Continuing the debate on patenting of signals per se and the Nuijten case.
- Professor Hricik continues our debate on whether the statute should be interpreted with back-looking textualism here. His thought experiment is as follows:
What if we shortly conclude that there's really no such thing as "matter" at all but it's just vibrations of strings, and the 'reality' we perceive is only a manifestation of these vibrations that we cannot themselves perceive. Does the conclusion that there is no "matter" as Jefferson understood the term mean nothing has patentable subject matter, since none of it is "matter" as that phrase was used back in Jefferson's day?
- Professor Duffy provides his new and fresh commentary on the oral arguments in PDF Form. (Duffy’s title is “Ten Points on the Oral Arguments in Nuijten”). Part of the debate explored by the judges is whether our 20th century knowledge of the relationship between energy and matter means implies that all energy forms should be patentable.
- Expanding patentable subject matter always creates the potential for a flood of incoming patent applications. We saw this type of flood with business-method and software-related applications in the past. The PTO continues to be severely criticized for allowing a number of 'bad patents' to issue in both of those areas during the earlier years. The general consensus is that the PTO is now doing a much better job (and is perhaps overzealous) at ensuring that business method patents meet the statutory requirements of novelty and nonobviousness. In my view, the examination problems began with the PTO’s prior art searching system — a system that, for the most part, assumes that all prior art is contained within prior US patents. As we know, the history of software and business method technologies is not primarily found in patents. For those areas, the PTO has been forced to rethink how it finds and examines non-patent prior art. In addition, these arts tend to have high cross-market uses — causing the issued patents to be potentially broader than they might have seemed in the context of the original application. Training and hiring issues also play a large role. In the areas of software and business methods there is also a proportionally greater diversity of patent applicants because of the lower barriers to entry into those development arenas. The resulting greater amount of inexperience with the patenting process of those applications may have also resulted in a larger number of lower-quality patent applications. That last point, however, is highly suspect considering the quality of applications being filed by many of the major players in the software arena. In any event the PTO should be both cautious and ready to act.
- In his paper, Professor Duffy notes that this particular case is unlikely to open any large floodgates. Signals that are tied to some physical form (such as electronic memory) are already being patented. As our regular commentator ‘Stepback’ and others have pointed out, Professor Noveck even has a patent covering a “computer data signal encoded in a carrier wave comprising . . .” (Claim 23 of US Pat. No. 6,823,363).
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