The Supreme Court’s June ruling on the patentability of software – its first in 33 years – raised as many questions at it answered. One specific software patent went down in flames in the case of Alice v. CLS Bank, but the abstract reasoning of the decision didn’t provide much clarity on which other patents might be in danger.
Now a series of decisions from lower courts is starting to bring the ruling’s practical practical consequences into focus. And the results have been ugly for fans of software patents. By my count there have been 10 court rulings on the patentability of software since the Supreme Court’s decision – including six that were decided this month. Every single one of them has led to the patent being invalidated.
This doesn’t necessarily mean that all software patents are in danger – these are mostly patents that are particularly vulnerable to challenge under the new Alice precedent. But it does mean that the pendulum of patent law is now clearly swinging in an anti-patent direction. Every time a patent gets invalidated, it strengthens the bargaining position of every defendant facing a lawsuit from a patent troll.