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Alice Is Killing Trolls But Patent Lawyers Will Strike Back
snydeq writes The wheels of justice spin slowly, but they seem finally to be running software patents out of town, writes Simon Phipps in his analysis of how Alice Corp. v CLS Bank is becoming a landmark decision for patent cases in the U.S. 'In case after case, the Court of Appeals is using Alice to resolve patent appeals. In each case so far, the Court of Appeals has found the software patents in question to be invalid. ... As PatentlyO points out, the Alice effect is even reaching to lower courts, saving the Court of Appeals from having to strike down patent findings on appeal.' Although the patent industry broadly speaking sees the Alice verdict as a death knell for many existing patents, some expect Alice to turn software patents into 'draftsmen's art because as you and I have seen over the years, every time there's a court ruling it just means that you have to word the patent claims differently.'
Alice is a big deal. It's already dealt tough blows to some patents in currently pending cases. This is mostly a good thing. And the patents that Alice affects most are sort of the worst of the worst.
I want to address the last point:
This may well be the case. But I don't see that as a particularly bad issue. Among other things, the worst offenders were patents that issued between 1996 and 2006 where there is a huge number of "do such and such old thing on a [computer | web | network| mobile device]" as if the "such and such old thing" was suddenly now a patentable thing by virtue of a new platform. Alice will largely undo those patents.
I also think that the "draftsman's exercise" is likely to bring added meat to claims. It might not sound like much, but every single word that gets added to a claim is one more point of possible differentiation.
"Although the patent industry broadly speaking sees the Alice verdict as a death knell for patents"
OK, the only thing wrong with that little click-bait snipped is the lack of the words "nobody in" between "Although" and "the".
AntiFA: An abbreviation for Anti First Amendment.
because as you and I have seen over the years, every time there's a court ruling it just means that you have to word the patent claims differently.
Good! Let 'em try to twist it into something still allowed but borderline, like business method patents - That knife cuts both ways, and for enduring a few more years of patent abuse, perhaps we can finally get those banned as well.
If they have to word the claim to actually claim something innovative instead of just a way of implementing a solution to a requirement that anyone can come up with they're in trouble.
My expectation is that Alice Corp will not be used to invalidate all software patents, but it will be the end of most business method patents. Moving forward patentable inventions will again need to be primarily based on technological advances rather than business benefit provided by the solution.
Over the past 160 years, the Supreme Court has decided dozens of cases involving subject matter eligibility. This goes back to a time before Samuel Morse tried to broadly patent the telegraph. (He wanted a patent that covered any and all methods of using an electromagnetic signal to transmit at a distance a signal representing characters). I see the Alice Corp decision as part of that unbroken chain of decisions going back generations. In Alice Corp, the Supreme Court added only incrementally to those cases. The importance of the case, however, comes from the fact that the lower courts (namely, the Federal Circuit) had deviated significantly from that line over the past few decades. I wrote about this here: http://patentlyo.com/patent/20...
I'm impressed.
I eat only the real part of complex carbohydrates.
Everything on the internet would be patent free as it's all just sending characters over wires.
When the fuck will somebody challenge Apple's patent on clicking on a phone number to dial it? You may remember this used to be a feature of Android too, but Apple sued. Now you have to copy and paste phone numbers to the phone app itself.
My ignorance the US court system, district preference, and patents notwithstanding, do any of the subsequent rulings striking down patents have any ramifications for the 'patent friendly' East Texas court?
I like to think that, if enough of the rulings coming out of there are later overturned, that can't look very favorably for the initial judge this was in front of. Are there any rules with presiding judges that, if enough of your past docket is overturned, they start to examine your status as a judge? Wishful thinking, I know...
inb4 supreme court narrows Alice since it says nothing about hardly anything except the specific claims that were at issue. Seems like lower courts are just using it as a ban-hammer on things they think they can distill down far enough to be an abstract idea. There needs to be more explicit guidance.
I don't understand why most techie people are blatantly against software patents. Sure, we can all be against ridiculously obvious patents that should not have been granted but why is software considered different than plastic for example? I can make a better mouse trap using bits of plastic and patent my newly designed mouse trap. Computer instructions are not different than bits of plastic that when strung together produce a working product. I think truly novel computer software should be patentable otherwise we diminish the value of a whole industry of people who use a lot of brain power to come up with this software.
I lost my faith in the patent system when I got the text corresponding to my first patent, as it had been redacted by the patent attorney based on my disclosure. It was so vague and wooly that I could not understand what the claim was all about. And I had written the disclosure myself.
"Alice" is to LSD as "Molly" is to MDMA. I see the psychonaut segment of nerddom is underrepresented here...
Chuuch. Preach. Tabernacle.
If Alice is off killing trolls what is Bob doing? Looting their corpses before Eve gets there?
Time to offend someone
Along with the longer articles mentioned, here's a one sentence summary of the ruling:
Adding the words "on a computer" doesn't change the patentability of a supposed invention.
In Alice, someone basically tried to patent "do escrow on a computer". The court ruled that "do escrow" isn't new or patentable, and adding the words "on a computer" doesn't change anything.
Some in the Slashdot crowd may be tempted to, through wishful thinking, add meaning that the court rejected. The court did NOT rule that having that you can't patent anything that can be done on a computer. They ruled that:
(not patentable) + (on a computer) = (not patentable)
The wording of the opinion also suggests that probably:
(patentable) + (on a computer) = (patentable)
In other words:
X + (on a computer) = X
They said that whether or not it's done on a computer doesn't change the patentability, if the computer part is standard, normal computing processes on a generic computer.
That implies that a new invention which uses a computer in a new, different, and useful way may very well be patentable. So for example it leaves the door open to the idea that a method of doing calculus on the GPU instead of the CPU might have been patentable a few years ago - that was a new, inventive way of using the computer, different from how computers had been used before. Alice talks specifically about "wholly generic computer implementation" as not adding anything to the application.
"suggesting an additional good or service... based on certain information obtained about the customer and the initial purchase" is not a 101 "process" as defined by the Supreme Court. The Supreme Court has defined "process" as "technological process". Therefor it falls outside the statute and 103 does not apply. Even non obvious improvements that are actually novel would not apply. Your patent has to target something in the list of things in 101.
I wouldn't have a problem with that.
But that seems unlikely. The system is out of control, and the societal costs of bad patents are both huge and unfairly distributed.
Since lots of great software was written before it was patentable, there is no reason to believe that patents are necessary to help create good software.
Since lots of great open source software is still being written now, there is still no reason to believe this.
So we have a system that provably isn't needed, and that provably causes great harm in some cases. The best fix for such a situation is a wooden stake to the heart.
Then please allow me to follow up: How does it benefit the public to exclude free software from the market in favor of a cartel?
Thanks for the explanation.
If you think I voted for Trump because of this post, you're wrong. I voted for Dr. Jill Stein of the Green Party. Again.
The USPTO also has a massive conflict of interest in being dependent on funding from application and maintenance fees.
Actually, like all other executive agencies, the USPTO is dependent on funding from Congress. The fact that it collects fees is irrelevant- to the extent that it collects any fees above its statutorily-authorized budget, it may not spend them. Indeed, prior to the passage of the Leahy-Smith America Invents Act, any excess was typically entirely withheld from the PTO. Now it just sits in a “Patent and Trademark Fee Reserve Fund” unless and until Congress says they can spend it.
I just want to say thank you. I'm a layman, but I've read a lot of your work and I appreciate knowing that there are lawyers trying to push back against the nonsense wherein anyone can "reinvent" old things by adding a few magic words on a patent application. It's sad when I can explain to anyone else (other than certain patent lawyers) how absurd it is to split the tests up to a degree where you can have an invention where the patentable part of the invention isn't new and the new part of the invention isn't patentable.
But [old thing] + "on a computer" should be non-patentable because of obviousness, not because of ineligibility.
If [old thing]+ is ineligible under 35 USC 101, why would [novel & non obvious thing]+ be eligible?