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The Patent Reform Act of 2005
Wednesday, July 27 2005 @ 05:21 AM EDT

Ben Klemens contacted me regarding the Patent Reform Act of 2005. He thought it would be a good idea to bring it to your attention by means of an article. Naturally, I said I thought it was a wonderful idea, and said what I often say to suggestions, "Please go ahead and do it." And he did. So here is his article regarding the legislation currently working its way through Congress.



*********************

The Patent Reform Act of 2005 is now going through the process in the U.S. House of Representatives. I'll save you the trouble of reading through the act looking for the part about reforming software patents---it's not there.

There has been much debate on general patent reform from many sources, including the likes of IBM (arguably the single largest user of the U.S. patent system), and a recent book by Jaffe and Lerner.

These parties are good representatives of the common line on software patents. IBM says they love them, while Jaffe and Lerner brush them off---they devote one and a half pages of their 256 page book to software, which is just long enough for them to declare that they can't distinguish between software and any other machine.

Congress is, in my opinion, the only chance to fix the software patent mess. As explained by Jaffe and Lerner (and many others), the Court of Appeals for the Federal Circuit (CAFC) is supremely pro-patent, as partly evidenced by its single-handed invention of the concepts of software and business method patents.

This pro-patent court is effectively the highest court in the land on patent issues, because the members of the Supreme Court yawn at the thought of having to sit through a case on patents. The last relevant case it heard, Diamond v. Diehr, was twenty-four years ago, and approved a patent for a piece of industrial equipment which is nothing like a PC. The pro-patent CAFC has thus had free license to intrepret software and business method patents into law.

Why does the CAFC have such free sway? Because the law delineating patentable subject matter is one sentence long.

35 U.S.C Section 101. - Inventions patentable
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
This sentence was penned by Thomas Jefferson (he used the word art instead of process), and it is this sentence that the CAFC interpreted to mean that Jefferson meant for software to be patentable.

There's something to be said for a law which is light on verbiage, but with a court that has so little interest in balancing patent benefits against patent harms, it makes sense to add clarification to the code itself. Gosh, the patent code includes rules on inventions made in outer space, yet it does not waste words to clarify whether a program on a general-purpose computer is patentable subjet matter.

The CAFC will continue to declare that Congress intended software to be patentable until Congress says otherwise. The Patent Reform Act of 2005 could be a means by which that would happen. Unfortunately, it was penned by lawyers instead of programmers, and therefore misses the opportunity.


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