{"id":4745,"date":"2016-10-21T14:38:08","date_gmt":"2016-10-21T18:38:08","guid":{"rendered":"http:\/\/ncjolt.org\/?p=4745"},"modified":"2020-06-04T20:52:58","modified_gmt":"2020-06-04T20:52:58","slug":"end-road-software-patents","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/end-road-software-patents\/","title":{"rendered":"End of the Road for Software Patents?"},"content":{"rendered":"

The Court of Appeals for the Federal Circuit (CAFC) has again shaken up the software patent world with its most recent decision in Intellectual Ventures v. Symantec Corp & Trend Micro Inc. The<\/a><\/span> majority wrote that:
\n\u201cMost of the First Amendment concerns associated with patent protection could be avoided if this court were willing to acknowledge that<\/p>\n

Alice sounded the death knell for software patents.<\/p><\/blockquote>\n

The Court explained that the \u201cmere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.\u201d
\nThe court seems to be moving aggressively towards curtailing software patents \u2013 a direction somewhat at odds with its previous decisions over the last few months. The battle over software patents really kicked off with the 2014 Supreme Court decision in Alice v. CLS Bank International. In Alice, the court found that<\/span><\/a> \u201cclaims [drawn] to patent ineligible abstract idea are not eligible for a patent under section 101.\u201d Many viewed Alice<\/em> as a fatal blow<\/a><\/span> against software patents \u2013 although a year later, many patent attorneys thought that software was still eligible subject matter<\/a><\/span> as long as claims were carefully constructed. Either way, the future of software patents seemed murky at best<\/a><\/span>.
\nThis most recent decision in Intellectual ventures<\/em> will be applauded by some as \u201cfinishing the job\u201d that Alice <\/em>started: the death of software patents, and by extension, some of the worst \u201cpatent trolls\u201d in the business. Intellectual Ventures itself is notorious<\/a><\/span> for its numerous lawsuits against startups \u2013 and while the invalidation of its patents by the CAFC probably won\u2019t kill Intellectual Ventures, it sure could kill some of the smaller \u201cpatent trolls\u201d in the same industry. The uncertainty over the validity of software patents, as confirmed by Intellectual Ventures<\/em>, makes \u201cpatent trolls\u201d very hesitant to actually sue \u2013 if their patents are invalidated, they essentially no longer have a company.
\nThe other side of the coin, however, is whether or not the death of software patents would stifle legitimate innovation. If you ever talk to a programmer in Silicon Valley, chances are that they hate software patents with a passion<\/a><\/span>. Are software patents necessary to protect innovation in the field? Software certainly costs a lot to develop<\/a><\/span> (tens of billions of dollars annually). Would developers spend time and money developing things like artificial retina algorithms<\/a><\/span> if their work could be copied by another company?
\nTo completely eliminate software patentability seems like it would go a bit too far. However, that doesn\u2019t mean the system is perfect. The concurrence in Intellectual Ventures <\/em>is probably the most worrying part of this recent case. Judge Mayer wrote that patents that constrain \u201cessential channels of online communication run afoul of the first amendment.\u201d Essentially, Judge Mayer is trying to make software patents into a First Amendment issue. Does this mean that Mayer is advocating for any sort of software that interacts with the internet (essential channels of online communication) should not be patent eligible? This would represent an enormous blow to quite a few software patent holders \u2013 these days, most software interacts with the internet in some way or another.
\nThe decision in Intellectual Ventures<\/em> doesn\u2019t mean that software patents are dead. But it leaves the door open to a stricter interpretation of patent eligibility than we\u2019ve ever seen before. If the court does take it in the direction that Judge Mayer is hinting at, it\u2019s possible that a large number of software patents will be invalidated over the coming years.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Court of Appeals for the Federal Circuit (CAFC) has again shaken up the software patent world with its most recent decision in Intellectual Ventures v. Symantec Corp & Trend Micro Inc. The majority wrote that: \u201cMost of the First Amendment concerns associated with patent protection could be avoided if this court were willing to …<\/a><\/p>\n","protected":false},"author":1,"featured_media":4746,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/4745"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=4745"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/4745\/revisions"}],"predecessor-version":[{"id":7150,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/4745\/revisions\/7150"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/4746"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=4745"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=4745"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=4745"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}