Tonight, I suggest reading Josh Wild's Intellectual Asset Management (IAM) blog post The US has not come close to abandoning software patents, former Microsoft chief patent counsel tells IAM.
In the post, former Microsoft Chief Patent Counsel Bart Eppenauer seeks to rebuts those claiming Alice wiped software patents. Mr. Eppenauer notes the Alice decision held software patents are eligible as a category (thank you for noting it) and that invalidity decisions applying Alice were for weak patents (e.g., Internet Bingo) written before Alice was handed down.
I mostly agree with Mr. Eppenauer's observations that we have uncertainty to work through in the USPTO and courts, but note the initial results indicate the law has changed. I would add Alice missed an opportunity to eliminate some uncertainty when it declined to give guidance on how to determine what is an abstract idea other than say Alice is like Bilski.
However, my comment if someone (no matter how smart) argues something sweeping and contrary to the past has changed, the person might not know. What am I talking about? How about the statement that Alice resulted in the invalidity of hundreds of thousands of software patents? For example, see Big US tech companies face major patent losses in the post-Alice world, IAM research reveals. But who has read all of these US patents? Sure, an Internet Bingo patent was held invalid, but this doesn't prove anything about "many software patents." Mr. Eppenauer is smart to say let's see how the software patent eligibility standard develops in the USPTO and courts in the coming years. It might sound stodgy, but it's going to be far less embarrassing than explaining to others why you believed that "smart chicken little" shouting the sky is falling. Yes, we have clouds, but let's follow along and see what the community develops in response.
Trade secret and copyright can complement, but not replace patents which provide the broadest intellectual property protection. So I expect many to continue to pursue patent protection on software inventions despite the uncertainty presented by Alice.
Copyright © 2014 Robert Moll. All rights reserved.
