Many technology companies have not embraced patent strategies for protecting their software-related inventions, and instead have embraced the open-source ethos, which forgoes proprietorship and emphasizes decentralized, iterative collaboration between companies and individuals. While the open-source model can nurture innovation and creativity, it leaves many technology companies with few options to sell, license, or otherwise monetize the software and technology they produce. A recent spate of legal developments should prompt software developers and tech companies to reconsider their attitudes toward intellectual property protection.
Late last year, the United States Patent and Trademark Office (USPTO) updated its guidance for software-related patent applications, publishing three new examples of subject matter eligible for patent. This publication coincided with several significant rulings by the Court of Appeals of the Federal Circuit (CAFC), including Trading Technologies International, Inc. v. CGQ, Inc., in which the court rendered a decision that seems to favor inventors and challenges long-held assumptions about subject matter eligibility for software claims. The tide appears to be turning away from the uncertainties and confusion that erupted following the Supreme Court’s ruling in Alice Corp. v. CLS Bank International. In short, there is emerging an optimism that courts and the USPTO are turning against an assumption and general classification of software-related inventions as unpatentable on the grounds they represent merely “abstract ideas”.
Now, with clarified guidance of what the USPTO is looking for in a patent application, and a more positive assurance of how software-related patents will be viewed – and validated – by the courts, organizations should evaluate the financial opportunities that patents and patent protection present. The recent publication CAFC Rulings on Software Patenting, provides a more in-depth analysis of recent court cases on this topic.
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