BP/G Radio Intellectual Property Podcast

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Death to Software Patents! Nah…..

May 7th, 2008

What with all the paranoia surrounding In re Bilski (on patentable subject matter) and In re Nujiten (on signal claims) and the demands of certain groups for an end to software patents (see http://endsoftpatents.org), one might think we were on the verge of software patent mortality.  Never mind that software has allowed for 40 years of high-speed technical advances, from trips to the moon to the Human Genome Project.  Perhaps the pace of innovation is frightening to some.  And if we pretend that the software that drives our machines isn’t really much of an invention, we can somehow prevent some Terminator-like future (but we all know who won the War of the Machines).  Maybe it’s the “plague” of software-related patent suits – but does anyone have any data on this?  Has anyone been willing to evaluate those suits simply on their merits rather than make sweeping statements about patentable subject matter or junk patents?  Perhaps policy issues are afoot.  Software development and implementation might be simpler if no one could get a patent on software – but that would be true for any industry. 

Rather than try to solve these issues en masse, we settled for a good conversation with a friend from across the Atlantic, Paul Cole, a chartered patent agent, patent litigator, and law professor from the UK who has written and spoken widely on issues of software patents.  Software patent issues are hot in the UK and EPO right now (see www.bailii.org/ew/cases/EWHC/Patents/2008/518.html), and Paul shares some candid thoughts.  Maybe there’s a middle path?  Fellow M&G colleagues Denise Kettelberger and Rob Kalinsky join the conversation.  Listen in (ignore my efforts to pronounce “cryptanalytic”).

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  • bpgradio

    Just a quick followup. We received a comment from janv to the effect that: “why are you promoting a system that requires programmers to defend themselves in court?” This is a good point.  Does the uncertainty associated with patent litigation and claim construction inhibit safe and effective design-arounds? Thus the notion of patent monopoly forcing innovations by others may not always work - if those individuals won’t jump in the pool at all. These issues come back to the litigation process more so than the patent prosecution process, which should rightfully recognize innovation in any form it’s found (except perpetual motion machines etc…). This will be a good topic for future pod. Thanks.

    May 8, 2008 at 7:39 am