WIPR survey: Alice not death knell for software patents, say readers

WIPR readers have disagreed with a federal circuit judge who said that Alice v CLS Bank “sounded the death knell for software patents”.

Circuit Judge Haldane Mayer’s opinion was in the case of Intellectual Ventures v Symantec and Trend Micro, which was decided on September 30.

Mayer said that software patents erect “often insurmountable barriers to innovation” and force “companies to expend exorbitant sums defending against meritless infringement suits”.

He also said that patents constricting the essential channels of online communication breach the First Amendment.

“Most of the First Amendment concerns associated with patent protection could be avoided if this court were willing to acknowledge that Alice sounded the death knell for software patents,” he said.

Additionally, he said that claims directed to software implemented on a generic computer are categorically not eligible for patent protection.

Responding to WIPR’s recent survey, 100% of readers disagreed with Mayer’s opinion.

One reader said: “There is some hope after McRo v Bandai Namco Games, but it is subjective hope wherein ‘innovation’ determination is left up to the viewer or judge—and relies on the economics of the court to support a patent case and personal decision making.”

McRo is only the fourth decision of the US Court of Appeals for the Federal Circuit to reverse a lower court’s holding of patent eligibility since the Alice decision, according to a blog by law firm Banner & Witcoff. The ruling was decided on September 15.

For this week’s survey question, we ask: “Last week we reported that the owners of BrewDog, a UK brewery, changed their name by deed poll to Elvis after receiving a trademark complaint from the late singer’s estate. Tell us about the most creative responses you have had to an IP infringement complaint.”