Recent Attack on the Federal Circuit is Factually Inaccurate

Software patents can be a prickly subject. Groups such as the GNU project and Free Software Foundation are vehemently anti-patent, claiming that software patents have a chilling effect. Others argue that the patent system instead acts as a net positive on innovation, and as evidence point to the greater overall success of countries with patent systems. While thoughtful debate in this regard is welcomed, occasionally clearly biased articles masquerading as journalism make their way into reputable news sources.

For example, the online publication Ars Technica recently published an article by Timothy B. Lee declaring that a single appellate court, the Court of Appeals for the Federal Circuit (CAFC), wrecked the patent system. Lee argues that the creation of the CAFC in the early 1980’s, a move intended to increase the uniformity of patent law, was disastrous. As the sole arbiter of patents, the CAFC effectively disregarded Supreme Court precedent by upholding patent holder’s rights in the vast majority of cases involving software patents. The article further claimed that software patents were generally considered ineligible for patent protection following a trio of cases by the Supreme Court a decade before the CAFC existed. The problem, however, with many of Lee’s claims is that they are demonstrably untrue.

As outspoken blogger Gene Quinn at IPWatchDog.com colorfully pointed out in a reaction piece, Lee grossly mischaracterized many of the judicial decisions regarding software patents. The trio of Supreme Court cases cited by Lee (Benson, Flook, and Diehr) indeed involved patents that claimed software elements. And, while the methods claimed in Benson and Flook were held patent-ineligible because they preempted the use of an abstract idea, the software-driven process of curing rubber in Diehr (and its incorporation of the Arrhenius equation was held to be patentable.

With the Diehr decision, the Supreme Court acknowledged that software, at least in some forms, was worthy of a patent. Recently, the Supreme Court has specifically acknowledged the patentablity of software in Bilski v. Kappos, a case which also put to rest any questions regarding a “business method exception” for patents.

Lee responded to Quinn’s article in a blog posting, again claiming that the CAFC, and not the Supreme Court, legalized software patents. In his post, he failed to address the Bilski decision and continued to mischaracterize Diehr. In response, Quinn had further kind words.

There are problems with the current patent system. Often, obvious claims are able to make their way through the patent office, which may be only found invalid after lengthy (and expensive) litigation. But to assert that these problems lie with a single appellate court is factually incorrect. Lee’s article is a clearly erroneous attack on the CAFC, one explained either by ignorance, or a biased agenda.