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It’s no secret that the U.S. patent system has come under attack lately, so the United States Patent and Trademark Office is going to the public to figure out what the agency can do to fix it.
The federal agency on Wednesday held its second public roundtable on software patents—the source of much litigation—inviting lawyers, engineers, educators, software developers, and business executives to offer suggestions at a meeting in New York City about how it might improve the system. The first roundtable was held earlier this month in Silicon Valley.
The brief presentations from more than a dozen speakers—clocking in at about 5-10 minutes each—focused mostly on the problem of overly broad language in software patent filings that fuel litigation and patent trolling.
Suzanne Michel, Google’s senior patent counsel, spoke about the common practice of describing a feature in a patent application by what it accomplishes rather than by how it works. This is permitted only if the inventor submits a written description so the invention can be replicated and the knowledge shared.
But Michel said software patent applicants often dodge this requirement by “playing legalistic word games.” They use alternative language to avoid triggering the requirement that they disclose how something works, which in a software patent would be a supporting algorithm. Such algorithms, she said, could limit future claims of infringement by clarifying exactly what the patent is.
Michel has posted her remarks from the PTO forum and other thoughts on the Google policy blog.
A number of speakers recommended that separate rules be issued for software patents. Major software developers such as IBM and Microsoft, however, believe the same patent rules should apply to all types of patents. Marian Underweiser, intellectual property counsel for IBM, spoke at the event, saying a complex system of varying rules would create more problems—“Think of the tax code,” she said. Representatives of the American Intellectual Property Law Association and the Intellectual Property Owners Association also objected to a separate set of rules for software patents.
Tim Sparapani, an attorney and executive with the App Developers Alliance, addressed the need for continued training for examiners so they can keep up with technological advancements. “Six months is a lifetime on our world,” he noted.
Austin Meyer, an engineer and owner of Laminar Research (a small company that is being sued for what Meyer believes to be an invalid patent), urged the PTO to lower fees for patent reexamination so small businesses could afford to challenge asserted patents at the PTO and avoid the prohibitive cost of mounting a defense in federal court.
The forum ended with a presentation by Patrick McBride, director and patent attorney for Red Hat Inc.—a provider of open source software, including the LINUX operating system. "Open source is the future of software innovation in our country," he said, “but it’s threatened by overly broad software patents.”
The PTO has been holding public meetings around the country on a variety of topics related to intellectual property—part of its public outreach effort to promote innovation.
See also: "Revamped SHIELD Act Again Seeks to Thwart 'Patent Trolls,' " CorpCounsel, February 2013.
