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John Paul Stevens (US Supreme Court Justice) on software patents

John Paul Stevens, or Justice Stevens, was a judge on the US Supreme Court from 1975 to 2010.

Stevens wrote the majority opinion in Parker v. Flook (1978, USA), and wrote a dissenting opinion in Diamond v. Diehr (1981, USA) and twenty-nine years later in Bilski v. Kappos (2010, USA).

Official statements

Below are excerpts from his contributions in opinions and hearings.

Bilski v. Kappos (2010, USA)

Stevens wrote a long dissenting opinion, in which he was joined by three other judges (but thus falling one vote short of being the majority opinion). His opinion is very clearly against business method patents, but, in the opinion of Dan Ravicher, his opinion would not have been helpful for abolishing software patents.

The Bilski hearing

(see: The Bilski hearing transcript, as text)

During the Bilski hearing, Stevens sounded very critical of Bilski's patent, and it sounded like his reasoning might apply to most software patents too.

Replying to Bilksi's lawyer's defence of their patent, Stevens said:

But is it correct that there’s none — none of our cases have ever approved a rule such as you advocate?


I don’t understand how that can be a patent on a machine if the only thing novel is the process that the machine is using. Isn’t — isn’t the question — really, the question there was whether the new process was patentable.


I don’t understand why that isn’t just the application of a process, which – which is not itself patentable subject matter, to a particular machine that can use process

and finally:

It’s not on a computer, which the only difference from the old computer is it’s using a new program. You can’t say that’s a new machine.

Note: in US patent legislation, "processes" and "machines" are patentable, so defenders of software patents always have to argue that their invention is one of these.

Microsoft v. AT&T, 2006

See also: Microsoft v. AT&T (2006, USA)

Stevens wrote a dissenting opinion in this case.[1] Some argue that the following text indicates that he might now consider software functionality as patentable.

I disagree with the Court’s suggestion that because software is analogous to an abstract set of instructions, it cannot be regarded as a “component” within the meaning of §271(f). See ante, at 9–10. Whether attached or detached from any medium, software plainly satisfies the dictionary definition of that word. See ante, at 9, n. 11 (observing that “‘[c]omponent’ is commonly defined as ‘a constituent part,’ ‘element,’ or ‘ingredient’”). And unlike a blueprint that merely instructs a user how to do something, software actually causes infringing conduct to occur. It is more like a roller that causes a player piano to produce sound than sheet music that tells a pianist what to do. Moreover, it is surely not “a staple article or commodity of commerce suitable for substantial noninfringing use” as that term is used in §271(f)(2). On the contrary, its sole intended use is an infringing use.

Diamond v. Diehr, 1981

(See Diamond v. Diehr (1981, USA))

Stevens wrote a dissenting opinion in Diamond v. Diehr, joined by three others, calling for an:

an unequivocal holding that no program-related invention is a patentable process under § 101 unless it makes a contribution to the art that is not dependent entirely on the utilization of a computer.

"§101" is the section of US legislation that defines patentable subject matter.

Parker v. Flook, 1978

(See Parker v. Flook (1978, USA))

Stevens wrote the majority opinion in Parker v. Flook, stating that not all forms of "post-solution activity" are sufficient to turn an unpatentable principle into a patentable process.

External links