A Practitioner’s Approach to Working With the Alice Corp. Decision
A lot of commentary has followed in the wake of the Alice Corp. v CLS Bank decision. I think, for now, we can put aside the question of whether computer implemented inventions, i.e., software, are patent eligible and instead refocus our perspective, when drafting claims, on what the Court really sees as patent eligible in light of Alice Corp. and other Section 101 precedent.
With the Alice Corp. decision, the Court has brought its definition of an “abstract idea” into slightly sharper focus, especially when seen in the light of the other patent eligibility decisions preceding it. Alice found that software patents do not have a special test. The same test used for all other types of patents also applies to software and business method patents. I am sure opponents of software patents will continue to push their cause, but for now the main fight should shift away from whether software is patent eligible and instead focus on how specific an application needs to be claimed to be patent eligible.