Statement on the Supreme Court Patent Case

Ben Klemens
Ben Klemens Senior Statistician - Office of Tax Analysts, U.S. Department of Treasury

February 23, 2007

The U.S. Supreme Court recently asked tough questions of AT&T and Microsoft in a case focusing on whether Microsoft should be held liable for infringing an AT&T-owned patent on technology that digitally compresses speech. Microsoft had sent certain software overseas, drawing AT&T’s objections. The case presents a dilemma of how to legally define words such as code, software, and component. Brookings guest scholar Ben Klemens discusses the expansion of U.S. patent law.

STATEMENT: In the past decade, patent judges have been vigorously expanding the scope of U.S. patent law, and the Supreme Court has made it clear that they wish to put an end to that expansion.

First, the patent court has been increasingly comfortable finding infringements of U.S. patents on foreign soil. Last year, it found the servers of the Blackberry system were infringing U.S. patents—even though they are located in Canada. The Justices expressed a rightful concern over such patent imperialism, and it seems clear from their comments during oral arguments that they hope to put a stop to it.

Second, information schemes, such as a payment schedules and mathematical algorithms, are now effectively patentable. Justices Breyer, Stevens, and Scalia all pointed out that the Supreme Court never approved the patentability of software, again implying that the patent court had gone too far in expanding patentability to novel fields of endeavor.