Supreme Court rules on software patent case Alice Corp v. CLS Bank [pdf]
One of the horrid things about law is how it can be dissembled by those whose job is to practice it. This drives people crazy. They know something is <i>real</i>. Yet, especially if they are caught in its hooks, they watch how law can be applied such that results are absurdly divorced from the reality they know. Our advocacy process has many fine elements and yet this is one of its tragic by-products: having the best and the brightest in the field become instruments in trying to obtain cynically-motivated decisions that further some narrow (usually economic) interest at the expense of truth and justice.<p>That has been happening for a long time now in the patent field as armies of very bright lawyers have found clever ways to concoct patents out of what really should be unpatentable ideas through the art of clever drafting.<p>Well, this decision gives top-down guidance to judges to cut through such dissimulation in the area of patents and to look at the reality by asking, in effect, "is this <i>really</i> inventive or is it simply a product of the draftsman's craft parading as being somehow inventive." That is the right question to ask in such cases and it should go a long way towards reining in some of the more absurd abuses of recent times.<p>The case in nonetheless only an incremental step building on solid precedent (as well-assessed by rayiner) and not a radical shift by the Court.<p>Many had hoped, for example, that this case could be used as a means of delivering a death-blow to <i>all</i> software patents on the grounds that they could all be labeled nothing more than basic mathematical algorithms that happen to apply to a computer. Yet, in its decision, the Court not only did not address this sort of argument but it also carefully emphasized the idea that it was to "tread carefully" in how it might choose to exclude even fundamental "building blocks of human ingenuity" (i.e., laws of nature, natural phenomena, abstract ideas) from patent eligibility "lest this exclusionary principle . . . swallow up all of patent law." To me, this signifies that the cautious approach signaled in <i>Bilski</i> - that is, that of gradually cutting back on the excesses spawned in the past two decades in the area of patent-eligible subject matter - will continue. So don't hold your breath awaiting any court-driven abolition of software patents generally. That will have to await a legislative solution, if it is to come about at all.