By Timothy B. Lee | The Washington Post
Forget patenting an invention. These days, companies patent conceptual categories for future inventions.
During the first dot-com boom, Amazon famously patented the concept of buying things online with one click. More recently, companies have patented concepts such as scanning documents to an e-mail account, clearing checks electronically and sending e-mail over a wireless network.
The problem with these kinds of abstract patents is that lots of people will independently discover the same basic concept and infringe by accident. Then the original patent holder — who may not have come up with the concept first, or even turned the concept into a usable technology — can sue. That allows for the kind of abusive litigation that has been on the rise in recent years.
A lawsuit over an Internet advertising patent offered a key appeals court an opportunity to rein in these abstract patents. Instead, the court gave such patents its endorsement on Friday, setting the stage for rampant patent litigation to continue unchecked.
Statement by Robert Iussa, chair Rose Law Group Intellectual Property Department:
“This is a tough one…and probably the reason for the split by the Fed Circuit and the request for reconsideration by the Supreme Court. Abstract ideas cannot be patented and the line as to what is abstract and what is not is not always so clear. Just because a patent has broad applicability does not mean it shouldn’t be enforced. On the flip side, merely setting forth an idea with little support on how it operates should not be patentable.
“We also have a problem reconciling such technology in light of the pace that technology advances. Take the scanning to e-mail example. Today, it seems a trivial and broad application for scanning. But when scanning documents was a new concept…or even e-mail, scanning a document to directly to your e-mail is a pretty neat advancement. Patents have a life of 20 years from when they are filed…that’s eons given how fast technology moves. The Internet in its worldwide application hasn’t even been around that long… What’s the answer? Shorter patent terms?
“I think the Supreme Court will take this up and will resolve it by providing some sort of checklist to review patents on a case by case basis. Really, only in this manner can a patent be reviewed to determine if it is actually a broad concept, or one that has morphed into what appears a broad concept merely by the advancement of accepted technology.”
