In a ruling handed down on Thursday in Alice v. CLS Bank, SCOTUS invalidated a set of software patents because the software in question only used computers to apply an abstract concept. Julie Samuels casts the ruling as a death blow to patent trolls:
Most software patents are both vague and overbroad, making it hard for anyone—lawyers, engineers, everyday inventors—to understand what they actually cover. And there are tons of them: The patent office issues approximately 40,000 every year.
So entered the patent troll. These bad actors do not usually make or sell anything. Instead they take these meaningless, low-quality (but valuable) patents to troll the companies that are inventing and producing. This problem costs our economy billions of dollars annually and should be taken seriously. But patent trolls are simply a product of our broken patent system. The root of the problem—and the troll’s weapon of choice—is the low-quality software patents that have flooded the system.
And this brings us back to the Alice v. CLS Bank ruling.
The Supreme Court did not abolish software patents—something some advocates had hoped for but was by all accounts highly unlikely—but it did significantly tighten the standard for what is and what is not patentable. This will undoubtedly lead to fewer low-quality software patents. And that is excellent news. Specifically, the court unequivocally stated that if you have an idea so abstract that it cannot be patented, simply tying it to a “generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.” It also stated that tying an abstract idea to “purely functional and generic” hardware similarly would not make the idea patentable.
But Timothy Lee argues that the distinction the ruling makes between abstract and less abstract software is meaningless, because “at root, software is nothing more than a sequence of mathematical operations.” He makes the case for throwing out software patents altogether:
In practice, the courts have only allowed patents that claim complicated mathematical algorithms. For example, in a 2011 decision the Federal Circuit approved a patent because the mathematical algorithm it claimed “required the manipulation of computer data structures.” Of course, a “computer data structure” is just the way a computer organizes numbers and symbols. …
If a patent claims a mathematical formula simple enough for a judge to understand how it works, she is likely to recognize that the patent claims a mathematical formula and invalidate it. But if the formula is too complex for her to understand, then she concludes that it’s something more than a mathematical algorithm and uphold it.
But this makes the law highly unpredictable, since it effectively depends on the mathematical sophistication of the judge who happens to take the case. And it’s also logically incoherent. The courts originally excluded algorithms from patent protection because they are basic building blocks for innovation — that’s as true of complex algorithms like data compression as of simple ones.
The Dish 