The Supreme Court of the United States issued its opinion in Alice Corp. vs. CLS Bank. The opinion touched off a storm of “interpretations” in the media, ranging from “Major Blow to Trolls” (wired.com) to “Affirms Status-Quo” (scotusblog.com). While one may wonder at the unanimity of the opinion post-Bilski, the Court was at pains to cast this opinion in terms of a long tradition of excluding “abstract ideas” from patentability. The bulk of the opinion concerns the method claims, but it concludes by dismissing the “computer-readable media” claims (long a favorite end-run by patent drafters) and, importantly, the system claims as well. This last draws directly from Bilski:

… none of the hardware recited by the system claims “offers a meaningful limitation beyond generally linking ‘the use of the [method] to a particular technological environment,’ that is, implementation via computers.” Id., at 1291 (quoting Bilski, 561 U. S., at 610–611).

It would seem to me that this opinion eviscerates many of the algorithmic patents that have issued over the years. By algorithmic patents, I mean those patents which claim otherwise obvious (or not so obvious) algorithms implemented by computer, stored on computer-readable media, etc. Given the Court’s reluctance to elaborate on what is meant by “abstract ideas”, the opinion certainly does not put an end to software patents, but does portend new emphases in litigation.

For those who have never read a SCOTUS opinion, may I recommend doing so now. Making exception for a bit of legal jargon (mostly borrowed from Latin and mostly confined to references), SCOTUS opinions are often masterful pieces of composition.

References:

1. The opinion
2. SCOTUS blog
3. PatentlyO blog

Prof. Laura Schultz has a brief article at Nanotechnology Now in which she views nanotechnology developments by way of patent records. Her article gives a quick breakdown of the industrial areas patenting nanotechnology in 1990 and in 2009.

Robert Merges and Pamela Samuelson (UC Berkeley School of Law) along with Ted Sichelman (University of San Diego School of Law) have just published a series of three posts over at PatentlyO. These concern patenting by entreprenuers, startups, and early stage high tech companies, basically trying to understand how important patents are to these entities and why they pursue them or not.

An interesting finding is that investors might be more interested than the scientists, engineers and managers, that the entity acquire patent protection.

Part I
Part II
Part III
Original source material

Under 35 U.S.C. 271(b) “[w]hoever actively induces infringement of a patent shall be liable as an infringer.” Previously, in order to meet the requirement that one “actively induces”, one generally must have knowledge of the patent in question.

The Court of Appeals for the Federal Circuit recently found (SEB  S.A. v. Montgomery Ward & Co., PDF) that deliberate indifference to potential patent rights is equivalent of actual knowledge. To quote:

…a claim for inducement is viable even where the patentee has not produced direct evidence that the accused infringer actually knew of the patent-in-suit. This case shows such an instance. The record contains adequate evidence to support a conclusion that [one of the defendants] deliberately disregarded a known risk that SEB had a protective patent.

I wonder what this means if a company deliberately shields employees from knowledge of pre-existing patents.

[For further discussions see, for example, this link to IPWatchdog.]