CLS Bank v. Alice Corp.: What Does It Mean for Software Patent Eligibility?

Abstract

For more than forty years, patent attorneys, software engineers, examiners, and judges have debated the patent eligibility of software. For most of the 1980s and 90s, the USPTO has viewed software as generally patent-eligible subject matter. Starting with the State Street v. Signature Financial case in 1998, courts have examined subject matter patent eligibility with greater scrutiny. This comment reviews six recent software patent eligibility cases, of which the court upheld software’s eligibility twice and rejected its eligibility four other times. In particular, the CLS Bank v. Alice Corp. case serves as a basis for examining several approaches to the topic. This comment proposes a standard which deems software patent subject matter eligible when an alternate dedicated hardware expression of the invention exists. The proposal also gleans the lessons of the recent cases to avoid potential pitfalls. This standard provides clarity and allows all interested parties to know upfront a software invention’s subject matter patent eligibility.

Keywords: software, patent eligibility, CLS Bank, Alice Corp., software patent, Ultramercial, Hulu, section 101, 35 U.S.C. 101, Microsoft

JEL Classification: K11, O34