CIO Briefing

Can Software Be Patented? The Supreme Court Might Finally Settle the Issue

J. Scott Applewhite/AP File Photo

For the first time in decades, the Supreme Court will take up the dispute over the patentability of software, agreeing on Friday to hear CLS Bank International's challenge to a financial software patent held by Alice Corporation Pty Ltd. While the court could end up issuing a narrow decision that only applies to this one case, it opens up the possibility of a broad new precedent on a long-controversial issue.  

Current patent law prohibits patents for abstract ideas, laws of nature, and natural phenomena. Those are broad categories, meaning that court decisions have done a lot to draw specific patentability boundaries. The Supreme Court has previously determined, for instance, that mathematical algorithms are not patentable under law. One would think that software — which at its basic level is a series of calculations — might fall under that restriction, but a later precedent set in the appeals courts allowed it. This has left the status of software patenting in a pretty messy state, something many people would like to see the court tidy up with a decision in this case.

The Washington Post's Timothy Lee explains how the Court could choose to clear things up. 

All it would need to do is to reiterate its earlier position that patents claiming mathematical processes — a.k.a. computer software — isn't eligible for patent protection unless it's tied to a specific machine or physical process. The high court will be reluctant to do this because it would be disruptive. Reiterating that mathematical algorithms can't be patented would call into question thousands of patents held by major software companies. 

Others have argued that the stakes in this case extend beyond the simple software question and into the ongoing legal debate over patent trolls. As the Electronic Frontier Foundation previously argued, the problem of software patents is key to solving patent abuse by trolls: "Software patents by their nature are vague and often broad," the EFF writes, "giving trolls a powerful tool to use to threaten lawsuits and demand licensing fees." 

The issue has also divided major tech corporations Google, Facebook, and Netflix have signed on in support of a challenge to the current software patent practice, while Microsoft and Oracle (arguably the two biggest software giants in the world) want the current protections to stay right where they are.

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// November 26
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