Alice Does Not Render All Software Unpatentable

The court denied defendant's motion for summary judgment that plaintiff's error correction patents were invalid for lack of patentable subject matter and found that computer software remained patentable. "A bright-line rule against software patentability conflicts with the principle that 'courts should not read into the patent laws limitations and conditions which the legislature has not expressed.' One could argue that eliminating software patents is desirable public policy, but Congress has spoken on the patentability of software. . . . By excluding computer programs from subsection (a), Congress contemplated that some computer programs were eligible for patent protection. Courts should not read [35 U.S.C. § 101] to exclude software patents when Congress has contemplated their existence. . . . Moreover, the Supreme Court has implicitly endorsed the patentability of software. [Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014)] seems to acknowledge that software may be patentable if it improves the functioning of a computer. . . . The Supreme Court could have resolved Alice and provided clarity to patent law by declaring all software patents ineligible. However, the Supreme Court did not do this. This is some evidence of the continuing eligibility of software."

The California Institute of Technology v. Hughes Communications, Inc. et al, 2-13-cv-07245 (CACD November 3, 2014, Order) (Pfaelzer, J.)