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Goodbye stupid software patents?

Mark Gibbs | June 23, 2014
The U.S. Supreme Court decision in Alice v. CLS Bank could make many of the ridiculous business-method and software patents invalid ... eventually.

In holding the claims at issue in Alice ineligible for patent protection today, the Court failed to articulate a broader standard for how to identify an unpatentable 'abstract idea' in a claim.While we now know that implementation of a 'fundamental economic principle' on a computer will likely be insufficient to confer patent eligibility, we are without guidance as to how to apply this to other significant industries developing intangible innovations today - collection and analysis of Big Data that is poised to revolutionize the wearable tech, security, and systems control spaces, cloud computing services, social media applications that are changing how people communicate, collaborate, and work. The Supreme Court did not offer tools for identifying patentable subject matter in these other intangible areas, so patentees will continue to battle uncertainty in these spaces.

I asked Ms. Spaith is this could lead to a broader decision that could strike down patents such as Amazon's 1-Click to which she replied:

It is difficult to predict what the impact of today's decision will be on online technology innovations -- such as that represented by Amazon's "One-Click" patent. The decision did not go so far as to invalidate all software patents. Instead, the Court more narrowly found that the subject matter at issue in Alice was patent ineligible because the claims recited nothing more than a general computing implementation of a fundamental economic principle -- in that case, intermediated settlement.Because the Court declined to provide broader guidance on what may constitute an "abstract idea" that would require something more in the claims to render them patentable subject matter, the decision is not necessarily definitive as to existing patents or pending patent applications in other areas -- including social media, mobile applications, big data analytics, and the like, which themselves may not hinge on fundamental economic principles. Moreover, patent claims may recite elements that effect an improvement in a technology or technical field, which, under today's decision may render them patentable subject matter.

One of Ms. Spaith's colleagues, John Kennedy, had a slightly different take on the topic:

The one-click patent (claim 1) requires operations that occur based upon using a customer and product identifiers to order an item. The concept of using a customer identifier (e.g., a vendor number) to retrieve customer information is well known as is the concept of using a product identifier.

The claim does recite that the order occurs "without using a shopping cart ordering model." So, non-patentability would likely rest on whether it using an ordering model that does not use a "shopping cart" is an abstract idea. My guess, is the answer is yes. As the purchase of a single item in the physical world typically would not entail the use of a "shopping cart." Thus, the fact that a "shopping cart" is not used in a computerized system does not render the claim patentable in and by itself.


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