Software Patents: A Bad Idea Whose Death May Have Come

WC – despite the vast indifference of his readers – for years now has railed against the idea of software patents. Not only has the body of law created patent trolls, a giant boil on the face of technology. It’s created an appalling mass of completely incomprehensible case law, so that anybody with even the silliest software patent can extort money from software developers. It was a mistake for the SCOTUS to create the wretched legal concept in the first place. And there are signs that the American court system is finally recognizing that mistake.

The SCOTUS sort of kind of maybe suggested it was collectively re-thinking the idea when it issued its 2013 opinion in Alice v. CLS Bank. But the SCOTUS said in Alice that “many computer-implemented claims are formally addressed to patent-eligible subject matter,” but never gave us any examples. Alice seemed to kill software patents, but the SCOTUS in the decision said it didn’t. In the uneasy period since Alice, the Court of Appeals for the Federal Circuit, the intermediate appeals court that hears appeals in patent cases, has flailed around, trying to make sense of software patent law.

The Court of Appeals for the Federal Circuit recently ruled in Intellectual Ventures, LLC v. Symantec Corporation. As expected, the decision threw out the laughably ridiculous patent claims of patent troll Intellectual Ventures, but what is most interesting in the concurring opinion of Judge Haldane Mayer. Judge Mayer has been something of a cheerleader for software patents since the 1990s. Judge Mayer has changed his mind.

In a long concurrence, that’s a great read,1 Judge Mayer reverses ground, finding the Alice indeed rejected all software patents. Judge Mayer went further and found First Amendment grounds for rejecting all software patents as well. The majority decision is a mess, with the three panel judges unable to agree on much except that the patents offered by the patent troll were garbage. Which itself supports WC’s premise.

All of which takes us to Apple, Inc. v. Samsung Electronics. That’s the case where Apple accused its iPhone manufacturer, Samsung, of stealing a number of Apple’s patented software elements that make up the iPhone interface. Apple got a jury verdict for $120 million. A three judge panel of the Court of Appeals for the Federal Circuit unanimously threw out the verdict. The three judge panel held that US Patent Nos. 8,046,721 and 8,074,172, which respectively cover Apple’s slide-to-unlock and autocorrect features, were invalid in light of prior art. Apple asked for an en banc hearing before all of the Federal Circuit judges. And got it. And the en banc panel reinstated the jury verdict, by a vote of 8-3. Only the three judges in the initial ruling thought the patent invalid.

Now WC is an admitted Apple fanboy. But there was a slide-to-unlock widget on WC’s Sony Walkman. Why should creating the software equivalent of prior art be entitled to patent protection? Yes, Samsung is a den of thieves.2 Yes, Samsung has a proven record of incompetence, and that was before Galaxy Note 7s started catching on fire. But those are separate issues from the legal existence of a software patent. Apple can protect itself form unscrupulous manufacturers by careful nondisclosure agreements.

So perhaps Apple, Inc. v. Samsung Electronics can be the vehicle for the SCOTUS to do what it flirted with in Alice: the case in which it reverses the patentability of software. You can be pretty certain that Samsung will petition the SCOTUS to hear the case. The SCOTUS is already hearing Apple’s hardware design patent infringement claims, where the jury gave Apple $548 million. In fact, the case was argued yesterday.

Maybe Samsung II can be the vehicle for driving a stake through the heart of software patents in general.


  1. A great read for a concurring opinion in an intellectual property appellate decision, at least. Maybe only lawyers think it’s a great read. 
  2. WC notes that Samsung has announced a cylindrical computer that, surely by complete coincidence, looks remarkably like the Mac Pro. We can only hope it does set itself on fire.