Three Supreme Court Briefs In Five Days

February was a busy month for me.  It resulted with EFF filing three Supreme Court merits briefs over a five day period.  The time crunch resulted when the Court agreed to hear Alice Corp. v. CLS Bank Int'l. on December 6, 2013 -- and then on January 10, 2014, the Court agreed to hear both Limelight Networks, Inc. v. Akamai Technologies, Inc. and Natuilus, Inc. v. Biosig Instruments, Inc.  All three cases are patent cases seeking review of decisions by the Federal Circuit Court of Appeals.

Because our brief in Alice Corp. supported the respondent (the winning party in the appeals court), it wound up being due on February 27, 2014.  In the other two cases, our briefs supporting the petitioners (the parties that lost) were due on March 3.

Alice Corp. discusses when abstract ideas can be patentable, under 35 U.S.C. § 101.  As applied in this case, the statute affects the patentability of business methods and computer software, an issue on which the courts have been divided.  Previously, the Federal Circuit heard the case before a panel of 10 judges to try to resolve the issue; EFF and I had filed an amicus brief in that proceeding.  However, the court was unable to decide anything precedential, splitting 5-5.

The Supreme Court agreed to hear the case to try to set a definitive precedent.  Our amicus brief in the case argues that the software industry was doing just fine without patent protection before the Federal Circuit concocted the notion of broad software patents in 1994.  As the brief put it:

"Software patents do not promote innovation in the computer software industry—in fact, the recent flood of such patents impedes innovation."

EFF's press release about our brief in Alice Corp. is here.

Limelight is another appeal from an en banc Federal Circuit case.  The case originally dealt with the issue of whether anyone is liable for patent infringement if no one person performs all the steps of the patent, that is, if separate entities perform separate steps of the claim.  EFF's amicus brief argued against joint liability for patent infringement, because joint liability could ensnare innocent third parties such as users of someone else's technology.  This time an 11 judge court, splitting 6-5, did decide something, but not the question of joint liability.  Instead, the court held that a party (Limelight) could be liable for actively inducing infringement of a method claim as long as the party induced one or more other parties to perform all the steps.

The Supreme Court agreed to review Limelight.  EFF filed a similar amicus brief as it did in the lower court which argues, among other things, that better claim drafting could avoid the whole problem.

Finally, Nautilus involves 35 U.S.C. § 112(b), which requires that patent claims "particularly point out and distinctly claim the subject matter which the inventor … regards as the invention." Here, contrary to the statute, the Federal Circuit's current rule doesn't require that a claim be either particular or distinct.  The Federal Circuit merely requires that the claim not be "insolubly ambiguous," a very difficult standard to meet.  In other words, claims aren't indefinite so long as a meaning can be ascribed—“however difficult that task may be” and even if this meaning is “one over which reasonable persons will disagree.”

EFF and Public Knowledge filed an amicus brief asking the Supreme Court to review Nautilus. I didn't work on that brief, but when the Court agreed to review the case, I worked on our amicus brief on the merits.  Our merits brief argues that vague patents harm innovation and the patent system; gives examples of patent owners drafting intentionally vague claims; and points out (as in Limelight) that better claim drafting can solve the problem.