I’ve just gotten around to reading Professor Chisum’s take on the Supreme Court’s recent Alice v. CLS Bank decision on patent subject matter eligibility, and I heartily recommend it for those interested in looking for some small clarity in an area of law that the Supreme Court has muddied well over the past several years.
Of course, the easiest conclusion to reach from the decision is that yes, software is still patentable. However, many have largely given a shrug to the decision – as we have become accustomed to doing when the Supreme Court weighs in on patent law. Robert Merges likens the decision to the Hitchhiker’s Guide computer’s answer of “42” to the ultimate question of life, the universe, and everything. One of my old professors John Duffy finds another media analogy: “Towards the end of the [classic 1965 movie The Battle of the Bulge], the German panzer colonel believes he has succeeded in breaking through the Allied lines, and he exalts: ‘We have done it!’ His attendant asks whether ‘we have won the war.’ The colonel’s answer: ‘no.’ The attendant then whether ‘you mean we have lost.’ Again, the colonel replies, ‘no.’ The confused attendant asks, ‘What is happening?’ The happy answer from the militaristic colonel: ‘The best thing possible is happening – the war will go on.’”
Patent practitioners are still left with more questions than answers after decision, but Professor Chisum does pull some portions of the decision that may let us better advise clients and converse with the Patent Office. Read Professor Chisum’s post here.