CCIA submitted comments on software patent quality to the PTO on Monday.
In February, the PTO announced that it would hold roundtable talks on improving the quality of software patents. The PTO also sought comments on two particular subjects: First, ways in which the PTO can improve the clarity of claim boundaries in software patents that use functional claims. Second, any further suggestions as to how the PTO could improve software patent quality, such as standards for obviousness in light of prior art.
CCIA’s comments begin by providing a background to the controversy surrounding software patents, noting the Supreme Court’s silence on the issue, the Federal Circuit’s expansion of patentable subject matter, and the deep division within the technological and legal communities. This division is the result of longstanding issues that have yet to be resolved.

The comments discuss the practical concerns regarding software patents, including the rising application and allowance rates, the “positive feedback loop” of increased applications with increased allowances, and constraints including budget and backlog that lead the PTO to issue poor quality patents. Most of the patent office’s constituents are applicants themselves, for whom PTO quality control is not a priority. These constituents are paid to prosecute patents, even at the expense of diverting resources and quality control.

In support of CCIA’s argument, the comments raised several compelling statistics, including the rising number of software patents themselves (last year saw an all-time record of 68,711 software patents allowed); the rising allowance rate of utility, plant and reissue patents generally; and the rising backlog, which pressures the PTO to issue patents rather than allow them to remain in its queue.

Software patents are uniquely problematic because software can function at many levels of abstraction, which leads to uncertainty among innovators. The comments conclude that the PTO must consider the risks and costs of abstraction, which is associated with semantic breadth and ambiguity, immaterial and intangible objects, and wide use and liability. The debate should focus not merely on software patents, but abstract software patents, which pose the greatest uncertainty.
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