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 newsletter!

Or

Sign up to gain exclusive access to email subscriptions, event invitations, competitions, giveaways, and much more.

Membership is free, and your security and privacy remain protected. View our privacy policy before signing up.

Error: Please check your email address.

Tags GoogleFacebooklegalsoftwareintellectual propertypatentBSAU.S. Court of Appeals for the Federal CircuitNeweggJulie SamuelsAliceLeigh MartinsonMcDermott Will & EmeryCLS Bank

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

Grant Gross

IDG News Service
Show Comments

Brand Post

Most Popular Reviews

Latest Articles

Resources

PCW Evaluation Team

Luke Hill

MSI GT75 TITAN

I need power and lots of it. As a Front End Web developer anything less just won’t cut it which is why the MSI GT75 is an outstanding laptop for me. It’s a sleek and futuristic looking, high quality, beast that has a touch of sci-fi flare about it.

Emily Tyson

MSI GE63 Raider

If you’re looking to invest in your next work horse laptop for work or home use, you can’t go wrong with the MSI GE63.

Laura Johnston

MSI GS65 Stealth Thin

If you can afford the price tag, it is well worth the money. It out performs any other laptop I have tried for gaming, and the transportable design and incredible display also make it ideal for work.

Andrew Teoh

Brother MFC-L9570CDW Multifunction Printer

Touch screen visibility and operation was great and easy to navigate. Each menu and sub-menu was in an understandable order and category

Louise Coady

Brother MFC-L9570CDW Multifunction Printer

The printer was convenient, produced clear and vibrant images and was very easy to use

Edwina Hargreaves

WD My Cloud Home

I would recommend this device for families and small businesses who want one safe place to store all their important digital content and a way to easily share it with friends, family, business partners, or customers.

Featured Content

Don’t have an account? Sign up here

Don't have an account? Sign up now

Forgot password?