Software patents — the phoenix of patent subject matter
Software patents have seen better times. The glory days of the 1980s and 1990s, after the U.S. Supreme Court held in Diamond v. Diehr (1981) that inventions implemented in software are not unpatentable just because they are implemented in software, continued long past the generalized expansion of patentable subject matter by the Court of Appeals for the Federal Circuit in State Street Bank v. Signature Financial Group (1998). But the Supreme Court shook the foundations of the software patent world in 2012 (Mayo v. Prometheus) and 2014 (Alice Corp. v. CLS Bank International), leaving business leaders (and their patent attorneys) to wonder whether — or even hope that — software patents were dead. While the U.S. Patent and Trademark Office and courts have struggled to find reasonable, “new normal” limits on software patents that are practical in application and justifiable under precedent, recent cases reflect a maturing of the law surrounding patents on software-implemented inventions.
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