Debugging Software Patents after Alice

Software has grown staggeringly complex. The scale of data storage and large-scale population problems has led to ever-more-complex software solutions, creating billion-dollar companies and disrupting old industries—largely without patent protection. Given the speed and scope of change, does software deserve patent protection, and if so, in what form? Software patents are inherently complex, abstract, and difficult to claim; and broad patent claims often issue from the United States Patent and Trademark Office (“USPTO”). Some suggest that software developers are better off without patents, as the innovative and rapidly moving software industry benefits little by the slow patent examination process at the USPTO. The process results in hundreds of thousands of patents that have saleable value only decades after innovations have been commercialized and since grown obsolete. Those patents are sold and resold and eventually used by non-practicing entities to extract settlement value regardless of the invention’s original scope. Since the Supreme Court’s Alice Corp. v. CLS Bank International decision, software patent protection has been uncertain: lower courts have invalidated a number of software patents, the USPTO has slowed down examination, and inventors have increasingly abandoned their issued-but-now-questionable patents. Despite the rising rejection and invalidation rates in these areas, the USPTO continues to issue a record number of software patents. Clearly, at least a desire for strong software patent protection still exists. But how can we change our system to protect only supported, innovative ideas while at the same time weeding out undeserving, ambiguous claims? This Article argues that the solution starts with examination at the USPTO and calls for structural and regulatory reforms to limit the issuance of low-quality claims.