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Patent Troll Reform

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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1 Response

  1. There’s more precedent for software patents than we had believed. By chance, I stumbled on a couple of 1920 patents that are written like software patent. I describe one of them here. I obtained the file history from the National Archives; the examiner didn’t demur at all.

    I’m not convinced that all software patents should be banned. (Disclaimer: I have about 20 of them.) However, there are far too many that are bad patents, ones that do not demonstrate any novelty that is non-obvious to one of “ordinary skill in the art”. All programming is creative, just as all writing is, but writing is protected by copyright rather than patent; this of course means that the concept isn’t protected, as opposed to the expression of the ideas. That said, there are some genuinely innovative software patents, ones where the concept is at least as creative as some mechanical gadgets. The best example I can give is the RSA patent on a particular form of public key cryptography (4,405,829). That patent seriously stood in the way of several Internet security developments, but it’s hard to argue that the underlying idea was obvious or non-novel.

    The problem, of course, is how to define the criteria in a legally acceptable way without falling into Potter Stewart territory.