Software Patents: Historical Decision by the US Supreme Court on the Limits of Patentability

Paris, Jun 20th, 2014. Press release.

On June 19th, 2014, the US Supreme Court finally set limits to software patentabilty. In a unanimous decision, the judges rejected patent claims in Alice v. CLS Bank. Just like the Free Software Foundation, April applauds this decision, which, though it concerns only the US, is a strong signal against software patents. April also underscores that this Supreme Court decision exposes the importance of being able to turn to a general and independent court, regarding the question of patents, to limit the excesses of specialized courts - and fears the absence of such a protection in the context of the future European unitary patent.

Although the decision does not explicitly mention software patents1, it reduces the field of patentability, by stating that the fact that an abstract idea is applied by means of a computer is not sufficient to render it patentable. This contradicts a too expansive interpretation the US court specialized in patents (called Court of Appeal of the Federal Circuit, CAFC) rendered on a former Supreme Court decision, Diamond v. Diehr, which considered that an invention is patentable as soon as it is implemented by a computer2.

"This decision is excellent news for computing in general and for free software in particular," », explains Jeanne Tadeusz, April's manager of public affairs. "This reactivates the fundamental principle according to which ideas are free to be used, that is to say that it's their material application that has to be REGULATED by the law. The mere computer implementation is not sufficient to render it patentable."

If this does not explicitly forbid all software patents, it allows at least to circumscribe them. April is delighted with this decision, but also underlines the importance of having a supreme general jurisdiction that is not included in the microcosmos of patents. Indeed, specialized courts had all validaded this type of software patent; only the Supreme Court invalidated them. The parallels between this system and the one proposed by the European unitary patent underscores the dangers of the latter: with only specialized jurisdictions, populated by patent specialists, the future European system runs the risk of not allowing such refocus on patentability.

"The software-patent floodgates were opened in the US because the CAFC interpreted Diamond v Diehr as allowing the patentability of a computer-implemented process, for the sole reason that a computer is involved" explains Gérald Sédrati-Dinet, April's patent specialist. "The Supreme Court says here that this interpretation is wrong. When the Unified Patent Court (UPC) in Europe will state that a software product is patentable because it is technical, then some software products should be considered technical, while others, being conversely ”software as such”, should not. And no Supreme Court will be able to fix this and reaffirm that obviously software is software, period. There is no distinction to be made between some software which would be technical, and other which would not."

"Mobilization against software patents continues," concludes Frédéric Couchet, April's managing director. "This decision is good news, but a reform of the patent system is not sufficient. We have to obtain an outright ban on software patents, which are a grave danger, particularly for the right to code."

April will continue the work it has been conducting for almost 15 years against the dangers of software patents and against the confiscation of knowledge by a few large monopolies, and needs the support and participation of everyone and every organization opposed to software patents.

Quote of the Supreme Court elaborating on the danger of software patents:

We must distinguish between patents that claim the “buildin[g] block[s]” of human ingenuity and those that integrate the building blocks into something more, thereby “transform[ing]” them into a patent-eligible invention. The former “would risk disproportionately tying up the use of the underlying” ideas, and are therefore ineligible for patent protection. The latter pose no comparable risk of pre-emption, and therefore remain eligible for the monopoly granted under our patent laws.

About April

A pioneer of Free Software in France since 1996, April is a major player in the democratisation of Free Software and open standards, and in their spread to the general public, professionals and institutions of the French-speaking world. In the digital era that is ours, it also aims to inform the public on the dangers of an exclusive appropriation of information and knowledge by private interests.

The organisation is a non-profit and it has over 4,000 members, who use or produce Free Software.

For more information, you may visit http://www.april.org/, contact us by phone at +33 1 78 76 92 80, or use our contact form.

Press contacts:

Gérald Sédrati-Dinet, volunteer Patent Counsel, gibus@unitary-patent.eu +33 6 60 56 36 45
Jeanne Tadeusz, Public Affairs Officer, jtadeusz@april.org +33 1 78 76 92 82
Frédéric Couchet, Executive Director, fcouchet@april.org +33 6 60 68 89 31

• 1. For more information on software patents and their threats, read our summary (in French).
• 2. "the claims in Diehr were patent eligible because they improved an existing technological process, not because they were implemented on a computer".