Software and Business Method Patents Limited by Unanimous U.S. Supreme Court Holding in Alice Corp. v. CLS Bank International

“If everybody minded their own business, the world would go around a great deal faster than it does.”
― Lewis Carroll, Alice in Wonderland

The U.S. Supreme Court has issued a unanimous opinion in the long-awaited business method software patents case Alice Corp v. CLS Bank International, No. 13-298 and has restored some of our otherwise waning faith in the wisdom of that Supreme Court.

Our sister site LawPundit posted about this case previously inter alia at:

• Patent Wars Reach U.S. Supreme Court: Are Computer Implementations of Abstract Ideas Patentable?

• Software Business Patents under United States Supreme Court scrutiny: A Question of Arrows? Alice Corp. v. CLS Bank Int’l (13-298) - Excerpts from the March 31, 2014 Oral Arguments

The Supreme Court's holding is recited at the very beginning of the opinion, written excellently and understandably by Justice Thomas, as follows:

"The patents at issue in this case disclose a computer-implemented scheme for mitigating “settlement risk” (i.e., the risk that only one party to a financial transaction will pay what it owes) by using a third-party intermediary. The question presented is whether these claims are patent eligible under 35 U. S. C. §101, or are instead drawn to a patent-ineligible abstract idea. We hold that the claims at issue are drawn to the abstract idea of intermediated settlement, and that merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention."

Justice Sotomayor also wrote a very short concurring opinion, joined by Justice Ginsburg and Justice Breyer, stating:

"I adhere to the view that any “claim that merely describes a method of doing business does not qualify as a ‘process’ under §101.” Bilski v. Kappos, 561 U. S. 593, 614  (2010) (Stevens, J., concurring in judgment); see also In re Bilski, 545 F. 3d 943, 972 (CA Fed. 2008) (Dyk, J., concurring) (“There is no suggestion in any of th[e] early [English] consideration of process patents that processes for organizing human activity were or ever had been patentable”). As in Bilski, however, I further believe that the method claims at issue are drawn to an abstract idea. Cf. 561 U. S., at 619 (opinion of Stevens, J.). I therefore join the opinion of the Court."

The Supreme Court in making its unanimous opinion relies heavily on the precedents found in Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U. S. ___, ___ (2013), Bilski v. Kappos, 561 U. S. 593, S. Ct. 3218 (2010) and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U. S. ___ (2012), by holding:

• that laws of nature, natural phenomena, and abstract ideas are not patentable,”
• that "the concept of intermediated settlement" was an abstract idea, and
• that method claims merely requiring generic computer implementation, fail to transform that abstract idea into a patent-eligible invention.

As Justice Thomas writes:

"[T]he mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention."

The general law applicable to patents and patent eligibility is thus recited by Justice Thomas as follows (excerpted from the slip opinion):

"Section 101 of the Patent Act defines the subject matter eligible for patent protection. It provides:

"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”" 35 U. S. C. §101.

“"We have long held that this provision contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable.”" Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U. S. ___, ___ (2013) (slip op., at 11) (internal quotation marks and brackets omitted). We have interpreted §101 and its predecessors in light of this exception for more than 150 years. Bilski, supra, at 601-–602; see also O'Reilly v. Morse, 15 How. 62, 112-–120 (1854); Le Roy v. Tatham, 14 How. 156, 174-–175 (1853).

We have described the concern that drives this exclusionary principle as one of pre-emption. See, e.g., Bilski, supra, at 611-–612 (upholding the patent “"would pre-empt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea”). Laws of nature, natural phenomena, and abstract ideas are " ' "“the basic tools of scientific and technological work.”" ' " Myriad, supra, at ___ (slip op., at 11). "“[M]onopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it,"” thereby thwarting the primary object of the patent laws. Mayo, supra, at ___ (slip op., at 2); see U. S. Const., Art. I, §8, cl. 8 (Congress “"shall have Power . . . To promote the Progress of Science and useful Arts"”). We have “"repeatedly emphasized this . . . concern that patent law not inhibit further discovery by improperly tying up the future use of" ”these building blocks of human ingenuity. Mayo, supra, at ___ (slip op., at 16) (citing Morse, supra, at 113).

At the same time, we tread carefully in construing this exclusionary principle lest it swallow all of patent law. Mayo, 566 U. S., at ___ (slip op., at 2).  At some level, "“all inventions . . . embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Id., at ___ (slip op., at 2). Thus, an invention is not rendered ineligible for patent simply because it involves an abstract concept. See Diamond v. Diehr, 450 U. S. 175, 187 (1981). "“[A]pplication[s]”" of such concepts “‘"to a new and useful end",’ ”we have said, remain eligible for patent protection. Gottschalk v. Benson, 409 U. S. 63, 67 (1972).

Accordingly, in applying the §101 exception, we must distinguish between patents that claim the “" '‘buildin[g] block[s]' "’ ”of human ingenuity and those that integrate the building blocks into something more, Mayo, 566 U. S., at ___ (slip op., at 20), thereby “transform[ing]” them into a patent-eligible invention, id., at ___ (slip op., at 3).  The former "“would risk disproportionately tying up the use of the underlying"” ideas, id., at ___ (slip op., at 4), and are therefore ineligible for patent protection. The latter pose no comparable risk of pre-emption, and therefore remain eligible for the monopoly granted under our patent laws."

For more details of the unanimous Supreme Court opinion, especially as regards:

"... a framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts"

go to Alice Corp v. CLS Bank International, No. 13-298.

__________

News media have of course reported the decision, e.g. at:

New York Times -- Adam Liptak -- Supreme Court Rules Against Alice Corp. in Patent Case

Wall Street Journal --  Brent Kendall -- Supreme Court Sides With CLS Bank by Tossing Forex Software Patents
 
USA Today -- Richard Wolf -- Supreme Court cuts back on software patents

Forbes -- Daniel Fisher -- Saying 'Do It On A Computer' Not Enough To Save Patent, Supreme Court Rules

NPR -- Krishnadev Calamur -- Supreme Court Rules Against Patents For Abstract Ideas

Bloomberg -- Greg Stohr and Susan Decker -- Software Patent Protection Curbed by U.S. Supreme Court

DIRECTIVE 2011/83/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council.

With reference to our immediately preceding posting,
go to this link at EUR-Lex
for the fulll text in the various EU languages
of DIRECTIVE 2011/83/EU
OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2011
on consumer rights,
amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council
and repealing Council Directive 85/577/EEC
and Directive 97/7/EC
of the European Parliament and of the Council.

Massive Landmark Consumer Protection Law Goes Into Effect in the EU (European Union) on Friday the 13th of June 2014 Affecting Many Businesses and Online Presences

People who think that EU administrators and legislators in Brussels do nothing useful better think again.

The pioneer landmark Consumer Rights Directive, which was passed by the European Union (EU) on October 2011, and which required Member States to implement corresponding legislation by December 13, 2013,
goes into effect in the EU tomorrow, Friday the 13th, 2014

The provisions of the Consumer Rights Directive make numerous and in our opinion absolutely necessary wide-sweeping changes to protect consumers and to put an end to many abusive commercial practices, online and offline.

The Consumer Rights Directive thus eliminates hidden charges and costs for online sales, demands disclosure of "total costs" for price transparency, provides for 14-day withdrawal of online purchases and an EU-wide model withdrawal form, requires disclosure of costs for returned goods beforehand, forbids pre-ticked boxes on websites, fixes telephone hotline charges at the low basic rate for telephone calls, eliminates credit card payment surcharges, sets forth stricter rules for the description of digital content offered for sale (software and hardware compatability, copying limitations), and provides common rules for businesses all over Europe.

The details are outlined in a press release issued by EUROPA.EU on June 23, 2011 as follows (links to other languages available here):

"MEMO/11/450
Brussels, 23 June 2011

Consumer Rights:

10 ways the new EU Consumer Rights Directive

will give people stronger rights

when they shop online

Good news for consumers: new EU legislation will strengthen their rights in all 27 Member States. The European Parliament today adopted – by an overwhelming majority (615 for, 16 against, 21 abstentions) – the Consumer Rights Directive, which the European Commission proposed in October 2008 (IP/08/1474). The vote follows a deal reached between the three EU institutions (European Commission, European Parliament and the Council of Ministers), and clears the final hurdle before the new rules can become reality for consumers.

EU Justice Commissioner, Viviane Reding, who already championed consumer-friendly EU rules in 2007 and 2009 to drastically reduce mobile phone roaming charges, said: "This is a good day for Europe’s 500 million consumers. Today's adoption of the new EU Consumer Rights Directive will strengthen consumer rights by outlawing Internet fraudsters who trick people into paying for horoscopes or recipes that appear to be offered for free. Shoppers will no longer be trapped into buying unwanted travel insurance or car rentals when purchasing a ticket online. And everyone will have 14 days if they wish to return goods bought at a distance, whether by internet, post or phone. I would like to thank the European Parliament's rapporteur, Andreas Schwab, as well as the Hungarian EU Presidency, for their committed support and work that made this political breakthrough possible. The European Commission will help ensure that the new rules are implemented swiftly in all Member States so that consumers across Europe can have more confidence when shopping, whether online or offline.”

In today’s vote, the European Parliament backed a political agreement between negotiators of the European Parliament, the Council and the Commission. In March 2010, EU Justice Commissioner Reding made it clear that any agreement on the Directive would require a sound balance between consumers’ interest in stronger rights and businesses’ interest in taking full advantage of the EU's Single Market (see SPEECH/10/91).

Last steps in the legislative procedure:

Formal approval of the agreed text of the EU Consumer Rights Directive by the EU Council of Ministers (September);
Publication of the new Directive in the EU's Official Journal (this autumn);
Transposition of the new rules into the national laws before the end of 2013.

The following are the 10 most important changes for consumers in the new Directive:

1) The proposal will eliminate hidden charges and costs on the Internet

Consumers will be protected against "cost traps" on the Internet. This happens when fraudsters try to trick people into paying for ‘free’ services, such as horoscopes or recipes. From now on, consumers must explicitly confirm that they understand that they have to pay a price.

2) Increased price transparency

Traders have to disclose the total cost of the product or service, as well as any extra fees. Online shoppers will not have to pay charges or other costs if they were not properly informed before they place an order.

3) Banning pre-ticked boxes on websites

When shopping online – for instance buying a plane ticket – you may be offered additional options during the purchase process, such as travel insurance or car rental. These additional services may be offered through so-called ‘pre-ticked’ boxes. Consumers are currently often forced to untick those boxes if they do not want these extra services. With the new Directive, pre-ticked boxes will be banned across the European Union.

4) 14 Days to change your mind on a purchase

The period under which consumers can withdraw from a sales contract is extended to 14 calendar days (compared to the seven days legally prescribed by EU law today). This means that consumers can return the goods for whatever reason if they change their minds.

Extra protection for lack of information: When a seller hasn’t clearly informed the customer about the withdrawal right, the return period will be extended to a year.

Consumers will also be protected and enjoy a right of withdrawal for solicited visits, such as when a trader called beforehand and pressed the consumer to agree to a visit. In addition, a distinction no longer needs to be made between solicited and unsolicited visits; circumvention of the rules will thus be prevented.

The right of withdrawal is extended to online auctions, such as eBay – though goods bought in auctions can only be returned when bought from a professional seller.

The withdrawal period will start from the moment the consumer receives the goods, rather than at the time of conclusion of the contract, which is currently the case. The rules will apply to internet, phone and mail order sales, as well as to sales outside shops, for example on the consumer's doorstep, in the street, at a Tupperware party or during an excursion organised by the trader.

5) Better refund rights

Traders must refund consumers for the product within 14 days of the withdrawal. This includes the costs of delivery. In general, the trader will bear the risk for any damage to goods during transportation, until the consumer takes possession of the goods

6) Introduction of an EU-wide model withdrawal form

Consumers will be provided with a model withdrawal form which they can (but are not obliged to) use if they change their mind and wish to withdraw from a contract concluded at a distance or at the doorstep. This will make it easier and faster to withdraw, wherever you have concluded a contract in the EU.

7) Eliminating surcharges for the use of credit cards and hotlines

Traders will not be able to charge consumers more for paying by credit card (or other means of payment) than what it actually costs the trader to offer such means of payment. Traders who operate telephone hotlines allowing the consumer to contact them in relation to the contract will not be able charge more than the basic telephone rate for the telephone calls.

8) Clearer information on who pays for returning goods

If traders want the consumer to bear the cost of returning goods after they change their mind, they have to clearly inform consumers about that beforehand, otherwise they have to pay for the return themselves. Traders must clearly give at least an estimate of the maximum costs of returning bulky goods bought by internet or mail order, such as a sofa, before the purchase, so consumers can make an informed choice before deciding from whom to buy.

9) Better consumer protection in relation to digital products

Information on digital content will also have to be clearer, including about its compatibility with hardware and software and the application of any technical protection measures, for example limiting the right for the consumers to make copies of the content.

Consumers will have a right to withdraw from purchases of digital content, such as music or video downloads, but only up until the moment the actual downloading process begins.

10) Common rules for businesses will make it easier for them to trade all over Europe.

These include:

A single set of core rules for distance contracts (sales by phone, post or internet) and off-premises contracts (sales away from a company’s premises, such as in the street or the doorstep) in the European Union, creating a level playing field and reducing transaction costs for cross-border traders, especially for sales by internet.

Standard forms will make life easier for businesses: a form to comply with the information requirements on the right of withdrawal;

Specific rules will apply to small businesses and craftsmen, such as a plumber. There will be no right of withdrawal for urgent repairs and maintenance work. Member States may also decide to exempt traders who are requested by consumers to carry out repair and maintenance work in their home of a value below €200 from some of the information requirements."

The U.S. Supreme Court Affirmative Action Decision in Schuette and the Difference between RACE and Assigned Weights in Race Horse Handicapping

This is a mirror follow-up to our previous posting at LawPundit on U.S. Supreme Court Holds that a State Can Ban Racial Affirmative Action in Public University Admissions: Schuette v. Coalition to Defend Affirmative Action.

Below are some links to in part conflicting mainstream opinions on the significance of the holding in the affirmative action case Schuette v. BAMN (slip opinion, No. 12–682, argued October 15, 2013—, decided April 22, 2014).

Ann Althouse - Althouse
The Supreme Court decides Schuette, the affirmative action case about Michigan's state constitutional law ban on affirmative action
which she follows up with
The way to get a concurring opinion out of Chief Justice Roberts is to rewrite his famous aphorism, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race").

After reading Althouse, we asked the question of what distinguishes RACE and the U.S. Constitution from the assignment of weights in race horse handicapping, whereby stronger horses are assigned more weight to carry than weaker horses in order to make races "more competitive".

RACE may matter, as Althouse emphasizes via Justice Sotomayor, but life is not horse racing and we are not opting for a world in which people best suited for being brain surgeons are unduly "weighted" so that those least suited for being brain surgeons are "unweighted" to give them a competitive chance to do brain surgery. The same holds true for academics in general and for all other areas of human activity.

Of course, as regards contra views citing to other forms of "permissible" discrimination, e.g. we find the "legacy" practice of academic and other institutions to be abominable, if understandable, but not illegal, and legacies "could" similarly be "banned" by law, if the people so desired.

Given the vast inequality of wealth and income in the United States, the main problem is that the truly "strongest" horses are taking away the lion's share of the winnings without an appropriate share being given to the "also rans", who are also important, because no one wants to see races in which just the obviously strongest horse alone is participating.

But that problem is not be solved by affirmative action, but rather by more sensible and equitable distributions of the nation's wealth and income.

More opinions:

Robert Barnes - Washington Post

Supreme Court upholds Michigan’s ban on racial preferences in university admissions

Barnes presents an overview of the various issues involved.

Charles Krauthammer - Washington Post
Finally getting it right on affirmative action

Krauthammer concludes that "This gives us, finally, the basis for a new national consensus." Hat tip to CaryGEE.

Andrew Woodman - Huffington Post
In Schuette, Roberts Continues Legacy of Bringing the Court Into the 21st Century

Woodman finds that "this decision has shown the willingness of the Roberts court to take a new look at the data and update jurisprudence for the 21st century."

Dennis D. Parker - Huffington Post

We're All Losers After the Supreme Court's Decision in Schuette

Parker thinks many have lost through this decision, which he says supports "rigging the game" in favor of certain groups.

Roger Pilon - CATO at LIberty, CATO Institute

Reflections on Schuette v. Coalition to Defend Affirmative Action

Pilon writes that there is simply too much government, i.e. public institutions of higher education.

Elie Mystal - Above the Law

3 Reasons Affirmative Action Will Be Okay Despite Schuette Decision

Mystal urges everyone to calm down, indicating that affirmative action will continue to be practiced in a myriad of legal ways.

Europe Russia USA China and the World: Where Are We Headed? Thoughts on The Bear That Talks Like a Man at the WSJ

This is a posting regarding Peggy Noonan's yesterday article in the Wall Street Journal on The Bear That Talks Like a Man: Conflict with Russia neither began nor ended with the Cold War.

Well, before reading further, you may ask, what do WE know about Russia?

Take a look here: Russia, China, Putin, Crimea and Ukraine, the Baltic and Related Topics ... "I am Not Sure".

With all due respect to Noonan at WSJ and George Friedman of Stratfor​, both experienced in this area of political and military discourse, but that particular article looks to us like a bucket loaded with illusory wishful thinking, wishful thinking that could -- detrimentally -- find its way into U.S. foreign policy.

To understand Russia, it would seem that more information must be acquired, before correct conclusions about events can be drawn.

What are the facts? FACTS.

We surely do not have a monopoly on facts, but some of the indisputable facts are that Russia lords over vast quantities of vital natural resources and that the military has been getting stronger under President Putin's leadership.

Here are some individually selected items in this regard:

• Whereas Friedman -- erroneously, in our view -- predicts  that the Russian military will collapse shortly after 2020, in fact there has been a constant buildup of the military under Putin and more is planned up to 2020. See http://nationalinterest.org/commentary/russias-military-back-9181

• Financially, Russia would seem to be able to afford greatly increased military spending since the foundation of the Russian economy is based on natural resources, with much of Europe e.g. heavily dependent on Russian supplies of gas for energy purposes: http://www.bloomberg.com/news/2014-03-28/europe-seen-paying-twice-as-much-to-replace-russian-gas.html

• And what about world nickel? World nickel prices could easily skyrocket. See Russia Would Divert Nickel Sales to China on Sanctions

• Furthermore, Putin recently signed an agreement with China over "eased" travel rules between the two powers for "businessmen, scientists, culture and public figures, and athletes": http://en.itar-tass.com/russia/727480. 
  
  That does not look like a Russia that is becoming weaker. Indeed, in terms of economic comparative advantage, Russia and China would each seem to have a lot to offer one another in terms of trade at vital levels.

Given all of the above, we thus do not worry very much about Russia collapsing in the near future.

Quite the contrary, we see that the Russian Federation is getting stronger and stronger, economically and militarily, which will clearly create new political conditions in the future.

Demographics are also a very important parameter, with Russia and the USA both having populations near 300 million, which sets limitations on what they can do, whereas Europe dominates economically with 500 million persons.

We wish it were otherwise, but the country we worry about most is the United States itself, a country divided increasingly into haves and not haves, and guided e.g. by a U.S. Supreme Court dominated in the majority by "yesterday yearners" and a similarly backward-looking  populist-populated Congress with too many political elements living in a "Boston Tea Party" nostalgia-like celebration of past glories, http://en.wikipedia.org/wiki/Tea_Party_movement

whereas the real world is moving forward and leaving America behind.

See e.g.

• World Airline Ranking: http://www.economist.com/news/united-states/21599801-new-ranking
  
• Ranking of the USA in tech fundamentals: high-level math, science and literacy skills necessary for the new economy http://www.nytimes.com/2013/10/23/opinion/the-united-states-falling-behind.html?_r=0
  
• Business etc. Leadership Rankings http://industrytoday.com/article_view.asp?ArticleID=we416
  
• World Health Rankings 2000 http://en.wikipedia.org/wiki/World_Health_Organization_ranking_of_health_systems_in_2000 -  http://www.nejm.org/doi/full/10.1056/NEJMp0910064
  
• Health Rankings 2010 - Comparisons reveal that the United States was, prior to Obamacare, falling farther behind each year (see graph below)
.

Only in such traditional parameters as "ease of doing business" and "economic freedom" is America holding its own, and even here the trend appears to be downward:

http://www.doingbusiness.org/rankings
http://www.heritage.org/index/ranking

Accordingly, whether or not the political parties and representatives in the USA want political "change" or not, the nation really has little actual choice on the matter, because the rest of the world IS CHANGING.

NECESSITY drives the world, and that means change, by definition.

Hat tip to CaryGEE for drawing my attention to the WSJ article.

World Legal Market of Nearly $1 Trillion in Global Turmoil on a Grand Scale

At Venture Beat, Nicole Bradick, Potomac Law Group, has an interesting report on the status of the world's legal profession at All rise: The era of legal startups is now in session.

People estimate the global legal market to be at about $800 billion annually, approaching the $1 trillion mark. That is a lot of law, and it represents a legal market that increasingly finds itself in global turmoil on a "grand scale".

Take a look.

Patents on Business Processes, Methods and Software under scrutiny at the U.S. Supreme Court in Alice Corp. v. CLS Bank Int’l (13-298) March 31, 2014 Oral Arguments

One of the best ways to understand "law" in the making is to read United States Supreme Court oral arguments, such as the recent March 31, 2014 oral argument in the case of Alice Corp. v. CLS Bank Int’l (13-298).

We have selected, excerpted and commented what we regard to be some important points made in this case, in which a business process to be implemented by software is claimed quite independent of any software!

This is like some of the kind of "mischief" predicted by Justice Stevens in the aftermath of Bilski.

At issue here in Alice Corp. is the question whether that kind of patent claim is nothing more than the attempted patenting of "abstract ideas", which are, according to U.S. Supreme Court precedent, not patentable.

"...

JUSTICE SOTOMAYOR:

Is your software copyrighted?

MR. PHILLIPS [on behalf of petitioners]:

No, I don't believe so.

JUSTICE GINSBURG:

There is no special software that comes with this ­­ that's part of this patent, is it ­­ is there?

MR. PHILLIPS:

No. Justice Ginsburg, what we did here is what the Patent and Trademark Office encourages us to do and encourages all software patent writers to do, which is to identify the functions that you want to be provided for with the software and leave it then to the software writers, who I gather are, you know, quite capable of converting these functions into very specific code.

...

JUSTICE KAGAN:

Mr. Perry ... you said to Justice Scalia if a patent sufficiently describes how a computer will implement an idea then it's patentable. So how sufficiently does one have to describe it? What do we want a judge to do at this threshold level in terms of trying to figure out whether the description is sufficient to get you past it?

MR. PERRY [on behalf of the respondents]:

First in the negative: What the applicant or patentee must do ­­ must not do is simply describe the desired result. That would take us back to State Street. That would simply say: I claim a magic box that buys high and sells low or vice versa, I suppose, I claim a magic box for investing. That's what these patents do.

Then to put it in the affirmative and in the language of Mayo, the claim has to recite something significantly more, something significantly more than the abstract idea itself. That would be a contextual analysis based on the claims and specifications and file history, and we know that some devices, some methods, some programming will pass that.

It is not going to be a bright­line rule and that's one of the tug­of­war issues that this Court and the Federal Circuit have been having in these cases. The Federal Circuit wants bright­line rules: All computers are in or all computers are out.

This Court has been more contextual. This Court has been more nuanced. This Court has looked at things in a more robust way.

...

JUSTICE GINSBURG:

The Federal Circuit in this case split in many ways, and it had our decisions to deal with. You said, given Bilski and Mayo, this is an easy case. What is the instruction that escaped a good number of judges on the Federal Circuit? How would you state the rule?

MR. PERRY:

Your Honor, I think there's a significant element to the Federal Circuit that disagrees with Mayo and has been resistant in applying it."

Things are not helped along when Chief Justice Roberts is seemingly impressed by arrow-vectors in the patent documents:

CHIEF JUSTICE ROBERTS:

"[It] constitutes the instructions about how to use the computer and where it needs to be affected. And just looking at it, it looks pretty complicated. There are a lot of arrows and they ­­-- you know, different things that go -- ­­(Laughter.) ... Well, but I mean, you know, it -- in different directions. And I understand him to say that in each of those places, that's where the computer is needed."

Was that all tongue-in-cheek? or merely more expectable "mischief", as predicted by Justice Stevens in Bilski?

We wrote in The United States Supreme Court Passes the Buck in the Bilski Patent Case : Business Methods are Patentable : Abstract Ideas are Unpatentable:

"[T]he Supreme Court denied Bilski's patent on the alternative ground that it was an "abstract idea", pursuant to the Supreme Court's earlier precedents, which hold that "laws of nature, physical phenomena, and abstract ideas" are not patentable subject matter. Just how the Court determined what an abstract idea is and what it is not not, is not clear from the opinion.

The majority refused to strike down Bilski's patent on the grounds that it was a business method, indicating instead that a patent-eligible "business method" might be patentable as a "process" within the meaning of the statute -- thus possibly opening up a new Pandora's Box for the patent world, much to the consternation of Justice Stevens, concurring in judgment, who wrote:

"The Court correctly holds that the machine-or-transformation test is not the sole test for what constitutes a patentable process; rather, it is a critical clue. [footnote 1] But the Court is quite wrong, in my view, to suggest that any series of steps that is not itself an abstract idea or law of nature may constitute a “process” within the meaning of §101. The language in the Court’s opinion to this effect can only cause mischief." [emphasis added by LawPundit]"

Small wonder that much of intellectual property law continues to remain in such a needless mess, nor is the ultimate decision in Alice Corp. going to help us much, as the Court in oral argument indicated that it will not be knocking down patents for business methods or processes or for software patents.

It will most certainly not be adopting the impossible standard suggested by the United States government as amicus curiae:

"GENERAL VERRILLI [on behalf of the United States]:

An abstract idea does not become patent­ eligible merely by tacking on an instruction to use a computer to carry it out. A computer makes a difference under Section 101 when it imposes a meaningful limit on the patent claim. That occurs when the claim is directed at improvement in computing technology or an innovation that uses computing technology to improve other technological functions. That's the test that we believe is most faithful to this Court's precedents in Bilski and Mayo."

How could the U.S. government suggest the adoption of such a complex, inappropriate standard? In any case, a definition of patent eligibility tied in ANY way to "a computer" seems to us to be unjustified.

"Software" is nothing other than strings of characters that contain (ultimately) machine-readable instructions for machines that we specifically call computers, printers, keyboards, handhelds, etc., but machines nonetheless.

All software is merely specialized TEXT characters, organized in a given manner, and such instructions should never have been seen as being patentable subject matter. The fact that computers can read that text FASTER and can implement such instructions FASTER is NOT an invention.

At best, if at all protected by IP law, then such protection of the actual software code should only be by copyrights.

TEXT, in the general history of law and legal thinking, is not "an invention".

An "invention" can only be WHAT something does by virtue of text character software code commands that it receives.

For purposes of patentability, an actual working "something" should have to exist (whether as a machine or as a software program) and do what the invention says it does in its unique way, and only that unique way as embodied in that particular invention should be patentable, unless it is not novel and/or obvious to anyone in the state of the art, and not anticipated by prior art (which most "inventions" in fact are).

By no means should "non-built" machines and "non-written" software be able to claim broad swathes of monopolistic patent protection on the promise that a working "something" is in the offing. Talk about "abstract ideas"!

Moreover, whether a "machine" involved is a computer or simply a new-fangled toaster should make no difference, if e.g. a new way to "pop up" the bread has been invented.

The distinction between computers and "other" machines is thus in error. All machines need commands viz. operators. That is no invention.

Similarly erroneous are suggestions from the direction of the Federal Circuit that one should separate off chosen areas in "biological sciences" from other areas of "invention", as if different rules applied.

"MR PERRY:

[F]ormer Chief Judge Michelle filed a brief in this Court essentially saying Mayo is a life­sciences case, You should limit it to that because if you apply it to everything else, then these patents are no good. 

Mayo we submit is a technology-­neutral, industry-­neutral, exception­neutral framework that can be used to answer all of these questions."