Academic Podcast Discusses Bilski
A relatively new site called the Intellectual Property Colloquium is posting round table "NPR-like" discussions relating to IP. The most recent show, hosted by Doug Lichtman from the UCLA School of Law, discusses In Re Bilski, and includes guests John Duffy (GWU) and Rob Merges (UC Berkley).
The podcast is slickly produced and is definitely worth a download. You also don't need an iPod to listen to the show - streamed audio is also available. Also, you can request CLE credit for listening.
For more, click here.
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I wanted to download this podcast to my iPod, to listen to while on the train. When I tried to download the podcast in Safari, Apple's browser, nothing happened. Oddly enough, the podcast downloaded uneventfully in Explorer.
Tim McCarthy
I was puzzled by a comment by one of the participants in the podcast panel (forget which person). He noted that the PTO has continued to issue "software on a disk" patents and that these would apparently continue to issue under the Bilski precedent.
As a computer professional (but not a lawyer, as may become evident below), I can't understand the logic of that. Software on a disk is nothing more than a set of instructions written on media. By definition, the instructions must be written in an unambiguous and generally-known language. Functionally identical instructions could be written with a pencil on paper (and in fact are, every day, by programmers doodling their ideas).
Instructions on paper can be converted easily to instructions on a disk and vice-versa by anyone skilled in the art of computer programming.
Rhetorical question: So why is software-on-a-disk patentable and the same method written in ink on paper is not? Conversion of ink-on-paper methods to software is not usually innovative. If the conversion is innovative, the innovation consists of a novel algorithm (and thus not patentable under 101), not in the conversion process itself.
My conclusion: A reasonable distinction between software-on-a-disk and ink-on-paper is impossible. They are conceptually and functionally the same.
This is but one inconsistency in current case law. Seems to me that we are a long way from getting consistent case law on patentability of methods.
They are referring to Beauregard claims (see http://www.jmls.edu/JCIL/17/draeger.html), where software is claimed as a manufactured product, e.g.,:
"a program storage device readable by a machine, tangibly embodying a program of instructions executable by the machine to perform method steps comprising . . ."
Maybe the dilemma is that the EPO has no 101 problem with Beauregard claims, and the USPTO doesn't relish being more anti-Applicant than the EPO?.
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