There has been much discussion as to whether computer-implemented inventions generally, and software in particular, can or should be patentable.  The Supreme Court’s 2010 Bilski decision regarding patent eligibility of investment processes provided some guidance that may be applicable to software patents.  The Court is currently working on a case which deals directly with the question of whether computer-implemented inventions can be patented.

The case, Alice Corp. v. CLS Bank, also involved financial transactions, similar to Bilski.  Alice’s patents relate to a computerized platform for managing trades.  This case has a long history.  The trial court held the patents invalid because they covered abstract ideas.  After trial, it was appealed to the Federal Circuit, where a panel of judges reached a split decision in favor of the patents.  The panel majority decided the patents covered not just an abstract idea, but a specific, practical application of the abstract idea.  The panel decision was re-visited by all of the Federal Circuit judges (an en banc hearing).  The en banc hearing resulted in several opinions with a variety of rationales.  The only thing really clear from the en banc hearing was the majority agreed on a result – the patents were too abstract, as the trial court had held.  However, there was variation in how and why that decision was reached.

The Supreme Court granted Alice’s petition for review and oral arguments were held March 31, 2014.  The Court’s decision will hopefully bring some clarity to this controversial field.