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Case law in the USA

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The US Supreme Court made rulings in the 80s and 90s that were interpreted as allowing software patents, however, none of these rulings dealt with the question explicitly. A 2007 ruling in KSR v Teleflex indicated that the scope of patenting was to be narrowed. A 2008 ruling of the Federal Circuit court in re Bilski introduced the machine-or-translation test which narrows or closes the scope for patenting software ideas.

The Supreme Court have decided to review the Bilski ruling in late-2009/early-2010 and are accepting amicus briefs.


Of historical interest

O'Reilly v. Morse, 1853

Gottschalk v. Benson, 1972

Parker v Flook, 1978

  • Full name: Parker v Flook, 437 U.S. 584 (1978)
  • Wikipedia: Parker v. Flook

The 80s and 90s rulings which opened floodgates

Diamond v. Diehr, 1981

  • Full name: Diamond v. Diehr, 450 U.S. 175, 192 (1981)
  • Wikipedia: Diamond v. Diehr

At issue in this case is a system for curing rubber with the aid of a computer and some mathematical formulas. The Supreme Court upheld the patent and this ruling is generally seen as increasing the scope for the patenting of software.

Others, such as Ben Klemens, argue that the ruling confirms that software ideas are not patentable. (See ESP's 2008 Bilski amicus brief)

The ruling also confirms that "excluded from such patent protection are ... abstract ideas.".

Recent rulings which question swpats

KSR vs Teleflex

KSR Int'l Co. v. Teleflex Inc., 127 S. Ct. 1727 (2007)

Bilski, 2008

(detailed article: Bilski)

Unsorted cases

AT&T Corp. v. Excel Communications Inc., 172 F.3d 1352, 1356­59 (Fed. Cir. 1999)

Ex parte Yang-Huffman, Appeal 2007­2130, slip op. at 3 (Bd. Pat. App. & Interf. Oct. 4, 2007)

Graham v. John Deere, 383 U.S. 1, 6 (1966)

In re Alappat, 33 F.3d 1526, 1543 (Fed. Cir. 1994)

Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc., 548 U.S. 124 (2007)

NTP v. Research in Motion, Ltd., 397 F. Supp. 2d 785 (E.D. Va. 2005)

Northern Telecom v. Datapoint, 908 F.2d 931, 940-941 (1990)

State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368, 1374 n. 6 (Fed. Cir. 1999)

See also

External links