Correlation isn’t causation, but . . .

Lex Machina has provided us with a suggestive bit of data regarding the impact of recent changes to the patent law: September patent infringement case filings dropped 40% from 2013

Is the change due to the Supreme Court’s decision to (arguably) undermine software patents in Alice? Maybe. Did the decrease in filings happen because owners of ‘weak’ patents fear having to pay the other side’s attorneys’ fees in the wake of the Supreme Court’s Octane Fitness fee-shifting decision? Could be. Maybe the assorted post-issuance procedures created by the America Invents Act has contributed to the decrease? Possible. A few weeks ago, Vox spotted a trend against software patent validity in US courts, which may (or may not) have something to do with the decline in new suits. As usual, PatentlyO has a good rundown of some of the changes possibly driving the decrease. 

We all know that correlation should not be confused with causation, but if the decrease holds—and only time will tell whether this is a blip or a trend—there are plenty of changes to the US patent system that correlate rather nicely with the drop. Untangling causation among all of the candidates, even if possible, will require more data. Certainly, ‘a little bit of all of all them’ may be the most likely explanation of any sustained decrease in patent infringement suits.

Assuming the drop in patent litigation volume holds, and further assuming we can credit it to some variety of patent reform, whether legislative or judicial, whether the change is a ‘good thing’ may depend upon the nature of the cases still being filed and any individual commentator’s point of view. Wise commentators will likely withhold judgment until we have both a larger amount of data and more details about the suits being filed. Nevertheless, the drop is large enough to catch the eye of any interested observer. This is a (possible) trend worth watching.

A summary of Alice jokes (and a summary of thoughts regarding Alice v. CLS Bank, too!)

When the U.S. Supreme Court issues an opinion with potentially profound ramifications for software patents in the U.S., you can count on the decision receiving massive coverage in the legal, technical, financial, and even mainstream press. When the shorthand reference to the case involved is “Alice,” you can count on plenty of jokes and (dated) pop culture references.

The most comprehensive analysis on the Internet likely can be found at SCOTUSblog, which has a symposium on the Alice decision. Former Director of the Patent and Trademark Office David Kappos argues that the decision ultimately places software patents on even firmer ground. Meanwhile, Rebecca Eisenberg observes that the Court seems to have conflated “the issue of patent eligibility with the distinct issue of patent worthiness.John Duffy takes the position that the new decision “does little to change, or even to clarify, pre-existing law.Justin Nelson views the decision as affirming the status quo. Robert Merges alludes to Douglas Adams when he says, “[w]e have met our ’42,’ and its name is Alice.

Outside of the legal press, Wired calls the decision a “major blow to patent trolls.” Elsewhere, Ars Technica enthuses about the Supreme Court’s ‘patent smashing.’ Vox attempts to explain what the decision means in seven points.

The title for most amusing yet apt metaphor has to go to David at PatentlyO, who asks “Which side of the mushroom did Alice eat from?” For most patent geeks, the most important analysis may very well be that provided by Donald Chisum in a note shared at PatentlyO, who may have found in the decision “enough to lead us toward an oasis in the desert.

Of course, we will simply have to wait for the most important analyses of the Alice decision, which will come from the Patent Office, the district courts, the Federal Circuit, and ultimately perhaps the Supreme Court.

 

Quick thoughts on Alice v CLS Bank

After many weeks of anxious waiting, the Supreme Court issued its decision in Alice v. CLS Bank this morning. No doubt commentators, law professors, and the courts will parse the opinion closely, but patent attorneys need to decide how to write patent applications now, and with our clients we need to decide whether to write a patent application at all. We cannot wait until the commentary comes in. While we should, of course, evolve our approach as the lower courts, Patent Office, and commentators apply and interpret the new decision, there are some bullet points to take from a quick read of today’s opinion.

  • It’s deja vu all over again. If this opinion reads as something you have heard about before, that is because it mostly reiterates prior Supreme Court decisions, particularly Bilski and Mayo. Judicial precedence being important in our system, that repetition may be more of a feature than a bug, but the Supreme Court did not take this occasion to rework the law of software patents.
  • Section 101 is becoming the new 103 (or even 102). The Court couches the opinion in terms of identifying the ‘abstract ideas’ that are not eligible for patent protection, but in identifying the the unpatentable abstract ideas at issue the opinion quotes Bilski to explain that “[l]ike the risk hedging in Bilski, the concept of intermediated settlement is a fundamental economic practice long prevalent in our system of commerce.” Slip opinion at 9 (emphasis added, internal quotations and citations omitted). The Court’s opinion dwelled almost as much upon how the concepts at issue have been “long prevalent” as upon how “abstract” the ideas are. 
  • The line between abstract and non-abstract matters, if you can find it. In a line much bandied about by patent geeks on Twitter already, the Court announced that “[i]n any event, we need not labor to delimit the precise contours of the ‘abstract ideas’ category in this case.” Slip opinion at 10. True to its word, the Court certainly did not provide much in the way meaningful guidance for future inventions. To be fair to the Court, deciding whether a patent claim is too abstract may be even harder than figuring out whether a patent claim is new and not obvious.
  • Despite being opposed to patentability determinations hinging on clever claim drafting, a lot of patentability will continue to hinge on clever claim drafting. While the Court concluded with its traditional Jeremiad against applying section 101 “in ways that make patent eligibility depend simply on the draftsman’s art,” slip opinion at p. 16 (internal quotations and citations omitted), the Supreme Court continues to underestimate the artistry of ‘draftsmen.’ A good patent attorney cannot make that which is old new again, but with sufficient warning we will probably be able to make most ideas sufficiently concrete to pass the Alice abstractness muster.

For now, the Alice decision seems to leave the law of software patents substantially undisturbed. How the decision is applied, and whether the Court continues to take up these issues, will impact patent practice more than this long awaited decision.