David Kappos is the former head of the US Patent and Trademark Office. A few days ago, he wrote a SCOTUSblog post about the Supreme Court’s recent Alice Corp. v. CLS Bank, a case many were watching to see if the Supreme Court would somehow put a stop to software patents. Kappos says their silence was “deafening.”
Wisely, rather than labor through a lengthy discussion about software, the Court focused on the abstract nature of Alice Corporation’s claimed “invention,” declining to delineate a wooden rule for what constitutes unpatentable abstraction.
One thing I really love about his post is that he’s thinking of software patents in exactly the opposite way that the anti-software patent advocates think of it. That is to say, rather than ask “why should be software be patentable?” Kappos asks, “why would we exclude a whole field of ultra-valuable innovation just because of the category it’s in?” I guess that’s the perspective you get as the former head of the PTO.
Sort of unrelated, I have this crazy idea that I think the main problem with software patents is the way the claims are drafted. I got this after talking with both a director as well as a manager of software engineering at a very, very well know consumer company. Essentially they complained that the “metes and bounds” of the claims are useless to a software engineer.
As a software engineer myself, I totally agree. When I read claims (the only real important part of a patent), I can’t really tell whether the patent covers the technology I’m developing or not. So just thinking out loud, I wonder if software patent claims could be written in pseudo code. That would certainly make it easier, even if it would be harder for patent lawyers to write.
UPDATE: if you want more than just Kappos’s point of view, consider also reading the Patently-O version of SCOTUSblog’s “symposium” on Alice v. CLS.