John Paul Stevens (US Supreme Court Justice) on software patents

John Paul Stevens, or Justice Stevens, is a judge on the US Supreme Court.

Official statements

Below are excerpts from his contributions in opinions and hearings.

The Bilski hearing

(see: The Bilski hearing transcript, as text)

Replying to Bilksi's lawyer's defence of their patent, Stevens said:

But is it correct that there’s none — none of our cases have ever approved a rule such as you advocate?

And his general comments, which are critical of Bilski's patent, seems based on criteria that would also exclude software functionality claims:

I don’t understand how that can be a patent on a machine if the only thing novel is the process that the machine is using. Isn’t — isn’t the question — really, the question there was whether the new process was patentable.

and:

I don’t understand why that isn’t just the application of a process, which – which is not itself patentable subject matter, to a particular machine that can use process

and finally:

It’s not on a computer, which the only difference from the old computer is it’s using a new program. You can’t say that’s a new machine.

Note: in US patent legislation, "processes" and "machines" are patentable, so defenders of software patents always have to argue that their invention is one of these.

Microsoft v. AT&T (2006, USA)

Stevens wrote a dissenting opinion in this case. Some argue that the following text indicates that he might now consider software functionality as patentable.

I disagree with the Court’s suggestion that because software is analogous to an abstract set of instructions, itcannot be regarded as a “component” within the meaning of §271(f). See ante, at 9–10. Whether attached or de-tached from any medium, software plainly satisfies the dictionary definition of that word. See ante, at 9, n. 11 (observing that “‘[c]omponent’ is commonly defined as ‘aconstituent part,’ ‘element,’ or ‘ingredient’”). And unlike a blueprint that merely instructs a user how to do some-thing, software actually causes infringing conduct to occur.It is more like a roller that causes a player piano to pro-duce sound than sheet music that tells a pianist what todo. Moreover, it is surely not “a staple article or commod-ity of commerce suitable for substantial noninfringing use” as that term is used in §271(f)(2). On the contrary, its sole intended use is an infringing use.

External links

• Exploring Justice Steven’s Patent Past for Clues
• Wikipedia: John Paul Stevens