Difference between revisions of "Legislation in the USA"
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* [http://en.wikisource.org/wiki/Patent_Act_of_1790 The Patent Act of 1790] | * [http://en.wikisource.org/wiki/Patent_Act_of_1790 The Patent Act of 1790] | ||
− | === | + | ==The constitution== |
− | + | ||
+ | The constitution allows for the posibility of patents to exist to promote the useful arts. Given the [[studies]] showing that patents harm software progress, this seems to clearly leave software patents as unconstitutional. | ||
+ | |||
+ | Of possible relevence is the ''Eldred v. Ashcroft'' ruling, where the court deferred to Congress in interpreting this aspect of the constitution. Congress has not legislated specifically on the validity of software patents. | ||
+ | |||
+ | ==The US Code== | ||
+ | ===USC 101 (patentable subject matter)=== | ||
About "Statutory categories", i.e. [[patentable subject matter]]), the legislation says:<ref>http://www.law.cornell.edu/patent/35uscs101.html</ref> | About "Statutory categories", i.e. [[patentable subject matter]]), the legislation says:<ref>http://www.law.cornell.edu/patent/35uscs101.html</ref> | ||
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The word "process" was added in the 1950s. Most software patents and [[business methods]] are claimed as a "process" (example: [[Bilksi]]) but some are claimed as a "machine" (example: [[State Street v. Signature Group (1999, USA)|State Street]]). | The word "process" was added in the 1950s. Most software patents and [[business methods]] are claimed as a "process" (example: [[Bilksi]]) but some are claimed as a "machine" (example: [[State Street v. Signature Group (1999, USA)|State Street]]). | ||
− | + | ===USC 102=== | |
About [[prior art]]. | About [[prior art]]. | ||
http://www.patentlyo.com/patent/2008/10/bpai-under-102e.html | http://www.patentlyo.com/patent/2008/10/bpai-under-102e.html | ||
− | + | ===USC 103=== | |
Nonobviousness analysis. | Nonobviousness analysis. | ||
(see patently-o's discussion of [http://www.patentlyo.com/patent/2008/10/nonobvious-yet.html nonobvious and anticipated]) | (see patently-o's discussion of [http://www.patentlyo.com/patent/2008/10/nonobvious-yet.html nonobvious and anticipated]) | ||
− | + | ===USC 273=== | |
About "prior user rights for business methods". | About "prior user rights for business methods". | ||
− | + | ===USC 284=== | |
[[calculating infringement damages in the USA|damages]] | [[calculating infringement damages in the USA|damages]] | ||
− | + | ===USC 285=== | |
Attorney fees | Attorney fees | ||
− | + | ===USC 287(c)=== | |
Medical activities exempted from remedies - or patentable but the doctor isn't liable. | Medical activities exempted from remedies - or patentable but the doctor isn't liable. |
Revision as of 11:37, 10 May 2010
Legislation in the USA gives no direct indication about whether software ideas should be patentable. Discussion thus usually focusses on case law in the USA.
Contents
The constitution
The constitution allows for the posibility of patents to exist to promote the useful arts. Given the studies showing that patents harm software progress, this seems to clearly leave software patents as unconstitutional.
Of possible relevence is the Eldred v. Ashcroft ruling, where the court deferred to Congress in interpreting this aspect of the constitution. Congress has not legislated specifically on the validity of software patents.
The US Code
USC 101 (patentable subject matter)
About "Statutory categories", i.e. patentable subject matter), the legislation says:[1]
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title [35 USCS Sects. 1 et seq.].
The word "process" was added in the 1950s. Most software patents and business methods are claimed as a "process" (example: Bilksi) but some are claimed as a "machine" (example: State Street).
USC 102
About prior art.
http://www.patentlyo.com/patent/2008/10/bpai-under-102e.html
USC 103
Nonobviousness analysis.
(see patently-o's discussion of nonobvious and anticipated)
USC 273
About "prior user rights for business methods".
USC 284
USC 285
Attorney fees
USC 287(c)
Medical activities exempted from remedies - or patentable but the doctor isn't liable.