While we’re still waiting for the Supreme Court to rule on the Bilski case, which may or may not directly impact the question of software patents, JJ points out that the Patent Office has released some new rules on patentability, based on the appeals court ruling in Bilski (technically, the Patent Office issued a ruling, back in August, but just recently declared that ruling “precedential”). The full ruling can be found here (pdf). The key bit:
For a claimed machine (or article of manufacture) involving a mathematical algorithm,1. Is the claim limited to a tangible practical application, in which the mathematical algorithm is applied, that results in a real-world use (e.g., “not a mere field-of-use label having no significance”)?
2. Is the claim limited so as to not encompass substantially all practical applications of the mathematical algorithm either “in all fields” of use of the algorithm or even in “only one field?”If the machine (or article of manufacture) claim fails either prong of the two-part inquiry, then the claim is not directed to patent eligible subject matter.
As many are noting, this remains incredibly vague, though the Patent Office is limited by what the courts have said. One would hope that the Supreme Court’s ruling in Bilski might lend some clarity, but the oral arguments suggested that the court might try to steer the decision away from anything having to do with software patents entirely. So, we may still have something of a mess for quite some time.
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