Anonymous asked Douglas Phillips, 3/12/2016 10:41:30 AM

Would the Supreme Court decision over Alice change any of the themes in your book?

Would the 2014 Supreme Court decision over Alice Corp. v. CLS Bank International change any of the themes in your book considering it was written in 2009? 

3/23/2016 12:04:40 PM,
Douglas Phillips replied:

Thanks for asking.  It's a good question.

The 2014 Alice decision changes the patent landscape in some respects, but I don't think it would change any of the main themes in my book, which focuses on how software licenses are used to "legislate" rules and restrictions that the underlying intellectual property law does not impose.

Software licenses do rely on intellectual property rights, without which licenses would be unnecessary, so changes in patent eligibility are not irrelevant.  But software remains eligible for various forms of protection, such as copyright.  And although Alice casts doubt on the patent eligibility of business methods, it leaves patent eligibility largely intact for software inventions of a more technical nature that improve the functioning of the computer.

Some of my comments on patents and the General Public License might have to be qualified as a result of Alice, but even there, enough software patents are likely to survive Alice that the basic points would not change.

There have also been other interesting developments in software licensing since 2009, and we have seen the "clickwrap" licensing technique used ever more widely, not only for software but also for content and services.  Thus, although some of the details have changed, I think that the topic of the book remains timely.