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July 05, 2023


People (read companies) who don't like software patents are people who like to steal code. Why work when you can get someone else to do it for you and then use your superior distribution channels to sell their work.


A great article.

Applicable to most, if not all patent regimes.

Bob Kelson

Almost - but definitely not quite - agree with you, Dr. Borella.

While some may view your 'politeness' (or acquiescence) on some points to be inconsequential, I view them more of a slippery slope or camel's nose under the tent, and - frankly - unworthy of any indicator of having even a remote level of veracity.

For example,: "For example, an overly permissive patent system (in which just about anything would be patentable) would stifle innovation and establish gridlock in certain technologies."


Here you commit a direct error that is one of the planks attempting to be corrected: slipping items of 102, 103 and 112 into 101.

There is NO SUCH THING as "just about anything" when one considers the heavy lifting of 102, 103, and 112 will still be in place.

Perhaps you meant something along the lines of the understood concept of "utility" in the patent sense. Or, in other words, the fact that "Fine Arts" does not fall under that utility.

This is in explicit contrast to a FATAL FLAW of the current bill (what has been labeled as a Poison Pill, or Trojan Horse): the inclusion of the phrase “substantially economic, financial, business.”

One would do well that this attempted distinction is not only ill-founded, but is antithetical to very specific arts that we ALL should want to fall into the promotion effect of innovation protection of the patent system.

One need not dig deep at all to see just who benefits by these areas being kept out of (often) destructive innovation -- read that as resetting from established powers) -- protection.

One key way to look at this (in the flavor of Quid Pro Quo) is that for ANY such innovation (again, these need pass 102, 103, and 112), the "0n-N0es" aspect of a "stick" IS a critical provider of promotion.

It is OFTEN when faced with an "unmovable object" that the river of innovation is thus "forced" to jump its banks and cut a new CREATIVE path.

We ALL should embrace both the carrot and the stick aspect of strong patent rights.

Skeptical, to the extent that you think this article is just about 101, I believe you missed the point. Instead the focus is on patentability in general and is in response to misinformation being spewed about the patent system once again.

Dr. Borella,

Certainly my post is not only about 101.

That being said, my points ON 101 are directly ON point.

Your reply appears to assert that my missive misses.

It does not.

I have always thought that the measure of a patent system functioning as it should is that bad patents are swiftly extinguished while good ones are swiftly enforced. Then, industry has certainty, and can thrive.

Easy to say but hard to do. The situation reminds me of St Augustine's big ask: the one about giving me the wisdom to distinguish the one from the other.

If a patent system is malfunctioning it is usually because it lacks efficient ways to finger which are the good patents and which the bad. It is the task of the courts to provide that efficiency. Unless the responsible judges are patent professionals, they cannot do that job.

Tell that to the detractors.

Which "detractors" did you have in mind, MaxDrei?

Dear Mr. Michael Borella,

Thank you for your view and article. I agree with your all of your points. Patent law is overly complex but it serves admiration not criticism by special interest groups.Patent law has changed too much in the past 30 years!

The Judges in patent law cases need a BA or BS in science. Its clear US Judges at many court levels have damaged the fundamental reasonings with 101, 103, 112, and 102. Consequently, the USPTO role in patenting has become needlessly burdensome and punitive to inventors of all kinds of businesses and individual inventors. Important inventions are as a result not being patented.

A good example of this well-known patenting problem is information technology (IT), software applications, and all sorts of computer related technology innovations and breakthroughs in the US and other countries. These innovations need patenting support not patenting ineligibility. The Patent System is too narrow now in what is considered a patentable invention and this is harming the US ec anomy as well as the economies of other countries.

involved in altering patent law or making decisions in landmark cases

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