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Patentable Software: Will We Know It When We See It?
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
Courts have attempted to generate a bright-line test that precisely defines the patent eligibility of software patents. Such bright-line tests have proven difficult to implement and have not, in the long run, been sustained. Due to the broad range of software that has been patented and will be patented, courts will likely be unable to settle on just one test and therefore will be forced to use multiple tests as “clues” for patent eligibility. For example, the machine-or-transformation test will still be used as an indication of whether a patent claim is so abstract that it is patent ineligible. See Bilski v. Kappos, 130 S. Ct. 3218, 3227 (2010). Consequently, each software patent will likely need to be evaluated on a case-by-case basis with a specific inquiry as to what the claims recite as a whole. See Diamond v. Diehr, 450 U.S. 175 (1981). Patent applicants should consider strategically claiming their software innovations with an eye toward several post-Bilski decisions, including those that are pending further judicial review, that inform applicants about the clues courts may use when determining whether a claim is patent eligible.
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Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
Hyperlinked Documents: The Latest e-Discovery Challenge
As courts and discovery experts debate whether hyperlinked content should be treated the same as traditional attachments, legal practitioners are grappling with the technical and legal complexities of collecting, analyzing and reviewing these documents in real-world cases.
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Risks and Ad Fraud Protection In Digital Advertising
The ever-evolving digital marketing landscape, coupled with the industry-wide adoption of programmatic advertising, poses a significant threat to the effectiveness and integrity of digital advertising campaigns. This article explores various risks to digital advertising from pixel stuffing and ad stacking to domain spoofing and bots. It will also explore what should be done to ensure ad fraud protection and improve effectiveness.
Turning Business Development Plans Into Reality
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