Requiem for a Vampire: Software Patents to Catch the Stake?

No matter what you think of them, software patents can be troublesome things. The Open Source community has certainly had its patent tribulations, and even companies that depend on their own patents to build the bottom line have run afoul of the patent police on more occasions than they want to remember. That may be a thing of the past, however, as new decisions out of the Patent and Trademark Office seem poised to send software patents packing once and for all.

According to John F. Duffy — a George Washington University law professor, former Supreme Court clerk, former Justice Department counsel, and a widely recognized expert on patent law — the world of software patents is coming to a crashing halt. Apparently, the PTO has recently promulgated a new test for determining what is and isn't patentable — namely, the requirement that patentable innovations must “result in a physical transformation of an article” or be “tied to a particular machine” — and according to Duffy, this blows the doors off the software patentmobile, as most software patents deal with the intangible and are applicable to any properly-equipped computer system.

Duffy argues, using Stanford/Google's patent on the search giant's PageRank technology as an example, that under the Office's new definition, unless an innovation is tied to a particular computer system — which, according to subsequent PTO decisions, means more than just a general purpose computer — it's doomed, as innovations like PageRank don't actually "physically transform" the data with which they work. The scope of this new position is mind-boggling, as if Duffy is correct — and he's pretty qualified on the subject — hundreds, thousands, even tens of thousands of software patents could suddenly fall away, opening up all sorts of technologies.

Obviously, the matter is still in its early stages — there's no way of knowing yet whether Duffy's interpretation is anywhere near reality — what will actually come of it remains to be seen. The possibility holds huge promise for the Open Source community, however, as a day in which software patents no longer encumber the work of Open Source developers has been a long-held dream — one can only hope it will rapidly become reality.