See My
February 24, 2005 Questions to USPTO On-Line, which may in part have prodded the USPTO and open source community into this latest action.

Failing direction from governmental legislation, software and other abstract method patents have been forced on the USPTO and the rest of the world by the back doors of legal and administrative precedent. How many countries have actually passed legislation explicitly legitimizing software or abstract patents? Not the USA for one.

Can the you point to any instances where the granting of software related patents has been an actual benefit to the progress of science, useful arts and the software industry in general? In a similar vein, can the you point to any instances where the granting of business method related patents has been an actual benefit to the progress of science, useful arts and industry in general? Have the intellectual property gurus even attempted to address the issues raised by the critics of software patents over the last two decades?

If no positive answer can be given to the above questions, why do we need to grant such monopolies?

Because of the time it takes to get a patent and the six to ten years it has taken to drag the first cases though the courts and appeals, the major negative effect of software patents have just begun to become noticeable. It is going to get a lot worse.

Because of the existing precedent, removing software patents will require the introduction of explicit legislation. That will take time, probably many years to undo the damage from the lobbying by intellectual monopoly advocates such as yourselves.

Until then, helping he USPTO track down prior art in publicly available open source software will greatly reduce the number of patents the software development industry will have to concern itself with.

Also opening up the patent application process could end up improving the quality the remaining granted patents.

I don't think it's any secret that many people believe that software is so different from traditional fields that the traditional rationale for patents doesn't work. There's a reason why the USA is the only place on Earth where software is explicitly patentable under the law.

Part of the problem with patents with no requirement for a (nontrivial) physical step is that the size of the industry is exponentially larger. For example, you, Mr Sorocco, are a full-blown practitioner in IT, because you operate this web site. I'm guessing that you don't even have the equipment that would allow you to violate a pharma patent, but if you are reading this then you are looking at all the equipment you need to be an IT practitioner. The same holds for every other company that has a web site or uses computers for accounting or other operations.

Which brings me to my question. Since this web site lies within the scope of patentable inventions, you should have done a full patent review before putting it up. Did you do a proper review of the patent literature before posting this web site? If not, why not, and would your reasoning apply to a company that is distributing pharmaceuticals or mechanical equipment? If you did do a full patent review, what did you find? Can you state with certainty that you are violating no patents by running this web site?

Of course PHOSITA Blog is in violation of patents. Dozens of them. Mr. Sorocco, if he had been vigilant, would be paying annual royalties to at least 10 different companies for using their intellectual property in publishing this little weblog.

The truth is, you don't feel the incredible oppressive weight of our unjust patent system (especially in regard to software) until you are threatened with cease-and-desist letters for putting up a website. I've been through that, once, in 2001, and it has me in a cold sweat everytime I write and publish software, and everytime I post a document to the web. Software patents SHOULD be abolished. To claim otherwise is insanity.

One thing I love about the anti-software patent community is the passion with which they bring their message. The debate in these comments doesn't disappoint. Thanks for that.

The idea that an entire area of technology should be excluded from the patent law simply because it is new or different is not one of first impression. We faced this problem before when biotechnology splashed onto the scene...and now we live with patents on isolated forms of genes and proteins and even on genetically-engineered animals. Oddly, the biotechnology industry is thriving despite this radical development in the law.

Instead of trying to carve an entire filed of technology out of the patent laws, the interested community should spend its time and resources on ensuring that the Patent and Trademark Office has the best possible access to relevant prior art. If we did that, the problem of invalid patents would be minimized and the value of strong intellectual property protection would be realized.

The Patent and Trademark Office, commendably, is undertaking some efforts in this area now by inviting the open source community into the process (see the news release here: http://www.uspto.gov/web/patents/opensource02162006.htm).

As to the allegations of infringement, we are comfortable with the analyses that we have performed. Needless to say, the law, as well as common sense, is on our side.

Thanks again for the comments.

The purpose of the patent system is not to protect or bolster certain industries, and your subjective pronouncement of a "thriving" biotech industry are largely irrelevant anyway ("thriving" in comparison to what? The biotech industry that exists in some parallel universe without patents? How can you know if it is thriving or not? How can you know whether we'd be 10 years ahead or 100 behind if patents weren't there, in the way?)

Patents exist to promote the useful arts and sciences. The fact that biotech companies that like patents killed those researchers that were opposed is not surprising. It is cyclical to say anything else. If the opponents of bio patents had instead won, we'd be pointing to the patent hoarding bios as losers and say that the Biotech industry was "thriving" without patent protection.

So how's this: instead of excluding one entire area of technology from patent protection, why don't we just get rid of them all. Software, Pharms, Biotech, manufacturing, et. al. The world would be much better off, and the useful arts and sciences could finally flourish like they never have been able to under the oppressive regimes of IP-maximalism.

Of course, that would be catastrophic for the patent lawyers, but the rest of us would be much better off.