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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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What's the problem? | 398 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
What's the problem?
Authored by: Ian Al on Thursday, December 27 2012 @ 02:39 AM EST
The documents of re-examinations of patents lead me to think that it is not an
issue of incompetence of the staff concerned. We know that the USPTO have not
got sufficient staff with the requisite skills. Budgets are always an issue.

Every now and then, we get a new paper from the USPTO giving a revised framework
and guidelines for patent review. I rarely see any obvious signs of confused
thinking or conflict with the law. There was a useful guide that enumerated the
conclusions drawn from Bilski.

I think the problem lies mainly with the United States Court of Customs and
Patent Appeals (CCPA). When they reverse the findings of the USPTO Patent Trial
and Appeal Board, the USPTO must use the CCPA opinions as law. That extends to
the lower courts, as well. The individuals reviewing patents thereby build a
'case law' framework for patents that is contrary to Supreme Court opinions and
the law, itself.

We get things like the machine or transformation test, the patenting of
inventions that are machine and method and data in a medium (a method,
on-a-computer, in-a-memory), multiple inventions in a single patent (claims
mirrored two or three times), infringement based on one out of many claims,
patents on data-table structures (VFAT), patents on math algorithms (mp3, H264
etc.), machine patents on old machines (software on a general purpose computer
(Microsoft v. AT&T), patents on the skills of the art (Oracle patents on
software writers methods of resolving text labelled computer instructions) and
patents on abstract ideas narrowed to a computer, a touchpad or a mobile phone
(Apple, Oracle Java, et al).

The Supreme Court know the real and present dangers across all the classes of
patent (Mayo, Bilski, Diehr, Flook, Benson, et al). As a superior court, it is
their duty to put right the errors from the CCPA. They do so on a case by case
basis. Over two decades the problem has got worse with the CCPA reversing the
opinions of the Supreme Court. I can see why the Supreme Court would not want to
make a root and branch correction of the problem because of the extreme
political and commercial lobbying and the vested interests in Congress.

The Supreme Court will act when the weight of fact and opinion of thinking
groups such as Groklaw outweigh the vested interests.

There is an excellent body of work in the Library of Congress which collects
together the issues related to information technology, patents and the law. We
must continue to draw the attention of the lawyers, the courts and the industry
to this valuable resource (search using 'Groklaw' as a search term).

It is a problem that was decades in the making. Groklaw has, in a single decade,
helped reverse the tide, but the same pressure is required for many more years.
It is a problem that we may only be able to resolve for our children.

Don't tell PJ.

Merry Christmas and a Happy New Grokyear.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | Parent | # ]

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