As I've written too many times, software patents make no sense for lots of reasons. Although rather more circumspect than me in its phraseology, the Hargreaves Review essentially agreed:
In this case, the Review believes the balance of evidence lies in continuing to withhold patent recognition of non-technical computer programs as part of a sustained effort to deal with the growing and dangerous problem of thickets
But there still remains a grey area where pseudo-software patents are being granted because of legalistic trickery that succeeds in dressing up software as if it were something else – notably the "computer-implemented invention" (CII):
A CII is usually defined as an invention that works by using a computer, a computer network or other programmable apparatus. To qualify, the invention also needs to have one or more features which are realised wholly or partly by means of a computer program.
That leaves us with a problem then. Given that people are going to apply for such patents, and that highly-paid lawyers will do their damnedest to get them through the patent system, what can be done to minimise their number? Well, the CII page quoted above offers some help:
CIIs can be patented if:
They have technical character and solve a technical problem.
They are new.
They involve an inventive technical contribution to the prior art.
This implies that one good way of shooting down such CIIs is to point to prior art.
Against that background, it's interesting to note that the UK is importing the US "peer to patent" scheme:
Peer To Patent is a historic initiative by the United States Patent and Trademark Office (USPTO) that opens the patent examination process to public participation for the first time. Peer to Patent is an online system that aims to improve the quality of issued patents by enabling the public to supply the USPTO with information relevant to assessing the claims of pending patent applications.
This pilot project connects an open network for community input to the legal decision-making process. The community supplies information and research based on its expertise. The patent examiner makes the final determination on the basis of legal standards. This process combines the democracy of open participation with the legitimacy and effectiveness of administrative decision making.
Here's some information about the imminent launch of the UK version:
we're working with New York Law School towards the 1st June launch of www.peertopatent.org.uk. Over the next 3 months we will be uploading about 200 patent applications in the computing field to the website. The website then allows members of the public (like you) to view these applications and identify documents or leave comments that they think will be useful for the examiner to consider
Hopefully users like you can point us to useful documents that the examiners may not otherwise have found, or it may be comments that users leave that will support the examination process. By giving us this information you are helping us to improve patent quality.
By getting involved everybody benefits – patent applicants will get stronger patents that can support their innovative businesses, the public help in ensuring that only novel and inventive patents get granted, and my examiners benefit from having access to a wider body of information that they may not normally have.
Anything that stops more bad patents being granted – particularly in the field of software – is to be welcomed. Once the site launches next week, you might want to take a look – and maybe even join in if you see something that deserves to be squelched. It's hard to say what impact this will have on the attempts to patent software, but it certainly can't hurt.
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