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[DMCA-Activists] Peter Junger on Software Patents, SCOTUS and Federal Ci
From: |
Seth Johnson |
Subject: |
[DMCA-Activists] Peter Junger on Software Patents, SCOTUS and Federal Circuit |
Date: |
Sun, 04 Dec 2005 03:59:25 -0800 |
-------- Original Message --------
Subject: Software Patents
Date: Sat, 03 Dec 2005 14:59:16 -0500
From: "Peter D. Junger" <address@hidden>
To: address@hidden, address@hidden
CC: Seth Johnson <address@hidden>
Here is an entry from my blog:
<http://samsara-blog.blogspot.com/2005/12/software-patents.html>,
that I think may be of interest to members of the Cyberia and
Cyberprof lists. I would be especially internested in seeing
arguments against the position that I express here.
My apologies to those who receive more than one copy because of
the cross posting.
Software Patents
When I was in law school in the mid-fifties of the last
century I never took---nor wanted to take---a course in
patent law, but I did learn somehow one bit of legal folk
wisdom about patents that was current at that time: ''All
patents are valid and enforceable, except for those that have
been reviewed by the Supreme Court; no patent that has been
reviewed by the Supreme Court is valid or enforceable.''
Since the creation of the Federal Circuit in 1982, however,
the Supreme Court has had occasion to decide very few patent
cases because all the patent cases that would in the old days
have been decided by the various different circuit courts of
appeal are now all heard by the Federal Circuit and thus
there is never any conflict between the circuits and a
conflict between the circuits is the usual basis for the
Supreme Court deciding to hear a case.
Over the years since 1982 the Federal Circuit has held
repeatedly that innovations in computer software---in
computer programs---can be patented. The leading case in the
Federal Circuit on this subject is In re Alappat, 33 F3d 1526
(Fed. Cir., 1994), even though, way back in 1972, the Supreme
Court had held in Gottschalk v. Benson, 409 U.S. 63 (1972),
that a claim in a patent application that describes a
computer program---a so-called ``algorithm''---is not
patentable.
Thus we now have the strange situation where most lawyers,
including most members of the patent bar, have to assume that
software patents are valid and that the Federal Circuit has
in effect overruled the decision of the Supreme Court in
Benson even though the Court has never been very sympathetic
when lower courts have refused to follow its decisions.
Of late, however, the Supreme Court has evidenced an
increased willingness to review decisions of the Federal
Circuit in patent cases. When one couples that with the fact
that there is more and more evidence these days that software
patents impede rather than support the progress of science
and the useful arts, I am almost willing to predict that
within the next few years the Supreme Court will once again
declare that claims in patent applications describing
computer programs are not patentable and that therefore so-
called software patents are not valid.
It should be noted, however, that that prediction will not
come true if no one is willing to bear the expense of taking
such a challenge to the Supreme Court or if no one dares to
raise in a petition or an appeal to the Supreme Court the
fact that there is a conflict between the Court's holding in
Benson and the Federal Circuit's holding in Alappat.
--
Peter D. Junger--Case Western Reserve University Law
School--Cleveland, OH
EMAIL: address@hidden URL:
http://samsara.law.cwru.edu
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