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Intellectual Property

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  1. Intellectual Property Boston College Law School March 26, 2008 Software – Patent

  2. Gottschalk v. Benson Binary Coded Decimal 53 = “5” “3” 0101 0011 Pure Binary Number 53 = 110101 0101 0011 110101 The method of converting signals from binary coded decimal form into binary which comprises the steps of (1) storing the binary coded decimal signals in a re-entrant shift register, (2) shifting the signals to the right by at least three places, until there is a binary 1 in the second position of said register, (3) masking out said binary 1 in said second position of said register, (4) adding a binary 1 to the first position of said register, (5) shifting the signals to the left by two positions, ….

  3. Cases After Benson • Parker v. Flook (1978) • Method for updating alarm limits on computer to monitor pressure • Held unpatentable: nothing more than an algorithm • Diamond v. Diehr (1981) • Method for curing rubber w/ steps calculated by computer • Held patentable: part of larger process, even if algorithm is the only new feature • Freeman-Walter-Abele Test • (1) Does patent claim recite algorithm directly or indirectly? • (2) If so, is invention as a whole nothing more than algorithm?

  4. State Street Bank v. Signature A data processing system … comprising: (a) a computer processor means for processing data; (b) storage means for storing data …; (c) first means for initializing the storage medium; (d) second means for processing data regarding assets in the portfolio and each of the funds from a previous day and data regarding increases or decreases in each of the funds’ assets and allocating the percentage share that each fund holds in the portfolio; …. Pooled Mutual Fund

  5. Software Patentability • Requirements for Patentability • Subject Matter • Utility • Novelty • Nonobviousness • Enablement

  6. Software Patents Issued by PTO

  7. Nonobviousness • Software difficulties • Lack of experienced patent examiners • No good classification system • No good body of documented prior art • PTO efforts to address • Hiring experienced patent examiners • Cooperating w/ industry to document prior art • More involvement of industry in examination

  8. Amazon v. Barnesandnoble • Prior art references • Compuserve Trend(stock chart purchase) • Web Basket(shopping cart using cookies) • Yesil Book(ref. to “Instant Buy Option”) • Oliver’s Market(shopping cart) • ‘780 Patent(web page delivery)

  9. Hypothetical • Facts • You have a programmer friend w/ software • Wants to market a program over the internet • Questions • Does he need to worry about other patents? • Can he secure a patent himself?

  10. Evaluation • Arguments against • Increases costs of creating new programs • Search costs • Licensing costs • Attorneys fees • Advantages large players over small players • Not necessary • PTO ill-equipped to issue • Arguments for • No different from other industries • Becoming increasingly capital intensive (e.g. Windows) • PTO issues are transitional issues

  11. Sui Generis Proposals • Menell • Based on patent system: same requirements • Faster approval • Shorter duration • Privilege for reverse engineering • Compulsory licensing of standards • Samuelson, et al. • Sui generis framework • Short period of anti-cloning protection • Registration and licensing system

  12. Administrative • Next Class • Start Trademark • Read through VI.B – Subject Matter