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Revision as of 11:46, 25 March 2014

News: The US Supreme Court has taken this case and is expected to rule by June 2014.

CLS Bank International v. Alice Corporation Pty. Ltd. is a patent dispute which raises questions of whether (or when) software can be patentable subject matter. The US Supreme Court has now agreed to hear this case, to respond to the question:

Whether claims to computer-implemented inventions – including claims to systems and machines, processes, and items of manufacture – are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court.

This is big! Much bigger than Bilski (which was a business method patent and we had to hope the ruling would have an effect on software).

The case was already heard twice by the CAFC. For analysis of the second ruling, en banc, see CLS Bank v. Alice ruling by US CAFC on 8 May 2013.

Background

Alice accused CLS Bank of infringing four patents. CLS Bank filed for declaratory judgement of non-infringement or invalidity. The district court found Alice's patents to be invalid but on appeal, the US CAFC overturned that judgement. As of January 2013, the CAFC is preparing a second hearing of this case, en banc (all judges, instead of just a 3-judge panel).

For analysis of the CAFC en banc ruling, see CLS Bank v. Alice ruling by US CAFC on 8 May 2013

Amicus briefs for CAFC en banc

Are there any briefs that support abolishing software patents? I didn't find any in the 18 briefs posted by Patently-O on 19 December. Patently-O added that "briefing continues" and that the briefs supporting Alice are due in January 2013, but if all the remaining briefs support Alice then we won't find any anti-swpat arguments in those briefs.

I've read conflicting information about the deadlines for submitting briefs (discussed below).

Some summaries and excerpts of the briefs can be read in Patently-O's article and Groklaw's article.

  1. Business Software Alliance (See also: Business Software Alliance)
  2. EFF (See also: Electronic Frontier Foundation)
  3. CCIA (See also: CCIA)
  4. Clearing House Ass'n
  5. Google (and Red Hat) et al. (See also: Google, Red Hat)
  6. Stites
  7. British Airways
  8. Profs Hollaar & Trzyna
  9. Juhasz law firm
  10. Philips (See also: Philips)
  11. Internet Retailers
  12. IP Owners Ass'n
  13. USA govt. (See also: US government)
  14. Sigram Schindler
  15. NY IP Law Ass'n
  16. IP Law Ass'n of Chicago
  17. Conejo Valley Bar Ass'n
  18. IBM (See also: IBM)

Review of a few briefs

Google, Facebook, Red Hat, et al.
This brief makes good points, but its suggestions still allow that "claims limited to a particular computer implementation of an abstract idea might be patentable subject matter".
EFF 
Places the blame on overly-broad patents.

Deadline for the en banc hearing

Can someone help reconcile these conflicting sources of information on the deadline for filing an amicus brief?

  • A lawyer told me the deadline was 45 days after the en banc order, which would make the deadline 22 Nov 2012
  • The en banc order says to see Rules of Practice, Rule 29, and that rule's "practice notes" say to see Rule 31(a), which says "In an appeal from a court, the appellant must serve and file its initial brief within 60 days after docketing.", which would be 9 December 2012 (if "docketing" happens on the day of the en banc order).
  • But the en banc order was 9 Oct and yet US govt filed their brief on 14 Dec, and Patently-O said on 19 Dec that "briefing continues"

So what was the deadline? Or is it still open??

Timeline

Newest first, dates as YYYY-MM-DD, just the highlights:

  • 2013-12-06: US Supreme Court agrees to hear the case
  • 2013-05-08: CAFC, en banc, invalidates the patent but can't agree on why (see: ruling)
  • 2012-11-22: Deadline for submitting amicus brief for the en banc rehearing (right? 45 days after the en banc order)
  • 2012-10-09: CAFC vacates own 9 July opinion and agrees to rehear case en banc
  • 2012-07-09: CAFC publishes opinion in this appeal ("panel decision"): upholds the patent
  • 201?-??-??: Appeal filed to CAFC; granted
  • 2011-03-09: District court enters final judgement: invalidates the patent
  • 2010-02-02: CAFC denies petition for interlocutory appeal
  • 2007-05-??: CLS Bank files suit for declaratory judgement of non-infringement or invalidity
  • 200?-??-??: Alice accuses CLS Bank for infringement

For more complete timelines, see the court rulings and amicus briefs, particularly the CAFC's 9 July 2012 ruling: [1].

Related pages on ESP Wiki

External links

Court documents

Patently-O's coverage

Newest first...