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Difference between revisions of "Shielding software from litigation"

(US surgeon's precedent: sometimes called the "''Ganske compromise legislation''":)
(Advantages: # This creates a clear situation for already-granted software patents, rather than leaving a question mark over whether they would be upheld or invalidated by a court after a change i)
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# Interpretation of the law lies directly with the judge, instead of the patent office.
 
# Interpretation of the law lies directly with the judge, instead of the patent office.
 
# The wording of the patent is no longer important, so the ingenuity of patent lawyers for finding loopholes and confusing wordings can no longer influence the chances of a lawsuit succeeding against a software developer.
 
# The wording of the patent is no longer important, so the ingenuity of patent lawyers for finding loopholes and confusing wordings can no longer influence the chances of a lawsuit succeeding against a software developer.
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# This creates a clear situation for already-granted software patents, rather than leaving a question mark over whether they would be upheld or invalidated by a court after a change in patent eligibility criteria.
  
 
==US surgeon's precedent==
 
==US surgeon's precedent==

Revision as of 08:43, 6 November 2012

Another approach to ending the problems of software patents would be a law saying, as Richard Stallman puts it, "that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement."[1]

The result is the same, but this approach may be much simpler to implement.

Advantages

  1. The main advantage is that this avoids the need for a legal definition of "software patent". Patents no longer have to be classified as software or non-software. "Software" patents can still be granted, but no patents can be used to attack people who develop or distribute software.
  2. Interpretation of the law lies directly with the judge, instead of the patent office.
  3. The wording of the patent is no longer important, so the ingenuity of patent lawyers for finding loopholes and confusing wordings can no longer influence the chances of a lawsuit succeeding against a software developer.
  4. This creates a clear situation for already-granted software patents, rather than leaving a question mark over whether they would be upheld or invalidated by a court after a change in patent eligibility criteria.

US surgeon's precedent

Such a shield already exists since 1997 for surgeons in the USA in 35 U.S.C. Section 287 (c), sometimes called the "Ganske compromise legislation":

(c)

(1) With respect to a medical practitioner’s performance of a medical activity that constitutes an infringement under section 271 (a) or (b), the provisions of sections 281, 283, 284, and 285 shall not apply against the medical practitioner or against a related health care entity with respect to such medical activity.
(2) For the purposes of this subsection:
(A) the term “medical activity” means the performance of a medical or surgical procedure on a body, but shall not include
(i) the use of a patented machine, manufacture, or composition of matter in violation of such patent,
(ii) the practice of a patented use of a composition of matter in violation of such patent, or
(iii) the practice of a process in violation of a biotechnology patent.
(B) the term “medical practitioner” means any natural person who is licensed by a State to provide the medical activity described in subsection (c)(1) or who is acting under the direction of such person in the performance of the medical activity.
(C) the term “related health care entity” shall mean an entity with which a medical practitioner has a professional affiliation under which the medical practitioner performs the medical activity, including but not limited to a nursing home, hospital, university, medical school, health maintenance organization, group medical practice, or a medical clinic.
(D) the term “professional affiliation” shall mean staff privileges, medical staff membership, employment or contractual relationship, partnership or ownership interest, academic appointment, or other affiliation under which a medical practitioner provides the medical activity on behalf of, or in association with, the health care entity.
(E) the term “body” shall mean a human body, organ or cadaver, or a nonhuman animal used in medical research or instruction directly relating to the treatment of humans.
(F) the term “patented use of a composition of matter” does not include a claim for a method of performing a medical or surgical procedure on a body that recites the use of a composition of matter where the use of that composition of matter does not directly contribute to achievement of the objective of the claimed method.
(G) the term “State” shall mean any State or territory of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
(3) This subsection does not apply to the activities of any person, or employee or agent of such person (regardless of whether such person is a tax exempt organization under section 501(c) of the Internal Revenue Code), who is engaged in the commercial development, manufacture, sale, importation, or distribution of a machine, manufacture, or composition of matter or the provision of pharmacy or clinical laboratory services (other than clinical laboratory services provided in a physician’s office), where such activities are:
(A) directly related to the commercial development, manufacture, sale, importation, or distribution of a machine, manufacture, or composition of matter or the provision of pharmacy or clinical laboratory services (other than clinical laboratory services provided in a physician’s office), and
(B) regulated under the Federal Food, Drug, and Cosmetic Act, the Public Health Service Act, or the Clinical Laboratories Improvement Act.
(4) This subsection shall not apply to any patent issued based on an application the earliest effective filing date of which is prior to September 30, 1996.

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