Friday, February 21, 2014

"Functional claiming" undermines the entire patent concept

The US Patent and Trademark Office has a page on abusive patent legislation, here. It’s interesting that the USPTO notes that a patent owner may, in legal principle, control how a product is used or who may use it.   The office says that a variety of responses are possible when a letter is received, including no reply.  A cease and desist letter is not a lawsuit.  The USPTO’s pages to acknowledge that it is possible for a small business (or even a consumer) to buy a service from a vendor and then be challenged separately by a patent owner.  This does not make sense to many end users, why vendors don’t “protect” them in patent use.
Mark Lemley of Wired has an article on “functional claiming,” that is, “Let’s get back to patenting the solution, not the problem”, here.   Many patent trolls try to claim that a particular function is what is patented, rather than the invention that performs the function.  This could be particularly true of software.  When I was working in mainframe IT, employers owned all the code that I wrote, and it could have been viewed under both patent and copyright laws.  Yet, I often wrote similar code for different employers to perform similar functions.  This was more of an issue in the days when companies hired programmers to write all their in-house applications, until they gradually shifted to buying from vendors.
The White House is beginning to look at the problem if a patent system that encourages trolling and hinders innovation, as in this statement, released Feb. 20, 2014.  The White House gives an explanation of the “attributable owner” concept in promoting transparency. 

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