Boston, Massachusetts: Software Patents Law Firm
Robert Plotkin, P.C.
Boston, Massachusetts
Toll-Free: 877.651.8039 | Office Phone: 978.318.9914
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Attorney Robert Plotkin has been quoted in National Magazine, the magazine of the Canadian Bar Assocation, on the impact of the recent In re Bilski decision on business method and software patents in the U.S. and internationally. In the article, Attorney Plotkin notes that the court in Bilski did not hold that software is not patentable, despite some press coverage of the case to the contrary. Instead, he points out that the patent claim at issue in the Bilski case said nothing about a computer and that the court explicitly stated in its decision that it was not deciding whether software was patentable.
Rather, the court held that a method for hedging financial risks which was not tied to a machine and which did not transform an article into a different state or thing was not patentable subject matter. Such a conclusion tells us nothing about whether software, which is executed by a machine (a computer) and which transforms the computer's memory into different states, is patentable subject matter, particularly since many previous court opinions have held that software is patentable subject matter precisely because of these characteristics of software.
In fact, the court in Bilski went out of its way to make clear that it did not intend to render software unpatentable through its decision, when it said:
- "[A]lthough [we] have been invited to do so . . ., we decline to adopt a broad exclusion over software or any other such category of subject matter beyond the exclusion of claims drawn to fundamental principles set forth by the Supreme Court."
- "[T]he process claim at issue in this appeal is not, in any event, a software claim. Thus, the facts here would be largely unhelpful in illuminating the distinctions between those software claims that are patent-eligible and those that are not."
Despite such clear statements by the court, many in the press and elsewhere continue to argue that Bilski renders software unpatentable. Such misrepresentations by the press only emphasize the need to obtain expert advice on your intellectual property strategy for protecting your computer software and hardware technology.
