Ken Parker in the Recorder: CLS Bank Ruling a Big Deal for Valley Software Patents


SAN FRANCISCO — A U.S. Supreme Court opinion that never mentioned the word "software" is expected to have a big impact on the software industry. Silicon Valley lawyers and academics were debating just how big on Thursday after the high court ruled in Alice v. CLS Bank International that an abstract idea does not become patent eligible merely by implementing it through a generic computer...

But Fenwick & West partner Robert Sachs, who filed an amicus brief on behalf of patent holder Alice Corp., and Haynes and Boone, LLP Partner Kenneth Parker, who represents both patent holders and accused infringers, said the reach of the opinion is less clear-cut...

Parker cited software encryption as another example. Defined down to the basics, encryption is creating a code and a key that unlocks it. Implementing the idea through a generic computer arguably may not satisfy the CLS Bank test, he said, though perhaps using a random number generator or an atomic clock to create the code would pass muster.

"There's a Potter Stewart-esque element to this," he said. "It's a net win for defendants, and particularly businesses that are being sued by nonpracticing entities. The question is how big a win is it."

Excerpted from the Recorder, June 20, 2014. To view full article, click here (subscription required).

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