The CLS decision is not as pointless as you suggest. In fact, there is a fair degree of agreement between the decisions that actually is good for patentees, including software patent holders.
First, the majority of judges agree that the presumption of validity applies to Section 101. See Lourie at 23, and Radar at 26. This means that a defendant can't kill a software patent on a motion to dismiss, and without facts (e.g., expert testimony).
Second, the majority of judges agree that the key question is "preemption": does the claim cover all practical applications of the idea. They agree that this comes down to a question of the scope of the claim relative to "practical" and "real world effects". The judges all look for "meaningful limitations". Where the judges disagree is how you do that analysis, on what counts as "meaningful."
Even Lourie (who found all the claims ineligible) requires that the claim "wholly preempt" all "practical uses" of the idea. I would argue that a defendant has to prove that it could not practice the abstract idea without infringing. The patentee need only show that its possible to do that, because there is some limitation in the claim that is not required to practice the "big idea." In general, given a broadly stated "abstract idea" any good engineer can show that there is some limitation in the claim that is not required to implement the abstract idea. In that case, the defendant loses.
Your quotation above that "generic computer automation" should kill lots of software patents is not correct. Most software patents are not mere computer automation of an existing idea practiced in real life. Certainly there are plenty, but they are the minority. They may be more visible because they are more likely to be contested and result in litigation, but that's a biased sample.
More fundamentally, the underlying logic of this view is at odds with the law and I would argue, common sense. It has never been the case that an invention is ineligible because it is "automation" or because it uses conventional mechanisms. It may be obvious, but it's still eligible for patenting. Indeed, caselaw going back over a 100 years, and the modern patent law, specifically allowed for inventions that were new "uses" of existing machines, which arguably covers the "mere" computerization of an existing process.
Further, this thinking is "biased" against computers for no apparent reason. More specifically: would you deny patent eligibility to someone who used conventional pulleys and gears and levers and springs etc. in a new way to lift a stone? No, you would say that qualified as eligible for a patent, and then decide whether it was obvious. If you would not discriminate against other types of "hardware" that can be reconfigured and repurposed, then you should not discriminate against computer hardware which is reconfigured and repurposed by software.
One of the hallmarks of our patent system is that it is technology agnostic: it does not dictate which technologies are a priori worthy of protecting and which are not. It lets in all comers and thus does not bias the path of technological innovation. Imagine if in the 1920s or so, the Supreme Court decided the inventions that used electricity were merely applying a "natural law" or "natural phenomena" and therefore no electrical device was eligible for patent protection? Maybe you would say that we'd be better off--but there is no evidence for that. Indeed, the historical record is that Edison, Westinghouse, and many others relied on patents in order obtain financing and maintain profits for further research and development.
Not What It Appears
First, the majority of judges agree that the presumption of validity applies to Section 101. See Lourie at 23, and Radar at 26. This means that a defendant can't kill a software patent on a motion to dismiss, and without facts (e.g., expert testimony).
Second, the majority of judges agree that the key question is "preemption": does the claim cover all practical applications of the idea. They agree that this comes down to a question of the scope of the claim relative to "practical" and "real world effects". The judges all look for "meaningful limitations". Where the judges disagree is how you do that analysis, on what counts as "meaningful."
Even Lourie (who found all the claims ineligible) requires that the claim "wholly preempt" all "practical uses" of the idea. I would argue that a defendant has to prove that it could not practice the abstract idea without infringing. The patentee need only show that its possible to do that, because there is some limitation in the claim that is not required to practice the "big idea." In general, given a broadly stated "abstract idea" any good engineer can show that there is some limitation in the claim that is not required to implement the abstract idea. In that case, the defendant loses.
Your quotation above that "generic computer automation" should kill lots of software patents is not correct. Most software patents are not mere computer automation of an existing idea practiced in real life. Certainly there are plenty, but they are the minority. They may be more visible because they are more likely to be contested and result in litigation, but that's a biased sample.
More fundamentally, the underlying logic of this view is at odds with the law and I would argue, common sense. It has never been the case that an invention is ineligible because it is "automation" or because it uses conventional mechanisms. It may be obvious, but it's still eligible for patenting. Indeed, caselaw going back over a 100 years, and the modern patent law, specifically allowed for inventions that were new "uses" of existing machines, which arguably covers the "mere" computerization of an existing process.
Further, this thinking is "biased" against computers for no apparent reason. More specifically: would you deny patent eligibility to someone who used conventional pulleys and gears and levers and springs etc. in a new way to lift a stone? No, you would say that qualified as eligible for a patent, and then decide whether it was obvious. If you would not discriminate against other types of "hardware" that can be reconfigured and repurposed, then you should not discriminate against computer hardware which is reconfigured and repurposed by software.
One of the hallmarks of our patent system is that it is technology agnostic: it does not dictate which technologies are a priori worthy of protecting and which are not. It lets in all comers and thus does not bias the path of technological innovation. Imagine if in the 1920s or so, the Supreme Court decided the inventions that used electricity were merely applying a "natural law" or "natural phenomena" and therefore no electrical device was eligible for patent protection? Maybe you would say that we'd be better off--but there is no evidence for that. Indeed, the historical record is that Edison, Westinghouse, and many others relied on patents in order obtain financing and maintain profits for further research and development.
For a detailed analysis of the CLS opinions see http://www.bilskiblog.com
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