Software patents are a hot topic these days! Three weeks ago, I posted about Lemley's proposal to fix software patents with functional claiming, and last week I summarized various "software patent solutions" offered by patent scholars at Santa Clara's upcoming conference. Tim Lee wrote for Ars Technica and Forbes about the Federal Circuit's responsibility for the "recent explosion of patent litigation in the software industry," prompting rebuttals from Gene Quinn at IP Watchdog. Then the New York Times ran a front-page article (and NPR had a related interview) describing how "the marketplace for new ideas has been corrupted by software patents used as destructive weapons," prompting another response from Quinn, in which he argued that this "arms race" is exactly what the patent system is meant to encourage.
On Tuesday, the Federal Circuit granted en banc rehearing in CLS Bank v. Alice Corp., prompting even more discussion of the software patent issue. Dennis Crouch argued that "it is time for the courts to take a stand and deliver the law in a way that is clear and precise" rather than allowing "hidden" software patents that are "harder to find, harder to examine, harder to understand, and thus much more problematic than they need to be." Yesterday he noted that similar thoughts about "obscure" software patents were proffered in a 1963 student note—and almost 50 years later, we still lack clarity and consensus. I suspect a desire for clarity is one thing everyone in this debate could agree on!
Today, Kip Werking argues at IP Watchdog that the algorithm requirement (i.e., Lemley's solution) makes "no sense" because (a) under Federal Circuit law, form ("the location of the algorithm within the patent document") matters over substance, and (b) the algorithm requirement is "arbitrary" and "does not specify what level of abstraction . . . one must overcome." Werking concludes that "[t]he solution to the problem of the algorithm requirement is to simply abolish it." But Tun-Jen Chiang has argued that the levels-of-abstraction problem is pervasive in patent claiming, and few would argue that we should thus abolish patent claims. I suspect Lemley's response would be that (a) courts should not apply a formalistic approach to determining when the algorithm requirement applies and (b) courts should specify the required level of abstraction (e.g., by requiring algorithms to be disclosed in pseudocode, which has a reasonably well-understood meaning for computer scientists). (Which is not to say that Lemley's solution is right as a policy matter—as I said before, I would want to see some discussion of how it would apply in actual cases, which is currently lacking from Lemley's draft.)
Stay tuned: as amicus briefs for CLS Bank come in and as scholars debate these ideas at Santa Clara's conference in November, I'm sure there will be much more commentary on software patents in the coming months!