From Alappat to Alice: The Evolution of Software Patents

by FABIO E. MARINO AND TERI H.P. NGUYEN

Before 1993 software was generally considered to be unpatentable subject matter and the protection of software innovations was limited to copyright and trade secrets law. But in late 1993, the Federal Circuit in In re Alappat recognized for the first time that software-implemented inventions could constitute patent eligible subject matter. Fueled by the Internet boom in the late 1990s, the United States Patent and Trademark Office (“PTO”) started issuing software patents in earnest and the Federal Circuit ultimately upheld the patentabilty of software-implemented business method in its seminal decision in State Street. During the subsequent decade, tens of thou sands of business method patents were granted. But the newfound patentability of software was also met with increasing criticism of the quality of the patents granted by the PTO.

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