The shifting rules about software patentability reflect a long-running tug of war between the Supreme Court and the Federal Circuit. The Federal Circuit loves software patents; the Supreme Court is more skeptical.
That fight continues today. While the Federal Circuit has invalidated many software patents in the four years since the Alice ruling, it also seems to be looking for legal theories that could justify more software patents. Only continued vigilance from the Supreme Court is likely to ensure things don’t get out of hand again.
The 40-year-old Flook ruling remains a key weapon in the Supreme Court’s arsenal. It’s the court’s strongest statement against patenting software. And, while software patent supporters aren’t happy about it, it’s still the law of the land.
That’s the third US legal article in a row, but it’s a great article that looks at the history of the tug of war between the Supreme Court and the Federal Circuit.