Professor Robin Feldman, along with her Team at the Institute for Innovation Law, submitted an Amicus Curiae Brief in the Case of Alice Corporation Pty. Ltd. v. CLS Bank International

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Key points include:

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.

The full brief can be found here.

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