Judge Mayer provides a strong case against software patents in Intellectual Ventures v. Symantec

Tue Oct 18 16:20:16 PDT 2016

Good moves happening in the software patents in America situation.

----- Forwarded message from "Donald Robertson, III, FSF" <info at fsf.org> -----
Date: Tue, 18 Oct 2016 17:39:27 -0400
From: "Donald Robertson, III, FSF" <info at fsf.org>

Read online: <https://www.fsf.org/blogs/licensing/judge-mayer-provides-a-strong-case-against-software-patents-in-intellectual-ventures-v-symantec>

The Free Software Foundation (FSF) has argued for years via its [End
Software Patents][0] campaign that software patents are a threat to
computer users everywhere and need to be abolished. In 2010, the FSF
even funded a documentary, ["Patent Absurdity: how software patents
broke the system,"][1] laying out the history of this destructive force.
More recently, FSF, the Open Source Initiative, and the Software Freedom
Law Center filed an [amicus curae][2] in the United State's Supreme
Court case of *Alice Corp. v. CLS Bank Int’l* (*Alice*). There, we
explained the dangers of software patents and [argued][3] that "not only
do software idea patents fail established tests for patentability; they
also violate the First Amendment." It appears that someone on the
Federal Circuit (the court that hears appeals on cases involving patents
in the U.S.) took note.

[0]: http://endsoftpatents.org/
[1]: https://www.fsf.org/news/new-documentary-film-patent-absurdity
[2]: https://www.softwarefreedom.org/resources/2014/alice_v_cls-sflc_amicus.html
[3]: https://www.fsf.org/news/fsf-joins-forces-with-software-freedom-law-center-and-open-source-initiative-to-fight-software-patents-in-u-s-supreme-court

That someone is Judge Haldane Robert Mayer, who in a stunning
concurrence in [*Intellectual Ventures v. Symantec* (links to a PDF)][4]
outlined the case against software patents. The argument will be
familiar to those who have read the FSF's Amicus in *Alice*: software
patents fail basic tests for patentability and violate the First
Amendment. And while the fact that it is only a concurrence (and not the
main opinion of the court) means that it is not settled law, it is a
huge step forward in protecting computer users from the dangers of
software patents.

[4]: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1769.Opinion.9-28-2016.1.PDF

Mayer lays out the First Amendment argument against patentability of
certain subjects, noting that limits on the subject matter of patents
are meant to protect free expression. Under U.S. law, 35 U.S.C § 101
(section 101) lays out the scope of patentable subject matter. In
analysing this section, courts have carved out certain subjects as being
outside the scope of patentability so as to protect freedom of
expression. In particular, abstract ideas and mental process have been
found too threatening to the free exchange of ideas to permit them to be
locked up in patents. After outlining the basics, Mayer goes on to state
that "Most of the First Amendment concerns associated with patent
protection could be avoided if this court were willing to acknowledge
that **Alice sounded the death knell for software patents.**"

This is a really significant statement, offering clear guidance in the
right direction as to how the Supreme Court case should be viewed.

Mayer notes that the Supreme Court in *Alice* "... explained that the
'mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.' ...
Accordingly, '[t]he fact that a computer necessarily exist[s] in the
physical, rather than purely conceptual, realm is beside the point'..."

Mayer explains that "Software lies in the antechamber of patentable
invention. Because generically-implemented software is an 'idea'
insufficiently linked to any defining physical structure other than a
standard computer, it is a precursor to technology rather than
technology itself."

Mayer continues the line of thought to its practical conclusion: "Given
that an 'idea' is not patentable ... and a generic computer is 'beside
the point' in the eligibility analysis ... **all software implemented on
a standard computer should be deemed categorically outside the bounds of
section 101.**"

Mayer even points out that the existence of free software itself is a
strong argument against the granting of software patents. That the free
software community has flourished for decades without the use of patents
"suggests that innovation can flourish in software absent patent"
restrictions. 

This opinion is exactly the sort of thing we've been fighting for all
these years. If only the rest of the court in *Intellectual Ventures v.
Symantec* had joined in with Mayer in recognizing that software should
never be subject to patents. While it is a great victory to see this
analysis produced by a judge here in the U.S., there's obviously more
that needs to be done before the 'death knell' truly sounds for software
patents all around the world. Here's what you can do to help bring about
that victory even faster:

* Keep up to date on the fight against software patents by joining the
  campaign to [End Software Patents][0]
* Support our work in fighting software patents by making a
  [donation][5] or joining as an [FSF Associate member][6]

[0]: http://endsoftpatents.org/
[5]: https://donate.fsf.org
[6]: https://www.fsf.org/join

Sincerely,
Donald Robertson, III
Copyright & Licensing Associate