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Google's Patents Are About to be Killed? Calm Down, Everyone. It's Just Advocacy, a/k/a FUD

By Pamela Jones et al.

I'm getting so many emails asking me what's happening with Google's patents and asking me to explain what is going on. OK. Nothing. Just a little legal FUD. Or some excellent advocacy, depending on your point of view.

What has everyone beside themselves with either joy or panic is an article on Patently-O provocatively titled, The Death of Google's Patents?, by Professor John Duffy, which argues that the USPTO's position in some recent patent cases will, if adopted, cause the sky to fall on software patents unless they are tied to a particular computer -- and then The End Will Come for patent law as we know it:

The logic of the PTO's positions in Nuijten, Comiskey and Bilski has always threatened to destabilize whole fields of patenting, most especially in the field of software patents. If the PTO's test is followed, the crucial question for the vitality of patents on computer implemented inventions is whether a general purpose computer qualifies as a "particular" machine within the meaning of the agency's test. In two recent decisions announced after the oral arguments in the Bilski case, Ex parte Langemyr [PDF] (May 28, 2008) and Ex parte Wasynczuk [PDF] (June 2, 2008), the PTO Board of Patent Appeals and Interferences has now supplied an answer to that question: A general purpose computer is not a particular machine, and thus innovative software processes are unpatentable if they are tied only to a general purpose computer.

I wish. But as I'll show you, this is advocacy, not current truth. Might I suggest you read the first two comments under the article? Professor Duffy, the author of the article about Google's patents, represents Regulatory Datacorp, one of the amici in the Bilski case. There were zillions of them filed, including one by Red Hat explaining the FOSS point of view. Here's Duffy's brief [PDF].

Professor Duffy was asked by the court to present oral arguments. You can hear him speak at the en banc hearing, because we posted the link in our article that included Groklaw's report. Remember Webster attended for us? Go to this page, then search by the keyword Bilski in the top box, marked Captions. The results page is set up so you have to scroll down to find the audio.

I believe the author chose Google's patents to galvanize patent lawyers and patent owners in large corporations to get on the ball and try to change what he views as a horrific future. Lawyers do write articles sometimes because they know judges can be influenced by what they read. It's one lawyer's opinion and analysis, in other words, one with a stake in the outcome. Would you like to see what another lawyer says about the subject, in contrast?

Full post as published by Groklaw on July 24, 2008 (boomark / email).