Federal Circuit Report
REX HWANG Glaser Weil Fink Howard Avchen & Shapiro LLP
NICK HUSKINS Glaser Weil Fink Howard Avchen & Shapiro LLP
The Supreme Court’s landmark decision in Alice Corp v. CLS Bank,1 issued June 2014, fundamentally altered the practice of patent law. And as most practitioners are aware, software patents have been attacked and invalidated at unprecedented rates under 35 U.S.C. § 101 ever since. Indeed, many practitioners have questioned whether all software patents are vulnerable to invalidation, given the lack of guidance afforded judges tasked with deciding Section 101 challenges.
However, a trio of recent Federal Circuit decisions – Enfish v. Microsoft,2 Bascom v. ATT,3 and McRO v. Bandai4 – may signal a turning point. The Federal Circuit, through these decisions, appears to have incrementally broadened the scope of eligibility for software patents, while also providing courts with much-needed guidance in applying Alice‘s two-step eligibility test.