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Valid Software Patents

April 17, 2012 | Comments: 0 | Views: 163

In the United States, "...any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof..." is patentable. In contrast, laws of nature, natural phenomena, and abstract ideas have been considered to be outside of this definition, and so are not patentable. For example, mathematical equations by themselves are not patentable.

Of course, nothing in the law, particularly patent law, is ever that simple. All inventions are based on fundamental abstract ideas and/or laws of nature. The telephone is based on acoustical, mechanical, and electrical laws. Yet no one would argue that the telephone was not patentable because it applies those laws to a unique and practical end.

However, what if instead of attempting to patent a telephone, Alexander Graham Bell had tried to protect the idea of converting audio signals to electrical signals and then back to audio signals. Would this invention be a process, machine, manufacture, or composition of matter, or merely a statement of the law of nature that information can be converted between mediums?

The Supreme Court of the United States has issued a number of rulings attempting to clarify what is and isn't patent subject matter. One decision, although directed to the biological sciences, has significant implications for software patents.

The patent in question claimed three key steps: 1) administering a dose of drug to a patient; 2) measuring a metabolite levels; and 3) changing the dose in response to the metabolite levels. One immediately notices that the steps describe what is done generally without any specific details about how it is done.

The Supreme Court found that these steps added nothing to the relationship between metabolite levels and drug levels. In other words, there is no practical application of a law of nature, natural phenomena, and abstract idea. As a result, the invention, although useful, was not patentable.

Most software patents have at their core an abstract idea. In order to be patentable, the practical application of the idea must be described. Unfortunately, in the past many patent applications have described quite abstract ideas that are performed by a computer, without including any details as to how the computer applies those abstract principles. This type of software claim is outdated. The Supreme Court is making it quite clear that the patent must describe the practical application to be valid.

Software patent applications should include details of how an invention is implemented both in the specification and the claims. In particular, the application details of the key inventive element must be described. By doing this, software inventions can be patented even if based on abstract ideas.

Scott Thorpe is a Registered Patent Attorney at the law firm of Kunzler Law Group. Learn more about changes in software patent law at his website.

Source: EzineArticles
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