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Supreme Court To Review Software Patents
New submitter chrylis writes "SCOTUSblog is reporting that the U.S. Supreme Court has accepted an appeal in Alice v. CLS Bank, a case in which the Federal Circuit ruled haphazardly that the particular patents in question were invalid but did not address the issue of software patents generally. 'The case will provide a new test of the Patent Act’s most basic provision — Section 101, which broadly outlines what kinds of inventions are patentable. One of the long-standing exceptions to the types of inventions mentioned in that section is that an abstract idea can never be patented. That issue arises frequently these days, especially with rapidly developing technology in computer software. The EFF wrote a summary of the issues in the case when it was before the Federal Circuit this spring. The case files are also available."
I'm so glad that the fate of software patents in the US is being left up to a bunch of old geezers who probably can't figure out how to publish their legal opinions online without the help of their IT department.
Expect the narrowest possible ruling, one which applies only to the case in front of the Supreme Court and maintains the status quo for all other software patents.
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IAAPA (I am a patent agent)- My take on the matter is that software patents pass the threshold for patent eligibility, but not for patentability, which is quite different. Most software-implemented subject matter is certainly patent-eligible, but ought to be struck down under 35 U.S.C. 103 (non-obviousness). Courts have said that 101 is a threshold inquiry, and in my opinion I don't see why slashdotters would have a problem with striking down software patents not because as a class of subject matter they are ineligible, but because the vast majority are obvious.
The case involves Alice Corporation who holds four patents originating in the 1990s of which was for "a computerized system for creating and exchanging financial instruments such as derivatives." These patents were challenged by CLS Bank International in 2007. The district court ruled summarily for CLS in that none of patents were valid. The Federal Circuit initially reversed the lower court; however, the full panel (en banc) voted 7 out of 10 to affirm the district court but also issued 5 separate concurring and dissenting opinions.
This confusion was noted by the Electronic Frontier Foundation in its amicus brief:
" . . . the Federal Circuit has failed to implement a workable standard—or, frankly, any standard at all—as to what computer- and Internet-implemented inventions are patentable. The resulting legal instability has driven up the already-ballooning costs of patent litigation . . ."
In my opinion, it appears that main patent simply added "on the computer" to an existing process, namely in an business transaction between two parties, there is a third party that ensures that payment is made and is facilitated. The computer made the transaction faster and more automated as noted by Judge Lourie in his opinion.
“simply appending generic computer functionality to lend speed or efficiency to the performance of an otherwise abstract concept does not meaningfully limit claim scope for purposes of patent eligibility."
Well, there's spam egg sausage and spam, that's not got much spam in it.
Back in the day, wasn't software ONLY subject to copyright? Meaning, it was treated like any other creative product?
Fuck you very much, NSA.
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nt
An what if the supreme court fucks us all and decides that yes software patents can be issued ?
I'm so glad that the fate of software patents in the US is being left up to a bunch of old geezers who probably can't figure out how to publish their legal opinions online without the help of their IT department.
Don't worry - they'll render a decision that only affects the narrowest possible circumstances, "leaving the subject open" to further litigation on other slight differences in scope.
The supremes don't actually rule on the big issues any more - in modern times, it's all subtle refinements and clarifications.
the current Supreme Court doesn't have a good track record of siding with the 'Little Guy' (*cough*Cittzen's United *cough* Voters Rights Act*). Maybe it's just the libtard in me but I don't have high hopes were going to see an entire class of 'property' invalidated... :(
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I'd give them somewhat more credit than that. They definitely made the right call in Molecular Pathology v. Myriad Genetics (ruling that genes couldn't be patented), even though they had no knowledge about biology.
The fact that they're willing to hear this case makes me somewhat optimistic; if they truly didn't understand or care about software patents, they wouldn't have gotten involved. The worst they can do is maintain the status quo, which is what would happen if they didn't intervene.
I think you're overestimating the current supreme court.
I'll just ignore your asinine analogy and reply to your first sentence ...
This court may very well be swayed by political leanings in this case. But that sway may be to uphold the ruling. There are many more businesses that are negatively affected by these shit patents than there are businesses that benefit from them. A conservative court may surprise us by being pro all businesses instead of just a handful.
Watch this closely as it may become a talking point for the 2014 midterm elections.
The devices we commonly call computers literally translate abstract into action. The computer is the invention, not the abstract instructions.
Then we are right back to where we currently are.
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I would love to agree with you, because to me they are all obvious. But the problem lies in the test itself - it is not at all measurable. It is based entirely on opinion, and thus it varies based on the particular "expert" testimony. And what is obvious this year may not have been obvious last year, and that makes it un-pin-downable to me. To me it is a losing battle to try to strike down patent by patent on obviousness. They can go either way, and so it is a never-ending battle, and the lawyers get richer. The only realistic way to approach obviousness is to argue its fallibility, bias-proneness, and slippery-slopedness in general, and strike it down as an untennable test, which must be either replaced with an unbiased, independently-reproducible test, or the system must be revoked as a whole as unfair.
And since you are obliviously experience and open-minded about this, what do you think of that approach?
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Contrary to Judge Moore's worries (second link in the article) this would open the floodgates of development of software, and revitalize the industry. SCOTUS has had years of watching the mess this made in industry, and the endless litigation over trivial ideas.
They may well overrule CLS Bank.
No longer could a company sit on a minor IDEA, cast into code, and then patented simply because it was code. They would have to continue to innovate, and perhaps market a product instead of launching lawsuit after lawsuit. Look around at the software patents that are holding back progress on a number of fronts. Just try to come up with a new Codec (like VP8) and watch the trolls band together (MPEG LA) to create a patent pool to go after your product.
I suggest the Audio and Video industries alone would make more progress in the first 4 years after striking down software patents than they have for the last 20 years.
Moore worry that no research on new computerized functions would take place because they couldn't be patented is about as well founded as saying no one would invent a new recipe for Chicken Soup because it couldn't be patented.
Sig Battery depleted. Reverting to safe mode.
Exactly. We are already fucked, so why worry about this?
There is at least a better than even chance that the SC has had enough of the endless litigation and trolling for patents protecting Ideas simply by virtue of them having been done by a computer program.
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...and watch the trolls band together (MPEG LA)
Regardless of your stance on software patents, you can't say that MPEG-LA are patent trolls. The patents licensed by MPEG-LA are from companies that actually make products who basically banded together to eliminate the hell that separate licensing would have created. The only way that MPEG-LA would have been considered a troll is if they had purchased the patents from the inventors, but that hasn't happened.
The MPEG-LA is a acknowledgement of the fact that building an AV codec is a patent minefield that's impossible to traverse without licensing. It's a symptom of a flawed system, but it's not a troll.
Really? Because as soon as VP8 was hinted at, and before it was actually released, MPEG LA immediately put out a call to form patent pool to attack it. BEFORE its specs were even released.
Does that sound like a group of people simply seeking an easier way to cross-license? Or does it seem like a Troll?
It took the US DOJ looking into MPEG LA's practices before they backed down.
Sig Battery depleted. Reverting to safe mode.
A business method patent is a patent on how a person can run around doing "something", not on a machine. A software patent is how a computer can run around doing "something", the computer itself isn't part of the patent. Any patent that consists of "take this person/thing that already exists, and tell it to do the following." is nothing but artwork and should be covered under copyright.
IAAPA (I am a patent agent)- My take on the matter is that software patents pass the threshold for patent eligibility, but not for patentability, which is quite different. Most software-implemented subject matter is certainly patent-eligible, but ought to be struck down under 35 U.S.C. 103 (non-obviousness). Courts have said that 101 is a threshold inquiry, and in my opinion I don't see why slashdotters would have a problem with striking down software patents not because as a class of subject matter they are ineligible, but because the vast majority are obvious.
IAAPatent Attorney, and I think you're absolutely right - many of these claims that get struck down under 101 should really have been struck down under 35 USC 102 (novelty) or 103 (obviousness), but that requires searching for prior art and making a prima facie case, and as you know, that's haaaaaaard. It's a lot easier to simply say "I'm sure there's art out there for it... but rather than look for it, I'll just wave my hands and say 'abracadbr- er, abstract idea' and then I can dismiss this case, and the outcome is correct, even if the process is backwards." And, because many Slashdotters are pragmatic engineerin' folks, they frequently care about the outcome more than the process: as long as Mr. Bilski doesn't get his hedge fund patent, then who cares whether it's rejected under 101, 102, 103, 112, or some other high-falutin' number?
But the problem is, part of pragmatism is predictability: if we can't tell ahead of time whether some patent is statutorily valid or invalid, then, pragmatically, how do you make business decisions? It'd be like writing a program, having the compiler tell you it won't run, but never being given any clues or indications as to where your error was. The result is the same - the program crashed - but it doesn't give you any ability to write proper programs in the future, or predict ahead of time whether a program will fail or not.
A bit of Hollywood history is that the movie industry was born from the movie people wanting to get away from the abusive patents that gave control to this new and expanding industry to a few east coast barons.
So we can see what happens when you have an industry that is "protected" by patents and the identical industry that isn't.
People argue that without patents nobody would invent anything. But in a rapidly expanding and growing industry people aren't inventing for the sake of inventing but solving problems that are completely obvious in their solution the moment any halfway decent engineer stumbles upon them.
if i was paranoid i'd think they were being funded by the opposition to lose on purpose.
USA and EU will probably have to harmonize patent law for the Transatlantic Trade and Investment Partnership. It should normally be legislator's job, but sometimes it does not work, and ourt have to do the job.
For instance, EU countries signed a treaty in 1974 saying that computer programs are not patentable, and as a result they all have this provision in state laws. That did not prevent patent offices to grant software patent in EU, that just makes them difficult to enforce.
MPEG-LA said that it is impossible to ever create any kind of video codec that won't run afoul of their patents. They claim to have patented an infinite number of ideas.
they have a patent on '...using a display'.
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" Copyright is next to useless for smaller programmers, because it's protecting the wrong thing. Basically, copyright protects the exact work,
In my never-to-be-humble-opinion, it's the exact work that should be protected, not the idea that lead to it. Because there's only two things in my job - the idea I'm trying to implement, and the code that implements it. If I'm not protecting the code, then I'm protecting the idea. So software patents are idea patents, because they are all ideas with "on a computer" appended to them.
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I didn't understand the obviousness test and now I do, thanks.
And therefore it is the name of test itself that is one of the horrific failures in this debacle.
What you described is not at all an obviousness test, it's a prior-patent test. It simply asks, has this been patented before in other ways? So it has nothing to do with whether it is obvious to someone skilled in the art. It's a red herring to think that this is testing obviosity. (ahem, new word.)
And hence when you say " maybe it's not obvious, even if in hindsight it looks simple. Maybe the solution is brilliant in its elegance and simplicity."
Right, and the answer to your Big Maybe is - unmeasurable, unreproducible, and based utterly on opinion. And therefore is a farce and incites argument from the get-go, no matter what the USPTO calls it, to try to test for it that way.
But thanks for helping me to understand why the software obviousness test has failed so badly - because it doesn't test obviousness and therefore hasn't failed. It only tests to see if it is already patented in a different form. But that makes me wonder if the test itself can be challenged, because it doesn't test at all what it implies that it tests. And if the intent is truly that obvious things should not be patentable, then the definition of the test can be proved faulty - it's obvious to me that it can ;)
Sent from my ENIAC
In the 60s and 70s, various companies were developing high-availability software (process pairs, redundant storage, transactions, ACID, etc). Each of them thought they had developed something unique, and as a result tried to hide it from their competitors. As a result, progress in the field went a lot slower than it had to, with plenty of reproduced effort. That was in the days before software was eligible for patent, so there is definitely a case to be made that (non-obvious) software patents can be helpful.
I'm sorry, but this argument is bogus. The software field did not develop slowly in that era because there were no patents, progress was slow going because of the state of the technology itself. Computers were slow and clunky, and advanced programming tools were unavailable. When something as basic as recompiling your code takes all day, which it often did, naturally progress is going to be slow. And the proof is seen a few years later during the PC revolution of the late '70s and early '80s. By that time computers and system software had become fast and small enough to really get things done, and indeed that era saw an absolute outpouring of creativity in software design. Nobody worried about patents, everybody got rich anyway, and progress happened in leaps and bounds. This was an era of unparallelled innovation and nonstop new ideas - and I guarantee you that many of the truly innovative ideas of that era wouldn't have been possible under a software patentable regime like we have now. There would be no such thing as the spreadsheet, to cite just one example, had software patents existed at the time. IMHO those days were proof positive that software patents are not only unneeded but downright detrimental to the advancement of the programming arts.
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