10 Judges, 135 Pages Of Ruling About Software Patents… And Zero Clarification
from the wtf? dept
Okay, we know that the Court of Appeals for the Federal Circuit (CAFC) has quite the reputation for mucking up rulings concerning patents over the years. In fact, there’s a strong argument to be made that CAFC is a key reason that our patent system is so screwed up today. So, leave it to CAFC to issue one of the most bizarre and useless rulings ever concerning software patents. The specific case is CLS Bank v. Alice Corp, and we had noted this was a chance for CAFC to actually fix the software patents problem, though the oral hearings suggested a very conflicted court, and that’s certainly what came out in the ruling. Or, rather, I should say: rulings.
The document is 135 pages… but the only part that actually matters is one single paragraph that was issued “per curiam” (i.e., by the whole court, but without anyone being named):
Upon consideration en banc, a majority of the court affirms the district court’s holding that the asserted method and computer-readable media claims are not directed to eligible subject matter under 35 U.S.C. § 101. An equally divided court affirms the district court’s holding that the asserted system claims are not directed to eligible subject matter under that statute.
Basically, a majority of the court agreed with the district court that the “invention” in the patent in question — about using a computer to basically do “shadow transactions” to net out a deal to make sure that all funds are available — was patent ineligible subject matter. This is what the district court had found, saying that it was just an “abstract idea.” The original CAFC appeal had overturned that, saying that it was patentable subject matter. This was a rehearing “en banc” with 10 CAFC judges. Notice that 10 is an even number. Meaning, you could have a split court. Or, you could have a court in total disarray, which is what came out here. Even though they (mostly) agreed that the specific claims here are not eligible for a patent, the court disagreed on why or how or what color the sky is, basically.
There are seven (count ’em) different opinions issued in the document, none of them meaning anything, because none of them — other than that one paragraph above, have more than the majority in agreement.
Even where they agree, they disagree, and make something of a mockery of the whole system. Dennis Crouch at Patently-O summarizes it thusly:
All of the judges recognized that the test for patent eligibility under section 101 should be “a consistent, cohesive, and accessible approach” that provides “guidance and predictability for patent applicants and examiners, litigants, and the courts.” However, the judges hotly disagree as to the pathway that will lead to that result.
That’s kind of funny (or ridiculously distressing) when you think about it. The court is saying we need a clear and consistent approach to figuring out what is patentable, and the court feels that it needs to give very clear guidance to everyone about it… and then goes on to absolutely disagree on every key point within that. The end result is that while they agree we need consistent, cohesive and accessible guidance, they fail to offer any, and actually do the opposite, providing a huge mess.
Five of the judges did make a fairly interesting ruling, which would greatly limit software patents. It notes that:
… 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…. At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could. Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility. In short, the requirement for computer participation in these claims fails to supply an “inventive concept” that represents a nontrivial, nonconventional human contribution or materially narrows the claims relative to the abstract idea they embrace.
Basically, just adding “on a computer” shouldn’t make a general idea patentable. That’s good. If only they could have found a sixth judge to support it. Instead, you get the following table of contents:
Opinion for the court filed PER CURIAM.
Concurring opinion filed by LOURIE, Circuit Judge, in which DYK, PROST, REYNA, and WALLACH, Circuit Judges, join.
Concurring-in-part and dissenting-in-part opinion filed by RADER, Chief Judge, LINN, MOORE, and O’MALLEY, Circuit Judges, as to all but part VI of that opinion. RADER, Chief Judge, and MOORE, Circuit Judge, as to part VI of that opinion.
Dissenting-in-part opinion filed by MOORE, Circuit Judge, in which RADER, Chief Judge, and LINN and O’MALLEY, Circuit Judges, join.
Concurring-in-part and dissenting-in-part opinion filed by NEWMAN, Circuit Judge.
Dissenting opinion filed by LINN and O’MALLEY, Circuit Judges.
Additional reflections filed by RADER, Chief Judge.
And, basically, all of this means nothing. It doesn’t help to wipe out or clarify software patents at all. It doesn’t really help anyone. It probably doesn’t make anyone on any side of this issue happy. It just leads to more confusion.
However, as Julie Samuels at the EFF notes, hopefully this will help make it clear to the Supreme Court that it finally needs to issue a clear ruling on software patents, after completely punting the last time it had a chance.