A New Proposed Solution To Software Patents

A professor of law has come up with a novel approach to dealing with the problems of software patents. He claims the existing law in USA should be applied, particularly 112:
“The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
A claim may be written in independent or, if the nature of the case admits, in dependent or multiple dependent form.
Subject to the following paragraph, a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
A claim in multiple dependent form shall contain a reference, in the alternative only, to more than one claim previously set forth and then specify a further limitation of the subject matter claimed. A multiple dependent claim shall not serve as a basis for any other multiple dependent claim. A multiple dependent claim shall be construed to incorporate by reference all the limitations of the particular claim in relation to which it is being considered.
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.”

According to Prof. Lemley,
“The Federal Circuit or the Supreme Court could, with one fell swoop, do away with most of the problem of overclaiming in software patents – and with it, most of the problems with software patents. All it needs to do is to take the statute at face value and limit functional claims to the particular way the patentee implemented that function. In the software world, the way an inventor implements a function is not with “a computer” or “a processor”, but with a particular computer program. The patent claim should accordingly be limited to that particular computer program and ones that work in the same way to achieve the same result”

I don’t agree with the professor. That particular program implements a data-structure and an algorithm. Data-structures are ideas and algorithms are pure mathematics, both not patentable. Software is already protected by copyright. No need for patents at all here. Still, the SCOTUS is more likely to listen to him than me…

About Robert Pogson

I am a retired teacher in Canada. I taught in the subject areas where I have worked for almost forty years: maths, physics, chemistry and computers. I love hunting, fishing, picking berries and mushrooms, too.
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