Posts Tagged: "Freeman-Walter-Abele"

IBM: Software Patent Exceptions Make No Sense in a World Where “Software is Ubiquitous”

In Part I of my recent interview with IBM, I spoke with Mark Ringes, IBM Vice President and Assistant General Counsel, and Manny Schecter, Chief Patent Counsel, about the company’s commitment to innovation and approach to patenting. Our conversation took place at the IBM offices on Madison Avenue in New York City and touched on topics ranging from Section 101 to startups to the USPTO. Below, the conversation continues with an in-depth discussion of Section 101 law, software patents, and how the Federal Circuit and Supreme Court have contributed to the situation in which we find ourselves today.

Unintelligible and Irreconcilable: Patent Eligibility in America

The Alice/Mayo framework does not mandate a conclusion, it tolerates – even enables – whatever conclusion the decision maker prefers. This is allowed because of a universe of irreconcilable opinions from the Supreme Court. So bad is the situation that you can’t hope to know the likely result unless you know which precedential opinions the decision maker will apply… The constellation of the problems that lead to the demise of the Freeman-Walter-Abele test are again present, this time it is a Supreme Court test that has led us into the morass. Unfortunately, the Supreme Court cannot be depended upon to come to their collective senses. The Justices actually believe their patent jurisprudence is consistent (which it isn’t) and they seem simply incapable of appreciating the havoc they have wrought.

Mildly bullish on patent market heading into 2016

Ashley Keller: ”I am mildly bullish, because we’re coming from such a low point that it is likely to improve from here. We just talked about the Supreme Court and the willfulness case. I also think that Europe’s unitary patent system is going to be an eye-opener, because it has the potential to be better than our system’s status quo. Competition is a healthy force, and the new system will drive innovation over there. People are going to pay attention to that, and as a consequence, it may improve things over here.”

Freeman-Walter-Abele: A Tortured History of Software Eligibility

The influence of the thinking behind Freeman-Walter-Abele can also be seen in the Supreme Court’s decision in Alice. Thanks to Alice the focus is now on whether the claims cover an abstract idea or concept, and in order to make the determination we are not supposed to look at the language of the claims, but rather to look through the claims. This causes the apparatus claims to rise and fall with the method claims despite the fact that machines are clearly patent eligible according to the terms of the statute. Further, as the law associated with software developed the industry, with good reason, thought that it would be enough to say that the process steps had to be carried out on a machine (i.e., a computer). That clearly isn’t enough after Alice. While the Supreme Court hasn’t adopted the Freeman-Walter-Abele test, and the current articulation of the test is couched as whether the claims cover only an abstract idea, it does seem that if patent claims could be written to satisfy the moving target of the FWA test then the patent claims should work to satisfy the Alice test that adopts the Mayo framework.