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Patentable Software: Will We Know It When We See It?

By Christopher TL Douglas

A fierce debate rages about whether software is patent eligible, and if so, in what form. Software companies line up on both sides of the battlefield, some arguing that all software patents stifle innovation while others argue for limited patent eligibility of software patents so long as the patent claims recite software that causes hardware to accomplish a particular narrowly defined function. Still others believe that the emphasis on 35 U.S.C. ' 101 is misplaced and, thus, would prefer to leave questions of patent eligibility for software to ” 102, 103 and 112. As the pressure mounts and public concern rises, we await further clarification, by Supreme Court or congressional action, as to whether software is patent eligible. In the meantime, patent applicants should hedge against any potential outcome by drafting applications having claim sets that attempt to comply with future adoptable patent eligibility tests.

Multiple Tests As 'Clues' for Patent Eligibility

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