Wednesday, July 31, 2013

Ultramercial v. Hulu and WildTangent - The Software Patent Eligibility Controversy

Companies vulnerable to infringement of software patents want a world in which software related inventions are ineligible for patent protection. Some people assert software patents are a drain on the U.S. economy, but software companies simply want to eliminate the uncertain cost of third party patent licenses.

Recently it appeared we might get there. In CLS Bank International v. Alice Corporation, the Federal Circuit stated claims relating to a software related invention ineligible for a patent. Groklaw reported "The Federal Circuit. OMG. We've worked hard for so many years to get to this point, I almost can't believe it. And I suppose it's possible it could be appealed, but this is proof of what I've always told you, that education is never a waste. Judge Rader is very upset, I gather. He has written a dissent. But he didn't prevail. And I'm sure he gave it his best effort. OMG."

Groklaw didn't seem to notice the 135-page opinion had six different views on software patent eligibility, no majority view was reached, and no legal precedent was obtain. However, the USPTO recognized it, and stated the standard for determining eligibility of software related inventions would be unchanged.

Groklaw painted a picture of a frustrated Judge Rader very upset with the "holding" in CLS Bank, but ignored Judge Rader would have other opportunities to speak on patent eligibility of software related inventions. The opportunity came within weeks. See Chief Judge Rader's opinion in favor of the eligibility of software related inventions in Ultramercial v. Hulu and WildTangent.

Ultramercial v. Hulu and WildTangent is a test in favor of software patent eligibility, but it won't stop courts from issuing conflicting and confusing decisions in the future, because too much money trades hands based on how we define software patent eligibility.

The software industry would benefit from a bright line test on software patent eligibility, but subsequent court and PTAB attempts to define whether a claim covers abstract (i.e., patent ineligible) subject matter seem subjective, unpredictable, and irreconcilable. So the software industry runs ahead of the law. And it will happen again, because code reaches into many things. As Marc Andreseen stated, "software eats the world." And that pervasiveness makes it that much more difficult to agree on the scope of patent protection.

Copyright © 2013 Robert Moll. All rights reserved.