Software

News & Analysis as of

Abstract Ideas and the USPTO: Examiner Guidance Post Enfish and TLI

On May 19, 2016, the U.S. Patent and Trademark Office issued a memorandum containing a summary of two recent Federal Circuit decisions along with a directive for how patent examiners should apply the holdings of the...more

USPTO Memo Updates Examiner Guidance On Subject Matter Eligibility In View Of Enfish

On May 19, 2016, just weeks after its May 2016 memorandum to examiners providing guidance on subject matter eligibility under § 101, the USPTO issued a new memo updating its guidance to examiners in view of the Federal...more

U.S. Trade Representative Issues 2016 Special 301 Report

On April 27th, Ambassador Michael B.G. Froman, U.S. Trade Representative (USTR), issued the 2016 Special 301 Report. According to the USTR website, "[i]ntellectual property is a critical source of economic growth and...more

USPTO Memo re Enfish v. Microsoft

This is an update to my recent article about the Federal Circuit’s decision in Enfish v. Microsoft. In a memo to the Patent Examining Corps dated May 19, 2016, Deputy Commissioner Robert Bahr said that the Enfish...more

In re Certain Activity Tracking Devices, Systems, and Components Thereof

Pepys (17th century) recorded his sleep patterns, so wearable devices that record sleep patterns unpatentable? On April 27, 2016, the U.S. International Trade Commission (ITC) issued an Order indicating that two patents...more

A Spring Thaw in the Availability of Patents for Software Inventions?

Patent lawyers, strategists, entrepreneurs and investors in software and Internet enterprises are acutely aware of “the Alice problem.” The Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank International caused a chill...more

False Claims Act Trends: Technical Data, Software And IP

Government contracting has never been easy. But occasionally it is exciting, at least at the outset: Figuring out how to prepare the most competitive proposal and landing a significant contract are memorable achievements...more

Federal Circuit Holds District Court Abstractness Analysis Too Abstract for Alice under 35 USC § 101

Clients in the software space now have stronger arguments for subject matter eligibility, following the Federal Circuit decision in Enfish LLC v. Microsoft Corp. (May 12, 2016). The decision also touches on novelty,...more

Latest Post-Alice Guidance from the Federal Circuit

On Thursday, May 12, 2016, the Federal Circuit reversed a lower court’s finding of invalidity under 35 U.S.C. § 101, as an unpatentable abstract idea, of a software patent concerning a “self-referential” database in Enfish v....more

Is CaaS the solution for privacy and security in the SaaS world?

Companies are under tremendous pressure to reduce IT costs. Cloud and Software as a Service (SaaS) offer significant potential cost reductions through the use of shared infrastructure and standardized software offerings....more

The Government Whittles Away at Life Sciences Patents

The current U.S. Supreme Court has been noted for its hostility to patent holders in general, but the Supreme Court has been especially hostile to any sort of life sciences or software invention. The Court has attempted to...more

Major 101 Decision – Enfish v. Microsoft

Today in Enfish v. Microsoft, the Federal Circuit held software claims patent eligible, reversing the district court’s grant of summary judgment on 101. This is a major decision because it is only the second since Alice where...more

News of Note for the Internet-Minded – 5/12/16

AI teaching assistants and the NBA’s interest in VR aside, this week’s roundup has plenty of darker-themed stories, including torture-proof passwords, live-streamed suicide and death while AR gaming. - An Irish man dies...more

New Patent Office Memo To Examiners Raises The Bar For § 101 Rejections

Since the Supreme Court’s Alice decision, the Patent Office has struggled with training examiners to properly analyze claims under section 101, and set forth well-reasoned patent-eligibility rejections. The Patent Office...more

Negotiating Software Agreements – Key Terms For Electronic Health Records

Healthcare providers (Providers) rely on third party vendors for providing Electronic Health Record (EHR) software services. Due to the amount of protected health information Providers store in these software services, and...more

Jack’s Box (Silicon Valley – Episode 20)

Episode 20 of Silicon Valley explores numerous classic conflicts: consumer-oriented v. enterprise business model; engineers v. sales; revolutionary vs. safe; long-term goals v. short-term profits; Erlich v. Jian-Yang …...more

Effective calendaring and email systems prevent claims Whoops – Legal Malpractice Prevention

Computers and technology have changed every aspect of the modern law practice. Email, for instance, has completely transformed the practice of law. Electronic communication is instantaneous, continuous, and ubiquitous. It is...more

AOL, Dropbox and the Big “uh-oh”

A New York couple brought suit against their former law firm because it used an America Online account to transact firm business. If you are my age you probably remember that AOL and “You’ve got mail!” were the future—back...more

Epic Verdict in Trade Secrets Case

Last week, a federal jury in Wisconsin awarded almost $1 billion to Epic Systems Corporation in its trade secrets case against Indian consulting company Tata Consulting Services, Ltd., and its American unit, Tata America...more

Medical Software Company Wins $940 Million in Trade Secret Case

A jury recently awarded Epic Systems Corporation (“Epic”), a medical software company, $940 million in damages in a case against Tata Consultancy Services Limited (“Tata”) involving theft of Epic’s trade secrets and...more

The Mind as Computer Metaphor: Benson and the Mistaken Application of Mental Steps to Software (Part 1)

Of the three recognized judicial exceptions to Section 101—laws of nature, natural phenomena, and abstract ideas—none has proved more resistant to reasoned judicial analysis than the last. From its inception in Gottschalk v....more

The Internet of Things: Evaluating the Interplay of Interoperability, Industry Standards, and Related IP Licensing Approaches...

We recently published a client alert on January 26, 2016 that addressed some of the more significant Internet of Things (“IoT”) -specific standards and initiatives and emphasized the importance of interoperability as central...more

Benefits of using thin and zero client’s vs desktop PC’s

What are “thin clients” and their close cousins “zero client devices”? You probably have a desktop computer or laptop computer at work and all the software you use is installed on that computer. Although your data is...more

The Mind as Computer Metaphor: Benson and the Mistaken Application of Mental Steps to Software (Part 3)

Part III. Functionalism: A Philosophical Argument In Support Of The Functional Equivalence Of Mental Steps And Computer - Even if UDC did not support the Solicitor General’s argument that “the functions themselves are...more

The Mind as Computer Metaphor: Benson and the Mistaken Application of Mental Steps to Software (Part 2)

The fictional form of the mental steps doctrine arose in Benson, where the Court stated: A digital computer, as distinguished from an analog computer, is that which operates on data expressed in digits, solving a problem...more

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