Recent US patent rulings could undermine the patentability of software in the US at a stroke, a leading US patent expert has warned.
Patents as lucrative as that of the PageRank system that underpins Google's business are under threat, the expert warned.
John F Duffy is a law professor at George Washington University Law School in Washington DC, and he has published an article arguing that the software patents that form the basis of much of the US technology business are under threat.
"The logic of the PTO’s positions in [recent cases] has always threatened to destabilize whole fields of patenting, most especially in the field of software patents," wrote Duffy at patent blog Patently-O.
"[The implications of the judgments] should capture the attention of the many inventors and firms owning, or seeking to own, patents on innovative computer implemented processes, for the PTO’s new interpretation of patentable subject matter provides a clear avenue to reject patent applications and to invalid issued patents on all such innovations without regard to how meritorious or creative the innovation is," he wrote.
A patent is a kind of protection for an inventor. In return for making public exact, detailed instructions on how to repeat the invention the inventor is given a monopoly on it for a fixed term of up to 20 years. After that time others can follow his instructions and repeat his inventions without his permission.
Duffy has examined the rulings of the US Patents and Trade Marks Office (USPTO) in a number of cases, including those of Nuijten, Comiskey and Bilski. In these, he said, the USPTO imposed new restrictions on what can be covered by a patent.
"In the most recent of these three … the [USPTO] takes the position that process inventions generally are unpatentable unless they 'result in a physical transformation of an article' or are 'tied to a particular machine'," he wrote.
It has been assumed that software patents will survive this ruling because they are tied to a machine, since they cannot be useful without a computer on which to run.
But Duffy claims that more recent USPTO rulings say that a general purpose computer is not a machine in that sense, and that software is not patentable if it has to rely on a computer being the machine in that definition.
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