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The Software Squeeze: The Treacherous Path for Software Patent Eligibility

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The Alice decision has led to a heap of opinions invalidating patents for computer-related inventions – each holding that the reviewed claims provide (a) an idea that does not involve technology, and (b) an instruction to “apply it” using a generic computer. These decisions rebuke patentees’ failure to limit their claims with the details of a particular technique, and for overbroadly claiming any solution involving a simple concept.

However, a second line of cases, also citing Alice, have invalidated patents for the opposite reason: the claims recite an abundance of technical detail about a specific technique, yet the courts dismiss these details as either “purely conventional,” and/or “mathematical concepts” that are not eligible for patent protection.

These opposing lines of cases, driving against the body of software patents from opposite directions, require the inventors of computer-related inventions to walk a narrow path between qualitative description (claims rejected for overbreadth) and algorithmic description (claims rejected as mathematical or conventional). This path is being steadily narrowed, as the piles of invalid patents on each side continue to mount – threatening a categorical exclusion of computer-related techniques as patent-eligible inventions. This result is astonishing not only in its own right, but in contrast with the Supreme Court’s explicit and consistent rejection of such an exclusion over the 35 years since Diamond v. Diehr.
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