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Death of the Software Patent? It Doesn't Have to Be
The eligibility of software for patent protection is in the spotlight once again, but this time it is the U.S. Supreme Court that might be making the decision. Oral argument has already taken place in Alice v. CLS Bank. Although the Supreme Court will not render its decision for several months, the case has already attracted significant attention. READ MORE »
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Alice Corp. v. CLS Bank International, a legal case about software patents that the United States Supreme Court will hear in 2014, presents the issue whether certain claims about a computer-implemented, electronic escrow service for facilitating financial transactions concern abstract ideas ineligible for patent protection.[1] It is the first Supreme Court case on the patentability of software since Gottschalk v. Benson in 1972.[2] This case could establish a test of patent-eligibility that clarifies under what circumstances one may patent software or can be found to be infringing on a software patent.
The Justices have danced around the question for years. Critics (including a decided majority of academic analysts) have bemoaned the drag on innovation for decades. And when the Supreme Court granted review in Alice Corp. v. CLS Bank International, there was a prospect that the Court would shed some much-needed light on the question whether (or when) the Patent Act authorizes patents on software (more specifically, on computer-implemented inventions). But by the end of the argument it seemed plain that few (if any) of the Justices were inclined to provide any large pronouncements on that front (or any other front).
Many lawyers come to the law for its deep philosophical questions—questions of morality, jurisprudence, and the public good. These people usually think that patent law is exclusively for dorks, and that they should avoid it like the plague (in its generic, metaphorical sense—they aren’t really interested in the microbiology). This is ironic, because patent law has a tendency to pose some of the hardest and most interesting philosophical questions the law has to offer: What does it mean to invent a composition of matter or a new thing? Where do we draw the line between the laws of nature and the application of those laws in some product of human ingenuity? Think a computer is obviously a new and patentable machine? (That’s got to be right.) Well how will you deal with the fact that every piece of new software arguably makes it new again, capable of doing something no other machine has done before? That thing the computer is doing may be very close to a patent-ineligible abstract idea or law of nature. Should the software nonetheless be patent-eligible? Always, often, sometimes, never? This year’s intellectual property blockbuster, Alice Corp. v. CLS Bank International, poses some of these questions.
The Justices have danced around the question for years. Critics (including a decided majority of academic analysts) have bemoaned the drag on innovation for decades. But now the Supreme Court will have a chance to face the question squarely, in Alice Corp. v. CLS Bank International: does the Patent Act authorize patents on software – more specifically, on computer-implemented inventions?
Renewing its recent fascination with the kinds of inventions that can be patented, the Supreme Court on Friday agreed to clarify when an analytical method implemented by a computer or by a link on the Internet is eligible for monopoly protection. This was the only new case granted. The Court will be reviewing a widely splintered decision by the U.S. Court of Appeals for the Federal Circuit, in the case of Alice Corporation Pty. Ltd. v. CLS Bank International(docket 13-298). The en banc Federal Circuit found the method at issue ineligible for a patent, but a majority could not agree on a standard for making such decisions.
