Software Patent Law | Patents4Software.com

As reported today in Law360, David Kappos, the former director of the U.S. Patent and Trademark Office on Monday called for the abolition of Section 101 of the Patent Act, which sets limits on patent-eligible subject matter, saying decisions like Alice on the issue are a “real mess” and threaten patent protection for key U.S. industries.

Kappos was quoted by Law360 saying “It’s time to abolish Section 101, and the reason I say that is that Europe doesn’t have 101 and Asia doesn’t have 101 and they seem to be doing just fine in constraining patent-eligible subject matter”.

Kappos, like many others in the patent field, are now recommending that their clients more aggressively seek protection in other countries where protection for biotechnology and software is readily available.

Its a sad commentary to the state of the law when the former Director of the USPTO is recommending to his clients that they seek protection in other countries due to the mess the Supreme Court and the Federal Circuit have made of Section 101.

Manny Schecter, Chief Patent Counsel of IBM, argues in his article “The Downside of Making Innovation Look Easy” (http://recode.net/2016/04/08/the-downside-of-making-innovation-look-easy/) that we risk damaging one of this country’s most innovative and successful industries because our patent system now makes it too difficult to obtain and enforce patents for legitimate computer-implemented inventions.  Mr. Schecter says we “must find a way to course-correct before irreparable harm is done in order to continue to promote innovation and the creation of newer, better computer technology.”

That Mr. Schecter, one of the most world’s most astute experts on computer patent protection, and an expert not known to engage in hyperbole, is sounding an alarm like this , should tell us all that something is terribly wrong with the direction taken by the Supreme Court and the Federal Circuit in the five years.

As Mr. Schecter points out, the Federal Circuit has found ineligible the patents on computer-implemented inventions in all but one of the last few dozen or so patent cases it has considered.

Sadly, Mr. Schecter is not being overly dramatic.  In point of fact, US jurisprudence on patent eligibility for computer-implemented inventions is fast becoming the laughingstock of the world IP community.  Worse yet, the court that once helped spearhead the expansion of the US’s lead in computer technology is now aggressively facilitating what may someday come to be known as one of the most massive give-aways of US technology in our history, and perhaps one of the biggest technology give-aways of all time.