From Coderights
As I mentioned earlier, I’ve been reading Ronald D. Slusky’s book to help me understand more about “inventorship.”
Here’s an interesting passage that, if you’re at all like me, might pique your interest. On page xxi, Slusky says:
The difficulty in answering What Is the Invention? arises in part because from the patent perspective an invention is not a physical thing but a concept. Even the inventor may not appreciate what that concept is. Scientists and engineers are typically focused on getting some product designed and built, or a material formulated and tested, and getting the thing to market. Abstract notions like “inventive concept” are largeley irrelevant to someone charged with working out the bugs, finishing the project on time, and meeting a budget. The task of identifying the inventive concept–answering What Is the Invention?–falls mostly to the patent attorney.
Wowwwww (the emphasis is mine). That short passage raises so many issues that I don’t even know where to start. Maybe a good one is Slusky’s reference to “inventive concept.” I agree with Slusky that coders are (for the most part) much more concerned with “getting things done” than worrying about abstract concepts like “inventive concept.” That said, I think most software folks I know would instantly recognize the value of something like inventive concept. Thus, I disagree that most coders would see the issue as irrelevant.
The problem, of course, is that most software professionals I know are able to code their way out of almost any box, but they don’t see themselves as developing an “inventive concept.” That perception might be right in many circumstances, but it might be wrong in many others. I think patent lawyers are uniquely situated to promote the concept, but I think they can’t do it without getting software professionals on board.
The upshot of this is that I fear the “Patent Reform” Act of 2009 will pass because we, as legal professionals, need more software professionals to understand the “inventive concept.” My feeling is that law only works when the democracy is behind it. I don’t think the software community is behind this, at least not in the numbers we need.
About nathan kaiser
I’m very unclear on what you think we should be getting behind. If it’s ending software patents, you’ll get an overwhelming majority in support, of course, but I’m guessing that’s not it.
Absurd things like the Amazon one-click patent are seen as compelling evidence that our current software patent system is so broken it has to be thrown out. Since it was just created out of thin air by judges, it doesn’t seem like we’re really loosing anything valuable. Even the looney judges seem to be getting the idea, and cases like Bilski are returning sanity to the system.
What’s so problematic about the Patent Reform Act of 2009? To a non-lawyer, it seems like a) the devil’s in the details, and b) it’s all details. Some of the basic concepts seem just fine, but it wouldn’t be very hard at all to convince me that the stated goals aren’t really likely outcomes.
What’s in the PRA2009 that should concern the mainstream of software professionals? I’d say common thoughts are:
1) Software isn’t and shouldn’t be patentable. _Maybe_ software needs a different kind of protection than copyright – but that’s not all obvious. It’s not patents.
2) There should be very robust ways to prevent obvious patents from being granted (even the challenge bits seem suspect here; it should be easier to challenge a patent than to get one in the first place. If it’s not clear you’ve done something genuinely new you shouldn’t get a patent.)
3) The “reasonable royalty” parts seem like a reasonable idea that could/will be implemented extremely poorly.
4) The first-to-file vs first-to-implement choice is an obvious distinction with lots of non-obvious side effects