Strengthen the patent system by invalidating overly broad patents

On Friday, Microsoft filed an amicus brief in the Supreme Court in support of affirmance in the Alice Corp. v. CLS Bank case. Our interest in this case is to ensure the Supreme Court understands the difference between true technological innovations and the types of business method patents at issue in this case. Adobe and HP joined Microsoft on the brief.

Simply put, Alice Corp’s patents have nothing to do with software or computer technology. They relate to a method for reducing “settlement risk” in business transactions. They do not advance the state of technology, nor do they allow com­puters to execute the steps of a business trans­action faster, more efficiently or more reliably than they could before.

Claims that merely tack on a reference to implementation on a computer, in this instance an escrow transaction, don’t merit patent protection. The Supreme Court has already indicated, in cases like Bilski v. Kappos, claims like these are generally not patent-eligible standing alone. In our view, simply adding “on a computer” doesn’t magically transform a business method into a patent-eligible invention.

Alice’s patents stand in stark contrast to the true software-based inno­va­tions that power amazing technologies ranging from the modern smartphone to advanced robotic manufacturing, fly-by-wire systems, artificial retinas, driverless cars and a host of others.

Over the years, Microsoft has made major contributions in the field of computing technology and holds many patents that reflect these technological advances. But we are also, like so many other companies, frequently sued for infringement based on vague patents. While our brief defends the value of true computer-enabled inventions, it also clearly illustrates why the Alicepatents don’t qualify for patent protection and should be invalidated.

The court has already provided guidance on the question of the patent eligibility of true computer-enabled inventions. The issue in this case is low-quality, overly broad patents. Clarifying that these patents – and others like them – are invalid will improve patent quality and facilitate the fair and efficient functioning of the IP system that generates more than $5 trillion in U.S. economic activity and 40 million American jobs.

About the Author

Deputy General Counsel & Corporate Vice President, Legal and Corporate Affairs, Microsoft

Horacio Gutiérrez is Corporate Vice President and Deputy General Counsel in charge of the Microsoft products and services group (PSG). In this role, he oversees the team that provides front-line legal support to all of Microsoft's engineering and marketing teams, including Devices and Studios, Applications, Services and Dynamics, Operating Systems, Cloud and Enterprise, and Marketing. Previously, Horacio led the worldwide intellectual property group, including the development, maintenance and enforcement of the company’s IP portfolio, inbound and outbound patent licensing, and IP legal and public policy strategy. Prior to his eight years leading the IP group, Mr. Gutiérrez was based in Paris, where he was Microsoft's associate general counsel for Europe, the Middle East and Africa. Mr. Gutiérrez started his career at Microsoft in Fort Lauderdale, Fla. at the company’s Latin American regional headquarters, where he was responsible for commercial and corporate matters for the region.