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t is important to distinguish between the flaws in the current implementation of the patent statutes and the theoretical underpinnings of those statutes. Software presents an enormous challenge to the USPTO because it is so relatively easy to modify and also because of its very wide applicability. I believe these two features represent fundamental distinctions from most patentable material in (US) history. Hence, many more patent applications are submitted than there is staff to adequately vet, and the expertise of the staff is also probably not sufficient to establish novelty (or not) in many cases. My experience (I have filed applications - very novel ones, I might add! - on automatic speech recognition technology) is that, as a result of this, the USPTO proceeds by issuing a few pro-forma objections based on very quick (and often very irrelevant) keyword searches of the patent database, asks for some limitations on the original claims, and then, when these limitations are offered, goes ahead and grants. I have even heard that, owing to the huge backlog, there are incentives offered for claims granted. All of this seems to me to be very much against the spirit of the statute. Consequently, I believe that the current system does a great deal to discourage innovation, mostly because of legal fees involved in navigating the process and in the litigation which results from poorly vetted patents. However, that is a practical problem - it says nothing per se about the patentability question. Some reasonable solutions to these practical issues I have heard are: 1) Spend more money to hire more qualified staff to review applications. 2) Reduce the incentives to file by shortening the duration of software patent grants. 3) Require that inventors demonstrate a working instance of their applied-for invention, including verification that the specified algorithm is what is actually producing the visible behavior. IANAL, but perhaps these last two suggestion would require a change to the statute. I don't believe either is against the spirit of the US Constitution, however.
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Dec 1, 2009