An afternoon among the patent lawyers

“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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