While there are lots of problems with the entire patent system, the question of software patents is particularly important to those in the tech industry. Many feel that, even if the overall system itself is fine, software patents should not be allowed. For many years, of course, everyone assumed that software patents were not allowed. However, with a skewed and out of context reading of a Supreme Court ruling on patent scope, the Federal Circuit court opened the floodgates by a series of rulings that didn't change the law -- but just alerted the world to the fact that it believed software patents were perfectly legitimate. Thus, began the landrush in the US (for a good history on the topic, by the way, we highly recommend Innovation and Its Discontents
). However, the Supreme Court itself never really weighed in on the topic, which potentially leaves it as an open question as to whether or not software patents really
are patentable. In the last year or so, the Supreme Court has taken a surprising interest in patent law
, suggesting that they've finally realized that the Federal Circuit has gone a little haywire in its interpretation of the patent system. They've looked at things like patent injunctions
and patent obviousness
(still waiting on that one), but not specifically about whether or not software is patentable.
However, that apparently hasn't stopped one group from trying to sneak the issue into a recent patent case. The specific case is one we discussed before, between AT&T and Microsoft, which focuses on whether or not patent protection expands beyond US borders
-- which is an interesting case on its own
. However, it opened up an opportunity for the Software Freedom Law Center to file an amicus briefing about the patentability of software
. The briefing argues that the lower court decision was based on a ruling saying that software is patentable, while pointing to various Supreme Court precedents about why it should not be covered. It seems unlikely that the Supreme Court will pay much attention to this particular angle at all, but hopefully it will get them thinking about the idea of software patents, and potentially make them more willing to hear a case on that specific subject some time in the future.