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Posts Tagged ‘ software patent ’

Misnomers, Myths, Misunderstandings and Misconceptions about Software Patents

Posted: Thursday, Mar 20, 2014 @ 4:40 pm | Written by Martin Goetz | 29 comments
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Posted in: Computers, Guest Contributors, IP News, IPWatchdog.com Articles, Martin Goetz, Patentability, Patents, Software, US Supreme Court

This article is a follow-up to my January 21st article Why the Supreme Court in the CLS Bank v. Alice Case Should Not Answer the Question on Computer-Implemented Invention.

As I enter my 60th year in the Software Products and Services Industry I am amazed that the question of the patentability of true inventions implemented in software has been discussed and debated for the last 50 years. And again, for the fourth time, it is before the Supreme Court. Many in the media are predicting its death e.g., Obituary for software Patents and Court Case Could Mean ‘Death’ of Software Patents while others just wish it e.g., “Will the Supreme Court Save us from Software Patents?”.

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.

In this new article I intend to provide facts about software and the software industry to debunk these misnomers, myths, misconceptions, and just pure misunderstandings about “software patents”.



Amici Urge Caution on Software Patents at the Supreme Court

Posted: Thursday, Mar 13, 2014 @ 12:54 pm | Written by Gene Quinn & Steve Brachmann | 22 comments
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Posted in: Computers, Gene Quinn, Guest Contributors, IP News, IPWatchdog.com Articles, Patentability, Patents, Software, Steve Brachmann, US Supreme Court

Former CAFC Chief Judge Paul Michel filed an amicus brief in Alice v. CLS Bank.

In a few weeks, the Supreme Court of the United States will begin to hear arguments in Alice Corp. v. CLS Bank International. This case involves the very basics of U.S. patent law, namely what is considered patent eligible, and will have wide-reaching effects in the American technological sector. The case before the Court will ask it to decide upon the patent eligibility of software based on the most foundational aspects of patent law: Section 101 of U.S. Code Title 35. If a category of innovation is not patent eligible under Section 101 it does not matter whether the invention is highly useful, new and non-obvious. In fact, an invention can even be pioneering and revolutionary and not deserve a patent if it is deemed patent ineligible under Section 101. Because a determination that an entire area of technological pursuit can be deemed patent ineligible under Section 101 historically that has been only infrequently used so as to not unnecessarily kill innovative developments in their infancy.

In recent years, however, the Supreme Court has shown far more willingness to find things patent ineligible, which is a disturbing trend. In fact, In Mayo v. Prometheus, the Supreme Court conflated Section 101 with 102 to say that something that a patent claim that does not related to a law of nature was still nevertheless patent ineligible as a law of nature because the additional steps added that made it different than a law of nature were merely conventional. Up until Mayo such an analysis had been mandated by the Supreme Court to occur under Section 102. Indeed, the statute the Supreme Court ostensibly must follow requires novelty and conventionality to be addressed under 102. Thus, as the result of Mayo, and the Supreme Court’s decision in Myriad, there is great concern about the future of patent eligibility because it seems the Supreme Court now seems to prefer to find inventions patent ineligible without the mandated statutory analysis under 102, 103 and 112.

Software innovations are ubiquitous in our country, in use by machines and systems from consumer devices on to basic utility grids. There are numerous individuals who are keenly interested in the outcome of this case, and many have volunteered to participate and provide their insight, opinions and arguments to the Supreme Court. With this in mind we wanted to share some of the most informative amicus curiae briefs that have been filed with the U.S. Supreme Court. We have already published articles about the IBM amicus brief, the brief filed by the Solicitor General and the Trading Technologies amici brief joined by another 45 companies. Now as a part of our ongoing coverage of this case, we’ll look at what several other interested parties have to say about the patentability of software, and how our country’s patent system should be treating this issue.



Software: The Heart and Soul of Many Innovative Advances

Posted: Wednesday, Mar 12, 2014 @ 10:42 am | Written by Charles Cooper | 41 comments
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Posted in: Guest Contributors, IP News, IPWatchdog.com Articles, Patents, Software, US Supreme Court

EDITORIAL NOTE: A diverse group of 46 amici, spearheaded by Trading Technologies International, filed an excellent amici brief worth reading in Alice v. CLS Bank at the United States Supreme Court. The Summary of the Argument is republished here with permission. Charles J. Cooper is the Counsel of Record, but is joined on the brief by Vincent J. Colatriano and William C. Marra (both of Cooper & Kirk), as well as Steven Borsand and Jay Knobloch (both of Trading Technologies)

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In keeping with the Constitution’s expansive grant to Congress of power to secure for “Inventors” exclusive patent rights to “promote the Progress of Science and useful Arts,” U.S. CONST. art. I, § 8, cl. 8, Congress has since 1790 broadly defined the subject matter of inventions eligible for patent protection. For nearly as long, this Court has applied exceptions, of its own making, to Congress’s designation of these “broad patent-eligibility principles.” Bilski v. Kappos, 130 S. Ct. 3218, 3225 (2010). This case focuses on one of those judicial exceptions – the “abstract ideas” exception.

The Court granted certiorari to decide “[w]hether 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?” Importantly, the patent claims in this case do not recite “a scientific truth, or the mathematical expression of it,” [2] Mackay Radio & Tel. Co. v. Radio Co. of Am., 306 U.S. 86, 94 (1939), and no court below entertained any evidence relating to whether the claims are novel and non-obvious under Sections 102 and 103 of the Patent Act. Thus, the question here is whether computer-implemented inventions that are not directed to a scientific truth should be deemed ineligible even if such inventions are novel, non-obvious, and otherwise patentable. [3]



Twilight Zone: The Solicitor General’s Brief in Alice v. CLS Bank

Posted: Friday, Mar 7, 2014 @ 7:38 am | Written by Gene Quinn | 19 comments
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Posted in: Computers, Gene Quinn, IP News, IPWatchdog.com Articles, Patentability, Patents, Software, US Supreme Court

In a few weeks the United States Supreme Court will hold oral arguments in Alice v. CLS Bank. At stake in this case is the future of software patents. Half of the Federal Circuit de facto ruled that software is patent ineligible.  Of course they could not come right out and say that because it would contradict both settled Supreme Court precedent and patent laws enacted by Congress and codified in Title 35 of the United States Code. Nevertheless, the undeniable position of half of the Federal Circuit was that software is not patent eligible because to these Judges none of the claiming techniques that are used to write software patent claims result in patent eligible subject matter being claimed.

In preparation for the oral arguments we are shifting through the briefs. I have already written about the IBM brief, see Supreme Court “Abstract Idea Doctrine” is Unworkable.  We plan multiple articles leading up to the oral argument that discusses the various briefs filed, and complete coverage of the oral arguments. Today, however, I write about the brief of the United States Government filed by the Solicitor General, which is simply disingenuous.

Truthfully, to call the Solicitor’s brief disingenuous is being charitable. The logic, if you can call it that, necessary for the Solicitor’s arguments to be correct is extraordinarily tortured, not to mention circular and dependent upon itself for support. The premise of the argument made by the Government is simply false. The Solicitor tells the Supreme Court that the patent claims in question are to an abstract idea, which is flat wrong. But in a bizarre twist the Solicitor pivots to then say that what is covered is not an abstract idea but it is not necessary for there to be an abstract idea protected in order for the claim to be patent ineligible as an abstract idea. Sadly, I’m not making this up.



Supreme Court “Abstract Idea Doctrine” is Unworkable

Posted: Thursday, Feb 13, 2014 @ 4:35 pm | Written by Gene Quinn | 164 comments
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Posted in: Companies We Follow, Computers, Gene Quinn, IBM, IP News, IPWatchdog.com Articles, Patentability, Patents, Software, US Supreme Court

Paul D. Clement

What follows is the Introduction and Summary of the Argument included in the IBM amicus brief filed at the United States Supreme Court in Alice Corporation Pty. Ltd. v. CLS Bank International. While many attorneys contributed to this brief, as you will see them listed on the front cover, former Solicitor General of the United States Paul D. Clement is the Counsel of Record.

I think it is fair to say that the theme that comes through the loudest in the IBM brief is this: The abstract idea doctrine is unworkable. To that I say a resounding AMEN! If the Supreme Court cannot or will not tell us what an abstract idea is how can we any longer pretend that the jurisprudential path the Court has taken will lead to predictability? At least insofar as software is concerned there is a complete and total lack of predictability. There is also no uniform application of the law, which at least conceptually should raise concerns of disparate treatment of those similarly situated.

Below I provide additional thoughts on the IBM Summary of the Argument in the format of comments from the peanut gallery, or perhaps as a patent law equivalent to Mystery Science Theater 3000 In order to differentiate my thoughts/comments from IBM amicus brief, my comments are italicized, colored, indented and tagged with the IPWatchdog logo.



Software Patent Basics: What Level of Description is Required?

Posted: Saturday, Jan 25, 2014 @ 2:05 pm | Written by Gene Quinn | 7 comments
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Posted in: Computers, Gene Quinn, IP News, IPWatchdog.com Articles, Patent Drafting, Patents, Software, Software Patent Basics

The United States Supreme Court is poised this term to decide CLS Bank v. Alice Corporation, which could make meaningful strides toward settling once and for all the patent eligibility of software. The Supreme Court is known to like to dodge the most important questions we all need answered, and that trend is almost certainly going to continue in any decision in CLS Bank. But the Supreme Court won’t be able to dodge the fundamental question about whether software is patent eligible. The will likely, and unfortunately, dodge the question about what specifically must be recited in patent claims in order to properly define a software, or computer implemented invention.

Software is now and will remain patentable in the United States even after the Supreme Court’s decision in CLS Bank. The Patent Act is replete with references to software and computer implemented inventions. In fact, in 2011 Congress essentially said that tax strategies could not be patented in and of themselves, but this exclusion relating to tax strategies does not render an otherwise patent eligible software program patent ineligible. Thus, Congress has spoken, and on this particular issue Congress will be the final word because there is no chance the Supreme Court will rule software patents unconstitutional. That issue is not even before the Court.

Congress clearly has stated that at least some software is patent eligible, and so will the Supreme Court. That being said, the real question is how do you describe a software related invention to satisfy the patent requirements? The short answer is that it takes quite a bit more disclosure than you might otherwise think. Long gone are the days of cheap, easy software patents.



Why the Supreme Court in the CLS Bank v. Alice Case Should Not Answer the Question on Computer-Implemented Invention

Posted: Tuesday, Jan 21, 2014 @ 8:00 am | Written by Martin Goetz | 76 comments
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Posted in: Computers, Guest Contributors, IP News, IPWatchdog.com Articles, Martin Goetz, Patents, Software, US Supreme Court

An open letter to the Supreme Court…..

In the CLS Bank v. Alice Corp upcoming Supreme Court case, Alice poses the question… “Whether claims to computer-implemented inventions – including claims to systems and machines, processes, and items of manufacture – are directed to patent-eligible subject matter…”

That’s absolutely the wrong way to phrase a question about inventions. Equally wrong is the same boiled down twin sister question “Is software patentable” which has now been debated around the world for almost 50 years.

As the recipient of the first software patent in 1968 and a founder of Applied Data Research (ADR), the first company to market software products, I have intensely followed and written about the software patent controversy for almost 50 years.

Here’s why the Alice question should not be answered by the Supreme Court in its present form.



What happens to IP law in 2014?

Posted: Thursday, Jan 2, 2014 @ 4:49 pm | Written by Robert Stoll | 6 comments
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Posted in: Guest Contributors, International, IP News, IPWatchdog.com Articles, Patent Reform, Patents, Software

It’s 2014, and an angel calls me “grandpa”!  What happened to that teenage kid in the mirror — and who is the old man staring back at me?  Well, at least the acne is gone. Enough on the personal horrors of aging (which are way worse than any Hollywood syfy).  What happens to IP law in 2014?

Near the end of 2013, the Supreme Court granted cert in CLS Bank v. Alice on issues related to software patentability, and many expect that the sagacious Justices will clarify the confusion they created about patent eligibility in earlier decisions, like Prometheus, that were amplified in the splintered en banc panel on CLS Bank at the Federal Circuit. I prophesy that the best we can hope for is a Bilski-esque  vague instruction (wherein our top court opined that some business methods are patentable, citing the machine or transformation test as one viable test, without pointing to other valid tests and without enlightening the confused public.)

The Court is once again likely to limit software patentability in some arcane way that harms job creation and stifles economic growth. The bright side is that the Court’s failure to protect our largest growth industries may help spur the legislative branch into further action.  A decade of intermittent patent reforms has created a permanent cadre of patent lobbyists very willing to focus their considerable efforts and talents on a new patent issue.  It would be advantageous to the patent system if that attention were productively channeled to specifically include our emerging technologies in our patent statutes, and to legislate patent eligibility in a manner that treats 101 as the broad filter it was intended to be, while employing the other patent statutes, such as 112 and 103, to correctly provide the narrower filters.