On Monday, March 31, 2014, the U.S. Supreme Court heard arguments in a patent case that could be critical to the computer software and related industries. The case, Alice Corporation Pty. Ltd. v. CLS Bank International, No. 13-298, addresses whether inventions based on computer software, such as processes controlled by computers, are eligible for patent protection.
“Although the Supreme Court will hear five patent cases this term, the CLS Bank case is the most important because it could have such a profound effect on so many industries,” noted Professor David C. Berry, Director of Thomas M. Cooley Law School’s Graduate Program in Intellectual Property Law. “Many companies in the computer software, financial services, and internet-based industries, among others, have used patents to protect their key software-related technologies. The Court’s ruling could call into question the validity of many thousands of patents already issued, and could block the Patent Office from granting other patents in the future.”
The CLS Bank case is the latest Supreme Court case testing the scope of protection available under 35 U.S.C. § 101 of the Patent Act. That section provides for broad protection of inventions, subject only to exclusions for laws of nature, natural phenomena, and abstract ideas. During recent terms, the Supreme Court has issued decisions interpreting each of these exclusions.
In CLS Bank, the Court will consider whether an invention that uses a computer to manage risk in financial transactions is an unpatentable ”abstract idea.”
The judges on the lower court, the U.S. Court of Appeals for the Federal Circuit, were unable to agree on a workable test to distinguish between computer-related inventions that are merely abstract ideas, and those that are patentable applications of those ideas. In CLS Bank, the Supreme Court will revisit the abstract idea exception and may provide additional guidance on what may be patented to the courts, U.S. Patent and Trademark Office, and inventors.
Professor Berry is an expert with over 20 years of experience in patent law and patent litigation. He graduated from the University of Michigan in 1982 and University of Michigan Law School, cum laude, in 1987. Before joining Cooley in 2002, he was a partner in the Boston, Massachusetts law firm of Testa, Hurwitz & Thibeault LLP, a 400-plus attorney firm with a national practice in venture capital and technology law.
While in practice he represented technology clients in a variety of industries, and was responsible for all aspects of patent and related technology litigation, including bench and jury patent trials and successfully arguing before the U.S. Court of Appeals for the Federal Circuit. He is admitted to practice in Michigan, Massachusetts, and is a registered patent attorney before the U.S. Patent and Trademark Office.
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