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The Death of Google's Patents?

That is the title of a provocative new article arguing that the U.S. Patent and Trademark Office's newly developed position on patentability will invalidate countless software patents, notably among them Google's patent on its Web searching technology. The article, written by George Washington University Law School Professor John F. Duffy, was published this week on the patent law blog Patently-O (also in PDF).

In a series of recent cases, Duffy notes, the USPTO has argued in favor of imposing new restrictions on the scope of patentable subject matter. In the most recent, the en banc appeal In re Bilski, the USPTO argues that process inventions generally are unpatentable unless they "result in a physical transformation of an article" or are "tied to a particular machine." While the case has attracted enormous attention among patent lawyers, most see it as affecting "only a few atypical patent claims," he writes.

That view is wrong, he argues, and to illustrate just how far off the mark it is, he considers the impact of the USPTO's position on Google's PageRank technology. In light of two recent USPTO decisions, he asserts, 'it is increasingly hard to see how Google’s PageRank patent survives."

Nor is that one patent an anomaly in Google’s portfolio. Indeed, other patents owned by Google include claims that do not even include a formal limitation to a computer. Google might have thought that the patent system would surely protect new technological developments that are highly creative and socially valuable. The PTO’s new position proves that view mistaken.

Depending on your perspective, you may see the death of Google's PageRank patent as good news or bad news. But aside from the implications for any particular patent, the greater worry is that the USPTO's proposed rule would throw open any number of patents to uncertainty and give rise to "previously unimagined litigation." If that happens, Duffy contends, "vast industries of modern innovation" will be put on hold.

Posted by Robert J. Ambrogi on July 24, 2008 at 11:20 AM | Permalink | Comments (0)


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