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Patent Office asks the public for advice on software patents

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USPTO Building
USPTO Building

In an announcement yesterday in the Federal Register the US Patent and Trademark Office invited the public to participate in a "software partnership" next month to "enhance the quality of software-related patents." The process will begin with two roundtable events, one in Silicon Valley and another in New York City. The events are defined as opportunities "for an informal and interactive discussion of topics relating to patents that are particularly relevant to the software community." Here's the one substantive topic currently identified for discussion:

"how to improve clarity of claim boundaries that define the scope of patent protection for claims that use functional language."

In the world of software patents, this "functional language" in the patent claims defines the software method being covered. If we take Apple's most recent slide-to-unlock patent as an example, it's the claim language detailing how an image must be continuously moved to an unlock region on the screen to unlock your phone. Unlike patents on novel hardware solutions, these types of patents focus on what the software is doing on general hardware. Words are malleable things, and when you're using them to describe software functionality the exact meaning of a patent claim can become murky. That's obviously a problem for competitors and the public, and it can make the patent office's job a lot harder as well.

This is about examining and potentially tweaking the process, not changing the laws

This initiative appears to be about giving the USPTO an opportunity to explain its process of examining software-related patents and opening up a discussion with the public about ways to potentially improve the process. It's a legitimate endeavor on its face. Clarifying the bounds of patent claims ideally means the public will be in a better position to avoid potential infringement. Having a more clearly defined invention in the claims can also assist the USPTO in identifying the most relevant prior art while examining patent applications, which can improve patent quality. However, this is an administrative agency, not Congress. It doesn't make or abolish patent laws in this country. The official notice hints at this limitation: "While public attendees will have the opportunity to provide their individual input, group consensus advice will not be sought." Translation: we'll talk but come with realistic expectations. This is about examining and potentially tweaking the process, not changing the laws.

For those interested in attending, the Silicon Valley event will be held on Tuesday, February 12th and the New York event will be held on Wednesday, February 27th. A webcast is also planned for both roundtables.