[Fedora-legal-list] Software is once again unpatentable in the United States

[Luis Villa]

[Apologies to those on legal-list who get this multiple times, but I
wasn't sub'd to f-d-l.]

[This is not legal advice; I am not a lawyer (yet); if you're seeking
understanding of the current state of software patents you should seek
a lawyer with expertise in the field.]

On Sun, Nov 2, 2008 at 3:29 PM, Valent Turkovic
<valent.turkovic at gmail.com> wrote:
> Quote from http://www.pli.edu/patentcenter/blog.asp?view=plink&id=368 :
>
> Here are the highlights:
>
>  * The Federal Circuit rejected the that the "useful, concrete and tangible
>        result" inquiry as being inadequate.
>
>  * Patentability under 101 does not depend on process steps, but rather
>        requires a tangible machine or transformation into a different state.
>
>  * *Software* *is* *once* *again* *unpatentable* *in* *the* *United* *States*
>
>  * In order to protect what was formerly known as patentable software we
>        will have to go back to claiming a machine that provides certain
>        functionality.
>
>  * Software patents that have been issued under the previous understanding
>        of the law are almost certainly now worthless.


That is almost certainly an over-reading of the case. The case
(Bilski) does say that a patent must involve a 'particular machine',
but the case very explicitly does not define a 'particular machine',
and no one knows what a particular machine really is.

Plausible arguments can be made (and most certainly will be made) that
general-purpose PCs are 'particular machines' for the purposes of
patent law; the opposite argument has also been made, including by the
Patent and Trade Office itself. Until that question is settled, it
would be very premature to say that software patents in the US are on
the outs.

Or to put it another way: if someone sued you for a violation of a
software patent tomorrow, Bilski would be a critical and central part
of your defense, and you might win, but you'd still be in for a trial
lasting years and costing millions of dollars. If you won, you'd be a
hero to anyone who dislikes software patents, and your case would be
cited for years to come as the real milestone case (not Bilski.) But
you would also stand a significant chance of losing. You have a much
better chance of winning than you did before Bilski, but still a big
chance of losing.

If this case were as definitive as the linked author makes it sound,
and you were sued tomorrow, Bilski would be all of your defense and
your case would quickly be thrown out. But that is simply not the
case.

Luis