The debate, while complex, tends to fall into be two main camps. One side believes the patent system as it stands isn't working and software should be freely accessible to anyone. The pro-patent group tends to favor the time limits and exclusive rights patents provide.
"The Supreme Court has signaled pretty strongly that it is not going to be swayed by what the Federal Court concluded," McSherry said. "Implications of that are going to be kind of significant for a number of areas, not at least software patents."
McSherry added that there is concern that a ruling in favor of CLS Bank could have a great effect on the technology industry, where patent litigation is rampant and some companies use patents as commodities. The ruling could result "in a world where patents are under siege" or where software programs aren't nearly as patentable as they are now.
Judge Moore wrote that the case could "render ineligible nearly 20 percent of all the patents that actually issued in 2011."
"If the reasoning of Judge Lourie's opinion were adopted, it would decimate the electronics and software industries," Moore wrote. "There are, of course, software, financial system, business method and telecom patents in other technology classes which would also be at risk. So this is quite frankly a low estimate."
Frazier suspects the Supreme Court's ruling will not be so extreme as to invalidate existing patents. The Court will more likely take a nuanced approach and companies will adapt, he said. He continued:
The other cases the Supreme Court has looked at would indicate that it will probably find some ground for software patents, some place for them, it doesn't mean that it'll be broad and sweeping. Under some circumstances, the Supreme Court recognizes that business methods could be patentable. So here under some circumstances it wouldn't be surprising that they would find certain defined [types of] software patentable.
Frazier said a ruling wouldn't solve industry problems but might deepen an existing rift in the community. McSherry doesn't believe that a ruling prohibiting software from being patented would decimate the software industry. She said:
Our view is software doesn't particularly depend on patents. Companies that are big enough think the only way to protect themselves is to invest in large patent portfolios, which is far away from the original use of patents. We have a happy and thriving software community... I think a lot of folks in [large companies involved in patent disputes] would be just as happy not being in that litigation.
Regardless of outcome, Frazier said there will be industry experts who find loopholes in the ruling and patent patentable materials.
The announcement follows the House of Representatives' passing the Innovation Act, a patent litigation reform bill which is supported by President Obama and will move on to the Senate shortly. The bill gives "gives defendants tools to fight back, makes litigation cheaper and includes an important fee-shifting provision," the EFF reported.
The Innovation Act requires defendant parties alleging patent infringement to include in the court pleadings, among other things, a detailed list of each patent being infringed upon and the name or model number of each item allegedly infringing on the patent in question. As patent lawsuits are sometimes directed by shell companies, the Act would require a description of the right of the party alleging infringement to assert each identified patent and claim as well as the identity of any person other than the party alleging infringement.
"The Supreme Court case could help the Innovation Act, which is kind of procedural," McSherry said. "I think the Supreme Court's decision could hit something a little more fundamental which is what's patentable in the first place."
In 2010, the Court took on patentability of business method patents in Bilski v. Kappos but failed to provide guidance for future cases or inventors.
— Jessica Lipsky, Associate Editor, EE Times