In 2018, Avengers: Infinity War marked several milestones, one of which was the apparent death of half of our heroes with a single snap of the fingers (i.e., the now-infamous “Snappening” by the uber-villain Thanos). In preparing to see Avengers: End Game, I re-watched Infinity War, which got me thinking about the current state of software patents. Yes, I’m a patent geek. And for anyone who’s been following software patents during the past several years, I’m sure we can agree that there is certainly an analogy between the “Snappening” and the impact of the famous/infamous Alice Supreme Court decision that issued in 2014 on software patents. Indeed, Alice came out five years ago last week, the same amount of time between [SPOILER ALERT] the Snappening and Ant Man’s escape from the quantum realm in Endgame. The Alice decision seems to have had a similar “Snappening” effect on the software patent world, albeit not with the efficiency of Thanos. That is, seemingly half of the software patents asserted and/or prosecuted since 2014 have been invalidated or rejected under the law established by Alice. While there have been a few Federal Circuit cases that have provided glimpses of hope for software patents (e.g., Ancora and SRI International), such decisions continue to be a small minority.
So will we now soon have the patent equivalent of Iron Man, Captain America, and Thor and company to save the day? While you’re waiting for those Avengers to appear, there are a number of things we can do to better your chances at getting a software patent application allowed, such as:
- Tie the invention to specialized hardware. Does the software application work best on a mobile device, medical device, gaming device, or other type of arguably specialized hardware?
- Tout the advantages. Does the invention achieve something extraordinary such as the ability to time travel (or maybe something a little less noteworthy, or plausible)?
- Bridge the gap between the executed software instructions and the physical, tangible world. Does a user of the invention experience a real-world benefit from the application?
Despite what the naysayers have been trumpeting for years now, I strongly believe that software patents are “not dead yet” (cue Monty Python) – only “mostly dead” (cue Princess Bride) in certain circumstances. Call us to help you leverage the tips above and maybe we can help you achieve your desired results without the need for complicated time travel and parallel timelines.