Slashdot Mirror
(Highly Divided) Federal Circuit Opinion Finds Many Software Patents Ineligible
ais523 writes "The Federal Circuit has divided CLS Bank vs. Alice Corp., a case about various sorts of patents, including software patents. Although the judges disagreed, to a lesser or greater extent, on the individual parts of the ruling, more than half decided that the patents in question — algorithms for hedging risk — were ineligible patent matter, and that merely adding an 'on a computer'-like clause to an abstract algorithm does not make it patentable. Further coverage is available at Groklaw, or you can read the opinion itself (PDF)."
ianal, so all rampant speculation here...
But, if that basically means that using a certain algorithm is not patentable, and doing the required calculations on a computer is not a bright enough idea to make it patentable, then where is the line that makes something patentable? There are so many patented algorithms, this could have gigantic financial implications for many large companies. Or will this be like most such court decisions, that the legal matters are so complicated that this particular decision won't really matter.
Now how about fixing the rest of the patent system?
It is worth noting that despite the difficulty garnering a majority, this was a case with particularly good reasons to expect patent invalidation. First, it is conceptually similar to the hedging risk patent struck down in Bilski--i.e. in broad brushstrokes, the closest thing to it that the Federal Circuit would have thought about first was struck down. Second, and the real crux of it, is that the computer just wasn't that important. Third, although not addressed by the concurring opinion, it was about as obvious as one can imagine.
It looks to me like the judges are finally deciding not against software patents in general, but patents of the type "doing X, but on a computer" or "doing X, but on a smartphone". The judgement is basically that you cannot patent something that's already patented, or is a natural law, or is an abstract concept not specific to any particular application, just because you describe it in an unusual way or put it in a new context, i.e. "turning a page, but on a touchscreen instead of an actual page" or in this particular case, "hedging risk, but by a computer algorithm instead of by bankers". Also not allowed would be "the browning of grain-based spongy material through local application of heat", also known as "making toast".
I sometimes ask revealing, often ignorant-seeming questions. Maybe they're harder to answer than you think.
Suppose I invest $1B in researching a new drug, getting it through FDA approval, and bringing it to market. Then you immediately offer a generic version that is exactly the same composition. Our drugs are functionally identical, there is no way I can offer a superior version because when it comes right down to it, the composition is what valuable, and its easily replicated. How will I make my $1B back when you can offer the drug at a price that never needs to pay back the research investment. Don't get me wrong, the patent system is seriously messed up, but there is a need for patents in some cases.
This is, of course, one of the main arguments for protection against copying, but on the other hand, the fashion industry does not have this kind of protection and there is a lot of innovation there. It is argued that this innovation is in large part a result of the lack of copy protection. The high end must have something new to sell after they are copied. Also, this copying frequently involves some degree of change itself.