In posts here on my blog on March 27 and April 3, I described how in Evolutionary Intelligence v. Sprint et al. the district court for the Northern District of California invalidated a valuable pair of what had been durable software patents—a decision that in February the Federal Circuit upheld.
Both courts erred in overlooking valid claims, although in the wake of the wacky Alice ruling, such a decision might not have been unexpected.
IPWatchdog, which readers will know as a leading intellectual property law blog that recently has been featuring extensive content about obstacles facing software patentees and smaller innovators these days, posted my letter request for amicus support on behalf of Evolutionary Intelligence on March 31.
My letter and posts point out how the decision in Evolutionary Intelligence is symptomatic of a disturbing trend in patent protection that’s upending longstanding legal doctrines and harming America’s innovating community.
Alice and AIA together now permit larger companies to infringe the patents of smaller entities virtually at will, since it’s having deep pockets that matters. Don’t have capital to defend your patents? Your IP rights go out the window. The law is no longer blind.
Responses to my letter and these posts show that many in the innovating community agree. One commenter, the founder and president of an Ohio software development company, noted:
IANAL [sic: “I am not a lawyer”], but I would support Evolutionary Intelligence because the consumer of the information generated by the method is a server operating system, which is a non-human actor, assuming the method is proven new, non-obvious, useful, and fully described. [Emphasis mine.]
This writer has noted elsewhere that the U.S. patent system is the single greatest obstacle to his company’s growth, and the source of its largest unanticipated expenses—a sobering comment on the sorry state of our patent system.
A patent prosecutor in Colorado reached out to me personally to say:
[T]his is another symptom of trying to weaken the patent system, as probably half or more of Americans have not bought into the system or are completely ignorant about how innovation protected by patents keeps us from descending into the Malthusian trap.
Malthus, you’ll recall, proposed the theory that the human population would inevitably reach a breaking point, and that population size would mean shortages of necessities—something this writer from Colorado suggests that technology helps us overcome. Malthus was off by some couple of centuries, but I’m not sure he might be proven right sooner than we think. Think Jared Diamond’s Collapse.
That’s a post for another day, maybe Doomsday. But Doomsday is nigh for too many patents. The commentator’s point is well taken: Technological innovation improves our quality of life and helps provide a better quality of life to more people. Taking patent protections away can only disincentivize innovators, with inevitable results.
Another commenter, this one on IPWatchdog, added:
As I see it, judges, be they on the SCOTUS bench or any lower [court] … do not want to do any hard work of actually understanding the invention. … [I]t is so much easier to dismiss without any evidentiary support based on the presumption that there are “mental steps”, “generic computers” and that any 2nd year engineering student can do … . This is a very sad state of affairs we are all in.
What kind of legal test asks one to try to first make a tentative conclusion without all the information and without a proper analysis, and then re-visit the same issue using proper analysis and information? It’s quite insane.
Indeed. This stance was echoed in other emails I received in support, including this one, from an intellectual property attorney:
I took a look at both Judge Whyte’s opinion, and the CAFC “opinion.” The former well illustrates the dangers of importing into 101 the notions that should properly be within the exclusive domain of 102 and 103. The latter is an example of the shabby treatment that many 101 cases now receive at the CAFC; it did not even set forth a representative claim.
I love to hear from more of you about your thoughts on this topic. Join the conversation below.
And a quick reminder: Amicus briefs in support of my petition on behalf of Evolutionary Intelligence requesting rehearing and rehearing en banc at the Federal Circuit are due on May 3, 2017. We’d greatly appreciate your consideration.