Federal hearing today marks turning point in war on software patents

A seemingly unassuming court hearing today could be the beginning of the end of software patents as we know them

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Lemley asserts it's incorrect to allow "a computer" in abstract to be glued on to a software idea as a way to make it concrete. He proposes instead that only "a specific kind of computer" be allowed to convert an abstract software idea into a patentable creation. A computer would need to use a particular class of operating system, for example, or be programmed in a specific way before the patented software idea was added. This would also push the patent into a becoming a "functional claim," a kind of patented idea with well-understood restrictions.

Defending open source

EFF Staff Attorney Daniel Nazer told me, "The Federal Circuit should apply the well-established law on functional claiming to limit over-broad software and business method patents. And while we hope it does so in this case, we can't predict how the court will rule. A proper application of the law of functional claiming will make it harder for trolls to assert vague and over-broad patents. It should also make it harder to get such patents in the first place."

Lemley himself is more circumspect. As he told me via Twitter: "CLS Bank could be very significant for software patents, though I doubt there will be agreement on a clear test."

CLS Bank could be very significant for software patents, though I doubt there will be agreement on a clear test.

He's expecting a fragmented opinion from the en-banc hearing, which seems likely given both the fragmented panel opinion last summer and the desire of the court to sit en-banc in the first place.

Attorney Erica Arner of IP litigation specialists Finnegan agrees. She told me the result of today's hearing could take four months or more to emerge, and when it does there are likely to be multiple opinions. Both Lemley and Arner agree that if this happens, there's likely to be pressure for the Supreme Court to hear the issue, which could take significantly longer to happen.

Arner believes the various opinions could provide a toolkit of techniques for evaluating the patentability of software in the future. She thinks it's unlikely the court will devise a single "bright line" test for distinguishing patentable ideas.

But others are more hopeful, especially if the court finds Lemley's ideas compelling. The EFF's Nazer said, "This is definitely a big case for the open source community and anyone who works in software. Any decision that limits the scope of vague and over-broad software patents will help all creators." As Groklaw's Pamela Jones points out, there's a strong consensus among most of the amici that this could happen, at least to the extent of ruling out the cargo-cult-like addition of "a computer which..." to abstract software ideas just to get them past a patent examiner.

While the winners from the proprietary software world of the 20th century might hate that idea, the open source community would welcome any change that diminishes the threat of software patents. Red Hat vice president and assistant general counsel Robert Tiller told me, "One of the major problems for open source innovation, as well as software innovation generally, is a minefield of software patents with unclear boundaries. An entire business has grown up to exploit this bug in the patent system. The exploiters thrive in part based on the previous reluctance of the courts to apply rigorous standards to invalidate bad patents. The CLS case is an important opportunity for the Federal Circuit to fix a part of this problem."

This case won't solve all the problems, and whatever conclusion it reaches may take many months to come into full effect -- years if it requires Supreme Court confirmation. But the pressure from developers, innovators, and the citizen consumer-creator-makers of the Internet is building. Software patents need fixing, and this important hearing could be the pivot around which a solution turns.

This article, "Federal hearing today marks turning point in war on software patents," was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, followInfoWorld.com on Twitter.

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