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An afternoon among the patent lawyers

Apr 10, 2009, 14:03 (1 Talkback[s])
(Other stories by Jonathan Corbet)

"The conversation was sometimes dry and often painful to listen to, but it did provide an interesting view into how patent attorneys see the software patent regime in the U.S. The following is a summary of the high points from the four panels held at this event.

"Should software patents exist?

"It should come as little surprise that a panel full of patent lawyers turns out to be supportive of the idea of software patents. Of all the panellists present, only Jason Mendelson was truly hostile to patenting software, and even he stopped short of saying that they should not exist at all. The first speaker, though, was John Duffy, who cited language in a 1952 update to the patent code stating that "a patentable process includes a new use of an old machine." That language, he says, "fits software like a glove." So there is, he says, no basis for any claims that software patents are not allowed by current patent law.

"Beyond that, he says, the attempts to prevent the patenting of software for many years did a great deal of damage. Keeping the patent office away from software prevented the accumulation of a proper set of prior art, leading to the current situation where a lot of bad patents exist. Software is an engineering field, according to Duffy, and no engineering field has ever been excluded from patent protection. That said, software is unique in that it also benefits from copyright protection. That might justify raising the bar for software patents, but does not argue against their existence."

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