It's not time to break out the champagne just yet, but opponents of software patents might have cause to be hopeful. There's now a federal judge that openly agrees with them.
This isn't just any judge, but a judge sitting on the Court of Appeals for the Federal Circuit (CAFC), which hears all patent appeals. He's also not some bright-eyed newcomer to patent law. He was appointed to the Federal Circuit in 1987, where he was Chief Judge from 1997-2004.
On Friday, CAFC ruled that three patents Intellectual Ventures was attempting to use against Trend Micro and Symantec were invalid as they didn't describe anything patentable. Although the ruling was pretty much business-as-usual and wasn't unexpected, a concurring opinion by Judge Haldane Mayer went into uncharted waters. Alice Corporation versus CLS Bank International, he said, ended software patents.
"Alice" was the 2014 case in which the Supreme Court ruled that an abstract idea that "does no more than require a generic computer to perform generic computer functions" is not patentable. At the time of the ruling, many thought it would seem to invalidate almost all software patents, except that the Supreme Court bent over backwards to say otherwise within the ruling.
Judge Mayer spent 13 pages addressing software patent issues on several different fronts. For starters, he said they pose a First Amendment problem. “Patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse."
It's the free speech issues that led him to the conclusion that "Alice," in effect, outlawed most if not all such patents. "Most of the First Amendment concerns associated with patent protection could be avoided if this court were willing to acknowledge that Alice sounded the death knell for software patents," he wrote.
"Software is a form of language -- in essence, a set of instructions.... It is inherently abstract because it is merely 'an idea without physical embodiment.' Given that an 'idea' is not patentable... and a generic computer is 'beside the point' in the eligibility analysis ... all software implemented on a standard computer should be deemed categorically outside the bounds of section 101 [the section of patent law defining patentability]."
In addition to First Amendment issues, Mayer also agrees with software patent opponents who say that the patents stifle, rather than foster, innovation. "Software development has flourished despite -- not because of -- the availability of expansive patent protection," he wrote.
The ruling on Friday doesn't mean software patents are going to go away any time soon, as Mayer's comments were part of a concurrence to a split 2-1 ruling. Unless Intellectual Ventures decides to appeal to the Supreme Court, which would then give SCOTUS the opportunity to agree with Judge Mayer's assessment if it were to take the case.