Patentable subject matter

Posted by Anton Hughes on Tuesday, December 05, 2006 with No comments
I'm busy researching an article on the limits of patentable subject matter, and I just wanted to jot down a few things without being restricted by the structure of the article. So here goes:

  1. There are a lot of resources available on the BustPatents site which are pretty useful for discussing US law.
  2. The fine arts/useful arts distinction seems like a good way to patrol the boundaries of the copyright v patents paradigms. The mere intellectual information and printed matter doctrines also seem to perform this function. Part of the problem at the moment is that patent law is spreading into traditional copyright areas like movie scripts.
  3. I've got a good article which talks about the dual nature of data structures, and how they have both physical and logical aspects, and how this is generally misunderstood by the courts. This article is really great because it explains why software is a problem to some extent in that it also has logical aspects as well as physical aspects.
  4. The aforementioned article also underlies the discussion in another article on how movies could become patentable as a result of misunderstanding this dual logical/physical nature in software and data structures. Basically, a printout of a program is patentable on the current US approach, which kind of kills off the printed matter doctrine. Then it isn't much of a stretch for a 'functional' document such as a planned movie structure to be considered similarly patentable.
  5. I need to add something in about moving away from a focus on effects to a focus on the contribution. The trouble in Australian law is the idea that you have to focus on the whole of the invention when applying the subject matter test (same as in US law). The problem with this approach is that it ignores the practical impact of the patent. If you have new algorithm on an old computer, and you use the computer to satisfy the physicality requirement, you ignore the fact then that the patent in effect gives a monopoly on the algorithm, because the only use which would be made of it is on a computer. It makes it too easy for patent lawyers to use computers as a simple way of fitting the form of requirements but not the function. This point is tied to the duality of software and data structures as well.
  6. On the patenting of fine arts, Ahronian has a website which shows how much art is now under patent. So much for that distinction, hey.