks an online debate has been brewing between antitrust scholars over the FTC case against Intel. The focus of the debate has been the FTC’s decision to pursue most of its case using its Section 5 authority to prevent “unfair and deceptive” practices, rather than its Section 2 authority for combating anti-competitive behavior.

The discussion began with a piece by Bob Litan, former Deputy Assistant Attorney General in the Antitrust Division of the Justice Department in the Clinton Administration, entitled “The FTC’s Radical Application of Section 5.” As the title suggests, Litan has some serious concerns about the FTC’s case in general and its application of Section 5. It’s a pretty compelling piece that I recommend to all you antitrust geeks, but if you’re short on time/attention span I’ll try to summarize.

Litan believes (like we do) that the FTC has a pretty difficult case to make, given that:

The levels of innovation and price cutting from the semiconductor industry are unparalleled by any other industry (see our paper on Exponential Innovation)
The FTC seeks to prevent Intel’s above-cost discounting of chips, a practice that Supreme Court has regularly defended and cautioned against regulatory interference of such pro-competitive activities.

Therefore, he argues:

The FTC apparently seeks to avoid proving harm to competition under the established standards of Section 2 because the causal link between the conduct it challenges and any conceivable harm to competition is weak. At a minimum, therefore, the relief sought by the FTC should reflect the tenuous connection between the conduct it challenges and the potential for harm to competition.

Yet, the FTC is pursuing pretty heavy-handed remedies.

Litan then goes on to make make compelling cases for how the FTC’s proposed remedies transform Intel into a regulated utility, which could actually raise prices, reduce innovation, and create “a radical and sweeping re-interpretation of this nation’s antitrust laws, with potentially grave implications for private incentives to innovate and compete.”

Enter David Balto, former policy director of the FTC and current Senior Fellow at the Center for American Progress. Balto has been consistently supportive of the FTC’s case against Intel and took issue with the Litan’s reading http://www.americanprogress.org/issues/2010/04/balto_ftc_intel.html of the situation. He argues:

These predictions of doom are exaggerated and misplaced. The reality is far more straightforward.

Balto argues that three different foreign antitrust authorities have charged Intel with anticompetitive conduct, and Intel’s conduct effectively limited consumer choice through its “rebate schemes.” Balto goes on to cover familiar territory by summarizing the arguments made the FTC and other antitrust regulators, and suggesting that Litan’s fears are far outweighed by the potential damage Intel could inflict on competition in the future, especially in the GPU market. He summarizes his points with:

The FTC’s action is perhaps most important for its focus on dynamic competition. Innovation is central to the growth of the U.S. economy. Exclusionary conduct that dampens innovation extracts a significant cost on the economy.

However, Balto never really addresses Litan’s concerns about the application of Section 5 in this case, but argues that the use of Section 5 authority is not radical and is in fact warranted in this case. While he does say that the FTC’s Section 2 case could stand on its own, Balto actually confirms Litan’s thesis that the FTC pursued the Section 5 claim to free itself from the bar of demonstrable consumer harm.

Section 5 enables the FTC to go beyond narrow competition concerns. As the Supreme Court has held in FTC v. Sperry & Hutchinson Co., 405 U.S. 233 (1972), “like a court of equity, the Commission may consider public values beyond simply those enshrined in the letter or encompassed in the spirit of the antitrust laws.”

Perhaps his most compelling argument for the use of Section 5 authority is the speed at which the administrative courts can reach a decision, but that is a double-edged sword. Acting quickly can help the FTC address concerns before market opportunities are closed, but it can also magnify the cost of mistaken action as well. In the end, however, this was not one of Balto’s more compelling arguments for regulatory activism.

It wasn’t long before Geoff Manne of Lewis & Clark Law School offered his own rebuttal to the rebuttal. On the Truth on the Market blog, Manne posted an article entitled “David Balto (and the FTC) gets it woefully wrong on Intel <http://www.truthonthemarket.com/2010/04/14/david-balto-and-the-ftc-gets-it-woefully-wrong-on-intel/ .”

Manne highlights many of the failings of Balto’s piece.

He notes that Balto’s reliance on decisions by three foreign commission as evidence of Intel’s liability is misleading at best, given that “it is well-accepted that conviction by a party acting as judge, jury and prosecutor is less than decisive.” This is doubly true given that the FTC is pursuing conduct that the other jurisdictions never even looked at.
He also notes that, despite Balto’s assertion, none of the other Commission’s provided any evidence or specific conclusions that Intel’s conduct led to higher prices.

On Section 5, Manne provides his most effective rebuke of Balto, however. Manne notes that Balto is completely dismissive of error costs concerns (such as those made by Litan) because of his certainty that agencies “don’t err in the cases they bring-only in the cases they don’t bring.” He then takes on Balto’s argument that the use of Section 5 is critical to ensuring “dynamic competition”

Balto finishes by praising the FTC’s focus on dynamic competition and by comparing the case to the DOJ’s Microsoft case–as if to highlight how perfectly off-base his assessment is. The DOJ and the courts in Microsoft were so forward looking that they dismissed the threat to Microsoft from Linux and didn’t even realize that there was a threat from Google. Larry Lessig has announced that he “Blew It on Microsoft <http://webmonkey.wired.com/wired/archive/15.01/posts.html?pg=6> ” for failing to appreciate the dynamic market. This case by the FTC is built on theoretical models of speculative harms and against copious evidence of present-day benefits to consumers. If this is how the agency focuses on “dynamic” competition, count me out.

The debate (online and offline) over the FTC’s case and the use of Section 5 will certainly rage on, but it’s becoming increasingly clear that the FTC’s case is anything but a slam dunk.

Posted in Innovation and IP, New Economy Competition, Patents, Tech Regulation | No Comments »

One Step Closer to a Single European Patent System

Wednesday, December 9th, 2009

After several rounds of negotiations, the Swedish Presidency announced last week that the EU Patent System was one step closer.

We are of course very pleased to see that the dossier is moving forward; and we have continuously praised the Swedish Presidency for their great efforts. A good patent protection is essential to achieving the levels of innovation that European SMEs deserve. And it appears many agree:

“The EU patent will make it much easier and cheaper to protect innovations in the EU. This will give European industry better opportunities to compete on the global market,” said Minister for Trade Ewa Björling.

“Today’s agreement cannot be overestimated. It comes at a moment when it is most needed,” said the EU’s industry commissioner, Gunter Verheugen, after the deal was struck.

Creating an ideal environment for EU innovative SMEs, including a strong unified IP protection system, would help to improve the overall innovation performance of Europe, which still lags behind that of the US and Japan. But conversations about a one-stop shop for patent protection across Europe are almost as old as the European Union itself so we can’t help but wonder, are we really there?

The Swedish Presidency and the European Commission considered Friday’s development a very positive breakthrough. And it is, but will the next EU Presidency to be led by Spain be willing to take to take over? Will they leave language differences aside? What role will the European Court of Justice and the individual Member States play in shaping the agreement?

Friday’s agreement was an important step, but there are still outstanding issues that shouldn’t be overlooked before we sing victory.

Posted in Innovation and IP, Lisbon Agenda, Patents | 1 Comment »

No Patent Troll Here — Rewarding Innovation Down Under Through Patents

Saturday, October 24th, 2009

Slashdot’s recent discussion of how an Australian research/tech transfer agency enforced its patent rights against 14 of the world’s largest tech companies has what everybody should view as a happy ending: reinvestment.

Australia’s CSIRO has “injected $150 million from the proceeds of its wi-fi technology to the once-defunct science and industry endowment fund, originally established by parliament in 1926″ according to the Aussie news article. The article also has a great quote:

It’s very important that when you have a success like this, you re-invest it back into the wellspring,” CSIRO boss Megan Clark said.

Exactly! This is what the patent system is supposed to be all about. Rewarding innovation creation and providing incentives for new research. Here, it’s a government agency that benefits. But it could be a small IT company that uses patents to also invest back into the “wellspring.”

Posted in Innovation and IP, Patents | No Comments »

Do You Mean to Say That We’ve Reached the Pinnacle of Human Success?

Friday, May 15th, 2009

Our pals at Third Way had a nice event on Wednesday with Dean Kamen (inventor of
the Segway) and Ralph Eckhardt and Mark Blaxill (authors of the new IP-centric
book, “The Invisible
Edge”). The focus of the event was innovation and American jobs; Kamen
talked about his efforts to build future generations who are interested in math
and science, and Eckhardt and Blaxill talked about how intellectual property is
crucial to innovation and future job creation.

All three were great, but the most interesting exchange came
during the Q&A portion. My colleague Morgan Reed pointed out that
oftentimes IP, and patents specifically, is referred to as a “tax on
innovation.” Several times we’ve seen
legislation on government funding of technology projects that specifically call
for open source technologies, or say that technologies with IP will not have
access to the funding. What, he asked, is the best way to address those lines
of thought?

Kamen’s answer hit on several interesting points that
policymakers should hear more often from true innovators and business leaders.
He said taxes are essential, and that we tax lots of things in this country to
fund other essential things. He went on to say that an appropriate response
would be pointing out to policymakers that their plans are perfectly
acceptable—if the goal is to eliminate the most powerful incentive to innovate,
and simply let giant multinational corporations be the only players in a given space.
Those same policymakers should be asked how they think giant multinational
corporations got to be so big in the first place, and how they how they had ability
to create technologies so good that they essentially became de facto standards.
If those companies are supporting mandates that don’t allow IP-based solutions,
everyone should ask it if those companies would suggest stopping incentives to
innovate while they were NOT at the top of the market. Kamen defines innovation as, essentially,
productive destruction of what’s here today, and so supporting policy that will
effectively put the brakes on other people’s innovation is a perfectly rational
and intelligent business decision to make when you’re on top. And he said that taking away incentives for
innovation is just fine if you’re willing to say that we have reached the
pinnacle of human success, and that we need nothing more than we have right
now—that we never need a better drug, a safer car, a faster processor, etc.

To the specific question of removing intellectual property
from the business and innovation equation, Kamen said that yes, companies might
be able to pass along a 2-3% cost savings to the consumer but that model will have
killed off incentive for innovation. He posed a great question: “How can we
measure the cost of what will never be?” Incentive is the fundamental agent of
economic growth, and the incentive for the little guy to engage in productive
destruction of what we have today is the protection of intellectual
property.

A holder of more than 400 patents worldwide, a member of the
Patent Public Advisory Committee (PPAC), and all-around smart guy, Kamen is
clearly well-schooled in the patent reform issue and arguments about patent
quality. To that end, he drew the analogy between dis-incentivizing innovation
and how we dis-incentivize money counterfeiters—if there’s a problem with bad
guys counterfeiting ten-dollar bills, the solution is not to crack down on the
Department of the Treasury and stop the production of ten-dollar bills. The
same is true in the innovation space; there are going to be bad actors, but the
solution is not to get rid of IP rights. The solution in both cases is to
penalize the bad actors.

Lastly, I dove in to Eckhardt and Blaxill’s great book this
week, and will be writing more about it here and at the Innovators Network. It’s a great
read so far and I agree with many of the big-shots who provided blurbs for the
book jacket, but will add this: It’s an essential companion to “Little Blues:
How to Build a Culture of Intellectual Property Within a Small Technology
Company” by our friends Andre Carter and Ray Millien.

Posted in Innovation and IP, Patents | No Comments »

Microsoft v. TomTom – First thoughts

Wednesday, February 25th, 2009

Today, Microsoft announced that it had filed a legal action with the International Trade Commission (ITC) against automotive navigation systems maker, TomTom for infringement of several different Microsoft patents.

Given the size and notoriety of the two companies, it’s clear that this will get a lot more attention the hundreds of other patent suits that happen every year.
From the news reports and information on Microsoft PressPass it appears that Microsoft has already licensed the patents to Alpine, Pioneer, 123Map and Kenwood, and been discussing these patents with TomTom for months before launching the suit. TomTom has a patent portfolio of its own and has used it to sue Garmin and Toyota for infringing its patents in the past. And while battles between patent holders are commonplace, this one includes a dispute over some pretty significant Microsoft-held patents that may have broader implications.

As regular readers know, ACT believes that IP licensing agreements will play an increasingly important role in our industry as everyone focuses on delivering interoperability across devices and platforms, while still protecting investments in research and development.

As many SMEs have found, attempts to negotiate license deals sometimes fail and leave the IP holder with little other choice but to bring legal action.
While it is unclear where this litigation will lead, it does seem to be a good opportunity to focus on the importance of patents to software innovators of all sizes.

Based on what the articles I have read and a quick skim of the complaint, Microsoft seems to be in the position so many entrepreneurs with patents find themselves in: another firm is infringing on its core innovations and is unwilling to discuss licensing terms. While this is an “issue” for a company like Microsoft that has thousands of patents, it is “critical” for startup that has three.

When we've done focus groups and member polls, the vast majority tell us that a predictable and accessible intellectual property system is critical in creating the incentives necessary to drive innovation and entrepreneurism. In simplest terms, IP helps to get them paid for innovating.

And Innovation, after all, is one of the fundamental components of progress and growth in the IT industry. It serves as an essential foundation for the delivery of great new products, spurring economic growth and furthering R&D. As we wrote about in our National Policies as Platforms for Innovation paper, IP is a key ingredient to enable innovation to flourish. Businesses large and small need to know their patents, copyrights and trade secrets are protected in order to enable returns on their investments.

UPDATE:

We are seeing a lot of discussion on the web about what this suit means for companies that distribute linux. So we here at ACT are going to keep a close eye on this lawsuit, and post as we know more.

Tags: IP, linux, microsoft, Patents, TomTom
Posted in Patents | 5 Comments »

Pilot Program to Improve Patent Litigation

Friday, January 23rd, 2009

Tech policy aficionados should by now be familiar with efforts to reform the patent system. Issues range from fixing the poor quality of granted patents to instituting post-grant review procedural reforms. What you don't hear much about are efforts to educate judges on patents. Because no matter how much patent law is reformed to increase patent quality on the front-end, we're still going to see patents being litigated in court.

That's why I'm happy to see today's reintroduction of Rep. Adam Schiff's and Rep. Darrell Issa's bill, HR 628. The bill creates a pilot program to educate participating judges
on patent law and the technical matters underlying patent claims in
Federal District Courts. (HR 628 is the same as last session's bill HR 5418). Here's my analysis of the bill from when it was introduced last session.

Judges have considerable power to affect a trial. They make procedural and evidentiary decisions, and often a judge's decision at trial can only be overturned on appeal if there was an abuse of discretion (a high burden for an appellant to meet).

HR 5418 is a targeted pilot program and its effect could be substantial, if not immediate. Better informed judges can weed out frivolous claims more quickly while focusing on cases with legitimate claims. As a result, anticipated and actual costs of enforcing and defending lawsuits decrease, reducing the burden on all parties but particularly the budgets of small firms. Less money for lawyers means more money for innovating, so firms can increase their research budgets and returns on investment.

Posted in Patents | No Comments »

TADC Conference – ‘Other people’s stuff should be Free, not mine’

Monday, January 12th, 2009

Today at the Carnagie Institution the Trans Atlantic Consumer Dialogue held a conference called “Patents, Copyrights, and Knowledge Governance: The Next Four Years”. Here’s the top blurb about the event:

As a new Administration will take office in Washington, and the European Union renews its institutions, what should the political agenda be for intellectual property?

The globalisation of the challenges faced by consumers and rights holders have made intellectual property policy one of the main features of global trade policy, and stimulated both international and domestic debates about how best to promote innovation and access to knowledge, including "knowledge embedded" goods such as medicine, software, agriculture, inventions that address climate change, scholarly research, databases, films or recorded music.

Both the United States and the European Union are facing demands to modify policies on patents, copyrights and other forms of intellectual property protection, coming from different perspectives. There are high profile right-owner lobbying efforts directed at higher standards and tougher enforcement of intellectual property rights, and growing interest among consumer groups, academics and many innovative businesses to protect the public domain and retain or even expand user rights. There is also much interest in exploring newer approaches to the support of creative and inventive communities, that do not rely on notions of exclusive rights.

With the organisation of this event, the TransAtlantic Consumer Dialogue calls for two days of discussion on the assessment and on the prospective of the American and European political and policy Agenda on intellectual property practices and policies.

The whole event is set up with a very strong anti-IP bent, and I am used to hearing that at NGO sponsored events. But I was dismayed by the comments of Guilherme de Aguiar Patriota, the UN representative for the Government of Brazil. Guilhereme gave a presentation very similar to one he gave back in 2002 where he said:

“The intellectual property rights (IPRs) system, enhanced by the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), is actually hampering development of research and development (R&D) in developing countries; and industrialized countries, while heavily subsidizing science and technology (S&T) and R&D in their own countries, are placing all sorts of restrictions on attempts of developing countries to cooperate in market-oriented and commercially charged sectors of applied sciences“.

But at today’s event he went so far as to suggest that copyright holders that expect Brazil’s schools to pay for books or software are actually hurting the children of Brazil, because it is taking money away from the kids.

wow.

I guess I just don’t know how to think about that in a rational way. Part of me ”gets“ what Guilherme is saying, but part of me looks at Brazil’s economic standing in a very different way than I might look at Kenya. Moreover, the fact that Brazil has the second most advanced industrial sector in the Americas means that Brazil might have to shoulder their part of the burden for education, including paying full freight for the tools developed outside their borders (if the tools are useful to them).

But really, this issue of who pays and how much is kind of window dressing for the exchange he and I had on the fundamental concept of IP-Value. One little known reality about Brazil is that they are a leader in deep sea oil extraction and green energy. In fact, the State owned company ”Petrobras” is a major player in the field of new energy tech. But don’t trust me, here’s what Petrobras says about their own research and development laboratories:

The technologies that are developed at the Cenpes turn Petrobras into the company that generates the most patents in Brazil and abroad. The number of patent request submissions in 2007 show the Cenpes is one of the world’s biggest applied research centers. In 2007 alone, in Brazil, 22 patents were granted and requests submitted for 59 more. Abroad, 129 requests were submitted and 29 granted.

Given Petrobras’ success, and the vital import of green technology to the entire globe, I asked Gilhereme if, given the spirit of Access to Knowledge, Brazil should freely give up all patent rights and royalties from their energy tech.

He did not seem to think it was a good idea.

However, there was an interesting thread in his answer. He pointed out, with justified pride, that Petrobras was a company built in spite of all of the naysayers in the developed world who said it couldn’t be done. Gilhereme went on to point out ‘that Petrobras had poured millions into R&D to develop the technology and build it all on their own’. (I think he missed the parallelism there).

Brazil is not alone in their call for others to give up what they themselves wouldn’t, but they are in a lead position to recognize and rethink a position that ultimately harms domestic innovation within developing countries.
I’d hope that events like the one today at Carnegie would provide a more diverse and nuanced worldview that respects the fact that there are no simple answers when it comes to judging the value of the products created by others.

Tags: IPR, Patents, TACD, TRIPS
Posted in Innovation and IP, International Trade, Open Source, Patents | 2 Comments »

Are Those Frozen Flying Swine Circling Brussels?

Tuesday, October 28th, 2008

It’s a miracle of miracles, but it appears that we agree on something with Thomas Vinje, legal counsel to the Microsoft Hater’s Caucus, and anti-software patent campaigner, Peter Hintjens.
On Friday, Alison Brimelow, president of the European Patent Office, referred how to assess the patentability of software-related inventions to the enlarged board of appeal (EBoA). It is expected to bring some clarity about what is patentable at the EPO.
An IDG story on the decision, quoted ACT President Jonathan Zuck, Vinje, and Hintjens all agreeing that this was a good move. They couldn’t disagree more about what decisions the EBoA should arrive at, but all agreed that we need clarity at this point.
From the article:

“The lack of clarity has frustrated the system in Europe,” he said. Zuck is a software engineer by trade.
Hintjens and Vinje both argue that software is a special case when it comes to innovation. Unlike other fields such as pharmaceuticals where patents are a vital tool for fostering innovation by ensuring a financial return for the inventors, software patents actually hinder innovation.
“Innovation in software rarely, if ever, sees a single major breakthrough; it comes about thanks to a string of small inventive steps made by many people all over the world. Everyone is building on what has gone before,” Vinje said.
Zuck argues the exact opposite: “Software-related inventions are no different to any other kinds of inventions and should be treated exactly the same when it comes to granting patents,” he said. He hopes the EBoA will come to the same conclusion.
Both he and Vinje said they hope the outcome of the referral will provide clearer definitions of what merits technical effect, inventiveness and what should be considered obvious. But while Vinje wants the bar to be set higher, Zuck wants that clarity applied across the board to all types of invention, keeping software in the same bag as all other inventions.

* Thanks for Incurable_Hippie for providing the perfect picture for this post.

Posted in Innovation and IP, Patents | 2 Comments »