The U.S. Supreme Court’s Alice decision and the Patent Office’s draconian rule making implementing that case have had and are having a devastating effect on software-implemented innovation in America – even though Justice Thomas made no mention of software in his opinion. Supreme Court words have that effect.
Soon afterward the decision, perfunctory 35 U.S.C. 101 rejections from the USPTO were created and now pervade the practice, attacking anything that includes software. Various task forces within the intellectual property bar communities are still trying to assess the damage. Speaking with the Patent Office examiners in the software and business method art units, they say that their hands are tied so to speak by these harsh rules. To be fair, the USPTO was forced to implement these rules by White House decree.
Alas, we have seen all of this before. At the birth of the software industry in the Sixties and early Seventies, the Supreme Court then cast a negative shadow on the eligibility of any software-implemented innovations. Indeed, Gottschalk v. Benson (1972) set the tone for software patenting – no. Subsequent decisions by the Court echoed this view, and even though the Court upheld a software patent in 1981, the anti-software patenting die was cast – until 1998 that is when the floodgates were opened by the Federal Circuit’s State Street Bank case.
America is clearly the leader in software development. We originated modern coding and our multitude of software products demonstrate this. The explosion of the Internet created entirely new paradigms of business, and innovators and entrepreneurs tried to obtain patents on much of the new terrain. Aided by the Federal Circuit’s positive view toward software-implemented innovation (but not abstraction), the software industry grew since companies could protect their code products. Now, large corporations have developed from these industries, and upstart software developers of today out to change the established paradigm are unwanted. Unsurprisingly, lobbyists from some of these same large corporations have been decrying the patent system, wanting to make changes to patent law to prevent any further garage-inventors from succeeding. To them, the patent system needs perpetual reform to cripple the future.
The Justices in Alice, a unanimous decision, thought that they were doing their part to curb the rampant abuses by those greedy patent trolls and reign in the Federal Circuit too. But words have consequences. Alas, just as the Court’s decision in 1972 had a chilling effect on the patenting of new technologies, so, too, the Alice case is destroying the chances of many innovators to succeed against the competition. Incredible new technologies are being developed, many on the edge of abstractness – and thus running afoul of Alice. Advances in personalized medicine and many, many other amazing new technologies are out there in the minds of visionaries, who are not always in corporations. With the new anti-software patent bias it is hard to protect and foster such ideas into new industries.
American ingenuity and gumption are part of our collective history. The Supreme Court and the USPTO are playing with our nation’s prosperity by their actions, words and rules. Congress, instead of acting at the behest of anti-troll lobbyists to craft even more anti-patent system legislation, further tilting the playing field toward the large corporations, should be working hard to protect American innovation and the jobs and industries generated. Alice used to patent her new innovations. Now, she and so many other visionaries don’t see the point, and don’t work to invent here anymore.
Raymond Van Dyke, http://www.rayvandyke.com, vandyke@acm.org
Van Dyke Intellectual Property Law 