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Yashi

Friday, June 20, 2014

Trolling the trolls

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The Supreme Court reached a rare state of agreement yesterday. In a unanimous ruling, the court made it even harder for companies to win patent protection for computer software. Over the years, courts have tried to thread the needle between "abstract ideas," which are not eligible for patent protection, and inventions that "integrate the building blocks [of human ingenuity]...into something more," which are. Yesterday's case, Alice Corporation vs. CLS Bank, revolved around a program developed by Alice, an Australian financial-services company, that was designed to limit risks in currency transactions. The Clarence Thomas-written decision says that to "limit risk" is an abstract concept. Further, it clarifies that adding "...on a computer" to the end of an abstract concept doesn't make it magically patent-eligible.

This is bad news for so-called "patent trolls" and good news for the inventors they are fond of suing, writes Tim Fernholz: "The main standard now is pre-emption — if your patent would pre-empt (effectively discourage) innovation, rather than promote it, it's no good. … So get ready for more litigation ahead, but with a bleaker outlook for patent trolls." Sandra Park of SCOTUSBlog likewise says that the case provides new clarity about what constitutes "pre-emption." And Paul Barrett agrees, cheering on the ruling against "too-clever-by-half perpetual litigants who seek to patent abstract ideas and obscure imaginings and then hold up productive companies from bringing innovations to market."

Timothy Lee welcomes aspects of the ruling, but thinks that some conceptual confusions could spell trouble down the road, since software is basically, by definition, an abstract idea expressed "through a long list of conventional mathematical operations," something that becomes harder to see as the programs become more complicated. He writes that as judges who aren't familiar with programming issue rulings in the future, they're likely to give more deference to complicated software programs, whether or not those programs truly deserve patent protection.

Three of the justices don't think the decision went far enough. A concurring opinion written by Justice Sotomayor argues that business methods, which is what was at issue in this case, are by definition abstract and therefore not patent-eligible. The Electronic Frontier Foundation lauded the decision but also pointed out that "the opinion leaves many details to be worked out (such as the scope of an 'abstract idea')."

The good news for software companies is that their greatest fear, that the court might throw out software patents as a class, didn't happen, says Joe Mullin in Ars Technica. They "can rest assured that their nightmare scenario — the mass-invalidation of the thousands of software patents they own—will not come to fruition," he says. And lower courts, Mullin writes, still have a wide degree of discretion to decide what counts as abstract and what doesn't.

Still, this is one of those rare Supreme Court decisions that seems to please almost everybody, from Kevin Drum on the left to Alex Tabarrok on the libertarian right. Good work, justices. — Jordan Fraade

On to today's links:

Housing
Aging Baby Boomers still love their single-family homes - Megan McArdle

Defenestrations
Riot Games is offering unhappy employees $25,000 to quit - Jim Edwards

The Fed
Did the Fed kill the recovery? - Jon Hilsenrath

Vultures Vultures Everywhere
"Default is bad for Argentina. But it might not be that bad" - Matt Levine

Ugh
Why a guy making $100,000 a year can't get a bank account - Danielle Douglas

Charts
Americans' bread habits are changing, and whole wheat and tortillas are the big winners - Roberto Ferdman

Jobs
Rhode Island is the only state where unemployment is still above 8% - Bill McBride

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