Software Scan

The President's Column

Is software patentable? This is the question that just won't go away. In the Scanning IP section I talk about the upcoming examination of the case In re Bilski that will soon be taken up by the U.S. Supreme Court to once again address this issue.

In the Tales From the Trenches I share an interesting video of what might be the most famous deposition ever. And not for the right reasons. Definitely check it out.

Send me your comments and critiques. I'm always interested in hearing from you.

Regards,


Bob Zeidman
President, SAFE Corporation

Scanning IP

Is Software (Really) Patentable?

Should software be patentable? That's been debated ever since the dawn of software. Some countries, like India, say definitively no. In Japan you can only patent non-obvious software that solves technical problems, not business problems (of course, if it's obvious, it can't be patented anyway, so that seems redundant). In the United States, just about all software was patentable starting with the decision of the US Federal Circuit Court in State Street Bank & Trust v. Signature Financial Group in 1998. Then earlier this year, the US Court of Appeals for the Federal Circuit put limits back, by requiring a "machine or transformation" test. Software can be patented if it is implemented on a "particular" machine or it transforms an article from one thing or state to another. So what does that mean exactly? No one is quite certain, so the US Supreme Court decided to take up the appeal this fall and rule on it.

There are a number of arguments for and against software patents, but only two really seem reasonable to me.

Against

Laws of nature, mathematical formulas, and abstract ideas are not patentable. Some people against software patents say that software simply comprises mathematical formulas. Although I understand the argument, I don't subscribe to it since programs are actually steps in a process that consist of mathematical formulas and lots of other things (like printing messages to the screen and reacting to clicks of a mouse).

Methods have always been patentable, and software is a method. This makes sense to me. I don't see why one should differentiate between a method for cutting a pattern in a piece of cloth if the method is performed by gears and levers or transistors and electric current (both of which are not controversial) or lots of transistors comprising a microprocessor and memory.

For other opinions about patenting software, here are some good references.

• Patently O blog
• Wikipedia
• Bilski Decision of the CAFC
• Free Software Foundation press release
• BIO press release

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Tales From the Trenches

The Best (Worst) Deposition Ever

Depositions are fun. Most people don't think so, but I do. Many people don't like the pressure, but I like knowing that I know more about the topic (the results of my analysis) than anyone in the room.

At a deposition, the lawyer for the opposing party grills the witness, poking around to find out what he knows and trying to find the tender spots. It's kind of like those interviews by the cops in those old potboiler detective movies. You know, where they give the "third degree" in a dark room, shining the light on the sweating suspect and saying things like "where were you on the thirteenth of October, punk." Except the room is better lit. And they rarely call me "punk."

I've had a few interesting depositions, and I've attended a few interesting depositions of other expert witnesses and fact witnesses, but here's a YouTube video of perhaps the wildest deposition ever. The lawyer is Joe Jamail, a very successful "cowboy" attorney whose verdicts have resulted in billions of dollar in awards for clients, and a billion dollars for himself. This was a trial with Monsanto, represented by attorney Edward Carstarphen. The expert witness seems to have faded into oblivion so I don't know who he is. Here's the clip:

Texas Style Deposition