The role of software patents in the patent reform debate

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software patents

Momentum seems to be building in Congress to tackle patent reform. From an open source perspective, any reform that reduces the risk and expense of patent lawsuits is surely a good thing. But the reforms under current discussion so far have largely been focused on the problem of NPEs (non-practicing entities) and have not directly addressed the problem of software patents. Are the two issues best viewed as one? So argues Boston University Professor James Bessen in his recent piece, The patent troll crisis is really a software patent crisis.

Bessen provides interesting historical perspective on patent problems, but he's emphatic that the NPEs (aka patent trolls) are causing damage unlike patent exploiters of the past. "The last two decades saw a dramatic increase in the number of patents on software, and these patents are particularly prone to abuse, both by trolls and by other types of patent holders. Policymakers are increasingly focusing on the problem of frivolous patent litigation. But so far, policymakers haven’t given enough attention to the fact that the patent crisis is mostly about patents on software."

 Citing a recent report from the nonpartisan Government Accountability Office, Bessen explains the basis for software patent abuse:

So why are there so many lawsuits over software patents? The report states that 'many recent patent infringement lawsuits are related to the prevalence of low quality patents; that is, patents with unclear property rights, overly broad claims, or both. Although there is some inherent uncertainty associated with all patent claims, several of the stakeholders with this opinion noted that claims in software-related patents are often overly broad, unclear or both.

Because unclear and overly broad language is a hallmark of many software patents, they are often targeted for lawsuits. "[S]oftware patents are particularly prone to . . . abuses because software is inherently conceptual. Software is a technology that represents broad classes of interactions abstractly. That makes it inherently difficult to tie down a software patent to a specific inventive concept." Software patents "are much more likely to have fuzzy boundaries and they are much more likely to be involved in a lawsuit."

Bessen thinks that recent Supreme Court cases reaffirming the ban on patenting abstract ideas could result in invalidation of many software patents, but notes that courts are reluctant to implement this ban. Without action, he thinks, "wasteful litigation will continue to grow, imposing large costs on society, costs that are already inhibiting innovation."

There are powerful economic forces that will make legislative action directly addressing software patents difficult. It's encouraging, though, to see a scholar of Bessen's stature putting the spotlight on this important issue.


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Rob Tiller is vice president and assistant general counsel for Red Hat, where he manages patent, trademark, and copyright matters. He is a frequent speaker and writer on open source legal issues. Before coming to Red Hat, he was a partner with the law firm of Helms, Mulliss & Wicker, PLLC, where he specialized in commercial and IP litigation.


"Bessen thinks that recent Supreme Court cases reaffirming the ban on patenting abstract ideas could result in invalidation of many software patents, but notes that courts are reluctant to implement this ban."

The lower courts are reluctant but they are beginning to come around to the Supreme Court's viewpoint. The principle supporter within the judicial system of the idea that all software is patentable is Chief Judge Rader of the United States Court of Appeals for the Federal Circuit. He has consistently ignored Supreme Court rulings which restrict software patents. Up until May, 2013 he had no trouble getting the other judges in his court to agree with him.

On May 10, 2013 the United States Court of Appeals for the Federal Circuit made a landmark ruling in CLS v Alice. The court heard the case en banc and decided in a 5 - 4 - 1 split that a common banking practice did not become patentable by writing it in software. This was done over Judge Rader's strong objection. While the case was still before the court Judge Rader made a small speaking tour in support of software patents.

Now on September 5, 2013, the Federal Circuit affirmed a District court ruling in Accenture Global Servs., GmbH v. Guidewire Software, Inc that a computer system claim was not patent-eligible when a common insurance industry practice was written into software. The decision cited CLS v Alice as well as the relevant Supreme Court decisions. The vote was 2 -1 with Chief Judge Rader dissenting.

Now that most of the judges on the United States Court of Appeals for the Federal Circuit are on board with the idea that an abstract idea does not become patentable by being written into software I foresee a series of Appeals Court decisions that disallow various classes of software patents. Eventually the set of software patents will consist of the null set i.e. there will be no software patents.

In order for software patents to be abolished each company threatened with a patent lawsuit should take the initiative and sue in a Federal District court for a summary judgment declaring the patents in question to be invalid.

Steve Stites

Software patents almost cannot help but be about abstract ideas. Also, the few that are not on abstract ideas are almost certain to be of a type that should not be worth anything.

Regardless of what programming language is used there have been the same basic set of programming tools pretty much since the inception of computer programming. This makes it so if you give several programmers the same goal, they will only take one or two different approaches to the problem, since they have the same set of tools to work with. The methods being obvious and independently reproducible makes it so the goal is the only unique thing, even though goals, or ideas, are not supposed to be patentable.

Copyright gives as much protection to the code as it is reasonably possible to give. Most code, though, does not derive much of any benefit from copyright on its technical aspects because, again, the tools are basic and the syntax rules of the language determine what a line is going to say. As long as someone writes their code independently, it can do the same thing as another programmer's code and it does not violate copyright. The same factors should also make these routines ineligible for patent protection for the same reasons.

The few software patents that are not about the goal, but about technical details, are for things like codecs, compression routines, and filename conversion between short and long namespaces. The problem with patents like these is that, while the methods for these things may be unique, there are always alternative methods that are perfectly satisfactory. The only factor that differentiates them is when one becomes a standard method used by a lot of people. Patents on these types of things at this point tend to be valuable only if the patent holder encourages free use of the patent until it becomes standard and then starts charging for it later. That's not what patent protection is ostensibly for. Even methods that benefited from being first, like mp3 compression, only retained any value beyond the development of alternatives because of wide adoption, not because the alternatives were worse (some were demonstrably better).

I have created a written transcript of the oral arguments in Accenture vs Guidewire.

<a href="">Accenture vs Guidewire Oral Agruments Written Transcript

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