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.
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.
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…
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.
Judge Richard Posner, who recently dismissed the Apple-Motorola patent case, is again speaking out on the issue of software patents.
In a recent interview with Reuters, Judge Posner questions the utility of applying patent law to computer software. Citing the relatively lower cost of R&D for software (vs. other industries, like pharmaceuticals) and the growing complexity of electronic devices, such as smart phones, which may incorporate thousands of components, each of which may be the subject of multiple patents, raises the specter of courts clogged with endless patent litigation .
While there are strong arguments available both for and agasint applying patents to software, the increasing discourse, even among jurists, of the implications of the current course of patent law and patent enforcement makes it clear that there is clear need for reform in the system. Rationalizing the competing interests of incentivizing innovation by protecting intellectual property and preventing the creation of technological roadblocks to further innovation is an acute need. Nor can we move towards a balancing of these interests too quickly, as the other thing that rational markets need are predictable rules by which to play. Currently, the rules are anything but predictable, and this retards investment in technology.
In a still-sputting economy, disincentives for new investment and new innovation are the last things that we need.