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05.21.13

Software Patents Eligibility Likely to be Decided by SCOTUS

Posted in Patents, Red Hat at 11:03 am by Dr. Roy Schestowitz

Indecision claimed thus far

Indecision

Summary: Analyses suggest that an escalation by appeal to SCOTUS is likely to be the next stage in ‘Bilski 2.0′

THE decision from CAFC about a software patent has helped generate a lot of contradictory coverage, where patent lawyers insist there is no change, whereas others claim many software patents — if not all — have just died [1, 2]. Bilski was a tad similar to that. Now comes the take of Red Hat’s Rob Tiller, a lawyer who seems not to be strongly against software patents, just softly. He wrote the following about the CAFC ruling: “The law of software patents took an interesting, and ultimately encouraging, turn a little more than a week ago. In the CLS Bank case, ten judges of the Federal Circuit issued five separate opinions, without any single legal theory gaining a majority. Their debate showed that the scope of the subject matter requirement for patenting software is far from settled. It also makes it more likely that the Supreme Court will speak to the issue, and get it right.”

“Their debate showed that the scope of the subject matter requirement for patenting software is far from settled. It also makes it more likely that the Supreme Court will speak to the issue, and get it right.”
      –Rob Tiller
Here is the take of another site sceptical of software patents. It asks: “What inventions are eligible for patent protection?”

It then says “the Federal Circuit Court of Appeals (often called the nation’s patent court) was supposedly riding to the rescue. The court’s eagerly-awaited en banc decision in CLS Bank Int’l v. Alice Corp. [pdf] was widely expected to clarify the patentability of computer-related inventions, which play a vital role in the US economy. Unfortunately, instead of clarifying the law, the court’s 10 May ruling increased the confusion, casting doubt on more than 300,000 patents – including one-fifth of all patents issued last year.”

It is worth noting that one fifth of new patents in the USPTO are software patents now. Fox Rothschild LLP agreed with Tiller on the eventuality: “It’s also likely that the decision will be appealed to the Supreme Court.” SCOTUS rules in favour of corporate power (its Justices are appointed by politicians who are funded by corporations), but maybe it will surprise us this time around.

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