US Limits Software Patents - As EU Boosts Them

I've written a number of times about the curse of the "as such" clause in Article 52 of the European Patent Convention, which has allowed software patents to creep in to Europe by the backdoor. In the US, which has a far more liberal attitude to...

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I’ve written a number of times about the curse of the “as such” clause in Article 52 of the European Patent Convention, which has allowed software patents to creep in to Europe by the backdoor. In the US, which has a far more liberal attitude to patenting everything under the sun, there has been a cognate problem, whereby patent applications have been made on a abstract/trivial idea simply by appending “using a computer” to make it novel. At long last, the US Supreme Court has addressed this issue. Here’s what happened:

Today the United States Supreme Court unanimously ruled a prominent software patent invalid in the case of Alice Corp. v. CLS Bank, saying that implementing an abstract idea on a computer does not make that idea patent-eligible.

The FSF, Software Freedom Law Center (SFLC), and Open Source Initiative (OSI) had co-filed an amicus curiae brief in the case, stating their position that software on general-purpose computers is not patentable.

Although this judgment clearly does not invalidate all software patents in the US, it’s an important first step. In particular, the details leave open a number of important questions about the patentability of software, which gives hope that future cases might help to limit software patents even further in the US.

This welcome move is rather ironic, since the European Union is moving in the opposite direction thanks to the Unitary Patent. As the French free software association April points out, there is an important lesson for Europe in the latest US Supreme Court decision:

It also underscores that this Supreme Court decision exposes the importance of being able to turn to a general and independent court, regarding the question of patents, to limit the excesses of specialized courts – and fear the absence of such a protection in the context of the future European unitary patent.

That’s because the way that the European Unitary Patent system will work means that there is no independent court to which appeals can be made – only an appeal court within the new patent system itself. That lack of an external check is an extremely dangerous feature – and one that the European Union may well come to regret.

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