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Today’s Times piece on the Supremos’ decision to review a lower court ruling
that narrowed the scope of business process patents is less than elucidating. Yes, the article
points out that the move is “troubling” to software developers but doesn’t
really explain why.
And when you think about it, it could be troubling or reassuring,
depending on whether one holds such patents or not. And just as many companies,
if not more, are likely not to hold such patents as to do so, and so would
welcome the narrowing of intellectual property rights here.
After all, software is at heart just a bunch of algorithms,
and math can’t be patented. So where do developers get off claiming they’ve a
right to monopolize something that’s known in the trade as “obvious” or based
on “a priori art?” The thing is, one person’s IP is another’s restraint of
trade.
Of course, those in the latter camp may worry that the
higher court may reverse the lower court decision rather than let the decision
stand, but the article doesn’t make that clear. As it’s written, it sounds as
if more fear that the SCOTUS will uphold the decision. But who really knows.
All of this makes me think this is a great subject for a
forum. So go on over there and weigh in.
On a related note, I see that SecTreas Geithner has said
absolutely nothing while in China, not at least judging from the big speech he was scheduled to deliver yesterday, about that country's stance toward IP, which is a big bugaboo for U.S.
companies.
Perhaps he’s been reassured by recent court decisions in China involving the German company Neoplan Bus and Japan’s Samsung, which favored
holders of patents and imposed substantial penalties on those found to infringe
them.
As a result of the decisions, as one patent lawyer I spoke
with recently, Ed Weisz of Cohen Pontani Liberman & Pavane in New
York City, put it, “Foreign companies should feel
better about the value of their patents.”
I’ve an email into U.S. Trade Rep Ron Kirk to see if he’s
going to mention any of this in his own speech today before a meeting of a U.S.-China business council, and
will update this to let you know what if anything I hear back.
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