May 14, 2021
Fish's John Dragseth Quoted in Law360 Article "Fed. Circ. Judge's Proposed Software Patent Ban Is A Reach"
John Dragseth(Principal, Minneapolis, MN) wasquoted in Law360article, "Fed. Circ. Judge’s Proposed Software Patent Ban Is A Reach."
Many software patents have been found invalid since Alice without bringing free speech into the analysis, and judges on the Federal Circuit or the Supreme Court would likely be wary of the risks of going down that road, said John Dragseth of Fish & Richardson PC.
“If you want a patent to be invalidated, you can find other ways to do it,” he said. “When it matters to the holding, I think courts want to be more conservative. Courts don't want to open the First Amendment door to all sorts of stuff they could never envision.”
Dragseth said he questioned the idea that patents could impinge on free speech, noting that a patent is a right to exclude, and someone with the limited monopoly provided by a patent provides less of something that would otherwise be available on the market.
In other words, he said, if only one company has a patent on technology that ostensibly blocks speech, like Intellectual Ventures’ patents that could limit certain types of email communications, only one company could do it, and anyone else would be prevented by the patent from limiting speech in that way.
“A monopoly on stopping speech will stop less speech than the general market,” he said. “Patents that stop speech should result in more speech, rather than less.”
However, the concurring opinion should bring greater attention to the argument, Dragseth said.
“Judge Mayer is doing what judges should do: floating a trial balloon where it doesn't matter” since it didn’t change the outcome of the case, he said. “Now it's out there and professors can talk about it and parties can brief it.”
“Given the varied views people have of what we've gotten from the Supreme Court, I have to believe the court is going to have to take another case and tell us what words are being misinterpreted in Alice,” Dragseth said.
To read the entire article from Law360, click here.
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