Friday, March 31, 2017

Patent Eligibility Update: ABA Requests that Congress Straighten Out the Mess

This blog predicted that a backlash would build against the legal system’s harsh treatment of software and e-commerce patent applications under the current NONSENSICAL (CAPS intentional) patent eligibility DOGMA (CAPS intentional again).  

Briefly, if the courts or Patent Office find a claimed invention to be "abstract" they invalidate it.  This ambiguous, arbitrary, and capricious law has resulted in the death of many patents and applications.  It has accordingly left many software and e-commerce related start ups (and other companies) with little chance of obtaining (or preserving) a patent -- no matter how good the invention.  

As predicted here, a backlash against this law built and continues to build.  Now even the American Bar Association (ABA) has chimed in on the patent eligibility issue.  See: ABA March 2017 Position on Patent Eligibility.  That letter is a bit long winded.  And this Blogger does not expect Entrepreneurs to understand the “legalese” in it.  It does, though, end by striking pretty close to a decent statement of a workable law concerning patent eligibility.  

For my own “two cents worth,” I think the “abstract idea” red-herring ought to be dropped altogether.  Instead, we ought to use a test of whether some inventions of the type at issue have created value for the Inventor (and thus society) in the past.  In that way, Inventors/Entrepreneurs could point to successful companies in their field as objective evidence of patent eligibility.  This approach would be consistent with the philosophy underlying the patent system: rewarding those who create potentially valuable inventions with a patent.  

To summarize: patent eligibility ought to turn on whether the claimed invention has some chance of creating value.   Of course, if the claimed invention has created value (e.g., the Inventor can show that he is making sales because of it). that ought to also be considered objective evidence of patent eligibility. 
We at the Villhard Patent Group would enjoy the opportunity to discuss your software and e-commerce related inventions with you.  You can find more information about us at Or you can call us at 512-897-0399.  We look forward to hearing from you.