After many weeks of anxious waiting, the Supreme Court issued its decision in Alice v. CLS Bank this morning. No doubt commentators, law professors, and the courts will parse the opinion closely, but patent attorneys need to decide how to write patent applications now, and with our clients we need to decide whether to write a patent application at all. We cannot wait until the commentary comes in. While we should, of course, evolve our approach as the lower courts, Patent Office, and commentators apply and interpret the new decision, there are some bullet points to take from a quick read of today’s opinion.
- It’s deja vu all over again. If this opinion reads as something you have heard about before, that is because it mostly reiterates prior Supreme Court decisions, particularly Bilski and Mayo. Judicial precedence being important in our system, that repetition may be more of a feature than a bug, but the Supreme Court did not take this occasion to rework the law of software patents.
- Section 101 is becoming the new 103 (or even 102). The Court couches the opinion in terms of identifying the ‘abstract ideas’ that are not eligible for patent protection, but in identifying the the unpatentable abstract ideas at issue the opinion quotes Bilski to explain that “[l]ike the risk hedging in Bilski, the concept of intermediated settlement is a fundamental economic practice long prevalent in our system of commerce.” Slip opinion at 9 (emphasis added, internal quotations and citations omitted). The Court’s opinion dwelled almost as much upon how the concepts at issue have been “long prevalent” as upon how “abstract” the ideas are.
- The line between abstract and non-abstract matters, if you can find it. In a line much bandied about by patent geeks on Twitter already, the Court announced that “[i]n any event, we need not labor to delimit the precise contours of the ‘abstract ideas’ category in this case.” Slip opinion at 10. True to its word, the Court certainly did not provide much in the way meaningful guidance for future inventions. To be fair to the Court, deciding whether a patent claim is too abstract may be even harder than figuring out whether a patent claim is new and not obvious.
- Despite being opposed to patentability determinations hinging on clever claim drafting, a lot of patentability will continue to hinge on clever claim drafting. While the Court concluded with its traditional Jeremiad against applying section 101 “in ways that make patent eligibility depend simply on the draftsman’s art,” slip opinion at p. 16 (internal quotations and citations omitted), the Supreme Court continues to underestimate the artistry of ‘draftsmen.’ A good patent attorney cannot make that which is old new again, but with sufficient warning we will probably be able to make most ideas sufficiently concrete to pass the Alice abstractness muster.
For now, the Alice decision seems to leave the law of software patents substantially undisturbed. How the decision is applied, and whether the Court continues to take up these issues, will impact patent practice more than this long awaited decision.