Software Patent Law | Patents4Software.com

Interesting NY Times story about the reduced number of start-ups possibly being a drag on economic growth, or put another way, the lower number of start-ups corresponds to lower economic growth rates.   Here is link to story:  https://www.nytimes.com/2017/09/20/business/economy/startup-business.html?smid=tw-share

What I find interesting is that just a few years ago, patent academics in the US (some of which admit to being funded by a large US tech company) were blaming trolls for inhibiting start-up activity, and hobbling economic growth for giant mega-corporations.  The NY Times article suggests a very different reason for that:  large corporates have so much market power it is difficult for start-ups to get enough oxygen to survive.  Of course, a start-up with a successful product can at least get a measure of countervailing market power from its patent portfolio.  That is, if it can get past Section 101 subject matter eligibility challenges, and avoid having its patents thrown into daisy-chained IPR challenges.   Its understanding that we needed a solution to trolls, but it should not come at the expense of start-ups activity, without which our tech industry cannot thrive.

The PTAB shows us a little glimmer of the return of sanity to Section 101, with this decision that finds a claim to a credit card transaction verification algorithm patentable.  See Ex parte PATRICK FAITH and AYMAN HAMMAD

Here is one of the claims found 101 compliant:

9. A method for conducting a transaction, comprising:

generating, by a portable consumer device, a verification value in response to a transaction involving an access device;

sending, by the portable consumer device, the verification value and a portion of a first dynamic data element to the access device, the portion of the first dynamic data element including data included in a fixed position of the first dynamic data element, the verification value being different from the portion of the first dynamic data element; and

communicating, by the access device, the verification value and the portion of the first dynamic data element to a service provider computer;

wherein the service provider computer determines a plurality of candidate dynamic data elements using the portion of the first dynamic data element in response to determining that the verification value does not match a second verification value independently generated by the service provider computer, determines a plurality of candidate verification values from the plurality of candidate dynamic data elements, and determines whether the verification value matches any of the plurality of candidate verification values;

wherein, each of the plurality of candidate verification values is unique to a corresponding candidate dynamic data element of the plurality of candidate dynamic data elements; and

wherein the transaction is thereafter authenticated when the verification value matches any of the plurality of candidate verification values.

For an excellent review of the history of the patent system over the last several decades, check out Steve Kunin’s PowerPoint presentation:

The Decline of the Golden Age of the Patent System in the U.S.: An Historical Retrospective 1983-Date

Steve was one of the USPTO’s best patent scholars and policy champions during the “golden age”, and now is an outstanding patent lawyer at the Oblon firm.

In a telling article recently published in IP Watchdog, Russell Slifer, former Deputy Under Secretary of Commerce for Intellectual Property & Deputy Director of the United States Patent and Trademark Office, and a Principal at Schwegman Lundberg & Woessner, asserts that a combination of court decisions and legislation has unnecessarily moved the U.S. into the anti-patent territory.   Below is the link to the article on IP Watchdog:

Five Years after the AIA Created the PTAB