We have often written about how software patents feed trolls and tax innovation. We’ve pushed for patent reform in Congress, in the courts, and at the Patent Office. While new legislation has stalled (for now), reformers have won significant victories in the courts. Of these, the Supreme Court’s recent decision in Alice Corp. v. CLS Bank may be the most important. In this case, the court issued a landmark decision cutting back on abstract software patents.
While the decision in Alice is promising, it will mean nothing if the Patent Office fails to apply it. Vested interests support the status quo and some commentators have already called for the Patent Office to essentially ignore Alice. (While software patents are bad for innovation, they are great for lawyers and trolls.) Last week, EFF filed written comments with the Patent Office urging it to diligently apply the new Alice standard to pending applications.
In our comments, we explain that Alice is a major change to patent law. Most significant was the court’s holding that “generic computer components” do not become patent eligible simply upon being “configured” to perform “specific computerized functions.” Many thousands of software patents—particularly the vague and overbroad patents so beloved by patent trolls—should be rejected under this standard. While some of those accustomed to the pre-Alice regime will complain about this result, the Patent Office should not hesitate to apply the Supreme Court’s standard.
EFF also urges the Patent Office to make sure that all pending applications (even those at the point of issuing) are reviewed under Alice. Last week we introduced our inaugural Stupid Patent of the Month—a very dumb patent on using a computer to take a telephone message for a doctor. In our view, this patent is clearly invalid under Alice. Yet it issued weeks after the Supreme Court’s decision. Since patent litigation is so expensive, even a clearly invalid patent can cause enormous harm. We hope the Patent Office ensures no more of these invalid abstract patents are granted.
Ultimately, Alice is good news for the Patent Office. A recent Washington Post article revealed that the office is overwhelmed by the massive volume of applications. Many patent examiners spend as little as ten hours per application. This is not nearly enough time to properly review an application and look for potential prior art (the publications and products that predate an application and render it obvious). While Alice creates some extra work now, the decision will hopefully deter applicants from filing applications for abstract software patents in the first place, especially since the Supreme Court made clear that clever wording (the “draftman’s art”) cannot make the unpatentable patentable. There is no better way to reduce the patent backlog than by clearing the system of thousands of bad software patent applications.