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.
