US Supreme Court rules against software patents

Posted Jun 19, 2014 17:38 UTC (Thu) by wahern (subscriber, #37304)
In reply to: US Supreme Court rules against software patents by Wol
Parent article: US Supreme Court rules against software patents

We wouldn't be in this position but for SCOTUS decisions midcentury. The shift from emphasizing patentability to emphasizing obviousness (and thus demurring to the USPTO) happened in the 60s and 70s. Although it's been cyclical over the past 200 hundred years.

But I think perhaps that the modern SCOTUS is more suspicious of the regulatory state and appreciative of arguments like regulatory capture, and while politics and history tends to dictate how strongly they express that sentiment in other areas, wrt patents they feel more free to push back a little.

US Supreme Court rules against software patents

Posted Jun 20, 2014 0:50 UTC (Fri) by rahvin (guest, #16953) [Link] (3 responses)

The critical supreme court decisions that opened up business method and software patents were in the 80's. Congress shortly afterwards cemented the decisions in the federal code. They further relaxed the standard of what qualifies as a patent in the late 80's in several suits against the USPTO.

Everyone blames the USPTO for this but the fact is the Supreme court and Congress forced them to issue most of those patents. We're reaping what we sowed.

US Supreme Court rules against software patents

Posted Jun 20, 2014 1:17 UTC (Fri) by coriordan (guest, #7544) [Link]

I'm open to correction on this, but my reading of it was that the Supreme Court invalidated Flook and Benson in the 70s. Then upheld Diehr in 81. Then the CAFC was created and the Supreme Court completely stopped hearing patentable subject matter cases until Bilski in 2010.

Diehr wasn't really a software patent, but the pro-patent CAFC used it as a basis for allowing software patents. The CAFC just kept on narrowing the exclusions (hitting an all-time low with State Street). Software patenting only really took off in the 90s.

But finally, since 2010, the Supreme Court has decided to start taking patentable subject matter cases again and they're invalidating everything because the CAFC's practice has simply gone off the rails.

So I'd mostly blame the CAFC. One could criticise the Supreme Court for not stepping in sooner, but it's also understandable that they wanted to give the newly-created CAFC some time to develop its case law and grow into a strong institution.

(I was under the impression that the legislation hasn't changed significantly. I hadn't heard about the USPTO getting sued by the government.)

US Supreme Court rules against software patents

Posted Jun 20, 2014 3:05 UTC (Fri) by wahern (subscriber, #37304) [Link] (1 responses)

It all started in the 1950s. The 1950s was a cyclical trough in the scope of patent eligibility. You can look at graphs of both the strictness of Supreme Court decisions regarding patents and patent rejections by the USPTO, and they peak mid century.

The 1952 Patent Act was principally written by [future] Judge Giles Rich. In 1956 he was nominated for a seat on the Court of Customs and Patent Appeals. He then spent four decades on the bench protecting and expounding upon his invention, expanding the scope of eligibility. Having been the author of the bill, his judicial opinions (even when in dissent) were extremely influential. You can trace the SCOTUS decisions in cases like Chakrabarty, Diehr, and State Street Bank to his opinions and arguments.

So the scope of patent eligibility was driven by both an overall change in business attitudes, as well as by the legal academy, with Rich and a few others in the vanguard. But of course it took awhile for their labor to bear fruit.

It was an ideologically driven movement; an ideology regarding the interplay of capital, property rights, and technological development. (And arguably a cousin to the law and economics movement.) All the concepts law students learn in patent law classes can be traced back to Rich and his ilk, because the truth of the matter is that before that era the conceptual underpinnings to patent law were never as sophisticated--or contrived--as they are today.

Like most ideologically driven movements, they never cared much about empirical evidence, as they were convinced about the validity of their concepts. Hopefully we're finally waking up not only to the obvious costs, but as well as to the flaws in modern arguments for patent monopolies.

US Supreme Court rules against software patents

Posted Jun 20, 2014 3:13 UTC (Fri) by wahern (subscriber, #37304) [Link]

I did some quick Googling to find some sources to back me up (it's been years since I studied this stuff seriously, and I don't have access to academic databases anymore). Here's an interesting paper discussing Rich's legacy.

http://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideSept09_Davis.authcheckdam.pdf

Quote:

Whether justified or not, all this led to a chilling effect on patent law and practices, with diminution of the value of patents as well as the willingness of business, especially small business, to invest in research and development and take the financial risks necessary to start up or extend a business. One Supreme Court justice, Mr. Justice Jackson, summed it up bluntly in 1949: "... the only patent that is valid is one which this Court has not been able to get its hands on."
Enter Giles Rich.