Freedom of Software Speech

Intellectual Ventures is no stranger to filing appeals with the Federal Circuit when confronted with an unfavorable ruling at the district court level, though it may be kicking itself for having done so in its case against Symantec, where the Federal Circuit not only affirmed the district court’s decisions of ineligibility regarding two of the asserted patents – but also found that the remaining patent was ineligible for patenting as well.

What’s more eye-catching is a concurrence from Judge Mayer, who wrote separately to make two points: “(1) patents constricting the essential channels of online communication run afoul of the First Amendment; and (2) claims directed to software implemented on a generic computer are categorically not eligible for patent.” Indeed, Judge Mayer went so far as to note that: “Most of the First Amendment concerns associated with patent protection could be avoided if this court were willing to acknowledge that Alice sounded the death knell for software patents;” however, inasmuch as they had not, claims such as these “have the potential to disrupt, or even derail, large swaths of online communication.”

You may read the entire concurrence here.