Software inventions patentability
Just read an article about a recent Court of Appeals for the Federal Circuit (CAFC) decision relating to a software patent - BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC. In this case, the CAFC ruled in favor of the applicants (BASCOM). However, even such cases, that have become rare in the recent years, do not provide a clear tool for determining what is patent eligible software.
In the past 5 or so years, the bar for obtaining a patent for software has been continuously raised. In the most recent Supreme Court of the United States (SCOTUS) decision, in the case of Alice Corp. v. CLS Bank International, SCOTUS defined a two phase test for determining patent eligibility. The first phase is determining whether the invention defined in the claims covers an abstract idea or not. If it is not - the invention is patentable (if it meets other requirements such as novelty and inventive step). If the invention covers an abstract idea, the second phase is determining whether the invention defined in the claims adds something significant more than the abstract idea itself. If so - the invention is patentable (again - if it meets other requirements such as novelty and inventive step).
The problem we are still faced with is that the most important terms used in this two phase test - "abstract idea" and "significantly more", were not defined, neither by SCOTUS nor by the CAFC. The courts simply use the "we know it when we see it" standard. This leaves us in an awkward situation, where we cannot clearly determine what software invention is patent eligible and what isn't. There is a large gray area that awaits better tools to enable determination of software inventions patentability.
That said, patent practitioners still have some tools to determine what is NOT in the gray area. There are some inventions that are still on the right side of the equation with a very high likelihood. On the other hand - there are some inventions that are very likely unpatentable under these new standards. If you want to know what side of the equation your invention falls under - contact us.