It appears the Obama administration has kicked off an official petition website titled “We the People,” (strange name) where average Americans can propose and vote on “petitions” for consideration by yes none other than the White House. Here is a petition cross a given popularity threshold say 5,000 signatures within 30 days, will get an official response from the White House.
Well surprising enough the first petitions focused on software patents, and asked President Obama to “direct the patent office to cease issuing software patents and to void all previously issued software patents.” Well what did the White House have to say to this request? Well in an issued statement its response was touting the recently passed America Invents Act, and Obama technology advisor Quentin Palfrey says the executive branch’s hands are guess what? Well if you guessed “tied”, you would be a winner! As I quote:
There’s a lot we can do through the new law to improve patent quality and to ensure that only true inventions are given patent protection. But it’s important to note that the executive branch doesn’t set the boundaries of what is patentable all by itself. Congress has set forth broad categories of inventions that are eligible for patent protection. The courts, including the US Supreme Court, have interpreted the statute to include some software-related inventions. Even before the legislation passed, the Administration took other important steps to ensure that only high-quality patents are issued, and that we curb or invalidate overly-broad software patents. For example, the USPTO recently issued guidance to its examiners that tighten up the requirements that inventors fully describe, specify, and distinctly claim their inventions so that vague patents are not issued. We’ve also issued new guidance to examiners to help ensure that patents cover only “new” and “non-obvious” inventions.
While there is of course truth to this as the rules Congress established for patent eligibility tend to be extremely broad. This means decisions about what can be patented and particularly, if it even includes software are pretty much made by the courts. So the courts have been confused on the subject, as the Supreme Court has traditionally been skeptical of software patents. yet it hasn’t ruled on the subject since 1981 meaning the laws in general have been shaped by the software-patent-friendly lower courts such as the United States Court of Appeal in the Federal Circuit.
Yet again as the Patent Office still has a lot of influence as it takes the decisions of the court and translates them into specific guidelines for examiners to follow. Meaning when the Federal Circuit is little vague if you will, the USPTO can (and should) err on the side of rejecting software patents. The hope would be to move things to a less software-patent-friendly direction.
However what isn’t pointed out in the Obama response is they can also influence the law in another ways. For example when the Supreme Court considers a patent case, it invites the administration to submit a brief. Here it will also give the solicitor general the opportunity to participate in oral arguments and should the White House become convinced that the idea of software patents were detrimental to the American economy. Well it could than file briefs encouraging the Supreme Court to reinstate its original ban on software patents. So while the Supreme Court isn’t required to accept the White House’s advice, it sure would carry a significant amount of weight in the process. Wouldn’t it…