Judge Plager: Regrets "Unintended Consequences" of State Street
Recently, CAFC Senior Judge Jay Plager spoke at a symposium at George Mason University, where he called for a "rethinking" of several aspects of patent law by returning to its origins in property law.
According to BNA,
[Plager] called for a renewed focus on setting recognizable patent ownership boundaries and on strengthening the notice function that patents are intended to serve. Such a reevaluation might require a reassessment of whether software and business methods are patentable subject matter, Plager said. It might lead to limiting a patent’s scope to what was known at the time of the application filing, and to an abandonment the doctrine of equivalents as a basis for patent infringement liability.
Also,
Plager said he regretted the unintended consequences of the decisions in State Street Bank and AT&T. Those rulings led to a flood of applications for software and business method patents, he noted. If we “rethink the breadth of patentable subject matter,” he said, we should ask whether these categories should be excluded from patent protection.
See post from Technological Innovation and Intellectual Property blog here.
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Unintended? What sort of a weasel word is that then? How about "unforeseeable"? Isn't that a more appropriate measure, when the CAFC is writing a landmark Decision? For the CAFC panel, were the consequences of State Street really unforeseeable?
I thought it was Congress' job to consider the consequences of their laws.
Silly me.
We should be ruled by elites in black robes, not legislators elected by the public.
as to returning to “origins in property law” and whether or not software and business methods should be excluded, where does he get that from the Constitution? I don’t get that from “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. Patents have always hinged on basic principles, ideas, and insight. Edison’s basic discovery for the light bulb was the importance of the vacuum in the bulb. All inventions come down to similar insight, whatever the field may be. We have over 200 years of patent law to determine what is novel and unobvious. The only plausible explanation why we need to make such drastic changes now is that a number of very large tech and financial services firms now find they cannot so easily steal what small entities have risked all for and found it more convenient to either change the laws or “persuade” those who are caretakers of the law. If you don’t like it, invent it yourself next time!
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