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Patentability of Software after Bilski: How the Federal Circuit Will and Should Develop Doctrine to Encourage Free Software

-- By ThomasHou - 19 Oct 2011

Section I: Although Bilski represents an opportunity to shape eligible subject matter doctrine, the Federal Circuit will be unlikely to limit it for computer software.

Subsection A: It is well-entrenched in Federal Circuit jurisprudence that computer software is eligible subject matter, which Bilski did not disturb.

Subsection B: Bilski offers several guidelines for the Federal Circuit to limit computer software patents.

Subsub 1: The machine-or-transformation test for process patents can be stringently interpreted to require tying the software to a particular type of machine or transformation, rather than to computers in general.

Subsub 2: The Supreme Court's early jurisprudence concerning mathematical formula and abstract ideas can be used to invalidate many potential computer software patents.

Section II: Bilski does not foreclose the use of other substantive requirements for patentability, which should be raised high for computer software patents.

Subsection A: The nonobviousness requirement should be construed strictly, and include broad consideration of pertinent prior art and secondary factors.

Subsection B: Institutional changes for the Federal Circuit and PTO are necessary for others to challenge the novelty of computer software patents, especially using third-party introduced prior art.

Section III: What Free Software users should consider when confronted with a patent infringement claim

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