Upvotes for being the most relevant of any comment on this thread, but it just reflects what the problem is. If history is any guidance, the Federal Circuit will create something rather patent-friendly (brought to you by the team who brought you State Street Bank) and, if it's a big enough deal, SCOTUS will step in to overrule.
Of course, followers of the court will note that if recent other cases are any indication, the justices will punt on the actual question. The problem is, as Justice Kennedy notes
"the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck.
" Bilski, 130 S. Ct. 3228
Yet of course, the court is way too busy dealing with Obamacare, gay marriage and pharma inventions to care about software patents. Heck, it's their constitutional role not to actually help the software industry out of this patent war going on. Right Justice Breyer?
"In consequence, we must hesitate before departing from established general legal rules lest a new protective [patent] rule that seems to suit the needs of one field produce unforeseen results in another. And we must recognize the role of Congress in crafting more finely tailored rules where necessary" Mayo, 132 S. Ct. 1305 (2012)
Of course, as AIA showed, Congress is more worried about posturing on patents than taking any of the decisive action that those who disfavor the status quo in software patents would like to see. So instead, the industry continues doing what it's always done, finding ways to monopolize technology for profit. And the reddits, Hacker News and open sources folks of the world will complain, but it won't matter. Again and again and again, and it's just really tiring at this point.
> And the reddits, Hacker News and open sources folks of the world will complain
So here is the problem. People on Hacker News and Reddit will complain. But people at Google, Microsoft, Oracle, etc, keep filing tons of patents. From the perspective of judges and Congressmen, it seems from the outside that everything is fine (every industry, of course, has its discontents).
That's the basic problem--until you can get the big players on board, nothing will change. The Federal Circuit has its biases, but it's not necessarily a "pro patent" bias. Instead, its a pro-Big Science bias. There's nobody on the Federal Circuit from a startup background, but there are judges who used to be engineers and scientists at DuPont, Monsanto, etc. Engineers in Big Science have a different view on patents than startup folks. Their big worries are stuff like: if the Chinese blatantly rip off our technology, can we fight them in the ITC? They don't care about frivolous patent law suits, because a few million dollars here and there isn't even a drop in their legal budgets. This is not a value judgment, it's a description of the state of affairs: the balancing that seems reasonable between defending real innovation from copying and protecting small companies from frivolous lawsuits seems very different when engineering as you know it is Dow, DuPont, etc, than when it's Rackespace, Redhat, etc.
I think the most interesting thing right now at the Federal Circuit is the complete change in make up of the judges. I think President Obama has or will have appointed half of the court. In 2009, Justice Roberts stated at the Supreme Court during oral arguments for a non-Federal Circuit case, "Well, they don't have a choice, right? They can't say, I don't like the Supreme Court rule so I'm not going to apply it, other than the Federal Circuit." The Federal Circuit is not regularly being overturned any more and that may be a reflection of the new court (just a guess here).
I think some of the recent cases on reasonable royalty show a Federal Circuit trying to reform the system a little bit.
>I think President Obama has or will have appointed half of the court.
"Will have appointed" has taken on a new meaning during this presidency. The Circuit Court currently has 16 vacancies, and 6 "Judicial Emergencies",[1] meaning that there are too many cases for current judges to handle. Although Obama has made fewer nominations at this point than his predecessors, this shortage is largely because Senate Republicans hate Obama and refuse to confirm his nominations — ability of litigants to have their cases heard be damned.
Well, technically, they hate science, they hate careful discourse, and they hate themselves for being very stupid, but psychologically won't admit that and they need an object to project these feelings onto, so Obama becomes the instantiation of their bogeyman. But all points agreed with!
Of course, followers of the court will note that if recent other cases are any indication, the justices will punt on the actual question. The problem is, as Justice Kennedy notes
"the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck. " Bilski, 130 S. Ct. 3228
Yet of course, the court is way too busy dealing with Obamacare, gay marriage and pharma inventions to care about software patents. Heck, it's their constitutional role not to actually help the software industry out of this patent war going on. Right Justice Breyer?
"In consequence, we must hesitate before departing from established general legal rules lest a new protective [patent] rule that seems to suit the needs of one field produce unforeseen results in another. And we must recognize the role of Congress in crafting more finely tailored rules where necessary" Mayo, 132 S. Ct. 1305 (2012)
Of course, as AIA showed, Congress is more worried about posturing on patents than taking any of the decisive action that those who disfavor the status quo in software patents would like to see. So instead, the industry continues doing what it's always done, finding ways to monopolize technology for profit. And the reddits, Hacker News and open sources folks of the world will complain, but it won't matter. Again and again and again, and it's just really tiring at this point.
</bitter IP guy>