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Clear Guidance on Software Patent Eligibility May Soon Issue by CAFC

The U.S. Court of Appeals for the Federal Circuit (CAFC) has agreed to address the issue of patent eligibility for computer-implemented inventions by a full court. On October 9, 2012, the Federal Circuit issued an order which granted the Petition by CLS Bank, vacated its previous split-panel decision in CLS Bank International v. Alice Corporation and agreed to rehear the case en banc. The en banc panel of the CAFC will address two specific questions:

  1. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible “abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?
  2. In assessing patent eligibility under 35 U.S.C. §101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?

The case will be heard based on the originally filed briefs.  This is welcome  news to the software industry because of the conflicting outcome from CAFC cases on the issue to date.  The oral argument on the rehearing are expected sometime in the spring and we look forward to reporting again on this issue with what will hopefully be clear guidance.

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