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Will Bilski Stop "Business Method" Patents In The U.S.? In a much anticipated en banc decision by the U.S. Court of Appeals for the Federal Circuit ("CAFC"), the criteria for patentability of "processes" in software, business method and computer-implemented inventions appears to have been altered to favor a newly resurrected "machine-or-transformation test" over the "useful, concrete, and tangible result" analysis that had been relied upon since the release of the famous State Street Bank decision a decade ago. While strictly a U.S. decision, this case will be of great interest for Canadian companies in software, financial and high technology industries seeking patent protection for "business methods" in the U.S.
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It has invested most of its resources on litigation with software giants. The company originally filed suit in Concord against Oracle in 2002 for patent infringement, but it was thrown out by the U.S. District Court in March 2007. That decision was upheld in the Court of Appeals on May 14. The suit against Skype and eBay -- filed in September 2006 – claims that the companies infringed on Mangosoft’s “dynamic directory service” software. The defendants countered by questioning whether Mangosoft should have received the patent in the first place, citing a number of previous patents which – it alleges – Mangosoft should have cited in its application.
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We kick off this week with the news from Out-law that the UK IPO has announced it will not be revising its approach on software patents in the light of the findings of the Symbian case. The announcement comes after UK IPO's decision to deny a patent to Symbian was overturned on appeal back in October in a judgment many took to be critical of the UK IPO's approach. The decision has drawn criticism from the Chartered Institute of Patent Attorneys, who claim the current guidance creates uncertainty for patent applicants.
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Free software acknowledges that truth. Proprietary software does not. Instead, like the banks, proprietary-software vendors have had to justify the cost of their wares by constructing complex arguments about value. Again, lipstick terms such as 'software patents' and 'intellectual property' have been applied so successfully they have entered the vernacular. Yet even a cursory examination of their real meaning shows them to be spurious. They exist only to perpetuate the dominance of monopolists. Yes, we are living in a proprietary-software bubble and, like the bursting of the easy-credit bubble, this one is about to burst too--it's a matter of survival.
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So, there was no breakthrough in agreeing to create a single community patent, as was hoped six months ago. No agreement either on the European Private Company Statute that would allow small firms to expand beyond national borders. For once a lack of progress could not be blamed on national infighting and factionalism. The French Presidency has witnessed the unravelling of the global financial system and ministers were right to focus their minds on the ongoing economic turmoil, and on measures that could work hand-in-hand with the SBA to give short-term support to struggling entrepreneurs. After all, without entrepreneurs there would be no patents, Single European, or otherwise.
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24C3: EU-EPLA and Community Patent: Software Patents reloaded / "The acrimonious debate over the proposed directive on computer-implemented inventions might never have arisen if the patent litigation system in Europe had been unified, thereby eliminating the possibility of disparate national rulings on the same patent matter." -- David Sant, former EPO lobbyist in Brussels / "Does the Community Patent restart the debate over patents for computer-implemented inventions (software patents)? Why or why not? Pilch: It restarts the push for software patents, without a debate.[…] The Community Patent plan doesn't even mention the subject of software, although, make no mistake about it, software patentability is one of the main drivers of these plans." -- NSP, Current situation
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Several months after the unforgettable OOXML corruptions come out some documents which may confirm OOXML to be a discriminatory software patent trap without satisfying clarifications.
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ECMA has just published two documents related to the patent licensing of ECMA376v1 and ECMA376v2. Microsoft promises to give a patent license under so called "reasonable terms". Reasonable for whom?
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This must be the reason why its ‘fronts’ are all responding to the EIF V2.0, which was made available for feedback from the public. They are also taking open source off the table. Microsoft, ACT, CompTIA and even the BSA have all responded. Their interests are not to facilitate fair competition, but to promote further monopolisation by their big funding source. In page 2 of ACT’s recommendations, for example, they write in very large fonts: "Promotion of Open Source is Outside the Scope of this Framework."
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by: zoobab 1229819902|%e %b %Y, %H:%M %Z|agohover |
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This observation about Microsoft is correct [1, 2, 3, 4, 5, 6] and it is very harmful indeed. Microsoft is also trying to change back the definition of “open standards” so as to exclude source code as a requirement and include software patents instead, even in Europe where these are not legal.
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Among its top recommendations, the new report calls for turning the agency into a government-run corporate entity so it can have the freedom to set new, higher fee levels. It also calls for President-elect Obama to appoint new leaders to the agency with experience litigating patents and running large organizations with conflicting user groups.
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Apple could face larger penalties because EZ4Media manufactures a product using the named patents. This differs from patent-infringement lawsuits brought by so-called “patent trolls” that produce no product, seeking to leverage patents for revenue. Along with Apple, the plaintiff is suing Logitech, Netgear, D-Link, Samsung, Pioneer, Yamaha and D&M Holdings, which oversees audio brands including Marantz, Boston Acoustics, McIntosh and Denon.
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America's innovators are continuously discovering new technologies and processes that create jobs, offer cures for deadly diseases, generate solutions for improving our energy security, provide us answers for addressing climate change, and develop novel ways to expand the information superhighway. Given the time, energy, and investment they put into their research, these entrepreneurs should expect to obtain patent rights for their discoveries promptly, efficiently, and reliably.
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As explained by the Court, the test serves as a proxy for assessing the more fundamental concern – ensuring that the claim does not seek to impermissibly "preempt the use of a fundamental principle." This might make sense in the context of so-called business method patents, where the fundamental principle implicated is typically characterized as an abstract idea or mental process. But it is unclear to what extent this test will prove applicable to patent claims arising out of the life sciences, where patentable subject matter challenges more often allege preemption of a natural phenomena or law of nature, rather than an abstract idea or mental process.
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Bilski has no basis in statute, and by any reasonable metric of jurisprudence, is downright bad case law. That's right, Chief Judge Michel, I am addressing you, sir. You are just making stuff up willy-nilly. But it doesn't help that prosecutors draft jackass claims, which examiners let pass, and then, rather than sicing the big-footed Obzilla on them for a good stomping, it's just too easy to rule: "damn, son, you can't patent that." We are talking a chronic disorder here.
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In light of our decision in In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc), we affirm the district court's grant of summary judgment that these claims are invalid under 35 U.S.C. § 101. Dr. Classen's claims are neither "tied to a particular machine or apparatus" nor do they "transform[] a particular article into a different state or thing." Bilski, 545 F.3d at 954. Therefore we affirm.
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A set of pharmaceutical process patents for 'evaluating and improving the safety of immunization schedules' (Classen v. Biogen et al.; see US Patents 6,420,139; 6,638,379; 5,728,385; 5,723,283) were held to be invalid due to unpatentability. The decision was appealed to the US Court of Appeals for the Federal Circuit, but was upheld with a terse citation to In re Bilski (which decision we discussed here). Here's the entire text of the appeals decision: 'In light of our decision in In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc), we affirm the district court's grant of summary judgment that these claims are invalid under 35 U.S.C. 101. Dr. Classen's claims are neither "tied to a particular machine or apparatus" nor do they "transform a particular article into a different state or thing." Bilski, 545 F.3d at 954. Therefore we affirm.' It will be interesting to see what happens when these same standards start getting applied to software-related patents.
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The In re Bilski (545 F.3d 943 [Fed. Cir. 2008]; here’s a PDF of the decision) court decision placed significant new limits on so-called “process” or “business method” patents, which possible implications for many software patents. Well, I just received an e-mail from Joel Miller of the ABA Intellectual Property Law Committee (of which I’m a member) that include two decisions: a US District Court decision (Classen v. Biogen et al.) invalidating several patented methods for “evaluating and improving the safety of immunization schedules”, and a US Federal Court of Appeals ruling upholding that decision based on In re Bilski.
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As to transformation, the court noted that not just any transformation will do. The transformation "must be central to the purpose of the claimed process," and the "articles" transformed must either be "physical objects or substances" or "representative of physical objects or substances." Today, in a one-paragraph decision in Classen Immunotherapies, Inc. v. Biogen IDEC, the Federal Circuit put those words into practice: In light of our decision in In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc), we affirm the district court’s grant of summary judgment that these claims are invalid under 35 U.S.C. § 101. Dr. Classen’s claims are neither "tied to a particular machine or apparatus" nor do they "transform[] a particular article into a different state or thing." Bilski, 545 F.3d at 954. Therefore we affirm.
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The image mosaic plug-in for the GIMP is no longer supported or distributed. Mr. Robert Silvers, the holder of a patent related to the technology that was used in the plug-in, argued that the software would directly infringe his patent rights. It is not clear if the patent is applicable in this case. But I have neither the time, interest or money for legal action. So I complied with the cease and desist request. PHOTOMOSAIC is a registered trademark of Runaway Technology, Inc. The photomosaic process is patented (US Patent No. 6,137,498) and protected by the patent, copyright, and other intellectual property laws of the United States and other major countries.
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