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US Patent Office seeks public input on software patents' future

Roundtable discussions scheduled for February

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The US Patent and Trademark Office (USPTO) has asked the software community to help advise it on how to properly handle software-related patents – a move that could represent the first steps toward software patent reform.

The agency published its request for comments in the Federal Register on Thursday, explaining that it wants to form a Software Partnership with members of the public to share ideas and discuss several key issues.

Top-of-mind for the USPTO is figuring out how to establish clear boundaries for patent claims that use "functional language," meaning claims that describe processes but have no corresponding hardware invention.

As the USPTO's notice explains:

Software by its nature is operation-based and is typically embodied in the form of rules, operations, algorithms or the like. Unlike hardware inventions, the elements of software are often defined using functional language. While it is permissible to use functional language in patent claims, the boundaries of the functional claim element must be discernible. Without clear boundaries, patent examiners cannot effectively ensure that the claims define over the prior art, and the public is not adequately notified of the scope of the patent rights.

In other words, software patents can tend to be overly broad, and it can be hard to be sure that they really represent new inventions and not just iterations of earlier work – arguments that critics of software patents have been making for years.

The agency says it would like input from software developers and the public as to what level of detail and specificity should be required in a software patent application to meet the definition of a "quality" patent – that is, one that clearly states what is covered.

Outside of this issue, the USPTO says it is also interested to hear any other topics related to software patents that the public thinks should be discussed in the future. Suggested topics include how patent examiners can determine whether a software patent is "obvious" and what resources patent examiners should use to find prior art related to such patents.

The request should come as good news to the many opponents of software patents, who often argue that the current US patent system is "broken." Computer programs as such are not generally patentable in the European Union, but the USPTO takes a far more liberal view of what can be covered.

In fact, many critics are likely to feel that the rather modest reforms the USPTO intends to discuss don't go nearly far enough. In December, entrepreneur Mark Cuban and games developer Markus "Notch" Persson each donated $250,000 to the Electronic Frontier Foundation's Defend Innovation program, one goal of which is to petition Congress to investigate whether software patents offer any economic benefit at all.

For now, though, the USPTO says it plans to open its dialog with the software community by holding two roundtable events: one in Silicon Valley on February 12, and a second in New York City on February 27. Anyone can attend the events and there is no fee to register, and the events will also be simulcast on the web.

The agency says it will try to accommodate "all persons" who wish to make a presentation at either of the events, although how long they will be allowed to speak will depend on the number of speakers and the amount of time available. Interested parties can also submit written comments via email. ®

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