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Software Patents

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THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding software patents and other computer-implemented method patents.

Section 101 provides that a patent may be obtained for "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." 35 U.S.C. § 101. The Supreme Court has long recognized, however, that § 101 implicitly excludes "laws of nature, natural phenomena, and abstract ideas" from the realm of patent-eligible subject matter, as monopolization of these "basic tools of scientific and technological work" would stifle the very innovation that the patent system aims to promote. Alice Corp. v. CLS Bank Int'l, ___ U.S. ___, 134 S.Ct. 2347, 2354, 189 L.Ed.2d 296 (2014) (quoting Ass'n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 133 S.Ct. 2107, 2116, 186 L.Ed.2d 124 (2013)); see also Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 132 S.Ct. 1289, 1294-97, 182 L.Ed.2d 321 (2012); Diamond v. Diehr, 450 U.S. 175, 185, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981). Finjan, Inc. v. Blue Coat Systems, Inc., 879 F. 3d 1299 (Fed. Cir. 2018).

The Supreme Court has instructed us to use a two-step framework to "distinguish[ ] patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts." Alice, 134 S.Ct. at 2355. At the first step, we determine whether the claims at issue are "directed to" a patent-ineligible concept. Id. If they are, we then "consider the elements of each claim both individually and 'as an ordered combination' to determine whether the additional elements 'transform the nature of the claim' into a patent-eligible application." Id. (quoting Mayo, 132 S.Ct. at 1298). This is the search for an "inventive concept" — something sufficient to ensure that the claim amounts to "significantly more" than the abstract idea itself. Id. (quoting Mayo, 132 S.Ct. at 1294). Finjan, Inc. v. Blue Coat Systems, Inc., ibid.


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