Steve Stites
Authored Comments
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.
Now on September 5, 2013, the Federal Circuit affirmed a District court ruling in 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.
This decision is HUGE for several reasons:
1. For years Chief Judge Rader has consistently ignored Supreme Court precedence and written patent law as broadly as possible. Now for the first time the Court paid more attention to the Supreme Court's opinions than to Judge Rader's.
2. This ruling solidly affirms CLS v Alice which was a shaky precedent at 5 - 4 - 1.
3. Judge Rader is losing control of the United States Court of Appeals for the Federal Circuit. In choosing the judges to hear In Accenture Global Servs., GmbH v. Guidewire Software, Inc he could not find any other judge who was a lock to rule for Judge Rader's all software is patentable position.
http://www.natlawreview.com/article/divided-federal-circuit-panel-finds-computer-system-claims-not-patent-eligible
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Steve Stites
"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.
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Steve Stites