In new case, Supreme Court revisits the question of software patents
Timothy B. Lee | Washington Post | March 28, 2014
"If you write a book or a song, you can get copyright protection for it.
If you invent a pill or a better mousetrap, you can patent it. But for
decades, software has had the distinction of being eligible for both
copyright and patent protection. The patent system, critics say, is
complex and expensive --- and a bad fit for the fast-moving software
industry. And they wonder, doesn't the protection offered by copyright
suffice?
...
"In the 1970s, the high court placed strict rules on software-related
patents. Since then, a lower court has effectively overruled its
precedents, flooding the marketplace with software patents.
...
"...copyright protection allows someone to independently develop
software to achieve the 'same overall result' as a copyrighted program.
In contrast, patent law does not, thereby limiting the opportunities of
future innovators and creating the risk of accidental infringement and
wasteful litigation.
...
"At first, the Supreme Court let the Federal Circuit shape patent law
with minimal interference. But by the time John G. Roberts Jr. became
chief justice in 2005, the Federal Circuit's patent-friendly
jurisprudence had produced record levels of patent litigation and an
avalanche of bad press. The Supreme Court gave the Federal Circuit
closer scrutiny. The high court didn't like what it found. ... In a 2009
oral argument, Roberts commented that lower courts 'don't have a choice'
about following Supreme Court precedents. 'They can't say, 'I don't like
the Supreme Court rule so I'm not going to apply it.''"Then, he added
wryly: 'other than the Federal Circuit.'
..
"Critics say that's the point: The Supreme Court placed limits on
software patents in the 1970s, and the Federal Circuit is supposed to
enforce them. In their view, business method and software patents
shouldn't have been granted in the first place. And while a decision
invalidating thousands of software patents could be bad for the bottom
lines of some large software companies, it could be good for the
industry as a whole. Litigation by 'patent trolls' cost defendants at
least $29 billion in 2011, one study showed. Those costs are driven by
software patents.
http://www.washingtonpost.com/business/in-new-case-supreme-court-revisits-the-question-of-software-patents/2014/03/28/a3da1c52-ad3a-11e3-9627-c65021d6d572_story.html
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