07.01.16
Gemini version available ♊︎Great News: The US Supreme Court Shoots Down Software Patents Again
But the Court of Appeals for the Federal Circuit (CAFC), where corruption has been rather rampant, gets more of a say as a result
Summary: The outcome of the US Supreme Court refusing to intervene in the Sequenom v Ariosa case — a case which would have put at risk the strongly-worded Alice and Mayo decisions (SCOTUS level)
WITH a software patents-friendly USPTO and software patents-hostile courts (even in the US) there certainly is a problem. One strives to make more money by granting (accepting) as much as 92% of applications (causing a massive spike in grants) and another actually delivers justice, where there’s no incentive to ‘bless’ every patent that’s at stake. It’s a bit like EPO examination versus reassessment at the appeal boards or USPTO versus PTAB.
A new article by Professor Dennis Crouch says that the Supreme Court will deal with Life Tech v Promega but not with a lot of other cases. “Alice and Mayo Remain” says another article in relation to the Sequenom petition (mentioned here before), which is very good news as it indicates that software patents will carry on dying, at least in the courts and at PTAB (irrespective of how reckless and selfish the USPTO chooses to be). “Patentees in the biotech and software industries had placed substantial hope on the pending Supreme Court case of Sequenom v. Ariosa,” wrote Crouch. “The hope being that the case would serve as a vehicle for the Court to step-back from the strong language of Alice and Mayo that has led to rejection and invalidation for many. The Supreme Court has now denied certiorari in Sequenom – effectively ending that campaign.”
Fantastic!
“It’s a bit like EPO examination versus reassessment at the appeal boards or USPTO versus PTAB.”We shortly thereafter found many polite complaints about this in patent lawyers’ Web sites like this one. It’s not exactly shocking that patent lawyers are sad that SCOTUS Justices won’t give software patents another chance. Watch how this gets framed as a ‘clarification’ issue (it’s not) over at patent lawyers’ Web sites that constantly bemoan this decision. Even some financial sites wrote about it (after earlier reports that pertain to financial speculations), life science Web sites wrote about it [1, 2, 3], and lobbyists of software patents were not exactly enthusiastic. “Drug industry overstates impact of patent reviews on innovation” is one good article about it (more from the same site), here is an objective site, and here is MIP writing about both aforementioned cases. “Fingers Crossed” is how some patent maximalists put it ahead of the decision, barely hiding their biases. The corporate media covered this as well [1, 2, 3, 4]. It’s quite unusual for those kinds of stories.
Ars Technica wrote about the former case as follows: “The US Supreme Court has taken up its next patent case, which may well lead to another decision sharply overturning a ruling by the nation’s top patent court.
“As we are going to show later, CAFC is already pushing against Alice in a newly-issued decision.”Here’s how the case made it to the high court: Life Technologies Corporation, part of Thermo Fisher Scientific, manufactures a genetic testing kit in the United Kingdom. The company sells this product worldwide. Life Tech made one element of the kit, called a Taq polymerase, in the United States and then shipped it to the UK to combine with the larger product.”
This case, unlike the latter one, hardly threatens Alice and Mayo in any way.
The only downside is that, in the words of the EFF, “Supreme Court Gives More Leeway to Lower Courts on Patents and Copyright: Will Lower Courts Champion Innovation?” Remember that by giving more influence to lower courts like CAFC the reality is that those who brought software patents to the US in the first place will gain more power. As we are going to show later, CAFC is already pushing against Alice in a newly-issued decision. █
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