Here's Hoping The Supreme Court Does Not Blow Another Opportunity To Fix The Software Patent Problem

from the ditch-those-patents dept

Four years ago, the Supreme Court had a chance to establish once and for all whether or not software was patentable. The Bilski case got all sorts of attention as various parties lined up to explain why software patents were either evil, innovation-killing monsters or the sole cause of innovation since the cotton gin and everything in between (only slight exaggeration). Rather than actually answer the question everyone was asking, the Supreme Court decided to rule especially narrowly, rejecting the specific patents at stake in the case and saying that the current test used to determine patentability (the so-called “machine-or-transformation” test) need not be the only test for patentability. However, it declined to say what tests should be used, leaving it up to the lower courts to start ruling blindly, making up new tests as they went along. And muddle along blindly they did — right up to the height of pure absurdism in the CAFC (appeals court that handles patents) ruling in the Alice v. CLS Bank case, in which every single judge disagreed with each other. The ruling was 135 pages of confused mess where all justices only agreed on a single paragraph, which (like Bilski) said this particular patent was invalid, but no one could agree why.

In the wake of this, the Supreme Court agreed to hear the appeal, and once again it appears that tons of folks are lining up on the various sides, pushing the Supreme Court to either validate, toss out or at least provide a more clear test on the patentability of “abstract ideas” within the software context. The specific question the Supreme Court is being asked to resolve is:

Whether claims to computer-implemented inventions – including claims to systems and machines, processes, and items of manufacture – are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court.

The oral arguments were heard earlier today, and, as per usual, reveal little about what the Supreme Court is really thinking (trying to divine which way the court will land based on oral arguments rarely works out well). The Bilski ruling is mentioned repeatedly, and everyone seems to want to bend over backwards to not outlaw “software patents,” but what we really need is for the Supreme Court to issue a clear ruling on what is and what is not patentable in this arena.

If you want to take a look at how we got here, including how the Supreme Court really outlawed software patents decades ago, only to then have the CAFC bring them back (in a big, bad way) while the Supreme Court was looking elsewhere, Tim Lee’s final story at the Washington Post has all of the gory details. Jeff John Roberts, over at GigaOm has a nice compact piece on what’s at stake directly in this case. Meanwhile, even the NY Times has weighed in with an editorial hoping the Supreme Court sets clear rules against abstract ideas being patentable.

Since the messy Bilski ruling, the Supreme Court has taken slightly more aggressive stances in ruling out controversial areas of patenting, including rejecting medical diagnostic patents and gene patents. While companies in both spaces have been trying to get around those rulings, on the whole, they were much clearer and more useful rulings than the messy Bilski ruling on software patents. While the current Supreme Court often seems gun-shy about establishing clear rules of the road on these kinds of issues, preferring to narrowly tailor rulings, hopefully the final ruling in Alice v. CLS Bank will not be the same mess the Bilski ruling left us with, which begat the CAFC’s 135-page mess in Alice.

The Supreme Court had a golden opportunity four years ago to solve a big patent problem… and it blew it. Hopefully, this time it won’t miss the opportunity.

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Companies: alice, cls bank

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Comments on “Here's Hoping The Supreme Court Does Not Blow Another Opportunity To Fix The Software Patent Problem”

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Anonymous Coward says:

Re: Re:

What I don’t understand is this: how did software ever get patented in the first place?

Because under copyright a different program achieving the same end does not infringe, but under patents it does. Hence managers at the big companies got their lawyers to figure out how to patent software by adding the magic words on a computer. Technically they are not patenting the idea, but a machine that implements the idea; which is a fudge to get round the no patenting of abstract ideas.

Anonymous Coward says:

Re: Re:

Copyright deals with expression. Patents deal with ideas. You can use ideas on computers too and mostly both concepts are related to the wheel (patent) or painting (copyright) and not the beautyful ornaments on the wheel (copyright) or the specific colour used in the painting (patent).

In the same way most people do not see the specific colour of the painting, but only what it does for the painting, same goes for source code. It is a fundamental mistake since patenting of source code in obscure language x is equivalent to the source of language y and equivalent to the pure mathematics of numerical machine code.

It is like patenting a specific colour or DNA/RNA-strand, but under the right circumstances you can get away with both, so why not math?

Donglebert The Needlessly Unready says:

Re: Re: Re:

Just because the same output could be generated using different code isn’t a reason for having patents. Indeed, considering that patents are supposed to encourage innovation, doing the same thing in a different way is the desired outcome. That’s how you identify which is the best way of doing something.

Patents are supposed publicly disclose the detail of how they work. Effectively, they need to be reproduceable from the patent. That’s the reason why they’re protected.

If you can’t reproduce the output from copying the patented methodology, then you shouldn’t have a patent.

In software, by the time you’ve documented the methodology in order for it to be replicated, you’ve pretty much got down to the code level. Since that is already covered by copyright, there’s no need for patents.

saulgoode (profile) says:

Re: Re:

What I don’t understand is this: how did software ever get patented in the first place

I attribute it to a combination of things, starting with the unfortunate wording of the Patent Act which says that “processes” can be patented, and then defines processes as follows:

The term “process” means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.

Ignoring the inane circularity of a “‘process’ means process”, the act was amended to employ the word “process” in the 1930s, back when “information processing” was virtually non-existent. So the term as intended by the legislators of the time obviously only referred to processing associated with mechanics, chemistry, and manufacturing for which granting of patent protection is arguably reasonable (or at least the processes are not abstract).

With the advent of computers, and the ability of machines to “process” information, the term took on the connotation of performing manipulations upon purely abstract concepts — something that has traditionally been rejected as deserving of patent protection.

Unfortunately there are many misguided folk who fail to grasp that no matter how much you process an abstract concept (such as information), that concept is still going to be abstract.

Edward Teach says:

Why such narrow rulings?

Yes, why? Why does the current Supreme Court rule so narrowly? It sounds like US Supreme Court in the 60s ruled quite broadly, and gave rhetorical backing to its rulings, you know, civil rights stuff, “Students don’t leave their civil rights at the school door”, things like that.

But it seems like a trend for the SCOTUS to rule so narrowly as to not make a decision at all, lately. “in re Bilski” is one example, but that GPS tracker decision last year is another. Instead of slapping the FBI upside the head for quibbling about should be a straightforward “Freedom from Search and Seizure” decision, the SCOTUS made it all about trespass.

What’s going on here? Is this because only spineless wimps with no record of controversial opinions can make it on the Court these days, or is it because of Bork or can I blame it all on Clarence Thomas’ being totally compromised?

Nevian Caernarvon (profile) says:

Re: Why such narrow rulings?

This isn’t new or different. The Supreme Court decides if laws are constitutional. They don’t Make New Law. That’s not their job, that’s Congress’ job.

You’re right that how much the Supreme Court does changes with the judges. If you’re curious about this look up the term “judicial activism”.

Anonymous Coward says:

Re: Re: Why such narrow rulings?

The Supreme Court doesn’t just decide if laws are constitutional, yes or no. They explicate principles that are used to judge whether laws are constitutional. They also interpret the meaning of statutes apart from whether they’re constitutional, decide if agencies’ rules are allowed by statutory, and write the rules of court procedures, decide disputes between states, and probably some other things I can’t remember.

“Judicial activism” just means “I don’t like what they decided (even though I haven’t read it), but I don’t want to sound like QUITE that much of a naked partisan”. Do you think the Court was activist when it overturned part of DOMA? What about when it overturned part of the Voting Rights Act? Is the only difference that you disagree with one and not the other? Was Roe v. Wade activism? What about Citizens United?

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