Just because you take an abstract idea and say you do it “on a computer” or “over the Internet” doesn’t mean you deserve a patent, according to an amicus brief filed on Friday by Google, Facebook and six other tech companies. It asks the courts to reject lawsuits based on patents for vague concepts instead of specific applications because they rack up costs and retard innovation.
The amicus curiae brief lets parties outside of a case volunteer information to help a court make a decision. Also cosigned by Zynga, Dell, Intuit, Homeaway, Rackspace, and Red Hat, this brief communicates information to the U.S. Court of Appeals for the Federal Circuit regarding the case CLS vs. Alice. CLS claims that Alice’s patents for the vague idea of financial intermediation implemented with a computer shouldn’t be valid. However, the courts initially ruled that Alice’s patents were eligible and could be used to counter-sue CLS for infringement.
The amici companies are trying to convince the courts that “This issue is critically important in the high-tech context” and there is grave danger to the tech industry if such lawsuits are allowed to progress. The crux of their argument is that:
“Many computer-related patent claims just describe an abstract idea at a high level of generality and say to perform it on a computer or over the Internet. Such barebones claims grant exclusive rights over the abstract idea itself, with no limit on how the idea is implemented. Granting patent protection for such claims would impair, not promote, innovation by conferring exclusive rights on those who have not meaningfully innovated, and thereby penalizing those that do later innovate by blocking or taxing their applications of the abstract idea…The abstractness of computer-related patents bears much of the blame for the extraordinarily high litigation and settlement costs associated with such patents. It is, therefore, imperative that courts enforce Section 101′ s “screening” function (Mayo, 132 S. Ct. at 1303) early in most cases, to save defendants and the courts from the unnecessary expense of fully litigating or settling cases- like this one that should be dismissed at the outset.”
Google et al. remind the court that it has previously used four guideposts to determine whether a patent does not include sufficient inventiveness, and notes that Alice’s patents fail all of these tests. The brief says Alice’s patents merely:
- Add steps that are conventional or obvious
- Add non-specific steps that don’t limit the claim’s scope
- Limit ideas to only to a particular technological environment, like a computer
- Add insufficient information to a claim and don’t specify a specific machine an idea is performed on
The companies claim that “abstract patents are a plague in the high tech sector” and that a “disturbing amount of patents” also fail these tests. Threatened by these lawsuits, innovators have to either gamble on litigation that could force them into huge settlements, or pay steep licensing fees for tech they already developed on their own. These impose a tax on innovation and lead to higher prices for consumers.
The last few years we’ve seen companies distracted from their roadmaps, paralyzed by lawsuits, and paying enormous sums for blocks of patents they could counter-sue with to protect themselves from lawsuits surrounding abstract ideas. It seems that the only ones really benefiting from current patent policy are the lawyers. A strong US and world economy relies on the ability for entrepreneurs to come up with specific ways to utilize ideas to generate value. Letting anyone claim ownership of broad ideas locks away this value.
The brief follows a big win for patent reformers as the famous “Steve Jobs patent” covering the basics of multi-touch interfaces was invalidated by the US Patent Office on Friday. It’s worth mentioning Apple did not co-sign this amicus brief.
It can be hazy as to where exactly “inventiveness” starts and an “abstract idea” stops, but the courts may do well to take the advice of these tech giants a strike down infringement lawsuits based on vague patents as early as possible.
The companies conclude “It is easy to think of abstract ideas about what a computer or website should do, but the difficult, valuable, and often groundbreaking part of online innovation comes next: designing, analyzing, building, and deploying the interface, software, and hardware to implement that idea in a way that is useful in daily life. Simply put, ideas are much easier to come by than working implementations.”
Here’s the full amicus brief filed friday by Google, Facebook, Zynga, Intuit, Rackspace, Homeaway, and Red Hat