White House: don’t blame us for software patents
This being the Internet, one of the first petitions focused on software patents, asking President Obama to “direct the patent office to cease issuing software patents and to void all previously issued software patents.” The White House issued its official response on Tuesday. After touting the recently passed America Inevents Act, Obama technology advisor Quentin Palfrey says the executive branch’s hands are tied…
…There’s a lot we can do through the new law to improve patent quality and to ensure that only true inventions are given patent protection. But it’s important to note that the executive branch doesn’t set the boundaries of what is patentable all by itself. Congress has set forth broad categories of inventions that are eligible for patent protection. The courts, including the US Supreme Court, have interpreted the statute to include some software-related inventions. Even before the legislation passed, the Administration took other important steps to ensure that only high-quality patents are issued, and that we curb or invalidate overly-broad software patents. For example, the USPTO recently issued guidance to its examiners that tighten up the requirements that inventors fully describe, specify, and distinctly claim their inventions so that vague patents are not issued. We’ve also issued new guidance to examiners to help ensure that patents cover only “new” and “non-obvious” inventions.
There’s a lot of truth to this. The rules Congress established for patent eligibility are extremely broad, so in practice decisions about what can be patented—and in particular, whether it includes software—are primarily made by the courts. The courts have been rather confused on the subject. The Supreme Court has traditionally been skeptical of software patents, but it hasn’t ruled on the subject since 1981. Since then, the law has been shaped by the software-patent-friendly United States Court of Appeal for the Federal Circuit.
The USPTO is obligated to respect decisions of the Federal Circuit, so USPTO director probably couldn’t invalidate all software patents—or even all new software patents—with the stroke of a pen. But the Patent Office still has a lot of influence. For one thing, it takes the decisions of the Federal Circuit and translates them into specific guidelines for patent examiners to follow, so where the Federal Circuit is ambiguous, the USPTO can err on the side of rejecting software patents—indeed it has been doing just that to a limited extent. Over time, such rejections, if upheld by the courts, could shift the law in a less software-patent-friendly direction.
The Obama administration can also influence the law in another way. When the Supreme Court is considering a patent case, it invariably invites the administration to submit a brief, and will often give the solicitor general the opportunity to participate in oral arguments. If the White House became convinced that software patents were detrimental to the American economy, it could begin filing briefs encouraging the Supreme Court to reinstate its original original ban on software patents. While the Supreme Court isn’t obligated to take the government’s advice, it would carry a significant amount of weight.
We’re not going to hold our breath, though. Before joining the USPTO, Director David Kappos was Assistant General Counsel for Intellectual Property at IBM. While we assume he’s not beholden to his former employer, we’re willing to bet that Big Blue’s enthusiasm for software patents has rubbed off on him.
The White House statement also included a strong endorsement of open source software:
We understand that the concern about software patents stems, in part, from concerns that overly broad patents on software-based inventions may stifle the very innovative and creative open source software development community. As an Administration, we recognize the tremendous value of open source innovation and rely on it to accomplish key missions.
The statement touts a number of administration initiatives related to open source software, but doesn’t mention any policies to protect open source software from patent litigation.
We the People: Announcing White House Petitions &
How They Work
Our Constitution guarantees your right to petition our government. Now, with We the People, we’re offering a new way to submit an online petition on a range of issues — and get an official response.
We’re announcing We the People before it’s live to give folks time to think
about what petitions they want to create, and how they are going to build the support to get a response.
When will it be live? Soon. If you want to be the first to know when the
system is available, sign up for an email alert.
Here’s a video we put together to explain what it is and how it works:
Here are the basics:
Individuals will be able to create or sign a petition that calls for action
by the federal government on a range of issues. If a petition gathers enough support (i.e., signatures) it will be reviewed by a standing group of White House staff, routed to any other appropriate offices and generate an official, on-the-record response.
How many signatures? Initially petitions that gather more than 5,000
signatures in 30 days will be reviewed and answered.
There’s another aspect to this meant to emphasize the grassroots, word of mouth organizing that thrives on the internet. At first, a petition’s unique URL will only be known to its creator and will not show up anywhere else on WhiteHouse.gov. It’s up to that person to share it in their network to gather an initial amount of signatures — initially 150 — before it is searchable on WhiteHouse.gov.
As we move forward, your feedback about We the People will be invaluable, and there are a few ways you can share it. Numerous pages on WhiteHouse.gov, including the We the People section, feature a feedback form. In addition, you can use the twitter hashtag #WHWeb to give the White House digital team advice and feedback. I’ll also try to answer questions when I have time today — you can pose them to @macon44.
Finally, while We the People is a fresh approach to official, online
petitions, the United States isn’t the first to try it; for example, the United Kingdom offers e-petitions, and this work was very helpful as we developed our own.
Update: The signatures threshold for petitions on the We the People platform to receive an official response from the White House has changed since this blog post was published. See the latest signature thresholds. ………………………………….
Terms of Participation
We invite you to participate in the We the People platform. You may use this platform on the White House website to create and sign petitions that call for the federal government to take action on a range of issues. For each topic included in We the People, you can petition the Administration to address a problem, support or oppose a proposal, or otherwise change or continue federal government policy or actions. As explained below, if a petition meets the signature goal within the designated period, the White House will respond to that petition in a timely fashion.
By participating in We the People, you acknowledge that you have read,
understood, and agree to be bound by these Terms of Participation and to comply with all applicable laws and regulations.
We the People expands the options for contacting the White House and does not displace current official methods of communication, such as mailing or emailing the White House. If you are not willing to agree to We the People’s Terms of Participation, but want to send a message, petition, or other form of communication to the White House, you may do so through the White House Office of Correspondence, which maintains a contact form and information about communicating with the White House at www.whitehouse.gov/contact.
In order to participate in We the People, you must create a WhiteHouse.gov User Account. You are required to use a valid email address when registering your account. Only one account per individual is allowed. You must be 13 or older in order to create an account and participate in We the People. Creating and signing We the People petitions must be done by individuals interacting directly with WhiteHouse.gov and not through a third party website or service.
STEP BY STEP HOW TO GUIDE….
You Create a Petition
Before you start a petition, take some time to think about your goal. What
you want President Obama or the White House to do? Why others should support your cause? This will help you clearly articulate your position and make your petition more effective. You should also check to be sure there isn’t already a petition with the same goal on the site.
Here’s how to create a new petition:
Enter Basic Information
Start by entering a short (120 characters or less) headline for the petition by completing the sentence “We believe the Obama Administration should….” Your headline should be clear and compelling and describe the goal of your petition. Next you’ll select up to three issue categories. If you want to add additional information about the topic of your petition, you can do that later by adding tags.
Look for Similar Petitions
Once you submit your petition headline and categories, we’ll search the system to see if there are any existing petitions that are similar. If there is already an existing petition that addresses the concerns you have, you may want to sign that petition instead rather than creating a new one. You will increase the likelihood of getting a response by signing onto an existing petition rather than creating a duplicate petition on the same issue.
Provide Additional Details
If you don’t find an existing petition that is similar, next you’ll enter additional details about the petition. This is where you have a chance to make your case. Use this space to clearly articulate your goals and what you would like the Obama Administration to do. Include additional
information or research to support your request. Keep the petition description brief, you only have 800 characters including spaces. You’ll also have a chance to add additional tags to help further define the topic of your petition. Please note that petitions on the We the People site will be moderated. Some petitions may be removed from the site consistent with the Terms of Participation and Moderation Policy.
Preview, Publish and Promote.
Next you’ll have a chance to preview the petition and make changes. Be sure to double-check for spelling, punctuation and grammar because once you publish a petition it cannot be edited. Once you’ve published a petition, the real work begins: it’s time to start promoting it with your friends, family and others who care about the issue.
After you publish the petition, it’s up to you to promote it and get others
to sign. You’ll get an automatic email once your petition is published that you can forward to get started. Remember you have just 30 days to get 25,000 signatures in order to get a response from the White House. And it’s up to you to get to 150 signatures in order for your petition to be publicly searchable on the We the People tool on WhiteHouse.gov.
The White House Reviews and Responds
Once the petition reaches the required threshold, it will be put in a queue
to be reviewed by the White House. Others can still sign the petition while it is awaiting a response from the White House. When the White House responds, everyone who has signed the petition will get email from the White House to let you know that we’ve reviewed and responded to the petition.
- Bad Cases that Make Bad Law: EFF Urges Federal Circuit to Reverse the Trend (eff.org)
- Patents Roundup: Twitter and Amazon, Microsoft and Apple, USPTO and SCOTUS (techrights.org)
- End the Patent Wars (blogs.hbr.org)
- J.H. Snider: The Case of the Missing White House Petitions (huffingtonpost.com)
- Twitter Holds Ground In Patent Suit – And Wins (paidcontent.org)
- CAFC Refuses to Clarify Claims Construction Law, Deference (ipwatchdog.com)
- Obama Can Determine If Software Patents Go Away or Go Global (techrights.org)
- Petition calls for White House to take its own petitions seriously (100gf.wordpress.com)
- Federal Circuit Statistics – FY 2011 (patentlyo.com)
- US Senate Approves Major Patent System Overhaul (pcworld.com)
- Mostly pointless patent reform bill goes to Obama for signature (arstechnica.com)
- High Court Considers H&C Brief in Landmark Bilski Ruling (prweb.com)
- The Software Patent Debate Is Incorrectly Framed (yro.slashdot.org)
- A Patent for Software (ipwatchdog.com)
- Shocker: Man With First Software Patent Defends Software Patents (techrights.org)
- Marijuana Petition Gets Thumbs Down (online.wsj.com)
- New Advocacy Tool from the Whitehouse… (goodolewoody.wordpress.com)
- The White House Responds To We the People Petition (sascho.wordpress.com)
- Marijuana: An Answer From The White House (blogs.wsj.com)
- Patently true – Obama on patent law: Not so key? (politico.com)
NOTE: BLOGGO SCHLOGGO is an apolitical blog that has no affiliation with any political party and does not subscribe to any political theory or point of view. Any political articles on this blog are presented as information of interest, entertainment and our readers right to know.