I was fortunate enough to get permission from Steve Kunin and Michael Kiklis to post a copy of their Nov. 2 presentation on Section 101 and Alice: 101 Presentation from Kunin and Kiklis
The findings in this report could be characterized as bleak for software patents in Federal Court – both at the district court and Federal Circuit level. I counted over 100 Federal district court cases finding software patents ineligible under Section 101, and there are dozens of Federal Circuit decisions as well coming to the same conclusion about the software patent at hand. Few cases have found eligible subject matter. I didn’t calculate it, but the survival rate at present couldn’t be greater than 20%, and its probably as low as 10%. On the other hand, the large majority of the invalidated software patents were, in my opinion, squarely on the “suspect” end of the spectrum. It will very interesting to see how all the appeals of the district court opinions play out at the Federal Circuit in the next 12 months.
Here are some of Steve and Michael’s tips from their presentation, for drafting software patents:
- Take advantage of safe harbors
−Improvements to another technology or technical fields
−Improvements to the functioning of the computer
−Take advantage of the training examples (21, 23, 25)
- Emphasis that claimed invention provides technical solutions to technical problems
- Emphasize the novel and non-obvious limitations that are not conventional and are subject to the MOT test for process claims.
- Point out why the new combination of old elements achieves a novel and non-obvious result (i.e., an inventive contribution)