Software Patents May Contain Ineligible Subject Matter Under 35 U.S.C. §101

June 25, 2013

6/25/2013 - Software Patents May Contain Ineligible Subject Matter Under 35 U.S.C. §101 -- A recent Federal Circuit ruling suggests differing opinions among the judges about whether certain software patents include patentable subject matter under §101. The court issued six different opinions in CLS Bank International v. Alice Corporation, each including varying tests to determine patent-eligible subject matter under §101. The patents at issue related to financial services software and included method claims, computer-readable medium claims, and system claims. Eight of the judges agreed that the claims "should rise or fall together in the § 101 analysis." The main opinion asserts that "the test should be a flexible claim-by-claim analysis that focuses on whether the claims add 'significantly more' to a basic abstract concept." In the case at issue, the main opinion found that the subject matter was not patentable because it included an abstract idea that was a "disembodied concept." A separate opinion written by Chief Judge Rader (concurrence-in-part, dissent-in-part) concludes that the system claims were patentable because they included subject matter that was not abstract or disembodied, but instead was integrated into a system utilizing machines. Although no definitive test as to patentable subject matter under §101 was set forth in the opinion, the opinion does indicate that there is substantial disagreement within the court as to whether particular software/financial services software patents include patentable subject matter. The Intellectual Property Strategist, Vol. 19, No. 9, June 2013.

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