In Defense of Software (Patentability)

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Note from Matt Levy: The Alice v. CLS Bank case, which is being argued at the U.S. Supreme Court later this month, has invigorated the debate over the patentability of software. 

The following guest post is by Dana Rao, Vice President for Intellectual Property and Litigation at Adobe, and I’m thrilled to be able to publish it. Dana gets at the fundamental conflict in the debate in a way that’s very easy to understand. 

It’s a little longer than our typical pieces, but I hope you’ll read the whole post. It’s worth your time.

A few weeks ago I was asked to speak at my daughter’s 8th grade honors science class, regarding the weighty topics of “patents and innovation.” They are in the middle of a unit on inventions and they have to invent something as part of that class.  As I prepared my slides on interesting topics (to me) like “how Morse used the existing ideas of an electromagnet to solve the problems of instantaneous communication as illustrated in the beacon scene of the Lord of the Rings,” the thought occurred to me that the principles from these legendary inventions illustrate why the software patentability debate of today is disconnected with our country’s history of innovation.

Samuel Morse did not discover the abstract idea that running an electric current through a wire wrapped around iron transforms the previously nonmagnetic iron into a very powerful electromagnet.  Others had discovered this concept (though it was still a recent discovery in 1852).  Morse combined the principle of electromagnetism with his own, intangible, idea, that you can use a code to deliver messages that would reduce the number of wires required to transmit the message, and print the result on paper.  Other solutions required many wires, or used moving needles in scopes at the end to reveal the message.  Morse’s invention increased the practicality of using electromagnetism to solve the problems of instantaneous communication.

He first had an idea, the use of electromagnetism in a particular way, and then had an implementation, one that fit the medium of his idea, in this case, wires and metal and ink. Samuel Morse’s code was an intangible concept indeed, but was deemed patentable even in 1852, as implemented in his telegraph machine, for telegraphic purposes.

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Patent Trolls Keep On Suing

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Well, the numbers are in for 2013, and it seems that patent trolling shows no signs of slowing down. According to RPX, trolls sued over 4,800 companies last year, up from the 4,282 they sued in 2012.

Now, some argue that it’s not patent trolls that are the problem; it’s big companies “stripping garage inventors of their rights.” What are poor patent trolls to do?

As I said a panel this past Friday, with apologies to Shakespeare,

Hath not a patent troll eyes? Hath not a patent troll hands, organs, dimensions, senses, affections, passions? If you prick a patent troll, does it not bleed?

(Yes, I did say this, which is why you should try to attend any panel I’m on.)

Seriously, do you expect us to believe that, for example, Google and Apple ripped off a few “geniuses” a month in 2013?

The number of companies targeted by entities that do nothing but make money from patent litigation is increasing steadily. The Government Accountability Office, for example, which was fairly conservative in its estimates, found that the number quadrupled from 2007 to 2011.

When you start to look at the scale of the patent trolling, it becomes harder and harder to swallow the argument that this is mostly inventors (and their proxies) defending their hard work.

Yes, it’s possible that the number of companies intentionally ripping off innocent inventors quadrupled over a five year period, and increased 13% from 2012 to 2013 (notwithstanding all the media coverage of extraordinary damages in patent cases coming out at the same time).

But isn’t it more likely that this growth in patent trolling represents a simple expansion of a profitable industry? I’m thinking that Occam’s Razor (which suggests that the theory with the fewest assumptions is most likely the correct one) supports this explanation.

Not that I expect the argument that big companies are a bunch of thieves to go away. As Upton Sinclair famously said, “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

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Patent Progress’s Guide to Patent Reform Legislation

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There are now twelve bills that have been introduced this Congress to deal with some aspect of the patent troll issue. We thought it might be helpful to give you a quick rundown of each of the currently pending bills:

There are a few basic areas that are being addressed:

  • making the Covered Business Method review program available to more industries to allow them to deal with existing bad patents patent trolls often assert

  • curbing abusive litigation tactics patent trolls use

  • protecting end-users

  • adding transparency to get at who is really supplying patent trolls with patents and with funding

I’ll go through them individually below.

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Roundup of This Week’s Patent News: February 28 Edition

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This has been quite a busy week for patents!

First of all, a few Supreme Court updates:  On Wednesday, the Supreme Court heard two oral arguments on patent issues, Octane and Highmark.  Yesterday, CCIA filed an amicus brief in another Supreme Court case, Alice v. CLS Bank.

Next up, some action in the Senate:  Yesterday, Senators McCaskill (D-Mo.) and Rockefeller (D-W.V.) introduced the Transparency in Assertion of Patents Act to help fix the demand letter problem, which joins the eleven other bills that have been introduced in the House and Senate.  And on Monday, 42 state Attorneys General sent a letter to the Senate urging patent reform.

Also, on Tuesday, Patent Progress released a video telling the stories of two entrepreneurs in Illinois whose small businesses have been harmed by patent trolls.  It really shows how much we need patent reform.  Conveniently, there’s a new way to tell your Senator that you want reform.  This week, EFF, CCIA, Engine Advocacy, and the App Developers Alliance launched a petition on Trolling Effects for inventors, entrepreneurs, investors, and concerned citizens to tell the Senate they want patent reform.  Sign it!

Did we miss something?  Questions or suggestions?  Feel free to leave a comment below, mention us on Twitter (@PatentProgress), or email us: patentprogress[AT]ccianet[DOT]org

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CCIA Files Amicus Brief in CLS Bank, Urging Supreme Court to Adopt a New Test on Patent-Eligibility of Software

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Today, CCIA filed an amicus brief in the U.S. Supreme Court in Alice Corp. v. CLS Bank.  CLS Bank is one of six patent cases this term, including two that were heard yesterday.  For more background information on the case and policy issues presented, see this in-depth article from today by The Washington Post’s Tim Lee.

CCIA’s brief proposed a test for patent-eligibility of software:

Is the software portion of the claim restricted to specific hardware, i.e., a particular type or architecture of computer hardware?

If so, the claim is patentable subject matter.

If not, treat the software portion of the claim as prior art and examine the remaining claim to determine if what is left is patentable subject matter.

Two students from the Juelsgaard Intellectual Property and Innovation Clinic at Stanford Law School, Michael Chen and Rachel Yu, assisted in drafting this brief, supervised by Professor Phil Malone.

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