Amicus Curiae: Alice v. CLS Bank

February 27, 2014

On March 31, 2014 The Supreme Court of the United States heard oral arguments in the case of Alice Corp. v. CLS Bank International. The issue at stake in this case is whether patents on software are valid under U.S. law. Opponents of software patents, like the SFLC, hope that the court will take this opportunity to reaffirm that software standing alone is not patentable subject matter.

The SFLC has compiled the following background material to CLS Bank .

Highlights of the Briefs

Forty one amicus briefs have been submitted to the court thus far: Twenty are in support of neither party, three are in support of the patentee, Alice Corp., and eightteen are in favor of the alleged infringer CLS Bank. Additional amicus briefs in support of CLS Bank will be made available shortly.

We have also collected the briefs together into a Zotero formatted archive for convenience.

Our Brief

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As a legal services organization for free and open source software (FOSS), we filed a brief along with the Open Source Initiative and the Free Software Foundation in support of the respondent arguing: (1) that all software is unpatentable under Supreme Court precedent, (2) that software patenting reduces the level of innovation in software, and (3) that constitutional limitations from the First Amendment prevent Congress from making patent law that covers mental steps, basic ideas, or algorithms.

Additional Briefs in Support of Respondent

American Civil Liberties Union – Respected advocacy organization the ACLU, paralleling arguments presented in the brief submitted by SFLC, OIN and FSF, calls to the Court's attention the limitations placed on patenting abstract ideas by the First Amendment. The ACLU argues that the patenting of abstract ideas amounts to an unconstitutional government grant of monopoly in thought and speech. The ACLU insists that patent law is compelled to accommodate First Amendment concerns through limitations on patentable subject-matter just as copyright law must accommodate the First Amendment through the doctrine of fair use and the idea/expression distinction. The ACLU also emphasizes that claims to software-implementation amplify rather than reduce the First Amendment implications of a patent because software claims are in effect a restraint on programming code as a medium of expression. (pdf)

In Support of Neither Party

IBM – One of the world's largest patent holders argues against a simple rule that would deny patent eligibility to software claims. IBM instead advocates for concerns over software patents to be resolved with a case-by-case examination of non-obviousness. [pdf]]

IEEE – A leading standards organization in the field of IT argues that software patenting provides incentives for engineering innovation, and cautions against what it predicts will be severe economic harm in the event that patent protection for software is denied. [pdf]

Retailers - A group of retailers including Newegg, Warby Parker, Macy's, the National Restaurant Association, and QVC amongst others, each of whom has been sued for patent infringement relating to their computerized retailing activities, urged the Court to establish a simple rule that an otherwise abstract patent does not become patent eligible as a result of computer-implementation. The retailers bring to the attention of the Court the practical costs faced by defendants in software patent ligitations and urge to court to adopt their proposed rule as a "threshold test for patentability." [pdf]

In Support of Petitioner

Trading Technologies – A financial services software company takes a position strongly in favor of the general patent eligibility of claims on software. [pdf]