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.
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.
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.
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.
James Madison, father of the Constitution and proponent of strong patent rights.
As the end of 2013 approaches and I look back on what has transpired I am saddened to see that through the year patent rights have continued to erode. It is difficult to comprehend just how far the pendulum has swung. At one time strong patent rights were viewed by our Founding Fathers as obviously necessary. Now any patent rights are ridiculed as a relic of the past that simply stands in the way of innovation. The reality, however, is that patents don’t stand in the way of innovation; patents foster innovation. But so many won’t even take the time to inform themselves. Rather they equate “innovation” with a new consumer product. But to innovate is to do something new. Innovation has nothing in and of itself to do with a new products or services.
What those urging a weaker patent system want is the ability to release products and establish services regardless of whether they are infringing others. But those who infringe are not innovators, at least not in the most broad sense. Sure, they may have improved something, but if they are infringing then what they have done is copy an innovator. How and why that isn’t self-evident is a mystery. Copying is not innovating!
And if patents were getting in the way of innovation then why aren’t we seeing a standstill in the smartphone industry? The arguments made by the anti-patent crowd are ridiculous on their face, yet decision makers just nod their head in agreement as if they speak the gospel. The truth is the smartphone industry started with the iPhone in late 2007. It is just 6 years old! The phones from 2007 look and function nothing like the smartphones do today, and every new version has new improvements, better battery life, stronger structural integrity, glass that is harder to break, operates faster, has better cameras, etc. etc. For an area that is allegedly being suffocated by patents there sure is a lot of readily apparent improvement.
This article is the second in a series to provide some help to the Supreme Court as they prep for CLS Bank. See also Help for the Supreme Court in CLS Bank. Now, I realize the Supreme Court has other priorities; but I, as a patent guy, do not. If we (they) screw this thing up, it will have far, far reaching effects which will not be fully known for years to come. This is the Chakrabarty of our age!
There is considerable popular press antipathy to patents right now; big left coast tech and east coast banking are winning the PR battle, and this needs to be turned around. Did you read any of the overblown amici in Chakrabarty about the awful effects of patenting living organisms? Recently the Wall Street Journal just had an Op Ed about the CAFC being Carter’s Costly Patent Mistake. Is there any greater insult a conservative, allegedly business minded rag could hurl? OMG! I think not. It is time for us to head for the sound of the guns! (Perhaps, just perhaps, a little melodramatic. We shall see. But Gene has already responded to the WSJ article at Defending the CAFC, Again, on Software Patents.)
Why am I addressing such a fundamental issue? Because this is, in part, why we’re so fuzzed up right now about software, computer implemented methods, and business methods, etc. and their originality and patentability. It is hard for the lay person to differentiate. You see, the silicon types have made us believe that computers are on the verge of sentient being capability. We have IBM’s Watson, we have the iPhone Siri, self-driving cars, distance maintaining cruise control, self parking cars, etc. I expect people out there really believe you can ask a “computer” a question and expect it to really “think” up an answer. Our brains, we are told, are just sophisticated computers. Likewise we have people believing computers make mistakes, and computer glitches are running amok with our healthcare, crashing trains, performing surgery, etc. None of it is true in the sense of the ordinary definitions we apply to these things; yet it is these definitions that are the crux of our confusion over computers and whether the instructions we provide to control them really result in something patentable or, in anything at all. Isn’t the computer, at some threshold, just doing whatever a computer does? Well, not really; you see a computer does nothing without a program or power supply. Let’s find out why.
When it comes to the history of software patents it seems that everyone believes they are an expert. Unfortunately, few in the popular press actually take the time to get the story correct. In fact, there is a popular misconception in media that the Federal Circuit was the court that first authorized software patents. I have dealt with this nonsense in the past, and now have to deal with it once again. None other than the Wall Street Journal has published an article on the topic that is simply fiction.
The clearly erroneous Wall Street Journal article in question was published on December 15, 2013, under the title Jimmy Carter’s Costly Patent Mistake. The article, written by Gordon Crovitz, seems to take the position that patents stifle innovation, although Crovitz thesis is not explicitly stated. It would be erroneous enough to state that patents stifle innovation when all of the evidence is to the contrary, but that isn’t the major Crovitz sin in this article, although it is a whopper of a lie often told by patent critics.
Before proceeding, allow me to state what should otherwise be obvious: if patents stifle innovation you would expect run-away innovation in places where there is no patent system, but that isn’t what you see. You see extraordinary poverty, no economy and zero innovation where there are not patent rights. Likewise, you see economies established, domestic innovation and innovation from overseas flowing into countries that adopt strong patent rights. Furthermore, the entire point of a patent system is to grant exclusive rights that force creative, inventive and entrepreneurial individuals who are blocked to design around, which is exactly what happens. Designing around patents leads to enormous leaps in innovation. See Forfeiting Our Future Over Irrational Fear of Software Patents. And for those who don’t get it and erroneously state that we are seeing historic levels of patent litigation, read your history. There were close to 600 patent litigations associated with the invention of the telephone, and smart phone litigation has been but a small fraction of that number. Furthermore, the smartphone as we know it came out in 2007. In the past six years have the over abundance of patents stopped smartphone innovation? Hardly, and everyone who is at all honest knows that to be 100% true. So why the pretending about patents stopping innovation? Obviously there is real patent hatred and critics, like Crovitz, simply ignore facts and prefer their own brand of fantasy over truth.
As ridiculous as it is to suggest that patents stifle innovation, this ill-defined Crovitz thesis isn’t the major issue with the fiction published by the Wall Street Journal. There is objective and verifiable error in his article that even those with an agenda will have to admit.
Greetings patent world. A very, very, important case relating to software has again made its way to the Supreme Court for decision. The United States Court of Appeals for the Federal Circuit (CAFC) badly muffed their chance to clearly set forth what thresholds should be implemented for software patentability and the Supreme Court now must step into the breach. Good thing too; but, not without lots of anxious handwringing on the part of true believers in the patent system who favor its worthwhile and broad applicability. Hence; this series of open letters/articles written for consumption by the Justices and their clerks as a primer for this case.
I know— it is presumptuous on my part that this would have any influence, but these pages are an important forum to air out these issues. If we can do this in a non-hysterical erudite fashion, these pages will be read and help inform on this issue. No doubt, every person with a dog/pup/minnow/free electron in this fight will file amici. Too bad they cannot all receive the same level of attention as the effort they take to write, but such are the practicable limits of time and comprehension of those who will make and write the decisions. My hope here is to write about this topic in a way that is both engaging and elucidating.
In the beginning… seriously we need to go back that far to bring perspective to the issues. Business methods were always thought to be outside what was patent eligible in the U.S. The historic practice of crony capitalism based on “patents” granted by the Crown made these business practice monopolies not something that would be useful or even acceptable to the then new U.S. The Constitution simply confined the patent system to the ”useful arts”. On occasion, various Supreme Court decisions have referenced the antipathy to monopolies that undergirds their thinking as to patents and what ought to be in or out on the patent eligibility front. This sidelining of business methods was fairly easily implemented right up until the digital revolution.