Everyone is confused by the current state of software patentability

I have read CLS v. Alice a half a dozen times. I have read the follow-up cases, including Ultramercial v. Hulu (holding software patentable, opinion by Judge Rader) and its counterpart Accenture v. Guidewire (holding software as unpatentably abstract, opinion by Judge Lourie).

Greg Aharonian of the Internet Patent News Service collected some quotes from the judges in CLS v. Alice.

the patent-eligibility test has proven quite difficult to apply
Judge Lourie

the current interpretation of 101 is causing a free fall in the patent system
Judge Moore

our court is irreconcilably fractured
Judge Moore

we have propounded at least three incompatible standards, devoid of consensus, serving simply to add to the unreliability and cost of the system of patents as an incentive for innovation
Judge Newman

the intervening commotion [since Diehr and other decisions] leaves us with little, if any, agreement amongst us even though the statute as not changed a syllable
Chief Judge Rader

[o]ur opinions spend page after page revisiting out cases and those of the Supreme Court, and still we continue to disagree vigorously over what is or is not patentable subject matter
Judge Plager

courts could avoid the swamp of verbiage that is 101 by exercising their inherent power to control the processes of litigation [by focusing on 102, 103 and 112]
Judge Plager

Based on this, and the opinions, I have come to two conclusions. First, the Court of Appeals for the Federal Circuit is just as confused as I am about software patent eligibility. Second,  the panel members you draw on the CAFC will determine whether a software patent will be upheld as valid or struck down as abstract. If you draw Judge Newman, Rader, Linn, and O’Malley, the software patent will live. If you draw Judge Dyk, Prost, and Reyna software is clearly abstract.

Patent Statistics in the GAO Report

The GAO just released a report on patent litigation: IP: Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality (GAO-13-465).
In this report, the GAO states that “The implication as of now, the year 2013, is that half of all issued patents are software-related, and that the PTO is issuing about 2200 software patents a week.”

Aharonian, in a pointed screed addressing the GOA report, points out that this is inaccurate. He provides a graph of software and non-software electrical patents issued weekly.

As the graph shows, the number of software patents per week (blue line), as of 2012, is about 1100, half of the GAO figure.  Further, little has changed in decades in the relative number of software and non-software electronics patents (red line). So not only are software patents not the majority of issued patents, they are not even the majority of issued Electronics patents. That the two lines much correlate reflects the fact that software is part and parcel of technology, so intimate with the rest of the Electronics arts that software patent numbers fluctuate with economic forces that affect patent filings. He notes that his data is based on a few assumptions on what characterizes a software patent.  

However, the GAO’s assumption is based on a combination of “a number of entire patent classes that PTO economists have said are most likely to include patents with software-related claims, and this includes method patents. For the list of these classes.” (GAO paper, footnote 27).

The problem, of course, is that there are no “exclusively software” classes. So if an entire patent class is counted, it is extremely likely to include non-software cases as well.

Aharonian concludes his screed by offering to provide all of his data to the GAO, if requested. And even offering to release his software and databases to them, to enable them to recreate and verify his numbers. I hope that the GAO takes him up on his offer.

A response to Professor Lemley’s Paper on Functional Claiming to Limit Software Patents

Professor Lemley has posted a paper suggesting that if we more strictly enforced 35 USC 112(f), the interpretation of means for language, then much of the problem with software patents would be eliminated.

His paper can be found here:  Software patents and the return of functional claiming.

His basic argument is that most software claims are means-for claims, because they use the phrasing “a computer system programmed to.”  Means-for claims are construed to only “cover the corresponding structure, material or acts described in the specification and equivalents thereof.”  The courts have interpreted means-for equivalents narrowly.  Professor Lemley hopes to require the inclusion of algorithm/code/pseudocode in the Specification, and have the claim scope be limited to that code, and its equivalents.

Of course, this would likely invalidate most existing software patents which do not include algorithms.  It would also lead to an immediate change in claim formats, to avoid the language which was interpreted to trigger the “means for” type analysis.  In this, Professor Lemley appears to take a “magic language” based approach to a problem that is not the result of poor language choices.  The primary problems with software patents are lack of rigorous prior art searching and the incredible expense of responding to even an unreasonable lawsuit. Even if Professor Lemley’s interpretation were adopted by the courts, it would be a stopgap measure, until patent owners could rephrase their claims to once again avoid limiting the claims to the specific structures/algorithms described in the Specification.

Greg Aharonian, a perennial critic of the patent system, does not agree with Professor Lemley’s thesis, and takes apart his argument in some detail.  He has given me permission to post his response here. Be aware, he uses quite colorful language.

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