A Cheer for KSR?

I’m swamped with other stuff right now (What kind of dolt looks at half a dozen apartments and doesn’t check the water pressure in any of them? Yes, that would be me.), but it strikes me that the Supreme Court’s patent decision in KSR v. Teleflex may be a brilliant move to trim back software patenting. The key phrase may be that an invention is obvious and thus unpatentable if it requires only “ordinary innovation” and “does no more than yield predictable results.”

That second phrase could drive a huge wedge between software patents and other kinds. Lots of things in programming are predictable once you have the idea. If you know how to sorted list and you know how to construct a quizmarunk, then the code to construct a sorted list of quizmarunks would be a first-year programming assignment. Not necessarily easy to get exactly right, but predictable. Obvious. Consider, on the other hand, oh, say, drug patents. There, when you start analyzing a thousand potential molecules, their actual folding and interactions may be completely unknown initially. Only extensive simulation and lab work will tell you what the candidate chemicals actually do. Not necessarily easy to get right. Not predictable. Not obvious.

This is just a preliminary thought. I need to read the opinion (and not just the crib sheet at the start), and who knows how other courts will interpret it. But this could be a way of trimming back on dumb software patents without getting into the morass of defining what software is or isn’t. I’m optimistic.

A number of software groups (EFF, BSA, CCIA to some extent) filed amicus briefs in support of the petitioner in KSR. It would be interesting to see if any of the arguments in those briefs made their way into the Supreme Court’s opinion. My impression is that none of them did, although I didn’t read the opinion with software patents in mind.

I think the Supreme Court’s unanimous opinion is, unfortunately, no clearer than any of its older decisions — there’s a lot of hand-waving, without much by way of standards for future courts to follow. But I’m biased.