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Author Topic: Current status of business / software patents  (Read 6713 times)


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Current status of business / software patents
« on: 07-15-17 at 09:15 am »

I don't work in the area of software patents at all, but I am curious as to the current status.

If you could sum it up in a few sentences, what is the standard being used to reject / accept an application? I'm sure that Bilski and Alice are quite a ways in the past by now.

Robert K S

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Re: Current status of business / software patents
« Reply #1 on: 07-17-17 at 02:05 pm »

Alice is far from being in the past, but Enfish and McRO have provided some wiggle room for the applicant to overcome Alice rejections on software inventions by making showings that all embodiments of the invention as claimed yield improvements over the prior art.  (It should go without saying, but software per se isn't a statutory class and so doesn't meet section 101.)  I would still prefer to see Alice legislatively overturned (the persistent result in Ariosa v. Sequenom is particularly onerous) but for now these cases help, if the examiner understands them.
This post is made in the context of professional discussion of general patent law issues and nothing contained herein may be construed as legal advice.


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Re: Current status of business / software patents
« Reply #2 on: 07-19-17 at 10:53 am »

Oversimplified response:

Depending on the AU and examiner, software applications are getting through. Alice is still a big deal, few practitioners understand what is allowable and many make analogizing arguments to McRO/Enfish/Bascom that are pretty bad.  At a high level, make sure you're not just using a computer to perform basic functions like processing, sending, and storing data do not amount to significantly more.  Don't claim calculating X based on Y.  Be more specific with the actual algorithm (e.g. add 5, multiply by 6, avg the result, etc.).  That stands a chance with the right examiner.  Bilski is still a thing, although most practitioners have learned to write claims that meet Bilski's requirements.
The views expressed are my own and do not represent those of the USPTO. I am also not your lawyer nor providing legal advice.


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