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The problem: actual - but which actual law? | 457 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The problem: actual - but which actual law?
Authored by: PolR on Monday, June 10 2013 @ 07:35 PM EDT
The argument you bring up is different from what Wol brought up. He argued about
manufacturing CDs and inserting them in computer thinking there is established
precedents about that when there are none. You argue about how Mayo relate to
Federal Circuit case law and how the conflict should resolve. Your argument is a
very serious one.

Indeed, the Supreme Court and the Federal Circuit are not in synch because of
Mayo. The Federal Circuit tried to resolve the difference in CLS Bank. They
failed because this decision was reached on an equally divided court. Therefore
CLS Bank is not precedential. In a situation like this the lower court decision
is affirmed by default and the previous precedents remain applicable. But Mayo
is also a valid precedent. Half the federal Circuit judges has stated they are
willing to overrule Alappat while the other half want to keep it as is. This
makes the situation unpredictable.

Some more cases are required to clarify the impact of Mayo on the Federal
Circuit case law. We don't know yet which cases that would be. Perhaps there
will be an appeal to the Supreme Court in CLS Bank but we don't know that yet.

We can hope that things will turn up the way you say they should but we won't
know until these future cases are litigated and the decisions are issued. In the
mean time Alappat is still officially the rule, but its application may be kind
of flaky depending on which panel of judges is on the case.

We can hope that, among other things, Alappat gets overruled and that it is
recognized that all algorithms are mathematical. The courts are not there yet
but the stage is set to get there. In CLS Bank the judges made clear that the
new machine doctrine is not a legal fiction. They made very clear that they
think software physically rewires the computer and it is this rewiring that is
patented according to Alappat. If the correct facts are presented Alappat can be
overruled. Then we may hope that judge Lourie's opinion in CLS Bank attracts a
majority and becomes the new precedent. When that happens most software patents
will become invalid. Stuff like the Diehr rubber curing will still be patentable
though.

[ Reply to This | Parent | # ]

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