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Four Years After Alice, Software Patents Making a Comeback

December 21, 2018

Since being sworn in as the new director of the USPTO in February, Andrei Iancu has led the charge to improve predictability of patent-eligible subject matter. In addition to guiding United States patent examiners, Iancu has also tried to eliminate inconsistencies in the interpretation and implementation of the two-part Alice test among different branches of the USPTO. In August, the director created a new post that coordinates between the Patent Trial and Appeal Board of the USPTO and the examining corps.

With the Supreme Court seemingly content to stand on the sidelines about subject-matter eligibility issues, some bar associations have joined forces to encourage legislative action. At the annual meeting of the Intellectual Property Owners Association (IPO), Director Iancu noted that IPO committees have been hard at work on a legislative fix to Section 101, and has joined forces with the American Intellectual Property Law Association to propose new statutory language. The legislative effort will take time, but the effort is encouraging.

Meanwhile, the USPTO has stepped up its efforts to distribute guidance and educational materials that improve predictability of what is and is not patent eligible under its interpretation of 35 U.S.C. § 101 jurisprudence. Bar associations are also contributing to the effort with proposed legislation to Congress. Increased clarity should improve depressed patent valuations, result in increased patent licensing activity and raise shareholder value. General counsel and chief executives should rethink their company’s patenting strategies to take the changing landscape into account.

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