Supreme Court agrees to address key issue: Can software be patented?
Over the past few years, two aspects of patent law in the United States have come under increasing scrutiny. First, there’s been the rise of patent trolls who scoop up broad patents on particular methods or ways of performing an activity, then sue a number of companies (or even the end users) of that technology, claiming that their rights have been violated. Second, there’ve been an increasing number of lawsuits over the topic of software patents and the question of what is — or isn’t — patentable.
Now, the Supreme Court has agreed to take a case — Alice Corporation Pty. Ltd v CLS Bank International — that deals directly with the question of what is, or isn’t, patentable. Lower courts have been tangling with this issue for years — the question of specific software patents was at the heart of Google’s recent court spat with Oracle, which ended in a win for Google but may be lost on appeal.
The central problem with software patents is the gray area between “Doing X on a computer” (clearly unpatentable) and the development of a new method of performing a task or function. The pro-patent argument is that a person who discovers a new algorithm or method of doing things in software has clearly invented something and is entitled to patent it. The anti-patent argument is that such “inventions’ are nothing but an application of mathematics. Mathematics cannot be patented in the US, so why should software carry patents?
Patent trolls, meanwhile, have inadvertently given a great deal of ammunition to the anti-software patents crowd by launching massive lawsuit campaigns to assert ownership over such mundane tasks as connecting a printer to a network. Companies now acquire huge war chests of patents specifically to use against other companies that engage in patent warfare. This is generally seen as one reason Google acquired Motorola several years ago, and Microsoft earns more from its patent licensing fees from Android than it does from Windows Phone.
One final thing to note is that patents and copyrights are two entirely different things. If software can’t be patented, Microsoft still retains a coypright on the code of Windows, Oracle still has a copyright on Java, and it would still be illegal to copy a program without an appropriate license. Lower courts have had little luck creating a clear-cut example of when a software invention is or is not patentable, so the hope is that the Supreme Court will issue clearer rules.