Linked by Thom Holwerda on Thu 19th Jun 2014 23:59 UTC

The US Supreme Court has made it ever so slightly harder to patent software.

The patent claimed a method of hedging against counter-party risk, which is a fancy word for the risk that you make a deal with someone and later he doesn't uphold his end of the bargain. The Supreme Court unanimously held that you can't patent an abstract concept like this merely by stating that the hedging should be done on a computer. This kind of abstract patent is depressingly common in the software industry, and the CLS ruling will cause lower courts to take a harder look at them.

It's a small victory, but hey, I take whatever I can. Sadly, the SCOTUS also states that "many computer-implemented claims" are still eligible for patent protection, without actually explaining which claims. So, while appending "on a computer" to an obvious abstract concept does not make it patentable, the actual concept of patenting software is still very much allowed.

Even if the SCOTUS had completely abolished software patents, however, we still would have to deal with them for more than a decade - existing software patents would not magically vanish, and would still require lengthy and expensive court cases to be invalidated. Something bullies like Microsoft and Apple can afford easily, while many others cannot.

Sorry for not putting a smile on your face, but reality is reality. Sadly.

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RE: It's better than you think
by TemporalBeing on Fri 20th Jun 2014 17:09 UTC in reply to "It's better than you think"
Member since:

> "many computer-implemented claims" are
> still eligible for patent protection

That doesn't necessarily mean software patents.

That could be washing machines with an improved spin cycle which is controlled by a microchip (a "computer"). Or it could mean inventions like the rubber-curing machine of the Diehr ruling in 1981.

To be fair, they specifically talked about the Deihr ruling and stated that it was not the software that allowed the patent but the thermonuclear temperature sensor connected to the computer, allowing for adjustments and precise timing which combined revolutionized the process. The software was called out as being ineligible on its own even in that case in this just filed opinion.

Patents on those things are not a problem for software developers.

Here's my analysis of the ruling:

This is a big victory: some software patents are now invalid, and this ruling doesn't uphold even a single software patent. (It left some questions for future rulings, but it never said they're patentable.)


Reply Parent Score: 4

ciaran Member since:

That's why I think Diehr's a good example.

The problem is that "computer-implemented" is doesn't say what the relationship is between the computer and the invention. Is the invention realised "by" the computer or "on/in" the computer?

Thomas could easily see Diehr's machine as being a computer-implemented invention. The invention was rubber-curing, and the inventors implementation used a computer.

We had this already in the EU, with the software patents directive that was finally thrown out in 2005. The pro-patent camped managed to get it called the "computer-implemented inventions" directive, and this was a constant source of problems.

Our suggestions were to replace that term with "computer-controlled inventions" or "computer-assisted inventions" (both of which would include Diehr). "Inventions realised on a computer" would exclude Diehr.

None of the pro-patent statements in Thomas's opinion clearly indicate that he thinks any type of software patent is necessarily valid.

Reply Parent Score: 3

TemporalBeing Member since:

Quite agree.

They did write a lot, and reading it it almost seemed to be very redundant. But they seemed to keep coming back to that computer implementations did not necessarily mean there was anything worth patenting - it had to also improve something, at the very least the computer.

What I am curious about is whether they would say that a program that adds a new feature (e.g a type of file transfer) to a computer system would qualify as an improvement to the general computer sufficiently to warrant a patent. If so, it's not much of a victory. If not, then we're certainly on the right track.

I think they'd lean to not as that would come down to the art of the patent writer to be able to word it correctly to sound patentable, which they also call out as something they frown upon.

Reply Parent Score: 4