The effects of Alice Corp. v CLS Bank are beginning to be seen and they highlight the landmark status of the case. The Court of Appeals for the Federal Circuit, previously considered by many to be strongly pro-patent, has now used the Alice decision to resolve large numbers of patent cases by finding the software patents in question to be invalid. In fact, even lower courts are beginning to use Alice to strike down patent cases, declaring them invalid because of unpatentable subject matter.
Of course, the patent trolls are not going to be caught sleeping. Conceding that Alice invalidates many of their cases, pro-patent advocates will now begin hunting ways to get around the ruling. As software patent consultant Bob Zeidman said “every time there’s a court ruling it just means that you have to word the patent claims differently.” This might well mean adding function claims to patents, a move which also significantly limits their disruptive power. Perhaps that’s a compromise open source developers could live with, but let’s not let our guards down. In the meantime though, I propose a toast, “to Alice”.
For more on this topic, read Simon’s article on InfoWorld.