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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.'
I read Patently-O. Thank you for all that you do. I'm also a patent attorney. I work in-house at a software company where I'm Chief IP counsel. I cannot help but think when reading patently-o (and PatentDocs and IPWatchdog and others) is that the readership is so skewed to patent attorneys who view the world as fundamentally formed around patents. When a patent attorney like myself makes any argument about the ludicrous nature by which the scope of patents has grown, either in comments or otherwise, it is mostly met with cries of being part of the anti-patent brigade.
What Alice has shown to me is that the generalist legal world (e.g., the one in which the SCOTUS lives) view patents with much, much more skepticism. In my opinion, rightfully so. Patent attorneys get their undies in a bunch about Alice-like precedent "violating" the territories of 102 and 103. But that misses the forest for the trees.
As you suggest, Alice is in but a long line of cases where the Supreme Court looks at the forest, not the trees. Recognizes the absurdity and attempts to restore some sanity.
One caveat to the "if morse had won comment" is that our system allows for multiple overlapping patents. Thus, although Morse had the general concept of transmitting characters, another person could still patent a particular implementation that was inventively different that what Morse had accomplished. A third party wanting to use the new implementation might then need to get permission from both patent owners.
Many software patents fail the obviousness test or get by because of ignorant examiners. A disproportionate number of software patents are just doing something that is commonplace in the physical world but only now "with a computer" or "over the internet" as the innovative step. Then comes the standpoint that algorithms aren't patentable while many software patents are only describing an algorithmic process.
The USPTO also has a massive conflict of interest in being dependent on funding from application and maintenance fees. They milk the gravy train of software patents for all it's worth even if it isn't in the public interest to do so as demonstrated by all the NPEs that collect patents for the sole purpose of litigation. It's easiest for the trolls to do this with software patents because it requires little expenditure of effort to come up with something "novel" that will get accepted by an examiner.
I am becoming gerund, destroyer of verbs.
I think this procedural aspect is critically important. Patent litigation is incredibly expensive. Defendants generally expect to spend >4 million dollars to defend against allegations of infringement. Post-Alice, judges have been ruling on the issues very early in litigation and cutting of those costs and timelines. As Theaeteus mentions, the problem with this approach is that it is generally done without full development of evidence. As a policy-matter, it remains unclear which approach is better (we don't know how good judges are at making the 101 determination (knowing it when they see it)).
They've been great in the two major 101 cases, Bilski and Alice. Hardly anyone thought those claims were (or should have been) valid, as the methods were old and well known... But that's also like going back to the old obscenity cases and having your "test case" be Two Girls, One Cup. The old saying "bad facts make bad law" is true primarily because everyone agrees with the outcome based on those bad facts... but then it's used as precedent in cases where the facts aren't nearly so bad.
As an aside, patents have a historic tie to property law, hence things like permanent injunctions and willful infringement damages... but maybe that's not such a good thing, as they're primarily economic instruments. It leads naturally to equity-based judgements rather than concrete tests and rules... people would be outraged if judges were routinely invalidating contracts as a matter of law on a "I know it when I see it" justification.
If we did away with the property tie and abandoned permanent injunctions and what are effectively punitive damages, in exchange for compulsory licensing and reasonable royalties, a lot of the issues people have with trolls would go away, too.