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Legislation in the USA

Revision as of 11:37, 10 May 2010 by Ciaran (talk | contribs) (constitution)

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 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

damages

USC 285

Attorney fees

USC 287(c)

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