President's ‘We the People' Website Includes Well Supported Software Patent Ban Petition

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The Obama administration's official “We the People” website allowing individuals to post petitions and seek signatures from like-minded Americans went live Sept. 23, and 65 petitions were created immediately.

Over the weekend, a petition to “Direct the Patent Office to Cease Issuing Software Patents” received over 10,000 signatures, twice the minimum amount required to force the administration to provide a response.

The petition reads:

The patent office's original interpretation of software as language and therefore patentable is much closer to reality and more productive for innovation than its current practice of issuing software patents with no understanding of the patents being issued.

Under the patent office's current activity, patents have been come a way to stifle innovation and prevent competition rather than supporting innovation and competitive markets. They've become a tool of antitrust employed by large companies against small ones.

To return sanity to the software industry—one of the few industries still going strong in America—direct the patent office to cease issuing software patents and to void all previously issued software patents.

The closing date for signing the petition is Oct. 22, but it passed the threshold in three days, invoking the president's promise of a response, most likely from an administration official other than the president himself.

“We will do our best to respond to petitions that cross the signature threshold in a timely fashion, however, depending on the topic and the overall volume of petitions from We the People, responses may be delayed,” according to a frequently-asked-questions page on the website.

In addition to a response from the administration, “we'll make sure that the petition is sent to the appropriate policy makers in the Administration.” Of course, the Patent and Trademark Office's guidelines on granting software patents originate from the Patent Act and the courts' interpretation of the act's provisions, so it is unclear what the administration will accomplish by sending the petition to administration “policy makers” in the PTO.

If anything, the U.S. Court of Appeals for the Federal Circuit is broadening patent eligibility rules for software patents, as evidenced just over a week ago in Ultramercial LLC v. Hulu LLC, No. 2010-1544 (Fed. Cir. Sept. 15, 2011) (182 PTD, 9/20/11). The petitioners' hope for a change is then more reliant on a U.S. Supreme Court decision overturning the Federal Circuit's jurisprudence or Congress deciding to pursue more changes to the Patent Act after the six-year patent reform battle finally succeeded Sept. 16. And at least one patent community member asserted that the patent reform bill was pointed in the opposite direction, toward increased availability of patent protection for software.

“While this is an old debate, the passing of the new patent reform laws seems to have sparked interest in the topic again,” according to Leigh J. Martinson, of McDermott Will & Emery, Boston. “Certainly arguments can be made for both pro- and anti-software patent positions.

“However, a close review of the new legislation could lead one to believe Congress is actually encouraging the ‘individual inventor' to protect his patentable software ideas by substantially lowering the official patent office fees associated with the prosecution of patent.”

Martinson was referring to Section 10 of the new Pub. L. 112-29, which creates a “micro entity” category of patent applicants eligible for a 75 percent discount on patent application fees.

Of the 65 petitions on the Obama website, as of midday Sept. 26, 24 had passed the threshold, and the software patent ban petition was sixth in number of signatures. Leading the way with over 36,000 signatures was the petition to “Legalize and Regulate Marijuana in a Manner Similar to Alcohol.”


We the People website at https://wwws.whitehouse.gov/petitions#!/