The software industry is at a crossroads. The issue of whether or not software can be patented has reached the Supreme Court, and the Court’s decision will have wide-ranging ramifications across the technology sector. 

What makes this issue so important? How are technology patents different from other types of patents? And what does the future hold?

I asked these questions and more to Greg Winsky, of counsel at Archer & Greiner. Winsky has a great deal of experience in this area, having been general counsel for the Franklin Computer Corporation in the 1980s. It was involved in one of the first IP cases with Apple, showing that operating system programs can be copyrighted. There were patents involved in the case as well, patents that were tied to hardware such as monitors.

Winsky said that the first issue is that there has been no clear guidance on how to determine whether or not a software-based invention meets the test of Section 101 of the Patent Act, whether an invention is actually patentable. The Federal Circuit has been divided on this, and now the Supreme Court can offer clarity as to how the determination should be made.

The Supreme Court, of course, does not generally take a lot of patent cases. It has made some recent rulings, including the Bilski case, which addressed business methods, and the Prometheus case, which dealt with subject matter patentability. In the current case, Alice Corporation Pty. Ltd. v. CLS Bank International,  there are three patents in question, two of which are process or method patents and the third of which is a system patent.

In the second part of this series, we’ll discuss a bit more about how software patents are different from other types, the role of copyright, and what impact this ruling could have on large companies.


In the meantime, check out the following stories:

AIPLA taps Lex Machina for legal analytics

Apple, Samsung patent cases offer big payout for IP lawyers

Supreme Court to rule on software patent protection