Over at Ars Technica, I’ve got an in‐depth discussion of In Re Bilski, an important case that was argued before the U.S. Court of Appeals for the Federal Circuit last week. The Federal Circuit has jurisdiction over most patent appeals and, until recently, their decisions were rarely reviewed by the Supreme Court, making them effectively the final authority on patent issues. And unfortunately, they’ve made quite a mess of things, departing dramatically from Supreme Court patents and allowing patents on broad, abstract concepts (including software, which I wrote about last year). The result has been an explosion of low‐quality patents and frivolous litigation:
Amazon’s much‐derided one‐click patent was approved the year after the decision. Patent litigation in the software industry has exploded with firms facing lawsuits over patents covering extremely broad software concepts such as wireless e‐mail, web embedding, and converting IP addresses to phone numbers. Technically, these patents cover general purpose computers executing the algorithms described in the patent rather than the algorithms themselves. But because no one executes such algorithms with pen and paper, the net result has been to give the patent holders effective monopolies on the algorithms themselves.
The Federal Circuit has been catching a lot of flack for its patent jurisprudence in recent years, and they’ve showed an increased interest in revisiting past precedents. As I discussed in a Cato podcast last week, In Re Bilski concerns a patent that was rejected by the USPTO for being too abstract. In its call for amicus briefs in the case, the Federal Circuit explicitly asked for opinions on whether it should revisit its key rulings on abstract patents from the 1990s.
Unfortunately, the oral arguments suggest that the Federal Circuit is unlikely to abandon its dubious experiment with allowing patents on software and other abstract concepts. At best, I think we can expect the court to tinker at the edges, restricting the most egregiously abstract patents.
I’m more optimistic about the Supreme Court, which has shown a renewed interest in patent law in recent years and has shown no compunctions about overturning the Federal Circuit’s patent decisions. At least three Supreme Court justices (Scalia, Breyer, and Stevens) have raised questions about the patentability of software, suggesting that there may be some skepticism from the Supremes on this issue. If the case gets appealed to the Supreme Court, it will be another opportunity to correct a Federal Circuit that has not done a good job of respecting Supreme Court patent precedents.