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Patent ruling good or bad for tech?

Ruling should force weed out trivial patent suits, but will require companies to be more specific about what process they've invented.

Erica Ogg Former Staff writer, CNET News
Erica Ogg is a CNET News reporter who covers Apple, HP, Dell, and other PC makers, as well as the consumer electronics industry. She's also one of the hosts of CNET News' Daily Podcast. In her non-work life, she's a history geek, a loyal Dodgers fan, and a mac-and-cheese connoisseur.
Erica Ogg
3 min read

Now that the U.S. Court of Appeals has ruled that abstract processes, or business methods, cannot be patented, it's important to look at how this could affect the tech industry.

The case in question was rejected because the patent at issue was a process not tied to a "machine," which is one standard for patentability.

Overall, it seems like a ruling that should favor companies that make hardware and software because while it narrows the types of patents that can be filed, in return should protect them from the frivolous patent suits that have flooded the industry in the past few years.

"We've seen a rise in the number of lawsuits against tech companies in the IT area specifically. Many are very questionable patents, and the patent office is overwhelmed," said Jason Schultz, acting director of The Samuelson Law, Technology & Public Policy Clinic at UC Berkeley. "It will reduce the number of patent applications which are filed in the IT space--especially by these questionable entities or companies trying to patent trivial things."

"Trivial things" like broadly defined behaviors, or obvious ideas, such as credit-card processes for e-commerce, or shopping carts for Web sites--things that some companies have attempted to patent that have more to do with a process and less to do with a machine.

One of the advantages of this type of decision is "it allows the patent office to make quick and easy rejections instead of deep, technical rejections, which are intense substantive analytical decisions," added Schultz.

In other words the entire patenting process could be sped up because there would be fewer patents filed over time.

The nonprofit Washington, D.C.-based Computer and Communication Industry Association agreed it would be a boon to the companies it represents.

"The Federal Circuit's opinion implicitly recognizes that an out-of-control patent system was not promoting progress, but rather impeding it," said CCIA President Ed Black. "The standard articulated in this case should limit the outrageous business method and software patents that we have recently seen without undermining the incentive to innovate in these areas."

Some tech companies worried the ruling could go too far, but it doesn't appear that's what happened. It doesn't necessarily mean that more patents on higher-quality hardware or software will be rejected right away, it will just require a little finesse. Most tech companies should be safe, as long as the process they're trying to patent it tied to a computer, which definitely counts as a machine, according to Brent Yamashita, partner in the patent litigation group for DLA Piper.

The decision "may be adverse for some business method patents that already exist, but in most cases a skillful patent attorney would be able to still get a patent for his or her client...by making sure the process being described is tied in with the actual machine or tangible such as a computer," said Yamashita.

"There are already are many patents drafted that way. In the future, practitioners just need to be careful to make sure they don't just describe a process in the abstract," he noted.

That means instead of giving a broad description of a product (like listening to music from a remote device) they have to be much more specific and narrow about what they claim to have invented (how the process of listening remotely is tied to a specific device or service).

In all, "I think (it) will be good for everybody," said Schultz.