Recent Cases: Federal Holding Helps Protect Software Developers
Author: Eric Everson, MBA, MSIT-SE (Juris Doctorate
Candidate, May 2013)
As a software engineer turned law student, I know first-hand
how difficult it can be to protect your software in the marketplace. By its nature, software is difficult to
protect, but a recent Federal Court Ruling provides new teeth to the
patentability of software.
The case is Ultramercial,
LLC v. Hulu, LLC, 657 F.3d 1323 and the new teeth come in the form of a new
two prong test aimed at helping developers protect their software. This case hinged on the principle of the patentable
subject matter test, which is essentially serves a screening function in patent
law. Traditionally, software has been analyzed
under a “machine-or-transformation” Under that test, a computer program was
patentable if and only if “(1) it [was] tied to a particular machine or
apparatus, or (2) it transform[ed] a particular article into a different state
or thing.” The leading case on this
subject has been The Supreme Court case, Bilski
v. Kappos
Ultramercial, put
took Bilski’s to a new level
improving greater patentability of computer programs by identifying and
applying two new factors: (1) the programs’ requiring complex computer
programming and (2) the programs’ use of the internet and of a cybermarket
environment. This development stands to
help software developers secure patentability while giving them greater
leverage against patent infringement.
What we haven’t seen in the case law to date is how this new
test will be applied to the mobile applications software environment. Nonetheless, there are several apps that I can
think of that fall perfectly under this new umbrella of software
patentability. This comes as great news
as the software industry has recently taken aim on improving intellectual
property positions.
Ref:
Harvard Law Review, Vol. 125:2167, PATENT LAW — PATENTABLE SUBJECT
MATTER — FEDERAL CIRCUIT APPLIES NEW FACTORS IN DECIDING PATENTABILITY OF A COMPUTER
PROGRAM. — Ultramercial, LLC v. Hulu, LLC, 657 F.3d 1323
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@IntleDiscovery
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About the Author: Eric
Everson is a 3L law student at Florida A&M University – College of
Law. Prior to law school he earned an
MBA and Masters in Software Engineering while working nearly ten years in executive
leadership positions within the U.S. telecommunications industry. The views and opinions presented in this blog
are his own and are not to be construed as legal advice. Eric Everson currently serves on the Board of
Governors for The Florida Bar Young Lawyers Division Law Student Division and
is the President of the Electronic Discovery Law Student Association at Florida
A&M University – College of Law.
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