If you've read my patent primer, you know that patents protect inventions, but not abstract ideas. One wrinkle to this notion is the software patent. Many in the industry believe that software code should not receive patent protection. There is also the little matter about a design patent which can translate into trade dress thereby receiving legal protection for longer than the monopoly afforded patents--but, I digress.
Those who say "down with software patents" may see their demise in the form of a Supreme Court opinion in Alice Corp. v. CLS Bank. Apparently, the founder of Alice obtained a patent for a software program which calculates the obligations of parties entereing into a currency exchange transaction. However, the Federal Circuit in a circuitous and fractured opinion invalidated the patent. Because of the Federal Circuit's muddled opinion, it appears the Supreme Court will now need to take up this case to provide clarification about the viability of software patents. In one of the many opinions of the Federal Circuit, Judge Moore provided an inkling at what was at stake:
Those who say "down with software patents" may see their demise in the form of a Supreme Court opinion in Alice Corp. v. CLS Bank. Apparently, the founder of Alice obtained a patent for a software program which calculates the obligations of parties entereing into a currency exchange transaction. However, the Federal Circuit in a circuitous and fractured opinion invalidated the patent. Because of the Federal Circuit's muddled opinion, it appears the Supreme Court will now need to take up this case to provide clarification about the viability of software patents. In one of the many opinions of the Federal Circuit, Judge Moore provided an inkling at what was at stake:
And let's be clear: If all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business-method, financial-system, and software patents as well as many computer implemented and telecommunications patents.In other words, money is at stake. Patents (or any other IP) generally equates to money. They are property after all. For example, Twitter just paid $ 36 million to avoid a lawsuit and to purchase 900 patents from IBM. Undoubtedly, most, if not all, of these patents are software patents. That is a lot of money for a portfolio of patents which the Supreme Court invalidates in a few months. With so much at stake, it will be interesting to see what the Supreme Court has to say in this case.
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