Patent case before Supreme Court could have major implications for software
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Patent case before Supreme Court could have major implications for software
In this photo made on Tuesday, Nov. 3, 2009, WeatherWise CEO Rand Warsaw talks in the conference room of his offices in Pittsburgh about his patent case that is being heard by the Supreme Court. (AP Photo/Keith Srakocic) (Keith Srakocic, AP /
JOELLE TESSLER AP Technology Writer
11:27 a.m. CST, November 7, 2009
WASHINGTON (AP) — With the technology industry looking on, the Supreme Court on Monday will explore what types of inventions should be eligible for a patent in a pivotal case that could undermine such legal protections for software.
A ruling that sides with the Patent Office could bar patents on processes and methods of doing business, such as online shopping techniques, medical diagnostic tests and procedures for executing trades on Wall Street. And it might even undercut patents on software.
In a worst-case scenario for the high-tech industry, the ruling could invalidate many existing software patents or at least make them more difficult to defend in lawsuits. And it could make such patents harder to obtain in the future because software is generally patented as a process for doing something rather than as a physical invention.
"Technology companies care about this case because it will define what you can and cannot get a patent on," said Emery Simon, counselor to the Business Software Alliance, which represents large technology companies including >Intel Corp. "The scope of patentability could have ramifications for the path that technology takes."
It's impossible to know what products might never have come to market without patent protection for software. But tech companies say these patents have played a critical role in keeping the U.S. at the cutting edge by giving people control over their inventions for nearly 20 years.
"The software industry would lose an important incentive to innovate if the government ceased issuing software patents," warned patent attorney James Carmichael, a former judge on the Patent Office board of appeals.
Although technology companies insist they'll keep innovating no matter how the high court rules, an unfavorable outcome might force them to write patent applications in a different way or rely more on copyright and trade secret protections. And it might even draw Congress into the debate.
The facts of the case are not about software.
The roots of the dispute go back to 1997, when inventors Bernard Bilski and Rand >Amazon.com Inc.'s "1-Click" tool for completing online purchases and
Technology companies, meanwhile, are watching the Bilski case for another reason: If the Supreme Court upholds the machine-or-transformation test, one of their fundamental assets — software — might no longer qualify.
The number of software patents has been climbing sharply in recent years — a reflection of the technology industry's explosive growth and the increased reliance on software in all industries. A series of court rulings upholding software patents in the 1990s, including a key case in 1998 that opened the floodgates to business-method patents as well, also helped drive up software patent numbers.
Not everyone agrees software patents are a good thing, though.
Rob Tiller, assistant general counsel for software company
"The test may have made sense for industrial processes such as curing rubber or tanning leather," Jakes said. "But with today's technology, we have processes that don't fit these categories. But they are still practical and useful and innovative and important."
At this point, there is no firm consensus on what the test for patentability should be.
A ruling that sides with the Patent Office could bar patents on processes and methods of doing business, such as online shopping techniques, medical diagnostic tests and procedures for executing trades on Wall Street. And it might even undercut patents on software.
In a worst-case scenario for the high-tech industry, the ruling could invalidate many existing software patents or at least make them more difficult to defend in lawsuits. And it could make such patents harder to obtain in the future because software is generally patented as a process for doing something rather than as a physical invention.
"Technology companies care about this case because it will define what you can and cannot get a patent on," said Emery Simon, counselor to the Business Software Alliance, which represents large technology companies including >Intel Corp. "The scope of patentability could have ramifications for the path that technology takes."
It's impossible to know what products might never have come to market without patent protection for software. But tech companies say these patents have played a critical role in keeping the U.S. at the cutting edge by giving people control over their inventions for nearly 20 years.
"The software industry would lose an important incentive to innovate if the government ceased issuing software patents," warned patent attorney James Carmichael, a former judge on the Patent Office board of appeals.
Although technology companies insist they'll keep innovating no matter how the high court rules, an unfavorable outcome might force them to write patent applications in a different way or rely more on copyright and trade secret protections. And it might even draw Congress into the debate.
The facts of the case are not about software.
The roots of the dispute go back to 1997, when inventors Bernard Bilski and Rand >Amazon.com Inc.'s "1-Click" tool for completing online purchases and
Technology companies, meanwhile, are watching the Bilski case for another reason: If the Supreme Court upholds the machine-or-transformation test, one of their fundamental assets — software — might no longer qualify.
The number of software patents has been climbing sharply in recent years — a reflection of the technology industry's explosive growth and the increased reliance on software in all industries. A series of court rulings upholding software patents in the 1990s, including a key case in 1998 that opened the floodgates to business-method patents as well, also helped drive up software patent numbers.
Not everyone agrees software patents are a good thing, though.
Rob Tiller, assistant general counsel for software company
"The test may have made sense for industrial processes such as curing rubber or tanning leather," Jakes said. "But with today's technology, we have processes that don't fit these categories. But they are still practical and useful and innovative and important."
At this point, there is no firm consensus on what the test for patentability should be.
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