5/21/2011
by: Joseph Page
Topic Views: 1825

Website Patents

Patents for new websites and web concepts

Website Patent

Sometimes one might ask: "How can a website or a webpage be patented"? While websites and webpages are not precisely traditional patent subject matter, they nevertheless remain patentable subject matter and this has been reaffirmed and hardened up by the Supreme Court most recently . In Bilski et al, the Supreme Court was widely expected to reign in allowable subject matter with respect to 'business method' and perhaps software patents. However, in a surprise ruling they did not only fail to set any new limits, but did rather modify one measure of patentability by increasing its scope in saying the so called Machine or Transformation test "is not the only test" which may be used to determine patentability in these types of cases. What exactly does all this mean? - Software, and more precisely websites and webpages, in most instances are patentable subject matter under 35 U.S.C. ยง101. Indeed, here are several recent US Patents which are explicitly drawn to 'website' or 'webpage': 7,925,543 Product characteristic selection website 7,933,890 Propagating useful information among related web pages, such as web pages of a website 7,779,023 Intelligent internet website with hierarchical menu 7,702,523 Website messaging system 7,571,461 Personal website for electronic commerce on a smart Java card with multiple security check points You may find many others simply by going to the USPTO search site and using the following query: "ttl/website OR ttl/webpage". While this business of patenting websites is a bit new in terms of legal rules and procedure timelines, you can bet your bottom dollar that since Bilski et al was finally settled at the highest level we should see a serious acceleration of patent activity in these areas. How are Websites best Claimed? A patent document includes a most important section called 'claims'. This is the part of the document which sets forth precisely what is owned by the patentee. The specification can speak to 'this' and 'that' all day long - which has no regard whatever to what is owned. To find out what exactly is protected, one only need consider the claims. Patent claims are almost always directed to: 1) machine or apparatus (including articles of manufacture), 2) method, or 3) composition of matter. But it is hard to see how a website might be considered a 'machine or apparatus' - even under a liberal definition. After all, the webserver - except for the software - is identical for nearly all websites. Of course, it is somewhat more palatable to define a website as a 'method'. Indeed, patents for websites might likely include some method claims. However, method claims are not typically as strong as machine claims because the lower degree of discreteness and lower breadth generally available via method definitions (claims). Method claims are formed as a series of 'steps' and these steps are often not tangible, non physical. As such, method claims often leave many traverses due to ambiguities which can be very hard to avoid. Of course, composition of matter claims do not apply to website patents. There is another very important type of claim which is not generally found in patents but nevertheless cooperates well with providing protection for website patents. That is the 'carrier signal' or 'signal' claim. At least one very prolific leading patent expert describes this type of claim in his paper: "Claim the Web Page Itself". In another important leading authority on the subject, Kunin and Bradely write in their treatise "Patent Eligibility of Signal Claims" as follows: "Signal claims, if drafted properly, provide an excellent way of obtaining patent protection for software and other digital functionality descriptive information transported via or in connection with a propagation medium". However, these signal claims remain little used except by more sophisticated and/or progressive software and computer patent firms. The law on this point remains 'fresh' and a bit unsettled. However by all appearances and early indicators, the older 'computer readable media' type claims or 'Beauregard claims' nonsense is losing steam at the same time signal claims tend to be further affirmed by the courts. Another good well documented read on this point is: "How Signal Claims Can Clear the 'Abstract Idea' Hurdle". In this blog post presentation, it is argued that signal claims are sound against the unpatentability problem relating to 'Abstract Idea' which Beauregard originally purported to traverse. Further Strengthening the Claims Set While in most cases it is believed that signal claims are most suitable for establishing strong patent protection for websites, in many cases websites may be further characterized and defined by many physical elements and data structures which make those websites distinct and unique from others. These elements for example often include a database schema which is particular to tasks performed and executed by the website. Where associations (indexing, pkid) are formed between data elements these associations are embodied in a particular database system which is not part of generalized computing. In another important aspect, the patent practitioner should consider the unique relationships the website forms with coupled input systems and output systems. In one example, a certain website might be strongly coupled to a DNA scanner. Such coupling lends itself to further define the structural nature of the system. In another example, a website may be coupled to a great plurality of related but independent blog servers from which it receives blog post information. Again, these couplings help to define the unique system which is the website. Just as a patent expert should consider website inputs to define the patentable aspects of a website, one might also try to look to the website outputs which might similarly give a more physical definition to the systems. Most websites have an HTML output - which per se does nothing to establish patentability in view of the novelty or obviousness questions. However, where that HTML is coupled to and drives a physical system in some way that is not found in other websites, then patentability comes into focus. In one example, if a certain website HTML output triggers a garden watering system to increase water supply in extended periods of no rain, or conversely to stop a watering program prior to predicted storm arrival, then those websites clearly will be patentable. However, if your website output merely lists famous baseball players, patentability will be for harder to establish. Accordingly, we often look to how a website's output might affect and drive external physical systems to which it is coupled. Elements of Website After having carefully considered the inputs and outputs of a website, we also carefully consider the elements from which a website is comprised. Even where there are no appreciable physical inputs and no appreciable physical outputs - there still often remains great functionality within the website which certainly can establish patentability. One favorite example to which attention is drawn relates to the 'drop-down bubble' or 'tool-tip' functionality and object common to most websites. When a cursor is placed over a website element like an icon or command button, a yellow drop-down window or bubble appears with some text therein where that text relates particularly to the button being addressed by a user. If the first guy to realize this functionality in a website were to have shown it to his competent patent attorney, he'd certainly have a very nice patent indeed. This small bit of now common functionality - was in fact 'new' at least one day. So, the creator of a website should look not to the complex overall compound story of his website, but concentrate more macroscopically to the new elements from which it is comprised. In some cases, a single website might be embodied as a plurality of these new elements which cooperate together. But in most all cases, a careful look at the elements and their interactions leads to the novelty which is a very necessary part of any patent. Look at the cursors, drop-down fields, command buttons, and many others, and most particularly the function, interaction, and relationships between these elements. This is where you often will find the patentable novelty in your websites. Certainly, some of the behavior of your website cannot be found - it is this behavior which will finally be submitted as your website patent application. After all, you are not making a website which has already been done - but rather a new website whose functionality and performance has never been seen before. Where this is true and you can affirmatively point to new functionality no matter how small, then you likely have that which is necessary for a patent. Most websites are comprised of a plurality of components like listboxes, menus, toolbars, command buttons, timers, video players, radio buttons, checkboxes, among others. When you arrange these into combinations which yield a new and useful performance and/or function, you have made an invention. Just as Henry Ford put together gears, wheels, axels, pivots, and bearings to form a car, you similarly use well known elements in new combinations to enable and bring forth new functionality. This is invention. Just because your website is served by old well-known and general purpose computing platforms or webservers over the Internet where the site is consumed or played by an old and tired web browser - doesn't render your invention any less patentable. Websites are indeed patentable where they are new, useful and non-obvious. Any combination of elements as described here may nicely support patent protection. If you have questions regarding patenting of software or patenting of websites and webpages, we'd like to take a few moments and explain to you our approaches of preparing these types of patents. Please contact us at your convenience to schedule a working meeting anywhere you'd like us to visit. Our primary office is in Europe (French Sophia Antipolis) however we will try to accommodate any travel request. Please call +1 858 699 6015 or e-mail jpage@integrityip.com now to start your website patent portfolio and program.

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