One single decision that has changed everything

Summary: A look back at the legacy of Alice v CLS Bank and how it contributed to the demise of software patents in the United States, the birthplace of software patents

THE DAY of Alice I still remember very well. I was in Scotland on holiday at the time and it seemed like the beginning of something amazing, having spent over a decade fighting against software patents.

The EFF has just come out with an announcement titled "Happy Birthday Alice: Two Years Busting Bad Software Patents" (yes, they actually said software patents, for a change).

"This week marks the second anniversary of the Supreme Court’s landmark decision in Alice v. CLS Bank," said the EFF. "In Alice, the court ruled that an abstract idea does not become eligible for a patent simply by being implemented on a generic computer. When the case was decided, we wrote that it would be a few years until we knew its true impact. Two years in, we can say that while Alice has not solved all problems with software patents, it has given productive companies a valuable tool for fighting back against patent trolls. And while it has been bad for the trolls, there’s little reason to think the Alice decision harmed real software companies."

That last sentence is important in light of the quote that we shall give later (from those who profit from software patents without creating anything).

“Two years in, we can say that while Alice has not solved all problems with software patents, it has given productive companies a valuable tool for fighting back against patent trolls.”
      --EFFThis decision has had truly profound effects and it has become the nightmare of patent lawyers who rely so heavily on abstract software ideas becoming patents (often just old ideas transformed into code). Robert R. Sachs, who isn't particularly happy about what Alice has done, says that "well over 36,000 applications have been rejected based on Alice" in yesterday's analysis. He provides a lot of data and charts, as his blog so often does (very informative blog by the way, with original research).

As expected from Mr. Sachs, he acknowledges this is good news but then pretends it somehow discourages investment (maybe in patent lawyers). It's a somewhat questionable part (without evidence to back it), as one might expect from patent maximalists. The final paragraph states: "It is true that Alice has been successfully used to combat patent troll litigation based on poor quality patents—and that society benefits when these patents are invalidated. But the price of such benefits cannot be measured because we cannot know at what costs these outcomes came: we will never know what inventions did not get funded and developed because of Alice. That is why it is necessary for the courts and the USPTO to tread carefully."

Actually, a lot of companies are destroyed by software patents (e.g. patent trolls that use them) before they even have the opportunity to attract investors. We have given examples of that over the years.

“It is true that Alice has been successfully used to combat patent troll litigation based on poor quality patents—and that society benefits when these patents are invalidated.”
      --Robert R. SachsDennis Crouch and what seems like a patent lawyer, Michael S. Kwun, inevitably make fun of Alice [1, 2], which helped eliminate a lot of software patents. Also mind the a paid IAM 'article' that now speaks about FRAND, a Trojan horse for software patents even when/where they are not legal. The piece says: "Paragraph 63 of the Huawei decision states that the SEP user must express its willingness to conclude a licensing agreement on FRAND terms."

FRAND does not mean free, the "F" stands for fair and is typically incompatible with Free software, where the "SE" in SEP means standard/s-essential, meaning that there is no way around some kind of patent tax/payment. Thankfully, after Alice, a lot of so-called FRAND ploys can be rendered irrelevant and obsolete, especially once challenged in a court of law. We already wrote many articles about FRAND in Europe and how Microsoft uses it to push for software patents in Europe and thus exclude GNU/Linux. ⬆