The Wall Street Journal reports:
The U.S. Supreme Court is wading into a messy debate over when software deserves a patent—an issue that is important to big technology companies such as Microsoft Corp. and Google Inc. yet has so far flummoxed the federal judiciary.
The high court will hear oral arguments Monday in an appeal brought by Alice Corp., whose patents on a computer program to reduce risk in financial transactions were ruled invalid by lower courts.
The thorny issue for the justices: how to distinguish innovative software designs from those that merely describe common ideas configured for a computer.
The issue arose from a 2007 lawsuit against Australia-based Alice by CLS Bank International, which sells risk-hedging services to foreign-exchange traders. New York's CLS Bank said Alice's patents did little more than describe a way of moving an ancient idea—the concept of escrow—to a computer, so shouldn't be eligible for patent protection.
Some patent experts say a ruling in favor of Alice could open the door to more software patents. That, in turn, could lead to more lawsuits involving ideas that should never have won protection in the first place.
Other people say a broad ruling on behalf of CLS Bank could force budding software developers to the sidelines by limiting protections for their work and shortchange others who have devoted hours and money to developing inventions.
Either way, a ruling could provide long-awaited guidelines on when computer programs qualify for patent protection.
Ten judges of the U.S. Court of Appeals for the Federal Circuit, which specializes in patent law, heard the case last year, raising hopes among inventors, tech-industry executives and patent lawyers that they would get some clarity. But the judges delivered more than 120 pages of opinions that only muddied the issue, triggering a collective groan through the patent world.
In the subsequent months, the debate over software patents has raged on.
Allowing patents on many computer programs will only block innovation, says Suzanne Michel, a senior patent counsel at Google. "You don't want [to allow patents] that pre-empt someone from writing a better program, one that's faster or more secure or more efficient," she says.
Google and other prominent tech companies have been hit with a rash of software-patent lawsuits in recent years, many on behalf of firms that license and litigate over patents but typically don't develop their patents into products.
Google says a glut of bogus software patents is largely to blame for the proliferation of such firms, which often are described by detractors as "patent trolls." . . .
In May 2013, the Federalist Society held a panel discussion on "Is the Patent System Working or Broken? A Discussion with Four Distinguished Federal Judges." It was co-sponsored by FedSoc's Intellectual Property Practice Group and the Center for the Protection of Intellectual Property at George Mason University School of Law. Participating were:
Hon. Arthur J. Gajarsa, former Judge, U.S. Court of Appeals, Federal Circuit
Hon. Paul R. Michel, former Chief Judge, U.S. Court of Appeals, Federal Circuit
Hon. Richard A. Posner, Judge, U.S. Court of Appeals, Seventh Circuit
Hon. Douglas H. Ginsburg, Senior Circuit Judge, U.S. Court of Appeals, D.C. Circuit and Professor of Law, George Mason University School of Law - Moderator
You can watch a video of the event here.