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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."
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.
If these guys were experts in software patents, they wouldn't need anyone to testify.
Judges are not experts in anything except law. That's why they listen to other people make the case and explain the intricacies as the law applies to the subject. They do their research and they ask tough questions. That's their job.
Fuck you very much, NSA.
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
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.
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.
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.
Actually how a gizmo does A,B,C is critically important for a patent. As another device can do A,B,C, but in a different way, and it would not violate the patent.
The overall problem with software patents is they define the What (A,B,C) but not the How. So any implementation that accomplishes goals A,B,C is suddenly in violation.
I'm out of my mind right now, but feel free to leave a message.....
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.
Indeed. I could agree to leave such important things to old troglodytes as long as they were also scientists: "Let us apply the law in this manner provisionally, and re-examine to test the hypothesis of its benefit after N years; We must test a decision to see, and also consider the null hypothesis, for laws that provide no benefit only tax our legal system. Let us rely not on case-law, but on observational evidence of intent to do malice or good."
Sadly no such individuals exist in this reality. The quantum waveform has collapsed into the worst possible configuration: Scientists beg for funds while stodgy old farts rule the world. Note that there is ZERO evidence that patents and copyrights are actually "beneficial for society", we have only evidence that such protections are not required for innovation and profit in the markets that have no copyright or design patents: The automotive and fashion industries. Software Patents? HA! Prove Patents themselves aren't harmful first. It seems we need a medicine that not even The Doctor can prescribe.
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.
You're confusing ideologies. Someone's position on the right or left is not going to have any bearing on their ideological positions about patents, because patents aren't a right/left issue. It's a different type of ideology. A more idiosyncratic ideology. But an ideology nonetheless.
(Actually, I shouldn't say left/right, because dem/rep doesn't break down that way, but I'm simplifying for the sake of clarity.)
That said, because this isn't tied to their political allegiances, they may all be more inclined to listen to the arguments rather than pre-emptively voting with their preconceptions. Not guaranteed, but much more likely than in some cases.