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Software Patents

The U.S. Supreme Court’s landmark 2014 decision, Alice v. CLS Bank International, had a dramatic impact on software patents and continues to cause uncertainty over the eligibility of software for patent protection. In Alice, the Court laid out a new two-part test for determining patent validity, under which the basic question is whether the software application satisfies the patent eligibility requirements of Section 101 of the U.S. Patent Code. Under this “Alice/Mayo” test, courts first determine whether the claims are directed to an abstract idea, a law of nature, or a natural phenomenon (i.e., a judicial exception). If the claims are directed to a judicial exception, the second part of the test is to determine whether the claim recites additional elements that amount to significantly more than the judicial exception. This second step is described as the “search for an ‘inventive concept.’”

The Alice decision has made it more challenging to prove that software claims are more than an “abstract idea.” As a result, the thoughtful drafting of patent claims is particularly important. Despite rising rejection and invalidation rates, however, the USPTO continues to issue a record number of software patents. Damages awards in software patent infringement cases can be considerable.

M&K has extensive experience filing successful patent applications and can help you protect your software-related invention. As a patent infringement law firm, we have successfully defended the validity of software patents in federal court litigation post-Alice.

If you are in need of a software patent infringement lawyer, please email us at or call to speak to one of our attorneys.