February 19th, 2008
Big patent law reform on the way?
Two news stories this week indicate a real change to the patent law may be in the works, eliminating key legal roadblocks to open source and Internet innovation.
First, Senate Judiciary Chairman Patrick Leahy tapped out a column in The Washington Times, alongside his Republican counterpart, Orrin Hatch.
Their column shows that consensus seems to have emerged on some important patent issues, namely an end to forum shopping and the question of a review procedure to make sure bogus patents don’t clog the courts.
The column does not take a position regarding more contentious issues, especially those dividing the medical and software industries, but concludes with a determination to see a compromise enacted this year.
When the senior Senators on a project deliver a column like this, it often means a deal is imminent. So S. 1145 , the Patent Reform Act, may be heading into law.
The other bit of news comes from the courts, and is reported upon expertly by Dennis Crouch at the Patent Law blog.
This may be even more important than what is happening in Congress.
It’s the case of In re Bilski, due to be heard soon by a full panel of the Federal Circuit.
Crouch writes that the court is asking some basic questions, including whether the State Street decision, which allowed business methods patents, should be overturned. That case is also used to justify software patents.
Just as important, the court is asking whether the decision in AT&T Corp. vs. Excel Communications should be re-examined as well. This case is also used to justify current treatment of software patents.
Crouch writes that Bilski’s position on controlling a way to use commodity trading against weather risks “looks problematic because of serious obviousness problems and lack of specificity in the claims.”
Patent lawyers have written a brief defending software and business method patents, while the US. Patent & Trademark Office believes the Bilski patent should be invalidated, he writes.
All this could be knocked into a cocked hat, however, by a case now before the U.S. Supreme Court, Labcorp vs. Metabolite, which involves just what can be patented. (Correction: The Supremes later decided not to take this case.)
Bottom line, we may be moving toward sanity regarding what can be patented and how broad such patent claims may be.
If patents on business methods and software are invalidated as a class, the SCO case disappears and U.S. patent law starts to look a lot more like European law, in which copyright is software’s primary protection.
Fingers crossed.
Dana Blankenhorn has been a business journalist for 30 years, a tech freelancer since 1983. You can follow Dana on Twitter. See his full profile and disclosure of his industry affiliations.
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