While I am pro-intellectual property, I am against patents that appear to be, in my opinion, ludicrous. Please find a link below to a patent application that, in my opinion, appears to be beyond ludicrous. The application is from Halliburton Energy Services and is for "Patent Acquisition and Assertion by a (Non-Inventor) First Party Against a Second Party."
This application should fail for several reasons. First, it appears to me to be silly or even absurd. The essence of this patent is sort of like having a patented method for making use of your refrigerator. After all, one of the purposes of a patent is to "prevent," and the claims of the application as filed say essentially that someone should buy a patent from someone else and assert it against a third party to "prevent" them from making, using or selling their invention. Therefore, if this patent would issue, it would hamper the ability of others from exercising their right to "prevent."
Now, Halliburton has cleverly pointed out that a person may use a computer to perform research on a "secret aspect" of the second party's software to make the "secret aspect" observable, or non-secret, and that portion of their claim appears to be the novel feature.
So, the intent of this patent application is to buy a patent, hack (seems like hacking to me!) into someone's software, write a claim using knowledge of the hacked software, getting the patent to issue, and then asserting the patent against the second party. The only difference is making the "secret aspect" non-secret.
Hopefully the USPTO will find references in patent law that point out that Halliburton's "novel" idea is already embodied in the law and is therefore not novel. Reverse engineering, especially hacking someone's software, is certainly not new. Indeed, Halliburton might even find itself up against the formidable DMCA since the DMCA specifically prohibits bypassing security protocols, and Halliburton's claims appear to be perilously close to requiring an illegal act (turning the hidden aspect into an observable aspect) in order to be operative. That would assuredly be a USPTO no-no as the claim would not be useful as defined by 35 U.S.C. 101, since a portion of the claim would require an illegal action.
The second issue I already discussed above, and that is that people have taken these steps (almost assuredly including figuring out whether software code could be covered by a patent application) before. So this technique is not new and should also fail under 35 U.S.C. 102 or 35 U.S.C. 103.
Third, Bilski should sink this one like a rock. After all, nearly all of these steps are purely mental steps except for the reverse engineering part. Even the reverse engineering part is mostly mental process, except for exposing the code, which does require a computer. However, the computer would usually be a general purpose computer and Bilski should apply.
This application has yet to go to an examiner, so it might be a while before we see how the USPTO deals with it.
