UCHastings Instagram

          The 134th UC Hastings College of the Law commencement is coming up fast! #Scrolls #UCHastings2015
          Instagram Photo Likes heywheresgina, aoverhouse, emiliol89 and 35 others like this.
          Wednesday, January 29, 2014

          Regarding the Patentability of Software

          Professor Robin Feldman Files Brief in US Supreme Court case CLS Bank v. Alice.

          Sample alt tag.
          Professor Robin Feldman testifying before House Committee on Energy & Commerce.

          Robin Feldman, Professor of Law and Director of the Institute for Innovation Law at UC Hastings, has filed an amicus brief at the US Supreme Court in CLS Bank v. Alice, addressing the patentability of software.

          Key Concepts

          In addition to the brief (click here to download the brief), Professor Feldman has provided this writeup:

          • Computers, unfortunately, don’t speak English. Software translates human language into numerical code that computers understand. Like words in any language, software can be a translation of a law of nature or it can be a translation of an applied invention.
          • When patentability of pure software arose in 1994, the Federal Circuit misinterpreted the Supreme Court’s early cases related to patentability of inventions integrated into hardware.
          • The Federal Circuit’s mistake has spawned 2 decades of software patents that can be no more than an abstract idea. These patents focus on the result of the invention, rather than the steps taken to get there—an approach that would be summarily rejected for other types of inventions.
          • Fixing this test is critical in light of modern strategic behavior in patenting—whether patent trolling or patent wars. Software patents, and their cousin business method patents, now typically cover a vast swath of territory, well beyond what the patent holder has contributed to society, making them a weapon of choice.
          • Part of the Federal Circuit’s error relates to confusion between the content of something that is being expressed and the language in which it is expressed. Laws of nature, such as Einstein’s E=MC2 , are often expressed in formulaic language. The fact that computer programs are expressed in formulaic language that looks somewhat like math does not mean, however, that the concepts underlying a particular program are analogous to a law of nature. The courts must look at the underlying content of what is being expressed.
          • As I have noted in writings outside the brief, Comic books and the Constitution may be written in the same language, but they are vastly different types of documents.
          • This case presents a historic opportunity to create cohesion in patentable subject matter doctrines throughout all fields of innovation—whether the invention relates to products or processes, business methods or biotechnology.
          • The key is to ask whether the subject matter of the patent creates preemption problems and whether the patent is appropriately aimed at a specific commercial application, rather than a law of nature or a broad, abstract concept.

          ###

          Go to News Archive

          Share this Story

          Share via Facebook
          Share via TwitterShare via EmailPrint Friendly Version

          Other Recent Stories/ RSS

          Friday, April 24, 2015

          Thinkers & Doers: April 24, 2015

          UC Hastings community members in the news and making moves, April 17, 2015 - April 24, 2015.
          Tuesday, April 21, 2015

          Outstanding: Results from the 2015 Student Giving Campaign

          Campus groups benefit from matched donations of $9,000.
          Tuesday, April 21, 2015

          Justin Buell '09 Finds Truth in Photography

          Following his passion after running a successful political consulting firm.
          Monday, April 20, 2015

          3Ls Crowned National Champions at Prince Evidence Moot Court Competition

          It's the second win in three years for the moot court.
          Friday, April 17, 2015

          3Ls Hayley Reynolds & Daniel Zarchy Win at Ninth Circuit

          Case presents novel issue of whether witness tampering is categorically a crime involving moral turpitude for purposes of federal immigration proceedings, writes Stephen Tollafield, Professor & Associate Director, Legal Writing & Moot Court Department.
          Go to News Archive