[ICPL 2008] Software Patents for Higher Ed – Bruce Wieder

Bruce is an attorney at DowLohnes. Copyrights are intended to protect the expression of an idea, while patents are meant to protect the idea itself. Patent covers process, machine, manufature, or composition of matter. What you invent has to be new, useful, and nonobvious. Supreme Court said “phenomena of nature…mental processes, and abstract intellectual concepts … Continue reading “[ICPL 2008] Software Patents for Higher Ed – Bruce Wieder”

Bruce is an attorney at DowLohnes.

Copyrights are intended to protect the expression of an idea, while patents are meant to protect the idea itself.

Patent covers process, machine, manufature, or composition of matter. What you invent has to be new, useful, and nonobvious.

Supreme Court said “phenomena of nature…mental processes, and abstract intellectual concepts are not patentable”

In 1998 and 1999 the Federal Circuit ruled that business processes are patentable.

Typically patent examiners look at previously issued patents to establish prior art – but if new things are patentable, there won’t be previous patents.

In September, the court ruled (Nuijten) that a signal was not a process or machine – court said that articles of manufacture are “tangible articles or commodities. A transient eletrical or electircal transmission does not fit within that definition.” Appeal to Supreme Court is pending.

In re Comiskey the court rule that patent “does not allow patents on … systems that depend for thei r operation on human intelligence alone…”

Blackboard patent was issued in 2006. Claim 36 of that patent claim has the relevant issues. Blackboard sued Desire2Learn for infringement. In general, it’s easier to prove infringement than invalidity. In Feb 2008 the jury in Lufkin Texas found that claims 36-38 had not been proven invalid and had been proven infringed. Both parties are appealing. Desire2Learn says it migrated all users to a new version that doesn’t infringe (a “design-around”). Blackboard asked to have Desire2Learn in contempt, which the court denied (which is not the same as a finding of no infringement).

Meanwhile, the Software Freedom Law Center and Desire2Learn filed requests for reexamination of the patent claims. The PTO ordered reexamination. With reexamination there is no assumption of validity. On March 25 the PTO rejected all of the claims, and blackboard filed its response in May, adding new claims. BB petitioned the PTO to suspend reexamination pending final decision from the COurt of Appeals on the suit,, which the Software Freedom Law Center and Desire2Learn opposed – hasn’t been ruled on yet.

Looking at at least a year before we get a ruling on the suit, and two years before we get a ruling on the reexamination.

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A sad day at UW Tech

Today was the hardest day I’ve had in the fourteen years I’ve worked at the University of Washington. Today I dismantled the Emerging Technology organization that I spent the last two years building, and laid off five of the nine eTech staff. As many people already know, UW Technology is dealing with serious budget problems … Continue reading “A sad day at UW Tech”

Today was the hardest day I’ve had in the fourteen years I’ve worked at the University of Washington. Today I dismantled the Emerging Technology organization that I spent the last two years building, and laid off five of the nine eTech staff.

As many people already know, UW Technology is dealing with serious budget problems (here’s a Seattle Times story on it). I don’t claim to understand all of the factors that led to this crisis, but I do know that as a result we are forced to drastically cut our spending. Ron Johnson, our VP, has had to make difficult decisions about priorities – I don’t pretend to know whether I would make all of the same priority decisions, but I do know that I don’t envy him that task. I can understand that in a time of budgetary troubles these difficult decisions have to be made.

I don’t have to pretend to be happy about the result.

I am extremely proud of the eTech staff, the work we accomplished over the last eighteen months, and the relationships we built with a wide set of colleagues and partners across the institution. As a team we forged a unique and special working style, and I will miss it. The eTech staff are a supremely talented and knowledgeable group, and our organization will be the poorer without them.

To my laid off friends and colleagues – I’m sorry it’s come to this. It hurts. I wish you all success and better times ahead.

To the rest of the University and our partners and friends – I’m sorry we won’t have all the anticipated opportunities for forging new work together. We’ll see what capacity remains and where the priorities for our work lie as we regroup and try to move forward.