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Submissions/An update on U.S. software patents

From Wikimania 2014 • London, United Kingdom

After careful consideration, the Programme Committee has decided not to accept the below submission at this time. Thank you to the author(s) for participating in the Wikimania 2014 programme submission, we hope to still see you at Wikimania this August.

Submission no. 2502
Title of the submission
An update on U.S. software patents
Type of submission (discussion, hot seat, panel, presentation, tutorial, workshop)
Author of the submission
Peter B. Meyer (Wikimedia DC, contact author), Yi-Fun Hsueh (Wikimedia DC), Ben Klemens (author of book on software patents)
E-mail address
econterms (user:econterms)
Country of origin
Affiliation, if any (organisation, company etc.)
Wikimedia DC
Personal homepage or blog
Abstract (at least 300 words to describe your proposal)

In this presentation we will describe (1) some of the perspectives on whether software inventions should be patentable, and (2) a major case on software patents being considered by the U.S. Supreme Court, and (3) some trends and reforms that will affect software patenting in the future. Reforms are likely since it is widely recognized that the bounds of what is patentable are still unclear and that the "quality" of what is being granted is in some sense too low. Both of these problems lead to a lot of unproductive litigation and can interfere with new software development. However, there is not a consensus on the shape of future reforms.

(1) Economists and legal experts have expressed a variety of points of view on the appropriate government policy toward the patenting of software innovations, and business methods which are closely related to software:

  • That software technology innovations are inventions and should be eligible to be patented, like other inventions, as has become the case now
  • That software inventions should be patent-eligible but in practice the U.S. systems are not working and are letting too many "low quality" patents through (Aharonian (author of a book on patenting artwork), many patent attorneys, Noveck)
  • That software inventions are too much like mathematical methods, discoveries, or natural laws to be patent-eligible (Klemens 2006, Bessen and Meurer)
  • That patents overall do not make sense economically and should be rolled back (Boldrin and Levine 2007)

(2) The U.S. Supreme Court is considering a software patents case called Alice Corp. vs. CLS Bank. Wikimedia-DC members attended and heard part of the oral arguments at the Supreme Court. The case is expected to be decided in July 2014. In this presentation we will summarize the two sides of the case and any judicial outcomes.

(3) Several trends and reform efforts will affect this category of patents in the future. We will summarize them:

  • (a) USPTO leadership has been selected from the leadership of software-patent friendly companies and have instructed examiners that they should avoid rejecting patents based on subject-matter eligibility.[1]
  • (b) Patent applicants are incented not to do extensive searches for prior art, so the patent office ends up doing it and does not have access or resources to do it infinitely well. Furthermore, the patent agents encourage the authors to make many, expansive, and vague claims, which adds to the overall uncertainty in the system.
  • (c) Most "prior art" in the software field is not available to be inspected; it is "dark", hidden both from the inventor and from the patent office.
  • (d) Various forms of early inspection of patents have been attempted, to improve the quality of patents, including a sort of wiki approach described in the book Wiki Government by Noveck.
  • (e) There has been huge growth in patents on software, litigation about them, and costs of that litigation. We will show estimates and graphs. A subset of software patent litigants are called patent trolls and have been a focus of academic study and legislative reform efforts.
  • (f) Younger people have a different view on intellectual property from older people, partly because they have grown up in an age when software technologies are common. (Younger persons have grown up with Napster, Google books, Pirate parties, open source, and free repositories.) We expect pressure to protect the interests of for-profit creators less, and users more.
  • (g) Several countries are experimenting with changes in intellectual property practices (UK, following the Hargreaves report; New Zealand, reducing software patents; developing countries responding to intellectual property provisions of trade agreements).
  1. http://www.uspto.gov/patents/law/exam/bilski_guidance_27jul2010.pdf: "Office personnel should [...] avoid treating an application solely on the basis of patent-eligibility under 35 U.S.C. §101 [subject-matter eligibility rules]."

Legal & Free Culture

Length of session (if other than 30 minutes, specify how long)
15-20 minutes
Will you attend Wikimania if your submission is not accepted?
Slides or further information (optional)
Will post slides when ready.
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  1. Mapep (talk) 20:04, 1 April 2014 (UTC)[reply]
  2. Slowking4 (talk) 22:38, 30 April 2014 (UTC)[reply]
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