[btilly]

I am sure he knows better than I. However from my point of view, those two positions are likely to be "extreme" and "very extreme".

(My point of view is that we would be better off without software patents. It would be hard to find a US patent lawyer or court who would agree.)

Also a random note in case anyone gets confused. There is only one such court, but cases are often heard by a subset of the justices. So what result you get can depend on which justices hear the case. Mark Lemley's claim is that there is a sharp divide between the justices.

[rayiner]

> There is only one such court, but cases are often heard by a subset of the justices.

To be specific, like all U.S. Courts of Appeal, the Federal Circuit hears cases in panels of three judges, drawn from the overall pool. In certain circumstances (notably, anything that requires a prior panel opinion to be overruled), a majority of the judges on the court may vote to rehear a matter en banc, in which case all the judges on the court vote on the outcome.

If I recall correctly, the panels are assigned randomly as the cases come in, so if there is a marked division in opinions within the court, the outcome can depend heavily on the luck of the draw.

[WildUtah]

(My point of view is that we would be better off without software patents. It would be hard to find a US patent lawyer or court who would agree.)

Justice Stevens wrangled four votes on the Supreme Court for that proposition as recently as 2010. If we could replace some of the pro-software patent majority (Roberts, Scalia, Kennedy, Thomas, Alito) in the Bilsky decision, maybe Breyer could wrangle five votes someday.

Of course, the CAFC might just overrule the Supreme Court if that ever happens.

(You say the CAFC can't overrule the Supreme Court? Wrong-o! [0] Don't read the link unless you're in a profanity-safe environment; not because it contains profanity, but because you're likely to shout some.)

[0] http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-pr...

[fpgeek]

Sadly, since 2010 the mountain has gotten a bit higher: the "no software patents" side has lost Stevens' vote and his replacement Kagan's position is unclear.

[btilly]

Patent lawyers tend to be significantly more in favor of patents than Justice Stevens.

As for courts, given currently binding precedent for software patents, barring changes in legislation, no court other than the Supreme Court should decide that software patents should not be allowed. Given that the Supreme Court failed to come to that conclusion, it is hard to find a court that would say that. :-(