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The Courts Patents Software

US Supreme Court Invalidates Patent For Being Software Patent 220

ciaran_o_riordan (662132) writes The US Supreme Court has just invalidated a patent for being a software patent! To no fanfare, the Court has spent the past months reviewing a case, Alice v. CLS Bank, which posed the question of "Whether claims to computer-implemented inventions ... are directed to patent-eligible subject matter." Their ruling was just published, and what we can say already is that the court was unanimous in finding this particular software patent invalid, saying: "the method claims, which merely require generic computer implementation, fail to transform that abstract idea into a patent-eligible invention," and go on to conclude that because "petitioner's system and media claims add nothing of substance to the underlying abstract idea, we hold that they too are patent ineligible." The End Software Patents wiki has a page for commenting the key extracts and listing third-party analyses. Analysis will appear there as the day(s) goes on. Careful reading is needed to get an idea of what is clearly invalidated (file formats?), and what areas are left for future rulings. If you can help, well, it's a wiki. Software Freedom Law Center's website will also be worth checking in the near future.
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US Supreme Court Invalidates Patent For Being Software Patent

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  • by gumbright ( 574609 ) on Thursday June 19, 2014 @11:33AM (#47272759)
    Please let this lead somewhere good.
    • Re: (Score:2, Funny)

      by gumbright ( 574609 )
      And did I get first post? How the hell did that happen if i did?
      • by johnnys ( 592333 ) on Thursday June 19, 2014 @11:38AM (#47272823)
        I think everyone else was paralyzed with the shock of seeing such "blinding common sense" come from a government institution. You were the first person to recover from the shock, so you get first post.
        • by CanHasDIY ( 1672858 ) on Thursday June 19, 2014 @11:51AM (#47272971) Homepage Journal

          The SCOTUS also ruled that citizens have a right to challenge an IRS summons.

          If that headline makes its way to Slashdot, this sudden outburst of common sense may cause the majority of the community to become catatonic.

          • by dcw3 ( 649211 ) on Thursday June 19, 2014 @12:04PM (#47273121) Journal

            You got it backwards...

            WASHINGTON—The U.S. Supreme Court on Thursday ruled taxpayers aren't automatically entitled to court hearings to question the motives behind a summons issued by the Internal Revenue Service. The decision was a win for the government, which argued a lower-court ruling made it too easy for taxpayers to obtain court hearings to examine IRS motivations for seeking detailed taxpayer information.

            • by msauve ( 701917 ) on Thursday June 19, 2014 @12:34PM (#47273471)
              It's not so simple either way, it's more nuanced. They provided a clarification of the rules to be applied:

              In an extremely brief and unanimous opinion by Justice Elena Kagan, the Court held that a taxpayer who wants to question Internal Revenue Service (IRS) agents about their motives for issuing a summons may do so if he can point to "specific facts or circumstances plausibly raising an inference of bad faith."
              it "will ensure inquiry where the facts and circumstances make inquiry appropriate, without turning every summons dispute into a fishing expedition for official wrongdoing."

              - []

              • The nicest thing about the legal system of the US is that incorporates more nuance each step of the way.

                Representatives pass a popular, mostly well intentioned bill, with loads of simplifications.(oh but also lobbyist interests)
                The executive enforces that with experts who try to apply that stricture in a way that seems reasonable for the pragmatic situation.(Oh but also lobbyist interests)
                The courts then examine iffy situations and issue precedence on places where that goes too far as well.(oh, but also lob

        • by pepty ( 1976012 ) on Thursday June 19, 2014 @12:40PM (#47273561)
          SCOTUS has been limiting intellectual property rights for several years now. Prometheus (also unanimous), Myriad, and now Alice. It seems like one thing they can all get behind.
        • I think everyone else was paralyzed with the shock of seeing such "blinding common sense" come from a government institution.

          I think the rest of us were wondering when in the everliving hell we can start seeing some of this trickle down to the rest of the tech world... the sooner, the better.

        • The one thing that stands out is that software is a Copywrite issue. A machine that already has the mechanics built into it is patenable by its inventor. It makes no sense that a 3rd party can step in and claim a new squence of switching is pattenable. Why? Because the squence ALREADY EXISTED, and N-Factorial other squences exist also.
          • That's an awful argument. By that definition nothing can ever be copyrighted (which may be your point). Music is, after all, just a unique set of sounds the instruments could already make - the already existed.

            • NVM - I misread things (and confused copyright with patent).

            • by Qzukk ( 229616 )

              I think you fundamentally misunderstood his statement, thought the random throwaway statement at the beginning about software being covered by copyright didn't help.

              He talked about how someone could build a machine with mechanisms (triggered by switches) built into it and patent that machine. But once that machine was invented, nobody else should be able to come along and patent using the machine with a certain set of switches on or off, because the switches and their options were already included in the o

              • by dnavid ( 2842431 )

                I think you fundamentally misunderstood his statement, thought the random throwaway statement at the beginning about software being covered by copyright didn't help.

                He talked about how someone could build a machine with mechanisms (triggered by switches) built into it and patent that machine. But once that machine was invented, nobody else should be able to come along and patent using the machine with a certain set of switches on or off, because the switches and their options were already included in the original invention.

                The issue of patentability doesn't presume that when someone patents a device, all possible uses of the device are implicitly covered. Its not true that once someone patents the computer, all possible uses for the computer are no longer patentable. The question is one of novelty. If someone tries to patent an invention that involves using another machine with a certain configuration, in the simple case that would almost certainly fail the novelty test, in that the machine was being used in exactly the wa

      • by msauve ( 701917 ) on Thursday June 19, 2014 @11:42AM (#47272861)
        If you figure it out, patent it!
    • by Tx ( 96709 ) on Thursday June 19, 2014 @11:43AM (#47272871) Journal

      I wonder if this ought to invalidate crap like the infamous Amazon one-click patent. After all it was also just a generic software implementation of a long-established system, namely storing someone's payment and address details for use with future purchases.

      • by ColdWetDog ( 752185 ) on Thursday June 19, 2014 @12:37PM (#47273511) Homepage

        Nope. That was on the Internet. That is completely different.

      • I worry that the stupid FAT32 patent will still be around (since it deals with how a HDD is formatted), but maybe, just maybe other crap (long filenames, anyone?) can finally just frickin' die.

        • by mysidia ( 191772 ) on Thursday June 19, 2014 @01:27PM (#47274051)

          I worry that the stupid FAT32 patent will still be around (since it deals with how a HDD is formatted),

          The fact that you can format a RAMDISK or an image file as FAT32; shows that the FAT filesystem actually an abstraction and claims about the abstract mathematical datastructures and parameters of the FAT filesystem really have nothing to do directly with the way the disk (or 'block' device) is formatted.

      • by Solandri ( 704621 ) on Thursday June 19, 2014 @12:57PM (#47273715)

        I wonder if this ought to invalidate crap like the infamous Amazon one-click patent.

        Unfortunately, you have to (1) be sued by Amazon for violating the patent (else you have no standing to challenge it), and (2) pay the expense of multi-year court battles with practically no hope of recouping your costs even if you win.

        OTOH, I actually like the one-click patent even though I think it's a stupid and invalid patent. It prevents other online stores from putting in a button which can cause you to instantly buy something if you accidentally click it (this has happened to me on Amazon).

        • by mysidia ( 191772 ) on Thursday June 19, 2014 @01:52PM (#47274293)

          Unfortunately, you have to (1) be sued by Amazon for violating the patent (else you have no standing to challenge it)

          If your business was damaged by their enforcement activities in the past, regarding their claims about their patent -- such as cease and decist letters, or you were required to license the patent, OR you had an offer to license the patent and refused to license the patent [], you might also have standing to pursue declaratory judgement.

          As far as we know; Amazon took action against Barnes and Noble once, and hasn't sued anyone since, so this isn't likely.

      • by dnavid ( 2842431 ) on Thursday June 19, 2014 @05:22PM (#47276405)

        I wonder if this ought to invalidate crap like the infamous Amazon one-click patent. After all it was also just a generic software implementation of a long-established system, namely storing someone's payment and address details for use with future purchases.

        I don't think so. My read of the opinion is that what the court found to be lacking in the Alice patents was specificity of invention. In other words, the patent claimed the idea of doing something, but not an actual specific implementation of doing something; the actual invention itself. The court held that you cannot patent an idea, and just saying in the patent application "a computer that implements the idea" is not enough. You have to be very specific and claim something that is not obvious and automatic. Its possible Amazon's one-click patent is sufficiently specific that its still patentable. But what might happen is that Amazon could lose the ability to challenge all forms of one-click, and could only protect its own very specific implementation of it. Its possible the *idea* of one-click purchase could be held unpatentable, and open the door to non-trivial alternate implementations of the same idea. For example, the Amazon patent specifies pre-registering payment information and assigning the customer a unique identifier than binds their electronic shopping cart with that payment information, such that using a single HTML button the purchase can be executed by referencing the payment information bound to the shopping cart's identification number. A one-click system that didn't specifically do that, but say used a single sign-on system that simultaneously authenticated against the payment database and the shopping cart system and triggered a third system to perform the payment process with both systems could be theoretically held to be a different invention to implement the same (unpatentable on its own) idea.

        I don't think the ruling directly invalidates the idea of a software patent. But I could see it limiting the claims of software patents enough to allow people to work around them more reasonably, by only requiring software implementers avoid using the exact, precise methods claimed within a patent, and not the entire idea the software patent implements.

    • by EvilSS ( 557649 )

      Please let this lead somewhere good.

      I think it will. Reading it, it seems to at the very least (IANAL so I have no idea how far it goes) it will nuke all of the "...with a computer!!" bullshit patents. I hope it goes much farther than that, but even if it doesn't it's a win.

    • by Darinbob ( 1142669 ) on Thursday June 19, 2014 @09:44PM (#47278339)

      It's hard to say. On the surface though it seems to at least invalidate one large class of software patents. That is, taking an existing idea and then doing it in software is not enough to make a new patentable idea. Which is exactly what so many companies encourage their employees to do when coming up with patents for the portfolio, and similar concept about reusing old ideas with new touch up paint.

      For example I was once at a company that did ultrasound imaging, and we had been encouraged in the software group to apply for more patents. One manager said that it could be ok to just take an idea and add "in ultrasound" to the end of it. The example was from a competitor which held the patent for "field upgradable software ... in ultrasound", and the patent actually had drawings of an optical disk being delivered via airplane to a remote location and being inserted into a machine.

      That points out the big problem really: all these companies feel the need to create all the patents because all of their competitors are doing it. If you're the only company in the field that has to pay licensing fees while everyone else is cross licensing instead, then you're at a serious disadvantage. It's a bit like working in a corrupt country, you feel a bit dirty about paying bribes but maybe you have no choice if you want to do business there.

  • About damn time!

  • by DrJimbo ( 594231 ) on Thursday June 19, 2014 @11:38AM (#47272817)

    We need someone who is familiar with the law to explain this to us techies. PJ we need you!

    • by msauve ( 701917 ) on Thursday June 19, 2014 @11:54AM (#47273027)
      You know the oft-made complaints about issuing patents for "idea, but on a computer?" This is from the ruling:

      Stating an abstract idea while adding the words "apply it with a computer" simply combines those two steps, with the same deficient result.

      Seems that the Supremes unanimously agree with those complaints.

    • You've got ESP (Score:5, Informative)

      by ciaran_o_riordan ( 662132 ) on Thursday June 19, 2014 @11:57AM (#47273045) Homepage

      Sorry, all you've got is me.

      If anyone can help, I've been building this wiki for five years now without a break: []

      (And I'm working on campaigns against software patents since 2003.)

    • by Warhawke ( 1312723 ) on Thursday June 19, 2014 @12:52PM (#47273661)
      This ruling extends the basic rule of Bilski that you can't patent an idea to the computer. Essentially, Alice Corp. states that you can't patent a general idea simply by appending the term "on a computer." What the case doesn't say is that all software patents are invalidated. Rather, the software has to be more than just a generic business idea expressed "on a computer."

      Alice Corp. was the assignee of several patents for mitigating "settlement risk" via software. Software claims in patent law usually occur in two parts: a method of performing the claimed function and a system for performing the prior claimed method. This basically lets a patent holder guard against people manipulating their way around the system or method claims to perform the exact same function, such as by using a remote server instead of a local hard drive, or querying before step A as opposed to after step A. Alice Corp. had both a system and method patent for mitigating settlement risk. Specifically, the claim contemplated two parties using a third-party intermediary, in this case a computer, to create account ledgers (or "shadow accounts," as the patent called them) based on the accounts of both primary parties, determining available versus unavailable funds, calculating a risk for a given set of transactions, and then issuing instructions to the parties telling them what transactions are permitted and what transactions are too risky to engage in.

      The patent itself was to "facilitate the exchange of financial obligations between two parties by using a computer system as a third-party intermediary." If this sounds like an abstract business method, that's because it is. Alice Corp.'s patent was basically a claim to mitigating settlement risk by employing a third party on a computer. The intermediary was just the computer in this case. The district court found that the patent was too vague, because it really only contemplated an idea. The Federal Court on first hearing reversed, saying that it wasn't "manifestly evident" that the patent ideas were abstract, so the case should be litigated rather than dismissed on summary judgment. On second hearing en banc (i.e. with all the Federal Circuit judges present, the Federal Circuit changed its position and determined that the method claims were invalid. There was some internal dispute, however, as to whether the system claims -- i.e. a claim over a computer that performs the function -- was valid.

      The Supreme Court determined, in an opinion written by Justice Thomas, that both the method and system claims were abstract and therefore invalid. The rule under a cased called Mayo Collaborative Services v. Promethius Labs requires that an abstract idea, to be patentable, must have some practically beneficial application to either the computer system implementing it or to some other kind of technology. For example, it might be common knowledge that plucking a guitar string emanates a harmonic frequency, so I can't patent plucking a guitar string, but if I find a new, beneficial use for plucking a guitar string, such as a patent on plucking guitar strings to encourage the growth and development of plants (yes, it's nonsensical -- I can't invent good, patentable things on the spot!), then I could patent that. Here, though, the court asked "whether the claims at issue here do more than simply instruct the practitioner to implement the abstract idea of intermediated settlement in a generic computer." Laconically, the Court concluded, "They do not."

      So what does this mean for software patents? Well they still are valid as more than just math. Though the Court didn't address the issue directly, it has been generally held that software is sufficiently transformative to warrant patentability. While not a favorite opinion here on Slashdot, that's not altogether nonsensical; if software is sufficiently artistic enough to be copyrightable, then it stands to reason that it has been sufficiently transformed from some

      • by harperska ( 1376103 ) on Thursday June 19, 2014 @01:10PM (#47273845)

        IANAL, but I am a software developer. One additional piece of the puzzle is that Thomas was very careful to use the term 'generic computer'. I.E. the system claims are invalid because the computer implementation at each step of the process does not need anything more than industry standard hardware, common APIs and algorithms/processes common and well known to the industry. Because the computer portion itself could be considered generic, it didn't make the unpatentable idea into a patentable process. That decision left the door open for software patents that require either specialized hardware, or truly novel algorithms not generally known to the industry to implement an otherwise unpatentable idea.

        • IANAL either, but I suspect there's a bit more to the word "generic" than merely commodity hardware. My understanding is that a generic computer is one that can be programmed to virtually do any task. So any software that runs on a CPU (or even a GPU these days) would be running on a generic computer, but hard drive firmware would not.

          This reading would be more in line with some of the other cases, as it means that software by itself cannot be patented, but software that's tied to specific hardware and is s

  • Holy hell (Score:5, Funny)

    by GameboyRMH ( 1153867 ) <gameboyrmh@gmai l . c om> on Thursday June 19, 2014 @11:39AM (#47272827) Journal

    There's no way this happened on purpose, something must be wrong.

  • Shock and Awe (Score:5, Insightful)

    by Carcass666 ( 539381 ) on Thursday June 19, 2014 @11:40AM (#47272839)

    A unanimous decision, authored by the most conservative voice on the court (Thomas) with a concurring opinion by one of the most liberal (Sotomayor). If this were the beginning of April, I would say this story was a prank. Yeah, it doesn't completely kill software patents, but it does seem to mortally wound the "business process + software = patent troll profit" problem that is plaguing software development. This is a good day for the judicial branch. It's a good day for the USA.

  • Huh? (Score:5, Informative)

    by bunratty ( 545641 ) on Thursday June 19, 2014 @11:42AM (#47272869)
    It looks to me like the patent was invalidated because you can't patent an abstract idea. You can't patent the abstract idea of a vehicle with four wheels that uses an internal combustion engine to transport people and cargo. But you can patent the invention of a specific type of automobile, provided that you provide a concrete implementation of that idea by integrating building blocks into a new invention.

    Held : Because the claims are drawn to a patent-ineligible abstract idea, they are not patent eligible under 101. Pp. 5–17. (a) The Court has long held that 101, which defines the subject matter eligible for patent protecti on, contains an implicit exception for ‘ “[l]aws of nature, natural phen omena, and abstract ideas.’ ” As - sociation for Molecular Pathology v. Myriad Genetics, Inc. , 569 U. S. ___, ___. In applying the 101 except ion, this Court must distinguish patents that claim the “ ‘buildin[g ] block[s]’ ” of human ingenuity, which are ineligible for patent prot ection, from thos e that integrate the building blocks into something more, see Mayo Collaborative Ser - vices v. Prometheus Laboratories, Inc. , 566 U. S. ___, ___, thereby “transform[ing]” them into a patent-eligible invention, id., at ___. Pp. 5–6."

    • by tomhath ( 637240 )
      I read it differently. It seems to say that, for example, you can't patent the concept of a bookstore, nor can you patent the concept of a bookstore implemented as a computer program.
    • It was invalidated because the process it describes is super super old. They only thing they added to the old process was using a computer. So if you invent something actually new. Then you can patent that. But "old idea + computer" is not patentable.
      • by Theaetetus ( 590071 ) <> on Thursday June 19, 2014 @12:23PM (#47273331) Homepage Journal

        It was invalidated because the process it describes is super super old. They only thing they added to the old process was using a computer. So if you invent something actually new. Then you can patent that. But "old idea + computer" is not patentable.

        If something's not new, it's invalid under 35 USC 102. If something is obvious, it's invalid under 35 USC 103. Both of these would apply to "old process + computer", and the patent should have been invalidated on those grounds...

        But, you have to prove that it's an old idea with some evidence in the form of prior art. And because SCOTUS can't do their own prior art searches, even though they knew it was an old idea, they couldn't invalidate it under 102 or 103... So, instead, they turned to 35 USC 101, and said that this was not a patent eligible method because it was directed to an "abstract idea"... But what's an abstract idea? According to Thomas, anything super super old, like you said. But that's what the other statutes are for.

        It's the right outcome - the patent was clearly invalid - but for the wrong reason.

        • by am 2k ( 217885 )

          But what's an abstract idea?

          Isn't the definition that you have to be able to give a patent to a developer skilled in the specific art and he/she can implement exactly the device described by the patent without inventing anything new? If that's not possible, the patent is supposed to be invalid because it's an abstract idea instead of a concrete implementation.

        • You've almost got this right, Theaetetus:

          Because the district court hearing the case invalidated the patent under section 101, the appeal was limited on those grounds. Neither the appellate court nor the Supreme Court could turn to section 103 (obviousness) to invalidate the patent, because there was no ruling on those grounds at the lower court level for them to review. Now if the respondent had made arguments under section 103 and the district court had ruled the patent to be invalid for obviousness, then

  • I am willing to bet PJ passively reads Slashdot. If this is so and you read this, we need you back now please. Now more than ever is the clarity of your legal analysis needed. I admit that I am being completely selfish in asking.
  • by PDG ( 100516 ) <> on Thursday June 19, 2014 @12:09PM (#47273163) Homepage
    While not an expert in this particular case, the holding seems pretty clear - you can't patent an abstract idea and the mere implementation of one does not violate an non-patentable solution. The analysis points out that there is not unique thought or design process involved to protect and the mere following of steps previous outlined does not make something patentable.
  • by ZombieBraintrust ( 1685608 ) on Thursday June 19, 2014 @12:19PM (#47273287)

    Using a computerto create and maintain “shadow” accounts amounts to electronic recordkeeping—one of the most basic functionsof a computer. See, e.g., Benson, 409 U. S., at 65 (noting that a computer “operates . . . upon both new and previously stored data”). The same is true with respect to the use of a computer to obtain data, adjust account balances,and issue automated instructions; all of these computer functions are “well-understood, routine, conventional activit[ies]” previously known to the industry. Mayo, 566 U. S., at ___ (slip op., at 4). In short, each step does nomore than require a generic computer to perform generic computer functions.

    I think the above is one of the most important parts of the ruling. Basically stating that your patents stores data, or calculates something won't make it patent elligible if it wasn't patent elligible to start with. You could extend similer thinking to internet patents when talking about "well-understood, routine, convention activiteis"

  • Great quote on pg 16 of the SCOTUS Opinion:

    Given the ubiquity of computers, see 717 F. 3d, at 1286 (Lourie, J., concurring), wholly generic computer imple - mentation is not generally the so rt of “additional featur[e]” that provides any “practical a ssurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.” Mayo , 566 U. S., at ___ (slip op., at 8–9).

  • by hydrofix ( 1253498 ) on Thursday June 19, 2014 @12:34PM (#47273469)
    At least according to Ars [] this is much less. It's just about killing specific kind of SW patents. Crucially, it still allows patents that "improve the functioning of the computer itself".
  • Summary of decision (Score:5, Informative)

    by Impy the Impiuos Imp ( 442658 ) on Thursday June 19, 2014 @12:37PM (#47273507) Journal

    A summary of the decision:

    1. [We have long held that] Laws of nature, natural phenomena, and abstract ideas are “the basic tools of scientific and technological work.” and are not patentable.

    2. Restricting such an idea and applying it in a particular domain also is not patentable, long established.

    3. This is an abstract idea -- and a well-known one in your industry at that.

    4. Applying it "on a computer" is trying to patent it in a restricted domain, and thus not patentable.

    5. quo novus ordo et tu Brute seclorum GT 9-0 FO

  • The quotes sure make it seem like the patent was invalidated for being one of those patents which is nothing more than a wish list of features, with no specific information as to an actual implementation. In other words, a marketing description masquerading as an invention.

    I've long thought that so many patents of the past 20 years were like this, especially software patents, and that invalidating these would be a great first step, even if we don't manage to get rid of software patents. So, although it seem

  • []

    Make sure you read his biography to get a sense of where he's coming from in this debate.

    • Does he include in his biography that he's a paid shill?

      No one should read anything he says.

      • As long as you understand where he's coming from, and that he's been paid as a lawyer to advocate in the past for clients, his stuff is worth reading. His arguments may be biased towards a specific perspective, but they are well-reasoned and documented in support of his position. That's a lot better than the normal bovine effluent you read from tech reporters or (other...) paid shills.

        Even PJ would pick-and-choose references to support a position, that's what "making an argument" is all about.

        That being s

  • by Steve1952 ( 651150 ) on Thursday June 19, 2014 @01:09PM (#47273837)

    The Supreme Court has held that "abstract ideas" can't be patented, but then has deliberately refrained from defining what an "abstract idea" is!

    In the latest Alice decision, they write: "In any event, we need not labor to delimit the precisecontours of the “abstract ideas” category in this case. It is enough to recognize that there is no meaningful distinction between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here. Both are squarely within the realm of “abstract ideas” as we have used that term."

    So you can't have "X", where "X" is undefined.

    • You're aware that not everything can be defined, right? Even in mathematics, sets are not defined. If there was something used to define what a set is, we would need a definition of whatever that thing is, ad infinitum. A dictionary always give definitions of words in terms of other words. You have to understand what some subset of words in a particular language means before you can use a dictionary for that language.
    • The concept of an "abstract idea" is something the Supreme Court invented (did I really use that word?) --- to find a way to invalidate obvious patents under section 101. An abstract idea is some knowledge known in the art prior to the invention, applied to a general-purpose machine or computer. That renders the combination of the abstract idea and the application on a computer obvious, if somebody can find a stated motivation in the art from which a rejection can be made.

  • In other news... (Score:4, Interesting)

    by dnaumov ( 453672 ) on Thursday June 19, 2014 @01:22PM (#47273999)

    ... Supreme Court has upheld the patentability of software concepts, while setting limits: Companies can't patent a mere abstract idea on a computer, but can patent software ideas that advance or improve upon existing ideas. []

  • by Charliemopps ( 1157495 ) on Thursday June 19, 2014 @02:08PM (#47274443)

    For anyone that wants to troll a patent autorny that has his feelings hurt over this, go here: []

    In what can only be described as an intellectually bankrupt opinion, the Supreme Court never once used the word “software” in its decision.

    Hahahahahahaha... had tears in my eyes reading that.

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