Why Patentable Subject Matter Matters for Software
George Washington Law Review Arguendo, Vol. 81, p. 1, 2012
11 Pages Posted: 8 Jul 2012 Last revised: 27 Sep 2012
Date Written: July 7, 2012
Increasingly, courts weary from years of arguing about the scope of patentable subject matter for software patents seem ready to throw in the towel. Rather than continue efforts to craft a test for determining when a software invention graduates from an “abstract idea” or mere algorithm into a patentable invention, several recent Federal Circuit opinions dismissinely reject section 101 challenges as attacks that should have be made instead under sections 102, 103, and 112. This short essay criticizes this recent trend in patentable subject matter jurisprudence. Accused infringers look to section 101 for relief not because doing so is a convenient shortcut around more traditional checks on patentability, but rather precisely because traditional checks on patentability have proven to be woefully ineffective weapons against overbroad software patents.
Keywords: patentable subject matter, software patents, Mayo v. Prometheus, Ultramercial v. WildTangent
JEL Classification: O34, K00, L86
Suggested Citation: Suggested Citation