The end may be in sight for software patents – which have long been highly controversial in the tech industry – in the wake of a remarkable appeals court ruling that described such patents as a “deadweight loss on the nation’s economy” and a threat to the First Amendment’s free speech protections.
There’s so much good stuff in the actual ruling (I urge you to read the whole damn thing!) that I don’t even know where to start, middle, and end. I think this is the best part?
It is well past time to return software to its historical dwelling place in the domain of copyright. See Benson, 409 U.S. at 72 (citing a report from a presidential commission explaining that copyright is available to protect software and that software development had “undergone substantial and satisfactory growth” even without patent protection (citations and internal quotation marks omitted)); Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1380 (Fed. Cir. 2014) (noting that “several commentators” have “argue[d] that the complex and expensive patent system is a terrible fit for the fast-moving software industry” and that copyright provides “[a] perfectly adequate means of protecting and rewarding software developers for their ingenuity” (citations and internal quotation marks omitted)); Peter S. Menell, An Analysis of the Scope of Copyright Protection for Application Programs, 41 Stan. L. Rev. 1045, 1076 (1989) (explaining that patents were historically “not seen as a viable option for the protection of most application program code” and that many software programs “simply do not manifest sufficient novelty or nonobviousness to merit patent protection”).
Reading this gives me tinglies in my tummy.
I have no idea about the level of importance of this decision, how many different appeals could wreck it, or even if it is very relevant to begin with – but my god is this an absolutely amazing read that echoes everything I and many, many other people have been saying about software patents for so many years now.
Software need not have more protection than copyright on the written code itself. Anything beyond that is destructive.
About time too. At last, someone in the legal department that has some sense. Lets just hope it stands!
A Federal Circuit Judge with 30 years on the bench (and who was formerly a pro-patent chief justice in the 90s during the rise of software patents) finally comes out and embraces the argument most software developers have been making all along.
Edited 2016-10-08 03:06 UTC
This was a concurring opinion, not a majority opinion. From Wikipedia:
In short it won’t all by itself set a legally binding precedent. But it is incredibly important as it might persuade other judges to look at the issue in a different light.
Yeah, I wish them good luck. But too bad it ain’t gonna happen.
An industry has been created around software parents, with NPEs buying software patents and then trying to convince venture capitalists that their newly acquired software parents will totally be able to milk 300 millions from Apple/Google/whatever in court or from settlements and those VCs should invest now or miss the train. Those NPEs employ lawyers who are experts in choosing software parents not for their merit but how well they can stand in court.
Anyone going against software parents is going against some of the most powerful interests in the US, lawyers and VCs.