On March 31, 2014, the United States Supreme Court will hear oral arguments in a case that could determine the fate of software patents in the United States. Recently, IBM filed an amicus brief at the United States Supreme Court in the case of Alice Corporation Pty. Ltd. v. CLS Bank International. While many attorneys contributed to this brief, former Solicitor General of the United States Paul D. Clement is the Counsel of Record on behalf of IBM.
I think it is fair to say that the IBM brief can be summarized as follows: ‘The abstract idea doctrine is unworkable.’ Bravo! If the Supreme Court cannot define the term “abstract idea,” which they have never done, how can it be at all appropriate for the Court to apply the doctrine as if it has meaning? At least with respect to software, there is also no uniform application of the patent laws, which at least conceptually should raise concerns of disparate treatment of those similarly situated.
Something needs to be done to once and for all acknowledge that software is patent eligible. Even having to say that and hope it is what ultimately happens is truly saddening in the year 2014. Software is all around us and empowers practically everything, and according to a Government Accountability Office (GAO) report from August 2013, somewhere between 50% to 60% of all patent applications filed deal in some way with software. Software is the very backbone of innovation and the fact that we have to wonder whether it is patent eligible more than 46 years after the first software patent issued is really an indictment of the judicial system as it relates to patent law and jurisprudence.
In 1998, the United States Court of Appeals for the Federal Circuit, in State Street Bank & Trust Co. v. Signature Financial Group, Inc., did away with what had previously been come to be known as the business method exception to patentability. The Federal Circuit, per Judge Giles Sutherland Rich (shown left), pointed out that the business method exception had never been invoked by either the Federal Circuit or its predecessor court, the CCPA. Judge Rich explained that “[s]ince the 1952 Patent Act, business methods have been, and should have been, subject to the same legal requirements for patentability as applied to any other process or method.”
Although the United States Supreme Court did away with that test when it issued its decision in Bilski v. Kappos, it is still nevertheless illustrative and the best test that is out there. Simply stated, in order to have a patentable business method, it is necessary for the invention to accomplish some practical application. In other words, in order for a business method to be patent eligible, it must produce a “useful, concrete and tangible result.” Judge Rich was correct to point this out and the Supreme Court has made a horrible mess of the law as it applies to business methods and computer-implemented innovations because it fails to understand what Judge Rich really meant.
If you really understand what Judge Rich meant by “useful, concrete and tangible result,” you come to the inescapable conclusion that it is the appropriate test. Indeed, those drafting patent application would do well to really target the description of the invention to satisfy the test.
Recently, we took a look at some recent Microsoft Xbox patents over at IPWatchdog as a part of our ”Companies We Follow” series. In doing our research, we noticed an interesting innovation related to Microsoft’s digital art programs, which is included in most versions of its computer operating systems, such as Windows. This digital paint program includes more dynamic functions for the artist’s palette, such as a more realistic experience involving oil paints and worn-out brushes.
The application is U.S. Patent Application No. 20130326381, which is titled Digital Art Program Interaction and Mechanisms.
Digital applications for creating art have long been found on computing devices. From basic programs that offer the ability to draw straight lines with a mouse, to applications for mobile devices that respond to user touch through a touchscreen, digital art programs on consumer devices have greatly increased in capability during recent years. Today, graphic designers and artists are capable of using computer software to create intricate images that achieve many of the same aesthetic effects of actual paints or other materials.
Online fantasy sports games, such as fantasy football, baseball, hockey, golf, and automobile racing, are extremely popular. In fact, this past weekend marks the start of the playoffs in my fantasy football league. Unfortunately, I did not make the playoffs this year. Darn injuries and under-performing “superstars”!!!
In any event, it is not at all uncommon to file fantasy sports related patents and patent applications. I myself have had occasion to draft a patent application (soon to be allowed) on a fantasy sports invention. So, a fantasy sports-related patent or application always grabs my attention.
If you are not familiar with fantasy sports, allow me to provide a bit of a primer. A user creates a fantasy team comprised of players that are associated with real-life players. The user’s fantasy team may compete against fantasy teams of other users, with specific scoring rules. When your player does something good, such as scores a touchdown or kicks a field goal, positive points are scored. When your player does something negative in real life, such as an fumble or throws an interception, points are subtracted.
Recently U.S. Patent No. 8,515,829 (the ’829 patent) came to my attention. It is a patent issued to Google, titled Tax-free gifting. See Google Patents Tax-Free Gifting. The invention is interesting in its own right, but as I reviewed the patent, Figure 14 really caught my attention.
Figure 14, together with the associated textual discussion, is interesting because it shows rather conclusively that “software” can be described in mechanical terms. That is something that those familiar with software have always known, but it’s a nuance missed by many of the critics and judges who believe software is wholly disassociated from anything in the tangible, mechanical world.
Figure 14 from the ’829 patent is shown below.