US appeals court asks whether to limit software patents

The Federal Circuit hears a case Friday involving the patentability of abstract ideas when combined with a computer

Should an abstract idea written into software and run on a computer be patentable? That's one question a U.S. appeals court will consider Friday when it hears arguments in a case with broad implications for software patents for companies as diverse as Google and Red Hat.

The U.S. Court of Appeals for the Federal Circuit is unlikely to invalidate all software patents in the CLS Bank v. Alice Corp. case, but it could force tech companies to narrow their claims when applying for software patents, some patent experts said.

The case, which has generated briefs from Google, Facebook, Newegg and software trade group BSA, could "set the stage" for limiting what kinds of software patents can be issued, said Julie Samuels, a lawyer with the Electronic Frontier Foundation.

"There's a really big problem with software patents that doesn't tend to exist with most other patents," she said. "Patentees tend to claim a problem ... and then they get a patent on any way of fixing it, as opposed to claiming a specific method, a specific invention accomplishing their goal."

If software patent claims were limited to a specific invention, "we'd all be a lot better off," added Samuels, who wrote a brief in the case for the EFF and Public Knowledge. "If software patents were more narrow, then they wouldn't be such a powerful tool for the trolls."

In the case, defendant CLS Bank argued that Alice's four software patents covering a computerized trading platform for exchanging obligations was too abstract to be patentable. A district court agreed, but the appeals court reversed the decision.

Still, the appeals court scheduled Friday's hearing to examine whether an abstract idea combined with a computer is patentable, and whether some software patent claims involving methods, systems or storage should be grounds for granting a patent.

Google, Facebook, Red Hat and some other tech companies argued that the Alice patents should be invalid in a joint brief. BSA argued the Alice patents should be invalid, but more broadly defended software patents.

The case could determine the line between a "true invention that uses a computer" and a process that can happen on a computer or by other means, said Leigh Martinson, a partner in the McDermott Will & Emery law firm. The case could chip away at the longtime legal assumption that software, because it's loaded on a machine, is patentable, he said.

The case could give tech companies a clearer picture of what kinds of software patents are allowed, Samuels said. The appeals court has issued a "bunch of inconsistent opinions" on software patents, and the U.S. Supreme Court didn't provide specific guidance in its 2010 Bilski v. Kappos ruling, she said.

"It's really hard to know what the law is," she added.

The EFF has been a leading critic of software patents, but Samuels said she doesn't see the Federal Circuit abolishing them. "In a perfect world, we'd probably not have these patents at all," she said. "But I don't have much hope that's where the Federal Circuit is going to come down."

Martinson said he doesn't believe the court will invalidate software patents. "Think about the policy implications of that," he said. "Look at all the companies that write software and protect their ideas. That's sort of what [U.S. businesses] do now on some level."

If the court invalidates software patents, "I'd have to find a new gig," he added.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

Join the Good Gear Guide newsletter!

Error: Please check your email address.

Tags Julie SamuelsAliceMcDermott Will & EmeryCLS BankNeweggFacebookLeigh MartinsonU.S. Court of Appeals for the Federal CircuitGoogleBSAintellectual propertylegalpatentsoftware

Struggling for Christmas presents this year? Check out our Christmas Gift Guide for some top tech suggestions and more.

Keep up with the latest tech news, reviews and previews by subscribing to the Good Gear Guide newsletter.

Grant Gross

IDG News Service

Most Popular Reviews

Follow Us

Best Deals on GoodGearGuide

Shopping.com

Latest News Articles

Resources

GGG Evaluation Team

Kathy Cassidy

STYLISTIC Q702

First impression on unpacking the Q702 test unit was the solid feel and clean, minimalist styling.

Anthony Grifoni

STYLISTIC Q572

For work use, Microsoft Word and Excel programs pre-installed on the device are adequate for preparing short documents.

Steph Mundell

LIFEBOOK UH574

The Fujitsu LifeBook UH574 allowed for great mobility without being obnoxiously heavy or clunky. Its twelve hours of battery life did not disappoint.

Andrew Mitsi

STYLISTIC Q702

The screen was particularly good. It is bright and visible from most angles, however heat is an issue, particularly around the Windows button on the front, and on the back where the battery housing is located.

Simon Harriott

STYLISTIC Q702

My first impression after unboxing the Q702 is that it is a nice looking unit. Styling is somewhat minimalist but very effective. The tablet part, once detached, has a nice weight, and no buttons or switches are located in awkward or intrusive positions.

Latest Jobs

Shopping.com

Don’t have an account? Sign up here

Don't have an account? Sign up now

Forgot password?