Drawing Software Patent Drafting Guidance in 2021 From an Unlikely Source: the Federal Circuit
Since the Supreme Court’s Alice decision in 2014, inventors have faced extra hurdles trying to protect their software-related inventions with patents. A chief obstacle has been satisfying the two-part test for eligibility under Section 101 set forth in Alice and Mayo. To meet this test, claimed subject matter must not be directed to a judicial exception, such as an abstract idea, (Step One), and if it is, must add “significantly more” to provide an inventive concept (Step Two).
The Alice/Mayo test is applied during examination at the U.S. Patent and Trademark Office (USPTO) and can be a defense raised against enforcement of the patent. However, one aspect inventors have most control over is the drafting of their patent specifications that describe their claimed inventions. The challenge software patent application drafters now face is how to draft patent applications that can withstand scrutiny under the Alice/Mayo test.
Source: IP Watchdog