In a previous blog post I wrote about the decision in the US of the Court of Appeals for the Federal Circuit (CAFC) in the matter of Alice Corporation Pty. Ltd. vs. CLS Bank International.  In that case, a patent was rejected as relating to subject matter that was not patent-eligible.  The patent claim related to software for managing the risk associated with an online transaction, by providing an electronic escrow service.

The case was heard by a panel of judges who were divided in their opinion and so the case in my view represented a missed chance to clarify the law in this area.

However that chance may yet come again because an appeal has now been filed at the Supreme Court.  No doubt this will attract a lot of interest and stimulate a lot of debate.

The Supreme Court ruled on the issue of software patentability in 2010 in the famous Bilski case.  The final decision did produce a new test for assessing patent eligibility (called the “machine or transformation” test) and the USPTO at the time issued revised guidance for the patent examiners which takes this test into account.  However the Bilski decision did not represent any radical departure from the established practice of the USPTO and in practice the new test has not in my opinion meaningfully changed the boundaries of what is and is not patent-eligible.

However over the last few years there has been an explosion of patent troll activity and various legislative efforts are underway to improve patent quality, so it will be interesting to see what happens this time round against this backdrop.

We will keep you posted!