Software patents were dealt a heavy blow last June when the Supreme Court invalidated four such patents held by Alice Corporation, ruling that the patent claims covered abstract ideas not eligible for patent protection under 35 U.S.C. § 101, and that merely implementing these ideas using an “unspecified generic computer… is not ‘enough’ to transform an abstract idea into a patent-eligible invention” Alice Corporation Pty. Ltd. v. CLS Bank International, et al., 134 S.Ct. 2347, at 2360 (2014).
The Alice decision has become a powerful legal tool for companies facing software patent litigation from patent trolls (more properly referred to as non-practicing entities or “NPEs”), and several software companies have already scored victories by relying on the Alice decision. But law scholar Mark Lemley predicts that the NPEs will be back with a new tactic: “explicit functional claiming.” Read on to discover just how useful this tactic could be.