1. The CLS Bank v. Alice case, though raising an issue of vital importance, is not about "whether software is patentable."
2. Over the years, the Federal Circuit has notoriously broadened the scope of patent eligibility, most conspicuously in its 1998 State Street decision which essentially opened the floodgates to the modern rush of business method patents by holding that virtually any business method was patentable so long as "it produces a useful, concrete and tangible result." In 2010, the U.S. Supreme Court, in the Bilski case, repudiated the State Street test for patent eligibility and, though upholding software and business method patents generally, directed courts to be much more vigilant to ensure that no one gain patent rights to what are mere "abstract ideas," however much they may incidentally be tied to some computer mechanism in their implementation. In a follow on decision (Prometheus), the U.S. Supreme Court similarly cut back sharply on the permissible scope of patent eligibility for claimed inventions that constituted nothing more than laws of nature.
3. In this CLS Bank case, the claimed patent involves a method for eliminating certain types of risk associated with an escrow closing and used a technological process by which to mimic a phantom version of the closing as a security check before allowing the real transaction to close. In essence, the technological aspect of this "invention" is routine and so the question is whether anything beyond that is simply another way of trying to patent nothing more than an abstract idea. If so, it should fail under Bilski; if not, it would potentially pass the test for patent eligibility.
4. The lower court in CLS Bank held as a matter of law that the "invention" was nothing more than an abstract idea and held it invalid as being ineligible for patent protection. On appeal, a divided panel of the Federal Circuit reversed and reinstated the patent. It did so, however, by setting out a brand new procedural rule whose effect would be to gut much of Bilski and reopen the floodgates to huge numbers of business method patents under a very loose standard - to wit, by holding, that, if it "is not manifestly evident [my emphasis] that a claim is directed to a patent ineligible abstract idea," then the court essentially treat the claim as eligible. What the Federal Circuit panel did, then, was to take the Supreme Court's directive for lower courts to be much stricter in evaluating dubious business method patents for patent eligibility and recast that directive in a form that said, if you as a court see that something is obviously nothing more than an abstract idea, then go ahead and reject it but you are otherwise to treat as being eligible for patent protection. In other words, the new strictness found in Bilski for evaluating such claims was once again to be transformed by the Federal Circuit into a loose standard that would let such claims coast by unimpeded.
5. Of course, this has set off alarm bells because, in effect, it represents yet one more revolt by the Federal Circuit against attempts by the Supreme Court to rein it in by bringing patent issues back to some semi-sane state. Following the panel decision (which was rendered over a sharp and stinging dissent), the losing party petitioned for a rehearing en banc (meaning by the full panoply of Federal Circuit judges as opposed to merely a 3-judge panel) and this was granted. Thus, we shall see whether the Federal Circuit is prepared once again to stick its thumb in the eye of the Supreme Court or whether it will temper its extreme pro-patent proclivities and follow the law as it has been directed.
So, this is a very important case affecting the trend of patent enforcement in a profound way but does nothing to challenge the idea of software or business methods being patentable in a general sense. For anything to change in that regard, Congress must act.
1) Impeachment, if Congress feels strongly enough that the judges of the FC have breached their duty to uphold the law (as SCOTUS rulings are binding law upon lower courts).
2) SCOTUS cannot do anything except to rehear FC cases...but it can change internal procedures and court rules so that, for example, all patent cases are automatically granted review by SCOTUS upon application by either party, etc. (SCOTUS cannot do away with the requirement that parties request review, as that is a procedural requirement set forth by law.)
They can, but ruling on an appeal without issuing an opinion is not only considered bad jurisprudence, it has no precedential effect and thus does not create binding law on the lower court.
Consequently, it is rarely done. Moreover, in most instances where it is done, the reversal is on procedural rather than substantive grounds.
Look, you're not going to be able to get software categorically excluded from patentability. The Supreme Court has already said it's against categorical exceptions to patentability.
What you need to do is articulate why software patents are different from patents on say mechanical devices, and why those distinctions should render software, or at least a broad class of software, unpatentable.
What are those acronyms developers like to use? rtfm, utsl, etc.? :)
There is a link to the court rules in the article. This is the definitive source, besides knowing clerks personally.
There is some cynicism in this thread about whether this rehearing will amount to anything but I think this shows the system is definitely aware of what the media is saying about software patents, and what you are saying in online forums. Does the USPTO read stackexchange? I think we all know the answer to that.
The link to the court rules [1] is a good start, but is not actionable unless the reader is a lawyer. You sound like a lawyer, so that may be fine for you, but most of the HN audience is comprised of non-lawyers.
If you are indeed a lawyer, would you (or any other lawyer here) be willing to draft a template that software engineers can customize (the interest section), sign, and mail to the court?
Bilski v Kappos is a case that dealt with similar subject matter. The FSF[2], SFLC[3], Red Hat[4], and Google [5] filed amicus curiae briefs lamenting software patents. Surely there is something reusable here, especially from Red Hat pages 12-19.
Have you even looked at the rules? Paper sizes, fonts, lengths, deadlines. Do you need to be a lawyer to understand rules like those?
You are only interested in what they say about amicus briefs.
Anyway, I'm not even sure you can file amicus briefs for this case as a developer worried about software patents. But there's no harm in reading those rules. They are boring but that's what everyone has to follow. If you want to send stuff to the court, then you'd be wise to read those rules first. Take the initiative. Ask questions.
Maybe some weathly developers will call their lawyers and ask them what can be done? What are the chances of that?
I found this at https://plus.google.com/111030861447662731288/posts/9xPKsM9P.... As I said there, I find it unlikely that we'll get a sane ruling from this court. The best hope is that the case will go to the Supreme Court who will get yet another opportunity to overrule the patent court.
Not to sound cynical but the patent court has consistently found ways to narrow even Supreme Court rulings to the point where even the spirit of a ruling is circumvented in entirety. Only a wholesale restructuring of the patent court and the dispersal of domain concentration will un@#$% the situation.
Calling it: the Federal Circuit will find out that yes, everything is patentable. The Federal Circuit is a court of patent lawyers, for patent lawyers.
I'm guessing they'll take this opportunity to somehow find a way to extend it even further. Perhaps that Velvin fellow was onto something with regards to prior art being required to run on the same CPU to be considered valid?
If they want to make prior art architecture-dependent, I'm all for it, as long as they make infringement similarly architecture-dependent. Then we can all just switch architecture to 64-bit ARM and get rid of all existing software patents, and port as much as possible to establish a broad base of unpatentable prior art on that architecture.
Requiring prior art to be strictly identical is good for patent lawyers, so that is more and more the rule. Hogan actually would have had a point, if he were interpreting CAFC rulings instead of serving on a jury.
Requiring patents to be interpreted narrowly would be good for inventors, so that is out of the question. The patent bar will see to it, higher courts be damned.
I understand the lengths the Federal Circuit will go to in supporting patents, I just think it would be difficult even for them to require prior art to be tied to a particular architecture but allow a patent to claim the use of any general purpose processor. I wouldn't be particularly surprised if they tried to go that way, but it seems like that would make it even more likely that the Supreme Court would overrule.
Sadly I think there is way too much money invested in
software patents now for any substantial changes to be made in the system. The ship for software patent reform set sail about 10 years ago.
I'm actually more worried about what the current day patent battles portend for the future than what impact they are having now. We now have Apple, Google, IBM, Microsoft, and a horde of patent trolls aggressively patenting every possible concept they can, whether they are using it or not. And they are perfecting the art of getting patents through the patent office which are as general as possible in nature. If this continues in 20 years you will essentially need a license to practice software development from one or more of the big companies because every form of computation will be patented at the fundamental level. Large companies will be able to terminate any small startup by simply drafting a letter with a list of basic patents they are violating.
Would, for instance, Bing able to use Google search-related patented technology if software patents are "no longer enforceable"/disabled/patentable etc
Much of the underlying technology involved is hidden from the public and the competition, but they could emulate and simulate to provide similar results if they so wished. In many cases they already do this, or come close to it.
In one example[0], an online retailer was taken to court by Amazon for using a one-click buy button. Having all of the customer's billing and shipping information on hand already, this feature is obvious and makes sense for any online retailer, but Amazon has patented it. The competing retailer's solution was to add a confirmation page, increasing it to two clicks but providing similar convenience.
I think it really depends on what you mean by "technology", but if you mean PageRank, I assume it is really a math/algorithm description (I've never read the patent), so it would no longer be considered patentable.
That said, it seems like everyone uses some variant on PageRank as at least part of their search engine heuristics, so it might be that the patent is fairly narrow and/or they don't try to enforce it anyways.
What'd be the point in that? The problem with software patents is that no matter how clever you think the code you just wrote is, whatever you just wrote will later seem obvious to someone else.
Software patents are all about owning ideas, and that's wrong.
Rescind patents for software? Should happen. Won't happen, unfortunately. There's not enough political will, because there is not enough understanding of the principle here.
It's inexorable: Barbaric modes of thought practiced generally lead to barbaric laws.
1. The CLS Bank v. Alice case, though raising an issue of vital importance, is not about "whether software is patentable."
2. Over the years, the Federal Circuit has notoriously broadened the scope of patent eligibility, most conspicuously in its 1998 State Street decision which essentially opened the floodgates to the modern rush of business method patents by holding that virtually any business method was patentable so long as "it produces a useful, concrete and tangible result." In 2010, the U.S. Supreme Court, in the Bilski case, repudiated the State Street test for patent eligibility and, though upholding software and business method patents generally, directed courts to be much more vigilant to ensure that no one gain patent rights to what are mere "abstract ideas," however much they may incidentally be tied to some computer mechanism in their implementation. In a follow on decision (Prometheus), the U.S. Supreme Court similarly cut back sharply on the permissible scope of patent eligibility for claimed inventions that constituted nothing more than laws of nature.
3. In this CLS Bank case, the claimed patent involves a method for eliminating certain types of risk associated with an escrow closing and used a technological process by which to mimic a phantom version of the closing as a security check before allowing the real transaction to close. In essence, the technological aspect of this "invention" is routine and so the question is whether anything beyond that is simply another way of trying to patent nothing more than an abstract idea. If so, it should fail under Bilski; if not, it would potentially pass the test for patent eligibility.
4. The lower court in CLS Bank held as a matter of law that the "invention" was nothing more than an abstract idea and held it invalid as being ineligible for patent protection. On appeal, a divided panel of the Federal Circuit reversed and reinstated the patent. It did so, however, by setting out a brand new procedural rule whose effect would be to gut much of Bilski and reopen the floodgates to huge numbers of business method patents under a very loose standard - to wit, by holding, that, if it "is not manifestly evident [my emphasis] that a claim is directed to a patent ineligible abstract idea," then the court essentially treat the claim as eligible. What the Federal Circuit panel did, then, was to take the Supreme Court's directive for lower courts to be much stricter in evaluating dubious business method patents for patent eligibility and recast that directive in a form that said, if you as a court see that something is obviously nothing more than an abstract idea, then go ahead and reject it but you are otherwise to treat as being eligible for patent protection. In other words, the new strictness found in Bilski for evaluating such claims was once again to be transformed by the Federal Circuit into a loose standard that would let such claims coast by unimpeded.
5. Of course, this has set off alarm bells because, in effect, it represents yet one more revolt by the Federal Circuit against attempts by the Supreme Court to rein it in by bringing patent issues back to some semi-sane state. Following the panel decision (which was rendered over a sharp and stinging dissent), the losing party petitioned for a rehearing en banc (meaning by the full panoply of Federal Circuit judges as opposed to merely a 3-judge panel) and this was granted. Thus, we shall see whether the Federal Circuit is prepared once again to stick its thumb in the eye of the Supreme Court or whether it will temper its extreme pro-patent proclivities and follow the law as it has been directed.
So, this is a very important case affecting the trend of patent enforcement in a profound way but does nothing to challenge the idea of software or business methods being patentable in a general sense. For anything to change in that regard, Congress must act.