Written by: Wayne F. Reinke for the Daily Record
For decades, computer-related inventions have survived various road blocks erected over time (statutory, case law, regulations and USPTO practice). When the latest road block came about and for some time afterward, i.e., Alice Corp. v. CLS Bank International, 573 U.S. __, 134 S. Ct. 2347 (2014), prognosticators decried the death of computer-related patents. Briefly, the first step of the Alice test is to determine whether the claims are directed to an abstract idea (or to a law of nature or a natural phenomenon in other technologies). The vast majority of computer-related cases find that the claims are directed to an abstract idea. Where the claims are abstract, the second step of the Alice test is to determine whether the claims include additional elements amounting to significantly more than the abstract idea. As you may guess, the application of the second part of the Alice test is the part of the test that has caused the most controversy. In most cases, where an abstract idea is found, a general purpose computer used to implement the abstract idea, without more, results in an outcome unfavorable to the patent holder. However, like the road blocks of the past, the treatment of such patents/patent applications has begun to see a marked improvement since the dark days of post-Alice treatment. Of course, the problem has always been less about Alice itself, though in defense of the prognosticators, the Supreme Court gave little guidance as to how to apply Alice, and more about the interpretation of Alice applied to computer-related inventions.