US Supreme Court reining in software patents

(For analysis and info links, see the swpat.org wiki page Alice v. CLS Bank.)

“Reining in”. It wasn’t easy to find a term that was both accurate and also vague enough to describe what just happened. The US Supreme Court today published its decision on Alice v. CLS Bank. It’s too early to say exactly what the effects will be, but the news is certainly all good: The Court in no way extended patentability nor did it affirm patentability for any sub-category of software; and a certain category of software patents has definitely been invalidated.

It’ll take a few days to produce a thorough analysis of this (I’ll post again here next week, and in the mean time check the wiki page Alice v. CLS) but early optimism seems to be justified by the fact that Gene Quinn is hopping mad. Quinn’s a patent lawyer and he’s always optimistic about being able to patent software, so I felt good about Alice v. CLS when I saw his reaction:

the Supreme Court decision in Alice will render many hundreds of thousands of software patents completely useless. … On first read I don’t see how any software patent claims written as method or systems claims can survive challenge. … What this means is that companies like Apple, IBM, Microsoft, Google and others have had the value of their patent portfolios nearly completely erased today. … getting a software patent will be much more difficult than it ever has been. … Most already issued software patents will not be able to be saved.

I think Quinn’s going too far, but for once I hope I’m wrong and he’s right! In any case, it’s clear that this ruling destroys some restrictions on software development. There is cause to celebrate.

The Court didn’t endorse any software patents

I read one or two comments saying that this ruling invalidates certain categories of software but suggests that the Court would uphold other categories of software patents. But the Court didn’t say that. Here’s what the Court said:

Viewed as a whole, these method claims simply recite the concept of intermediated settlement as performed by a generic computer. They do not, for example, purport to improve the functioning of the computer itself or…

Some people read this as a contrast:

  • Alice’s claims are invalid.
  • In contrast, if they improved the functioning of a computer they would be valid.

That’s wrong because the Court didn’t say that anything in particular is or would be patentable. The Court said that the Alice category (i.e. abstract idea + “on a computer”) is invalid, and it said there is another category (“improving the functioning of a computer”) which is not part of the Alice category. They never comment on the patentability of that other category. The more accurate reading of this contrast is:

  • Today’s ruling finds claims such as Alice’s invalid.
  • In contrast, today’s ruling does not pass comment on claims that improve the functioning of a computer.

So, why then did the Court distinguish these two categories? Maybe it’s that Justice Thomas couldn’t get agreement on the issue, so he decided to leave out. Maybe the Court thought it was simply beyond the scope of this particular case. Pessimists assume that the court made two categories because they intend one to be patentable and the other not, but if that’s what the Court wanted, they could have said so directly (“B is valid”) instead of a double negative (“A is invalid; B is not A”). No one knows if the court will uphold or invalidate that other category of patents in a future ruling, but this ruling doesn’t uphold them.

Now, I’m not a highly-qualified reader of the US Supreme Court, but if the pessimist interpretation was right then I’d expect to find patent lawyer blogs claiming partial victory or at least a consolation prize that a sub-category of software patents are for the first time validated by the Supreme Court. The patent lawyers aren’t saying that, so they seem to interpret it as I have.