Today is the Santa Clara Law High Tech Law Institute “Solutions to the Software Patent Problem” Conference. (#HTLI is actually trending on Twitter!) Josh has been live-tweeting it on @PatentProgress, and Dan on @DisCo_Project. A great Who’s-Who of patent law and policy is in attendance—it’s even been nicknamed #patentprom—and while the goal of coming up with solutions is of course ambitious, I have no doubt that these are the experts that can and should be doing so.
One piece of breaking news from Patent Prom: According to Eric Goldman, Michelle Lee has been named the director of the USPTO’s new Silicon Valley office. ArsTechnica has some more information on her impressive background and how she’s “been ‘in the trenches’ fighting patent trolls.”
But it’s not just the specialized crowd at HTLI that’s been talking about software patentA generalized term referring to patents whose subject matter extends to computer-implemented code, which have been the subject of great controversy, including but not limited to how they interact with open source software. Although software patents are often denigrated, there is no accepted definition. However, there are a variety of methods for identifying software patents for empirical analysis. See Bessen, A problems. Coincidentally, Nick Bilton from the New York Times happened to post a blog post today that started off: “If you want to know just how broken the patent system is…” (And of course, this site, Patent Progress, just launched two days ago, pointing out systemic problems with the patent system.)
Bilton’s post addressed an Apple design patentAs distinct from a utility patent. A design patent protects only the ornamental design or appearance of an article of manufacture, but not its structural or functional features. An ‘article of manufacture’ is a broad term which may extend even to computer icons. Like utility patents, design patents must be nonobvious but this standard is harder to apply to designs. that we will analyze in more detail next week. Bilton also made some policy arguments that are important. He pointed out several other “seemingly obvious” patents that have been granted to Apple recently. He then stated that Apple was granted 38(!) design and utilityAn invention must useful to be patentable. Very few inventions are invalidated as lacking utility. Perpetual motion machines, for example, are typically found invalid for lacking utility. patents just this week. He finished the article with a mention of Apple’s smartphone litigation, linking the seemingly innocuous phrase “filed multiple suits” to the article: “The Patent, Used as a Sword,” with its URL ending in “patent-wars-among-tech-giants-can-stifle-competition.” That almost-5000-word article was critical of the proliferation of software patents and the resultant explosion in often-anticompetitive patent litigation.
These flaws in the patent system are exactly why we started Patent Progress. It is important that these issues are on so many people’s minds.
