Block on Trump's Asylum Ban Upheld by Supreme Court
June's U.S. Supreme Court decision in Alice Corp. v. CLS Bank International struck a blow to software patents -- or at least the ones that didn't make any sense in the first place. To briefly recap: The Court invalidated a patent for a very generic, unpatentable abstraction whose only claim to patentability was that the abstract concept had been reduced to a computer program. The Court unanimously declared that merely attaching the words "on a computer" doesn't transform an unpatentable idea into a patentable one.
Where does that leave the venerable Federal Circuit, which has always been loath to invalidate a patent?
At the Electronic Frontier Foundation, Daniel Nazer points to the back-and-forth in Ultramercial v. WildTangent as the first test case for applying Alice. Ultramerical claimed a patent to the idea of showing an advertisement before a video on the Internet. Currently, Ultramercial has been sent back to the Federal Circuit for reconsideration in light of Alice Corp., which is a strong suggestion that the High Court didn't like the Federal Circuit's ruling -- although Nazer points out that the Federal Circuit has twice "thumbed its nose at Supreme Court authority" in the past and upheld Ultramercial's patent.
Ultramercial is a pretty severe test case, but when will the other bogus patent cases arrive? They may peter out: Gene Quinn of IP Watchdog thinks ridiculous "on a computer" patents won't be granted to begin with. As soon as a month after Alice, Quinn observes, the U.S. Patent and Trademark Office -- which hardly ever met an idea that it didn't want to issue a patent to -- began to reject patents because they were doing little more than claiming to "invent" abstract concepts performed by a computer, just like the patent in Alice.
Damming up the influx of bogus patents further downstream is a much better idea than solving the problem at the judicial level. Pre-Alice, an inventor seeking to patent an abstract idea "on a computer" could at least get his or her foot in the door by getting the patent issued to begin with. By the time a case has reached the Federal Circuit, it's already been through a district court, where thousands and thousands of dollars have been expended litigating a patent that has already been issued. The USPTO can save a lot of time and energy by slightly increasing the height of the hurdle to get the patent in the first place; a little bit of disincentive can go a long way.
It's been only two months since Alice, but the USPTO has quickly taken the initiative to at least take Alice seriously. Prospectively, it may be USPTO -- and not the Federal Circuit -- that preemptively turns off the faucet on bogus "business method" patents.
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