Here’s Hoping The Supreme Court Does Not Blow Another Opportunity To Fix The Software Patent Problem

Four years ago, the Supreme Court had a chance to establish once and for all whether or not software was patentable. The Bilski case got all sorts of attention as various parties lined up to explain why software patents were either evil, innovation-killing monsters or the sole cause of innovation since the cotton gin and everything in between (only slight exaggeration). Rather than actually answer the question everyone was asking, the Supreme Court decided to rule especially narrowly, rejecting the specific patents at stake in the case and saying that the current test used to determine patentability (the so-called “machine-or-transformation” test) need not be the only test for patentability. However, it declined to say what tests should be used, leaving it up to the lower courts to start ruling blindly, making up new tests as they went along. And muddle along blindly they did — right up to the height of pure absurdism in the CAFC (appeals court that handles patents) ruling in the Alice v. CLS Bank case, in which every single judge disagreed with each other. The ruling was 135 pages of confused mess where all justices only agreed on a single paragraph, which (like Bilski) said this particular patent was invalid, but no one could agree why.

In the wake of this, the Supreme Court agreed to hear the appeal, and once again it appears that tons of folks are lining up on the various sides, pushing the Supreme Court to either validate, toss out or at least provide a more clear test on the patentability of “abstract ideas” within the software context. The specific question the Supreme Court is being asked to resolve is:

Whether claims to computer-implemented inventions – including claims to systems and machines, processes, and items of manufacture – are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court.

The oral arguments were heard earlier today, and, as per usual, reveal little about what the Supreme Court is really thinking (trying to divine which way the court will land based on oral arguments rarely works out well). The Bilski ruling is mentioned repeatedly, and everyone seems to want to bend over backwards to not outlaw “software patents,” but what we really need is for the Supreme Court to issue a clear ruling on what is and what is not patentable in this arena.

If you want to take a look at how we got here, including how the Supreme Court really outlawed software patents decades ago, only to then have the CAFC bring them back (in a big, bad way) while the Supreme Court was looking elsewhere, Tim Lee’s final story at the Washington Post has all of the gory details. Jeff John Roberts, over at GigaOm has a nice compact piece on what’s at stake directly in this case. Meanwhile, even the NY Times has weighed in with an editorial hoping the Supreme Court sets clear rules against abstract ideas being patentable.

Since the messy Bilski ruling, the Supreme Court has taken slightly more aggressive stances in ruling out controversial areas of patenting, including rejecting medical diagnostic patents and gene patents. While companies in both spaces have been trying to get around those rulings, on the whole, they were much clearer and more useful rulings than the messy Bilski ruling on software patents. While the current Supreme Court often seems gun-shy about establishing clear rules of the road on these kinds of issues, preferring to narrowly tailor rulings, hopefully the final ruling in Alice v. CLS Bank will not be the same mess the Bilski ruling left us with, which begat the CAFC’s 135-page mess in Alice.

The Supreme Court had a golden opportunity four years ago to solve a big patent problem… and it blew it. Hopefully, this time it won’t miss the opportunity.

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