Patenting Software Inventions: Seven Golden Rules That Protect You Against Expensive Failures
I am starting a new article series here. It is about patenting software.
All my articles are written for a very specific person. And this one is written for you.
This describes you: you work with a computer, of course. You have probably seen a computer software patent or a computer software patent application before. And maybe you have even professional experience with patents and patent applications.
But you have never made a living by writing computer programs for others. And that makes a difference when talking about patents for computer-implemented inventions.
I am working with patents for computer-implemented inventions since 1993 and the following are my seven (7) Golden Rules.
And if these Golden Rules work for me, they may also work for you.
The Seven Golden Rules For Patenting Software
Golden Rule #1: when it comes to the patentability of a computer-implemented invention, you will not be able to find out useful prior art before you start drafting that patent application. The truly relevant prior art will come to you only while you are drafting, or even only after filing. Swallow this truth and learn to live with it. If you know what you are doing then you can start to draft a patent application for a computer-implemented invention without doing any prior art search at all.
Golden Rule #2, from a patent strategy point of view: patents for computer-implemented inventions can be helpful to promote negotiations for license fees but a lot of effort has to be put in when you want to make these software patents work for obtaining an injunction. The good thing is that this truth also applies to the defendant: a lot of effort has to be put in in order to defend yourself against an alleged infringement claim of a computer-implemented invention patent.
When it comes to the successful grant of a patent for a computer-implemented invention, this is Golden Rule #3 for you: describe the alleged invention in such details that it can be understood from the patent application itself – without citing additional external sources – why you think that it has tangible advantages. I am avoiding the legal term “technical” here because this term is too vague in the context of computer-implemented invention patents. “Tangible” means that it can be seen in the real world or even fall on your foot.
This is Golden Rule #4: for drafting your patent application, have a patent attorney on your team who has made a living as a programmer, for an extended period of time, before they became a patent attorney. Only they will be able to discern the important matter from what can be left away, for an enabling disclosure and for supporting the advantages of your computer-implemented invention with tangible facts.
And this is Golden Rule #5: for drafting and prosecuting your computer-implemented invention, have a patent attorney on your team who is an expert on so-called “selection inventions”. Knowledge in patenting pharmaceuticals can help, too. Many rejected computer-implemented invention patent applications could have been salvaged by opting for a selection invention.
Golden Rule #6: for drafting and prosecuting your computer-implemented invention, have a patent attorney on your team who has at least three (3) successful patent litigations under his belt, better more. Being right and winning one´s case are apples and oranges. And a seasoned litigation buff knows can tell you whether or not a patent commands respect.
Golden Rule #7: Don´t fall for buzzwords and for people who use them without the proper attitude. There is no “Artificial Intelligence” and there will never be one. We could not understand human intelligence over a period of many thousands of years and we still cannot today. How can these people seriously believe that we can conceive something that is intelligent without having that knowledge? Machines can be better than humans in reacting to changes, in many areas. But why does this mean that these machines can become intelligent one day?
Golden Rule #7 Explained: The Gold Standard For A Machine Being Called “Intelligent”
Stating these seven rules and explaining them are two different things again.
I shall start with explaining Golden Rule #7 by giving an example: what would “Artificial Intelligence” be like if it could ever become real.
The following short — very short — science-fiction story sets out where I come from. The very short story is short enough to be reproduced here. It was written by Frederick Brown. It appeared in 1954. Its title: “Answer.”
Dwar Ev ceremoniously soldered the final connection with gold. The eyes of a dozen television cameras watched him and the subether bore throughout the universe a dozen pictures of what he was doing.
He straightened and nodded to Dwar Reyn, then moved to a position beside the switch that would complete the contact when he threw it. The switch that would connect, all at once, all of the monster computing machines of all the populated planets in the universe — ninety-six billion planets — into the supercircuit that would connect them all into one supercalculator, one cybernetics machine that would combine all the knowledge of all the galaxies.
Dwar Reyn spoke briefly to the watching and listening trillions. Then after a moment’s silence he said, “Now, Dwar Ev.”
Dwar Ev threw the switch. There was a mighty hum, the surge of power from ninety-six billion planets. Lights flashed and quieted along the miles-long panel.
Dwar Ev stepped back and drew a deep breath. “The honor of asking the first question is yours, Dwar Reyn.”
“Thank you,” said Dwar Reyn. “It shall be a question which no single cybernetics machine has been able to answer.”
He turned to face the machine. “Is there a God?”
The mighty voice answered without hesitation, without the clicking of a single relay.
“Yes, now there is a God.”
Sudden fear flashed on the face of Dwar Ev. He leaped to grab the switch.
A bolt of lightning from the cloudless sky struck him down and fused the switch shut.
This short story comes with many assumptions that are shared among the members of the First Church of Artificial Intelligence and other followers of their religion.
One assumption is that life is digital as well as personal: digital processes, if given enough computing power, and if given sufficiently complex programming, which means programming by other computer programs, can and will become the same as personal knowledge.
For believers in God, there is the issue that the short story above makes the concept of man being created in the image of God incorrect. Will a computer exercise its judgment based on some form of ethics? The term “ethics” has to do with responsibility. But responsibility to whom? If individuals are responsible to God, and if there is a final judgment, does this apply to computers? Will they go to hell?
There is another assumption in that story: knowledge is power. So, greater knowledge is greater power. And in the end, the robots will inherit the earth.
There is still another assumption in that story: digital processes, over time, will gain knowledge and then even wisdom.
Artificial Intelligence Is A Religion
And this is the theology behind the Artificial Intelligence religion: man is the present supreme god, and he then creates digital processes that in turn create life. This newly created life possesses enormous knowledge and therefore possesses enormous power.
Followers of the Artificial Intelligence religion may have started to jump when they read the word “theology” for what they are promoting. It may not be called theology, but it is one.
The good news is this: the founder of the First Church of Artificial Intelligence is closing it down. He earlier made headlines for being pardoned by President Donald Trump from serving a jail term for stealing trade secrets from his former employer.
This is why Golden Rule #7 is so useful: it helps you to discern the crackpots and lunatics from those sober and serious people that can help you to promote your own business by drafting patents that work.
Call To Action
If these seven (7) Golden Rules work for me, they may also work for you.
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Martin “Software Patents” Schweiger