A Modest Proposal to Return Patent Eligibility Law to Sanity

Much has been written regarding the patent "eligibility" morass that the courts created for software/business method patent claims.  This blogger wishes to advance a modest change in law that would straighten out much of this mess.

As many of you might not now, the "abstract" exception to the broad mandate for patent eligibility is a purely court created creature.  As such, the courts can overturn this law that allows anyone seeking to invalidate a software/business method patent application with an eligibility ambush.  Congress can and should also step in.  Indeed, Federal Circuit Court of Appeals Justices Lourie and Newman begged Congress to do exactly that in the Berkheimer cases (see the last posting).

But, what should be the patent eligibility-abstract-idea test?  First of all, this Blogger recommends abandoning that particular exception and allowing novelty (or lack thereof) and obviousness to root out patent ineligible ideas.

Instead, if we must have some sort of "abstract" idea test for eligibility, it should be stated in terms of whether ideas of the type at issue have proved valuable in the past.  So, while Apple's one-click patent, the JPEG patent etc. would likely be found abstract and ineligible under current U.S. law, they are undoubtedly valuable ideas.  Indeed, they added much value to the companies that own them and society at large. 

In the meantime, this test would not require that a particular claim have such value.   Rather, this proposal would grant eligibility to ideas that fall in such potentially valuable areas.  The reason for this proposed change: patents are supposed to protect potentially valuable ideas.  The key word being "potentially" here.  And this rule would return patent law to its intended function while lending a factual basis for determining whether a claim reflects an abstract idea or something potentially valuable. 

We at the Villhard Patent group would enjoy discussing your ideas with you.  You can find more information about us at www.villhardpatents.  Or, you can contact us at contact@villhardpatents or at 512-897-0399.  We look forward to hearing from you.