Software Patents

News & Analysis as of

Copyright Date Alone Does Not Prove Public Accessibility of Software User Guide

Addressing the standard for establishing whether a prior art reference qualifies as a “printed publication,” the Patent Trial and Appeal Board (PTAB) denied institution of inter partes review (IPR), finding that the...more

Guest Post -- The Emergent Microbiome: A Revolution for the Life Sciences -- Part X, The Big Data Component

Research into the human microbiome has resulted in such unprecedented amounts of data that challenges related to both interpretation and management have emerged. Somewhat paradoxically, current statistical methods have made...more

Software Is Still Patent Eligible

In recent years, software patents have come under fire from legislation (the American Invents Act) that has generally made patents easier to invalidate, and from court decisions (the Supreme Court’s decision in Alice v. CLS...more

Speedtrack Inc. v. Amazon.com, Inc. (N.D. Cal. 2017)

File-Searching Software Patent Found to be Patent Eligible - Speedtrack sued Amazon for patent infringement of U.S. Patent No. 5,544,360 in the United States District Court for the Northern District of California. ...more

Kayak Software Corp. v. International Business Machines Corp. (PTAB 2016) - PTAB Follows Strict Application of CBM Statute...

Petitioners, KAYAK Software Corp., OpenTable, Inc., Priceline.com LLC, and The Priceline Group Inc. filed a Petition requesting a covered business method (CBM) patent review of claims 1–9 and 12–17 of U.S. Patent No....more

The Alice Effect on 3D Printing

3D printing technology evolves through advances in software, hardware, and materials. Inventions in 3D printing hardware and materials are eligible for U.S. patent protection. Software is a different story. The U.S. Supreme...more

IP Part 3: Enforcing Your Intellectual Property

"We are certainly flattered by your affection for the brand" - Christy Susman made news for her surprisingly kind words to Patrick Wensink, author of Broken Piano for President, in a cease-and-desist letter after...more

Intellectual Ventures I LLC v. Symantec Corp. -- Judge Mayer on the First Amendment

Decided September 30th, this Federal Circuit case is already making waves. The majority opinion seems to be at tension with the Court's outcome in BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, but the real...more

Guest Post -- Recent Software Case Gives Important Lessons for Biotech

On September 13, the Federal Circuit held that a series of ordered combination of steps related to lip-synch software did not constitute an abstract idea, and was subsequently patent eligible under §101 (McRO, Inc. v. Bandai...more

September Was a Good Month for Patent Eligibility in the District Courts

Anecdotally, there seems to be a loosening up regarding the application of § 101 by the District Courts. The 2014 Supreme Court decision in Alice Corp. v. CLS Bank Int'l has been referred to as sounding a death knell for...more

Federal Circuit invalidates Affinity’s content-delivery patents for failing to disclose implementation of claimed functions

The Federal Circuit recently decided two related cases concerning media content delivery patents1 owned by Affinity Labs of Texas, LLC. In both cases, the Federal Circuit held that the patents do not cover patent-eligible...more

BMC Software, Inc. v. zIT Consulting GmbH (PTAB 2016) - CBM Patent Review Denied for Claims Lacking Financial Subject Matter

The PTAB denied institution of a covered business method (CBM) patent review in a case between BMC Software Inc. (Petitioner) v. zIT Consulting GmbH (Patent Owner). Petitioner, BMC Software, Inc., filed a Petition to...more

Boilerplate – New Consideration in View of Patent Subject Matter

Can boilerplate language describing possible variations to an invention ever impact validity of a patent? Many software patents include standard “boilerplate” text describing many ways to implement an invention, such as by...more

Continuing a Recent Trend, the Federal Circuit Again Confirmed that Properly Drafted Software Claims Can be Patent Eligible Under...

Continuing a recent trend, the Federal Circuit recently reversed a determination that claims of a patent are ineligible under 35 U.S.C. § 101. In McRO v. Bandai Namco Games America, the Federal Circuit again concluded that...more

Federal Circuit Highlights Claim Construction in Patent Eligibility Analysis

The case demonstrates that the eligibility analysis is highly fact-specific and dependent on properly construed claims. In McRO, Inc. v. Bandai Namco Games America Inc., a panel of the U.S. Court of Appeals for the...more

Important Federal Circuit Decision Provides More Clues on Software Eligibility

On Sept. 13, 2016, the Court of Appeals for the Federal Circuit gave applicants and patentees another tool with which to argue for the patent eligibility of their software innovations, finding that McRO’s lip-synchronizing...more

Protective Order for Source Code

A developer’s source code is considered the secret recipe of the software world – the digital equivalent of the famed Coca-Cola recipe. In Google Inc. v. Mutual, 2016 BCSC 1169 (CanLII), a software developer sought a...more

Prior Art Take 2: Finjan and Sophos Gear up for a Second Battle on Whether Prior Art Was Publicly Available

Order Denying Finjan, Inc.’s Motion for Summary Judgment, Finjan, Inc. v. Sophos, Inc., Case No. 14-cv-1197 (Judge William Orrick) In a battle that likely felt like déjà vu for the parties, Finjan for the second time...more

AliceStorm in the Dog Days of Summer

Over the past two months, the trends I've discussed in my previous blogs on AliceStorm have continued and become more entrenched. In particular, the Federal Circuit has been quite active, issuing nine decisions since late...more

ITC Declines to File Petition for Certiorari – CAFC Holding that ITC Does Not Have Jurisdiction over Digital Imports Stands

The deadline has come and gone for the ITC and patentee Align to file petitions for certiorari seeking review by the Supreme Court of the Federal Circuit’s decision in ClearCorrect. On November 10, 2015, a panel of the...more

Indefiniteness of Means-Plus-Function Claims

Addressing both the circumstances that lead to a claim limitation invoking a means-plus-function construction and indefiniteness issues for means-plus-function claims, the US Court of Appeals for the Federal Circuit affirmed...more

Roadmap to Software Patent Eligibility

Recent Federal Circuit cases provide direction on how to satisfy the PTO or the federal courts that software is eligible for a patent. Some key points include: - New ways of organizing data - New connections between...more

The Alice v. CLS Bank Scorecard, Two Years Later

It has now been a two years since the Supreme Court rendered its now infamous Alice v. CLS Bank decision.  It is safe to say that the Alice decision has had a profound impact on software patent enforcement, both at the...more

Of Technical Tools and Problems: Going Beyond the Two-Prong Alice Test

It is abundantly clear that the Supreme Court's 2014 Alice Corp. v. CLS Bank decision has significantly changed the patent-eligibility landscape for business methods and some types of software inventions. For instance, in...more

Federal Circuit Once Again Finds That a Functional Claim Term is Indefinite Even Without the Use of “Means.”

On July 28, 2016, the Federal Circuit issued its opinion in Advanced Ground Information Systems v. Life360, Inc., affirming the district court’s decision that the asserted patent claims are indefinite. This opinion is notable...more

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