Click to enlargeNot So Patently Obvious

Author: Eric Stasik

Number of Pages: 224

Copyright: 2006

Not so Patently Obvious provides a brief history of patenting software in the U.S. and Europe and the Trouble with Patents in the Digital Age.

When the software industry was young, software patents did not exist. The USPTO didn’t issue its first software patent until 1981. Since then, tens of thousands of software patents have been issued on both sides of the Atlantic.

Anyone can be an infringer, and many are. Microsoft is reported to be, at any given time, defending themselves against 30 to 35 patent infringement lawsuits. It has been suggested that the Linux kernel might infringe as many as 283 U.S. patents. Blockbuster awards, such as the $450 Microsoft was ordered to pay a tiny patent holding company named Eolas, are fundamentally changing the way the software industry does business.

Economists, politicians, scientists, academics, legal experts, engineers, and computer programmers are all asking if this proliferation of software patents makes any sense. There is a growing unease that the patent system has derailed and is going to take the software industry off the tracks with it. At the same time it is increasingly clear that without patent protection, it is impossible to protect the competitive advantages that result from technical innovations in software technology.

These two points of view collided last year in the European Parliament’s debate over the European Commission’s Directive for Computer Implemented Inventions. A bitter and implacable row erupted over the Commission’s Directive which was defeated with both sides claiming victory.

This book steps away from the rancour of the debate over software patents and takes a fresh look at the issue. Eric Stasik, author of Patent or Perish, and founder of the patent engineering firm Patent08 (, takes the reader through a brief history of software patents, explains some of the problems this has created, and illustrates why society still struggles with what Thomas Jefferson described as “the difficulty of drawing a line between the things which are worth the public embarrassment of an exclusive patent, and those which are not.” As Jefferson realized, the answer is not so patently obvious.

Table of Contents


Table of Contents

About the Author

-Questionable Patents Are a Problem
-No Kidding
-SCOTUS, TRIPs, and the WTO
-Reform is Needed
-Bring Out Yer Dead
-Software Patents, Bad
-Liberté, Egalité, Logiciel Libré
-Software Patents Must Be Rejected
-Free as in Libré
-Free as in Free Beer
-Free as in “Not Ethically Legitimate”
-Free as Free From the Costs and Burdens
-Free as in Free from Financial Exposure
-Watch What IBM Does
-Let Them Eat Cake
-The Debate that Never Was
-An Incentive System
-Do Patents on Software Make Sense?


They Can’t Patent That, Can They?
-The Compton Multimedia Patent
-The Energizer Bunny Patent
-Broad, non-technical patents
-The Amazon One-Click Patent
-Easy Patents, Hard to Code

Not All Software Inventions are Trivial
-Binary Communication and Morse Code
-Shannon-Fano Compression
-Huffman Compression
-Run-Length Encoding
-Substitutional Compression and LZ77
-Dictionary-Based Compression and LZ78
-LZ78 meets W
-The Fire of Genius

The Controversy over GIF
-The Unisys Patent Surfaces
-You Can’t Patent an Algorithm
-The Fallout

Software Patents at the USPTO
-Patents on Ideas are Wrong
-Fundamental Principles or Algorithms
-Plato v. Aristotle
-Inventions or Discoveries?
-Gottschalk v. Benson
-Binary-Coded Decimals
-A Patent on the Algorithm Itself
-Parker v. Flook
-Laws of Nature are Always Prior Art
-Anything Under the Sun Made by Man
-Diamond v. Diehr
-It’s Not Only about Software Companies
-Svante Arrhenius and the Greenhouse Effect
-Curing Rubber
-The First Software Patent
-A Narrow Decision
-Does Not Include Particular Machines
-“Concrete Machinery…”
-A Few Observations

History of Software Patents at the EPO
-The EPC, EC, EPO, and EU
-The EPO Boards of Appeal
-European Patents and the EPO
-European National Courts
-The Directive on CII
-Articles 52(1), 52(2), and 53(3)
-Vicom Systems, Inc.
-Convolutional Processing
-Paris Convention, the PCT, and WIPO
-Vicon’s Entry into the EPO
-Applicants Appeal
-An Algorithm as a Technical Definition
-A Specially Constructed Apparatus
-Industrial Application
-Summary of the Vicom Decision, as such
-Other EPO Decisions of Significance
-Technical Character and Effect

Technical Contribution
-What is a Technical Contribution?
-EPC 2000
-The Tests for a Patent
-ARM and the RISC Simulator
-Protecting the Knowledge
-The ARM Decision BL O/292/04
-Balanced Tree Data Structures
-Opposite Sides of a Faint Line
-I Know It When I See It
-You Would Have Patented Those
-Two Faces of “Technical Contribution”
-Doesn’t Solve the Problem
-Social Acceptability
-Patents on Things Not Patentable

You Wouldn’t Patent a Book… Would You?
-In Re Beauregard

Practical Problems
-The Costs
-The Difficulty of Product Clearance
-There is No “Fair Use” in Patent Law
-There is No “Clean Room” Avoidance
-There is No Reverse Engineering
-Insufficiency of Disclosure
-Trivial Patents
-Incompatible with the GPL
-A Strange New World
-David and Goliath

Why Copyright is Not Enough
-Computer Programs Are Not Works of Art
-Copyright Protects Expression
-The Weakness of Copyright
-Different Animals

Why Patents are Important
-A Tangible Past
-The Rise of Intellectual Capital
-Knowledge is the New Source of Wealth
-The New Economy
-Why a Patent Strategy is Vital
-Knowledge: A Cheap Commodity
-A Peculiar Character
-Violent Shepherds
-Patent or Perish
-Patents are Vital
-The Fragmentation Problem

Notes and References


About the Author

Mr. Eric Stasik is the director of Patent08, an expert consulting firm located in Stockholm, Sweden providing patent engineering, business development, and licensing services to small and medium-sized enterprises. He is an expert in helping firms develop patent and licensing strategies that support their business objectives. He is the author of several books on patent strategy and maintains a well-respected blog ( on the business aspects of developments on patent law and practice. Mr. Stasik is an engineer; he is not an attorney at law and does not provide legal advice.


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