Supreme Court to hear software patent-troll case

The Supreme Court of the United States on Monday will hear a case on whether a concept that can be implemented in software on a general-purpose computer can be protected by patent. The case—Alice vs. CLS Bank—deals with claims of patent-assertion entity Alice Corp. against CLS Bank, which has implemented an escrow system on which Alice claims to hold patent protection.

Many organizations have filed amicus briefs in the case, as compiled at SCOTUSblog. Fortune has concise summaries of briefs filed by organizations including Google, Microsoft, Netflix, IBM, and the Software Freedom Law Center.

For example, Google, Amazon, Facebook, Verizon, et al. contend, “Patents that merely claim abstract ideas implemented on computers or over the Internet are invalid under 35 U.S.C. §101. Such patents contribute nothing meaningful to the abstract idea.”

Microsoft, Adobe Systems, and Hewlett-Packard offer a similar perspective: “Petitioners' patents claim a method of performing escrows—an otherwise unpatentable business method—to which petitioner has essentially bolted on the directive 'perform that method on a computer.' But merely saying, 'perform an otherwise unpatentable idea on a general-purpose computer' does not make the idea patentable.” Their brief goes on to cite a previous case, Bilski vs. Kappos, in which “…the Court held that the abstract idea of hedging was not patentable.”

Seeming to share that view are the Software Freedom Law Center, Free Software Foundation, and Open Source Initiative, who write, “Computer programs are algorithms for computers to execute written in human-readable terms. Standing alone, without specialized machinery or the transformation of matter, they are not patentable….”

LinkedIn, Netflix, Rackspace, Twitter, et al. contend, “Software patents do not serve the Constitutional purpose of the patent system: to promote the progress of science and the useful arts. Software companies, including the undersigned, do not innovate in hopes of obtaining software patents. Rather, we create innovative software because of our desire to delight our customers and despite, not because of, the patent system.”

The brief continues, “Amici take no position in this brief on what the law of patentable subject matter requires, or on whether software should be patentable. But some have suggested to this Court that software patents are necessary to support innovation. They are not. The undersigned believe that innovation happens despite software patents, not because of them.”

IBM takes a different view, stating in its brief, “Software is not a new technology. It has been around in various forms for well over half a century. During that time, it has become one of the fundamental building blocks of innovation and technological advancement, and a critical part of our nation’s economy. Software is the medium for innovation in every field, from automobiles to manufacturing to medicine. The fact that the Court is now—in 2014—actively considering such a basic question as whether computer-implemented inventions such as software are even eligible for patent protection is deeply troubling.”

The brief does suggest that software patents may fail the test of obviousness, stating, “The test for whether a patent is invalid for obviousness under § 103 is clear and easy to apply.” The brief concludes, “For all these reasons, this Court should hold that computer-implemented invention ns such as software constitute patent-eligible subject matter under 35 U.S.C. § 101, and that potential patentability problems with such inventions should be addressed under the other requirements of the patent statute….”

The IEEE-USA agrees at least in part with IBM and has submitted a brief (in support of neither party) that contends, “The execution of software depends on real, physics-based, processes.” The brief goes on to state, “Our 21st century economy depends on software-implemented systems. The Court must protect the public’s settled expectation that nearly 1 million patents on such systems, particularly those that protect large investments in system development, will remain valid.”

The IEEE brief is an interesting read. It tutors the Court on topics ranging from the binary number system to microprocessors and hard drives. It goes so far as to suggest that if software patent protection is weakened, engineers will hide their innovations within FPGAs—”even at a loss of design flexibility or system performance.” (I'll grant the former but question the latter.)

The brief concludes, “IEEE-USA respectfully submits that failing to preserve the patent-eligibility of software implemented solutions, or even diminishing the scope of their patent-eligibility, will lessen our country’s ability to fulfill the directives of the U.S. Constitution '[t]o promote the progress of science and useful arts.'”

The IEEE-USA presents a compelling argument (more so than IBM), but so too are the arguments from Google, Microsoft, LinkedIn, and the Software Freedom Law Center and their co-amici.

Writing in the New York Times, Robin Feldman, a professor at the University of California Hastings College of the Law, provides an explanation of how evolving patent law has led up to the Alice vs. CLS Bank case. “Since the mid-1990s, the software patent system has operated by its own rules. Compared with patents for other innovations, those for software are granted using a very broad and lax standard of invention,” she writes. “But by the 1990s, lower courts had to consider the patentability of pure software, things like Adobe Acrobat that are not hard-wired into a machine.” The problem the courts wrestled with was how to separate software from mathematical formulae. Feldman writes, “…to avoid the appearance of patenting mathematical formulas, they blessed an approach to software patenting that merely described, in simple English prose, what the invention did. Thus did we end up with our dysfunctional arrangement.”

I'm not ready to embrace the contention Software Freedom Law Center et al. that computer programs standing alone are not patentable. I agree with Feldman, who suggests that a patent should be “appropriately aimed at a specific commercial application rather than a broad concept.”

She concludes, “Patent trolling is a multidimensional problem, and it will take efforts on many levels to bring it under control. But an effective decision by the Supreme Court, ensuring that software patents meet the same level of rigor as other patents, would be an important contribution to stemming the tide.”

The New York Times puts it succinctly in an editorial: “The Obama administration argued in a friend of the court brief supporting CLS that Alice’s system merely uses a computer to do what it was designed to do—perform calculations, store information, and communicate with other devices. The Supreme Court should make clear that nobody should be allowed to claim a monopoly over an abstract idea simply by tying it to a computer.”

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