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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."
And then they vote according to whichever way their ideological predisposition leads them.
That's true for a wide variety of Supreme Court decisions, but doesn't actually seem to be the case in patent law. It's not unusual to see, for example, Antonin Scalia and Ruth Bader Ginsburg on the same side of a patent ruling, which almost never happens on the kind of politically charged cases that make front-page national news.
The ideological dispositions in the legal community do not line up at all with political ones. On patents, the SCOTUS is fairly strongly on the side of rejecting patents on existing practices "on a computer." They refuse to throw out process and software patents categorically, but OTOH they don't really see any process patents they like.
In the case here, the U.S. Court of Appeals for the Federal Circuit agreed the patent was invalid, but couldn't find a majority on a single theory of why. So the SCOTUS is going to be writing a new test for when software patents are valid. Based on past rulings by this court, a clear rule will almost certainly invalidate a lot of existing patents that are currently seen as being in gray areas.
I'd expect this much if anything. SCOTUS cannot fix the software patents. It is not even clear what a "software patent" is. IANAL, but the way I understand the patent law, there is absolutely no difference. If you have a gizmo that does A, B, and C, then you can patent it, and how exactly it meets these claims in terms of technology is irrelevant. The patent law itself is oppressive: it infringes on our right to free expression, while providing no discernible benefit to the public. Only the lawmakers can fix this clusterfuck, and they can do so trivially, by gradually shrinking the protection term, giving the manufacturers some time to adapt. But they, of course, lack the will to do so, since they respect the opinions of plutocrats way more than those of the general public.
RMS also advocates a way to get to the same goal in discrete steps, by making patents unenforceable in certain fields (like the medical field or the general purpose computing field). The precedents exist: the surgeons are allowed to ignore patents while curing people. This is much better than defining "software patents" within the law, since any such definition will probably be circumvented by technological means. Rent-seekers could simply inject enough non-software payload into a device and patent it anyway.
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.
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