On March 31, the U.S. Supreme Court will hear oral arguments in Alice Corp. v. CLS Bank. Many are looking to the court to provide guidance on patent eligibility for computer-implemented inventions after “the Federal Circuit’s deeply fractured en banc decision in the Alice case in May failed to reach a consensus.” Finnegan partner Linda J. Thayer spoke with Law360 ahead of the arguments, noting the Federal Circuit split made it “inevitable” that the Supreme Court would take up the case. “Whether claims are patentable now seems to depend more on the judge or the panel than the content of the claims,” she said. “That’s not a good a situation for the industry to be in, because we can’t plan for that.”
It remains to be seen how the Supreme Court will decide, although many suspect a new test for software patents will emerge. Thayer noted that a test taking a less restrictive view, allowing for wide patent eligibility under Section 101 would have slight practical impact, while a more rigid test could have substantial effect. “Look at what happened with Bilski: A lot of claims that were valid became specious overnight,” she said. “Everyone started raising 101 challenges under Bilski. . . . . We could see something similar with CLS if the Supreme Court says 101 should be a strict filter.”