| The purpose of this Paper is twofold: First, to explore the somewhat contradictory, and perhaps convoluted approaches by the Supreme Court and Federal Circuit to patentable subject matter since the early 1970's to the present; and Second, to investigate two theories of how to fix---if it can be considered to be broken---the current state of the law regarding patent eligibility. In regard to the second aspect, it is the Thesis of this Paper that the only practicable solution to the current quagmire is a legislative approach that will correct the legal definition of patentable subject matter under 35 U.S.C. § 101.;In addition, it has become common, since the decision of Alice and others to state "software patents are dead." This is not even remotely true. What has happened, as will be discussed, is that because of the expansion of the definition of the abstract idea exemption of patentable subject matter, it has become increasingly difficult---sometimes impossible---to get patents awarded for certain technology areas. One reason for this is because so-called abstract idea innovations can be best expressed in terms of algorithms and in software. Consequently, software patents have achieved a negative reputation---sort of a "guilt by association" narrative. The truly unfortunate result---the unintended consequence - is that perhaps many applications for innovations have either not been filed, or have been unfairly rejected and abandoned. |
