Are software patents dead? The U.S. Supreme Court’s decision last June in Alice v. CLS Bank, 134 S. Ct. 2347 (2014), left us with that question (among others). Since the court handed down its unanimous decision, software patents have been falling like snow in Buffalo. As a weapon for mowing down frivolous troll patents, the case is a godsend.
Yet, many serious companies have invested (and continue to invest) serious resources in innovative software. Think Google (search), Netflix (streaming video) and Amazon (data mining). Or think digital photography: image processing, photo and video editing, facial recognition. None of these businesses or technologies would exist without significant software innovations. And no patent practitioner or computer scientist would contend that all these developments yielded no important inventions (though they may have political/philosophical disagreements as to whether these—or any—inventions should be protected by patents). Right now, executives and lawyers are weighing the boon of an Alice-triggered wave of troll-patent invalidations against the bane of uncertainty over the validity of their own software-related patents. While much remains to be seen, it appears that many weak software patents will perish, but the strong may yet survive.
