Intellectual Property Directions

While there are many problems with our current patent system, one area that I would like changed is what types of processes qualify as patentable subject matter. As we know, the patentability of software and business methods is fraught with controversy these days. I’d like to throw what I call end-user methods into the mix as well.

My inclination is to look at the purported purpose of the patent system – to reward inventors who help improve society by sharing their inventions – and see which types of processes/methods achieve that purpose. Although it’s not important in this “if I were King” exercise, I like to think this approach harkens back to the Constitutional underpinnings of our patent system, where it is written that Congress can reward inventors for the purpose of “promot[ing] the progress of science and the useful arts”.

Note that the Constitution doesn’t say anything about promoting better business decisions or controlling the actions of individuals who can, with their own heads and hands, engage in an activity.
So how do software, business methods, and end-user methods fit in?

Software: When held up to the template of “Science and the useful arts” clearly some software qualifies and some does not, just as some hardware is patentable and some is not. Thus, I put software into the patentable subject matter category and leave to the examination process what happens to individual applications.

Business Methods: To me, the idea of a “business method” patent is an abhorrence. Transacting business better, faster, cheaper, or whatever is not beneficial to society; it only helps the businessperson make more money. One-click checkout, calculating hedge fund portfolio mixes, etc. are not science nor are they part of the “useful arts” (again, keeping in mind that I am king).  Note that the question isn’t “is this a process”, “is it implemented on a machine”, or “does it transform something”? No, the question is what is the purpose of the process/method; if the purpose is to transact business then it’s not patentable in my book.

End-User Methods: As I’ve discussed in an earlier blog, end-user methods are, generally, processes that don’t “make” anything and that are often performed by the person gaining the benefit of the performance (viz., the end user).  Many of the most laughable patents of recent years are for end-user methods: the method of exercising a cat with a laser pointer and the method of swinging on a swing come to mind.

While those examples are laughable, other end-user method patents cover more serious processes, such as medical procedures. Often these latter patents are a back door way for companies to secure markets for a medical device that otherwise did not qualify for a patent.

There is one more set of “method” claims that I would severely limit. These are methods of doing X, where X is really just using an apparatus, often already claimed in the patent. These method claims are, like the medical procedure patents mentioned above, nothing more than an attempt to provide patent protection for an apparatus that might not be otherwise protected.

Key tip-off words in these claims are “providing” (a such and such piece of equipment), “collecting/recording” (data or information), and “processing” (the data). Steps such as these in a method claim are simply ways to pad out what is really intended: “a method of doing X comprising the step of operating the apparatus described in the patent”. Since that one-step method claim would never be allowed, patent attorneys game the system by breaking the operation of the apparatus down into insignificant steps. They might as well include plugging it in.

That’s what I would do if I were King. How about you?

This entry was posted on Monday, May 25th, 2009 at 8:10 pm and is filed under Patentablility, business method patents, method claims. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.