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.

Ali Sternburg

Ali Sternburg

Ali Sternburg is Senior Policy Counsel at the Computer & Communications Industry Association. After initially joining as a Legal Fellow in June 2011, she focuses on online copyright issues and other areas of intellectual property policy. She also works on DisCo (the Disruptive Competition Project). She received her J.D. in 2012 from American University Washington College of Law, where she was a Student Attorney in the Glushko-Samuelson Intellectual Property Law Clinic, President of the Intellectual Property Law Society, Senior Symposium Chair and Senior Marketing Manager for the Intellectual Property Brief, and a Dean’s Fellow at the Program on Information Justice and Intellectual Property. She graduated from Harvard College in 2009 where she studied Government and Music, wrote her senior honors thesis on “Theoretical and Legal Views on U.S. Government Involvement in Musical Creativity Online,” and interned at the Berkman Center for Internet & Society at Harvard Law School.

  • Owen

    So a claim would be validated just by adding “on an iPhone”? And then a new patent could issue for each new function on every new kind of computer hardware.

    That would be almost as much of a disaster as what the CAFC is doing now.

    The only relief would be that the PTO takes three years to issue a patent so you could hope the hardware might be obsolete before any of the new flood of old patents on new hardware would be issued.