Posts Tagged: "CLS Bank"

Alice at Court: Stepping Through the Looking Glass of the Merits Briefs in Alice v. CLS Bank – Part I

The fractured views of the world begin with the question presented, and reflect how different parties frame the debate in very different terms. Alice’s merits brief presents the question before the Court as “whether claims to computer implemented inventions…are patent-eligible.” Putting the question this way allows Alice to place its inventions and claims in the larger context of all computer-implemented inventions, the subtext being that if the Supreme Court holds that computer-implemented inventions are patent eligible—which is a fair bet—then Alice’s patents should be valid. Further, phrasing it this way allows Alice to distance itself from pure business method claims from the invalid claims in Bilski v. Kappos.

Dissecting the Software Patent Amici in Support of CLS Bank

Supporters of CLS Bank have largely responded that software patents hurt innovation. But that can’t be! One of the areas critics always say has been allegedly hamstrung by patents, the smartphones industry, is barely over 6 years old. Have patents stopped innovation of smartphones? Hardly. In fact, with every new version companies tout just how much more the phones do and how they are so far superior to the previous model. Thus, it is easy to see that those claiming that software patents block innovation simply ignore market reality and how the functionality of current devices (which is thanks to software) match up with previous generations of devices over the last 6 years. Corporate critics must also ignore their own marketing of new smartphones, which directly contradicts the ridiculous claim that software patents are preventing innovation. Still they make these and other specious arguments as if they are true.

Software Patent Amici in Support of Petitioner Alice Corporation

That only three briefs are filed in support of Alice Corporation is a little misleading in this case, however, since many of the briefs that were filed in support of neither party come out and directly support the patent eligibility of software. For example, the IBM amicus brief, which was filed in support of neither party, concludes that a Section 101 patent eligibility analysis is the wrong analysis to use in this and similar cases since the abstract idea doctrine is unworkable and yet to be defined by the Supreme Court. IBM suggests the Court use Section 103, the obvious analysis and the well developed case law under KSR, to determine patentability in this and similar cases. Thus, while IBM did not take a position on the specific merits of the case, as with many of the briefs filed, if the Supreme Court were to follow the IBM counsel it would lead to an Alice victory. Even Microsoft/Adobe/HP, which does not support Alice on these claims urged the Supreme Court to find software patent eligible. Thus, characterizing the position of the amici based on whether the support Alice, support CLS Bank or support neither party has proved quite difficult in this matter.

Misnomers, Myths, Misunderstandings and Misconceptions about Software Patents

By Martin Goetz, inventor on the first software patent granted by the USPTO: “Much of this negativism is based on the poor job the US patent examiners have done in weeding out those many patent applications where the so-called invention is just one of the almost infinite, but obvious, ways one can automate a manual or semi-automatic process or procedure. But there are also true inventions that use a computer as part, or all, of the implementation of the invention. There is no reason to throw out the baby with the bathwater. So it is of utmost importance that we examine the many falsehoods related to software patents.”

Amici Urge Caution on Software Patents at the Supreme Court

Chief Judge Michel’s brief makes two major recommendations regarding the essential question of software’s patentability. First, Michel states that the criteria for patent eligibility under Section 101 should only exclude those inventions that are clearly patent-ineligible… In his conclusion, Michel argues that, although all patent applications must first be reviewed under Section 101 for eligibility, the evaluations that take place under Sections 102, 103 and 112 should be applied in the overwhelming majority of patent validity cases. In the case of an implied exclusion under Section 101, as in this case, ineligibility should only be applied in the clearest cases where the patent would preempt the most fundamental building blocks of technology.