Given:
1) Rulings by the Supremes which included statements such as
"simply implementing a mathematical principle on a physical machine, namely a
computer, was not a patentable application of that principle"
2) The
recent ruling by the Federal Circuit in CLS Bank whereing they said "seven of
the ten members, a majority, of this en banc court have agreed that the method
and computer-readable medium claims before us fail to recite patent-eligible
subject matter" - they couldn't agree on the why, but 7 of 10 did agree on the
end result
3) The recent PTAB ruling in SAP v Versata shows they have
recognized the Supreme position on "math as applied to device" via "We construe
the term “data source” in claim 17 as requiring the use of a computer storage
medium as the ’350 patent defines the field of the invention as “computer-based”
pricing of products. However, even if we are incorrect, it would not alter our §
101 analysis, i.e., the claim is unpatentable whether we adopt Versata or SAP’s
construction."
Yuppers - Software patents should be dead.
The first
hurtle to be faced is the USPTO. Now with a clear instruction that appears to
be: if you remove the standard computer (and such components) is there anything
but math there? If the answer is no: nope, no software patent.
And they
are required to review the terms broadly. If the patent petitioner argues a
narrow reading of the terms then the petitioner takes the patent to court and
argues a broader interpretation:
the patent petitioner can expect the USPTO
Appeal Board to use their broader interpretation argument when next reviewing
the patent for eligibility
I have to say: reading the PTAB ruling in SAP
was a pleasure.
The only one that appears absent from the mix at this
time is the District Courts. It'll be really interesting to see how the Texas
Courts start behaving.
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