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Bilski, Alice and Abstract Ideas: Is the Supreme Court at Least a Little Right but for Completely the Wrong Reason?

Its hard to believe its been over four years since the Supreme Court’s Bilski decision finding a computerized method of hedging ineligible for patenting under 35 USC Section 101, as constituting an unpatentable “abstract idea.”  In its Alice decision, the Court made it clear that despite the protestations of many “heavy hitter” amicus briefs, it remained committed to the abstract idea doctrine of 101 ineligibility, particularly as applied to software-based inventions.

Immediately after the Bilski decision was issued, it appeared to me, and others, that the prime target of the decision was broad, business method “inventions”, and that inventions more conventionally restricted to technology improvements would not be significantly affected.  Even after Alice was decided not long ago, I remained optimistic that the abstract idea doctrine would not be broadly applied to all software inventions, and furthermore I viewed it as particularly bad law.  In particular, it seemed incredulous to me that an invention explicitly limited to computerized embodiments could be said to be drawn to an “abstract” idea.  How can an invention that draws power and throws off heat be abstract?

Quite recently, however, I began to see that perhaps an ever growing trend in the form of software patent claiming is unwittingly contributing to the confusion of courts at all levels as to what is an abstract software invention and what is not.  More specifically, I have noticed that over the years the USPTO has required less “technical formalism” in software patents, and in particular, software patent claims.  This means that more and more, due to how easy it is to enable a software idea, it has become common for some software patent applications to disclose software inventions at higher and higher levels of abstraction.



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