In 2014, the U.S. Supreme Court addressed software patentability in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. __, 134 S. Ct. 2347, 110 U.S.P.Q.2d 1976. The shockwaves of the Alice bombshell are still rippling through patent law. The U.S. Patent Office promptly issued “Interim Guidelines” for its examiners, and has been updating its guidelines annually in view of about 80 decisions to date from the U.S. Court of Appeals for the Federal Circuit (hears all appeals of patent cases from district courts) and the Patent Trial and Appeal Board (an administrative law body in the Patent Office). When and if final guidelines on patent-eligible subject matter under Alice are created, they will be included into the Patent Office’s Manual on Patent Examining Procedure.
This article discusses the current law regarding patent-eligible software, and concludes with how patent applications should be written to maximize the chance of presenting patent-eligible subject matter.
