Closing Pandora’s Box?
The boundary to what can be patented has been effectively abolished by recent Federal Circuit rulings, according to End Software Patents (ESP), an organization supported by the Free Software Foundation. The result has been a tsunami of vexatious lawsuits.
The ESP site lists suits against over fifty non-software companies for infringement regarding their web sites or other course-of-business software, including the Green Bay Packers football club, McDonald’s, Dole Foods, Kraft Foods, Caterpillar, Wal-Mart and Tire Kingdom.
Possibly the most notorious was the ‘Blackberry patents’ case of NTP v. Research in Motion Ltd. ESP Executive Director Ben Klemens has pointed out that the Federal Circuit’s own web site is produced using software that infringes a number of the software patents it has allowed.
ESP has filed an amicus curia brief in the rehearing of In re Bilski, arguing that pure information is not patentable, and the Supreme Court has ruled that software should not be patentable. Against which the immensely powerful legal profession will not wish to see such a fat cash cow put down.
The In re Bilski rehearing will address three crucial issues:
· What standard should govern in determining whether a process is patent-eligible subject matter?
· Is the claimed subject matter not patentable because it constitutes an abstract idea or mental process? When does a claim that contains both mental and physical steps create patent-eligible subject matter?
· Must a method or process result in a physical transformation of an article or be tied to a machine to be patent-eligible subject matter?
Back in 2003, it was estimated that online sales risked violating over 4,300 patents. To advertise, receive payment or to ship goods risked infringing about 11,000. And that was five years ago.
