One thing I've noticed (and probably anyone else who has bothered to read one) is that patents are often written in broad terms so that any method used to reach a claim is covered. I always thought that patents were intended to cover one specific method for one particular claim.
A recent court case, Ariad v Lilly concerned a patent on a method for reducing genetic expression. The patent claimed that "any compound" that reduced this particular genetic expression was covered by the patent. The court touched upon the point when they said that the Ariad patent was invalid for trying to cover "any compound" that could reduce genetic expression.
In so many words they said that patents cannot be designed to preclude innovation in the future, which is precisely the problem with the way that patents are prosecuted and enforced. Everyone who prosecutes a patent nowadays is trying to preclude innovation in one particular area of business.
As I was saying earlier, the claims in the patent attempt to cover all methods that reach the claims. That would be a patent on an idea, not an invention. A patent on a software invention could only reach to one particular method for reaching a claim.
So for a software patent, one particular method would have to include code. Why? The court in Ariad also pointed out that the description of the invention in the patent must disclose enough information to allow one ordinarily skilled in the art, to recreate the invention without unnecessary experimentation.
This really gets back to whether or not you're patenting an idea or an invention. That is the question we should be asking.
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