CLS Bank v. Alice Corp Is Unlikely to Provide the Silver Bullet that Software Patent Critics Seek

In this article from IAM Magazine, Finnegan partner Erika Arner provides commentary on the recent Federal Circuit en banc rehearing of CLS Bank v. Alice Corp. The case has been closely watched by the software industry, as it is expected to impact the patentability of certain computer-related inventions. Arner explained, “There are many that really feel that patents have no place in computer software, while there are also many companies that have decided to protect their computer-related inventions with patents and see great value in software patents.”

Arner, who attended the rehearing on February 8, 2013, noted that “There did not seem to be a consensus view on the proper way to evaluate computer-related inventions for patent eligibility under the Patent Act.” The Federal Circuit judges “seemed to be on both sides of the issue and though it is very hard to predict with any accuracy, I think we can expect a divided decision from the court,” she added.

A decision is not expected for at least few months, but Arner suggests “this case has a better chance of going to the Supreme Court than many others, particularly if the Federal Circuit’s decision shows a real divide in opinion among the judges.” She observed that “The Supreme Court has said many times that Section 101 of the Patent Act—which spells out what can be patented—is supposed to be very broad. This flexibility is intended to cover technologies that haven’t even been dreamt of yet—and to try to clamp down on it in a way that would carve out the supposed bad patents while still leaving open the possibility of patenting inventions we don’t even know about yet is almost impossible to do.”