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Difference between revisions of "Legislation in the USA"

(USC 101 (patentable subject matter): correct year: 1952)
(The US Code: explicit subtitles)
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The word "process" was added in 1952.  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 1952.  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===
+
===USC 102 (prior art)===
 
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===
+
===USC 103 (obviousness)===
 
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===
+
===USC 273 (business methods limitation)===
  
 
About "prior user rights for business methods".
 
About "prior user rights for business methods".
  
===USC 284===
+
===USC 284 (damages)===
 
[[calculating infringement damages in the USA|damages]]
 
[[calculating infringement damages in the USA|damages]]
  
===USC 285===
+
===USC 285 (attorney fees)===
 
Attorney fees
 
Attorney fees
  
===USC 287(c)===
+
===USC 287(c) (medical limitation)===
  
 
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 09:11, 11 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.

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 1952. 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 (prior art)

About prior art.

http://www.patentlyo.com/patent/2008/10/bpai-under-102e.html

USC 103 (obviousness)

Nonobviousness analysis.

(see patently-o's discussion of nonobvious and anticipated)

USC 273 (business methods limitation)

About "prior user rights for business methods".

USC 284 (damages)

damages

USC 285 (attorney fees)

Attorney fees

USC 287(c) (medical limitation)

Medical activities exempted from remedies - or patentable but the doctor isn't liable.