US Supreme Court to rule on software patents

December 8th, 2013 at 10:00 am by David Farrar

The issue of whether software should be patentable has been settled in New Zealand, and may soon be settled in the US. The Washington Post reports:

In a trio of Supreme Court decisions between 1972 and 1981, the court held that mathematical algorithms were not eligible for patent protection. Since computer software is little more than mathematical algorithms encoded in machine-readable form, most of the software industry assumed this meant you couldn’t patent software. But then, in the 1990s, a patent-friendly appeals court handed down a series of decisionsthat opened the door to on software. That triggered a wave of patenting that has drowned the technology industry in litigation.

In principle, the Supreme Court’s old precedents ruling out patents on mathematical algorithms are still good law. And today, the Supreme Court announced that it would hear an appeal that, for the first time in 30 years, will directly address the patentability of software.

The court that has to date decided the law is the little known United States Court of Appeals for the Federal Circuit. It was only created in 1982. Unlike the other appeal courts, its rulings are binding on the entire United States, not just one circuit. Only the Supreme Court can over-rule it.

Now the Supreme Court will have an opportunity to weigh in on the case. And while the high court could issue a narrow ruling based on the details of the patents in this case, it could also take the opportunity to fix the software patent mess more broadly. All it would need to do is to reiterate its earlier position that patents claiming mathematical processes — a.k.a. computer software — isn’t eligible for patent protection unless it’s tied to a specific machine or physical process.

Which is basically now the law in New Zealand.

The high court will be reluctant to do this because it would be disruptive. Reiterating that mathematical algorithms can’t be patented would call into question thousands of patents held by major software companies. And these companies could complain, with some justification, that the Supreme Court’s failure to rule on the issue for more than 30 years was a tacit acceptance of rulings by the Federal Circuit.

Still, the federal circuit cannot overrule Supreme Court precedents. And the federal circuit’s experiment with software patents has been a disaster. As the patent scholar James Bessen has argued, the patent troll crisis is really a software patent crisis. Software patents are far more likely to be involved in litigation than other types of patent. The result: According to Bessen’s calculations, troll-related litigation cost the U.S. economy $29 billion in 2011 alone. Reiterating that “pure” software can’t be patented wouldn’t just be good law — it would also save the nation billions of dollars in litigation costs.

The case will be watched very closely.

6 Responses to “US Supreme Court to rule on software patents”

  1. thor42 (971 comments) says:

    Hopefully they will rule against software patents.
    FFS, there are already more than enough software *licenses* that can be used instead.

    I’m sure that software like LibreOffice doesn’t use patents (it is simply covered by a license) and that hasn’t hurt it at all. The same goes for the public-domain database engine SQLite. It is the most widely-used database in the world (as it is embedded in cellphones and the like).

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  2. slijmbal (1,275 comments) says:

    If software patents were sensibly granted and, in particular, the whole evident of manifest part understood by the useless granters then we would not have the ludicrous current situation.

    Amazon’s single click patent is a brilliant example of a self evident facility being patented.

    It seems the only way to fix this is to remove the whole patenting process around software but this will punish the true inventions that do occur.

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  3. PaulL (6,116 comments) says:

    I wonder what the calculus is for those who actually own software patents. I suspect most of them, despite having a bunch of patents themselves, would be happier without them. Each company individually feels like it pays out more in patents than it makes, although logically that cannot be true. And they all feel the uncertainty that maybe someone will pop up with a patent they didn’t know about and cost them a fortune in litigation and changing their software.

    I suspect most of the big players would be happy to see all software patents done away with.

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  4. Nigel Kearney (2,043 comments) says:

    Disallowing software patents to stop patent trolling is like banning cars to stop car accidents. The cure is much worse than the disease.

    Of course there are examples of people developing software and releasing it for free. And it will always be difficult to come up with a concrete example of software that was not created because the lack of IP protection made it not worth doing so.

    In the same way that we know high taxes impede growth, but the left can always point to people who have been ‘helped’ by welfare spending and we on the right cannot point to jobs that don’t exist, but would have existed if taxes weren’t so high.

    In any case, the likely alternative to software patents is not open source. Software that is costly to develop will instead be kept secret, like the coke recipe, never leaving the owner’s network and only accessible through a web service after paying a subscription. This will be inefficient, more costly to users, and will slow down development significantly.

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  5. Fentex (3,422 comments) says:

    This concept…

    If software patents were sensibly granted

    …sets up the following…

    Amazon’s single click patent is a brilliant example of a self evident facility being patented.

    …as just begging the question of what can ever be patented if you’ve already admitted more than one person can have an original idea?

    Patents are mostly a bad idea. In the days when to obtain one you had to provide a working model of an original artifact there was at least an objective standard by which they could be organised – today there isn’t even that.

    If patents existed to encourage original thought then they would have no issue with separate invention as a defence, yet no where (I believe, I could be mistaken) where patent law exists is independent invention a defence from claims of infringement thus putting the lie to the concept patents protect invention.

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  6. Alan Wilkinson (2,438 comments) says:

    @Nigel, tosh. Can you name one useful invention that would not have been made or developed without software patents?

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