When is software patentable? The Supreme Court is about to weigh in

The Alice Corp. case definitely represents a potential pivot point for software patents. The determination of what what is and abstract idea and what is not in the context of computer software has long been a difficult and fuzzy process. It is hoped that the U.S. Supreme Court will use its decision in the Alice Corp. case to clarify that analysis, thus providing clearer direction to software authors who are considering whether to seek patent protection for their creations.

Gigaom

Software patents have always been controversial, in large part because the dividing line between a patentable software-based invention and one that is not has never been clearly defined. But the often hazy body of law that determines software patentability could be about to change.

On March 31, the U.S. Supreme Court will hear oral arguments in Alice Corp. Pty. Ltd. v. CLS Bank Int’l., No. 13-298, a case that could have wide consequences in the tech community and beyond.  At stake is when and how a particular software-based invention—that is, an invention that incorporates the performance of a computer and software—is entitled to a patent.

At the heart of the matter is the “abstract idea.” An abstract idea on its own is not patentable, but what exactly counts as an abstract idea? The Supreme Court has never set out a specific test for what is and is not…

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Study: Trolls account for 40 percent of patent lawsuits — Tech News and Analysis

Study: Trolls account for 40 percent of patent lawsuits — Tech News and Analysis.

A recent article on GigaOm.com discusses a recent study which documents a significant spike in the number of patent suits being brought by NPEs (or “trolls” in common parlance), with such suits now making up nearly 40% of all patent litigation.

Even more disturbing is the fact that typical costs in patent litigation are now ranging from $650,000 to $5 Million (depending, largely, on the amounts of money at stake). This is a huge amount of money being tied up in IP fights that could otherwise be used in R&D or to otherwise drive innovation or fund job growth.

Of course, filed patent lawsuits are only the tip of the iceberg. This does not not include the impact of IP disputes which do not even reach the litigation stage involving threats, forced licensing deals, and disputes which settle on other bases before litigation.

Judge decries “excessive” copyright and software patent protections | Ars Technica

Judge decries “excessive” copyright and software patent protections | Ars Technica.

Ars Technica has a brief article on the outspoken Federal Appeals Court Judge Richard Posner, who has been increasingly taking the U.S. Intellectual Property laws to public task.  They make particulat reference to the joint blog written by Judge Posner and University of Chicago Economics professor Gary Becker.

In a recent blog entry, Posner tackles the question of whether current copyright and patent laws restrict competition and creativity excessively. In his post, Judge Posner differentiates the propriety of robust patent protection in such R&D intensive fields a pharmaceuticals as opposed to the fast-moving and interative developments that prevail in the software world.

Posner also advocates for reform in the copyright realm as well, with particualy cogent arguments for extension and clarification of fair-use rights, with an eye towards encouraging creativity and academic research. In this field he again uses an economic lens in which he views resource intensive undertakings such as motion pictures very differently from academic books and articles. Between these two extremes he sees a continuum across which the economic utility of protection varies.

Overlaying his economic analysis of the utility (and propriety) of copyright protection is his conclusion that both the excessiveness of the existing 70 year term of the protection beyond the author’s death and negative effects of the many courts’ very narrow interpretation of “fair use” rights.

Both the Ars Technica article and the Posner bog post are well worth reading. While neither digs very deeply or rigorously into the underlying legal and economic arguments at play, Posner’s positions are certainly thought-provoking. If nothing else they represent a cogent call for Congress and the courts to re-examine our intellectual property laws to promote the Constitutional mandate of establishing laws intended to promote the advancement of the arts and sciences: a purpose from which the current IP regime is increasingly straying.

Can a new crowdsourcing venture help in improve the state of the U.S. patent process?

This looks like an interesting addition to the patent review process. Ultimately, I am skeptical that it will make a significant impact on the process, bit it certainly cannot hurt and may even help!

Gigaom

A new partnership between the US government and a popular Q&A site may help rid the country of the low quality patents that have produced an endless series of lawsuits that threaten to stunt parts of the technology sector.

Starting today, the website Stack Exchange will run a channel devoted to patents on which the public can help scrutinize pending application. The move serves to crowdsource the arduous task of examining patents, permitting the general public to submit information that will help the patent office decide whether or not something is a new and useful invention.

It works like this. Once a patent examination is made public, anyone can submit it to Stack Exchange and launch a discussion. Others can then offer “prior art” that they believe is relevant to determining whether the patent should be granted. The collection of prior art is then sent on to an examiner at the…

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Groklaw – The Foreman’s Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj

Groklaw – The Foreman’s Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj.

Here is another interesting piece on Groklaw regarding the recent verdict in the Apple vs. Samsung patent suit. Based on Groklaw’s analysis (which I have not yet personally fact-checked), it appears that there is growing evidence that the jury (lead by the jury foreman) may have fundamentally misunderstood the law on the issue of what does and does not constitute “prior art” and how that effects the enforceability of at least one of Apple’s patent claims.

As Lewis Carol’s Alice said, “Curiouser and Curiouser!” It will certainly be interesting to see how the post-trial motions and/or appeals of this verdict play out.

If nothing else, though, this points up the problems introduced by the complexities of our current patent system, particularly when layman juries are involved.

Why the Apple v. Samsung Ruling May Not Hold Up

Why the Apple v. Samsung Ruling May Not Hold Up.

Gizmodo (via Pamela Jones from Groklaw) has run an interesting summary piece on some of the apparent bases that may exist for Samsung to appeal is recent $1B+ pasting by Apple for patent infringement.

Concerns first began to arise from how quickly the jury came back with a verdict. This was compounded when it turns out that the jury made a clear error in calculations in the initial verdict and had to go back in and reform the verdict to correct its error. Then, post-trial some of the jurors began to give information about the deliberation process and more questions began to arise.

The Groklaw article cited by Gizmodo gives a fairly detailed account of some of the issues which could give Samsung an avenue to have the verdict overturned. It will be interesting to see what other potential issues arise and whether Samsung grabs on to them to avoid Apple’s hefty judgment.

Apple Awarded $1.049 Billion In Damages As Jury Finds Samsung Infringed On Design And Software Patents | TechCrunch

Apple Awarded $1.049 Billion In Damages As Jury Finds Samsung Infringed On Design And Software Patents | TechCrunch.

Well, perhaps the biggest surprise here was just how quickly the jury came back with the verdict (and perhaps the dollar amount granted). The long and the short of it is, Apple has secured a judgement of over $1B for infringement of Apple’s design and software patents surrounding the iPhone.

One interesting tidbit from the verdict is that the jury denies all of Samsung’s counterclaims for infringement of its patents.

Unsurprisingly, Samsung is vowing an appeal of the verdict. This battle is far from over, it appears. It will take a while (perhaps through the conclusion of any appeals on the case) to make any firm decisions as to the effect this case will have on the patent landscape. In the short term, however, the verdict is undeniably good fro Apple’s stock and bad for Samsung’s.

Motorola’s Patent Lawsuit Against Apple Goes After Siri, Location Reminders, Email Notifications & More | TechCrunch

Motorola’s Patent Lawsuit Against Apple Goes After Siri, Location Reminders, Email Notifications & More | TechCrunch.

Oh Boy! Yet another patent slug-fest in the making. This time Google’s recently acquired Motorola Mobility unit is suing Apple for infringing upon a number of its patents, including locations reminders, e-mail reminders, and even “Siri”.

I am hoping that at some point soon, someone is going to realized that the current rounds of patent-based mutually assured destruction are a huge detriment to innovation (and the economy) and that some form or rational cross licensing of technology will take place, before the mobile ecosystem becomes a blighted wasteland.

Another senior judge bemoans ‘wasteful litigation,’ state of patent system — Tech News and Analysis

Another senior judge bemoans ‘wasteful litigation,’ state of patent system — Tech News and Analysis.

Joining the growing chorus of judicial discontent, Federal Circuit Judge Timothy Dyk laid into a lower in the Mayer v. Bodum patent case, labeling the case “an example of what is wrong with our patent system.”

Increasingly judges ruling on patent cases are finding protracted and ruinously expensive patent litigation to be wasteful and contrary to both the interests of the inventorship community and the underlying purpose of the patent system.

In the Bodum case, Dyk was particularly frustrated with not only the incredible expense of the litigation but with the fact that underlying patent had been able to survive a challenge on the basis of obviousness up until that point where the case reached him.

While the protection of intellectual property is undoubtedly of significant economic value to our company, the growing proliferation of patents which fun afoul of being clearly obvious (and thus invalid and, in fact, not eligible for patent in the first place) is a growing burden on our innovation economy. While there are numerous flaws in our current patent system, one of the most detrimental is the apparent inability to reliably and consistently weed out properly patentable IP from IP that is not properly patentable (whether for obviousness or other reasons). If we are to continue to grow our economy on the backs of innovation and technological advancement, these are the types of roadblocks that we must remove!

Big Tech’s patent bubble: an “aberration” waiting to burst — Tech News and Analysis

Big Tech’s patent bubble: an “aberration” waiting to burst — Tech News and Analysis.

In Jeff Robert’s piece on GigaOm, he talks to Neil Wilkof, a veteran IP lawyer about whether the current run on buying up patent portfolios is a market distortion and whether the bubble is likely to burst soon.
Clearly Wilkof agrees with many (but not all) experts that the inflating prices on IP portfolios does not necessarily add value to the purchasing companies and potentially distracts them from their core mission of innovating and selling creative, exciting, and profitable products and services.

There are growing signs that the value of portfolios may be in for a correction, as well. The recent sale of Kodak’s patent portfolio brought in only a fraction of the $2.6 Billion the Kodak had sought for it.

While it is still too early to call this the bursting of a bubble, there are caution flags starting to pop up on the horizon and companies need to be cautious, lest they get fall victim an overheated and overhyped market for IP portfolios.