This month, a federal appeals court heard oral arguments in the case. If the court rules next year for a narrow interpretation of the law, that would put pressure on patent reform advocates who see the law as a key weapon against predatory lawsuits. In response, they would likely ramp up lobbying for a fix from Congress — and set up a big showdown with industry.
To understand how all this plays out, we have to introduce a bit of jargon, something known as the "covered business method." This is the program at the core of the Versata case. Essentially, it's a way for companies to make a claim at the patent office that a certain patent should be invalidated and no longer enforced. It's useful for when, say, a tech firm gets sued by a patent troll looking for a quick settlement for "infringement." The tech company can avoid the expensive step of going to court and instead simply ask the patent office to intervene. No patent, no lawsuit.
The thing about the covered business method, or CBM, is that it only applies to "financial services" patents; other types aren't eligible for this treatment. If you're wondering what that means, you're not alone. The patent office has interpreted "financial services" much more broadly than anyone expected in just the two or three years CBM has been around. This is a big win for pleasantly surprised patent reform advocates but a frustrating situation for big players, such as the pharmaceutical industry. If the government defines "financial services" expansively as pretty much anything having to do with money, then almost any patent could become subject to an invalidation request. That's a little scary for patent holders.
This is where the Versata case comes in: It involves the first CBM petition ever to be filed at the patent office, and the agency's broad interpretation of "financial services" set the tone for the entire CBM program. A decision that overrules the patent office would effectively narrow the definition of "financial services." That's what makes the case a big deal; as a result, only a smaller range of patents could be eligible for CBM treatment, and that would have ripple effects nationwide.
That has patent reform advocates worried. For years they've been pushing for CBM to be formally expanded in scope to cover not just "financial services" but all kinds of other topics, the better to protect companies that aren't in the financial services industry. With the backing of Sen. Chuck Schumer (D-N.Y.), a key negotiator on patents, these advocates wanted to include an expansion of CBM in last year's ill-fated patent reform legislation. But there weren't enough votes to include the provision, according to a Democratic aide. Given that the patent office had already begun interpreting "financial services" rather broadly, tech folks felt okay not pressing Congress harder for CBM expansion.
Now, however, with Versata v. SAP threatening to undo those gains, patent reform advocates are scrambling to bring back CBM expansion in the coming year's bill. "If SAP comes down the wrong way, you will see a big renewed move to expand the definition of CBM," said Julie Samuels, the executive director of Engine, an advocacy organization for tech startups.
CBM would've come up again eventually; the current provisions are set to expire on Sept. 16, 2020, meaning that companies will lose the protection of the program unless it's extended or made permanent. But with the Versata case raising the stakes, both sides of the patent reform debate will likely clash — and much more bitterly — this time around over an issue that had been largely sidelined.