Cotton gin? Patentable. But software? Now that’s a tricky situation.

On Monday, the Supreme Court began hearing oral arguments in the case of Alice Corp. vs. CLS Bank – a battle over the patentability of software innovations. Qbase Technologies Executive Vice-President Erin-Michael Gill told FBN’s Liz Claman what’s at risk in the case.

“What’s at stake here is, the question of: Will the Supreme Court be able to draw a fine line and give the [specialty court] guidance around – not what’s novel or inventive -- but categorically, what is eligible to be patented?

“If the Supreme Court had indicated that they were inclined to say, ‘Well, broadly speaking software shouldn’t be eligible to be patented’—then the risk is … enormous. Every company that invests in software is at risk,” said Gill.

But Alice Corp.’s patents on financial software, he said, might not make the cut.

“In this particular case, it appears that [Alice Corp.] might not have distinguished quite enough to say that this is more than a mere abstract idea,” said Gill. “That to me is where a number of tech companies are coming down saying: ‘We get it, you can’t patent gravity—and you can’t patent gravity as applied to a computer.

“So the open question, and the one I think we should follow and figure out over time is: Is this a difference of degree, or a difference in kind?”

He said it’s a grey area well-deserving of attention in the digital age.

“To put IP at risk because people aren’t exactly sure what’s abstract and what’s not abstract … [It] is something I think we should be able to distinguish in the courts and in legislation,” said Gill.

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