The Director of the United States Patent and Trademark Office (USPTO), David Kappos, defended software patents at a recent keynote address at the Center for American Progress.
In the address, Kappos emphasized that software patents are not issued merely for lines of code, or abstract ideas but instead are issues for processes and apparatuses. Examples included automatic language translation, voice recognition and video compression, all of which can be implemented in software.
Kappos looked specifically at software patent issues that are involved in recent smartphone patent litigation. In the vast majority of the smartphone software patent cases, over 80%, the federal courts have construed the patent claims to be valid. From a patentability standpoint, software patent applications found to be not allowable have been affirmed at the patent appeals board at a slightly higher rate than for the USPTO as a whole. And the cases that have been appealed to the Court of Appeals for the Federal Circuit (CAFC), 95 percent of the rejections have been affirmed.
As further support for the need for software patent protection, Kappos described the common uses of GPS, in stand alone devices and more common today, in smartphones. And the da Vinci Surgical System, which is a robotic arm that mimics the finest details of a surgeon’s hand movements. Both of those devices rely heavily on software protection. If protection for the algorithms were to be removed, Kappos argues there would be little support from venture capitalists to invest in the technology.
The patent system is not “broken”, the patents are simply being challenged through litigation, as happened in years past with sewing machines, the telegraph and electricity, and airplanes, each patent battle occurring in it’s own era. The result of those patent wars, as is happening with the smartphone wars, is a licensing and cross-licensing situation where the intellectual property rights are divided up to the rightful owner(s).
Kappos stresses that the USPTO provides examination guidelines (112 guidelines), and increased the time available to examiners to examine applications. Furthermore, the reexamination process is available to challenge issued patents, although the cost to file a reexamination application under the newly enacted America Invents Act has increased significantly.
So software remains patentable, to hopefully be more clearly defined by an en banc CAFC panel, but the metes and bounds of what specific software is patentable and who owns which aspects remains to be resolved through the courts.