Software Patents

On Friday the Supreme Court granted certiorari in CLS Bank v. Alice Corp, an en banc decision of the Federal Circuit that addressed the subject-matter eligibility of software patents.  I’ll have more to say about this in the coming months.  My initial impression, though, is that watching the Supreme Court handle patent cases is like watching one of those old Mr. Magoo cartoons.  The Justices stumble around and come close to disaster after disaster, but they somehow manage to avoid trouble.  We’ll see if that holds this time.

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3 Responses

  1. Jimbino says:

    Wouldn’t it be nice to have just one justice with a graduate degree in STEM or economics? Egad, they’re all of the pre-law type I knew so well who avoided all courses in STEM and Econ. We’re stuck with a bunch of humanities majors in English, History, Poly Sci, International Affairs and suchlike wishy-washy stuff.

  2. VMS says:

    The Court of Appeals for the Federal Circuit, when it was formed in 1982, was supposed to be comprised of judges with advanced technical degrees and/or significant industry experience. In its early stages, it was true to this unwritten qualification for its judges. For example, Judge Pauline Newman has a PhD in chemistry from Yale. She worked as a research scientist for American Cyanamid and then as a patent attorney for FMC Corporation.She is a major asset to the CAFC, and Judge Kimbery Moore received her BS and MS from MIT in electrical engineering. Likewise, Judge Alan Lourie has a PhD in Chemistry from U. of P. and an MS in organic chemistry and he was chief patent counsel for SmithKline Beecham.

    Many years ago at the CAFC, I independently observed oral argument in a case involving electroplating. Judge Newman asked all the right questions, and she proved (at least to me) that she knew every intricate detail of the case and she fully educated herself on the prior art in electroplating chemistry with respect to that invention.

    In contrast to the above, now Chief Judge Radar, was an English major who went right to law school after college. He then served as counsel to various committees of Congress, none of which had anything to do with patents or technology. When he started out on the CAFC in 1990, he was, in my opinion, a technological lightweight. Although he educated himself well in the legal aspects of patents by on-the-job training, his lack of practical scientific and technological knowledge and experience as a patent attorney, in my opinion, led to opinions that were not good for the patent system’s Constitutional mandate “to promote the progress of science and the useful arts,” and for certainty in the system. Many other appointments to the CAFC are likewise technological lightweights.

    What is worse, is that the Supreme Court has no one that understands the technology aspects of patents resulting in the Magoo-like floundering that we see. At least a non-technical judge of the CAFC can hire a law clerk that is proficient in technology and use him or her as a crutch, but a Justice does not have that luxury.

  3. Jimbino says:


    No disagreement there, but I must note the importance of being trained to “think like a scientist,” something I’m skeptical that a humanities major can attain through on-the-job training, regardless of the amount of knowledge he gleans. It’s a case of trying to turn a humanities sow into a mathematical silk purse. Persons over the age of 20 have great difficulty learning math and science. Thankfully, our dumb judges and justices aren’t required to decide cases based on chess!

    The pre-laws and pre-meds I knew did everything they could to avoid taking any real STEM or econ courses, lest a B ruin their chances for professional school. We need some Einsteins to deal with patents, but of course it’s our STEM-illiterates like Obama that we sadly have to rely on to appoint jurists to the bench.