US appeals court asks whether to limit software patents

The Federal Circuit hears a case Friday involving the patentability of abstract ideas when combined with a computer

By , IDG News Service |  Software

The case could determine the line between a "true invention that uses a computer" and a process that can happen on a computer or by other means, said Leigh Martinson, a partner in the McDermott Will & Emery law firm. The case could chip away at the longtime legal assumption that software, because it's loaded on a machine, is patentable, he said.

The case could give tech companies a clearer picture of what kinds of software patents are allowed, Samuels said. The appeals court has issued a "bunch of inconsistent opinions" on software patents, and the U.S. Supreme Court didn't provide specific guidance in its 2010 Bilski v. Kappos ruling, she said.

"It's really hard to know what the law is," she added.

The EFF has been a leading critic of software patents, but Samuels said she doesn't see the Federal Circuit abolishing them. "In a perfect world, we'd probably not have these patents at all," she said. "But I don't have much hope that's where the Federal Circuit is going to come down."

Martinson said he doesn't believe the court will invalidate software patents. "Think about the policy implications of that," he said. "Look at all the companies that write software and protect their ideas. That's sort of what [U.S. businesses] do now on some level."

If the court invalidates software patents, "I'd have to find a new gig," he added.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

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