Software Patents: A One-Year Review of Alice v. CLS Bank

Abstract

This Article investigates Alice's effects at its one-year anniversary by reviewing how the courts, namely the PTAB, district courts and the Federal Circuit, have applied Alice since its issuance. As of June 19, 2015, Alice was cited in 198 PTAB decisions, 63 district court decisions, and 11 Federal Circuit opinions, in a total of 272 court cases, to invalidate patents under § 101 -- totally 286 invalidations out of 345 patents or patent applications appeared before the courts at an average invalidation rate of 82.9%.

This Article estimates that -- without accounting for selection bias -- out of roughly 240,000 current patents in force related to computer-implemented inventions as of 2015, about 199,000 of those would likely be invalid patents under Alice, leaving about 41,000 valid patents.

I also did a two-year review of Alice in Journal of the Patent and Trademark Office Society, Vol. 98, p.354, 2016, available at http://ssrn.com/abstract=2798992.

Keywords: Alice v. CLS Bank, empirical, data, one-year, 1-year review, software patent, computer-implemented invention