Prelude to SCOTUS Oral Arguments in Alice v. CLS Bank: A Software Conversation with Eric Gould Bear

Eric Gould Bear

Eric Gould Bear is an inventor on over 100 patents and patent applications in the software space. He has spent over 25 years working with numerous Fortune 500 corporations with respect to assisting them in the creation of new user experiences. He is also a founder of the design studio MONKEYmedia, who signed onto the Trading Technologies amici brief filed in Alice v. CLS Bank at the Supreme Court. Bear is also a testifying expert witness for patent infringement cases. He is an expert in the software/patent space, and has seen the industry from multiple different angles over the years.

With the oral argument in Alice v. CLS Bank scheduled for Monday, March 31, 2014, I reached out to Bear to see if he would go on the record to discuss the issues he saw in the various briefs filed, what was good, what was problematic, and how he as a software expert would try and convey the issues to a layperson, or scientifically untrained jurist such as the Justices on the Supreme Court. He agreed and we spoke on the record about the issues, using as our focal point several of the high profile amici briefs filed.

What appears below is part 1 of my 3 part substantive software converation with Bear. In part 1 we discuss the false distinction between hardware and software, and Bear goes into deal with examples, saying at one point that most of the innovation today relates to software. He also takes issue with the ACLU amicus brief, calling it “embarrassing.”

Without further ado, here is part 1 of our conversation.

QUINN: Thanks a lot, Eric, for taking the time to chat with me today. I want to talk to you about the big issue that’s sweeping the patent world at the moment, which is the Supreme Court’s consideration of Alice vs. CLS Bank.  I know you’re a computer user interface expert, an inventor and a testifying expert as well, so I thought you may be in a good position to try and comment both on the case, on some of the amicus briefs, perhaps what you saw that you liked, what you thought might have been persuasive to you as an industry expert and then maybe what you think may be persuasive or what the Supreme Court may do.  I know there’s a lot there but perhaps you can pick a direction and we can go from there.

BEAR: Sure, I’d be glad to.  Well, as of the last time I looked, there were 43 filed briefs in all including the two by the parties.  And, to be sure, I have not read them all.  I’ve reviewed ten of them including, of course, the briefs by the parties in suit.  I’m familiar with the Trading Technologies brief, which my own companies joined.  And I studied the IEEE, AIPLA, Chief Judge Paul Michel and IBM briefs. I also read at the ACLU, the Google, Amazon, et al, and the Checkpoint, et al, briefs.  Those are the ones I’ve read in detail.  But please keep in mind – I’m not an attorney.  And there’s a lot of case law discussed that’s not in my area of expertise.

QUINN: Well, that’s fine because I don’t really think any of this is the Supreme Court’s area of expertise either. I don’t know whether you saw it, maybe a little less than a year ago Justice Kagen was interviewed by Politico and she said that Justices don’t even use email, which was scary to me.

BEAR: Well, it is. I believe it’s good to have this quantity of material.  My biggest concern is whether they are going to read it with a critical eye.

QUINN: Why do you say that?  Is it that you think that the issues in this case are particularly nuanced?  What do you have in mind when you say that?

BEAR: Well, the issues are nuanced.  A few months ago, I wrote an Op Ed piece arguing that false distinctions between hardware and software patents are not the answer. IBM highlights that point of view.  The IEEE does as well.  But the ACLU, for example, goes starkly against it.  And it’s easy to be swayed by propaganda.  And I think that’s because the concept of abstract ideas strikes a chord emotionally for people.  I certainly trust the court to act intellectually and not emotionally.  And I’m optimistic they’ll do what’s right.  But there is widespread confusion about “abstract ideas” and confusion around software being distinct from hardware.  The possibility of “ideas” being patentable occurs to the uninformed like a threat to freedom in the United States, and it’s hot from a PR standpoint.  In the Google brief, for example, they make a big deal about this – and they’re playing both sides.

QUINN: Yes, I know. The thing that I’ve always said about Google is that they really don’t know what they think because somebody there really, really loves these patents because they’re getting over 4,000 patents a year and filing all kinds of applications.  They do a lot of complaining about so-called nonsense applications, but if you look at what they file and try and get, they’re trying to get the same things.  They just had an application published recently where they were trying to get a patent on a method of ordering in advance of going to the restaurant.  So they live in glass houses, I think.

BEAR: Yes.  But in a way you can’t blame them.  Because while you might not like a system and you might invest in trying to dismantle it, you can’t bank on it.  And therefore, you’ve got to play within it, or go so far as to abuse it in some cases.  Now, I’m not advocating for that approach. I believe a big part of the problem that everybody sees are the abuses and everybody wants it to be solved.  But what “solved” looks like really differs for different parties.

QUINN: Right.

BEAR: There are a lot of interesting issues here.  One of the issues particularly interesting to me is the confusing – or perhaps intentional conflating – of section 101 with 102, 103, and 112.


BEAR: Wouldn’t the determination of whether a claimed invention is “abstract” be better handled by the 112 written description requirement? And wouldn’t novelty and non-obviousness questions be better handled by 102 and 103?  Instead it seems some parties are trying to shoehorn aspects of 102, 103 and 112 into 101 as a way of shutting the door before the courts can even get to the material questions.

QUINN: Right, right.  And that’s something that they’ve historically said that they didn’t want to do, at least until recently in the Mayo case. The Supreme Court has always cautioned that it is important to allow the various parts of the statute do the work they were designed to do. This limited use of 101 has always been so you don’t wind up cutting an entire category of innovation off before you even ask whether it’s useful, novel, or non-obvious.

BEAR: That’s right.

QUINN: Now, there was one thing that I read that really kind of caught my mind.  And I’ll just summarize it for you and I’d like to get your thoughts on this.  One of the briefs says that it really is difficult for people who are not familiar with what software is and how it is created to understand that it is not an abstract idea but that it really is a set of mechanisms in place for controlling a machine.  Do you think that that really lies at the heart of what the problem is for the layperson?  That they just don’t know what software really is?

BEAR: Well, I think that’s a key piece of it.  Should it matter how much of a machine is built in software versus how much of it is built in hardware?  In my mind, it doesn’t really matter.  My field of expertise is in human computer interaction.  In the span of time between human input to a system and the output from the system back to the human – from the standpoint of the kind of patents that I deal with – it doesn’t matter whether those steps were performed in hardware or in software.

There are times when it’s better to build portions using one medium and not the other.  And there are times when you can flip the balance.  In the Op Ed piece I wrote back in June for IPWatchdog, I gave an example of a mouse with asymmetrical scroll wheel functionality that impacted how many pages a user might traverse as they scroll up versus down.  Different factors might influence one’s choice to implement such functionality in hardware versus software.  But it doesn’t matter, as long as you get the same result and perform the same operations.  That doesn’t mean the software version is any more an abstract idea than the hardware version.  Several of the briefs bring up the fact that at the heart of every invention is an abstract idea that can be bandied about by human beings.  The ability to take and systemically implement a novel and non-obvious idea – no matter how abstract that idea is at the core – is what the patent program is here to protect.

QUINN: Could you maybe expand a little bit on the idea that software can really manifest itself in something that is tangible and concrete and performs in hardware?  Because that seems to be something that a lot of people challenge. I think that this sort of gets at the hub of what a lot of the so-called laypeople have a problem understanding that software really is not limited to just being “soft.”  You can really use hardware to bring about these types of functionalities.  So it’s not that there’s not an invention there, it’s really all about form over substance in my mind.  Now the question is, how do you get somebody who isn’t really familiar with the technology of software, who hasn’t gone through computer logic classes and hardware classes to understand that?

BEAR: Let’s see if this resonates.  At the most basic level of analysis, software can be considered an integral part of a machine that performs special functions, but can be erased and replaced – perhaps with other software that can perform other functions.  New soft parts can be downloaded, say from an app store.  The hardware, on the other hand, is generally immutable.  But many functions can be built in either software or hardware.  Video decompression algorithms are a common example – sometimes existing in software, sometimes in hardware.  The hardware versions are like codified expressions of the software versions.  But they’re both performing the same functions.

Now, think about your smartphone.  There are certain aspects that are part of the hardware: the processor, the buttons, the antennae, the graphical display.  And then you’ve got all your apps which you downloaded to it that have added new functionality: your weather app, your camera app, your movie player app, your ebook reader app.  These are distinct software functions that could be burned into hardware and remain forever inflexible.  But that’s just not how technology generally works these days.  Much of our innovation these days – most of it, in fact – is in software. Even our cars, SLR cameras, pacemakers, hearing aids – each of which present like immutable machines, have software subsystems that can be reprogrammed at will.

QUINN: So almost the very fact that it is flexible and not as you I think you just said ‘burned into it’ somehow in the mind of some people makes it trivial and less valuable as an innovation it seems.  When it seems to me that it should be the exact opposite way.

BEAR: Well, it’s being treated as if it’s an abstract idea because you can’t touch it.  You can’t put it under a magnifying glass and see its constituent parts.  When you turn a doorknob on a door, inside are all these physical parts that turn and move the striker in and out, enabling you to open or secure the door.  But you can also dial a remote code from your phone software to give a door a signal to unlock remotely.  Some would argue that such functionality should be unclaimable.  The ACLU brief takes this to an extreme, and is kind of embarrassing, I think.  Have you read it?

QUINN: I’ve looked at it briefly.  That’s not one that I’ve spent a lot of time on.  I’m kind of working my way up to being able to stomach some of the arguments that are there.

BEAR: It’s really phenomenal.  They argue that writing software code is a speech act that should be protected under the First Amendment.  Since code is an expression from a person written in a language of human communication, they argue that anything blocking somebody from expressing themselves in such a language is a challenge to the First Amendment.

QUINN: Well that would mean that the entire body of copyright law violates the First Amendment, which is not something the Supreme Court, or any other court, has ever held, although they’ve been invited to do so.

BEAR: One of the far out things that they say is, oh, if you were to write an article about a patented invention and provide an example using software code in the article then you could find yourself in a position of infringement – at least induced infringement – because you have expressed code that somebody might implement and thereby infringe on another’s patent.

QUINN: Yes, see, and that’s the problem what you get is those truly asinine arguments when an entity like the ACLU who knows nothing about patent law tries to get involved in an area that they really just don’t understand. I mean a lot of people are afraid that the Supreme Court will be convinced by some of these truly just frivolous, specious arguments. If that happens it could destroy the software world, which would be a terrible blow to the economy. Without patents the software startup is not able to get the money they need to move forward and you’re going to get far less innovation. It seems to me that the whole idea of what is innovation is just fundamentally misunderstood.  Certain briefs are going down the path of saying that if others can’t write this code then their innovation is being stopped.  This argument strikes me as fanciful because those who are out there merely copying code from others are not innovating, they’re copying what others have done. There is nothing innovative about copying what others have previously done.

BEAR: That’s right.  And what’s missing is intelligent extrapolation.  The risk we have in this case is that there are positions being put forward that would need to be analyzed to the breaking point.  Take the ACLU’s example of publishing code as free speech.  It is, of course, reasonable that people would want to be able to communicate using programming languages.  But that doesn’t mean those communications are stored in computer executable format, right?  Using computer code in a publication as a representation of speech is not the same as a computer readable medium that’s executable by a computer.

It doesn’t take much effort to extend the logic of such an argument to ask, “what would it be like to apply that same principle to something physical, like the manufacture of an engine which someone could diagram and describe.”  If someone were to build a patented machine that has been described in a publication well, then, they’d be at risk of infringing.  But there’s nothing about the patent system that precludes public disclosure or restricts free speech and discussion of patented inventions.  On the contrary, I believe that the patent system fosters both innovation and public disclosure because it allows entities to protect their R&D investments while disclosing information about work-in-progress.  Those disclosures are important for the industry because they’re what kick everybody else in the butt to try and one-up each other with new and better ways of doing things.  Without the protections that the patent system affords, companies would have to act in more secrecy to avoid public disclosure.  That would slow down the release of new products that make the world a better place and it would slow down competition.  That’s my belief.  IBM and the IEEE, if I’m remembering correctly, both made that socio-economic risk plain in their respective briefs.

QUINN: I think you’re right.  And I think we have evidence of that, although the critics simply ignore it.  If you look—every year the World Intellectual Property Organization does a listing of countries and the inventiveness of countries based on a sort of what’s called a complex scoring algorithm.  The countries that come in at the bottom are also the countries that don’t have any innovation and most of them don’t even have an economy like Ethiopia, and the Sudan, and many countries in the Middle East.  And it’s striking to me that on a factual basis it can be proved that the argument completely falls apart, yet they continue to make it.  For example, if patents were going to stop innovation you would expect to see runaway innovation in places with no patent system.  And you would expect to see no innovation in places where you have strong patent rights.  And instead what you see is the exact opposite.  And yet somehow that doesn’t seem to conclusively prove that they’re wrong.  To this they say, “correlation is not causation,” which really translates into “I have no facts and need to say something pithy to justify my ignoring the overwhelming facts you have on your side.” But it doesn’t stop there. They make these arguments about how innovation is different now than it ever was, which to me just sounds like they are saying “I’m special, I’m different, I don’t want to have to play in the patent pool and prefer you to conform to my lack of business acumen to level the playing field.”



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Join the Discussion

27 comments so far.

  • [Avatar for Anon]
    March 30, 2014 11:43 pm

    Sad to say, EG, you have elevated what a journalist is. See

    I think you are perhaps thinking of reporters. Note the paragraph that indicates that journalists no longer even need to be unbiased.

  • [Avatar for EG]
    March 30, 2014 06:15 pm


    You give Worstall too much credit to call him a journalist; real “journalists” (i.e., those who research thoroughly, check their facts, and understand the subject they’re writing about) are few and far between these days.

  • [Avatar for Anon]
    March 30, 2014 04:44 pm

    24: Worstall is not a professor, but a free lance journalist.

    His posts show no understanding of the subject matter. He may feel a need to subject his readers to such unmitigated tripe, and as a journalist may make noise as to his first amendment right to say what he feels. The editors of the magazine though are to be held to a different standard. They have some minimal duty of fact checking that is completely missing.

  • [Avatar for NWPA]
    March 30, 2014 03:46 pm

    22: That hack from Hastings actually wrote in the NYT that a heuristic method of estimation is a law of nature. These type of assertions should have a consequence. But, they don’t. The “professor” will probably get brownie points towards money from a corporation for having said that. Probably a good huck over a beer with Lemley.

  • [Avatar for NWPA]
    March 30, 2014 03:44 pm

    20: step back

    Another thing to consider is that it takes time, energy, and space to transform information and that the conservation of information is the most important law of physics.

    Computer transform information that is why it is called the Information Age.

  • [Avatar for Anon]
    March 30, 2014 10:02 am

    step back,


    Should not this hack at least attempt to understand that which he writes about?

  • [Avatar for step back]
    step back
    March 30, 2014 07:24 am

    Hat tip to IPBiz for pointing out the Forbes article:

    Let them eat copyright.

  • [Avatar for step back]
    step back
    March 30, 2014 07:13 am

    The reason that “software” is a machine part is very simple.

    A machine is defined as something that in operation has at least one moving part.

    For example, the “lever” is a simple machine that in operation has a first moving part on one side of the fulcrum point and a second, oppositely moving part on the other side of the fulcrum point. Energy is conserved so that F1*d1=F2*d2 where F is force applied to a respective first or second end of the lever and d is distance traveled by that respective end. Geometry does the rest to determine the ratio F1/F2=d2/d1. Make d1 long enough, d2 short enough, and you can move the world with minimal force.

    An electronic computer is a machine whose moving parts are called “electrons” (and counterposed ‘holes”). Electrons are physical real things just like the first and second lengths of a lever are real things. And as Galileo is rumored to have said despite the anti-science inquisition, the parts “move nonetheless”.

    In a field effect transistor based, electronic computers (i.e. NMOS, PMOS or CMOS), one bunch of electrons try to fall from a high energy state to a lower energy state while another bunch of electrons (those who control the “gate”) block the first bunch or let them through. The result is a pattern of fallen zeroes (0’s) and still left high ones (1’s).

    The spatial and temporal organization of how such second bunches of electrons are presented is sometimes referred to as software. Provide the second bunches in the right spatial pattern and in the correct order of timing and the first bunch will do useful work for you. Provide the second as a random mess and the output will also be a random mess. Garbage In, Garbage Out (GIGO).

    Do whatever word-juggling kabuki dance you want about how all this “feels” too abstract for your poor over stressed head. The electrons move nonetheless. It’s a machine.

    For background on Galileo’s recant, see:

  • [Avatar for angry dude]
    angry dude
    March 29, 2014 10:08 pm

    “So how should we determine what constitutes patentable software? By asking whether the patent is appropriately aimed at a specific commercial application rather than a broad concept.”


    Sweet Mother of Jesus !

    The Founding Fathers are rolling over in their graves

    The esteemed “Professor of Law and Director, Institute for Innovation Law” Robin Feldman does not have a slightest idea why they included “to promote the progress” clause in the US Constitution..
    Apparently she doesn’t even understand the meaning of the word “progress”

    God help us all…

  • [Avatar for step back]
    step back
    March 29, 2014 06:36 pm

    I though the rhyme ends with all the kings men having scrambled eggs for dinner that night 😉

  • [Avatar for MaxDrei]
    March 29, 2014 05:23 pm

    Humpty Dumpty sat on a wall

    There you go! The pompous Dumpty was indeed sitting on the fence. A good position from which to preach. But now consider what happened to him next:

    Humpty Dumpty had a great fall

    All the king’s horses and all the king’s men

    Couldn’t put Humpty together again.

    Collapse of a more than usually stout party, I’d say.

  • [Avatar for Anon]
    March 29, 2014 02:52 pm

    MaxDrei asks a simple question: “At what degree of specificity does the claim cease to be ineligibly “abstract”? Who knows?

    If treated as a simple question, the words of Congress provide a simple answer.

    The problem is that we have an activist Court that will not let simple questions be answered simply.

  • [Avatar for step back]
    step back
    March 29, 2014 02:51 pm

    Humpty Dumpty (that’s who knows)

    Each word means whatever I choose it to mean.

    (As literary fans know, Humpty is a character in Through the Looking Glass –Alice in Wonderland)

  • [Avatar for MaxDrei]
    March 29, 2014 02:15 pm

    Step, I am sure that the patent in suit:

    “…describes the process of using a general purpose computer to effectuate interactions between the escrow agent and the parties”

    I am sure the claimed subject matter is enabled. But that is not the Point, is it? The name of the game is the claim, and the degree of abstraction of the inventive concept to which it is directed. At what degree of specificity does the claim cease to be ineligibly “abstract”? Who knows?

  • [Avatar for step back]
    step back
    March 29, 2014 01:29 pm


    Here is a recent example from the pooh pooh platter:

    “The purported invention in this case [Alice] is a computer-implemented method of mitigating risk in foreign currency transactions — essentially ensuring that one party won’t default after the other party has already fully performed his half of the bargain. In 1993, an Australian named Ian Shepherd, a former managing partner at the Melbourne office of McKinsey & Co., filed the first of a series of patent applications that describe in generic terms a process for incorporating a trusted, third-party intermediary — an escrow agent — into a transaction. That alone, of course, is an age-old concept. But it then also describes the process of using a general purpose computer to effectuate interactions between the escrow agent and the parties. The patents were granted — the first was approved in 1999 — and Shepherd then assigned them to Alice Corp., a company he set up.”

  • [Avatar for MaxDrei]
    March 29, 2014 01:20 pm

    “… the divide is between them who invent and them who pooh pooh away any and every contribution that the creative few within our society”

    Is there nobody else except the creative few who do and the pooh pooh many, who preach? Are there only two camps and nothing in between? Must one decide to be either an inventor or an anti-patent person?

    As with most things in life, it ain’t that simple, is it Step?

  • [Avatar for step back]
    step back
    March 29, 2014 01:07 pm


    Good points.
    I didn’t intend to pick on just one person i.e. the author of the NYT anti-software patents piece.

    There is a big divide between two camps of people.
    It would be tempting to draw the line between them that do and them that preach.

    But really the divide is between them who invent and them who pooh pooh away any and every contribution that the creative few within our society bring to the collective table.

    I’m not going to repeat my attempt to provide the link to a you tube speech (caught by spam filter) that said author recorded about the Myriad case. But the idea of her thinking the DNA molecule is just an open recipe book from which to read, it just boggles the (technical) mind.

  • [Avatar for EG]
    March 29, 2014 12:05 pm


    “Professor Robin Feldman received a bachelor’s degree from Stanford University and a J.D. from Stanford Law School.” No reference to any undergraduate degree in science or engineering in the cv on her web site , which lists a BA undergraduate degree which doesn’t necessarily mean a non science degree as I’ve got a BA in chemistry), but if you look a the articles she’s written, I would presume she has none, given her obvious disdain for science (something she shares in common with Justice Breyer amongst others). Also, in coming from the same law school as Lemley, presumably another IP law professor with no recognizable background in “real patent law,” so no surprise in Feldman’s quoted statement.

  • [Avatar for Anon]
    March 29, 2014 11:56 am

    Interesting phrase, “workable and effective fit-for-purpose obviousness test.”

    In truth, I have no idea what you mean by that phrase.

    (and such still sounds in your asking too much from the judicial branch of the US government)

  • [Avatar for MaxDrei]
    March 29, 2014 11:45 am

    But then, as many commentators urge, let the scope of the claim be proportionate to the non-obvious contribution to the art, and not egregiously wider than that!

    Trouble is, to do that, the USPTO needs from the courts a workable and effective fit-for-purpose obviousness test.

    I’m waiting patiently.

  • [Avatar for Anon]
    March 29, 2014 11:37 am

    While MaxDrei does have a point of “just do it on the internet” may not be inventive, the counter point remains valid that doing something on the internet may in fact be inventive if certain aspects (technical and otherwise) are involved.

    There is a real difference between a ‘science fiction’ approach of just do anything on the internet and a claim that meets the other requirements under the law for enabling something that was previously only science fiction.

  • [Avatar for MaxDrei]
    March 29, 2014 10:32 am

    I worry about commentators who lament that the problem is that patent applications are at the moment far too short. Ms Feldman urges that they should be orders of magnitude longer. For me, that is the clearest sign that she is preaching from within an Ivory Tower.

    There is a class of Invention, legitimate subject matter for patenting, where the inventor’s perception of the problem was the inventive act. Downstream implementation can be banal, without depriving such subject matter of patentability. Freighting every patent application with 100+ pages of banal implementation will render the patent system even more broken than it is now.

    But, of course, such problem inventions are relatively rare. The notion of just doing on the Internet what had hitherto not been done on the Internet is not inventive, regardless how many hundreds of pages of description of specific embodiments the patent application includes.

  • [Avatar for Anon]
    March 29, 2014 09:18 am

    It is interesting to note that MaxDrei continues to push for the Supreme Court to do what is beyond its job to do. As if posting that it is a fait accompli that the Court is allowed to write patent law however it wants to, to achieve whatever policy goals that it sees fit, somehow properly dismisses how US government is set up with our separation of powers doctrine.

    So in addition to the seemingly perpetual disregard for the sovereign difference between Useful Arts and technical arts, we have the seemingly perpetual disregard for how US law and the power to write that law has been delegated among the branches of government here.

    MaxDrei, is it too much to ask of you for you to amend your comments to have our system of government respected and to integrate into your comments the recognition of how we have set up our system of law?

    step back,

    It does appear that Prof. Feldman suffers from the very worst aspects of the Ivory Tower syndrome.

    See See also – one danger (already seen in past banking scandals) is the capture effect of the Ivory Tower. As has been noted often, patent law is under attack from both the Left (the Ivory Tower) and the Right (Large Corporations).

  • [Avatar for step back]
    step back
    March 29, 2014 07:36 am


    Here is more background about the author of the NYT article of comment#1:

  • [Avatar for step back]
    step back
    March 29, 2014 07:34 am


    The author to the NYTimes article pointed to at comment #1 is a woman.
    I haven’t heard of her before. But if she is representative of the level of scholarship and understanding of “law” that takes place at the Hastings College, I feel sorry for the students and more so for the future of the United States.

    Here are a few excerpts from an earlier, anti-patents article by the good professor:

    “We call patents a form of “intellectual property.” This is a comforting way to think about them, and it brings to mind other forms of property, such as real estate. Patents, however, are quite different from ordinary types of property. Rather than a physical object you can measure or touch, a patent is a verbal description of something that may not even exist in tangible form.”

    “Innovation is a key driver of the American economy, and our most innovative companies should be focusing on developing new products, rather than on patent strategy. To keep every company, as well as the economy, on track, it is essential that our patent system find a way to rein in those elements that allow parties to exploit weaknesses in the system and bring improper bargaining leverage to bear. In a system built on more realistic assumptions about patents, we will still have licensing demands, and still have lawsuits. But the stakes will be lower for everyone, and the rhetoric—and costs to society—will finally begin to go down.”

    All the usual “talking parrot points” are there. This appears to be a person who has no hands-on experience with what it takes to get a patent or to develop an invention. “Innovation” and invention are not one and the same thing. “Innovation” includes the act of convincing people to talk to their pet rocks and to buy financial “instruments” based on the expectation of infinite growth and bottomless money pits. Inventions on the other hand, require technical “enablement” as well as novelty, utility and nonobviousness rather than merely a loose and flapping tongue.

  • [Avatar for MaxDrei]
    March 29, 2014 06:38 am

    Thanks for the Link, in which I found these words from Prof. Feldman:

    “how should we determine what constitutes patentable software? By asking whether the patent is appropriately aimed at a specific commercial application rather than a broad concept”

    What a nerve. The Professor demands that the Supreme Court brings clarity to the law, and legal cartainty, yet the test he himself advocates is just embarrassing, namely: “appropriate” that is to say, “specific” and, above all, not “broad”. Gee thanks, Professor.

    Me? I would invite readers to go to another Blog, here:

    to see how eligibility/patentability of computer-implemented inventions can be handled satisfactorily. The English judge also looks at scope, agreeing with the EPO, that the claim approved after opposition at the EPO is eligible (even though the wider claims of the patent as originally issued were not.

    Importantly, the eligibility test in Europe is a simple binary one, namely: technical character Y/N. It does not turn on words of degree like “broad” or “specific”. When can we expect a binary test from SCOTUS, I wonder.

  • [Avatar for step back]
    step back
    March 29, 2014 01:03 am

    The prelude to Monday includes this off the wall opinion from no less than an IP law professor:

    “Compared with patents for other innovations, those for software are granted using a very broad and lax standard of invention. Ordinarily, the law requires inventors to explain not just the result of an invention, but also how the invention actually works. If you invent a car that drives on water, you have to explain exactly how you get it to stay afloat. Not so for software: the mere idea of a floating car is enough.”