Here in the States, the Fourth of July is celebrated as Independence Day, to commemorate the signing and adoption of the Declaration of Independence on July 4, 1776. Thomas Jefferson wrote the first draft of the Declaration, which was then edited and finalized by the Second Continental Congress. Jefferson later went on to help draft our first Patent Act in 1790 and to accomplish a great many other things.
The Respecting Senior Performers as Essential Cultural Treasures (RESPECT) Act, introduced as House Resolution 4772 on May 29, 2014, would require digital music services to pay royalties for sound recordings fixed before February 15, 1972. Ironically, although Thomas Edison patented the mechanical phonograph cylinder as the first practical sound recording and reproduction device in 1878, the protection of sound recordings was governed only by state statutory and common law until 1972, when Congress passed the Sound Recording Amendment to the 1909 Copyright Act, which finally made sound recordings eligible for federal copyright protection. The RESPECT Act seeks to close a loophole in current copyright law that excepts digital music services that transmit or stream music by Internet radio, cable, or satellite, such as Sirius XM Radio, from having to pay performance royalties for pre-1972 sound recordings. The RESPECT Act does not confer federal copyright protection upon such sound recordings. If the law passes, legacy artists from the formative days of Rock-n-Roll, performers behind the Motown Sound, ‘60s folk and psychedelic rockers, and others, will be entitled to payment of royalties under federal statutory licensing requirements.
On June 19, 2014, the U.S. Supreme Court revisited the question of the patentability of computer software in Alice Corp. PTY. LTD. v. CLS Bank Int’l et al. The patent in suit covered a scheme of mitigating settlement risks in a financial transaction, as implemented on a computer. The Court analyzed whether the recitation of a computer to perform the scheme made the claims patent-eligible and concluded that the invention neither improved the functioning of the computer nor any other technology or technological field. The Court found that the scheme was a non-statutory abstract idea, a fundamental practice in commerce, and “a building block of modern economy.” Relying on earlier precedent, the Court held that the claims merely recited a generic computer implementation of an abstract idea, which failed to transform that abstract idea into a patent-eligible invention.
Although the Court did not establish a bright-line test for the patentability of computer software, the Court has signaled that computer software may now be required to improve the functioning of the computer involved in the execution of the software to qualify as patentable subject matter. The decision also appears to be a step towards European patent practice, where an advantageous technical effect may be necessary to support the showing of an inventive step.
In light of Alice Corp., claims should recite improvements to avoid being construed as “a generic computer to perform generic computer functions” that are “well-understood, routine, [and] conventional.” Improvements either to the computer proper or to “any other technology or technological field” ought to be clearly set forth in the specification to ensure ample support to the claims.