The pendulum may have swung back to patenting software again. Since 2014 when the Supreme Court handed down its inscrutable ruling in Alice v. CLS Bank International, 134 S. Ct. 2347 (2014), the patentability of software and computer systems became a gray area of law. Some also felt that former USPTO Director Michele Lee (a former Google IP attorney) enacted examining guidelines that were overly restrictive to patent owners.
Companies like Facebook, Apple and Google need many patent rights to enable their technologies making them frequent targets for patent litigation. On the other end of the spectrum, drug companies and small startups need a strong patent system to recapture the research and development costs of their activities.
By some estimates, the combination of the Alice ruling and the Lee-era patent examination guidelines removed $1 trillion dollars in intellectual property value from the United States economy. However, things may have just changed dramatically for patent applicants.
The Federal Circuit’s ruling in Berkeimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018) did not (and cannot) overrule Alice but it clarified an important point in wholesale rejecting technology as “patent-ineligible.” New Trump-appointee, USPTO Director Andrei Lancu took the Berkeimer decision and integrated it into new patent examining guidelines. The new guidelines require patent examiners to better justify otherwise seemingly conclusory findings of unpatentability.
Well-informed stakeholders will unlikely conclude a new round of patent troll litigation is imminent. Recent changes in venue requirements have already quelled patent litigation the Eastern District of Texas. However, the likelihood of getting novel software processes patented appears much greater. Larger technology companies already with market dominance will patent more technology that was considered unpatentable for the last four years. More importantly, startups that rely on the leverage of the patent system will finally have an opportunity to introduce new technologies into the marketplace.