Thursday, November 14, 2013

To Patent or Not to Patent

Mathematical proofs—remember those from as far back as high school geometry?  Wait: That sounds painful and boring.  This isn’t a blog post about math; it’s a post about patents…ummm, that also sounds boring and painful, doesn’t it?  Well, just trust me and keep reading.  I will make this as entertaining as possible.  

My point here is that preconceived notions about patents and technology could be causing businesses that are developing new technologies to place too much focus on patents.

As the mathematician might put it, the prevailing view seems to be that software is technology.  Patents protect technology.  Therefore, one needs to get patents to protect software or software-based technology.

In the words of Lee Corso, Not so fast, my friend.

It may very well be the case that businesses and individuals should seek patent protection for their software based inventions.  But a software patent, or a large portfolio of software patents, may not protect the patent holder’s rights as solidly as the patent holder may think.  In fact, software patents are under some serious fire in the courts these days. 

The Federal Circuit Court of Appeals is the court that will review any patent case that is appealed.  It was created to harmonize patent law.  In the space of software patents, however, the Federal Circuit is anything but harmonious.

As it stands today, there are several unsettled questions related to software patents.

First, there is an ongoing debate as to whether software is even patentable.  Neither the Federal Circuit nor the Supreme Court has provided effective guidance here. The United States Patent and Trademark Office, the agency that issues patents, seems confused as to what to do.  The long and the short of this debate is that even if one gets a software patent, the courts may very well not enforce it.

Second, courts occasionally find that some software ideas are really just old ideas that are now simply being done on the Internet. Merely using known electronic systems or methods to implement known concepts cannot result in a valid patent. If the USPTO happened to issue a patent like this to you, it also may end up as nothing more than a paper tiger when you go to enforce it.

Third, even if software is patentable and the idea isn’t simply using known systems to implement known concepts, a software patent still can face legal challenges.  For example, if the patent isn’t specific enough—and I mean down to disclosing certain code—it could be invalidated by the courts

Now, given this parade of horribles, does that mean businesses and individuals can’t protect their software-based ideas?  No!  What this means is that effective idea protection needs to take multiple forms.  Through contracts, attention to data security, trade secrets, copyrights, and trademarks, the law provides many avenues for protecting software-based ideas. The focus shouldn’t only be on patents. And, depending on your circumstances, perhaps you and your business shouldn’t focus on patents at all.  

Oh, and if this discussion of patent law didn’t entertain you, perhaps Lee Corso getting body slammed by Bill Murray will.

Aren’t you glad you read this whole post now?

A Post by Loren Hansen, Guest Blogger

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