African intellectual property law, practice and policies. This weblog provides news, information and comment on IP law, practice and business deals right across Africa. Ce blog propose des actualités, informations, et commentaires sur la législation et la pratique en matière de propriété intellectuelle et de droit des contrats d'affaires en Afrique. For some insight into the origins of this blog click here.
Monday, 31 March 2014
Software Patents on Trial - will the USSC finally provide clarity? Part 2
The United States Supreme Court (USSC) is today hearing oral
arguments in Alice Corp v. CLS Bank,
with a decision expected in the summer. In a previous post (here),
a bit of background is given to stress the importance of this case to software
patents and to the ICT industry generally.
African/European readers may be asking, who cares what the
USSC says about software patents (other than people/companies/courts in the US)?
By far, the US has the most relaxed attitude toward software
patents, and the US patent office grants more software patents than any other
office. If the US suddenly reverses course and severely curtails the scope of
allowable subject matter in software-based inventions (and potentially
invalidates many existing software patents), courts and patent offices around
the world will take note. Some countries (e.g., New Zealand) may use the
decision to strengthen their efforts to eliminate such patents altogether.
The US Federal Circuit has made a mess of patent-eligibility
of software patents (see Patently-O here),
and the Europeans have done little better (see the excellent IPKat post here).
Readers are invited to comment on other countries (Japan, anyone?), but it
seems safe to say that patent laws were not devised with software in mind, and
the courts just haven’t yet figured out what to do about that. Courts, legislators, companies, and others around the world are surely hoping for some clarity on the matter, and there is no better place to start than the highest court in the land where software patents have been traditionally welcomed.
Clarity from the USSC would bring a new perspective into the debate about the benefits of software patents in African countries.
When it comes to uncertainty, Heisenberg said it best
In Kenya, perhaps surprisingly, a change in the patent law
in 2001 opened the door for a very liberal interpretation of patent-eligibility
of software. Pre-2001, the Kenyan patent law (like most countries) specifically
excluded software. The new patent act of 2001 lacked this exclusion, but
notably maintained other patentability exclusions. The only rational conclusion
is that software is not excluded from patentability.
Indeed, the Kenyan Industrial Property Institute (KIPI, the
Kenyan patent authority) has been issuing software patents.See, for example, KE000608 (claiming “A
security server arranged to set up communication between a merchant device and
a customer payment application”) or KE000441 (from Nokia, claiming “A method of
providing user plane traffic during a state of inactive user plane of a
connection to an access network”).
ARIPO has also been issuing software patents. See, for
example, AP2682 (directed to “a system for facilitating the initiation and/or
conclusion of an insurance contract”) or AP2668 (from Nokia and directed to “a
new method, system, apparatus and software product for dynamic gating of an uplink (UL) control channel”).
Hoping for Draconian?
So what happens if the USSC decides that the Alice Corp.
software-based patent claims are not patentable? Litigation involving software-based patents is rare in
Africa (do readers know of any?), but it’s not hard to imagine a Kenyan court
relying on the USSC to hold similar patents unenforceable.
On the other hand, patent attorneys tend to fashion
themselves as cleverer than the courts, or perhaps they are simply desperate
dedicated to find solutions for their clients.Whatever the case, it seems unthinkable that the USSC will be able or
willing to go so far as to completely eliminate all avenues for protecting
software based inventions. It was earlier court decisions that caused patent
drafters to use such absurd creative wording as “a computer readable
storage medium.” Most likely, and unless we receive a truly draconian holding
in CLS Bank, patent drafters will
continue to write software patents with wordings that are carefully tailored to
be compliant with this and other USSC decisions.