August 26, 2021
Ray Millien Discusses the Fate of Software Patents 7+ Years after Alice in IPWatchdog Article
As an update to my posts from 2017, 2019, 2020, and March 2021, it has now been 86 months since the U.S. Supreme Court’s 2014 Alice Corp. v. CLS Bank decision. Yet the debate still rages over when a software (or computer-implemented) claim is patentable versus being simply an abstract idea “free to all men and reserved exclusively to none” (as eloquently phrased over 73 years ago by then-Supreme Court Justice Douglas in Funk Bros. Seed Co. v. Kalo Inoculant Co.).
Further, it has been 10 years since famed venture capitalist Marc Andreessen wrote the influential and often-quoted op-ed piece in the Wall Street Journal titled “Why Software Is Eating the World.” Today, the digital transformation where software is “eating the world” is undeniable. Let’s look at some facts and figures from the USA, Europe and China.
In the first half of 2021:
- 63% of issued U.S utility patents were “software-related” (on pace with 63.2% for all of 2020)
- 48.9% of granted EPO patents were “software-related” (on pace with 48.2% for all of 2020)
- 40.1% of granted Chinese patents were “software-related” (on pace with 40.2% for all of 2020)
Meanwhile, back at the U.S. patent bar, the USPTO, Federal Circuit, Supreme Court, and Congress have not cleared the Alice Section 101 confusion. As former – and still to be replaced – USPTO Director Andrei Iancu stated in his farewell speech at the U.S. Chamber of Commerce on January 19, 2021, “Will [we] finally resolve this issue that has plagued our [patent] system for the past decade?” We’re still waiting…