December 6, 2013 | By Julie Samuels

It's Game Time: Supreme Court to Address Abstract Software Patents

Patent reform is moving along nicely on Capitol Hill, but today we got some more really big news. The Supreme Court has agreed to take on the question of patentable subject matter. Specifically, it's time to talk about software patents.

A brief refresher: under the law, one cannot patent laws of nature, natural phenomena, or abstract ideas. Recently, the Supreme Court clarified this standard in two cases (here and here) that dealt with laws of nature. Despite clear guidance from the Court, when the Federal Circuit addressed the question as it relates to abstract ideas (read, software), it basically punted, failing to produce any meaningful rule of law for lower courts to follow. Even worse, it continued to muddy the waters by upholding crazy abstract patents like the one for watching an advertisement online before getting access to copyrighted content.

Today, the Supreme Court stepped in. It agreed to hear a case called Alice v. CLS Bank. We wrote about why that mattered here, but suffice it to say that the Court will be facing fundamental questions about whether many so-called software patents are impermissibly abstract.

We're glad that patent reform has momentum and that policymakers are targeting patent trolls. But the root of that problem, which has largely been missing from the public debate, is patent quality, specifically of software-related inventions. There can be no doubt: we have a problem with low-quality, abstract software patents in this country. We are incredibly glad to see the Supreme Court take on this important question and we look forward to weighing in. 


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