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10.11.12

Court of Appeals for the Federal Circuit Promotes Software Patents

Posted in America, Patents at 2:12 pm by Dr. Roy Schestowitz

Court of Appeals for the Federal Circuit

Summary: The Court of Appeals for the Federal Circuit (CAFC) gets publicity as it’s painted as a software patents proponent

Mike Masnick denounces CAFC, noting: “We’ve written many, many times about the problems created by the Court of Appeals for the Federal Circuit, CAFC, who (among other things) is the appeals court that has jurisdiction over all patent appeals. It’s a court that has been around for 30 years as of this week, and in the opinion of many, has been an unmitigated disaster. Of course, if you’re a patent lawyer or a patent troll, you might think the opposite. As we’ve discussed in the past, CAFC has spent the last 30 years massively helping patent holders by expanding the definitions of what was patentable, and generally being much, much, much more favorable to patent holders than appeals courts had been back when jurisdiction was split among the 12 difference circuit appeals courts. With its 30th anniversary this week, Tim Lee has written a post detailing how it “wrecked the patent system.” It’s a great read, covering a number of key points.”

Timothy B. Lee accuses CAFC of legalising software patents. He defends his allegation from a patent lawyer with a big mouth. To quote his piece: “Most of the time I ignore trolls in the hope they’ll go away. But patent attorney; Gene Quinn outright accuses me of lying in his response to my recent piece on how the Federal Circuit Court of Appeals wrecked the patent system. So I thought a quick response was in order. Here’s Quinn, arguing that my claim that “software was generally considered to be ineligible for patent protection” under pre-1982 Supreme Court precedents is “completely false.”” Gene Quinn is known as Patent Watchtroll here.

“…CAFC has spent the last 30 years massively helping patent holders by expanding the definitions of what was patentable, and generally being much, much, much more favorable to patent holders than appeals courts had been back when jurisdiction was split among the 12 difference circuit appeals courts.”
      –Mike Masnick
Here is what patent maximalists say: “The Federal Circuit has refocused its attention on the question of patentable subject matter and has ordered an en banc rehearing of CLS Bank Int’l. v. Alice Corp. (Fed. Cir. 2012). In its initial panel opinion, the Federal Circuit held that, when considered as a whole, the claimed data processing invention was patent eligible. Judge Linn wrote the majority opinion suggesting that a court should only reach Section 101 issues when subject matter ineligibility is “manifestly evident”. Judge Prost wrote in dissent and argued that the majority improperly ignored the Supreme Court’s most recent statements on the topic found in Prometheus. The patentable subject matter question in CLS Bank is virtually indistinguishable from the parallel issue in Bancorp v. Sun Life. In that case, however, the Federal Circuit ruled the invention ineligible.”

Mark Webbink, a law professor, says that “Federal Circuit to Consider the Patentable Subject Matter of Software”. Here is his personal stance: “While I feel we should be restrained in our expectations of the Court establishing a more limited view of software patentability, at least they are asking the questions and inviting broad input.

“This grant of rehearing vacates the July 9, 2012 decision of the Federal Circuit panel consisting of Judges Linn and O’Malley in the majority and Prost in the dissent. That decision was roundly questioned here and elsewhere (Patently-O and IPWatchdog).”

Pogson weighed in as well. On many occasions we criticised SCOTUS (e.g. [1, 2]), but perhaps CAFC too serves corporate interests.

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