UCHastings Instagram

Hastings Law Journal and UC Berkeley California Constitution Center Launch SCOCABlog.com
Instagram Photo Likes sara_emily07, hellojrabbit, embc1989 and 26 others like this.
Wednesday, January 29, 2014

Regarding the Patentability of Software

Professor Robin Feldman Files Brief in US Supreme Court case CLS Bank v. Alice.

Sample alt tag.
Professor Robin Feldman testifying before House Committee on Energy & Commerce.

Robin Feldman, Professor of Law and Director of the Institute for Innovation Law at UC Hastings, has filed an amicus brief at the US Supreme Court in CLS Bank v. Alice, addressing the patentability of software.

Key Concepts

In addition to the brief (click here to download the brief), Professor Feldman has provided this writeup:

  • Computers, unfortunately, don’t speak English. Software translates human language into numerical code that computers understand. Like words in any language, software can be a translation of a law of nature or it can be a translation of an applied invention.
  • When patentability of pure software arose in 1994, the Federal Circuit misinterpreted the Supreme Court’s early cases related to patentability of inventions integrated into hardware.
  • The Federal Circuit’s mistake has spawned 2 decades of software patents that can be no more than an abstract idea. These patents focus on the result of the invention, rather than the steps taken to get there—an approach that would be summarily rejected for other types of inventions.
  • Fixing this test is critical in light of modern strategic behavior in patenting—whether patent trolling or patent wars. Software patents, and their cousin business method patents, now typically cover a vast swath of territory, well beyond what the patent holder has contributed to society, making them a weapon of choice.
  • Part of the Federal Circuit’s error relates to confusion between the content of something that is being expressed and the language in which it is expressed. Laws of nature, such as Einstein’s E=MC2 , are often expressed in formulaic language. The fact that computer programs are expressed in formulaic language that looks somewhat like math does not mean, however, that the concepts underlying a particular program are analogous to a law of nature. The courts must look at the underlying content of what is being expressed.
  • As I have noted in writings outside the brief, Comic books and the Constitution may be written in the same language, but they are vastly different types of documents.
  • This case presents a historic opportunity to create cohesion in patentable subject matter doctrines throughout all fields of innovation—whether the invention relates to products or processes, business methods or biotechnology.
  • The key is to ask whether the subject matter of the patent creates preemption problems and whether the patent is appropriately aimed at a specific commercial application, rather than a law of nature or a broad, abstract concept.

###

Go to News Archive

Share this Story

Share via Facebook
Share via TwitterShare via EmailPrint Friendly Version

Other Recent Stories/ RSS

Tuesday, November 25, 2014

Thinkers & Doers: November 25, 2014

UC Hastings community members in the news and making moves November 15-25, 2014.
Monday, November 24, 2014

Hastings Law Journal and UC Berkeley California Constitution Center Launch SCOCABlog

Ongoing coverage of the California Supreme Court will include analysis from faculty and practitioners around the state.
Monday, November 24, 2014

Chelsea Maclean ‘05 On The Value of Relationships, Networking, and the Business Side of Public Law

"About halfway through law school I became involved in the Center for State and Local Government Law, and that is really where I got my first exposure to public law."
Wednesday, November 19, 2014

The Mathew O. Tobriner Memorial Lecture - Professor Brian Leiter

Professor Leiter to present "Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature" on Monday, January 12, 2015. 
Wednesday, November 19, 2014

UC Hastings Launches New Attorneys in Residence Program (AiR)

One-year, entry-level attorney positions are with private-sector employers who do not traditionally hire recent grads.
Go to News Archive