Supreme Court To Hear Key Case On Software Patents That Appeals Court Couldn't Figure Out

from the time-to-clear-up-the-mess dept

Earlier today, the Supreme Court agreed to hear the appeal on the Alice vs. CLS Bank case which is yet another case that looks at the patentability of software. The ruling in the Federal Circuit appeals court (CAFC) was one of the biggest judicial messes you'll ever see. The ruling was 135 pages of different judges all disagreeing with each other. In all of that there is only one single paragraph that the court agreed on -- one which rejected the patent as not being patentable subject matter. But as for why they did that? No one could agree. Chief judge Randall Rader has called that decision "the greater failure of my judicial career."

Now the Supreme Court can fix it, and hopefully can establish clear rules -- potentially ones that wipe out software patents entirely, though I'm not convinced they'll go that far. To some extent, the Supreme Court has itself to blame. Back in 2010, in the Bilski case, the Supreme Court had the chance to set clear rules of the road concerning software patents, but instead chose to punt, ruling incredibly narrowly (basically saying "the test the courts use isn't the only test, but we won't tell you what other tests to use"). Because of that, no one knows what tests should be applied to see if software (and business methods) are patentable, and that leads to complete messes like the CAFC ruling in the Alice v. CLS case.

At the very least, one hopes that the Supreme Court will clear things up, rather than punting again by ruling very narrowly. Part of the role of the Supreme Court is to set the standards for the lower courts to follow, based on the Constitution (and the law). Instead, lately, it seems to look to rule very narrowly and to let these issues keep bouncing around without any clarity at all. Hopefully, the Supreme Court will recognize that its own earlier precedents should have effectively made software unpatentable, but even if it won't go that far, a clear rule would be a step forward.


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  •  
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    Jay (profile), Dec 6th, 2013 @ 3:58pm

    Is it just me...

    Wow... We really set up a great Constitutional Monarchy where 9 wise elders can decide on how to figure out patent law and copyright over the needs of the public...

     

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      Anonymous Coward, Dec 7th, 2013 @ 4:13am

      Re: Is it just me...

      … where 9 wise elders can decide…

      In questions of statutory interpretation, isn't the court just figuring out whatever it was that Congress actually wrote? Deciding how to concretely apply the policy that a co-equal branch of government has set forth?

      Sure, it is reasonable to assign blame for a disfunctional Congress to the citizens of the electorate.

       

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        Jay (profile), Dec 7th, 2013 @ 11:16am

        Re: Re: Is it just me...


        In questions of statutory interpretation, isn't the court just figuring out whatever it was that Congress actually wrote?


        Judicial review is the Court deciding what Congress says. But there's a problem. You have them basically turning over laws even though the public has high support for them such as the Civil Rights Act or copyright law to make it more supportive to corporations.

        This power is NOT in the Constitution no matter how you look at it. This is a legislative power that Congress has power over.

        What you're suggesting is that the government decides how to rule over the public without the public having a say so in those laws. That isn't quite how a democracy should work.

         

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    Any Mouse, Dec 6th, 2013 @ 4:36pm

    I have a great idea for a test (that will never be used because it makes too much sense).

    1. Is it covered by copyright? If so then no patents.

    No double dipping on the IP monopolies.

    This would be a good short term fix. There would still be problems, but nowhere near as many.

     

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    M. Alan Thomas II (profile), Dec 6th, 2013 @ 4:55pm

    The Supreme Court has been known, on rare occasion, to issue 10 opinions (1 per curiam and 1 per justice). By that measure, the CAFC did pretty well.

    It is, however, a well-established principle that the courts should usually rule as narrowly as possible to avoid rewriting large sections of the law when they don't have to. Of course, that principle can and should be set aside in favor of clarity at times.

     

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      Anonymous Coward, Dec 6th, 2013 @ 5:03pm

      Re:

      Of course, that principle can and should be set aside in favor of clarity at times.

      The principle that the Article III courts are limited to deciding actual “cases and controversies” show not be set aside, though, no matter how much clarity might be obtained if the courts were to instead write philosphical dissertations expounding upon hypothetical situations.

       

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    Anonymous Coward, Dec 6th, 2013 @ 9:08pm

    Apparently the law is so complex that even the supremes can't handle it anymore.

     

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    Pike, Dec 6th, 2013 @ 10:01pm

    Truth

    A software patent that is not reliant on specific hardware innovations should never be allowed.

     

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      Anonymous Coward, Dec 7th, 2013 @ 1:47am

      Re: Truth

      If the innovation is in hardware, then a hardware patent is relevant, and there is no need to patent the software as well. If both are patented, then it becomes possible to block a different hardware solution to the problem by using the software part of the patent.

       

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    Anonymous Coward, Dec 7th, 2013 @ 3:54am

    Legislating from the bench

    At the very least, one hopes that the Supreme Court will clear things up, rather than punting again by ruling very narrowly.
    And yet, Mike, not four hours later you've posted a complaint decrying an Article III court's procedure in determining substantive rights when a party has not had an opportunity to be heard on an issue.


    Part of the role of the Supreme Court is to set the standards for the lower courts to follow, based on the Constitution (and the law).
    We might presume that grants of certiorari provide clear public notice to anyone whose rights may be affected by a decision. Further, there's an established role for amici in Supreme Court cases.

    But should parties whose cases are not properly before the court be afforded an opportunity to intervene as of right, on the grounds that the Supreme Court's decision in one case is also legally deciding some other case or controversy as well?

     

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    Gerald Robinson (profile), Dec 7th, 2013 @ 8:53am

    SW patents

    There are only two software patents I'm aware of which are legitimate. Lempel ziv and GIF; the rest are simple business methods or obvious HUI which should not be patentable at all. Adding "computer" or "Web" does not make a normally used procedure patentable! Barring all software patents may be a bit extreme but may be the only solution. I can't articulate any clear criteria on what should make software patentable. Maybe because I'm stupid or maybe because there aren't any. I know it when I see it is not a viable criteria.

     

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      Mike Acker (profile), Dec 7th, 2013 @ 4:44pm

      Re: SW patents

      i looked up "what is patentable",-- the wickedpedia essay states that the idea may not be abstract and must be non-obvious.

      to me, for example, scanning a page to .pdf and then sending the .pdf via e/mail is an obvious use of 2 tools . how long did it take people to figure out they could print a page and then fax it ?

      slide to unlock? how long have there been slide locks on barn doors? hmmmmm . any simple migration of an existing process to a computer program -- to me -- is "obvious". back in the Days of the Mainframe that's how we came up with all our COBOL programs .

      oth, the math used in PGP to construct the public/private keys, I would say, is non-obvious. I read the description of how that is done and to me it was non-obvious.

      in this, as in so many laws though, congress writes the laws, then we have a court case to establish precedent and then court tells us how they will enforce it. ( stare decisis.)

       

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    staff, Dec 7th, 2013 @ 9:30am

    lies and damned lies

    Property rights and jobs in America are now hanging from a frayed thread. Congress and the White House continue to follow the lead of their multinational campaign donors like lambs...pulling America along to the slaughter.

    Just because they call it patent "reform" doesn't mean it is.

    All this patent ‘reform’ talk is mere dissembling by China, huge multinational thieves and their paid puppets -some masquerading as pseudo reporters, some in Congress, the White House and elsewhere in the federal government. They have already damaged the American patent system so that property rights are teetering on lawlessness. Simply put, their intent is to legalize theft -to twist and weaken the patent system so it can only be used by them and no one else. Then they can steal at will and destroy their small competitors AND WITH THEM THE JOBS THEY WOULD HAVE CREATED. Meanwhile, the huge multinationals ship more and more American jobs to China and elsewhere overseas.

    Do you know how to make a Stradivarius violin? Neither does anyone else. Why? There was no protection for creations in his day so he like everyone else protected their creations by keeping them secret. Civilization has lost countless creations and discoveries over the ages for the same reason. Think we should get rid of or weaken patent rights? Think again.

    Most important for America is what the patent system does for America’s economy. Our founders: Jefferson, Franklin, Madison and others felt so strongly about the rights of inventors that they included inventors rights to their creations and discoveries in the Constitution. They understood the trade off. Inventors are given a limited monopoly and in turn society gets the benefits of their inventions (telephone, computer, airplane, automobile, lighting, etc) into perpetuity and the jobs the commercialization of those inventions bring. For 200 years the patent system has not only fueled the American economy, but the world’s. If we weaken the patent system we force inventors underground like Stradivarius and in turn weaken our economy and job creation. For a robust economy America depends on a strong patent system accessible to all -large and small, not the watered down weak system the large multinationals and China are foisting on America.

    For the truth, please see http://www.truereform.piausa.org/
    https://www.facebook.com/pi.ausa.5
    http://piausa.wordpress.com/
    http://www.hoover.org/publications/defining-ideas/article/142741
    http://cpip.gmu.edu/2013/03/15/the-s hield-act-when-bad-economic-studies-make-bad-laws/

     

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    Anonymous Coward, Dec 7th, 2013 @ 11:31am

    In questions of statutory interpretation, isn't the court just figuring out whatever it was that Congress actually wrote?
    What you're suggesting is that the government decides how to rule over the public without the public having a say so in those laws.

    Run that one by me again.   Slowly.   Because you are not making sense to me.

    You do agree that Congress is an elected body, right? Further, you do agree that the public, by both long-standing tradition and current practice, has additional opportunities to make their views known to the legislators while statutes are being drafted and enacted?

     

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    BernardoVerda (profile), Dec 7th, 2013 @ 10:59pm

    Here's the good news

    "The ruling was 135 pages of different judges all disagreeing with each other. In all of that there is only one single paragraph that the court agreed on -- one which rejected the patent as not being patentable subject matter. But as for why they did that? No one could agree."

    In other words:
    It doesn't matter how you come at it, it doesn't matter how you break it down, or how you try to split hairs... The answer still comes out the same -- "Not patentable!"

     

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      Anonymous Coward, Dec 8th, 2013 @ 1:55am

      Re: Here's the good news

      It doesn't matter how you come at it, it doesn't matter how you break it down, or how you try to split hairs... The answer still comes out the same

      No. The end-result comes out different depending on which judges decide.

      Review what happened: First the district court rejected the patent. Then a three-judge panel of the CAFC reversed the district court.

      Then the CAFC reconsidered en banc. While Mr. Masnick's article here summarizes, the en banc decision by saying that there was “one single paragraph that the court agreed on”, and while that's a reasonable summary, nevertheless it's misleading to the extent that it implies more agreement than there was. There was a lot of disagreement. A significant amount of disagreement. A material disagreement.

      PER CURIAM.

      Upon consideration en banc, a majority of the court affirms the district court's holding…

      An equally divided court affirms the district court's holding…

      AFFIRMED.

      (Emphasis added.)

      Thus, it depends on which judges decide.

      In a future case, without the benefit of the Supreme Court's pending decision in this case, who knows what any random three judge panel of the CAFC would do, bottom line.

       

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    Isaiah True Eagle, Dec 8th, 2013 @ 8:49am

    Software Patents

    Consider: all code contains numbers, numbers, special characters ( & * = e.g ). If coding is patented then every human who uses any or all the above stand to be sued on grounds of copyright infringement! Cannot any Law or Human understand that? In fact, any Corporation or Person already stands to be sued now, including the Court System for Patent Infringement just because they have written a note, performed math functions, thought or have spoken in any language!
    Given the above ought not code patent applications be disallowed?

     

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    Just Sayin', Dec 9th, 2013 @ 2:36am

    Unlikely to get your wish

    I think you are unlikely to get the result you want because you seem to be wishing that courts address all sorts of different issues which are not really in play here. They are generally not going to get overbroad and try to write law from the bench.

    Rather, they are likely to look at the implications of this case by itself, and very likely punt, come down narrowly on one side or the other with a note that their judgement isn't relevant outside of this narrow case, and kick the rest of the mess back to the law makers.

    Put another way, if the courts rule that the current patent law does not for some reason support software patent and all the other stuff you dislike, then congress would likely just modify the law to get rid of whatever the justices twigged on, sending the whole deal back for another cycle on the next case.

    So the probably end result here is a solid punt, perhaps even a narrow affirmation of software patents in certain cases, which would leave you with little leverage on your anti-patent crusade.

     

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