Is the SFLC Tilting at Windmills?

I’ve got a new article up at Ars on AT&T v. Microsoft:

The Software Freedom Law Center filed an amicus brief urging the court to take this line of reasoning even further. The courts have long held that laws of nature, abstract ideas, and mathematical algorithms are not eligible for patent protection. Software is nothing more than a description of a mathematical algorithm. Therefore, the center asks the courts to declare that software is not eligible for patent protection on that basis.

The brief, written by SFLC counsel Eben Moglen, argues that the Court of Appeals for the Federal Circuit, which has had jurisdiction over all patent cases since it was created in the 1980s, has gone off the rails in recent years. Moglen claims that the federal circuit has misread the Supreme Court’s precedents on the patentability of software from the 1970s and early 1980s in a way that removes almost any limit on the scope of patentable subject matter.

During oral argument, several justices seemed sympathetic to this argument. Although none of them mentioned the SFLC brief specifically, Justice Breyer and Justice Stevens both asked Daryl Joseffer, who was arguing for Microsoft on behalf of the Bush administration, whether software is patentable. And Justice Scalia asked Theodore Olson, Microsoft’s lawyer, “You can’t patent on-off, on-off code in the abstract, can you?” Both Mr. Olson and Mr. Joseffer agreed that you could not do so.

But even if some of the justices are uncomfortable with the idea of patents on software, it seems unlikely that the court will vote to strike down software patents entirely. The legal status of software patents was not the focus of the arguments in the case, and the justices will be reluctant to issue a sweeping ruling on the patentability of software without giving the issue a thorough hearing. Moreover, companies now earn billions of dollars from their software patent portfolios, and the court will be reluctant to reverse legal principles on which companies have relied for a decade or more, even if those principles have never been endorsed by the Supreme Court.

It’s a shame, because even though I think the SFLC has a strong argument as a matter of law, the Supreme Court is likely to give considerable weight to stare decisis in this sort of situation. So even if the Supreme Court were to take a case to squarely consider the patentability of software, I think we’d have an uphill battle convincing the justices that it’s worth the upheaval that would result from invalidating hundreds of thousands of software patents.

The only way the court is likely to go for that is if it is convinced that the consequences of continuing to allow software patents would be even worse. Maybe a few more high-profile patent trolling cases with 8 zeros behind them will convince the court that this is a serious enough problem to overturn the Federal Circuit’s software patent jurisprudence despite firms’ reliance on those decisions over the last decade.

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