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[FYI] (Fwd) FC: Has the U.S. Patent Office really reformed?

------- Forwarded message follows -------
Date sent:      	Wed, 21 Mar 2001 15:14:49 -0500
From:           	Declan McCullagh <declan@well.com>
To:             	politech@politechbot.com
Subject:        	FC: Has the U.S. Patent Office really reformed?
Send reply to:  	declan@well.com

   Has the U.S. Patent Office Really Reformed?
   posted by vergil on Wednesday March 21, @12:50PM
   from the extraordinary-claim-needs-extraordinary-proof dept.

   According to a brief article in today's Wall Street Journal
   entitled "Fewer Patents on Methods Get Clearance," the
   U.S. PTO "has drastically reduced the pace of issuing controversial
   business-method patents, by setting up bureaucratic roadblocks that
   have angered some information-technology investors." Is this claim
   significant? Has the U.S. government truly reformed its habit of
   granting patents to business methods? I think the answer's "No" for
   two reasons.

   What exactly is a "Business Method Patent?"

   Most tech-savvy folks -- particularly journalists -- use the phrase
   "business method patent" as a blanket perjorative applying to
   patents on Internet processes, software and methods of doing
   business. The terms "business method patent," "software patent" and
   "web patent" are used interchangably in the vernacular to refer to
   the recent flood of perceived broad and obvious patents having
   something to do with the Internet.

   However, when a representative of the U.S. PTO says "business
   method patent", he's referring to a specific classification of
   patents - Class 705 "Data processing: Financial, Business Practice,
   Management, or Cost/Price Determination." The drastic reduction in
   business method patents mentioned in the WSJ article almost
   certainly refers to Class 705 issuances exclusively.

   The two most frequently mentioned examples of allegedly obvious
   business method patents (Priceline's name-your-price patent and
   Amazon's one-click patent) are members of Class 705. Yet most of
   the Internet-related patents lambasted daily in the press and
   discussion forums like Slashdot are not Class 705 -- British
   Telecom's "Hyperlink Patent" falls under Class 711, Microsoft's
   patent on style sheets is designated Class 707, and Apple's
   "Multiple Theme Engine" patent is Class 345.

   The U.S. PTO has made some progress in applying greater scrutiny to
   the torrent of business method patents. A new, comprehensive
   website has been set up, and a "Business Methods Patent Initiative"
   launched. Unfortunately, these measures -- including second review
   and expanded mandatory searches -- are limited to Class 705 patent
   applications. I've seen little evidence that the U.S. PTO's newly
   implemented "bureaucratic roadblocks" have weeded out potentially
   broad, non-novel and obvious patent applications that fall under
   classifications other than 705. One such example may be Microsoft's
   recently granted (Jan. 16, 2001) patent 6,175,833 that seems to
   claim the venerable concept of running automatic web-polls.

   Exporting American "Innovation" Abroad

   While the U.S. PTO struggles to reform its examining procedures,
   and members of Congress propose potential solutions (such as the
   Business Method Patent Improvements Act of 2000), at least one
   other branch of the U.S. government -- the Office of the U.S. Trade
   Representative -- appears to have been laboring to ensure that
   other nations adopt the controversial American practice of granting
   patents to business methods. (USTR is the federal agency charged
   with negotiating and enforcing America's trade positions with other

   For instance, consider the following excerpt from a October 24,
   2000 Memorandum of Understanding "on Issues Related to the
   Protection of Intellectual Property Rights Under the Agreement
   Between the United States and Jordan on the Establishment of a Free
   Trade Area":

   "5. Jordan shall take all steps necessary to clarify that the
   exclusion from patent protection of 'mathematical methods' in
   Article 4(B) of Jordan's Patent Law does not include such 'methods'
   as business methods or computer-related inventions." 

   U.S. government representatives took a similar negotiating position
   in a March 2, 2001 "expert level" meeting between "United States
   and Japanese government officials." According to a fact sheet on
   the USTR website:

   "The United States urged the Japanese Government to take a number
   of measures in this area, including ... clarifying its laws to
   ensure that the personal use exception for copying is not abused in
   the digital environment; and protecting business method patents." 

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