Recent US patent rulings could undermine the patentability of software in the US at a stroke, a leading US patent expert has warned.
Patents as lucrative as that of the PageRank system that underpins Google's business are under threat, the expert warned.
Duffy goes on to apply the new terms to the patent-protected PageRank system which underpins Google's entire business and finds that under the rules its patent is invalid. Though the patent is owned by Stanford University, where it was developed by Google founders Larry Page and Sergey Brin, Google holds an exclusive licence for it.
The rules require first that an invention create a 'physical transformation of an article'. Duffy said that cannot be said to be true of Google's system.
"The total output from the Google patent is just a mass of intangible data, and worse still it is intangible data about intangible documents. Simply put, there’s no 'physical,' no 'transformation,' and no 'article.'," wrote Duffy. "It seems impossible to imagine that a process would qualify where it only scores virtual documents by virtual links to other virtual documents."
In another case, that of Langmeyr, Duffy found that the USPTO had said that the ability of software to be run on any computer excluded it from patentability.
He said that the Langemyr ruling found that an ability of software to run on any machine meant that it was not tied, in the phraseology of the USPTO, to "any particular machine", and therefore cannot rely on that in order to become patentable.
"In these crucial passages, the PTO Board has provided the foundation for rejecting and invalidating huge swaths of software patents including not merely Langemyr’s claims, but those of Google, Microsoft, IBM and many other companies," wrote Duffy. "The constriction is truly breathtaking, given that the PTO’s position pushes outside the patent system Google’s PageRank patent, even though that patent covers one of the most widely known and commercially successful innovations of our era."
"Vast industries of modern innovation must now wait to see whether the courts will follow the [USPTO]'s lead," wrote Duffy.